THOMAS, S/O KUNJUVAREED v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **THURSDAY, THE 19TH DAY OF SEPTEMBER, 2019/28TH BHADRA, 1941** ## **CRL.A.No.508 OF 2016(A)** **[AGAINST THE JUDGMENT IN SC 149/2012 OF ADDITIONAL SESSIONS COURT, THRISSUR** **AGAINST THE ORDER IN CP 17/2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, CHALAKUDY** **CRIME NO.1268/2010 OF Chalakkudy Police Station , Thrissur]** ## **APPELLANT/ACCUSED:** **THOMAS,** **S/O KUNJUVAREED, PULIYANI HOUSE, VELLANCHIRA DESOM, ALOOR.C-13/16 CENTRAL PRISON KANNUR.** **BY ADV. SRI.LIJOY P.VARGHESE (STATE BRIEF)** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY CIRCLE INSPECTOR OF POLICE, CHALAKUDY POLICE STATION.** BY SR.PUBLIC PROSECUTOR SRI.ALEX.M.THOMBRA **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26-08-2019,** **THE COURT ON 19-09-2019 DELIVERED THE FOLLOWING:** Crl.A.No.508 of 2016 :-2-: ## **JUDGMENT** ## **N.ANIL KUMAR,J:** The appellant is the accused in S.C.No.149/2012 on the file of the I Additional Sessions Court, Thrissur. By judgment dated 30[th] December, 2015, the trial court convicted and sentenced the accused to undergo imprisonment for life and to pay fine of Rs.10,000/-, in default of payment of fine, to undergo imprisonment for one more year for the offence punishable under Section 302 of IPC and Rigorous Imprisonment for five years and to pay fine of Rs.5000/- and in default to pay the fine, to undergo imprisonment six months more for the offence punishable under Section 307 of IPC. 2. The prosecution case in brief is that on 11.10.2010 at about 9 a.m., deceased Jose 70 years old, tried to take a cow through the private pathway in the family property of the accused near the Vellanchira Railway Gate. On seeing the act of the deceased, the accused made an attempt to object and stop it. Consequently, there ensued an altercation between them. Feeling agitated, accused suddenly took out MO1 knife, which was kept in his waist and stabbed on the chest of the deceased, who was standing on the road side near the Crl.A.No.508 of 2016 :-3-: place from where the private pathway originated. He had stabbed the deceased on other parts of the body also. The deceased sustained fatal injury on his right chest and succumbed to the injuries later. PW1, George who came to the rescue of the deceased, made an attempt to prevent the accused from attacking the deceased. Thus, the accused became violent and inflicted injuries on his chest with MO1 knife. Immediately, after the occurrence, PW1 and the deceased were taken to St.James Hospital, Chalakudy. The Doctor, who examined the deceased, declared as brought dead. PW1 was admitted and treated in the very same hospital. Thus, the accused alleged to have committed offences punishable under Sections 307 and 302 of IPC. 3. PW20 was working as Sub Inspector of Police, Chalakudy on 11.10.2010. At about 9.20 am on that day, he received information over phone that one Puliyani Thomas inflicted injuries on two persons. Consequent to the information, he recorded the information in the General Diary and proceeded to the scene of occurrence from where he arrested the accused. Since the accused had also sustained injuries, he was sent to the Taluk Hospital, Chalakudy with a medical request. Thereafter, he proceeded to the St.James Crl.A.No.508 of 2016 :-4-: Hospital at Chalakudy and recorded Ext.P1 First Information Statement of PW1. On the strength of Ext.P1, PW20 registered Ext.P21 FIR. As directed by PW20, PW21, the then Assistant Sub Inspector of Police, proceeded to the Government Hospital, Chalakudy. The Doctor, who treated the accused at the hospital, referred to him for better management to the Medical College Hospital, Thrissur. PW21 had taken into custody of MO8 mundu and MO5 half sleeve shirt bearing the name 'British Diox' worn by the accused at the time of occurrence. MOs.4 and 5 were produced before PW22, who took into custody of the same as per Ext.P12 mahazar. 