Sajeev 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 C.PRATHEEP KUMAR FRIDAY, THE 2[ND] DAY OF AUGUST 2024 / 11TH SRAVANA, 1946** **CRL.A NO. 382 OF 2018** **CRIME NO.57/2008 OF Pulinkunnu Police Station, Alappuzha** **SC NO.633 OF 2009 OF ADDITIONAL SESSIONS COURT - III, ALAPPUZHA** ## **APPELLANT/ACCUSED NO.1** **SAJEEV, AGED 33 YEARS,S/O THANKAPPAN, PUTHEPURACKALCHIRA,PULINKUNNU P.O,ALAPPUZHA DISTRICT** **BY ADVS. SRI.M.T.SURESHKUMAR SMT.BHAVANA VELAYUDHAN SRI.N.BIJA KRISHNA SRI.R.RENJITH** ## **RESPONDENT/COMPLAINANT** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA,ERNAKULAM 682031** ## **SRI.E.C.BINEESH -PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.7.2024, THE COURT ON 02.08.2024 DELIVERED THE FOLLOWING:** _**Crl.Appeal 382/2018**_ 2 ## **P.B.SURESH KUMAR** ## **&** ## **C.PRATHEEP KUMAR, JJ.** -------------------------------------- Crl.Appeal No.382 of 2018 ----------------------------------Dated : 2[nd] August, 2024 ## **JUDGMENT** ## C.Pratheep Kumar, J. This is an appeal filed under Section 374 (2) Cr.P.C by the 1[st] accused in Sessions Case No.633/2009 on the file of the Additional Sessions JudgeIII, Alappuzha, convicting him under Sections 302 and 323 r/w 34 IPC. The accused persons 1 and 2 are siblings. They have got another brother by name Santhosh. The prosecution case is that, due to the previous enmity of the accused persons towards deceased Suresh, they in furtherance of the common intention to murder Suresh, on 5.4.2008 at about 8.30 p.m., voluntarily caused hurt to the deceased on his hands and legs and the 1[st] accused inflicted a stab injury on his chest using a steel knife resulting in deep bleeding injury and while under treatment, he succumbed to the injuries at 8.30 pm on 6.4.2008. 2. On the side of the prosecution, PWs 1 to 16 were examined and Exts.P1 to P19 marked and MO1 and MO2 identified. On the side of the _**Crl.Appeal 382/2018**_ 3 accused, DW1 was examined and Exts.D1 to D10 were marked. Ext.C1 was also marked. After hearing both sides, the trial court found accused Nos.1 and 2 guilty under Sections 302 and 323 r/w S.34 IPC. They were convicted and sentenced them to undergo imprisonment for life and to pay a fine of Rs.50,000/- and in default of payment of fine, to undergo rigorous imprisonment for a further period of one year each under Section 302 IPC and to undergo simple imprisonment for one month each under Section 323 IPC. There is a further direction to pay the fine amount, if realized, to the mother of the deceased Suresh, as compensation under Section 357 (1)(b) of Cr.P.C. 3. It was informed that the 2[nd] accused died after the conviction. The 1[st] accused preferred this appeal challenging the conviction and sentence, raising various contentions. Now the points that arise for consideration are the following : _(i) Whether the appellant along with the 2[nd] accused, in furtherance of their common intention, murdered Suresh as alleged?_ _(ii) Whether the conviction and sentence under Section 302 IPC passed by the trial court is liable to be interfered with, in the light of the grounds raised in the appeal ?_ _**Crl.Appeal 382/2018**_ 4 _(iii) Whether an accused who has been punished under S.302 IPC can be further punished under Section 323 IPC, for causing hurt to the deceased ?_ 4. Heard both sides. 5. Admittedly, the accused persons and the deceased are neighbours, known to each other for several years. The 2[nd] accused is the younger brother of the 1[st] accused and they have another brother by name Santhosh. Prior to the present incident, there was another incident at a local toddy shop in which the deceased Suresh stabbed Santhosh using a broken glass bottle. As per the prosecution case, it was due to that enmity the accused persons on 5.4.2008 at about 8.30 pm, attacked and murdered the deceased. 6. On the date of incident, on 5.4.2008, a reception in connection with the marriage of the daughter of one Vijayan was held near the Kollamuttom culvert. At the time of evidence, all the occurrence witnesses examined by the prosecution unanimously stated that the quarrel between the accused persons on the one side and the deceased Suresh along with his brother Rajesh (PW1) on the other side, started at the premises of the marriage reception hall, at about 7.30 p.m. According to them, while the deceased was having his food inside the hall, the 1[st] accused came near the hall threatening to manhandle Suresh. When Suresh went out of the hall, _**Crl.Appeal 382/2018**_ 5 after having his food for washing his hands, the accused persons assaulted him. At that time, the persons who were attending the function, along with PW1, intervened and set them apart. Thereafter when PW1 reached the culvert at Kollamuttom, the accused persons on their way home saw him, which resulted in another scuffle. In the mean time Suresh also came there. When he pushed the 2[nd] accused, he fell down over a bike and sustained injury on his head and knee. At that time also, the persons including Vijayan intervened and set the two groups apart. As per the prosecution witnesses, thereafter the deceased and his mother went towards their house, while, the accused persons went inside their house. It was thereafter they returned with MO1 knife and attacked the deceased. 