V. Ravi @ Sasi s/o Bharathan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR TUESDAY, THE 31ST DAY OF MAY 2016/10TH JYAISHTA, 1938 CRL.A.No. 373 of 2012 () ------------------------SC 468/2007 of ADDL.SESSIONS COURT (ADHOC), KASARAGOD APPELLANT/APPELLANT/ACCUSED: ------------------------------------------- V.RAVI @ SASI S/O.BHARATHAN, ORALA, KOTTODY, KALLAR VILLAGE, KASARAGOD DISTRICT. BY ADV. SRI.SUNNY MATHEW RESPONDENT/COMPLAINANT: ----------------------------------------- STATE OF KERALA THROUGH THE CIRCLE INSPECTOR OF POLICE, VELLARIKUNDU POLICE STATION, KASARAGOD DISTRICT, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR, SHRI K K RAJEEV THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: # **C.K.ABDUL REHIM & B.SUDHEENDRA KUMAR, JJ.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.Appeal No.373 of 2012 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 31[st ] day of May 2016 ## JUDGMENT ## **C.K.Abdul Rehim J.,** The appellant herein is the accused in S.C. No.468 of 2007 on the files of the Additional Sessions Court - 1, Kasaragod, who stands convicted under Sections 302 and 324 I.P.C. and sentenced to undergo life imprisonment with fine of Rs.25,000/- and in default to undergo rigorous imprisonment for one year under Section 302 I.P.C. and Crl.A.373/2012 : 2 : rigorous imprisonment for one year under Section 324 I.P.C. The trial court also directed that the fine amount if realised should be paid to the legal heirs of the deceased by way of compensation under Section 357(1)(b) Cr.P.C. It is aggrieved by the conviction and sentence that the above appeal is preferred. 2. Prosecution case is that, the appellant inflicted fatal injuries on the neck and back of deceased Vinod with MO1 dagger at about 12 noon on 26.4.2006 at a place called Arayarpallom in Kallar village of Kasaragod Taluk, on account of his previous enemity with the deceased and thereby committed the offence of murder. PW7, PW9 and PW10 are occurrence witnesses examined, who supported Crl.A.373/2012 : 3 : the prosecution case. Evidence tendered by them are to the effect that on the date of the occurrence, 'Theyyam' festival was going on in the property of one Narkalan, very near to the place of occurrence. The deceased had gone to a nearby field from the place of the 'Theyyam' festival and the appellant followed him. At the spot of the occurrence the appellant and the deceased involved in an altercation, scuffle and fight and the appellant stabbed the deceased on the left side back of his neck and twice on his back. When PW7 and PW9 interfered and attempted to restrain the appellant, he stabbed them also with the same dagger and caused injuries on the hand and elbow of PW7 and below the eye ball on the left side of the face of PW9. The Crl.A.373/2012 : 4 : deceased was taken to a nearby private hospital, Deepa Nursing Home, by PW7 and PW9. The deceased was found dead and his body was transferred to the District Hospital, Kanhangad. PW7 was treated at the District Hospital, Kanhangad for the injuries sustained, whereas PW9 was given suturing of the wound at the Deepa Nursing Home, but thereafter referred for treatment to the District Hospital, Kanhangad. 3. The investigation of the case was set into motion based on Ext.P9 First Information Statement given by PW7 at the District Hospital, Kanhangad at 1.45 p.m. on the same day, which was recorded by PW12, who registered Ext.P11 F.I.R. PW13 took over the investigation. He Crl.A.373/2012 : 5 : conducted examination on the body of the deceased at the mortuary of the District Hospital, Kanhangad on the same day evening and prepared Ext.P6 Inquest report. Autopsy on the dead body was conducted by PW1 Doctor, who had issued Ext.P1 Post Mortem Certificate. The Post Mortem Certificate revealed that the deceased had sustained the following ante-mortem injuries; - _i. Elliptical incised wound 4x5cm x 2cm to one left side of neck near the hair line approximately 6cm below and behind the ear lob. Wound probed probe direction being oblique and anterior, track depth 7 cms. Exploration of the wound revealed penetration injuries of the carotid sheath with injury of vessels and haematoma within it._ - _ii.Elliptical incised wound 6.5x3.5 cm obliquely_ Crl.A.373/2012 : 6 : _placed near the upper spinal area between spinal prominences (T4-T5) and upper third of medial scapular border on right side. Clotted blood seen on the gapping wound. Wound probed 12 cm track traced directed upwards and medially into the chest cavity._ - _iii.Elliptical incised wound 3cmx2cm, 4cm from the midline at the lower right pavaspinal area at the angle of scapula level, obliquely placed, wound probed, 13 cms deep track directed anteriorly and radially into the lower chest._ 4. PW13 visited the scene of occurrence on the next day and prepared Ext.P10 Scene Mahazar. MO1 dagger was recovered from the scene. MO12 cudgel (stump of coconut leaf) was also recovered from the scene of Crl.A.373/2012 : 7 : occurrence. PW1 Doctor while examined in the court deposed that death was due to massive haemorrhage and shock consequent to the fatal injuries sustained to the great vessels. He also deposed that the injury Nos.1 to 3 noted in Ext.P1 can be caused with MO1 dagger. Exts.P2 and P3 are the wound certificates with respect to the treatment of PW7 and