4. PW22 was working as Circle Inspector of Police,Chalakudy on 11.10.2010. He had taken over the investigation in this case on that day. He prepared Ext.P5 inquest report in the presence of witnesses. By verifying the clothes removed from the deadbody of the deceased, he prepared Ext.P6 Scene Mahazar, in which PW9 was a witness. By virtue of Ext.P5, he seized MO9 shirt, MO10 mundu and MO11 trouser worn by the deceased at the time of occurrence. At 1.30 p.m., he visited the place of occurrence and prepared Ext.P6 mahazar and took custody of MO6 one Crl.A.No.508 of 2016 :-5-: pair of chappal bearing the name VKC, MO7 black colored raincoat cap having springs by Ext.P6. Besides, the Scientific Assistant, who was present at the scene of occurrence, had recovered blood stained soil in 12 packets. After treatment, the accused was discharged from the Medical College Hospital on 22.10.2010. He was produced before PW22 and recorded his arrest at 3.30 p.m. on that day by Ext.P22 arrest memo. On being questioned, the accused confessed that the knife was kept in his house and if he was taken to that place he would show the same. Based on Ext.P7(a) confession statement, PW22 proceeded to the residence of the house having Door No.VI/604 of Alloor Grama Panchayath as led by the accused and recovered MO1 knife as identified by the accused by Ext.P7 mahazar in the presence of PW10. PW22 questioned the witnesses, completed the investigation and filed the final report before the Judicial First Class Magistrate, Chalakudy. The learned Magistrate committed the case to the Court of Sessions, Thrissur after complying with the usual formalities. On committal, the learned Sessions Judge took cognizance of the offences under Section 307 and 302 of IPC and registered the case as SC No. 149/2012 on the file of the Sessions Court, Thrissur, from Crl.A.No.508 of 2016 :-6-: where the case was made over to the First Additional Sessions Court,Thrissur for trial and disposal. 5. The accused was in judicial custody during trial. On request, legal assistance was provided to him from the District Legal Services Authority. Advocate R.Muraleedaran was appointed as the counsel for the accused from the District Legal Services Authority. 6. After having heard both sides, the learned Additional Sessions Judge framed charges against the accused under Sections 307 and 302 IPC. The accused pleaded not guilty to the charge whereupon the prosecution was permitted to adduce evidence in support of its case. 7. The prosecution altogether examined PWs.1 to 23 and got marked Exts.P1 to P26 and 12 material objects as MOs.1 to 12. 8. After the closure of the prosecution evidence, the accused was questioned under Section 313(1)(b) of Cr.P.C. with regard to the incriminating circumstances appearing in the evidence for the prosecution against him. He denied the prosecution case and filed a statement stating that his family consists of his wife and four children. He had been conducting business to eke out a livelihood. According to Crl.A.No.508 of 2016 :-7-: him, all of them are living in the property after having obtained in the partition. He had sustained grave injuries in a bus accident and as a result of which, he had sustained brain damage. He was treated at the Elite Hospital, Thrissur for a long period and currently he has permanent physical disability. There are many residents on the backside of his family property and they can easily move the main road by moving across the family property. His house is an old one and the bathroom therein is on the backside of the house. There is a private pathway running along the eastern side of his holding up to the holdings of his family members. According to him, trespassers through the private pathway are causing nuisance to his residence and many a time, strangers made several attempts to trespass through the way and that too in the night causing disturbance to his grown up girls. He would say that he could not put up a wall to secure his holding on account of financial difficulties. He had objected to several times others using the way. Most of his brothers are away and he is the lone male member available to look after the family properties. He further stated that local people made an attempt to cut open a pathway through the family properties. The deceased Jose and others had Crl.A.No.508 of 2016 :-8-: attempted to trespass and used the pathway unauthorisedly. When the deceased and others tried to take cattle through the pathway, the same was prevented from the main road, which ensued a quarrel. Suddenly deceased took out a knife and tried to stab him. To avert danger, the accused caught hold of the knife and as a result, there was a scuffle between the parties. On account of the scuffle, the accused had fallen down and the deceased too had fallen down. While so, the knife pierced into the body of the deceased and he had sustained injuries. In the very same occurrence, the accused had also sustained injuries on his palm. Many relatives and friends of the deceased has been residing in the very same locality and they are interested in making a private pathway through the family properties. To prove the defence case, Exts.D1 to D5 were marked on the side of the defence. One of the defences taken by the accused is that the accused also sustained injuries in the very same occurrence. 