SURA @ SURENDRAN v. STATE OF KERALA

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN** **FRIDAY, THE 21ST JANUARY 2011 / 1ST MAGHA 1932** **CRL.A.No. 70 of 2007(C)** **--------------------------------** **SC.122/2005 of ADDL. SESSIONS COURT (FAST TRACK COURT-II, ADHOC), THRISSUR CP.174/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT, VADAKKANCHERY** **....................** **APPELLANT(S) :-** **----------------------** **SURA @ SURENDRAN, CONVICT No.3690, CENTRAL JAIL, KANNUR.** **BY ADV. SRI.DEEPU THANKAN** **RESPONDENT(S) :-** **-------------------------** **STATE OF KERALA** **SR. GOVT. PLEADER SRI. S.U.NAZAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **jvt** ## **PIUS C. KURIAKOSE & N.K.BALAKRISHNAN, JJ. ---------------------------------Crl.A. No.70 of 2007** **---------------------------Dated this the 21[st] day of January 2011** ## **J U D G M E N T** ## N.K.Balakrishnan, J. The appellant was convicted by Additional Sessions Judge (Fast Track Court-II), Thrissur for offence punishable under Section 302 IPC and was sentenced to imprisonment for life and also to pay compensation of Rs.1,00,000/- to the legal heirs of the deceased and in default to undergo rigorous imprisonment for one year. 2. The case of the prosecution can be stated in a nutshell as follows :- On 25.7.2004 at about 4 PM the accused and one Ponnan went to the Toddy Shop of one Sasikumar (PW3) situated in Vennur. They consumed toddy. While so, deceased Sabu reached there. Sabu and the accused also consumed stomach full of toddy. The accused then asked Sabu why he had helped persons who were involved in the Crl.A. No.70 of 2007 -: 2 :- murder of Mohandas, the brother of the accused. It resulted in altercation between them. They went out of the Toddy Shop. Scuffle continued while they were walking along the road. They fell down and rolled on the ground and reached some where near the pond called “Chettikulam”. As the accused and Sabu were seen quarrelling each other, Janammal, the wife of PW2 went to the house of Sabu and informed his inmates. PW1, the wife of Sabu immediately rushed to the scene, which is only a few metres away from that house. When she reached there she saw the accused sitting on the body of Sabu and inflicting a stab injury on the abdominal part of Sabu. She cried aloud. As the accused was attempting to inflict a second stab, she caught hold of his hand. There was a struggle to get hold of the knife from the accused and in that process PW1 also sustained injury. In the attempt made by PW1 to grab the knife its blade portion got detached and fell down. Father of Sabu and others reached there and they could push away and disengage the accused. Immediately two persons rushed to the junction, brought a Crl.A. No.70 of 2007 -: 3 :- vehicle in which Sabu was at first taken to Government Hospital, Pazhayannur. There he was examined by the Doctor (PW13). After giving first aid the injured was referred to a better hospital for treatment. From there, in another vehicle the injured was taken to Aswini Hospital. Immediate steps were taken for conducting laprotomy operation. At about 7.45 PM, when Sabu was on the operation table he succumbed to his injuries. PW2 an eye witness went to the police station and gave Ext.P1, the First Information Statement, based on which PW17, the Sub Inspector of Police registered Ext.P2, the First Information Report. PW18, the Circle Inspector of Police took over the investigation in this case. After conducting inquest in the morning of 26.7.2004, postmortem examination was conducted by Assistant Professor of Forensic Medicine, Medical College Hospital, Thrissur (PW15). The accused was arrested at a place near “bhajanamadam” at Kumbalakode at 4.15 PM on 26.7.2004. Based on the statement alleged to have been given by the accused MO1 knife (without handle) was found out from the Crl.A. No.70 of 2007 -: 4 :- pond (Chettikulam). After completing the investigation charge sheet was laid against the accused alleging commission of offence under Section 302 IPC to which he pleaded not guilty. 3. PW1 to PW18 were examined and Exts.P1 to P25 were marked. MO1 to MO9 were also identified and marked. When the accused was examined under Section 313 Cr.P.C., besides denying the prosecution evidence it was stated by him that he and the deceased Sabu were on very cordial terms and were active workers of the same political party. It was stated by him that he and the deceased had consumed stomach full of toddy from the toddy shop where Mr.Ponnan was also there. There were wordy altercations and subsequently a scuffle when they were on the road. Accused further stated that Sabu thereafter took a knife from his waist and stabbed him (the accused) and thereafter they rolled on the ground for getting grasp of the knife and in the course of that scuffle, Sabu happened to be beneath him when the handle of the knife happened to be in his hand (in the hand of Crl.A. No.70 of 2007 -: 5 :- the accused) and thereafter the handle was thrown off from his hand. It was stated by him that he was not aware how Sabu sustained injury and that he could know Sabu sustained injury only when others reached there. 