7. On the side of the prosecution, the evidence of PW1 to 6 was relied upon to prove the incident. The learned counsel for the appellant Sri.M.T.Suresh Kumar would argue that the evidence of these witnesses could not be believed as they are suffering from contradictions, omissions and embellishments. According to him, even the place of incident is not near the residence of the deceased as alleged by the prosecution, but near the culvert at Kollamuttom. On the other hand, the learned Public Prosecutor Sri.E.C.Bineesh would argue that the evidence of the occurrence witnesses are trustworthy and reliable and there is nothing wrong in the impugned judgment of conviction and sentence passed by the trial court. _**Crl.Appeal 382/2018**_ 6 8. PW1 is Rajesh, the brother of deceased and the first informant. Exhibit P1 is the FI statement given by him, based on which the crime was registered. On a perusal of Exhibit P1 and the evidence adduced by him as PW1, it can be seen that there is embellishment in his evidence. In the FI Statement, his version is to the effect that after the first incident in which the accused persons 1 and 2 manhandled deceased Suresh, some persons intervened and set them apart. Thereafter, while Suresh was returning to his residence, the 1[st] accused came from behind Suresh and stabbed on his chest. As per the FI statement, at that time, PW1 was standing at the courtyard of his house. On hearing the loud cry of Suresh, he rushed to the pathway in front of his house and saw Suresh in a pool of blood, pressing his hands at the chest. Immediately, he along with his friends took Suresh to Taluk Hospital, Pulinkunnu, from where he was referred to the Medical College Hospital Alappuzha. 9. However, at the time of evidence, PW1 claimed that he has directly seen the incident, in which Suresh sustained injury. According to him, on 5.4.2008, while he, along with his wife (PW6), and mother were in the marriage reception hall, the accused persons came near him, threatened to manhandle Suresh if he came out of the hall. After some time, he saw the accused persons assaulting Suresh. The persons attending the function intervened and set them apart. Thereafter he along with his wife, mother and _**Crl.Appeal 382/2018**_ 7 child proceeded towards their house. When they reached the culvert at Kollamuttom the accused persons assaulted him. At that time also the persons gathered there intervened and set them apart. Thereafter the accused persons went towards their residence. Suresh and mother went towards their home. Thereafter, he along with his wife and child proceeded to their house. After they passed the residence of the accused and reached the residence of one Dasan, the 2[nd] accused exhorted the 1[st] accused to “stab” Suresh. The 2[nd] accused caught hold of Suresh and at that time the 1[st] accused stabbed Suresh using a steel knife on his chest, resulting in bleeding immediately. He ran towards the residence, taken out a dhoti and tied the same around the injury and taken him to hospital in an auto-rickshaw. 10. PW2 is a friend and co-worker of PW1. He had given evidence to the effect that the 1[st] incident started at the marriage reception hall when the 1[st] accused challenged PW1 to send his brother (Suresh) out of the hall and threatening to manhandle him. Thereafter, there was a quarrel and scuffle at the courtyard of the marriage reception hall. The persons gathered there, including himself intervened and he tried to take the accused persons towards their house, to avoid further quarrel. On the way they saw PW1 and his mother walking in front of them. On seeing PW1 and his mother, the accused persons escaped from his hold and assaulted PW1. Again people intervened and set them apart. Thereafter the mother of Suresh took him towards their _**Crl.Appeal 382/2018**_ 8 residence and behind them accused persons hurriedly went inside their residence. When he along with others were waiting to see whether the accused persons again creates any problem, immediately they saw the accused persons coming out of their house and the 1[st] accused was holding a knife. They rushed towards Suresh. The 2[nd] accused caught hold of Suresh and called upon the 1[st] accused to kill him. At that time, the 1[st] accused stabbed Suresh on his chest using the steel knife, which he identified as MO1. When, he along with other persons reached near Suresh, the accused persons ran away with the knife. 11. PW3 would claim that he along with PW1 and his wife were going together and that he has seen the 1[st] accused stabbing Suresh. PW4 also claimed that he along with PW1 and his wife went together and saw the incident. PW6, the wife of PW1 also claimed that she along with PW1 and child went together and saw the 1[st] accused stabbing the deceased, when the 2[nd] accused held him from behind. According to PW5, she has not seen the 1[st] accused stabbing the deceased. However, immediately on hearing the cry of the mother of the deceased, she rushed to Suresh and saw him with injury on his chest. PW2 told her that accused persons 1 and 2 stabbed Suresh. She further claimed that after returning home, 1[st] accused told his parents that he had stabbed Suresh. _**Crl.Appeal 382/2018**_ 9 12. Since in the FI statement, PW1 has not claimed that he had seen the incident and stated that he reached near the deceased only after hearing his the loud cry, the