9. After conclusion of the trial, the accused was found guilty for the offences punishable under Sections 307 and 302 IPC and sentenced him as stated supra (paragraph 1). Aggrieved by the conviction and sentence passed by the trial court, the appellant preferred this appeal. Crl.A.No.508 of 2016 :-9-: 10. We heard the learned counsel for the appellant Adv.Lijoy. P. Varghese and the learned Public Prosecutor. 11. The fact that Jose died as a result of homicidal stab injury sustained to him on 11.10.2010 at about 9 a.m. is not in dispute. PWs.1 to 4, who were the eye witnesses to the occurrence, had deposed that the accused stabbed the deceased with MO1 knife on 11.10.2010 at about 9 a.m. near Vellanchira Railway Gate. 12. Evidence of PWs.1 to 4 would show that the deceased, who was taken to St.James Hospital, Chalakudy, was declared as brought dead by the Doctor, who examined him. 13. PW15 Dr.P.C.Ignatius, Police Surgeon of Medical College Hospital, Thrissur conducted autopsy on the body of the deceased on 11.10.2010 and issued Ext.P14 postmortem certificate. PW15 noted the following antemortem injuries on the body of the deceased: ## **“B. INJURIES (ANTEMORTEM):-** 1. Incised penetrating wound 5.2x1cm obliquely placed on the front of right side of chest with its medial end on the midline and 15cm below suprasternal notch. Both ends of the wound were sharply cut. The wound had cut the muscles of anterior chest wall and entered the chest cavity by cutting the 5[th] and 6[th] ribs on right side. The wound had cut the pericardial sac for a length 5 cm. The wound was directed upwards and medially and had cut the right Crl.A.No.508 of 2016 :-10-: bronchus for a length 2.5 cm. The right chest cavity contained 700 ml of fluid blood and 300 gms of clotted blood. The right lung was found collapsed. The right pulmonary artery was found cleaned severed. The depth of the wound was 14 cm. 2. Skin incised wound 5x0.3x0.2cm horizontally placed on the front of lower part of chest, 8.1cm outer to midline and 11cm below left nipple. 3. Linear abrasion 3.5x0.1cm on the front of left side of chest, 0.8cm above the injury No.2. 4. Incised wound 4.3x0.5x0.4cm on the back of left forearm, 12cm below left elbow. All the above injuries were fresh. C. OTHER FINDINGS: Skull intact. Brain pale. Mouth and pharynx was pale. Neck and its structures were intact. Pleural cavities normal. Oesophagus pale. Lungs were pale, right lung collapsed. Walls, valves and chambers of the heart were normal. Coronary arteries were patent. Liver, spleen, kidneys, pancreas and adrenals were pale. Stomach weighed 160gms and contained mucoid fluid with no unusual smell. Intestines and mesentery was pale. Urinary bladder contained 200 ml of clear urine. Genital organs were normal. Spinal column and cord was intact. Viscera and blood were preserved for chemical analysis and blood for grouping and Rh typing.” According to PW15, deep penetrating injury on the right chest, which cut 5[th] and 6[th] ribs and internal organs like artery and lungs are sufficient to cause death in the ordinary course of nature. He had also taken samples of blood and viscera for analysis. Ext.P9 is the report thus obtained. According to him, the injuries noted in Ext.P14 could be caused with MO1 Crl.A.No.508 of 2016 ## :-11-: knife. 14. PW16 is the Scientific Assistant, Regional Forensic Laboratory, Thrissur. As requested by PW20, she visited the place of occurrence along with PW20 on 11.10.2010 and gathered samples of blood stains found at the place using cotton swabs. The same was handed over to PW20. 15. PW17 Dr.Satheesh Prabhu was working as Doctor at St.James Hospital, Chalakudy. On that day, he examined PW1 at 9 am and issued Ext.P18 wound certificate, noting the following injuries:- - “1) cut wound on the anterio-lateral aspect of right thumb over the first phallange, measuring 1cm x 1/2cm. - 2) cut wound on the dorsum of right ring fingerdistal segment about 1cmx1.2cm. - 3) cut wound on the left infra mammary area 5x1/2cm.” He was admitted on 11.10.2010 and discharged on 15.10.2010 as per Ext.P17 discharge certificate. It is evident from Ext.P18 that PW1 had cut injuries in his right thumb, ring finger and left chest. 