Shaju s/o Ouseph v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **&** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 12TH DAY OF MARCH 2020 / 22ND PHALGUNA, 1941** **CRL.A.No.172 OF 2016** **AGAINST THE ORDER/JUDGMENT IN SC 745/2007 DATED 01-02-2016 OF ADDITIONAL DISTRICT COURT, THRISSUR** **AGAINST THE ORDER/JUDGMENT IN S.C.NO.745/2007 DATED 01-02-2016 OF FIRST ADDITIONAL SESSIONS COURT, THRISSUR** **CRIME NO.265/2006 OF Pavaratty Police Station , Thrissur** ## **APPELLANT/ACCUSED:** **SHAJU S/O.OUSEPH, KOOTHOOR VELLATTUKARA VEEDU, CHIRATTAKKADAVU, ENAMAVU, VENKITANGU VILLAGE.** **BY ADVS. SRI.P.VIJAYA BHANU (SR.) SMT.MITHA SUDHINDRAN SRI.P.M.RAFIQ** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** ## **SR PP MR.ALEX M THOMBRA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A.No.172 OF 2016 2 ## **JUDGMENT** ## **Dated this the 12th day of March 2020** ## **A. Hariprasad, J.** Appellant is the accused in S.C. No.745/2007 before the Court of First Additional Sessions judge, Thrissur, who stands convicted for an offence under Section 302 IPC and sentenced to undergo imprisonment for life and to pay Rs.10,000/-. Default sentence is also imposed, in case he did not pay the fine. 2. Heard Sri.P. Vijayabhanu, learned Senior Counsel for the appellant and Sri. Alex M. Thombra, learned Senior Public Prosecutor for the State. 3. Prosecution case in short is that the appellant had an altercation with deceased Davis on 30.07.2006 at about 5.30 p.m from a toddy shop. It is borne out from the evidence that the deceased had slapped the accused/appellant from the toddy shop in the course of a wordy-duel. Accused, on account of that grudge towards the deceased, wanted to kill him. The incident happened at about 7.15 p.m. on the above date. The place of occurrence is the courtyard of PW2's house. It is the prosecution case that both the accused and the deceased had to pass through the courtyard of PW2 to reach their respective houses. After the CRL.A.No.172 OF 2016 3 incident in the toddy shop, the accused/appellant came to the house of PW2 and was sitting in the verandah. After sometime PW2 came and asked him to go away and then he went inside the house. Thereafter, he heard a wordy-duel from his courtyard. When he came out, he saw the accused and deceased engaged in an altercation from his courtyard. He separated them and asked both of them to go to their respective houses. Immediately, the appellant went home and came back with MO1 knife. After throwing away the sheath, he attacked the deceased. When deceased fell with face down, the accused inflicted a stab injury on the right side back of his chest, which caused his death. 4. In order to support the prosecution case, PWs 1 to 12 were examined and Exts.P1 to P13 were marked. Material objects are MO 1 to MO7. There was no defence evidence. 5. After considering the evidence and hearing both sides, the trial court convicted the appellant and imposed the aforementioned sentences. 6. The learned Senior Counsel submitted that the court below went wrong in appreciating the evidence and finding that the appellant is guilty of murder. 7. Per contra, learned Public Prosecutor submitted that the court below has correctly appreciated the evidence of PWs 1 CRL.A.No.172 OF 2016 4 to 3 to find that the appellant had inflicted fatal injuries on the deceased by using MO1 knife. According to the learned Public Prosecutor, the injury was inflicted by the appellant with an intention of kill the deceased. Therefore, the conviction and sentence are proper and legal. 8. Ext.P1 is the F.I.S. lodged by PW1. He knew the deceased and accused much prior to the incident. According to him, the incident happened at about 7 p.m on 30.7.2006. While he was passing through PW2's house, he heard a commotion from the side of PW2's house. He saw the deceased lying face down on the north-eastern side of the courtyard of PW2's house. He was crying out that the appellant had stabbed him. He was lying down with a bleeding injury on back of his chest. PW2 pushed the appellant and threw away MO1 to a nearby waterchannel. Thereafter, the injured was removed to a hospital in a vehicle. He was initially taken to San Jos Parish Hospital, Pavaratty. Since the injury was very severe, the hospital authorities advised to remove the deceased to a better hospital. Since they could not immediately get an ambulance to take the deceased to a better hospital, by efflux of time, the deceased died from the hospital. This version of PW1 could not be effectively challenged despite cross examination. Except some CRL.A.No.172 OF 2016 5 minor contradictions, we find no reason to disbelieve the testimony of PW1. 