evidence given before the court that he has directly seen the accused stabbing the deceased is an embellishment. Therefore, the evidence of PW1 to the extent it exceeds the version given in the FI statement could not be believed. In the above circumstances, the evidence of PWs 3, 4 and 6 that they were moving along with PW1 and seen the 1[st] accused stabbing the deceased when the 2[nd] the accused held him from the behind, also could not be believed. However, the evidence of PW1 to the extent that on hearing the cry of the deceased, he rushed towards the place of incident, where the deceased was seen standing with bleeding injury on his chest can be believed. Similarly, from the evidence of PWs 3,4 and 6, to the extent that they have reached the place of occurrence immediately after the incident and seen the deceased with bleeding injury on his chest can be believed. 13. At the time of evidence, PWs 1 to 4 and 6 have spoken about all the three incidents, that occurred on 5.4.2008. At the same time, PW15 deposed that that he had not investigated about the first two incidents that occurred before the stab incident involved in this case. In the above circumstance, the previous statements of PWs 1 to 4 and 6 recorded under S.161 Cr.P.C. did not contain all the details as deposed by them before the court. However, with regard to the incident involved in this case at 8.30 p.m., _**Crl.Appeal 382/2018**_ 10 there is no such disability. In the above circumstance, the omissions in the evidence of Pws 1 to 4 and 6 with respect to the first two incidents cannot be treated as material in this case. 14. During the cross-examination of PW2 three minor contradictions were brought out by the learned counsel for the accused persons. Ext.D1 is to the effect that he saw PW1 standing on the culvert at Kollamattam. At the time of evidence, PW2 deposed that he saw only PW1 walking along the said road. He also admitted that in the incident that happened at the culvert PW1 and the deceased were also involved. PWs 3, 4 and 6 also admitted that the incident that happened at the culvert between the accused persons on the one side and PW1 and the deceased on the other side was witnessed by them. Since PW2 also admitted that in the incident that occurred at the culvert PW1 was also involved, there is no relevance for Ext.D1 which states that he saw PW1 standing at the culvert. 15. Ext.D2 is to the effect that at the marriage reception hall the 1[st] accused threatened the deceased that if he came out of the hall, the 1[st] accused will manhandle him. At the time of evidence, according to PW2, the 1[st] accused demanded PW1 to send his brother, the deceased, out of the hall so that he could manhandle the deceased. So, the difference is, whether the 1[st] accused addressed the threatening words to PW1 or to the deceased. At the _**Crl.Appeal 382/2018**_ 11 time of evidence, it is revealed that when the 1[st] accused threatened to manhandle the deceased, PW1 and the deceased were present in the marriage reception hall. The contradiction in that respect on the part of PW2 is not so material as the incident that occurred at the marriage reception hall was at about 7.30 p.m., while in this case, the place of occurrence is entirely different and the time of occurrence is 8.30 p.m. 16. From the evidence of PWs 3, 4 and 6 it is revealed that immediately after the incident which occurred at the premises of the marriage reception hall, PW2 had taken both the accused persons towards their residence. PW2 also gave evidence in that respect. However, in Ext.D3 it is stated that PW2 had taken them from the residence of the bride and not from the marriage reception hall. The fact that PW2 has taken the accused persons 1 and 2 from the marriage reception hall towards their residence is revealed from the evidence of PW3, 4 and 6 also. In the above circumstances, Ext.D3 contradiction also has not much relevance, as it is not in any way directly connected with the offence involved in this case that occurred at a later point of time. 17. One of the contentions taken by the learned counsel for the appellant is that the place of occurrence is not in front of the residence of the deceased, but near the culvert at Kollamattam. During the cross-examination _**Crl.Appeal 382/2018**_ 12 of PWs 4 and 6, suggestions were put by the learned counsel for the accused persons to the effect that the deceased sustained injury at the culvert in the scuffle that occurred between two groups. However, the said suggestion was denied by PW2. During the cross-examination of PW2 the suggestion was to the effect that the incident was in between the marriage reception hall and the culvert, which was denied by him also. In support of the above argument, the learned counsel has relied upon the alleged history mentioned in Ext.P8 wound certificate. In Ext.P8 it is stated that the deceased received stab injury at the 'marriage residence'. In this context it is to be noted that none of the witnesses examined in this case have a case that neither the deceased nor the accused persons went to the residence of the bride, on that day. Out of the three incidents that occurred on that particular day, the first one was at the premises of marriage reception hall, the second was at the culvert and the 3[rd] one was at the pathway in front of the house of