Raveendran Asari alias Muzhayan Ravi v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 29TH OCTOBER 2008 / 7TH KARTHIKA 1930 CRL.A.No. 360 of 2005() ----------------------SC.211/2003 of I ADDL. SESSIONS COURT, TRIVANDRUM .................... APPELLANT/ACCUSED: ------------------------ RAVEENDRAN ASARI ALIAS MUZHAYAN RAVI, S/O.NARAYANAN ASARI, V.P.NO.VII/471, ADIPARAMBU, VITHURA VILLAGE. BY ADV. SRI.LATHEESH SEBASTIAN RESPONDENTS/STATE AND COMPLAINANT: ----------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. 2. CIRCLE INSPECTOR OF POLICE, PALODE POLICE STATION. BY PUBLIC PROSECUTOR SHRI JAI GEORGE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CRL.M .A.NO.2098/05 IN CRL.A.NO.360/05 ## **//DISMISSED//** SD/- K.BALAKRISHNAN NAIR, JUDGE. SD/-M.C.HARI RANI, JUDGE. 29.10.2008 **K.BALAKRISHNAN NAIR & M.C.HARI RANI, J J. -----------------------------------------------------Criminal Appeal No. 360 of 2005 -------------------------------------Dated, this the 29[th] day of October, 2008** ## **J U D G M E N T** ## **Balakrishnan Nair, J.** The appellant aggrieved by the conviction and sentence imposed on him by the First Additional Sessions Judge, Thiruvananthapuram in S.C.No.211/2003 has preferred this criminal appeal. 2. The prosecution case in brief is as follows:- The appellant/accused is the eldest son of Ponnamma. They were residing together in Thadatharikathu house, Adiparambu in Nedumangad Taluk. He is a drunkard and was in the habit of picking up quarrels with others including his wife and mother. His wife Radha and three children left that house, unable to withstand the cruel behaviour of the accused. Thereafter he developed illicit relationship with C.W.13, Vasantha, who was a lady of immoral character living in the neighbourhood. His mother Ponnamma was unhappy with the said relationship of her son with Vasantha, which **-2-** **CRL.A.No.360/05** was another reason for quarrel between them. On 23/06/2001, the above said Vasantha had brought some provisions for Ponnamma and there was some quarrel between them, as Ponnamma disliked Vasantha bringing provisions for her. When the accused returned in the evening after work, he was in an intoxicated stage. Carrying MO1 chopper, he went to the house of his mother and questioned her about the quarrel. She retorted that she would never accept his relationship with Vasantha and will not allow her to reside in that house till her death. Saying this, she entered the kitchen. The accused followed her to that room with the intention of causing her death, and with the knowledge that his act would cause her death inflicted a fatal injury on her left thigh by using MO1 chopper. Ponnamma cried aloud that she was being killed and there was nobody to help her. The accused/appellant sat in the Verandah of the house up to 10 O’clock in the night. Thereafter, he switched off the light and disappeared. In the morning, PW2 told PW7 that there was a quarrel between Ponnamma and her son and she was heard crying aloud. Thereafter, no sound was heard from the house. So, PW2 asked PW7 to go and enquire about Ponnamma under the pretext of asking some tobacco from her. PW7 went to the house of Ponnamma and found that she **-3-** **CRL.A.No.360/05** was lying on the floor soaked with blood. She cried aloud and the local people rushed to the scene. Because of the profuse bleeding from the injury sustained on her left thigh, Ponnamma had already breathed her last, when she was found by PW7. 3. PW1, one of the brothers of the deceased Ponnamma, lodged First Information Statement, Ext.P1. Based on the said statement, PW14, the Sub Inspector, registered a crime against the accused for the offence punishable under Section 302 I.P.C. and Ext.P1 (a) F.I.R. was sent to the Magistrate's Court. PW16, the Circle Inspector of Police, conducted the inquest and prepared Ext.P10 inquest report. The dress worn by the deceased was seized under a mahazar. The scene mahazar was also recorded in the inquest report. Based on the confession statement of the accused, he recovered MO1 weapon used for inflicting the injury. He questioned most of the witnesses and covered substantial portion of the investigation. PW17, who succeeded him, conducted the remaining part of the investigation. Charge was laid by C.W. 26, who was not examined as a witness in this case. The Judicial First Class Magistrate Court-II, Nedumangad, before whom the charge was laid, committed the case for trial by the Sessions Court. The learned Sessions Judge made over the case for **CRL.A.No.360/05** **-4-** trial to the First Additional Sessions Judge, Thiruvananthapuram. 