Paulson v. State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR FRIDAY, THE 18TH DAY OF JULY 2014/27TH ASHADHA, 1936 CRL.A.No. 2203 of 2009 ( ) --------------------------S.C.NO.13/2009 ON THE FILE OF THE SESSIONS COURT, THRISSUR. APPELLANT : --------------- PAULSON, S/O.OUSEPH, CONVICT NO.7448, CENTRAL PRISON, KANNUR. BY ADVS.SRI.RENJITH B.MARAR SRI.C.V.MANUVILSAN RESPONDENT : ---------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.ROY THOMAS. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20.06.2014, THE COURT ON 18.7.2014 DELIVERED THE FOLLOWING: ## **C.R.** ## **THOTTATHIL B.RADHAKRISHNAN** ## **&** ## **P.B.SURESH KUMAR, JJ.** ## **-----------------------------------------------** ## **Crl. Appeal No.2203 of 2009** ## **-----------------------------------------------** ## **Dated 18[th] July, 2014.** ## **J U D G M E N T** ## **P.B.Suresh Kumar, J.** The sole accused in S.C.No.13 of 2009 on the file of the Sessions Court, Thrissur, is the appellant in this appeal. He has been convicted for the offence punishable under Section 302 of the Indian Penal Code, hereinafter, referred to as 'the IPC', for short, and sentenced to undergo imprisonment for life. He has also been sentenced to pay a fine of Rs.10,000/-. 2. The accused is a butcher by profession. He was residing in his family house with his parents and his brother Davis. The case of the prosecution is that on 18.7.2008, at about 9.20 p.m., there was a wordy altercation between the accused and his brother Davis, in the course of which, the accused inflicted a few stab injuries on his brother with MO1 knife, which is being used by 2 Crl.Appeal No.2203/2009 the accused as a tool of his avocation. Although Davis was taken to Elite Hospital, Koorkancherry, he succumbed to the injuries on the way to the hospital. 3. On the same day, PW1, the father of both the accused and the deceased lodged Ext.P1 F.I. Statement. A case was registered on the basis of the said statement by Nedumpuzha police. PW15 investigated the case and submitted the final report against the accused, alleging commission of the offence punishable under Section 302 of the IPC. 4. On appearance, the accused pleaded not guilty. Consequently, the prosecution was called upon to adduce evidence in support of its case. The prosecution, thereupon, examined 15 witnesses as PW1 to PW15 and marked 13 documents as Exts.P1 to P13. 7 material objects were also caused to be identified by the witnesses. 5. After the evidence of the prosecution, the accused was questioned under Section 313 of the Code of Criminal Procedure, concerning the incriminating circumstances appearing against him in the evidence of the prosecution. He denied those circumstances and maintained that the charge against him is 3 Crl.Appeal No.2203/2009 false. He has also filed a statement, explaining, inter alia, that he had no intention to commit the murder of his brother and that on the relevant day, he was present at the house from 6 p.m. onwards. According to him, at about 9 p.m., there was a quarrel between him and his wife and the deceased, who was having his supper then, intervened in that quarrel and started abusing him using filthy language. It was narrated by him in the statement that the intervention of the deceased in the dispute between him and his wife was in such a manner to provoke him seriously, and consequently, there was a quarrel among them also, in the course of which, he lost all his control. 6. Since this was not a case of no evidence for the prosecution, the accused was called upon to enter on his defence. The accused chose not to adduce any evidence. 7. The Court of Session, on a meticulous evaluation of the evidence on record, found that the death of Davis was a homicide and that the injuries found on his body were inflicted by the accused and that he is guilty of the offence punishable under Section 302 of the IPC. 8. We have heard the learned counsel, Sri.Ranjith B.Marar, 4 Crl.Appeal No.2203/2009 for the appellant and the learned Public Prosecutor for the State. 9. The point that arises for consideration is whether the accused is guilty of the offence punishable under Section 302 of the IPC. 10. The ante mortem injuries noted on the body of the deceased in Ext.P6 post mortem certificate read thus : “1. Incised penetrating wound 4 x 1.5 cm, almost vertical, on right side of front of chest, upper sharp outer end was 8 cm outer to midline and 18 cm below collarbone (6 cm below the level of nipple) lower inner end was rounded. The wound entered the right chest cavity by cutting the 5[th] intercostal muscles, 6[th] rib, 6[th] intercostal muscles and upper part of 7[th] rib, the wound had cut the right dome of diaphragm and upper surface of right lobe of liver, 4 cm long and 1 cm deep, the oesophagus was seen transfixed and intercostals branches of aorta was seen cut on either side. The wound terminated in the left chest cavity on the back of chest wall by cutting the parietal pleura (1.5 cm long) at the level of 9[th] intercostal space and 10[th] rib. There was 250 ml of fluid blood in right chest cavity, 300 ml in left chest cavity and 100 ml in abdominal cavity. There was a total of 650 gms of blood clots. The wound had a total minimum depth of 18 cm and was directed to left and slightly downwards. 