JIMESH v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MR. JUSTICE JOHNSON JOHN TUESDAY, THE 30[TH] DAY OF JANUARY 2024 / 10TH MAGHA, 1945 CRL.A NO. 505 OF 2017 AGAINST THE JUDGMENT DATED 31.10.2015 IN SC 445/2014 OF ADDITIONAL DISTRICT AND SESSIONS COURT, PALA CP 38/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS, PALA APPELLANT/1ST ACCUSED:** **JIMESH, S/O.JIMMY, AGED 30 YEARS, KAMPIYIL HOUSE, VAYALA KARA, VAZHAKKALA HOUSING COLONY, ELACKADU VILLAGE, KOTTAYAM DISTRICT** **BY ADVS. SRI.GRASHIOUS KURIAKOSE (SR.) SRI.GEORGE MATHEWS** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA CIRCLE INSPECTOR OF POLICE, RAMAPURAM POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **BY PUBLIC PROSECUTOR SMT.BINDU O.V.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.01.2024, THE COURT ON 30.01.2024 DELIVERED THE FOLLOWING:** Crl.A. No.505 of 2017 -: 2 :- **P.B.SURESH KUMAR & JOHNSON JOHN, JJ. ----------------------------------------------Crl. Appeal No.505 of 2017** ## **-----------------------------------------------** ## **Dated this the 30[th] day of January, 2024** ## **JUDGMENT** ## **P.B.Suresh Kumar, J.** The first accused in S.C.No.445 of 2014 on the files of the Additional Sessions Court, Pala, who stands convicted and sentenced for committing murder of one Jisha, who was in a live-in relationship with him, is the appellant in this case. 2. The appellant and the deceased were residing in adjacent houses in a colony. They fell in love with each other and started residing together without a formal marriage and have two children. In course of time, the relationship between them became sour and the deceased along with her children started living separately with her mother in her family house. The maternal aunt of the deceased resides right in front of the Crl.A. No.505 of 2017 -: 3 :- family house of the deceased. There is a way in between the said houses. At about 10.30 p.m. on 06.03.2014, hearing the hue and cry of the mother of the deceased, when the neighbours rushed to her house, they saw the deceased lying on a cot in a pool of blood with injuries on her head. Though the victim was taken to the hospital, she passed away at 1.30 a.m. on the following day. On receipt of information about the occurrence, a case was registered by the police, and after investigation, the final report was filed in the case against the appellant alleging commission of the offence punishable under Section 302 IPC. The accusation in the case is that the appellant, who suspected that the deceased was having an illicit relationship with another, decided to do away with her and went to the family house of the deceased with the aforesaid intention at about 10.30 p.m on 06.03.2014 and gave multiple blows on the head of the deceased using a square iron pipe. The second accused in the case is the mother of the appellant and the allegation against her is that it was at her instance that the appellant committed murder of Jisha. 3. On the accused pleading not guilty of the Crl.A. No.505 of 2017 ## -: 4 :- charges framed against them on committal of the case for trial to the Court of Session, the prosecution examined 21 witnesses as PW1 to PW21 and proved through them 37 documents as Exts.P1 to P37. The prosecution also caused the witnesses examined on its side to identify the material objects, MO1 to MO9 series, of which MO1 is the square iron pipe allegedly used by the appellant to attack the deceased. The accused were, thereupon, questioned under Section 313 of the Code of Criminal Procedure (the Code) as regards the incriminating circumstances brought out by the prosecution in evidence against them, and the accused denied the same. The stand taken by the appellant at that stage was that no occurrence as alleged by the prosecution took place on the said day at the alleged time. The appellant, however, stated that there was a physical altercation between him and PW4, a neighbour of the deceased at the house of the deceased on the said day when the appellant found the deceased with PW4, and that the appellant suffered injuries in the said altercation and Jisha died in the course of the said quarrel. Since the trial court did not find the case to be one fit for acquittal under Section Crl.A. No.505 of 2017 -: 5 :- 232 of the Code, the accused were called upon to enter on their defence. The accused did not adduce any evidence. Thereupon, on an appraisal of the materials on record, the Court of Session found the appellant guilty of the offence punishable under Section 302 of the Indian Penal Code (IPC), convicted him and sentenced him to undergo imprisonment for life and pay a fine of Rs.2,00,000/-. The second accused was acquitted. The appellant is aggrieved by his conviction and sentence in the said case, and hence this appeal. 4. Heard the learned counsel for the appellant as also the learned Public Prosecutor. 