4. The appellant/accused pleaded not guilty to the charge framed against him. From the side of the prosecution, P.Ws. 1 to 17 were examined. Exts. P1 to P14 were marked. Material objects, M.Os. 1 to 11 were produced and marked. From the side of the defence, Exts.D1 to D5, which were the contradictions in the statements of P.Ws.5, 6 & 10, before the court with reference to their statements recorded by the investigating officer under Section 161 of the Code of Criminal Procedure, were marked. The accused was questioned under Section 313 of the Cr.P.C. He denied the circumstances in the evidence against him, which were put to him under Section 313 of the Cr.P.C. He also filed a written statement before the Court alleging that Vasantha was the real culprit and he was falsely implicated. The learned Sessions Judge found the accused guilty. The accused was convicted and sentenced under Section 302 I.P.C. to undergo rigorous imprisonment for life and to pay a fine of Rs.20,000/-, and in default of payment of fine, it was ordered that he should suffer rigorous imprisonment for two more years. 5. The appellant challenges the findings of the Court below **CRL.A.No.360/05** **-5-** against him, mainly canvassing the following points:- According to him, Vasantha (C.W.13), with whom he had illicit relationship at the relevant time, was the real culprit. There were frequent quarrels between her and his mother. On the fateful day also, there was a quarrel and it was she who inflicted the fatal injury. The learned counsel for the appellant submitted that the presence of Vasantha in the scene of occurrence is admitted by P.Ws. 2 & 3. Therefore, the defence put forward by the accused is probable on the facts proved in this case. Alternatively, it is submitted that even if the accused is found guilty, the same can be done only under Section 304 I.P.C. He is entitled to get the benefit of 4[th] exception to Section 300. There was only one injury and that too in the thigh, which is not a vital part of the body. It would show that he never had any intention to kill his mother. There was a quarrel and in the heat of passion generated by the quarrel, he inflicted a single injury and the same led to her death. So he prays the conviction may be converted into one under the second part of Section 304 I.P.C. 6. We heard the learned Public Prosecutor. According to him, the claim of the defence, that it was Vasantha who committed the offence, was inherently improbable. The trial court considered this **-6-** **CRL.A.No.360/05** defence plea in paragraphs 20 & 21 of the impugned judgment. After analysing the facts and the evidence on record, the Court correctly found that Vasantha could have never committed the offence. It is also submitted that the appellant’s conduct will come under the 3[rd] clause of Section 300 of the I.P.C. The accused knew that the injury inflicted is sufficient in the ordinary course to cause death. Further, he prevented others from coming to the house or rendering any medical treatment to the injured. Therefore, the offence committed by him is culpable homicide amounting to murder. The claim of the accused that he is entitled to get the benefit of 4[th] exception to Section 300 I.P.C. is unsustainable in law, it is submitted. For that there should not only be quarrel but also fight between the accused and the deceased. In this case, there was only quarrel and in the absence of any fight between them, the 4[th] exception to Section 300 has no application, it is submitted. 7. In answer, the learned counsel for the appellant submitted that fight between the accused and the deceased is not necessary to attract the 4[th] exception. In support of that submission, the learned counsel relied on the decisions of the Apex Court in **Thankachan** Vs. **State of Kerala** , (2005 (11) SCC 536) and in **Ramakrishnan** **CRL.A.No.360/05** **-7-** **Unnithan** Vs. **State of Kerala,** (1999(2) KLT 129) and the decision of our High Court in **Subramanian** Vs. **State of Kerala,** (2004(2) KLT Short Note 78). 8. Before dealing with the rival contentions, we would briefly refer to the evidences on record. PW1 is the brother of the deceased. He submitted that on the morning of 24.06.2001, he came to know about the death of his sister Ponnamma. PW3 informed of her death to his wife, who in turn came to the rubber estate, where he was working, and gave the information. Immediately, he ran to the house of his sister. She was found lying dead. It was he who gave Ext.P1 F.I. Statement, based on which, Ext.P1(a) F.I.R. was registered. PW1 has deposed before the Court that the accused was in the habit of taking liquor and quarrelling with his mother and others. Because of this conduct, the witness admitted that he was not on good terms with him. 9. PW2, Komalavally, is