the deceased. It is true that these 3 places and the bride’s residence are nearby places. In fact, even the accused persons have no case that on that day any such incident occurred at the bride’s residence. Even as per the suggestion put by the learned counsel for the accused persons to PW4 and 6, the deceased sustained injury near the culvert and not at the bride’s residence. Therefore, the alleged history mentioned in Ext.P8 to the effect that the deceased sustained stab injury at the 'marriage residence' can only be incorrect. _**Crl.Appeal 382/2018**_ 13 18. When PW13, the Assistant Surgeon, Taluk Headquarters hospital was examined, no question was asked to ascertain whether the alleged history was given by the patient or by anybody else. It was argued that as per Ext.P8, the patient was conscious and oriented and hence, it is to be presumed that the alleged history was given by the patient himself. According to PWs 2 and 3, who were present along with the deceased, at the time when the deceased was brought to the hospital, though he was conscious, he could not speak. Even if it is assumed that the above alleged history was given by the patient himself, it is of no consequences as all the witnesses are consistent in stating that the deceased was attacked by the accused persons at the pathway in front of his house. 19. In this context, it is also to be noted that the primary duty of a doctor is to save the life of a person brought before him and to ascertain whether there is any medico-legal case involved and to inform the police, in case any such case is revealed. He is not expected to ascertain and record all the details involved in each case. In the decision in **Pattipati Venkaiah v. State of Andhra Pradesh [AIR 1985 SC 1715],** in paragraph 17, the Apex court held as follows: _“17. Another argument advanced before us was that although PWs 1 and 2 were supposed to be eye-witnesses, they never cared to disclose the name of the assailant to the doctor when_ _**Crl.Appeal 382/2018**_ 14 _the body of the deceased was taken to the hospital. This argument is only stated to be rejected. A doctor is not at all concerned as to who committed the offence or whether the person brought to him is a criminal or an ordinary person, his primary effort is to save the life of the person brought to him and inform the police in medico legal cases. In this state of confusion, PWs 1 and 2 may not have chosen to give details of the murder to the Doctor. It is well settled that Doctors before whom dead bodies are produced or injured persons are brought, either themselves take the dying declaration or hold the post-mortem immediately and if they start examining the informants they are likely to become witnesses of the occurrence which is not permissible.”_ 20. In this context it is also to be noted that, on the date of incident there were a series of quarrel and scuffle between the accused persons on the one side and PW1 and the deceased on the other side. First of such incident occurred at the premises of the marriage reception hall, in connection with the marriage of the daughter of one Vijayan. It appears that both parties were the guests of Vijayan. The 2[nd] incident was near the culvert, which is also not far away from the hall. To set them apart, in both those places, the persons who came to attend the reception intervened. Even Mr.Vijayan had to intervene and request them not to spoil the marriage function of his daughter. It was thereafter the incident involved in this case occurred. It can be stated that those are series of incidents, occurred within a time gap of about one hour. _**Crl.Appeal 382/2018**_ 15 Therefore, there is nothing wrong in saying that those incidents have direct connection with the above marriage reception. In the above circumstances, the place of incident as stated in the alleged history in Ext.P8 can only be a bona fide mistake. 21. The learned counsel for the appellant would argue that in MO2 banyan worn by the deceased at the time of incident, the damage was seen at the back side and not in the front side and therefore, it was argued that the prosecution case that the 1[st] accused stabbed the deceased from his front side cannot be true. From the evidence of PW2 it is revealed that the 1[st] accused stabbed the deceased from his front side when the 2[nd] accused held him from behind. PW11, 12 and 13, the doctors who had attended the deceased and conducted the post mortem examination are unanimous in holding that the injury was on the lateral aspect of chest. They have also deposed that such an injury can be caused from the front side or even from the side of the victim. In the above circumstances, there is no relevance for the place of damage to the MO2 banyan worn by the deceased at the time of incident. The fact that MO2 was washed and dried before it was seized was also highlighted by him. However, during the cross-examination of PW15, the investigation officer, no such question was raised and his explanation was not called for. In the above circumstance, there is no meaning in raising the said contention at this stage. _**Crl.Appeal 382/2018**_ 16 22. Another argument raised by the learned counsel for the appellant is that the prosecution has not examined the mother of the deceased, who was accompanying the deceased at the time of the incident. It