5. The learned counsel for the appellant contended that the materials on record would probabilise the case set out by the appellant that Jisha died in the course of the physical altercation that took place between the appellant and PW4. The learned counsel placed reliance on the injuries noted on the body of the appellant in Ext.P22 inspection memo prepared at the time of the arrest of the appellant to substantiate the said contention. According to the learned counsel, inasmuch as no explanation whatsoever was offered Crl.A. No.505 of 2017 ## -: 6 :- by the prosecution as to how the said injuries were sustained by the appellant, it has to be presumed that the prosecution has not presented the true version of the occurrence. It was argued by the learned counsel that the appellant, in the circumstances, is entitled to the benefit of doubt. It was also argued by the learned counsel that even otherwise, the evidence let in by the prosecution is not sufficient to hold that it was the appellant who caused the death of Jisha. It was also argued by the learned counsel, alternatively, that even if it is found that the prosecution has established beyond reasonable doubt that it is the appellant who caused the death of Jisha, the proved facts would bring the case under Exception 4 to Section 300 IPC and that therefore, the appellant cannot be convicted for murder under Section 302 IPC and can be convicted only for culpable homicide not amounting to murder. We are not referring to the factual submissions made by the learned counsel in this regard, as we propose to deal with the same elaborately while dealing with the contention raised by the learned counsel for the appellant that the case is one that would fall under Exception 4 to Section 300 IPC. Crl.A. No.505 of 2017 -: 7 :- 6. The points that arise for consideration are (1) whether the prosecution has established beyond reasonable doubt that it is the appellant who caused the death of Jisha in the manner alleged by the prosecution and (2) if so, whether the proved facts would bring the case under Exception 4 to Section 300 IPC. 7. Before dealing with the arguments advanced by the learned counsel for the parties on either side, it is necessary to consider the question whether the case on hand is one of homicide. PW7 is the witness examined by the prosecution to prove the said fact. PW7 is the Police Surgeon who conducted the autopsy on the body of the deceased. Ext.P6 is the autopsy certificate issued by PW7. PW7 deposed that the victim died due to head injury and that the injuries suffered by the victim are injuries suffered due to repeated beating. PW7 was not cross-examined by the learned counsel for the appellant. The evidence tendered by PW7, therefore, proves beyond reasonable doubt that the case on hand is one of homicide. 8. As noted, the appellant does not dispute the Crl.A. No.505 of 2017 -: 8 :- fact that the incident which led to the death of Jisha occurred on 06.03.2014 at her family house. The contention of the appellant is only that the death is not one that took place as alleged by the prosecution. The next question, therefore, is whether the death of Jisha was one caused by the appellant as alleged by the prosecution. 9. PW1 is the husband of the maternal aunt of the deceased who resides right in front of the house of the deceased. It is on the basis of the information furnished by PW1 that the case was registered by the police. PW1 had not seen the occurrence. The deposition of PW1 was only that when he rushed to the house of the deceased on hearing a noise, he saw the appellant coming out of the house with an iron rod and the deceased lying on a cot inside the house with injuries on her head. It was also deposed by PW1 that the accused left the house of the deceased after leaving the iron rod in the courtyard of her house itself. PW1 identified MO1 as the iron rod carried by the accused at the relevant time. During cross-examination, PW1 deposed that when he reached the house of the deceased, Robin, Roymon, Ranjith and the mother Crl.A. No.505 of 2017 -: 9 :- of the deceased were there and all of them other than the mother of the deceased rushed to the house of the deceased from the way in front of the house on hearing the noise. PW1 also deposed in cross-examination that the appellant used to pick up quarrels with the deceased frequently alleging that the deceased had illicit relationships with others. 