PRASAD 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 26[TH] DAY OF MARCH 2024 / 6TH CHAITHRA, 1946 CRL.A NO. 26 OF 2018** **AGAINST THE JUDGMENT DATED 20.12.2016 IN SC NO.344 OF 2015 ON THE FILES OF THE ADDITIONAL DISTRICT AND SESSIONS** **COURT, PALA** ## **APPELLANT/ACCUSED (PRESENTLY UNDER CUSTODY):** **PRASAD AGED 42 YEARS, S/O. RAGHAVAN, POTTANANIYIL VEED, PUTHUVELI KARA, VELIYANNOOR VILLAGE, KOTTAYAM DISTRICT** **BY ADVS. SRI.C.V.MANUVILSAN SRI.T.D.LOVEL KUMAR SMT.K.VIDYA SRI.VINODE V. LUKA** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, RAMAPURAM POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031** **ADV.E.C.BINEESH PP** **THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 19.03.2024, THE COURT ON 26.03.2024 DELIVERED THE FOLLOWING:** Crl.A.ppeal No.26 of 2018 -: 2 :- ## **C.R.** ## P.B.SURESH KUMAR & JOHNSON JOHN, JJ. ----------------------------------------------- Crl.Appeal No.26 of 2018 ----------------------------------------------Dated this the 26[th] day of March, 2024 ## JUDGMENT ## P.B.Suresh Kumar, J. The sole accused in S.C. No.344 of 2015 on the files of the Additional Sessions Court, Pala is the appellant in this appeal. He stands convicted for the offence punishable under Section 302 of the Indian Penal Code (IPC) and sentenced to undergo imprisonment for life. 2. The occurrence which is the subject matter of the case took place on 23.09.2014. One Soman, who is a close relative of the appellant died in the occurrence. Soman was running a tea shop on the side of M.C. Road at Puthuveli. At about 8.30 p.m on the date of occurrence, while Soman was proceeding to the shop of one Thomas located on the opposite side of the road at a distance of about 20 metres away from his Crl.A.ppeal No.26 of 2018 -: 3 :- shop, he was hit on his back by an auto rickshaw driven by the appellant and Soman succumbed to the injuries sustained on account of the fall. The accusation in the case is that on account of the enmity the appellant had towards the deceased for opposing openly his way of living and for preventing other relatives of the appellant from helping him from the troubles in which he is entangled, the appellant hit down the deceased with the intention of causing his death. 3. As the appellant denied the charge framed against him by the Court of Session when committed for trial, the prosecution let in oral as also documentary evidence to prove the charge. The Court of Session, thereupon, on an appraisal of the evidence on record, convicted and sentenced the appellant. The appellant is aggrieved by the decision of the Court of Session 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 did not attack seriously the finding rendered by the Court of Session that the death of the victim was due to the injuries sustained by him on account of the hit of the autorickshaw driven by the Crl.A.ppeal No.26 of 2018 -: 4 :- appellant. Instead, it was contended by the learned counsel that merely on account of the said fact, it cannot be said that it is a case of murder. According to the learned counsel, the evidence on record would only indicate that it was a case of accident. Per contra, the learned Public Prosecutor submitted that the evidence on record would demonstrate that the appellant had deliberately hit down the deceased and therefore, it is a case of murder. 6. The points that arise for consideration are (i) whether the prosecution has established beyond reasonable doubt that the appellant had deliberately hit down the deceased using the auto rickshaw driven by him and (ii) if so, what is the offence committed by the appellant. 7. Point (i): PW1 is the son of the deceased. PW1 is not an eyewitness to the occurrence. It was on the information furnished by PW1 that the case was registered. PW1 deposed the said fact in his evidence. In addition, PW1 also deposed that the appellant who is a relative of the deceased was not in good terms with the deceased as the latter refused to be a surety for the appellant in a few criminal cases in which the appellant was involved. It was also deposed ## Crl.A.ppeal No.26 of 2018 -: 5 :- by PW1 that the deceased had also restrained the brothers of PW1 from helping the appellant for the said purpose. PW2 is Thomas who is running the provision store on the opposite side of the shop of the deceased. PW2 deposed that on the relevant day, while he was standing outside his shop, he saw the deceased coming from south to north through the western side of the road towards his shop and that while so, the appellant who was coming from north in the autorickshaw, turned around the autorickshaw in front of the shop of the deceased after passing the deceased and hit the auto rickshaw on his back. PW2 also deposed that the deceased fell down on account of the impact of the hit and when he made a noise, a few persons who were sitting then in the tea shop of the deceased rushed to the scene and took the deceased to the hospital. PW2 also deposed that there were frequent quarrels between the appellant and the deceased. 8. PW3 is the brother of PW2. PW3 deposed that he was sitting at the relevant time in the table in front of the tea shop of the deceased; that he saw the occurrence and that the occurrence was as spoken to by PW2. In addition, PW3 also deposed that the appellant was driving the auto rickshaw at a Crl.A.ppeal No.26 of 2018 -: 6 :- high-speed at the time of occurrence. PW4 was another person who was sitting in front of the tea shop of the deceased at the time of occurrence. PW4 also deposed that he saw the occurrence and the occurrence was as spoken to by PWs 2 and 3. PW5 is none other than the brother of the deceased. As deposed by PW1, PW5 also deposed that the appellant was not in good terms with PW5 and his brother, the deceased, for having refused to stand as sureties for the appellant in the criminal cases in which he was involved. PW11, the Motor Vehicle Inspector examined by the prosecution deposed that he inspected the autorickshaw involved in the occurrence and the same was free from any mechanical defects. 9. We have examined the evidence tendered by the witnesses referred to above meticulously and we do not find any reason to disbelieve them. The evidence tendered by these witnesses that the appellant was coming in his autorickshaw at the relevant time from the opposite direction and he turned around the said autorickshaw to reach that side of the road through which the deceased was proceeding and hit on his back at a high speed, indicates beyond doubt that it was not an accident and that it was an act deliberately done by Crl.A.ppeal No.26 of 2018 -: 7 :- the appellant. Needless to say, the prosecution has established beyond reasonable doubt that the appellant had deliberately hit down the deceased. Point (i) is answered accordingly. 