16. PW18 Dr.Vineetha of the Taluk Head Quarters Hospital, Chalakudy had examined the accused on 11.10.2010 and issued Ext.P19 wound certificate noting the following Crl.A.No.508 of 2016 :-12-: ## injuries:- “Deep cut injury (Lt) hand palmar aspect (about 6cm long) 2 smaller cut deep injuries on (Lt) index of middle finger another cut injury (Rt) hand ring finger Small aberrations about 1 cm over forehead-2 surgery commutation done” According to PW19, he could notice cut on the blood vessels of the accused and hence the accused was referred to Medical College Hospital, Thrissur, where PW19 examined the accused and issued Ext.P20 wound certificate confirming the injuries noted by PW18. PW19 also opined that the injuries found on the body of the deceased could be caused with MO1 knife as a result of scuffle between the parties. 17. On going through the evidence of PW15, PW17,PW18 and PW19, it is clear that the victim died as a result of homicidal injuries sustained to him and that the accused also sustained injuries in the very same occurrence. 18. PW1 George is an eye witness to the occurrence. He was conducting a grocery shop at Vellanchira. PW1 and deceased Jose went to buy a milch cow on 11.10.2010. They had purchased one and came through Crl.A.No.508 of 2016 :-13-: the road from the eastern side of the railway gate at Vellanchira. PW1 was in a hurry to go since he had to open his grocery shop in time. At that time, the railway gate at Vellanchira was found closed. His shop was on the western side of the railway gate. When the railway gate was opened after the train had crossed the railway gate, Jose took the cow to the western side. The accused was residing near to his shop. The location of the house of the accused was on the road side on the west of the railway gate. According to him, there is a small pathway along with the eastern side of the house of the accused leading towards south. PW1's house is on the backside of the property of the accused. When the deceased tried to take the cow from the main road through the said pathway, the accused came and physically obstructed the deceased from taking the cow through the pathway. There was exchange of words between them and while so, the accused brought out MO1 knife from his waist and stabbed on the chest of the deceased. PW1 rushed to the place and prevented the accused from attacking the deceased. The accused did not like the conduct of PW1 and feeling aggrieved, he stabbed PW1 with MO1. PW1 made an attempt to overreach the accused. He cried aloud. There was a Crl.A.No.508 of 2016 :-14-: scuffle between the parties for the possession of MO1. While so, PW1 sustained injuries on his right hand, ring finger and thumb while snatching the weapon from the hands of the accused. Consequently, accused fell into the canal. Many people including PW2 Antu, PW3 Pauly, Devis and Thomas rushed to the scene of occurrence on hearing the hue and cry of PW1. Pauly helped the accused to come out from the canal. PW1 and Jose were taken to St.James Hospital, Chalakudy in a vehicle owned by Antu. According to PW1, the Doctor examined Jose and declared him dead. 19. It has come out in evidence that the accused assaulted Jose when the latter was taking the cow through the way near the house of the accused as an easy access to his house. The occurrence in this case took place as a result of the alleged unauthorised use of the pathway by the deceased. When the accused made an attempt to prevent PW1 from taking cattles through the pathway on account of property dispute, according to PW1, the accused assaulted both with MO1. He also identified MO2 cover of MO1, MO3 shirt and MO4 dhothi worn by PW1 at the time of incident. PW1 specifically adduced evidence to show that the shirt had a tear when the accused stabbed the deceased. He identified Crl.A.No.508 of 2016 :-15-: MO1 as the short worn by the accused at the time of occurrence. 20. PW2 Antu, PW3 Pauly and PW5 Jilson supported the version of PW1 in full. PWs.2 and 3 are the neighbours of the deceased whereas PW4 Jose was working in a hotel, which was situated on the eastern side of the railway gate. They all supported the evidence let in by PW1 in this case. 21. PW5 Jilson was residing on the western side of the railway gate. He was a witness to the Ext.P5 inquest conducted by PW22-the Circle Inspector of Police. In Ext.P5 inquest report, in column No.VII and VIII(a), PW22 noted the fatal injury on the chest of the deceased. Column NO.11 in Ext.P5 is pertaining to the apparent cause of death. PW22 noted that the victim died as a result of the stab injury inflicted by the accused with MO1 knife. PW8 is yet another witness in Ext.P5 inquest report. 