residing near to the house of Ponnamma. On 23/06/2001, she came to her house by 6.30 p.m. after the day’s work, whereupon she saw that the accused, Raveendran Asari, was quarrelling with his mother Ponnamma. After the quarrel, she saw the accused entering a room of the house, **CRL.A.No.360/05 -8-** carrying MO1 chopper. She heard Raveendran Asari (the accused) shouting to his mother that she will be killed and she will not be allowed to remain alive. After some time, she heard Ponnamma (mother of the accused) crying that she was being killed and there was no one to help her. She identified the accused, who was standing in the dock. At the relevant time, Vasantha was sitting outside the house on its steps. On hearing the cry, Vasantha ran to her house. There was only a distance of about 25 feet between the houses of Ponnamma and Vasantha. The crying was heard at about 7 p.m. The witness did not go to the house of Ponnamma. At that time, she and her daughters were alone in their house and that was why she did not go. The accused was a drunkard and he used to quarrel whenever he comes to his house. He was a nuisance. Vasantha and Ponnamma were always quarrelling. The accused used to go for work and purchase provisions for Ponnamma. Later, Vasantha started purchasing the provisions and giving it to Ponnamma. It is from then, the quarrel started. Vasantha is the second wife of the accused. Radha was the first wife. Because of the harassment of the accused, the first wife has gone away. When the accused entered the house on the date of incident, he was carrying MO1 chopper. Its handle was made of **-9-** **CRL.A.No.360/05** wood. She identified MO1 weapon. When the incident took place, the night had not fully set in. Further, there was light in the houses of the witness, the accused and Pushpangadan (PW3). All these three houses are electrified. The accused with MO1 chopper and a torch light was sitting in the verandah of the house up to 10 p.m. He was smoking beedi and was also looking into the inside portion of the house flashing the torch light. MO1 chopper was in his hand. He was going to the house of Vasantha and coming back frequently. He was always carrying MO1 chopper in his left hand. Normally, he uses his left hand. Distance between the houses of the witness and the accused is only 5 feet. The witness stated that Vasantha was also stabbed and killed by the accused. Everyday at 5 O’clock Ponnamma used to wake up the witness, so that she can go for work. But on 24/06/2001, Ponnamma did not call her. Thereupon she told PW7 that today Ponnamma did not call her in the morning. PW7 was also told that her cry was heard during night, and that thereafter there was complete silence. Witness suggested PW7 to go to the house as if to get a piece of tobacco. Thereupon, PW7 went to the house of Ponnamma and found her lying with her legs soaked in blood. Thereupon PW7 cried aloud from there. The persons in the neighbourhood came and they saw that **CRL.A.No.360/05** ## **-10-** Ponnamma was dead. The accused killed Ponnamma because of her quarrel with Vasantha. She did not like his relationship with Vasantha. The witness identified the kaili worn by the deceased as MO2, the blouse worn by her as MO3. She also identified the kaili worn by the accused as MO4, and the kerchief worn by the accused as MO5. She was questioned by the police two or three times. She has given statement not only before the police but also before the Magistrate. Ext.P2 is the statement given before the Magistrate. The witness was extensively cross examined by the defence. But nothing was brought out in the cross examination to discredit the version given by the said witness. 10. PW3, Pushpangadan, was living in the neighbourhood of Ponnamma, the deceased. He stated that the accused and his mother were residing in the very same house. He identified the accused, who was standing in the dock. There is only a distance of 10 meters between his house and that of the deceased. Ponnamma died on 23/06/2001. On consuming liquor, the conduct of the accused would be very bad. Abusing others and making a hue and cry were his usual practice. On the said day, the witness saw the accused quarrelling with his mother at 6.30 p.m. The accused abused his mother. She **CRL.A.No.360/05** **-11-** retorted. Again, there was use of abusive language from his part. By 7.p.m. Ponnamma entered her kitchen, whereupon the accused, with MO1 chopper in his hand and uttering filthy language, entered the kitchen. Following that Ponnamma cried out that she was being killed. The witness did not go to that house. When the accused was drunk, he will start quarrelling with the neighbours also. Immediately, on hearing