10. PW2 is the mother of the deceased. PW2 also deposed that the appellant used to pick up quarrels with the deceased alleging that she has illicit relationship with others and that one such quarrel took place before the occurrence as also sometime during December, 2013, on which occasion, as the appellant attempted to strangulate the deceased, she had to be treated in the hospital for the injuries caused by the appellant. As regards the occurrence, the evidence of PW2 is that at about 10.30 p.m., the accused kicked open the door of the house and asked the deceased whether she is prepared to live with him; that the deceased then asked PW2 for her opinion as regards what she should do and that PW2 then advised the deceased to go and live with the appellant. It was also deposed by PW2 that the deceased then replied that if she Crl.A. No.505 of 2017 ## -: 10 :- goes with the appellant, he will kill her. PW2 also deposed that the appellant then gave a blow on the head of the deceased using the iron rod carried by him and that the deceased fell on the cot on account of the impact of the blow. It was also deposed by PW2 that when the deceased fell, the appellant gave blows repeatedly on her head using the same object. PW2 deposed that at the time of occurrence, other than her, only the younger child of the deceased was at home. PW2 also identified in court MO1 as the iron rod used by the appellant for inflicting injuries on the deceased. During crossexamination, PW2 stated that PW4 is a person residing in the neighbourhood of her house and asserted that he had never come to her house to talk with the deceased. At the same time, PW2 admitted in cross-examination that the deceased used to go to the house of PW4 as the wife of PW4 was a friend of the deceased. PW2 clarified in her cross-examination that after the occurrence, Ranjith and Roymon came first, Robin followed them, and it was thereafter that PW1 reached the scene. 11. The witness who was examined as PW3 is Crl.A. No.505 of 2017 ## -: 11 :- none other than the younger son of the deceased. Even though he was only about 4 years at the time of occurrence, the Court of Session found him to be a competent witness as he gave rational answers to the questions put to him. PW3 deposed that the appellant beat his mother using an iron rod. In crossexamination, it was deposed by PW3 that the iron rod was one kept in the house. 12. PW4 is Robin. PW4 deposed that on the date of occurrence, after about 10 p.m., while he was chatting on the road with his brother Roy and another person named Renjith, they heard the screaming of PW2, and when they rushed to her house accordingly, they saw the appellant coming out of the house with an iron rod in his hand and the deceased lying in a pool of blood. PW4 added that the appellant left the house after leaving the iron rod in the courtyard of the house of PW2 itself. PW4 also identified MO1 as the iron rod carried by the appellant while leaving the house of PW2. In crossexamination, PW4 clarified that he did not see the appellant hitting the deceased on her head. PW4 denied the suggestion made to him by the learned counsel for the appellant during Crl.A. No.505 of 2017 ## -: 12 :- cross-examination that there was a quarrel between the appellant and PW4 and that the deceased suffered injuries in the said quarrel. PW4 also denied the suggestion made to him by the learned counsel for the appellant during crossexamination that it was the appellant who snatched MO1 iron rod carried by PW4. PW5 is Roy Thomas, the brother of PW4. The evidence of PW5 was on the similar lines of the evidence given by PW4. In addition, PW5 deposed that it was he who took the deceased to the hospital. During cross-examination, PW5 clarified that he also did not see the appellant beating the deceased. 13. PW6 is the wife of the brother of the deceased, who was residing with PW2. PW6 deposed that on 06.03.2014 when the appellant came to the house at about 10.30 p.m., PW6 was very much present in the house and that the appellant had in fact kicked open the door of the house and while doing so, he was using abusive words. PW6 also deposed that the appellant then ascertained from the deceased as to whether she is prepared to live with him and that the deceased then asked PW2 as to what she should do and PW2 then Crl.A. No.505 of 2017 -: 13 :- advised the deceased to go and live with the appellant. It was also deposed by PW6 that the deceased then said that if she goes with the appellant, he will kill her. It was the deposition of PW6 that as her children made noises then, she went to the house of PW1 and within a minute, she heard PW2 screaming that her child is being killed. PW6 deposed that she rushed to the house of the deceased on hearing the screaming and when she reached there, she saw the appellant coming out of the house with an iron rod in his hand and leaving the house after dropping the iron rod in the courtyard of the house. PW6 also deposed that she then saw blood oozing out from the head of the deceased. PW6 also deposed that the appellant was suspicious of the deceased and that the appellant caught hold of her neck on account of the said reason sometime during the month of December, 2013 as well and that the deceased had to be admitted to the hospital for treatment of the injury caused by the appellant. In cross-examination, PW6 also clarified that she did not see the appellant beating the deceased. PW6, however, added that she saw the appellant holding the neck of the deceased during December, 2013. Crl.A. No.505 of 2017 -: 14 :- 14. PW9 is the doctor who treated the deceased during December, 2013 for the injury suffered by her when her husband caught hold of her neck. PW9 deposed that Jisha was brought