Hendry Jose v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **TUESDAY, THE 03RD DAY OF SEPTEMBER 2019 / 12TH BHADRA, 1941** **CRL.A.No.620 OF 2015** **AGAINST THE JUDGMENT IN SC 135/2012 DATED 27-03-2015 OF** **I ADDITIONAL SESSIONS COURT, ERNAKULAM** **(CP 3/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PERUMBAVOOR)** **(CRIME No.1096/2011 OF Kalady Police Station)** ## **APPELLANT:ACCUSED No.1:-** **HENDRY JOSE, S/O.HENDRY, KURUPPATH HOUSE, KONGORPILLY KARA, AIANGAD VILLAGE, NOW RESIDING NEAR MANACKAPPADY JUNCTION, PUTHIYEDAM KARA, KANJOR KIZHAKKUMBHAGOM VILLAGE.** **BY ADVS. SRI.RENJITH B.MARAR SMT.RESHMI JACOB SRI.K.V.SABU** ## **RESPONDENT:COMPLAINANT :-** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY SR.PUBLIC PROSECUTOR -SRI.ALEX M.THOMBRA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-08-2019, ALONG WITH CRL.A.1154/2015, THE COURT ON 03-09-2019 DELIVERED THE FOLLOWING:** Crl.A.Nos.620 & 1154 of 2015 :-2-: # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **TUESDAY, THE 03RD DAY OF SEPTEMBER 2019 / 12TH BHADRA, 1941** **CRL.A.No.1154 OF 2015** **AGAINST THE JUDGMENT IN SC 135/2012 DATED 27-03-2015 OF** **I ADDITIONAL SESSIONS COURT, ERNAKULAM** **(CP 3/2012 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PERUMBAVOOR) (CRIME No.1096/2011 OF Kalady Police Station)** **APPELLANT:2 nd ACCUSED :-** **SUJITH @ VELUMBAN, S/O.KRISHNAPPAN, VELUTHEDATH VELI COLONY, PUTHIYAKAVU HARIJAN COLONY, PATTANAKKAD VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT. (C.No.2353, CENTRAL PRISON, VIYOOR.)** **BY ADVS. SRI.LAVARAJ.M.G. SRI.E.V.GEORGE** ## **RESPONDENT:COMPLAINANT :-** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** ## **BY SR.PUBLIC PROSECUTOR -SRI.ALEX M.THOMBRA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-08-2019, ALONG WITH CRL.A.620/2015, THE COURT ON 03-09-2019 DELIVERED THE FOLLOWING:** Crl.A.Nos.620 & 1154 of 2015 :-3-: ## **J U D G M E N T** ## **N.ANILKUMAR, J:** Appellant in Crl.A.No.620/2015 is the first accused in S.C.No.135/2012 on the file of the First Additional Sessions Court, Ernakulam. Appellant in Crl.A.No.1154/2015 is the second accused therein. 2. The case is chargesheeted by the Circle Inspector of Police, Kalady against the appellants and six others in Crime No.1096/2011 of the Kalady Police Station for the offences punishable under Sections 323,308,302,212,419, 120B,109 and 34 of the Indian Penal Code, 1860 (for short 'the IPC'). 3. By judgment dated 27.3.2015, the court below convicted and sentenced A1 and A2 for the offence punishable under Section 302 r/w 34 of IPC and sentenced to undergo imprisonment for life and to pay a fine of `50,000/- each, in default to undergo rigorous imprisonment for six months each. If the fine amount is realised, the court below directed to pay the amount to the wife and children of the deceased Sabu as compensation under Section 357(1) of Cr.P.C. The court below further sentenced A1 to Crl.A.Nos.620 & 1154 of 2015 ## :-4-: undergo one year rigorous imprisonment for the offence under Section 308 IPC and he was further sentenced to undergo rigorous imprisonment for three months more for the offence punishable under Section 323 of IPC. The above sentence of A1 was ordered to run concurrently. A1,A2 and A5 were found not guilty of the offence punishable under Section 120B read with 302 of the IPC and they were acquitted for the said offence. A5 was found not guilty of the offence punishable under Section 109 read with 302 of IPC and he was acquitted for the said offence. A3,A5,A6,A7 and A8 were found not guilty for the offence punishable under Section 212 of IPC and they were acquitted for the said offence. A3 was found not guilty for the offence punishable under Section 419 of IPC and he was acquitted for the said offence. A3,A5,A6,A7 and A8 were found not guilty for all the offences charged against them and they were acquitted for the said offences. Challenging the conviction and sentence, the accused 1 and 2 preferred the above appeals. 