10. Point (ii): The finding on point (i) rules out the case that the occurrence was an accident. If it was not an accident, inasmuch as the appellant caused a hurt which endangered the life of the deceased, it can be a case of “grievous hurt” as defined under Section 320 IPC, or “culpable homicide” as defined under Section 299 IPC. The relevant portion of Section 320 defining “grievous hurt” reads thus: “The following kinds of hurt only are designated as “grievous”First - Emasculation xxx xxx Eighthly - Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.” Underline supplied The relevant portion of Section 299 IPC which defines “culpable homicide”, reads thus: “Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.” Crl.A.ppeal No.26 of 2018 -: 8 :- As evident from the extracted provision, Section 299 has three limbs. The first limb deals with an act done with the intention of causing death, the second limb deals with an act done with the intention of causing such bodily injury as is likely to cause death and the third limb deals with an act done by the accused with the knowledge that he is likely by such act to cause death. From the evidence discussed in the preceding paragraphs, it is difficult to arrive at a conclusion that the appellant had hit down the deceased with the intention of causing his death, especially since the motive alleged for the occurrence is only that the appellant was maintaining enmity towards the deceased, for the deceased having refused to stand as a surety for him in criminal cases. If that be so, the case on hand will not fall under the first limb of Section 299, namely intention to cause death. Inasmuch as the third limb of Section 299 would apply only to cases where the knowledge of the offender as to the likelihood of death pertains to a person or persons in general, as distinguished from a particular person or persons, the third limb of Section 299 also will not have any application to the facts of the case, for the appellant intended to specially Crl.A.ppeal No.26 of 2018 -: 9 :- commit the act only in respect of the deceased [See Paragraph 20 of the decision in State of A.P. v. Rayavarapu Punnayya , (1976) 4 SCC 382]. But the conduct of the appellant would certainly show that the appellant intended to cause bodily injury to the deceased. In other words, the case on hand would fall within the scope of the second limb of Section 299. 11. The next issue to be examined is whether the appellant intended to cause a bodily injury as is likely to cause death of the victim. The word 'likely' in the second limb of Section 299 conveys the sense of 'probable' as distinguished from a mere possibility. Inasmuch as it has come out in evidence that at the time when the appellant hit down the deceased, he was driving the auto rickshaw at a high speed, it can certainly be held that the appellant intended to cause a bodily injury which is likely to cause death, as death in such cases is not a mere possibility, but is probable. If the death is probable, it can certainly be held that the bodily injury intended to be caused is one which is likely to cause death. If death was only a mere possibility by the act done, the case would have been only a case of grievous hurt involving bodily pain which, in turn, would satisfy the requirement of “injury” Crl.A.ppeal No.26 of 2018 -: 10 :- as defined under Section 44 IPC. 12. The second limb of Section 299 corresponds with the cases that fall under the head “secondly” and “thirdly” of Section 300. The distinguishing feature of the mens rea required under “secondly” is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. In the absence of such a case for the prosecution, the case on hand would not fall under the head “secondly” of Section 300. If the case on hand would not fall under the head “secondly”, the next aspect to be considered is whether the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death to bring the case under the category “thirdly” in Section 300 IPC, so that the act done by the appellant would amount to murder. The relevant portion of Section 300 reads thus: “Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or Crl.A.ppeal No.26 of 2018 -: 11 :- Secondly.—If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or Thirdly.—If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly.—If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk or causing death or such injury as aforesaid.” It is well settled that the distinction between “a bodily injury likely to cause death” and “the bodily injury sufficient in the ordinary course of nature to cause death” is fine, but real and if overlooked, may result in miscarriage of justice. The difference lies in the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of gravest, medium or the lowest degree. The words “bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death” mean that death will be the most probable result of the injury, having regard to Crl.A.ppeal No.26 of 2018 -: 12 :- the ordinary course of nature. 13. Reverting to the facts, according to us, the act of the appellant brought out in evidence in the instant case in hitting down the deceased using the auto rickshaw driven by him, cannot be said to be an act that would most probably result in the death of the person hit down. In other words, chance of death is less when compared to chance of survival. If that be so, the act would only amount to culpable homicide not amounting to murder punishable under Part I of Section 304 IPC since the act is one which is done with the intention of causing such bodily injury as is likely to cause death. Point (ii) is answered accordingly. 14. It is seen that the appellant is undergoing imprisonment since 20.12.2016. He was also in custody during the investigation of the case for about two months from 07.10.2014 to 12.12.2014. Inasmuch as he has already undergone imprisonment for about 7½ years, we are of the view that the imprisonment already undergone by the appellant can be treated as sufficient for the offence committed by him. 15. In the result, the appeal is allowed in part, the Crl.A.ppeal No.26 of 2018 -: 13 :- conviction of the appellant is altered to Part I of Section 304 IPC, and the period of imprisonment already undergone by the appellant is treated as 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 13.12.2023