to him by her brother alleging that her husband caught hold of her neck and that she was complaining then of throat pain and difficulty in swallowing. Ext.P8 is the Accident Register-cum-Wound certificate issued by PW9 in connection with the examination of the deceased in the hospital on 22.12.2013. PW19 is the Sub Inspector of Police who recorded the first information statement from PW1 and registered the case. During cross-examination, PW19 deposed that the appellant was taken into custody by the police from the surroundings of the Medical College Hospital. PW20 is the officer who commenced the investigation in the case and arrested the accused at 4 p.m. on 07.03.2014. PW20 deposed that MO1 square iron pipe was seized from the scene of occurrence as per Ext.P14 scene mahazar. 15. As noted, among the witnesses examined on the side of the prosecution namely PWs 1 to 6, all except PW2, the mother of the deceased and PW3, the younger son of the Crl.A. No.505 of 2017 ## -: 15 :- deceased, have categorically stated in their evidence that they did not see the appellant hitting the deceased with MO1 square iron pipe. The evidence tendered by the said witnesses were however, consistent, inasmuch as all of them stated that by the time they reached the house of the deceased hearing the cry of PW2, the appellant was leaving the premises with MO1 iron rod. The said witnesses identified the said object. All of them also stated in their evidence that they then saw the deceased lying on a cot in a pool of blood with injuries on her head. Coming to the evidence tendered by PW2, she was categoric in her evidence that she saw the accused inflicting blows on the head of the deceased using MO1 repeatedly. The evidence tendered by PW2 is also corroborated by the evidence tendered by PW3, the younger son of the deceased as regards the fact that it was the accused who hit the deceased using an iron rod. It is also seen that only PW2 gave a narration of the sequence of events right from the time at which the appellant came to her house at about 10.30 p.m. till he left the house, after the occurrence. When the appellant came to the house, PW6 was very much present in the family Crl.A. No.505 of 2017 ## -: 16 :- house of the deceased and PW6 also gave a narration of the sequence of events till she left the house on account of the noise made by her children. The evidence tendered by PW2 and PW6 in this regard are consistent. The evidence tendered by PW2 and PW6 as to the sequence in which the events took place after the occurrence, is also consistent. There is absolutely no reason, therefore, to disbelieve the evidence tendered by the witnesses aforesaid. 16. As noted, the specific defence of the appellant is that no occurrence as alleged by the prosecution took place on that day at the alleged time and that there was a physical altercation between the appellant and PW4 at the house of Jisha when the appellant found her with PW4, and Jisha died in the course of the said altercation. It was also the defence of the appellant that he also suffered an injury on his head in the course of the said altercation. In order to substantiate the said defence, the appellant relies on Ext.P22 Inspection Memo prepared at the time of his arrest. In Ext.P22 inspection memo, the injuries noted on the body of the deceased at the time of his arrest are recorded as (1) തലയ�ൽ ഉച�ഭ�ഗത മറ�വ�, (2) ന�റ�ഭ�ഗത Crl.A. No.505 of 2017 ## -: 17 :- മറ�വ�, (3) ന�ഞ�ൽ ഉരവൽ, (4) പറത� ഇടതവശത ഉരവൽ, (5) വലതകണ�ന വ�കവ", ചവന പ�ട", കരവ�ള�പ". The said injuries were noted by the doctor who issued Ext.P27 certificate also at the request of the investigating officer for the purpose of producing the appellant before the Magistrate. It is in the light of the injuries aforesaid, that it was argued by the learned counsel for the appellant that the prosecution has not offered any explanation for the same and as such, it has to be presumed that the occurrence was not as alleged by the prosecution. The explanation offered by the investigating officer as regards the injuries found on the body of the appellant was that some of the witnesses who were questioned informed him that the appellant suffered the said injuries on account of a fall. The said explanation, according to us, is not convincing. As noted, the injuries found on the body of the appellant are not serious injuries, and merely for the reason that the explanation offered by the investigating officer for the said injuries is not convincing, it cannot be said that the prosecution case is false, when there is convincing and satisfactory evidence to establish the core of the prosecution case. In the light of the discussion aforesaid, Crl.A. No.505 of 2017 -: 18 :- we concur with the finding rendered by the Court of Session that the prosecution has established beyond reasonable doubt, that it was the appellant who caused the death of the victim by inflicting blows on her head repeatedly with MO1 square iron pipe in the family house of the deceased, as alleged by the prosecution. 