the crying sound of Ponnamma, Vasantha was seen running away from the side of the kitchen. The accused was having illicit relationship with Vasantha. Because of the problems created by the accused, his first wife and three children went away. His second wife Vasantha was staying very near to his house. It is known that Vasantha was stabbed to death by the accused. The witness identified MO1 chopper used by the accused. Soon after the cry of Ponnamma was heard, the accused came out of the house. He was carrying a chopper. Using that chopper, he cut down a tender jack fruit plant. Thereafter, he entered the house of Vasantha. Again, he returned and sat in the Verandah of his house, smoking a beedi. At that time, there was light in the house of the accused. There was light in the house of the witness as also in the house of PW2. In that light, the witness could see what happened. There was light in the house of the accused **-12-** **CRL.A.No.360/05** upto 10 PM. The accused switched off the light at 10 PM. The witness came to know of the death of Ponnamma at 6AM on 24.6.2001. A Muslim lady in her neighbourhood went to the house of Ponnamma to get tobacco. Though, the said lady called Ponnamma, there was no response. When she went inside, she saw the two legs of Ponnamma. Immediately, the said lady ran away, crying. She told that Ponnamma was lying motionless. Thereupon, it was found on examination that Ponnamma was dead. The witness informed PW1 about the death of Ponnamma. The cause of the incident was the dispute with Vasantha. Ponnamma did not like Vasantha purchasing and giving her provisions. So, the quarrel started. In the morning of 23.6.2001, there was quarrel between Vasantha and Ponnamma. At that time, the accused was not there. The quarrel was regarding the purchase of provisions. The police have questioned the witness. Further, he has given statement before the Magistrate also. The said statement of the witness recorded under Section 164 Cr.P.C. was marked as Exhibit P3. Though the said witness was cross-examined, nothing was brought out to discredit his testimony. 11. PW4 is the wife of PW3. The witness is residing in the neighbourhood of Ponnamma, along with PW3, her husband. There is **-13-** **CRL.A.No.360/05** a distance of about 15 feet between their houses. She identified the accused, who was standing in the dock. She said, the accused and Ponnamma were residing in the same house. The accused was in the habit of drinking liquor and thereafter quarrelling. On 23.6.2001, Ponnamma died. The quarrel between them started at about 6.30 P.M. She heard Ponnamma crying by 7'O clock, that she was being killed. She saw the accused and Ponnamma quarrelling at 6.30 PM. At that time, the accused was carrying a chopper. At about 7 PM, Ponnamma was heard crying that she was being killed and there was no one to help her. The accused came out from the house. He cut into two, a tender jack fruit plant standing in the courtyard of the building. Thereafter, he went to the house of Vasantha. After some time, he was seen sitting in the Verandah of his house, smoking a beedi. Vasantha is the second wife of the accused. The witness identified MO1 chopper carried by the accused. When Ponnamma was heard crying, the accused and Ponnamma were alone in her house. There is electric connection in her house as also in the houses of PW2 and the accused. At 6.30 AM on 24.6.2001, the witness came to know of the death of Ponnamma, on the basis of the information furnished by Rehma Umma (PW7). The said Muslim lady told the **CRL.A.No.360/05** **-14-** witness that Ponnamma was lying, with both the legs soaked in blood. It was known that Vasantha was killed by the accused. Vasantha and Ponnamma quarrelled on 23.6.2001 at about 12 noon. The reason for the quarrel was the complaint of Ponnamma that the provisions given by the accused was insufficient for her. The deceased also disliked the accused staying with Vasantha. The police have recorded the statement of the witness. She also gave statement before the Magistrate, which is marked as Exhibit P4. Though this witness was also extensively cross-examined by the defence, nothing was brought out to disbelieve her version before the court. 