is true that the mother of the deceased was along with the deceased, at the time of the incident. In this case, the prosecution has examined six witnesses, PW1 to PW6 to prove the alleged incident. In the above circumstances, for the mere reason that the mother of the deceased was not examined is not a ground to suspect the genuineness of the prosecution case. 23. It is true that in the incident that occurred near the culvert, the 2[nd] accused sustained minor injuries on his head and knee. It was revealed that he sustained those injuries when the deceased pushed him during the scuffle and he fell down over a bike. From the evidence of PW13, and from Ext.D8 wound certificate also it is revealed. However, it has come out in evidence that the above incident that occurred near the culvert ended then and there when the persons who gathered there intervened and set both the parties apart. Thereafter, the deceased and his mother went towards their residence and the accused persons 1 and 2 went to their residence. It was thereafter, the accused persons 1 and 2 came out of their residence with MO1 knife and attacked the deceased using MO1 knife. 24. Though PW2 was cross examined in detail, no other omissions or _**Crl.Appeal 382/2018**_ 17 contradictions could be brought out to discredit his testimony that he was present along with the accused persons all along the incident that occurred on 5.4.2008, from the marriage reception hall onwards, till the first accused inflicted stab injury on the deceased. From the above evidence of PW2, it is revealed that at first, the 1[st] accused had threatened the deceased and PW1, followed by a scuffle at the marriage reception hall and thereafter there was a quarrel and scuffle between them near the culvert at Kollamuttom. After disbursing from there, the accused persons and Suresh proceeded to their respective residence. Immediately thereafter, the accused persons came out of their house with the 1[st] accused holding a steel knife and they rushed to the deceased. The 2[nd] accused held the deceased from behind and the 1[st] accused stabbed on his chest, resulting in bleeding injury. 25. The evidence of PW1, to the extent disclosed in the FI statement, that on hearing the loud cry of the deceased, he rushed to the place of occurrence, which is the pathway in front of his house and saw the deceased with bleed injury corroborates the evidence of PW2. Similarly, the portion of the evidence of PWs 3, 4 and 6 to the extent that immediately after the incident, they have reached the spot and saw the deceased with bleeding injury also corroborates the evidence of PW2. Similarly, the evidence of PW5 that she heard the cry of the mother of the deceased and on reaching the spot, saw the deceased in a pool of blood also could be believed. Therefore, _**Crl.Appeal 382/2018**_ 18 from the evidence of Pws 1 to 6 the prosecution has succeeded in proving that the 1[st] accused inflicted a stab injury on the chest of deceased on 5.4.2008 at about 8.30 pm. 26. The trial court found that the death of the deceased was caused by the act of the accused and such act was done by the accused with the intention of causing death of the deceased. In order to come to the above conclusion, the trial court has relied upon the nature and size of the injury, the part of the body of the deceased, wherein the injury was inflicted, exhortation of the 2[nd] accused to kill the deceased, immediately before the incident and also the fact that at the time of inflicting injury, the deceased was caught from behind by the 2[nd] accused. In order to ascertain the intention of the accused persons in that respect, it is necessary to look into the nature and size of the injury, the nature and size of MO1 as well as damage caused by the injury to the deceased. 27. PW13 was the Assistant Surgeon, Taluk Headquarters Hospital, Pulinkunnam, who had examined the deceased at first, at about 9 p.m. on 5.4.2008 and issued Exhibit P8 wound certificate. He has noticed a deep penetrating wound on the right infra auxiliary area of the deceased. Since there was severe bleeding, blood pressure was lowering and pulse rate was very high, the patient was immediately referred to the Medical College _**Crl.Appeal 382/2018**_ 19 Hospital, Alappuzha, after giving first-aid. It is interesting to note that on the same day, at about 9.20 pm., PW13 had examined the 2[nd] accused and issued Exhibit D8 wound certificate. PW13 noticed a lacerated would on the scalp at parieto-occipital area and abrasion on the right knee of the 2[nd] accused. 28. PW12 was the Lecturer in Surgery, Medical College Hospital, Alappuzha, who had examined the deceased at 9.35 p.m. on 5.4.2008 and issued Exhibit P7 discharge certificate. According to him, the patient was admitted as inpatient and discharged on 6.4.2008, as the condition of the patient deteriorated after surgery. According to PW12, there was ' _an incised wound over right lateral aspect of chest approximately 6 cm x 4 cm piercing inter costal muscle entering thorax and piercing diaphragm and injuring liver. There was hemoperitoneum. Diaphragm repaired. Liver suturing done. 4 units of blood given. Post operatively, general condition deteriorated. The patient was referred to higher centre on 6.4.2008.”