22. PW12 is the Assistant Chemical Examiner, Regional Chemical Laboratory, Ernakulam. On analysis of the packet received from the Police, PW12 examined the sealed packets and issued Exts.P9 to P11 reports. PW12 received 5 sealed packets containing the viscera and contents of the Crl.A.No.508 of 2016 :-16-: deceased for chemical analysis and after analysing the same, PW12 submitted Ext.P9 report indicating negative results. PW12 examined 10 sealed packets in the laboratory for chemical analysis pertaining to this case noting human blood in item Nos.1(1),1(3),1(5),1(7) and 1(9) respectively. 23. The main contention raised by the accused is that he had sustained injuries in the very same occurrence. Ext.D4 is the copy of outpatient ticket issued to the accused from the Taluk Head Quarters Hospital, Irinjalakuda, which would show that the accused was examined by the Doctors on 3.11.2010 and 17.11.2010 respectively. The accused had cut injuries inside his palm and fingers consequent to the incident. The evidence on record would show that the accused, who was standing at the end of the way, had moved towards the mud margin of the road to attack the deceased. The accused further attacked PW1, who came to rescue the deceased and tried to seize the weapon from the hands of the accused. When PW1 moved back to avoid the stab, he slipped into the canal and when he was about to regain his balance, the accused again stabbed him. It has further come out in evidence that when PW1 caught on the hands of the accused to grasp the weapon and in the grapple for the weapon, both Crl.A.No.508 of 2016 ## :-17-: of them fell into the canal and it was PW3, who pulled the accused out of the canal. Considering the above facts and circumstances, the injury sustained to the accused on his palm and fingers could only be possible in the course of grapple for the weapon. The prosecution has explained reasonably as to how the accused sustained injuries in the very same incident. 24. The Supreme Court has considered the effect of non-explanation of injuries sustained by the accused in **Takhaja Hiraji** v. **Thakore Kubersing Chamansing and Others** [(2001)6 SCC 145] and held as under:- “17. The first question which arises for consideration is what is the effect of nonexplanation of injuries sustained by the accused persons. In Rajender Singh vs. State of Bihar, (2000) 4 SCC 298; Ram Sunder Yadav vs. State of Bihar, (1998) 7 SCC 365 and Vijayee Singh vs. State of U. P., (1990) 3 SCC 190 all 3-Judge Bench decisions, the view taken consistently is that it cannot be held as a matter of law or invariably a rule that whenever the accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved. Before non-explanation of the injuries on the persons of the accused persons by the prosecution witnesses may affect the prosecution case, the Court has to be satisfied of the existence of two conditions: (i) that the injury on the person of the accused was of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in question. Non-explanation of injuries assumes greater significance when the Crl.A.No.508 of 2016 :-18-: evidence consists of interested or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution. Where the evidence is clear, cogent and credit worthy and where the Court can distinguish the truth from falsehood the mere fact that the injuries on the side of the accused persons are not explained by the prosecution cannot by itself be a sole basis to reject the testimony of the prosecution witnesses and consequently the whole of the prosecution case.” In the case on hand, the prosecution has succeeded in proving that on a comparison of the injuries sustained to the deceased and PW1, the injuries sustained to the accused were not serious. It is further proved that the accused sustained injuries in the manner as alleged by the prosecution and that the prosecution has not suppressed the injury sustained to the accused. 25. Ext.D1 dated 2.3.1994 is the C.T.Scan report of the brain issued by the Consultant Radiologist in Elite Mission Hospital, Thrissur. Ext.D1 reveals that the accused sustained (Rt) Extradural Haematoma, Multiple Haemorrhagic Contusions (Rt) Frontal Lobe, Subarachnoid Haemorrhage, Fracture (Rt) Frontal Bone. Ext.D2 is a copy of certificate issued by Neuro Surgeon Dr.D.Mohanlal of the very same hospital to the effect that the accused was admitted in the hospital on 1.3.1994 with history of having been involved Crl.A.No.508 of 2016 :-19-: in road traffic accident. CT Scan would show that the accused sustained fractures and extensive damage to the brain. It is further disclosed that the accused underwent an emergency operation as a life saving measure at the hospital. Consequently, it is further disclosed that the accused is on life long antiepilyotic medication. Thus, he is having a permanent disability of 50%, as evidenced by Ext.D2. 