17. The question remaining to be considered is whether the proved facts would bring the case under Exception 4 to Section 300 IPC. It is now trite that the four ingredients to be satisfied to avail the benefit of Exception 4 to Section 300 IPC are - (i) there must be no premeditation; (ii) there must have been a sudden fight upon a sudden quarrel; (iii) the act must have been committed in the heat of passion and (iv) the offender must not have taken undue advantage or acted in a cruel manner. It is not sufficient if only some of the ingredients are established to avail the benefit of the Exception. On the other hand, all the four ingredients will have to be established from the materials on record. It is trite that the question as to who offered the provocation or started the fight, is not relevant. Similarly, the number of wounds caused during the Crl.A. No.505 of 2017 -: 19 :- occurrence is also not a decisive factor, rather what is decisive is that the occurrence must have been sudden and unpremeditated, and the offender must have acted in a fit of anger. Where on a sudden quarrel a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exemption, provided he has not acted cruelly [ **Surinder Kumar v. Union Territory, Chandigarh,** (1989) 2 SCC 217]. 18. Reverting to the facts of the case, the evidence reveals that the appellant came to the house of the deceased in an angered mood to ascertain whether the deceased is willing to live with him, and the accused inflicted blows on the head of the deceased when she refused to go with the appellant, despite the advice given by PW2. In other words, the occurrence may not have taken place, had the deceased gone with the appellant to live with him. The aforesaid facts would, therefore, indicate that there was no premeditation on the part of the appellant to cause the death of the victim. It is all the more so since it has come out from the evidence of PW3 that MO1 iron pipe was not one brought Crl.A. No.505 of 2017 ## -: 20 :- by the appellant to the house of the deceased, but was one secured by him from the house of the deceased itself. We take the view that there was no pre-meditation for the accused also for the reason that it has come out in the evidence that a few hours prior to the occurrence, the appellant went to the house of PW1 and took his elder son who was watching television there, to the house of the accused. The said conduct of the appellant is not one expected from a person who would want to do away with the mother of the child after a few hours. The fact that the occurrence took place in a sudden fight in the heat of passion upon a sudden quarrel, is also established from the evidence of PWs 2 and 6. The unexplained injuries found on the body of the appellant at the time of his arrest after a few hours of the occurrence, would also reinforce the said fact. It is all the more so since, it has come out that the appellant inflicted blows on the head of the deceased, provoked by the stand taken by her that she will not go with the appellant. It was argued by the learned Public Prosecutor that the conduct of the appellant in giving repeated blows on the head of the deceased, ought to be treated as a cruel act which would Crl.A. No.505 of 2017 ## -: 21 :- certainly take out the case from the purview of Exception 4 to Section 300. It is trite that for an act to be cruel, the same has to be barbaric, torturous and brutal [See **Rambir v. State (NCT of Delhi)** , (2019) 6 SCC 122]. As already indicated, the number of wounds caused during the occurrence is not a decisive factor. Inasmuch as it is found that there was no premeditation for the appellant to cause the death of the deceased; that the occurrence took place in a sudden fight in the heat of passion upon a sudden quarrel, and since it is found that the appellant has not taken any undue advantage of the situation or acted in a cruel manner, we are of the view that the proved conduct of the appellant would bring the case under Exception 4 to Section 300 IPC. If that be so, the appellant can be convicted only for the offence of culpable homicide not amounting to murder under Section 304 IPC, and not for murder. 19. It is unnecessary to consider the question whether the case on hand would fall under Part-I or Part-II of Section 304 IPC as the appellant has already undergone imprisonment for more than nine years, for, according to us, Crl.A. No.505 of 2017 ## -: 22 :- the said period of imprisonment would be sufficient and adequate sentence, even if the case would fall under Part-I of Section 304 IPC. 20. In the result, the appeal is allowed in part, the conviction of the appellant is altered to Section 304 IPC and the period of imprisonment already undergone by the accused is treated sufficient for the offence committed. Registry is directed to communicate the above order forthwith to the concerned prison, where the appellant is undergoing incarceration. Sd/- **P.B.SURESH KUMAR, JUDGE.** Sd/- **JOHNSON JOHN, JUDGE.** ds 17.01.2024