_ 29. PW11 was the Assistant Professor of Forensic Medicine, Medical College, Kottayam, who had conducted the postmortem examination on the body of the deceased on 7.4.2008 at about 11.20 a.m. and issued Exhibit P6 postmortem certificate. The main injury noticed by PW11 on the body of the deceased was: _“ Incised sutured penetrating wound 7cm long obliquely placed on the right side of front outer aspect and adjoining area of back of_ _**Crl.Appeal 382/2018**_ 20 _chest. Its upper inner front end 11 cm below armpit and 20 cm outer of midline. Cutting obliquely through the 8[th] rib and its corresponding intercostal space the wound entered the chest cavity. The right dome of diaphragm was seen sutured for a length of 8 cm. Corresponding to it the front aspect of right lobe of liver showed a sutured wound 9 cm long. The general direction of wound was downward forwards and to left for a total minimum depth of 11_ _cm. Chest cavity contained 200 ml fluid blood. Abdominal cavity contained 600 ml of blood clots beneath the right dome of diaphragm and overlying liver. Right lung was pale (surgically modified wound)”_ . In addition to the same, there was an abrasion 1x 0.5 cm on the inner aspect of right big toe. According to PW11, the cause of death is _“death was due to penetrating injury involving the chest and abdomen.”_ After examining MO1 steel knife, PW11 deposed that injury No.1 can be caused by using MO1 knife and also that injury No.1 is sufficient enough to cause death. 30. Therefore, from the evidence of Pws 1 to 6, 11 to 13 and Exts.P 6 to 8 documents it can also be concluded that, in furtherance of the common intention of A1 and 2, the 1st accused inflicted a deep penetrating injury on the chest of deceased Suresh, by stabbing him with MO1 knife, a lethal weapon, with the knowledge that he is likely by such act to cause his death. It has also been proved that as a result of which, death of the deceased was caused, and as such the same amounts to culpable homicide as defined under _**Crl.Appeal 382/2018**_ 21 Section 299 of IPC. 31. Therefore, the next question to be considered is whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of murder contained in S.300. In order to ascertain whether the facts proved brings the case within the ambit of any of the four clauses of the definition of murder contained in S.300, the most crucial factor is the intention of the accused. Since it is the state of mind of the accused, we will not get any direct evidence to prove the same. Instead, we will have to depend upon the surrounding circumstances. 32. The distinction between murder and culpable homicide not amounting to murder was considered in various decisions by the Apex Court as well as this court. In the decision in **State of A.P. v. Rayavarapu Punnayya and Another,** AIR 1977 SC 45, in paragraph 21 the Apex Court concluded that: _“From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder,' on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as_ _**Crl.Appeal 382/2018**_ 22 _defined in S.299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of S.300, Penal Code is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of murder' contained in S.300. If the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of S.304, depending. respectively, on whether the second or the third Clause of s.299 is applicable. If this question is found in the positive, but the case comes, within any of the exceptions enumerated in s. 300, the offence would still be 'culpable homicide not amounting to murder' punishable under the First Part of s.304, Penal Code.”_ 33. In the decision in **Virsa Singh v. State of Punjab** , AIR 1958 SC 465, the Apex Court had occasion to consider how the intention is to be inferred even in a case of single injury. In paragraph 16 the court held that: _“16 …....The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence_ _**Crl.Appeal 382/2018**_ 23 _of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question. ”_ 34. The scope of clause thirdly of S.300 IPC was discussed by the Supreme Court in **Virsa Singh** (supra) and held in paragraph 12 that: _“To put it shortly, the prosecution must prove the following facts before it can bring a case under S.300 3rdly " ; First, it must establish, quite objectively, that a bodily injury is present ; Secondly, the nature of the injury must be proved; These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender._ 35. In a recent decision in **Anbazhagan v. State,** AIR 2023 SC 3660, after analyzing a plethora of decisions, the Apex Court has summarised the principles to be followed in ascertaining the intention of the accused, in paragraph 60 as follows: _**Crl.Appeal 382/2018**_ 24 _“Few important principles of law discernible from the aforesaid discussion may be summed up thus:-_ _(1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused. To illustrate : 'A' is bound hand and foot.”_ _'B' comes and placing his revolver against the head of 'A', shoots 'A' in his head killing him instantaneously. Here, there will be no difficulty in holding that the intention of 'B' in shooting 'A' was to kill him, though only single injury was caused. The case would, therefore, be of murder falling within Clause (1) of Section 300 of the IPC. Taking another instance, 'B' sneaks into the bed room of his enemy 'A' while the latter is asleep on his bed. Taking aim at the left chest of 'A', 'B' forcibly plunges a sword in the left chest of 'A' and runs away. 