12. PW5 was a student studying in the 7[th] standard in June, 2001. He is staying with his father and mother. He knew Ponnamma who was killed. Ponnamma and the accused were staying together. The witness is staying in the neighbourhood of them. Ponnamma died on 23.6.2001. On the evening of 23.6.2001, the witness was there in his house. He heard the quarrel between the accused and Ponnamma at 6.30 PM. At the relevant time, there was Kuttan Pilla (PW6) in his house. Since no one else was there in his house, Kuttan Pilla came to stay with him. All others in the house have gone for a marriage. On hearing the crying of Ponnamma that she was being killed, the witness **CRL.A.No.360/05** **-15-** came out of his house and watched. He did not go to the house where the quarrel was taking place. The witness further stated that there was quarrel in that house every day. So, he did not go to that house. He came to know of the death of Ponnamma on the next morning. The witness gave statement before the police as also before the Magistrate. Exhibit P5 is the statement given before the Magistrate. The deposition of this witness also remained unshattered in crossexamination by the defence. The contradiction in the statement of the witness with reference to his statement before the police under Section 161 Cr.P.C. was marked as Exhibit D1. 13. PW6 is Kuttan Pilla, who was in the house of PW5 on the fateful night. He went to that house, as no one else other than PW5 was there. At 6-6.30 PM on that day, he heard the accused and Ponnamma talking loudly. At about 7 PM, he heard Ponnamma crying that she was being killed. The said witness and PW5 did not go to the house of the accused. He has also given statement before the police as also before the Magistrate. Exhibit P6 is the statement given by him before the Magistrate under Section 164 Cr.P.C. Though, the defence cross-examined this witness, nothing has been brought out to discredit his version before the Court. The defence marked Exhibit D2, **-16-** **CRL.A.No.360/05** which is a portion of the statement of the said witness before the police, which is at variance with his statement before the court. The said contradiction does not have any effect on the credibility of the witness. 14. PW7 is Rehma Beebi, who saw the dead body of Ponnamma first. She is also residing in the neighbourhood. Her house is at a distance of 25 feet from the house of Ponnamma. The witness saw Ponnamma at 3 PM on 23.6.2001. The witness heard Ponnamma quarrelling with the second wife of the accused. On the next day morning, by 7PM, PW2 came to the house of the witness and told her that there is no sound from the house of Ponnamma. She was requested to go and look. When she went to the house of Ponnamma, first she saw the legs of Ponnamma. Later, it was found that she was lying soaked in blood. She did not enter the house. She felt like fainting. She told Komalam, what she saw there. The persons in the neighbourhood came and it was confirmed that Ponnamma was dead. The statement of this witness also remained unshattered in the crossexamination. 15. PW8 is the doctor who conducted autopsy and issued Exhibit P7 post-mortem certificate. She noticed the following injuries on the **CRL.A.No.360/05 -17-** body of the deceased. “1. Incised wound 9x0.8x6 cm. obliquely placed on the front of left thigh, the lower inner end 27 cm. above inner aspect of knee. The wound was seen terminated on the muscle plane after completely cutting the femoral artery and partially cutting the inner half of femoral vein. 2. Abrasion 4.5x0.4 cm. obliquely placed on the front of neck the outer end 3 cm. to the right of midline and 5 cm below the jawbone.” She deposed that Injury No.1 can be caused by using a weapon like MO1. The opinion of the said witness as to cause of death was Injury No.1 mentioned above. 16. PW9 is the Village Officer, who prepared the scene plan, Exhibit P8. PW10, Krishnamma is the mother of the son-in-law of Vasantha. The said witness is staying at Aanappara Valayanki, along with his son, daughter-in-law and their two children. She knew Ponnamma, who was killed. The house of Ponnamma was very close to the house of her daughter-in-law, Bindu. Vasantha is the mother of her daughter-in-law. She knew the accused. She came to know of the death of Ponnamma at 9 AM on the next day. At 12 midnight, on the night Ponnama was killed, the accused and Vasantha came to her **CRL.A.No.360/05** ## **-18-** house. They came walking in the rain. She gave them tea. They stayed in that house on that night. She did not see anything in the hands of the accused. When she woke up at 4'O clock to wash the vessel for drawing milk from her cow, the accused also woke up. She told the accused to take coffee, before he goes out. Vasantha was also there, at that time. She woke up at 5.30 AM and left by 6AM. Vasantha came back on that day by 9PM. She knew that the accused as the husband of Vasantha, was staying with her. When Vasantha came in the night, she(PW10) inquired about Ponnamma. The witness has already heard that Ponnamma was killed by the accused. Vasantha told that she does not know anything. Vasantha stayed with the witness for three months. Vasantha