Shaji s/o Sukumaran Nair v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.HARIPRASAD** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **THURSDAY, THE 07TH DAY OF NOVEMBER 2019/16TH KARTHIKA, 1941** ## **CRL.A.No.995 OF 2016** **AGAINST THE JUDGMENT IN SC 326/2015 DATED 19-08-2016 OF VI ADDITIONAL SESSIONS COURT, ERNAKULAM** **CP.23/2014 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, ERNAKULAM** **CRIME No.827/2014 OF Ernakulam Central Police Station, Ernakulam** ## **APPELLANT/ACCUSED:** **SHAJI, S/O.SUKUMARAN NAIR, AGED 43 YEARS, KEEZHETHIL HOUSE, KANNADIKKADU, MARADU POST, MARADU, ERNAKULAM DISTRICT, IN CUSTODY AT CENTRAL PRISON, VIYOOR,PIN-680 010.** **BY ADVS. SRI.MANJU ANTONEY SRI.KISHORE KUMAR.K.S SRI.R.ANAS MUHAMMED SHAMNAD SMT.P.MAMATHA SRI.I.YOHANNAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY CIRCLE INSPECTOR OF POLICE, ERNAKULAM CENTRAL THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **MR.S.U.NAZAR, SR.PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.995 OF 2016** ..2.. ## **JUDGMENT** ## A.Hariprasad, J. Aggrieved by the conviction and sentence imposed on the accused by the Additional Sessions Judge-VI, Ernakulam in S.C.No.326 of 2015 under Section 302 of IPC, he has come up in appeal. 2. Heard learned counsel for the appellant and learned Senior Public Prosecutor for the respondent-State. 3. Ext.P1 is the First Information Statement. PW1 lodged Ext.P1 FIS at 11.15 hours in the night on 25.4.2014 before the police. As per the averments in Ext.P1, the appellant on the said date at about 10 hours in the night attacked deceased Santhosh and inflicted stab injuries by using a cobbler's needle resulting in his death. The incident was on a footpath in front of Ernakulam South Railway Station. PW1 was running a lottery agency business. He saw the incident since there was enough light at the place of occurrence. Lot of persons converged at the place of occurrence and somebody informed the police about the **CRL.A.No.995 OF 2016** **==> picture [22 x 9] intentionally omitted <==** incident. The appellant was restrained at the place and police took him in jeep at about 10.45 hours in the night. Somebody took the deceased in an autorickshaw to a hospital and PW1 received information that the injured succumbed to injuries shortly after the incident. 4. When PW1 was examined, he fully supported the recitals in Ext.P1. It has come out in evidence that the appellant was a cobbler doing his job in front of South Railway Station, Ernakulam. The deceased was engaged in sale of tender coconuts near Shiva Temple, Ernakulam slightly away from the place of occurrence. Both the appellant and deceased used to sleep in South Railway Station, Ernakulam. According to the testimony of PW1, on 25.4.2014 at about 10['o] clock in the night, he saw the appellant and deceased engaged in a scuffle. Both of them moved pushing each other to the front side of Mughal hotel in the locality. PW1's shop was on the opposite side of the hotel. There was sufficient light to see the incident as it is part of a commercial area. When deceased- **CRL.A.No.995 OF 2016** **==> picture [22 x 9] intentionally omitted <==** Santhosh fell on to the road, PW1 rushed to that place and found the appellant pouncing on the deceased and holding his neck. Thereafter, he stabbed the deceased with cobbler's needle on chest and neck. Immediately, the matter was informed to police and the appellant and deceased were removed to police station and hospital respectively. 5. In cross-examination, PW1 adhered to the versions in Ext.P1 as well as the matters spoken to by him in the chiefexamination. It was tried to be elicited from PW1 that the deceased was a quarrelsome person and he was intoxicated at the time of incident. These suggestions were denied by PW1. Despite cross-examination, PW1 adhered to his version that the appellant was holding cobbler's needle in his hand and he used the same for inflicting the injuries noted on Ext.P8 postmortem certificate. 