4. The prosecution case in brief is as follows:- Crl.A.Nos.620 & 1154 of 2015 :-5-: The first accused was on inimical terms with CW1/PW33 Gibin Joy and deceased Sabu on account of filing a complaint before the Police. On 19.10.2011, A1,A2 and A5 conspired together to commit murder of Sabu for which they assembled at the residence of A5 in Sreemoolanagaram Panchayath. Thereupon, A5 supplied weapons to A1 and A2 for committing the offence. On 19.10.2011 at 7.30 pm, A1 as rider and A2 as pillion rider proceeded on the motorcycle belonging to the 7[th] accused to Kanjoor, at Manakkapadi. While so, on seeing PW33, the first accused slashed the chopper towards his head, pushed down PW2, who was sitting with PW33. Thereafter, the first accused beat deceased Sabu and inflicted injuries on his back and head with MO1 chopper. Second accused also inflicted cut injury on the head of the deceased Sabu. Although the deceased was taken to the Little Flower Hospital, Angamaly, he had succumbed to the injuries later. It is further alleged that A3,A5,A6,A7 and A8 harboured A1 and A2, knowing fully well that they were involved in a murder case, allowed them to escape and provided secret hiding places. Thus,the accused 1 to 8 have committed the aforesaid offences. Crl.A.Nos.620 & 1154 of 2015 :-6-: 5. PW33 gave Ext.P49 First Information Statement before PW38 on 19.10.2011. Based on Ext.P49 statement given by PW33, PW38 registered Ext.P55 FIR. As requested by PW38, PW.26 who was then working as Scientific Assistant, DCRB, Ernakulam arrived at the place of occurrence and had taken the blood stains in a cotton gauze and collected three samples and handed over to PW38. On 19.10.2011 in the night, PW39 took over the investigation of the crime. On 20.10.2011, he went to the Little Flower Hospital, Angamaly and prepared Ext.P4 Inquest Report in the presence of witnesses. In Ext.P4 Inquest Report, PW39 noted that the death of Sabu was due to the injuries inflicted on his head with chopper. On 20.10.2011, PW39 went to the place of occurrence and prepared Ext.P10 scene mahazar. PW39 prepared Ext.P42 mahazar regarding the seizure of packets collected from the place of occurrence and entrusted with the Sub Inspector of Police, kalady. On 21.10.2011, he had seized MO12 and MO13 chappals of the deceased Sabu produced by his brother as per Ext.P8 mahazar. On 27.10.2011, at about 5.30 p.m, PW39 arrested A1 and A2 and had produced them before the court. PW39 filed an Crl.A.Nos.620 & 1154 of 2015 :-7-: application seeking police custody of A1 and A2. The court granted it. On being questioned, A1 confessed by way of Ext.P13 statement that he had concealed the chopper used for the commission of the offence in a building at Kalamassery and if he was taken to the place, he would show the chopper and the place where it was concealed. Accordingly, on 3.11.2011 he went to the place with A1 as led by A1 and recovered MO-1 chopper as identified by A1 and handed over to him from the sunshade of an old building at Kalamassery. PW39 prepared Ext.P11 mahazar in the presence of witnesses. PW39 further stated that on being questioned, A2 gave Ext.P64 confession statement disclosing that he had concealed the chopper used for the commission of the offence in an old building at Kalamassery and if he was taken to the place, he would show the chopper and the place where it was concealed. Accordingly on 3.11.2011 he went to the place along with A2 and as led by A2, he had recovered MO2 chopper taken by A2 from the place near the bathroom in an old building at Kalamassery and handed over the same to PW39 as per Ext.P12 mahazar in the presence of witnesses. Consequently, PW39 produced Mos.1 and 2 Crl.A.Nos.620 & 1154 of 2015 :-8-: choppers before court as per Ext.P70 property list. According to PW38, PW11 was present and was a signatory to Exts.P11 and P12 mahazars prepared by him while recovering Mos.1 and 2 in accordance with Section 27 of the Indian Evidence Act (for short'the Evidence Act'). PW38 obtained the report from the Forensic Laboratory regarding the examination of the material objects through PW26 and produced before PW39. As instructed by PW38, PW28 the then Village Officer, Kanjoor prepared Ext.P43 site plan specifying the place of occurrence. He also obtained Ex.P44 report from the Assistant Engineer, KSEB, Kalady stating that there was no electric supply interruption from 6pm on 19.10.2011 till 6 am on 20.10.2011 at Kanjoor, Manakkappady area. PW39 questioned the witnesses, completed the investigation and filed the chargesheet before the learned Judicial First Class Magistrate Court-I, Perumbavoor where the case was taken on file as CP NO.3/2012. The learned Magistrate committed the case to the Sessions Court, Alappuzha on 7.3.2012 after complying with the usual formalities.The learned Sessions Judge took cognizance of the offences under Sections 323,308,302,212,419, Crl.A.Nos.620 & 1154 of 2015 :-9-: 120B,109 and 34 of IPC and registered the case as SC 135/2012 from where the case was made over to the Additional Sessions Court, Ernakulam for trial and disposal. 