went to get the accused released on bail. The police came along with the accused to her house. It was on the fourth day of the death of Ponnamma. The accused told that he has hidden a chopper in the cow dung pit and he took the chopper from there and gave it to the police. The witness saw the same. MO1 is the chopper handed over by the accused to the police. Apart from the chopper, he gave a bag to the police, which was kept below the clothes in a room of her house. The accused took it and handed over to the police. There was a red towel and a 'kaili' in that **-19-** **CRL.A.No.360/05** bag. The witness saw them. She could recognise them. The said 'kaili' was marked as MO2 and the towel was marked as MO5. The bag was marked as MO6. The police took away all of them. The police had questioned her. Though the defence cross-examined her, nothing was elicited, which could discredit her version. But, the defence marked Exhibits D3 to D5, which were the relevant portions of her statement under Section 161 Cr.P.C. made before the police and which were at variance with her statement before the court. Those contradictions were of no consequence as far as the relevant facts proved by the prosecution are concerned. 17. PW11 is Nazeehathu Beevi. Vasantha's daughter was working in the house of the witness. Her son was associated with the lottery business of the husband of the witness. Vasantha along with the accused came to the house of the witness at 9AM on a day in June, 2001. When they came, the witness asked them to repair the shed used for storing firewood. She gave 100 rupees to them. Rs.20/- was spent for purchasing coir. They did the work quickly and went away by 10.30-11AM. The balance Rs.80/- was taken by them as wages. 18. PW12 is the witness to Exhibit P9 mahazar for recovering MOs 1, 2, 5 and 6. He deposed that he witnessed the recovery made **CRL.A.No.360/05** ## **-20-** on the basis of the statement of the accused and he signed Exhibit P9 mahazar. He deposed that the articles MO1 and other material objects were recovered from the premises of the house of PW10. 19. PW13 is the witness to the inquest report, Exhibit P10, prepared by PW16, the Circle Inspector of Police. PW14 is the Sub Inspector of Police, who recorded Exhibit P1 FI statement and also registered Exhibit P1(a) FIR. PW15 was the Judicial First Class Magistrate-I, Nedumangad at the relevant time. As directed by the Chief Judicial Magistrate, Thiruvananthapuram, he recorded the statements of PWs 2 to 6 and CW13 Vasantha, under Section 164 Cr.P.C. PW16 is the Investigating Officer, who took over the investigation on receiving the report from PW14 regarding the commission of the offence. He prepared the inquest report Exhibit P10 in the presence of the witnesses on 24.6.2001. He seized the dress worn by the deceased. He sent the body for post-mortem. He questioned the witnesses and completed major part of the investigation. He also obtained the certificate from the Forensic Science Laboratory, Exhibit P13. PW17 is another Circle Inspector of Police, who conducted the investigation between 2.8.2001 and 1.12.2001. It was he who sent PWs 2 to 6 and CW13 to the **-21-** **CRL.A.No.360/05** Magistrate for recording the statement under Section 164 Cr.P.C. In this case, the final report under Section 173 Cr.P.C. was filed by CW26. PW17 identified the signature of the said officer in the final report. 20. We have already noticed that the learned defence counsel raised only two points before us. The first point was that it was Vasantha, who committed the crime. We notice that the said contention was raised before the trial court and the trial court dealt with the same in paragraphs 20 and 21 of the judgment under appeal. If it was Vasantha, who inflicted the fatal injury on his mother, the accused would have immediately taken the injured to the nearest hospital to render medical assistance. But, in this case, he sat in the verandah, smoking a beedi for three hours from 7 PM to 10 PM. The explanation of the accused is that he tried to tie the wound of his mother, but she scolded him and asked him not to touch her. Therefore, he came out and waited in the verandah. Soon he fell asleep. When he woke up, it was found that his mother was lying motionless. Having regard to the normal human conduct, the above version of the accused can never be believed. Even if the injured opposed, he would have taken her to the hospital. Further, his claim that he fell asleep, when his mother was fatally injured and lying inside **-22-** **CRL.A.No.360/05** the house is also inherently improbable. It is also strange that he did not tell his neighbours about the injury sustained by his mother and that his mother was found lying motionless. So, we are of the view that the trial court rightly rejected the defence put forward by the accused that it was Vasantha, who committed the crime. The trial court also rightly relied on the subsequent conduct of the accused that he did not participate in the funeral of his mother. For Hindus, the presence of the son in the funeral is very important, as he has to perform certain last rites. The accused was arrested only on 26.6.2001. So, we fully agree with the reasons and conclusions of the trial court on the above point raised by the defence. 