'A' dies shortly thereafter. The injury to 'A' was found to be sufficient in ordinary course of nature to cause death. There may be no difficulty in holding that 'B' intentionally inflicted the particular injury found to be caused and that the said injury was objectively sufficient in the ordinary course of nature to cause death. This would bring the act of 'B' within Clause (3) of Section 300 of the IPC and render him guilty of the offence of murder although only single injury was caused._ _(2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated in that section. In the event of the case_ _**Crl.Appeal 382/2018**_ 25 _falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC._ _(3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is ‘guilty intention,’ whereas the second part would apply when there is no such intention, but there is ‘guilty knowledge’._ _(4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder._ _(5) Section 304 of the IPC will apply to the following classes of cases: (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that_ _**Crl.Appeal 382/2018**_ 26 _Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression 'sufficient in the ordinary course of nature to cause death' but is of a lower degree of likelihood which is generally spoken of as an injury 'likely to cause death' and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death._ _To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC._ _(6) The word 'likely' means probably and it is distinguished from more 'possibly'. When chances of happening are even or greater than its not happening, we may say that the thing will 'probably happen'. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death._ _(7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300_ _**Crl.Appeal 382/2018**_ 27 _of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC._ _(8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack._ _(9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries._ _(10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each_ _**Crl.Appeal 382/2018**_ 28 _case. (11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies. (12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC.”_ 36. In the light of the above decisions it can be seen that in this case the intention of the appellant is to be drawn from the proved circumstances of the case, having regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack. 37. MO1 is a steel knife with sharp edge having a total length of 29 c.m. and blade portion has a length of 18 cm and a width of 4 cm. Considering the size, the length and width of blade, it can be seen that MO1 is a lethal weapon. At the time of inflicting the injury, the 2[nd] accused held the deceased from behind, to enable the 1[st] accused to inflict the injury. It _**Crl.Appeal 382/2018**_ 29 appears that the 2[nd] accused also exhorted the 1[st] accused to kill the deceased, while holding him from behind. It was at that time, the 1[st] accused inflicted the stab injury on the chest of deceased. The above blow has resulted in causing a deep penetrating injury on the chest having a depth of 7 cm. Though only one blow was inflicted, due to it’s impact, injuries were also caused to the chest cavity, diaphragm and the liver. In Exhibit P6 postmortem certificate, PW11 has noticed a sutured wound 9 cm long on the front aspect of right lobe of the liver and 8 c.m. long injury on the diaphragm. From the evidence of PWs 11, 12 and 13 and from Exhibits P6, 7 and 8 it is revealed that the injury inflicted on the body of the deceased by the 1[st] accused is very serious in nature. In this context, it is also to be noted that due to the impact of the above injury, the deceased died immediately on the next day, in spite of surgical intervention, without any delay. It was in the above context the trial court found that 1[st] accused has inflicted the injury using MO1 with the intention of causing death of the deceased. 38. It was argued by the learned counsel for the appellant that though there was opportunity for the 1[st] accused to inflict more injuries on the body of the deceased, he had inflicted only a single injury and as such it cannot be presumed that he had any intention to cause the death of the deceased. On the other hand, the learned Public Prosecutor would argue that even though there is only a single injury, the same was so fatal and grave enough in resulting in _**Crl.Appeal 382/2018**_ 30 death of the deceased on the succeeding day. In spite of emergent surgery performed immediately after the incident and the patient was taken to Medical College Hospital, Alapuzha and thereafter to Medical College Hospital Kottayam, the doctors could not save his life as the injury inflicted was sufficient in the ordinary course of nature to cause death of the victim. Further, he would argue that before the commission of the present incident, the accused persons threatened the deceased of evil consequences and just before the infliction of injury, the 2[nd] accused exhorted the 1[st] accused to kill the deceased, from which the intention to do away with the deceased can be presumed. 