4. Ponnan mentioned above was examined as DW1. Two other witnesses were examined as Dws.2 and 3. 5. The trial court on consideration of materials placed before it, recorded conviction and imposed sentence as aforementioned. 6. The appellant contends that the Addl. Sessions Judge has not appreciated the evidence properly. PW2 and his wife were eking out their livelihood by feeding ducks and were residing in a shed belonging to the family of deceased Sabu and as such he was interested in deposing against the accused. The evidence given by him was contradictory to what was stated in Ext.P1, the First Information Statement. The evidence given by PW1, the wife of deceased Sabu should not have been relied upon by the Court as she was interested in the success of the prosecution. Similarly the evidence of Crl.A. No.70 of 2007 -: 6 :- PW4, the father of deceased Sabu also should not have been accepted by the Court.. There are material contradictions in the evidence given by the prosecution witnesses. PW3 did not actually see the accused stabbing deceased Sabu. The evidence would only show that there was scuffle between the accused and the deceased Sabu and after they fell down they rolled on the ground and so there is practically no evidence to show that the accused stabbed the deceased with intend to cause his death. Therefore, the accused contends that the conviction and sentence passed against him are unsustainable. 7. We have heard the learned counsel for the appellant/accused and also the learned Prosecutor. The points for consideration are :- i) What was the cause of death of Sabu, the victim in this case? ii)Whether the accused stabbed Sabu with the intention to cause his death or with the intention to cause such bodily injury as the accused knew Crl.A. No.70 of 2007 ## -: 7 :- to be likely to cause the death of Sabu? iii)Whether the conviction and sentence passed against the accused are unsustainable on any of the grounds urged by the accused/appellant? 8. **Point No.1** :- Ext.P12 is the postmortem certificate issued by PW15, the Assistant Professor of Forensic Medicine and Deputy Police Surgeon at Medical College Hospital, Thrissur who conducted postmortem on the body of Sabu, the victim in this case on 26.7.2004. The two injuries noted as 1 and 2 were surgical injuries. Antemortem injuries 3 and 4 noted by PW15 in Ext.P12 are :- “3. Incised penetrating wound, 5 cm long, transverse over right side of front of abdomen, inner end touching injury number 2 at navel, sutured with 2 black sutures. On suture removal, injury numbers 2 and 3 (covered with cotton and plastured) were 3.8 cm deep, opening into abdominal cavity, through cut sutured muscle fibres underneath, cut separated minor nerves and vessels and cut peritoneal membrane underneath. 4. Incised transecting wound of jejunum, 240 cm Crl.A. No.70 of 2007 -: 8 :- from duodeno jejunal junction, suture anastamosed with catghut. Incised penetrating wound, 2 cm long, transverse of front wall of jejunum, 190 cm from former sutured with catghut. Incised wound 4 cm long, transfixing mesentry, transverse, cutting superior mesenteric artery and branches, sutures with catghut. Intestines pale 250 cc reddish fluid blood in abdominal cavity.” It was certified in Ext.P12 and was deposed by PW15 that the deceased died of incised penetrating wounds of abdomen (injury Nos.3 and 4). 9. Learned counsel for the accused submits that injury Nos.3 and 4 mentioned above could have been caused when Sabu and the accused rolled on the ground with MO1 knife (with handle) kept in his waist. That argument is unacceptable. PW15, the doctor who conducted post-mortem examination did not agree that those two deep penetrating injuries could be caused in the manner suggested by the defence. It was stated by P.W.15 that those injuries could be caused by a single stab also. The nature of the injury that it is a deep penetrating one would rule out the possibility of Crl.A. No.70 of 2007 -: 9 :- that injury being caused by rolling on the ground. It was stated by PW15 that the fatal injuries mentioned above could be caused by stabbing with MO1 with or without handle. Therefore, we have no hesitation to hold that the aforementioned fatal injuries must have been caused by stabbing with MO1 knife when it was fixed in its handle. 