2. Incised wound 2.5 x 1 x 1 cm, almost vertical on back of trunk, 5 Crl.Appeal No.2203/2009 towards the outer aspect, upper outer sharp end 15 cm outer to midline and 27 cm below shoulder, lower end was rounded. 3. Incised wound 2 x 0.3 x 3 cm vertical on back of chest at midline, upper end 23 cm below root of neck, directed to the left, with a transverse incised wound 3.5 x 0.5 x 0.3 cm. on the left side of back of trunk, its inner end touching the middle of the former wound 4. Incised wound 5.5 x 1 x 1 cm, transverse and slightly oblique on back of right arm, 13 cm above elbow, and its outer end 1 cm below the inner end. 5. Incised perforating wound 4 x 1 x 8.5 cm vertical on inner aspect of right leg, upper end 16 cm below knee with a corresponding wound measuring 2.5 x 0.8 cm on outer aspect of right leg.” The opinion as to the cause of death recorded in Ext.P6 was that the death was due to injury No.1, the incised penetrating wound found on the chest of the body of the deceased. The doctor, who conducted the post mortem examination, was examined as PW11. He has reiterated and confirmed the contents of, and the findings in Ext.P6 post mortem certificate. There was virtually no cross examination of this witness. On the basis of Ext. P6 post mortem 6 Crl.Appeal No.2203/2009 certificate and the evidence tendered by PW11 doctor, the Court of Session came to the conclusion that the death of Davis was a homicide. We do not find any reason to interfere with the said finding of the Court of Session. 11. Coming to the issue relating to the occurrence, PW1 narrated the occurrence in court. He has stated that on the relevant day, while he was sitting with his wife in the front room of the house, he heard the cry of the deceased from the inside room, where he was having his supper. According to him, when he entered the inner room hearing the cry, he saw the accused stabbing the deceased with MO1 blade knife. He has stated that although the deceased had agreed to pay to the accused a sum of Rs.2,00,000/-, as part of a family arrangement, for releasing the rights of the accused over the family property, the deceased could not pay the said amount on account of his inability to raise a loan for the said purpose. He has also stated that there used to be frequent quarrels at the house between the deceased and the accused on account of this issue. In cross examination, PW1 stated that the deceased used to drink, and smoke 'Ganja'. He has also stated that there was a quarrel between the accused and 7 Crl.Appeal No.2203/2009 his wife, prior to the occurrence. He has further stated that the deceased intervened in the quarrel between the accused and his wife and later accused and deceased quarrelled among themselves for that reason. He has explained that there was no quarrel on that day between the accused and the deceased concerning the amount payable by the deceased to the accused. PW2, the mother of both the accused and the deceased, has virtually confirmed the version of PW1. PW3, the wife of the deceased deposed that the accused quarrelled with the deceased in connection with the dispute relating to the property and stabbed him in her presence. In cross examination, she has stated that she is not sure as to whether the accused had picked up quarrel with his wife, on that day. She has stated in her cross examination that MO1 knife was kept by the accused in his room and the same was brought by him from his room to stab the deceased. PW4, the wife of the accused and PW5, the son of the accused, did not say that they saw the occurrence. PW6, a neighbour of the accused has given evidence that he went to the house of the accused, hearing the hue and cry and at his house, he found the deceased lying down with stab injuries. He has 8 Crl.Appeal No.2203/2009 stated that he took Davis to the hospital along with the mother of the accused in an autorikshaw and Davis died on the way. The evidence of Pws.1 to 6 proved beyond doubt that on the relevant day, there was a quarrel between the accused and the deceased and in the course of the quarrel, the accused took MO1 knife from his room and stabbed the deceased. 12. It was contended by the learned counsel for the appellant that the proved facts in the case would only show that the injuries have been caused by the accused on the deceased without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner and therefore, the finding of the Court of Session that the accused is guilty of the offence punishable under Section 302 of the IPC, is unsustainable in law. According to him, in view of the provision contained in Exception 4 to section 300 of the IPC, the accused can be convicted only for culpable homicide not amounting to murder, under Section 304 of the IPC. He has also submitted, relying on the Explanation to Exception 4, that it is immaterial in such cases as to which party offered the provocation or 9 Crl.Appeal No.2203/2009 committed the first assault. He has relied on the decision of the Apex Court in **Sridhar Bhuyan v. State of Orissa** [(2004) 11 SCC 395] in support of his contention. 