6. The accused entered appearance before the Sessions Court through counsel of their choice.They were later enlarged on bail. After having heard both sides, the court below framed charge against the accused for the offences punishable under Section 323,308,302,212, 419,120B,109 and 34 IPC. The accused pleaded not guilty to the charge whereupon the prosecution was permitted to adduce evidence on its case. 7. The prosecution altogether examined Pws.1 to 39 and got marked Exts.P1 to P74 and 14 material objects as Mos.1 to 14. Exts.D1,D2 and D2(a) contradictions and Exts.D3 remand report are marked as defence exhibits. 8. After the closure of the prosecution evidence, the accused was questioned under Section 313(1) (b) of Cr.P.C.with regard to the incriminating circumstances against him in the evidence for the prosecution. Their defence is one of total denial. Crl.A.Nos.620 & 1154 of 2015 :-10-: 9. The learned Sessions Judge, who conducted the trial, did not deem it fit and proper for recording an acquittal under Section 232 of Cr.P.C.The accused was therefore called upon to enter on his defence and adduced evidence which he might have in support thereof. However, no defence evidence was adduced. 10. We heard Sri.B.Renjith Marar, the learned counsel for the appellant(Crl.A.No.620 of 2015) and Sri.Lavaraj.M.G,the learned counsel for the appellant (Crl.A.No.1154 of 2015) and Sri.Alex.M.Thombra, learned Public Prosecutor, who defended the State. 11. The fact that Sabu died on 19.10.2011 in the evening at the Little Flower Hospital,Angamaly as a result of homicidal stab injuries sustained by him on 19.10.2011 at about 7.30 p.m is not in dispute. PWs.1 and 2 and PW33, who were the eye witnesses to the occurrence, deposed before the court below that the accused stabbed the deceased with MOs.1 and 2 choppers on 19.10.2011 at about 7.30 p.m at a place near Manakkappadi. Evidence tendered by Pws.1 and 2 and PW33 would show that Sabu was taken to the Little Flower Hospital, Angamly and was pronounced brought dead by the Doctor, who examined him. In Ext.P4 inquest report prepared by Crl.A.Nos.620 & 1154 of 2015 :-11-: PW39, Circle Inspector of Police noted the fatal injury on the head of the deceased. Column No.11 in Ext.P4 is pertaining to the apparent cause of death. PW39 noted that the victim died as a result of head injury inflicted with chopper. 12. PW30, who was working as Professor, Forensic Medicine, Medical college conducted autopsy on the body of the deceased and prepared Ext.P45 postmortem certificate. The antemortem injuries and other findings recorded in Ext.P45 are the following:- “1. Incised penetrating wound 14.3x1.5x5cm almost horizontal on the left side of head, transecting the left ear lobe, its front end being 7.5cm outer to and 0.5cm below the outer angle of left eye and 1.5 cm in front and 1 cm above the trague of left ear. Its upper edge showed a cut 1x0.5cm at a point 1.5cm in front of its back end with undermining of its lower edge. Underneath the skull was seen correspondingly cut with irregular fracture over an area 5.5x3cm at the back lower edge. The cerebellum showed a cut 6x1x1cm with a corresponding injury over the underlying brain (1403 gm) was pale and oedematous. The wound was directed downwards. 2. Lacerated wound 4.5x0.5x0.5cm oblique on the top of head, showing an abrasion 3.3x0.5cm at its left edge, its lower outer left end being 6cm above the inner end of left eyebrow. 3. Superficial incised wounds a)30x0.2cm b)31x0.1cm and 28.5x0.1cm,0.8cm and 1.6cm apart, almost horizontal and parallel one below the outer, across the back of left side of chest and left arm, the upper first injury being 2.5cm to the left of midline and 6cm Crl.A.Nos.620 & 1154 of 2015 :-12-: below shoulder and the 2[nd] one being just to the left of midline. The first injury showed a skin deep wound 2x0.5x0.6cm at its middle. 