10. The prosecution mainly relies upon the ocular testimony of PW1, who is the wife of deceased Sabu and also PW2, PW3 and PW4. PW3 is the manager of the toddy shop from where the accused and Sabu consumed stomach-full of toddy. He has testified that after consuming toddy, there ensued a wordy altercation and thereafter both of them went out of the toddy shop who were then seen quarrelling each other. It was deposed by PW3 that after some time he heard a hue and cry and thereupon he went to the road. It was contended by the defence that toddy shop is situated at a far lower level and so it was not possible for PW3 to witness the incident. But it was stated by PW3 that he had gone to the road and from there he watched the incident. Crl.A. No.70 of 2007 -: 10 :- The place of incident is only a few meters away from the toddy shop. So much so, the contention that there is actually no evidence regarding the genesis of the incident cannot be sustained. PW3's evidence would further show that the accused was seen sitting on the body of Sabu. That evidence corroborates the evidence given by PW2 - Kanaka Raj. 11. PW2 was sitting near the pond (Chettikkulam). His wife was also there. It was PW2 who gave the First Information Statement at 10.10 PM on the same day. The learned counsel for the appellant has argued vehemently that PW2 is a Tamilian and so the contents of Ext.P1 cannot be accepted as the real version given by PW1. But it may be noted that PW1 was examined in Court. He gave evidence in Malayalam. That means he could very well understand Malayalam also. It was so observed by the court below also. There is yet another argument that in the copy of Ext.P1 furnished to the defence signature of PW2 is not seen. What is shown to us is only a photocopy of Ext.P1. On going through the original of Ext.P1 we could find no Crl.A. No.70 of 2007 -: 11 :- infirmity in it. The signature of PW2 is found at the last portion of Ext.P1 and also in the relevant column which requires the informant to put his signature. It is also seen that Ext.P2-F.I.R. was registered by PW17 based on Ext.P1 and that F.I.R. was sent to the Court immediately on the next day morning. It was received by the Magistrate at 10.30 a.m. Therefore, the contention that Ext.P2 must have been concocted, manipulated or ante-timed cannot be sustained. 12. It is also argued by the learned counsel for the appellant that PW2 belongs to Tamil Nadu, but he used to come to Vennur where Sabu, his father and others are residing. When PW2 and his family used to come here, he used to stay in a shed owned by PW4 and so PW2 was more loyal and obliged to give a statement as required by PW1 or PW4. The court below has scanned his evidence thoroughly. It reconciles with the evidence given by PW2 and others. The learned counsel for the appellant has also assailed the prosecution contending that it was Janammal who informed PW1 that a scuffle was going on between the Crl.A. No.70 of 2007 -: 12 :- accused and Sabu and so Janammal was the most competent witness to give evidence in the matter. But the evidence would show that PW2 and Janammal were together, out of them PW2 was examined. Therefore, non-examination of Janammal assumes little significance. It was deposed by PW2 that he had actually seen the accused and deceased Sabu engaged in push and pull and on seeing the same, his wife went to the house of Sabu and as informed PW1 and also the father of Sabu reached the place of incident. The manner in which the accused caused Sabu to fall down has also been explained by PW2. It was stated in unambiguous terms that when the accused was sitting on the body of Sabu, who was lying supine, the accused took out the knife from his waist and after removing the sheath/cover, he stabbed Sabu on his abdomen whereupon the bowels came out. He bled profusely. The evidence given by PW2 is consistent with the evidence given by PW1 that he tried to get hold of the knife and during that struggle the blade portion of knife (MO1) got detached and fell down. Of Crl.A. No.70 of 2007 -: 13 :- course, there is slight discrepancy regarding that part of the evidence since one witness says that the blade portion could actually be wrested by PW1 and thereafter she threw it down. Any way the evidence is consistent regarding one aspect that MO1, the blade portion was thrown down and was near and accessible to the accused. It was stated by PW1 that even thereafter the accused took that blade portion and attempted to stab Sabu and by that time PW4 and others reached there. They could disengage the accused and could save Sabu from being stabbed again by the accused. The evidence given by PW1 and PW2 is also consistent with regard to the fact that when PW4 and others reached there, they saw the accused carrying MO1. He jumped into the pond (Chettikkulam) and thereafter went to the other side of the pond and left the scene. 