9. PW2 is the witness examined by the prosecution to prove the incident. He deposed that from his courtyard, the appellant stabbed the deceased with MO1 knife causing the fatal injury. It is come out through this witness that PW3, deceased and accused consumed toddy at about 6 p.m from a nearby toddy shop on 30.07.2006. A skirmish offence in the toddy shop. Thereafter, the accused, on the way to his house, sat for a while in the verandah of PW2's house. It is also come out in evidence that the appellant was in a drunken bout. Deceased also had smell of toddy at the time of incident as is evident from the postmortem certificate. PW3 also testifies regarding this aspect. PW2, on finding the accused sitting in his verandah, asked him to go home. Thereafter, the deceased came to his courtyard for going home. Again a fight ensued. PW2 asked the deceased also to go away. But both of them started a wordy-duel again from PW2's courtyard. Accused in fit of anger went home and came back with MO1 knife and stabbed the deceased from PW2's courtyard. All these aspects have been deposed to by PW2. After the incident, PW2 and other persons gathered at the place of occurrence, tried to arrest the bleeding from the wound suffered CRL.A.No.172 OF 2016 6 by the deceased. They tied clothes to stop bleeding. However, still the deceased was profusely bleeding. He was taken to a local hospital and thereafter he was attempted to be removed to a better hospital. By that time, the deceased succumbed to the injuries. Regarding the incident, PW2's testimony remains credible despite cross examination. 10. PW3 is the other witness examined by the prosecution to show that the deceased and appellant had consumed liquor from a nearby toddy shop. According to the testimony of PW3, at about 5.30 p.m on 30.07.2006, both the accused and deceased started drinking and thereafter a fight erupted between them. When the appellant showed an obscene gesture, the deceased questioned him. On that account a wordy-duel started. At that time, the accused attempted to kill the deceased by using a bottle in the toddy shop. They were separated and at that time the deceased bet the appellant on his cheek. The manager of the toddy shop sent the appellant out of the toddy shop. After sometime, the deceased also went away. At the time of leaving the toddy shop, appellant had threatened to teach the deceased a lesson. After this fight, the stabbing incident happened. 11. Learned Senior Counsel for the appellant pointed out that during cross examination of PW3 it was elicited that till CRL.A.No.172 OF 2016 7 6.45 p.m on the date of occurrence he was in the toddy shop. According to the defence case, PW3 had informed police that he had gone to toddy shop at about 6.30 p.m. It is the specific defence case that the prosecution advanced time to show that there was a considerable time gap between the first fight and actual incident. According to learned Senior Counsel, the entire transaction happened within a short time and all the actions and reactions are part of the same transaction. 12. The court below correctly relied on the testimony of these witnesses to find that the accused had attacked the deceased with MO1 knife resulting in fatal injuries. PW10 Dr. Rajaram conducted autopsy on the body of the deceased. Ext.P8 is the post-mortem certificate. The ante-mortem injuries noted thereon are as follows: “1. Incised penetrating wound 2x0.5 c.m horizontal over the back of right side of chest. Its left inner end 8.7 c.m outer to midline and its right outer end 17 cm below the shoulder. The inner end was cleanly cut and the outer end showed splitting of tissues. The wound had entered into the chest cavity by cutting the 5[th] intercostal muscle (2.8.x0.8cm). The wound terminated by entering into the back of upper outer aspect of lower lobe of right lung 13 cm outer to midline and 2 cm below its upper margin. The total minimum depth of the wound was 5 cm (up to the intercostal muscles). The wound was directed forwards and to the right. The right chest CRL.A.No.172 OF 2016 8 cavity contained 720 gms of blood clot and 750 ml of fluid blood. 2. Contusion 13x7.5x6 cm involving subcutaneous tissues and muscles over the front and right side of chest 4 cm outside to midline and 2 cm below the collarbone. 3. Multiple contusions over an area 12x9cmx0.5cm over the inner aspect of upper part of right arm 10 cm above elbow.” 13. PW10 had opined that the cause of death is due to the penetrating injury suffered by the victim on chest involving his right lung. Despite cross examination on PW10, his testimony remains believable. PW12 is the investigating officer. He has meticulously deposed to the steps taken in the investigation. Even though an attempt was made in the cross exponentiation of this witness to show that there are flaws in the investigation, we find no reason to discard the testimony of PW12. 14. PW8 is the Doctor, who proved Ext.P5 death intimation. Significance of this document is that it will show that the victim had reached the hospital at 7.15 p.m. Based on this document learned Senior Counsel would argue that the incident must have happened much prior to the time stated by the prosecution and this also would show that the whole events transpired within a short time. Testimony of PW12 would show that distance from the place of occurrence to the hospital, where CRL.A.No.172 OF 2016 9 PW8 was working, is about 10 – 12 kms. Normally, it would have taken 20 minutes. It is the minimum time required to reach the hospital, if there was no heavy traffic. All these aspects are highlighted by the learned Senior Counsel for the accused that to show that every actions alleged by the prosecution happened within a short time. 15. The testimony of these witnesses were taken into account by the learned Sessions Judge to find that the accused is responsible for inflicting the fatal wound on the deceased by using MO1 knife. The court below thought that he had an intention to kill the deceased as he was waiting in the verandah of PW2 to stab the deceased. 