4. Superficial incised wound 10.5x0.1cm almost horizontal, on the left side of back of chest, 4.5cm to the left of midline and 4.5cm below shoulder. A skin deep wound 2x0.5x0.5cm was seen at a point 1.5cm inner to its outer end. 5. Incised wound 1.8x0.1cm on the right side of back of chest, horizontal 7cm to the right of midline and 4cm below shoulder and almost in the same line of injury No.4 6. Contusion 5x0.5cm on the back of left arm, 12cm below the shoulder and in front of first injury of injury No.3. - 7) Abrasion 3x0.1cm on the back of left arm,22cm above elbow. - 8) Superficial incised wound 1.8x0.3x0.2cm and 1x0.3x0.1cm,1cm apart on the back of root of right middle finger. - 9) Abrasion 5.5x0.5cm on the back of left little finger above the nail. - 10) Superficial lacerated wound 1.5x0.2cm on the back of right heel, 5cm above the sole. - 11) Contusion 5x0.5x0.3cm on the abdomen, vertically placed 4cm above pubic bone (seen on dissection only). ## **C.Other findings** Air passages contained mucoid froth. Lungs (right 309 gm left 382 gm) pale. Heard 258 gm, Branches of coronary arteries showed varying degrees of atherematous thickening upto 40%. Liver (934gm) was pale with micromodular cirrhesis. Spleen (113gm) contracted. Stomach (503 gm) contained soft rice, peas and other unidentifiable food particles having no unusual smell, mucosa normal. Urinary bladder empty. Other internal organs pale. Otherwise normal.” ## 13. When examined before the court below, PW30 testified that the apparent cause is that the victim sustained incised penetrating wound to his Crl.A.Nos.620 & 1154 of 2015 :-13-: head. PW30 reiterated that injury No.1 cited supra is sufficient to cause death in the ordinary course of nature. Yet another injury noticed on the head of the deceased could be caused by forcible impact with blunt edge of a weapon or object. PW30 confirmed that injury Nos.1,3,4,5,6,7,8 and 11 could be caused with blunt edge of MO1. PW30 further reiterated that injury No.2 could be caused with blunt edge of MO2 or similar weapon. 14. On 20.10.2011, PW31 who was working as Assistant Surgeon at the Government Hospital, Kalady examined PW33 and issued Ext.P46 certificate. PW31 was brought in with the alleged history of assault at 7.45 pm. on 19.10.2011. According to PW31, the patient had complained of pain of his left cheek and on examination, mild swelling and slight tenderness were found over the left cheek of the patient. 15. PW31 further testified that he had examined PW2 Raju with the alleged history of assault at 7.45.pm at Kanjoor, Manakkappady Junction on 19.10.2011. He issued Ext.P47 certificate stating that the patient complained of low back ache. However, he stated that no external injury was noted Crl.A.Nos.620 & 1154 of 2015 :-14-: ## on examination of the patient. 16. Exts.P46 and P47 are the certificates issued by PW31 to PW33 and PW2 respectively. These certificates were produced by the prosecution to show that in the very same occurrence, PW2 and PW33 sustained injuries and they are coming under the category of injured witnesses in a criminal case. 17. PW33 stated that on 19.10.2011, at about 6pm, he along with his friends i.e, deceased Sabu, PW1 Joy and PW2 Raju were sitting on the basement situated on the side of the road in front of the house of one Gowri Amma at Manakkappadi. On that day, there was a function in the house of PW5 Johnson and in connection with the same, all of them were invited for taking dinner at his house. While so, according to PW33, at about 7.45 p.m A1 and 2 came there on a motorcycle ridden by A1 with A2 as pillion rider. On seeing PW1 and 2, according to PW33, A1 abruptly stopped the motorcycle, alighted and came towards him and slapped on his face asking whether he would file case against him. A1 pushed down PW2. PW33 stated that thereafter, A1 directed A2 to take the chopper and A2 took the chopper from a plastic cover and handed over the same to A1. PW33 testified that A1 Crl.A.Nos.620 & 1154 of 2015 :-15-: slashed the chopper towards him twice and somehow he managed to evade the attack. Considering the seriousness of the situation, deceased Sabu directed them to escape from the place immediately. Sensing