13. PW4, the father of Sabu also corroborated the evidence given by PWs.1 and 2 in material particulars. His evidence would show that his house is only about 40 Mtrs. away from the place of incident. The toddy shop where from Crl.A. No.70 of 2007 -: 14 :- Sabu and accused consumed toddy was stated to be only about 35 Mtrs. away from the place of incident. It was on the other side of the road. Therefore, toddy shop, place of incident and also the house of P.W.4 are situated close by. The scene mahazar would show that the place of incident is by the side of the road where there was grasses and other plants. 14. From what has been delineated earlier, it is clear that PWs.1, 2 and 4 are consistent in their version as to how the accused stabbed Sabu with the knife, of which MO1 is the blade portion. 15. The learned counsel for the appellant submitted that admittedly MO1 was not kept in a leather sheath but only in a cover made up of cloth. According to the accused, it is something unusual. It is also stated that if as a matter of fact, there was a cover made up of cloth as stated by the prosecution, then in the normal course, when the accused and Sabu rolled on the ground, the tip of the knife must have pierced into the abdominal part and some injury must have Crl.A. No.70 of 2007 -: 15 :- been caused on the body of the accused. There may be so many possibilities and probabilities. But that cannot outweigh the ocular testimony given by the witnesses aforementioned. Though PW1 is the wife of Sabu, there was no reason for her to give false evidence. The evidence given by PWs.1, 2 and 4 gets corroboration from PW3, the Manager of toddy shop. He did not say that he actually saw the accused stabbing Sabu. But his evidence certainly corroborates the other part of the evidence given by PWs.1, 2 and 4. 16. Prosecution contends that on the next day at about 4.30 p.m. the accused was seen sitting near a Bhajanamadom at Kumbalakkode while PW18 reached there with a police constable, who showed the accused to PW18 and thereupon the accused was arrested. It is contended that when the accused was questioned he gave a disclosure statement as to where the knife was kept or thrown by him. According to PW18, the accused stated that the knife was thrown by him in the pond (Chettikkulam) and if taken to that Crl.A. No.70 of 2007 -: 16 :- place he would show the place where it was thrown down. It was contended by the defence that it was actually a 'planted recovery'. It was not stated specifically by other witnesses that they had actually seen the accused carrying the knife. The evidence given by PW18 and the police constable and also the independent witnesses would show that the place which was pointed out by the accused as the place where the knife was thrown down in the pond was searched and the knife (MO1) was found out. 17. Even though that pond (Chettikulam) is near the road accessible to the public prosecution contends that there is no evidence to hold that the witnesses had seen throwing MO1 into the pond. They only saw accused jumping to the pond and then proceeding to the other side of the pond and leaving the place. In other words, nobody other than the accused had knowledge that MO1 was thrown into the pond. As such prosecution is justified in contending that the accused had exclusive knowledge regarding the existence of MO1 in that pond. Though the pond was near a road or pathway MO1 Crl.A. No.70 of 2007 -: 17 :- was not possible to be seen by anybody else since it was in the water, inside the pond. The relevant portion of the statement given by the accused which led to the discovery of the fact which was deposed to by PW18 is admissible in evidence. It cannot be contended that the recovery of MO1 from the pond was not on account of the information given by the accused but only as a result of search by the Police Officer. A discovery of a fact includes the object found, the place from which it is produced and the knowledge of the accused as to its existence. The recovery of MO1 from the pond confirms the truth of the information given by the accused and as such it is admissible under Section 27 of the Evidence Act. Even if that part of the evidence is totally eschewed from consideration still there is the unassailable evidence given by the ocular witnesses pointing to the guilt of the accused. 