16. Per contra, learned Senior Counsel would contend that if at all we find that the accused had inflicted fatal injury, he cannot be held liable for murder as defined in Section 300 IPC and he is entitled to get the 4[th] exception to Section 300 IPC. According to him, stabbing alone cannot be taken as a single incident and it is a part of a series of transactions. According to the learned Senior Counsel, the appellant never intended to commit murder of the deceased and there was no premeditation to commit murder. The fight between them persisted for a long time and in a heat of passion and upon a sudden quarrel CRL.A.No.172 OF 2016 10 happened in the courtyard of PW2, the accused lost control and stabbed the deceased with MO1 knife. He did not take any undue advantage or he did not act in a cruel or unusual manner in the course of the transaction. To buttress his contentions, learned Senior Counsel reliance is placed on a decision of this Court rendered by a Division Bench in **Johny v. State of Kerala [2010 (1) KHC 585]** . The principle laid down is this: “The question whether a contumacious act was or was not committed in the heat of passion cannot be judged with the hind sight available to an objective subsequent evaluator in the cold and prosaic atmosphere of a Court room. The conduct of the offender has to be judged conscious of the compelling circumstances in which he acted. The expressions “undue advantage” and “cruel and unusual manner” must be reasonably understood in the context in which it appears in Exception 4 and not in any doctrine or rigid manner. It would be incorrect in law to deny the benefit of Exception 4 to an accused on the mere ground that injuries were inflicted on the unarmed victim with a weapon. That would be a too broad, and hence incorrect statement of law. For the offence to fall under S.300 IPC., the ingredients of S. 300 IPC will have to be satisfied. Fatal injuries must been inflicted before a case falls within the sweep of S. 300 IPC. Merely because serious injuries are inflicted, it cannot be lightly concluded that the offender had acted in a cruel or unusual manner. Every act which causes death and which falls under S.300 IPC can in one sense of the term be described to be cruel or unusual. Obviously, the expression 'cruel or unusual manner' is not used in that very ordinary sense in Exception 4. There must be allegations of unusual cruelty or unusual manner CRL.A.No.172 OF 2016 11 of infliction to attract the application of Exception 4. Merely because the acts resulted in fatal injuries and led to the death of the accused, it cannot possibly be contended that Exception 4 will not be applicable. Such a contention would militate against the very relevance of Exception 4 as an exception to S.300 I.P.C. Repetition of the infliction need not necessarily be indicative in all cases of deliberation and non-existence of the heat of passion. In fact, it could be otherwise. The mere fact that three injuries were inflicted in quick succession evidently while the combat was going on may indicate conduct in frenzy in the heat of passion and cannot in these circumstances be held to be indicative of sufficient reason to deny the advantage of Exception 4 to the accused.” 17. Learned Senior Counsel vehemently contended that the accused did not act in a cruel or unusual manner. He did not intend to cause death is evident from the fact that there is only one stab injury, that too, in a depth of 5 c.m piercing the lung. Length of the blade of MO1, as per seizure mahazar, is nearly 28½ c.m. It is also pointed out that the injury was not inflicted with considerable force as is evident from the length of the weapon and depth of injury. 18. Having regard to the facts and circumstances, we find force in the argument that the accused, though had committed the act of stabbing, was not intending to commit murder of the deceased and therefore he is entitled to get the benefit of Exception 4 to Section 300 IPC. We therefore, modify the CRL.A.No.172 OF 2016 12 conviction and sentence in the following manner: In the result, the appeal is partly allowed. Conviction of the appellant under Section 302 IPC is set aside. Instead, he is convicted for culpable homicide not amounting to murder falling within Part I of Section 304 IPC. He shall undergo imprisonment for a period of 7 (seven) years for the said offence and pay a fine of Rs.50,000/- (Rupees fifty thousand only). The amount, if recovered, shall be paid to the legal heirs of the deceased under Section 357(1) Cr.P.C. If fine is not paid, the appellant shall undergo rigorous imprisonment for a period of one year. **Sd/-** **A.HARIPRASAD JUDGE** **Sd/-** shg **M.R.ANITHA JUDGE**