danger, PW33 and PW2 ran towards north. After some time, when PW33 looked back, he found A1 inflicting injuries on the head of Sabu with MO1 chopper. Immediately, according to PW33, he heard the sound of the motorcycle leaving the place after committing the offence. PW33 and PW2 came back the place where they found Sabu lying in a pool of blood. PW33 took out a small piece of cloth and tied around the head of Sabu. In the meanwhile, PW5 Johnson, who is the brother of Sabu came there. PW5's brother's son brought his car immediately and thereafter Sabu was taken to the Little Flower Hospital,Angamaly where the Doctor on examination stated that Sabu was brought dead. 18. PW2-Raju, who was present along with PW33, while the occurrence took place, had testified before the trial court in terms of the deposition made by PW33 in court. PW33 and PW2 identified A1 and A2 before court. They also identified MO1 chopper used by the A1 for inflicting injuries on Sabu. Further Crl.A.Nos.620 & 1154 of 2015 :-16-: PW33 and PW2 identified MO4 cap,MO6 lungie and MO7 shirt worn by A1 at the time of occurrence. They also identified MO5 lungie worn by A2 at the time of occurrence. According to him, on the next day, he went to the Government Hospital, Kalady as he was suffering from severe pain on his ear. In the hospital, he was examined by PW31 and issued Ext.P46 medical certificate. PW31 also examined PW2 on the very same day around 7.45 pm and issued Ext.P47 certificate. 19. PW1 testified that on 19.10.2011, in the evening, he was present along with PW33 and PW2 as stated by PW33 and PW2 respectively. He narrated the entire incident in detail. His evidence tallies with the evidence of PW33 and PW2. However, his evidence does not tally with certain aspects stated by PW33 and PW2. He admitted that PW33 and PW2 had escaped from the scene of occurrence and ran towards the next house. According to PW1, he did not move from the place since his right hand was put in plaster as a result of a road accident sustained to him. As deposed by PW33 and PW2, PW1 stated that A1 slashed the chopper towards the head of Sabu and Sabu Crl.A.Nos.620 & 1154 of 2015 :-17-: sustained injuries on the head and neck. In his deposition, PW1 made an addition stating that he saw A2 using a chopper and inflicting injuries on the head of Sabu and after that, A1 and A2 left the place by the motorcycle. PW1 identified MO1 as the chopper used by A1 and MO2 as the chopper used by A2 for inflicting injuries on the deceased Sabu. All other material objects were also identified. In connection with the occurrence, PW1 gave Ext.P1 164 statement before the learned Judicial First Class Magistrate, Kothamangalam. 20. PW3 stated that on 19.10.2011, he went to the Little Flower Hospital, Angamaly and saw the deadbody of his brother Sabu. He testified that he had taken MO8 mobile phone found in the place of occurrence and handed over the same to the Police by Ext.P3 mahazar. 21. PW4 was working as Secretary of the Local Committee [CPI(M)]on 19.10.2011. According to him, he came to know that Sabu sustained severe injuries in the alleged occurrence. On 19.10.2011 at about 8pm, according to PW4, A1 contacted him over his mobile phone and told him that when he was coming in his Crl.A.Nos.620 & 1154 of 2015 :-18-: bike, one of the children of Vettikkadan Joy blocked his bike and so, he has caused some trouble to one among them. In the next day, PW4 went to the Little Flower Hospital and found the deadbody of Sabu. He was present in the hospital when PW39 prepared an inquest report. He had put his signature in Ext.P4 report prepared by PW9. 22. PW5 stated that on 19.10.2011 at about 8 pm, he received reliable information from PW1 that A1 had attacked his brother Sabu and as a result of which, Sabu sustained injuries. Immediately, he went to the place of occurrence and found Sabu lying in the ground with injuries on his head and neck. He testified that PW2,PW33 and himself took Sabu to the Little Flower Hospital, Angamaly by the car of the son of his brother. PW5 produced MO12 chappal worn by the deceased before the Police by Ext.P6 mahazar. 