6. PW2 is another eye witness who knew the deceased for about 20 years. He also deposed that the deceased was engaged in sale of tender coconuts in front of Shiva **CRL.A.No.995 OF 2016** **==> picture [22 x 9] intentionally omitted <==** Temple, Ernakulam. PW2 was working with the deceased almost one month prior to the incident. PW2 also deposed that the deceased used to sleep in South Railway Station, Ernakulam. PW2 knew the appellant also prior to the incident. He deposed that, on 25.4.2014, after closing their business, the deceased and PW2 proceeded towards South Railway Station, Ernakulam and on the way they purchased food packets. The deceased went to the South Railway Station side and started talking to PW5. At that time, the deceased, appellant, PW5 and PW2 were present. There was some dispute between PW5 and the appellant. It appears that the deceased intervened in the matter. There ensued a fight between the appellant and deceased. PW2 intervened and separated the adversaries. Thereafter, PW2 went to buy a bundle of 'beedi'. When he came back, he found the appellant hitting the deceased and stabbing him with cobbler's needle (MO1) on chest and neck. At that time, the appellant was sitting on the body of the deceased. The appellant was **CRL.A.No.995 OF 2016** **==> picture [22 x 9] intentionally omitted <==** separated from the deceased and the deceased was taken to hospital in an autorickshaw. PW2 identified MO1 cobbler's needle which was said to have been used for assault. Santhosh died on the way to hospital. This witness identified MO2 dhothi worn by the deceased. He also stated that there was enough light including the street light in the area to see the entire transactions. 7. Despite cross-examination, no worthwhile material could be elicited from this witness to show that the appellant was not the aggressor. It was attempted to be brought out in cross-examination that the deceased provoked the appellant prior to the incident for which PW2 answered in the negative. Testimony of PWs.1 and 2 are supportive to one another. 8. PW3 is the other witness who deposed about the incident. He is also an eye witness. He also deposed that the incident was on 25.4.2014. He along with one Ravi was sleeping in the veranda of a closed shop near South Railway Station, Ernakulam. In the push and pull, both the appellant **CRL.A.No.995 OF 2016** **==> picture [22 x 9] intentionally omitted <==** and deceased fell on their back, while they were sleeping, and therefore they moved away from the place. In the push and pull, the combatants moved to the side of Mughal hotel and the deceased fell on the footpath. At that time, the accused stabbed him with MO1 needle causing the fatal injuries. This witness also did not budge on the suggestion by the defence that the deceased was the aggressor. According to him, the appellant inflicted the fatal injury on the deceased by using MO1 needle. 9. PW4 is a witness to Ext.P2 inquest report. 10. PW5 is another witness who spoke about the incident in support of the prosecution case. He is also a witness to Ext.P2 inquest report. According to his testimony, on 25.4.2014 during night, the appellant, in an inebriated mood, started making problems in the area and he caused nuisance to PW5. He was vending lottery tickets during that time. The appellant made a scene at about 8.30 hours in the night in front of his shop. Therefore, he decided to close the **CRL.A.No.995 OF 2016** **==> picture [22 x 9] intentionally omitted <==** business for that day. This fact was informed to the deceased. The appellant was uttering filthy words loudly in a drunken state. At that time, the deceased went to the appellant and pushed him. Thereafter, he heard that the appellant had stabbed the deceased resulting in the death of Santhosh. He only witnessed the push and pull between the parties. It has come out in evidence that they were separated by intervention of some prosecution witness, but later they resumed the fight which resulted in the stabbing incident. 11. PW6 was also a witness to the altercation between appellant and deceased and he also testified about the scuffle ensued in the course of altercation. He did not specifically depose about the stabbing incident, but he saw the appellant sitting on the body of the deceased when he fell down. This witness also lends support to the prosecution case to some extent. 12. PW7 was the Doctor who examined the deceased and declared him dead. She issued Ext.P3 Death Intimation. **CRL.A.No.995 OF 2016** **==> picture [22 x 9] intentionally omitted <==** 13. PW8 is the Doctor who collected scalp hair and blood from the appellant after his arrest. 14. PW9 is a witness to the recovery of MO1 cobbler's needle from the possession of appellant. Ext.P4 is the mahazar pertaining to this fact. Despite cross-examination there is no dent or discredit in the testimony of this witness. 