13. From a conspectus of the case law, it is seen that the benefit of Exception 4 to Section 300 of the IPC can be claimed only when it is shown that there was no previous deliberation or determination to commit the act which caused the death of the accused; that the fight between the offender and the victim was sudden; that the act was caused in the heat of passion and that the offender had not taken unfair advantage or acted in a cruel or unusual manner. A fight is a combat between two or more persons with or without weapons. A sudden fight implies that both the offender and the victim are equally or more or less responsible for the same and it is irrelevant as to which party offered the provocation or committed the first assault. An act caused in the heat of passion is an act caused while acting in fury and an act which a man of sober urges would not normally resort to. The time gap between the fight and the attributed act is relevant. If there intervenes sufficient time for the passion to 10 Crl.Appeal No.2203/2009 subside, before the attributed act, the benefit of the Exception may not be available. The question whether the offender had taken unfair advantage or acted in a cruel or unusual manner, is a question to be determined, taking into account the manner in which the act was caused and not based on the gravity of the injuries caused, as the acts causing injuries resulting in the death of a person would normally be cruel. (See the decisions in **Sridhar Bhuyan v. State of Orissa** [(2004) 11 SCC 395], **Parkash Chand v. State of H.P.** [(2004)11 SCC 381], **Sachchey Lal Tiwari v. State of U.P.** [(2004) 11 SCC 410], **Sandhya Jadhav (Smt) v. State of Maharashtra** [(2006) 4 SCC 653], **Lachman Singh v. State of Haryana** [(2006) 10 SCC 524], **Sangharaj Bhogappa Kamble v. State of Maharashtra** [(2010) 13 SCC 651] and **Abdul Nawaz v. State of West Bengal** [(2012) 6 SCC 581]. 14. Coming to the facts of the case, PW1, has stated that the deceased used to consume liquor and smoke intoxicating drugs; that the deceased come home every day after consuming liquor and that there used to be frequent quarrels at home 11 Crl.Appeal No.2203/2009 between the accused and the deceased. PW1 has also stated that on the relevant day, the accused came home at about 7 p.m. PW2 had given evidence that the accused also came home drunk on that day. According to PW1, the occurrence took place after 9 p.m, while he was sitting at the veranda of the house with PW2 and the son of the accused. He has stated in his evidence that prior to the occurrence, there was a quarrel between the accused and his wife; that the deceased intervened in the said quarrel and that the occurrence took place thereafter. The prosecution has no case that the accused had come home on that day prepared or armed for attacking the victim. Even though, accused came home on the relevant day at 7 p.m., there was no quarrel between him and the deceased till 9 p.m. The evidence also indicates that the previous altercations were verbal and not physical. The evidence would further indicate that all the injuries were inflicted at a stretch. The weapon used is the tool of the accused, which is normally kept at home. There is no evidence to indicate that after the deceased fell down, the accused had inflicted any further injuries, taking advantage of his inability or helpless situation. There was nothing unusual in the manner in which the injuries 12 Crl.Appeal No.2203/2009 have been inflicted by the accused. PW1 has stated that the quarrel on the relevant day was not concerning the non-payment of the amounts agreed to be paid by the deceased as part of the family arrangement. The facts and circumstances narrated above, if appreciated in the light of the legal principles set out above, it is evident that acts which culminated in the death of the deceased was caused without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. The accused is, therefore, entitled to the benefit of Exception 4 to Section 300 of the IPC. 15. Coming to the sentence aspect, we feel that rigorous imprisonment for a period of ten years would be the appropriate sentence, which would meet the ends of justice. 16. In the aforesaid facts and circumstances, the conviction of the appellant is altered to Part I of Section 304 of the IPC. The sentence imposed on the appellant is modified to rigorous imprisonment for a period of ten years and pay a fine of 13 Crl.Appeal No.2203/2009 Rs.10,000/- and, in default of payment of fine, to undergo rigorous imprisonment for one month. The appellant would also be entitled to set off under Section 428 of the Code of Criminal Procedure. The appeal is allowed to the extent indicated above. Sd/- ## **THOTTATHIL B. RADHAKRISHNAN, JUDGE.** Sd/- **P.B.SURESH KUMAR, JUDGE.** tgs/smv (true copy)