23. PW8 stated that his brother Sabu died on 19.10.2011 in the evening and he found the deadbody of Sabu in the Little Flower Hospital, Angamaly. PW8 also handed over MO8 mobile phone which he found out at the place of occurrence to the Police by Ext.P3 mahazar. PW10 was present at the place of occurrence Crl.A.Nos.620 & 1154 of 2015 :-19-: when PW39 prepared the scene mahazar by Ext.P10. PW10 also identified Mos.13 and 14 chappals recovered from the place of occurrence. 24. In Ext.P49 First Information Statement, PW33, in categoric terms, narrated the incident. PW33 is an injured witness. His evidence is more reliable. In Ext.P49, PW33 had given statement in tune with the statement given by him before court. PWs.1 and 2 supported the version of PW33. PWs.1 and 33 stated that they had seen A1 inflicting injuries on the head of Sabu with MO1 chopper. We have perused the oral evidence of PWs.33 and 2. Going by the oral evidence of PWs.33 and 2, they had no case that A2 had inflicted a head injury on the deceased Sabu. PW2 had no case that he had seen the actual occurrence. His case is that A1 and A2 came to the place of occurrence by a motorcycle, A1 had taken MO1 chopper from A2 and slashed the same towards PW1. While so, according to PW2, both of them ran towards the nearby house. They came back after assuring that A1 and A2 left the place. It is a fact that there are glaring inconsistencies and contradiction in the statement given by PW1,PW2 and PW33 regarding the involvement of Crl.A.Nos.620 & 1154 of 2015 :-20-: A2. PW30 the Doctor, who conducted postmortem examination, stated that the cause of death of the deceased was due to the incised penetrating wound sustained to the head. The fact that A1 inflicted injuries on the head of the deceased is clear from the evidence adduced by PW33 and PW2. So far as accused No.2 is concerned, the evidence adduced by the prosecution is weak. It is not possible to hold that A2 inflicted injuries on the head of the deceased as alleged. Merely because PW38 recovered MO2 sword on the basis of confession statement alleged to have been given by A2, the same itself is not sufficient to hold that A2 inflicted injuries on the head of the deceased. PW30 also stated that MO1 is sufficient to inflict similar injuries sustained to the deceased. More so, PW2 and PW33 had not seen using MO2 chopper towards the deceased. The trial court has found that there is no criminal conspiracy between the accused. All other accused except A1 and A2 were acquitted by the court below. Going by the entire evidence, we are of the view that the role of A2 is not clearly proved by the prosecution beyond doubt. However, the prosecution has succeeded in adducing evidence against Crl.A.Nos.620 & 1154 of 2015 :-21-: A1 to prove that A1 inflicted head injury on the deceased and the deceased succumbed to the injury sustained to him. 25. Learned counsel for the appellant/first accused Sri.B.Ranjith Marar contends that A1, who caused the injuries on the body of the deceased, could not be held guilty of murder under Section 302 of IPC. According to the learned counsel, the nature of the injuries inflicted by the first accused is such that the accused had no intention to do away with the deceased totally. According to the learned counsel, absence of premeditation and intention to kill the deceased is writ large from the evidence adduced in this case. In other words, it is contended that alleged murder on account of sudden scuffle between the parties and in the very same transaction, the deceased sustained injuries, it is a clear case of culpable homicide not amounting to murder as defined under Section 304 of the IPC. In support of his contentions, the learned counsel for the first accused placed the following decisions for consideration:- 1. **Tularam v.State of Madhya Pradesh** [2018 Crl.L.J 2590] 2. **Gurwinder Singh and others** v. **State of Punjab and others** [2018 Crl.L.J 2974] and 3. **Nandlal v. State of Maharashtra** [2019 Crl.L.J 2420] Crl.A.Nos.620 & 1154 of 2015 :-22-: 26. PW30, the Doctor, who conducted autopsy on the body of the deceased, testified that the cause of death was injuries sustained to the deceased on the head. On going through the evidence of PWs.1 and 2 and PW33, it is clear that the first accused inflicted severe injuries on the head of the deceased with MO1 chopper and the nature of injuries suggest that none of the acts were impulsive acts and rather the manner in