15 **.** PW10 was the Village Assistant, Ernakulam who prepared Ext.P5 site plan. PW11 is a witness to Ext.P6 mahazar. PW12 was a Civil Police Officer attached to Central Police Station, Ernakulam. While he was in aid post duty on 25.4.2015 in South Railway Station, Ernakulam a passenger informed him that a scuffle was going on between two persons on the footpath in front of the South Railway Station, Ernakulam. When he went to the informed place, he found a person reeling under pain lying on the road. He had bleeding injuries. He was sent to the hospital in an autorickshaw. He found the appellant standing by the side of the fallen person and he had MO1 needle in his possession. The appellant was **CRL.A.No.995 OF 2016** **==> picture [28 x 9] intentionally omitted <==** restrained by PW12 until the police jeep arrived at the place. In cross-examination no worthwhile material could be elicited to discredit the prosecution case. 16. PW13 received the dead body after postmortem. Since no relatives claimed the body, it was cremated after three days. 17. PW14 conducted autopsy on the body of the deceased. Ext.P8 is the postmortem certificate. There are altogether 8 antemortem injuries out of which injury Nos.1 to 5 are incised penetrating wounds inflicted, according to prosecution, by using MO1 needle. They are as follows:- ## _**- INJURIES (Ante mortem)**_ _1. Incised Penetrating wound 0.6x0.2cm, on right side of front of chest its upper rounded end being 8cm to right of midline and 13cm below collar bone. The other end was found sharply cut. The chest cavity was found penetrated through sixth intercostal space. The wound was directed backwards for a depth of 2cm._ _2. Incised wound 0.4x0.2x0.5cm on left side of front of chest, its upper rounded end 3cm to left of midline and 15cm below collar bone. The other end was sharply cut._ _3. Incised Penetrating wound 0.8x0.2cm, obliquely_ **CRL.A.No.995 OF 2016** ..11.. _placed on left side of upper part of chest 5cm outer to midline and just above middle of collar bone. Its upper end was rounded and lower end sharply cut. It pierced the soft tissues of neck and terminated by piercing the subclavian vein after traversing through the soft tissues behind collar bone. The wound was directed downwards and backwards for a depth of 4.5cm._ _4. Incised Penetrating wound 0.5x0.3cm, on left side of neck, 5cm to left of midline and 2cm above collar bone. Its upper end was rounded in shape and lower end sharply cut. The chest cavity was found penetrated though first intercoastal space and pierced upper lobe of left lung. The wound was directed backwards and downwards for a minimum depth of 6.5cm._ _Left chest cavity contained 900gm of blood clot and 800ml of fluid blood. Left lung was partially collapsed._ _5. Incised wound 0.8x0.2x0.5cm on outer aspect of left arm 8cm above elbow.”_ 18. Injury Nos.6 to 8 are contusions and abrasions which must have been caused in the push and pull on a hard surface. As per Ext.P8, the cause of death was due to penetrating injuries sustained to chest of the deceased. PW8 proved Ext.P8 to the hilt. When cross-examined PW8 answered that injury Nos.1 to 5 noted in Ext.P8 could not have been **CRL.A.No.995 OF 2016** **==> picture [28 x 9] intentionally omitted <==** caused by a fall on a needle like MO1. She justified her finding saying that unless force was applied, the needle would not have penetrated that much deep into human body. We find no reason to accept the defence case that the fatal injuries could have sustained in the course of a melee. 19. PW15 was the ASI attached to the Central Police Station, Ernakulam at the material time. He apprehended the appellant from the side of South Railway Station, Ernakulam and he was taken to Central Police Station. He proved certain mahazars which may not be much relevant for our purpose. 20. PW16 was the Sub Inspector of Police, Central Police Station. He recorded the FIS and registered Ext.P12 FIR. Cross-examination on this witness did not yield any result beneficial to the appellant. 