26. Ext.D5 is the copy of O.P.ticket issued from Medical College Hospital, Mulamkunnathukavu. It discloses that the accused was referred from Taluk Head Quarters Hospital, on 11.10.2010 with complaints of paraesthesia and history of organic delusional disorder. It is further disclosed that neurosurgery and psychiatry consultation were done. The psychiatrists diagnosed with provisionally organic delusional disorder which needs neuro psychological assessment to assess the extent of cognitive dysfunction. 27. On going through the evidence, there was no credible evidence to establish the legal insanity at the time of commission of the offence so as to entitle the accused to get the benefit of Section 84 of the IPC. The law presumes that every person committing an offence is legally sane and is liable for its natural and probable consequence of his own Crl.A.No.508 of 2016 :-20-: acts, though in specified circumstances, it may be rebuttable. Under Section 105 of the Indian Evidence Act, when a plea of insanity is raised by the accused, the burden is on the accused to substantiate the plea. Meaning thereby is that the accused setting up the defence of insanity should plead and prove that at the time of committing the offence, the accused, by reason of unsoundness of mind was incapable of knowing the nature of his act or that what he was doing either wrong or contrary to law. But, what is important is that the burden of bringing his case under Section 84 of the Indian Penal Code lies exclusively upon the person claiming the benefit of that provision. In this connection, it is appropriate to extract Section 105 of the Indian Evidence Act, 1872. ## **“105. Burden of proving that case of accused comes within exceptions** When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in Indian Penal Code, 1860(45 of 1860) or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.” On a consideration of the above legal principle, the burden exclusively lies upon the accused to prove that by reason of unsoundness of mind, he was incapable of knowing the nature of his act. Ext.D3, copy of the partition deed of the year 1986 Crl.A.No.508 of 2016 :-21-: in respect of the family property of the accused clearly demarcates a common way to the shares therein. It is brought out from the evidence that the accused had obstructed the deceased using the said pathway and stabbed him. The act done by the accused could not be termed as an act done by him without knowing the nature of the act within the meaning of Section 84 of the Indian Penal Code. Exts.D1 and D2 would show that the accused sustained head injury on 1.3.1994 which has no connection or nexus with the occurrence in this case. Merely because the accused underwent treatment for neuro complaints or that he underwent psychiatric consultation thereafter, is not an indication to show that he was suffering from legal insanity as contemplated under law. Neuro complaints or psychological problems arising out of neuro complaints are not sufficient to establish that the accused did the offence by reason of his unsoundness of mind. The evidence adduced in this case would show that the accused as a prudent man wanted the way to be maintained as a private one to the detriment of other sharers. Further, the accused has no case that his brothers had required him to secure the pathway as a private one and prevented others from enjoying the same. Crl.A.No.508 of 2016 :-22-: 28. As discussed above, the deceased had suffered a homicidal death in the private pathway at a time when the accused was present. PW1, who also sustained injuries in the very same occurrence, stated before court that when the deceased asked the accused as to why he prevented him from taking the cow through the pathway, the accused rushed to him holding MO1 knife with him and thrust the knife into the chest of the deceased. The cut injuries found on the body of the deceased, especially on the chest area would make it clear that the accused had repeatedly attacked the accused with MO1 weapon and vital parts of his body. MO1 has a blade length of 17cms with pointed tip and both the edges near the tip are sharp in nature. Immediately after the occurrence, the accused left the scene of occurrence. Later, MO1 was seized by the Police in accordance with law. Ext.P11 report of the Chemical Analysis would show that MO1 contains stains of human blood. PWs.1 to 4 stated before court that they saw the occurrence. The conduct of the deceased on the fateful day indicates that he had asserted right of way over the family property subsequent to the partition effected between the