which the acts were done clearly establishes that the acts are being premeditated acts. The manner in which MO1 was used to inflict injuries on the head of the deceased rules out the possibility that the first accused used MO1 only to overpower the deceased. It is clear from the evidence brought on record that the first accused had a clear motive to assault the deceased on account of filing a complaint before the Police against A1. PWs.1,2 and 33 adduced evidence to show that the first accused was present at the scene of occurrence. PW30 stated that the injuries found on the victim are sufficient to cause death in the ordinary course of nature. Although such grave injuries were sustained to the deceased, the first accused did not take the deceased to the hospital and left the place immediately after the occurrence. The first accused brought MO1 with a design to cause the death of the Crl.A.Nos.620 & 1154 of 2015 :-23-: deceased. On going through the injuries in Ext.P45 Postmortem Certificate, the injuries could not have been caused by accident or negligence. 27. According to the rule laid down in **Virsa Singh** v. **State of Punjab** [AIR 1958 SC 465], even if the intention of the accused was limited to the infliction of bodily injury sufficient to cause death in the ordinary course of nature and did not extend to the intention of causing death, the offence would be of murder. In this case, the prosecution has proved that serious bodily injury was present on the body of the deceased. PWs.1,2 and 33 adduced evidence to show that those injuries were inflicted by A1 on the body of the deceased. PW30 adduced evidence to show that the injuries sustained to the deceased are sufficient to cause death in the ordinary course of nature. Further, it is proved that the first accused was on inimical terms with the deceased and he had an intention to inflict bodily injury on the deceased to wreck vengeance on the deceased. Thus, it is clear that the injuries were inflicted deliberately on the deceased. It was not accidental or unintentional. Under no circumstances, it could be termed that some other kind of injury was inflicted by the accused. Noone has a licence to inflict injuries that are sufficient to cause Crl.A.Nos.620 & 1154 of 2015 :-24-: death in the ordinary course of nature and claim that he is not guilty of murder. If he inflicts injuries of that kind,he must face the consequences unless it is shown that the injury was accidental or otherwise unintentional. In the case at hand, MO1 was applied on the head of the deceased resulting severe head injury. This would lead to the inference that the first accused did the overt act with the intention of causing death to the victim. This categorical opinion of PW30 was not assailed in crossexamination. Since the injuries were caused in such a brutal manner, there is no scope for discussing the case from the point of having committed the offence due to the lack of knowledge on the part of the first accused or its consequences. The victim also died within a short while due to the injuries sustained. Going by the dictum laid down in Virsa Singh's case, we are of the view that all the acts of the first accused would squarely fall within the first category of Section 300 IPC as these acts were done with the intention of causing death. The citations placed by the learned counsel for the first accused do not lay down a different proposition of law. For all the foregoing discussions, we are of the view that Crl.A.Nos.620 & 1154 of 2015 :-25-: there are no valid grounds to alter the conviction of the first accused from one under Section 302 to that under Section 304 Part II of IPC. In our view, the judgment and order of conviction passed by the trial court as against the first accused was based upon proper appreciation of evidence and the materials placed on record. In the result, the Crl.A.No.620/2015 filed by the first accused is dismissed. Crl.A.No.1154/2015 filed by the second accused is allowed. We uphold the judgment and conviction and order of sentence passed by the court below as against the first accused. The conviction and sentence imposed by the court below as against the second accused stand set aside and he is set at liberty. Sd/- ## **A.M.SHAFFIQUE, JUDGE** sd/- **N.ANIL KUMAR, JUDGE** MBS/