21. PW17 is the Investigating Officer. He took over investigation immediately after the incident. He proved preparation of Ext.P2 inquest report, collection of material objects and questioning material witnesses. MO1 needle along **CRL.A.No.995 OF 2016** **==> picture [28 x 9] intentionally omitted <==** with other items were submitted before the Magistrate's court with a forwarding note for sending them to be analysed by Forensic Science Laboratory, Thiruvananthapuram. He proved Ext.P20 FSL report. As per Ext.P20 report no blood was detected on MO1 needle. Despite that the testimony of all the prosecution witnesses would show that MO1 needle was used by the accused for stabbing the deceased. Moreover, PW14 also has spoken about the probability of using a weapon like MO1 for causing injuries noted on the postmortem certificate. 22. PW17's testimony would show regularity of the steps taken in the investigation. Though he was crossexamined at length, we find no fault or irregularity in his investigation. On considering the entire aspects revealed by the prosecution witnesses we are of the view that the prosecution has established the fact that at the alleged time and place on 25.4.2014 the appellant had inflicted injuries, noted as injury Nos.1 to 5 in Ext.P8 postmortem certificate, on the victim by using MO1. **CRL.A.No.995 OF 2016** **==> picture [28 x 9] intentionally omitted <==** 23. The question to be considered is whether conviction of the appellant under Section 302 of IPC is legal and proper. 24. The learned counsel for the appellant would contend that, if at all the entire prosecution case is accepted, it cannot be reckoned as murder defined under Section 300 of IPC. According to him, even if the entire evidence of the prosecution is accepted, it will be only culpable homicide not amounting to murder falling within Section 304 Part II of IPC. We have no hesitation to reject this contention because the evidence would show that there was a push and pull between the appellant and deceased and persons had intervened to separate them. After some time they resumed the fight. The question is whether the appellant had sufficient time to cool down. The prosecution would allege that the appellant restarted the fight for second time with MO1 needle in his possession. According to the learned counsel, this shall not be taken as a reason to find him guilty under Section 302 of IPC since large number of precedents on the point would go to **CRL.A.No.995 OF 2016** ..15.. show that, at the most, it can be held to be an incident of stabbing done without any premeditation in a sudden fight and in the heat of passion upon a sudden quarrel. It is also submitted that the appellant had not taken any undue advantage or acted in a cruel or unusual manner. It is therefore argued that this will fall within Exception 4 to Section 300 of IPC which reads as follows:- _“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's having taken undue advantage or acted in a cruel or unusual manner._ _Explanation: It is immaterial in such cases which party offers the provocation or commits the first assault.”_ 25. To fortify this contention some decisions of the apex court are cited by the learned counsel for the appellant. Relying on **Ravindra Shalik Naik and others v. State of Maharashtra** [AIR (2009) SC 1709] it is contended that this **CRL.A.No.995 OF 2016** **==> picture [28 x 9] intentionally omitted <==** is a case wherein conviction of the appellant under Section 302 of IPC cannot be sustained. Facts in the case would show that despite having a cooling time the appellant therein attacked the deceased armed with weapons like axe, knife, etc. and committed the murder. Even in that factual context the Supreme Court held thus:- _“11. The Fourth Exception of S.300, IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self control, in case of Exception 4, there is only that heat of passion which clouds men's sober reasons and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the_ **CRL.A.No.995 OF 2016** ..17.. _dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception.1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acting in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception.4 all the ingredients mentioned in it must be found. It is to be noted_ **CRL.A.No.995 OF 2016** ..18.. _that the 'fight' occurring in Exception.4 to S.300, IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception.4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'. These aspects have been highlighted in Dhirajbhai Gorakhbhai Nayak v. State of Gujarat, 2003 (5) Supreme 223 : 2003 AIR SCW 3569, Parkash Chand v. State of H.P., 2004 (11) SCC 381 :2004 AIR SCW 4650, Byvarapu Raju v. State of A.P. and Another, 2007 (11) SCC 218: 2007 AIR SCW 825 and Buddu Khan v. State of_ **CRL.A.No.995 OF 2016** **==> picture [28 x 9] intentionally omitted <==** _Uttarakhand (SLP (Crl.) No.6109/08 disposed of on 12.1.2009).”