18. The accused contended that he was stabbed by Sabu. But no injury was caused to the accused. He further contends that there was a scuffle and thereafter they rolled on the ground and that he was not aware as to how Sabu Crl.A. No.70 of 2007 -: 18 :- sustained injury. In order to probabilise the version given by the accused, DW1 Ponnan was examined. He admits the fact that the accused and deceased Sabu consumed stomach full of toddy from the shop of PW3 and thereafter there was wordy altercation between them and then both of them went to the road. It was also stated by him that there was push and pull between them and both of them fell down and rolled on the ground. According to DW1 he saw this incident from the toddy shop. Even according to the defence the toddy shop is lying at a lower level and so it was practically impossible for a person sitting or standing in the toddy shop to see the incident which took place on the road slightly away from the toddy shop. Ofcourse, it was subsequently stated by DW1 that he later went to the road. According to DW1 after both of them rolled on the ground, Sabu cried aloud and with in a short while his father and wife reached there. The fact that he did not actually see the accused taking out MO1 knife from his waist or stabbing Sabu is no reason to say that the evidence given by Pws.1 and 2 regarding the same should be Crl.A. No.70 of 2007 -: 19 :- discarded. That apart the evidence given by PW3, the Manager of the toddy shop is to the effect that though Ponnan was there in the toddy shop when accused and Sabu were consuming toddy, he left the place. That was not challenged by the defence. When Pws.1 to 4 were examined there was no case for the defence that DW1 was actually present at the scene of occurrence. That apart the evidence given by DW1 is contradictory to the version given by the accused when examined under Section 313 Cr.P.C. Since the unimpeachable evidence is to the effect that the accused took out the knife from his waist and stabbed Sabu on his abdominal part, the version given by DW1 cannot in any way militate against the prosecution. 19. The fact that Sabu was conscious when PW1 and others reached the scene is also relied upon by the Prosecution to contend that Sabu had told PW1 and others that the accused had actually cheated him and that earlier the accused had held out a threat against the life of Sabu, as the accused was under the impression that Sabu had helped the Crl.A. No.70 of 2007 -: 20 :- assailants who caused the murder of the accused's brother Mohandas. 20. It was also argued by the learned counsel for the accused that though PW1 was stated to have sustained injury when she tried to get hold of the knife from the hand of the accused, she did not go to the hospital immediately. She later went to the hospital only on 31.7.2004 and alleged that she had sustained injury on 25.7.2004 at about 4 PM. Regarding the cause of injury it was stated by her that she sustained injury while snatching the knife from Sura (accused). PW13, the Civil Surgeon, Govt. Hospital, Pazhayannur has stated that there was an incised wound 0.5 cm long skin deep across the terminal phalanges of right index and middle fingers on the palmar aspect. The injury was seen to be approximately one week old and almost healed. Ext.P11, the certificate issued by him for that purpose was proved by him. The Doctor has endorsed the view that the said injury could be caused while snatching the knife (MO1) from another person. It was argued by the learned counsel for the accused that the Crl.A. No.70 of 2007 -: 21 :- injury mentioned above could have been caused subsequently while she was engaged in cutting vegetables also and that had PW1 actually sustained injury while snatching the knife, she would have sustained incised injury of sufficient length and depth and not a superficial injury. PW1 has only stated that she sustained injury in the course of snatching the knife from the accused. Therefore, there was possibility of her palm coming into contact with the knife and so it cannot be said that what was deposed by her is not true. The learned Addl. Sessions Judge scanned her evidence thoroughly and came to the right conclusion and placed implicit reliance on her testimony. Since the evidence given by PW1 corroborates the evidence given by Pws.2 and others, the court below was perfectly justified in coming to the conclusion that Sabu died of the stab injury inflicted on him by the accused. It was explained by PW1 that because of agony and pain and due to the death of her husband she did not go to the hospital but the wound was dressed with the help of a nurse who was her friend or associate. The reason offered by her is found to be Crl.A. No.70 of 2007 ## -: 22 :- plausible. 