39. As argued by the learned counsel for the appellant, in this case, the appellant has inflicted only one stab injury on the body of the deceased, though there was enough opportunity to inflict more. At the same time, the injury inflicted on the body of the deceased is very much fatal and deadly. According to PW11, the doctor who had conducted autopsy, the injury in this case is involving the front and back of chest; that means, the trunk portion of the body and back of chest. 40. Even if it is assumed that the appellant had no intention to cause the death of the victim, since he had stabbed the deceased using a deadly weapon like MO1, he had the intention to cause bodily injury on the body of _**Crl.Appeal 382/2018**_ 31 the deceased. Since at the time of inflicting the bodily injury the deceased was held from behind by the 2[nd] accused, the appellant had the option to chose any part of his body on the front side, to inflict the injury. While exercising the option, he had chosen the chest portion of the deceased, which is a vital part of the body. As per Ext.P6 postmortem certificate, the general direction of the injury inflicted had a total minimum depth of 11 c.m. MO1 steel knife with blade portion having 17c.m x 4 c.m. and total length of 29 c.m. is a very strong and deadly weapon. Therefore, for inflicting such a deep injury at such a vital part he must have used maximum force. In the light of the above circumstance, it is evident that the injury intended to be inflicted by the appellant on the chest of the deceased is sufficient in the ordinary course of nature to cause death of the deceased and as such the same will come under clause 3 of Section 300 of IPC. 41. The appellant has no case that his act will come within any of the exceptions of Section 300 of IPC. From the evidence available on record also it can be seen that at first, at the marriage reception hall it was the 1[st] accused who first threatened PW1 and the deceased while they were inside the hall and then assaulted the deceased when he came out of the hall. Then near the culvert also, on seeing PW1 it was the accused persons who went towards him for attacking him. At the time when they attacked the deceased with MO1 knife also there was no provocation, from his side. _**Crl.Appeal 382/2018**_ 32 42. The parties are neighbours known to each other for several years and hence the question of identity was not raised before us. No other grounds were also raised by the learned counsel for the appellant, at the time of arguments. In the above circumstance, the trial court is justified in holding that the accused persons have committed the offence of murder of deceased Suresh in furtherance of their common intention, punishable under Section 302 read with S.34 of IPC. 43. It appears that the trial court has charged the accused persons under Section 323 of IPC also, in addition to Section 302 IPC. Further, they were convicted and sentenced under Section 323 in addition to Section 302 IPC. Section 71 of IPC states that where any offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishments of more than one of such offences, unless expressly provided. It further states that when offence falls within two or more separate definitions of offences or where several acts, of which one or more than one would, by itself or themselves constitute an offence, constitute, when combined, a different offence, the offender shall not be punished with a more severe punishment than the court which tries him could award for any one of such offences. 44. In a recent decision in **Satheeshkumar @ Kari Satheesh v.** _**Crl.Appeal 382/2018**_ 33 **CBI,** 2024 KHC Online 211, another Division Bench of this Court (in which one of us was a party) had occasion to consider whether the accused who was convicted and sentenced under Section 302 IPC can be again punished under Section 326 IPC. The Division Bench held that : _“....when an offence under Section 302 IPC has been established, it takes in the ingredients of the offence under Section 326 IPC, and the offences, though falling under two different definitions of offences, form a single transaction,_ _and the appellant cannot be convicted for both the offences.”_ 45. In this case also, when the offence under Section 302 IPC is proved, it takes within it's sweep the ingredients of the offence under Section 323 IPC also. In the above circumstance, since the accused was punished under Section 302 IPC, no separate punishment can be awarded to them under Section 323 IPC. 46. In the above circumstances, the conviction and sentence of the appellant under section 323 IPC is liable to be set aside. At the same time, since the prosecution has succeeded in proving the offence under Section 302 read with S.34 IPC, conviction and sentence under Section 302 IPC is liable 34 ## _**Crl.Appeal 382/2018**_ to be sustained. Since the trial court has awarded only the minimum punishment of imprisonment for life, and a fine of Rs.50,000/-, we do not find any grounds to interfere with the sentence also. Points answered accordingly. In the result, this appeal is allowed in part as follows: The conviction and sentence against the appellant under Section 323 IPC is set aside. The appellant is acquitted of the offence under Section 323 IPC., under Section 386 (b)(i) Cr.P.C. The conviction and sentence under Section 302 read with S.34 IPC is sustained. Sd/- ## **P.B. Suresh Kumar, Judge** **Sd/-** **C. Pratheep Kumar, Judge** Mrcs/ sou.