_ 26. Another decision relied on by the learned counsel for the appellant is **Sukhbir Singh v. State of Haryana** [AIR (2002) SC 1168] where the Supreme Court held in a similar case thus:- _“18. In the instant case, concededly, there was no enmity between the parties and there is no allegation of the prosecution that before the occurrence, the appellant and others had premeditated. As noticed earlier, occurrence took place when Sukhbir Singh got mud splashes on account of sweeping of the street by Ram Niwas and a quarrel ensued. The deceased gave slaps to the appellant for no fault of his. The quarrel appeared to be sudden on account of heat of passion. The accused went home and came armed in the company of others though without telling them his intention to commit the ultimate crime of murder. The time gap between the quarrel and the fight is stated to be few minutes only. According to Gulab Singh (PW 10) when Sukhbir Singh was passing in the street and some mud got splashed on his clothes, he_ **CRL.A.No.995 OF 2016** ..20.. _abused Ram Niwas. They both grappled with each other whereupon Lachhman (deceased) intervened and separated them. Accused Sukhbir had abused Lachhman who gave him two slaps. The said accused thereafter went to his home after stating that he would teach him a lesson for the slaps which had been given to him. After some time he, along with other accused persons, came at the spot and the fight took place. His own house is at a different place. There is a street in between his house and the house of Lachhman (deceased). On the northern side of his house, the house of the appellant is situated. Similarly Ram Niwas (PW11) has stated that after the quarrel the accused went towards his house and within a few minutes he came back with other accused persons. It is, therefore, probable that there was no sufficient lapse of time between the quarrel and the fight which means that the occurrence was "sudden" within the meaning of Exception 4 of S.300 IPC.”_ 27. Yet another decision cited by learned counsel for the appellant is **State of U.P. v. Shyam Veer and Others** [AIR (2005) SC 4108]. That was also a case where an initial fight **CRL.A.No.995 OF 2016** **==> picture [28 x 9] intentionally omitted <==** was put an end to by intervention of other persons and later one party unleashed violence on the other, where the Supreme Court found that the view taken by the High Court convicting the appellant under Section 304 Part I of IPC cannot be faulted. 28. Having regard to the legal principles and precedents mentioned above we are of the view that totality of evidence would unequivocally show that the appellant inflicted fatal injuries on the deceased by using MO1 needle. But there is no clear cut evidence as to who started the altercation. According to testimony of PW5, the deceased went to the appellant and questioned as to why he caused problems to PW5 in running his business. Thereafter the fight ensued. The combatants were separated and they resumed fight after 10 to 15 minutes. There is no material on record to find as to who started the fight for second time. However, in the heat of passion the appellant must have used MO1 needle to inflict stab injuries on the vital parts of the deceased. Still, we do not find any **CRL.A.No.995 OF 2016** **==> picture [28 x 9] intentionally omitted <==** material to hold that the attack was with a premeditation to commit murder of the deceased. Therefore, we find that this is a fit case wherein the conviction of the appellant should be altered to one under Section 304 part I IPC. In the result, the appeal is partly allowed. Conviction of the appellant under Section 302 of IPC is set aside. Instead, he is found guilty for an offence of culpable homicide not amounting to murder falling within Section 304 Part I IPC. He shall undergo rigorous imprisonment for a period of ten years and shall also pay fine of Rs.5,000/- failing which he shall undergo imprisonment for a further period of three months. He is entitled to get set off under Section 428 of Cr.P.C. Sd/- **A.HARIPRASAD, JUDGE** Sd/- **N.ANIL KUMAR, JUDGE** skj