21. The learned Prosecutor relied upon the decision in **Mavila Thamban Nambiar** v. **State of Kerala** [AIR 1997 SC 687] to buttress his submission that in the nature of the evidence adduced in this case plea as to right of private defence cannot be sustained at all. The evidence of eye witnesses aforementioned radiates confidence in the mind of the court. The First Information Statement was given by PW2 within the shortest possible time. It corroborates the evidence of PW2 and others. That evidence was further corroborated by other eye witnesses. Medical evidence also corroborates the prosecution version. It was pointed out that Sabu at that time was not wearing shirt. Had any weapon been kept in his waist it could have been seen by others even prior to the incident. There was no such case for the defence also. At the relevant time, the accused was wearing a shirt. The ocular testimony is to the effect that the accused took out the knife from his waist and stabbed Sabu on his abdomen. Sabu was totally unarmed. Therefore, we find no merit in the Crl.A. No.70 of 2007 -: 23 :- argument canvassed by the learned counsel for the accused that if at all any stab injury was proved to have been caused by the accused he is legitimately entitled to the right of private defence. 22. The next question relates to the applicability of Exception 4 to 300 IPC. It was contended that the incident took place in the course of a sudden quarrel. To bring it such exception in operation it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. Exception 4 deals with the case not covered by the first Exception. This exception is founded upon the same principle, for in both there is absence of premeditation. But in the case of Exception 1 there is total deprivation of self-control. In the case of Exception 4 there should be that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. Crl.A. No.70 of 2007 -: 24 :- 23. Infact, Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the 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. It is not possible to enunciate in general rule as to what shall be deemed to be a sudden quarrel. A “sudden fight” implies mutual provocation and blows on each side. In such cases the whole blame cannot be placed on one side. If it is a case where the blame is to be placed on one side, the exception more appropriately applicable would be Exception 1 (vide **Lachman Singh** v. **State of Haryana** [(2007) 1 SC (Cri) 123]. Going by the evidence it is all the more certain that there was no previous deliberation or determination to fight. It was an unpremeditated act. The evidence is consistant that the accused and deceased Sabu were in a state of inebriation. The evidence is also uniform that both of them engaged in wordy altercation and then ensued a physical altercation and both of them fell down and rolled on Crl.A. No.70 of 2007 -: 25 :- the ground. There is also evidence to show that the shirt worn by the accused was torn, which in all probability could have been done by Sabu in the course of the scuffle. Thus, it would appear that on the spur of the movement and incensed by anger, the accused took out the knife and stabbed Sabu. As such it can be found that the death was caused by the offender while deprived of the power of self control by grave and sudden provocation. The accused could over power Sabu and sit on the body of Sabu who was then lying supine. It was then the accused took out the knife and inflicted stab injury on the abdominal part of Sabu. From the totality of the evidence, it can be discerned that the offending act falls under Exception 1 to Section 300 IPC. As such the offence committed by the accused would attract Section 304 Part-I IPC. He is convicted accordingly. 24. Since conviction is altered to 304 Part-I IPC, the next question is regarding the sentence to be imposed on the accused. The learned counsel for the accused submitted that some leniency may be shown in the matter of sentence. Crl.A. No.70 of 2007 **==> picture [37 x 10] intentionally omitted <==** Considering all the aspects, we find that rigorous imprisonment for ten years and a fine of Rs.50,000/- would meet the ends of justice. In the result, this Crl.A. is allowed in part; the conviction of the accused-appellant u/s. 302 I.P.C. is altered to one under Section 304 Part-I IPC and he is sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.50,000/- and in default to undergo R.I. for six months. If the fine amount is paid or realised, the same shall be paid to the wife and children of the victim Sabu. **PIUS C. KURIAKOSE, JUDGE.** **N.K.BALAKRISHNAN, JUDGE.** Jvt