21. Apart from the above, the circumstances proved in this case are unerringly pointing to the guilt of the accused. PWs 2 to 4 have seen the accused and Ponnamma quarrelling from 6.30 to 7 PM. By 7 PM, PWs 2 to 6 heard Ponnamma crying that she was being killed and there was no one to help her. At the relevant time, the accused and Vasantha were there. On hearing the cry, Vasantha ran away. The accused came out from the room and in anger, he cut down a tender jack fruit plant using the chopper in his hand and went to the house of Vasantha. This was witnessed by PWs 2 to 4. Those witnesses have **-23-** **CRL.A.No.360/05** seen him coming back and sitting in a chair on the verandah, upto 10PM. So, from the facts proved, it can safely be concluded that, the offence can be committed only by two persons. That is, either the accused or Vasantha. The possibility of Vasantha committing the offence has to be ruled out because of our finding on the above point first raised by the defence. The medical evidence also support the case of the prosecution. Ponnamma died of injury inflicted on her left thigh. The doctor who conducted the post-mortem examination has deposed that the injury found on the body of Ponnamma can be caused by MO1 chopper, which was being carried by the accused all along at the time of occurrence. The statement of the accused under Section 313 Cr.P.C. regarding the incident which has been found by us to be false is also a circumstance against the accused. So, the trial court has rightly found that it was the accused, who caused the death of Ponnamma. 22. The next point to be considered is whether the offence committed by the accused will come under Section 302 of IPC or under the 2[nd] part of Section 304. The above contention is raised pointing out that the offence committed by the accused will come under the 4[th] exception to Section 300 IPC. The said exception reads as follows: **-24-** **CRL.A.No.360/05** Exception 4.-Culpable homicide is not murder if it is committed 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. But, in this case, we notice that though there was quarrel between the accused and Ponnamma, there was no fight between them. At least there should have been pushing and pulling each other. In this case, the evidence on record would show that there was only wordy dual between them. So, in the absence of any fight, the 4[th] exception is not attracted. In this case the victim was aged 71 years and the weapon used was a chopper. In view of the frequent quarrels which had taken place in their house, the appellant/accused cannot point out any justification for inflicting the deadly injury on the body of the deceased on the ground of a quarrel. Learned counsel for the appellant submitted that for claiming the benefit of the 4[th] exception, the fight between the accused and the victim is not necessary. In support of that submission, he relied on the decision of the Apex Court in **Thankachan v. State of Kerala (2005 (11) SCC 536)** and **Ramakrishnan Unnithan v. State of Kerala (1999(2) KLT 129)** . We have gone through the above two decisions. From the facts of **-25-** ## **CRL.A.No.360/05** those cases, we notice that there was not only quarrel, but also fight between the accused and the victim therein. The learned counsel also relied on the decision of this Court in **Subramanian v. State of Kerala (2004(2) KLT SN 78)** . The said decision also does not lay down the principle that for claiming the benefit of 4[th] exception under Section 300 mutual fight following a quarrel is not necessary. A plain reading of the section would show that there should be some form of fight between the accused and the victim to claim the benefit of the said exception. In view of the above position, the claim of the learned counsel for the appellant/accused that the offence committed by the accused is culpable homicide not amounting to murder, cannot be accepted. In the result, the appeal fails. The conviction and sentence imposed on the appellant is upheld and the Criminal Appeal is dismissed. ## **K.BALAKRISHNAN NAIR, JUDGE.** ## **M.C.HARI RANI, JUDGE.** dsn