parties. The accused did not like the conduct of the deceased in using the pathway as he bona fide believed that Crl.A.No.508 of 2016 :-23-: the pathway was exclusively meant for him as a private pathway. It is a fact that the appellant was present at the occurrence place. PW15- the Doctor, who conducted the postmortem examination of the deceased, stated before court that the injuries found on the victim were sufficient to cause death. Though the deceased and PW1 sustained serious injuries, he did not make any effort to take them to the hospital. Instead, he left the place, immediately after the occurrence. It is further brought out that the accused brought MO1 knife with design to cause the death of the accused. Considering the nature of injuries found on the deceased and PW1, we are of the view that the nature of injuries found on the deceased could not have been caused by accident or negligence. The testimonies of PWs.1 to 4,15 and 18 are clear regarding the time, place, light, nature of fatal injury sustained by the deceased on the date of occurrence as well as identity of the accused. 29. Once it is proved by the prosecution that the appellant was present at the time of occurrence and the deceased suffered a homicidal death, the burden is heavy on the part of the accused to show how the deceased suffered a homicidal death. In the 313 statement, the accused admitted Crl.A.No.508 of 2016 :-24-: that the deceased and others tried to take cattle through the private pathway and there ensued a scuffle on the date of occurrence. His consistent case is that as a result of the scuffle, the knife pierced into the body of the deceased. Needless to say, the accused admitted his presence at the time of occurrence. The conduct of the accused would show that though the condition of the deceased and PW1 was critical, he some how opted to continue at the scene of occurrence and threaten others. The deceased was taken to the hospital by PW.1 and others. 30. On going through the evidence of PW15, it is clear that the accused inflicted severe injuries on the chest of the deceased with MO1 knife and the nature of the overt act suggests that none of the acts was an impulsive act and rather the manner in which these injuries were inflicted clearly establish the acts with an intention to murder the deceased. The manner in which MO1 was used to inflict injuries on the body of the deceased and PW1 rules out the possibility that the accused used MO1 only to overpower the deceased. The right of private defence was not established during trial. MO1 was applied deep in the body of the deceased and Crl.A.No.508 of 2016 :-25-: ## PW1, resulting in multiple injuries. 31. In the present case, we are of the view that the injuries sustained to the deceased were sufficient in the ordinary course of nature to cause death. There is nothing on evidence to show that the injuries are caused accidentally or negligently. The motive was to take revenge on the deceased for having used the disputed pathway over which both the accused and the deceased claimed right. In the case on hand, it is brought out that MO1 was carried by the accused to inflict injuries on the body of the deceased and that may be one of the circumstances to indicate that there was an intention to cause death on the part of the accused. The accused adopted a strange method to inflict injuries on the deceased and PW1. This is a clear case of premeditated attack with intention to cause death. 32. Judged by the above standards, we are of the view that there are no valid ground to alter the conviction of the appellant/accused from one under Section 302 to that Crl.A.No.508 of 2016 ## :-26-: under Section 304 Part II of IPC. It is further proved that the accused inflicted injuries on PW1 with an intent to murder him. Thus, the accused inflicted injuries to PW1 with such intention or knowledge, and under such circumstances that if he, by that act caused death, he would be guilty of murder as defined under Section 307 of IPC. In our opinion, the judgment and order of conviction passed by the trial court under Sections 307 and 302 of IPC were based upon proper appreciation of evidence and the circumstances involved in this case. We agree with the findings of the trial court. In the result, we uphold the judgment of conviction and the order of sentence passed by the trial court for the several reasons stated hereinabove. The appeal is devoid of any merit and is therefore dismissed. The appellant will suffer the remaining part of sentence imposed by the trial court. Sd/- ## **A.M.SHAFFIQUE, JUDGE** sd/- **N.ANIL KUMAR, JUDGE** MBS/