PW9 respectively, which were marked through PW2 Doctor. Ext.P2 would indicate that PW7 had sustained a lacerated wound on the left forearm and a lacerated wound over the left elbow. The alleged cause of injury mentioned in Ext.P2 is 'assault', and the history noted therein is that the appellant had injured him with a knife. Ext.P3 wound certificate would reveal that PW9 had Crl.A.373/2012 : 8 : sustained a wound below his left eye ball, which was seen sutured. There also the history is mentioned is alleged assault by the appellant, who injured him with a knife. PW2 Doctor had deposed that the injuries mentioned in Exts.P2 and P3 can be caused as alleged. PW7 and PW9 had given evidence before the court below that they have witnessed the appellant inflicting stab injuries on neck below the left ear and on the back of the deceased. According to them, they interfered and attempted to restrain the appellant, but he had inflicted injuries upon them also,as mentioned above. 5. PW10 is a witness who deposed about the incident. She narrated that, when she was going to the place of Crl.A.373/2012 : 9 : 'Theyyam' festival she witnessed the incident. There occurred an altercation and scuffle between the appellant and the deceased in the presence of PW7 and PW9, in which the appellant had inflicted stab injuries on the deceased and also caused injuries on PW7 and PW9. PW3 is the Special Village officer, Kallar who prepared Ext.P4 'Eye Sketch' and issued Ext.P5 'Possession certificate'. PW4 and PW5 are persons who were present at the time of preparing Ext.P6 Inquest Report and who attested the said report as witnesses. 6. The prosecution had examined a total of 13 witnesses out of which PW11 had turned hostile. PW13 is the Circle Inspector of Police who conducted the Crl.A.373/2012 : 10 : investigation. On behalf of the prosecution Exts.P1 to P23 series document were marked and MO1 to MO16 were identified. Exts.D1 to D3 are contradicted portions of in the statement of PW7 and Exts.D4 to D6 are the contradiction in the statement of PW9, which were marked on behalf of the defence. 7. On an elaborate re-appraisal of the evidence on record, this court is of the opinion that the incident relating to inflicting of three stab injuries on the neck and back of the deceased by the appellant by using MO1 dagger stands clearly established. Ext.P19 Report issued from the Chemical Examiner's Laboratory would indicate that, human blood was detected from MO1 dagger. There is also Crl.A.373/2012 : 11 : corroborative evidence of PW7, PW9 and PW19 that the appellant had inflicted injuries on PW7 and PW9 using MO1 dagger, which is also supported by the medical evidence of Exts.P2 and P3. 8. On behalf of the appellant learned counsel had raised vehement contentions that the evidence of PW7, PW9 and PW10 are not trustworthy and no credence can be attached to their version. In support of the contention it was argued that the testimony of PW7 before the court below differs on material aspects from Ext.P9 statement. It is pointed out that Exts.D1 to D3 contradictions with respect to certain material aspects regarding the incident need to be considered while evaluating credibility of his Crl.A.373/2012 : 12 : testimony. Learned counsel contended that, the contradictions on material aspects would lead to the inference that the version put forth by the said witness regarding the incident cannot be accepted. But, on an appreciation of the evidence of PW7, we notice that all the 3 contradictions are not related to the aspect of inflicting injuries on the deceased or on PW7 and PW9. Those contradictions are only with respect to the time of arrival of PW7 and PW9 at the scene and also regarding the manner in which MO1 dagger was knocked down from the hands of the appellant. PW7 being an injured witness, his presence at the scene of occurrence cannot be disputed. He had categorically deposed that he had witnessed the Crl.A.373/2012 : 13 : appellant inflicting fatal injuries on the deceased. Merely because of the discrepancies in the version with respect to matters which are not crucial, his credibility cannot be doubted. With respect to the evidence of PW9 it is contended that, on a close scrutiny of the evidence it will reveal that he is a highly interested and unbelievable witness, he being a close relative of the deceased and is a person residing at about 20 km. away from the place of occurrence. Further contention is that his testimony with respect to the presence of PW10 at the place of occurrence, where the 'theyyam' festival was conducted, is highly contradictory when compared with the testimony of PW10. It is also pointed out that there are discrepancies in the Crl.A.373/2012 : 14 : evidence of PW9 and PW10 with respect to the time of arrival of PW7 and PW9 at the spot of the incident. All the above contentions cannot be accepted. As in the case of PW7, he is also a witness who sustained injuries. Therefore there is a built in guarantee with respect to his presence on the scene of occurrence. Merely because he happened to be a relative of the deceased or that his residence is situated at about 20 Km away from the place of occurrence, his testimony with respect to the act of inflicting fatal injuries on the deceased and also with respect to inflicting injuries on PW7 and PW9, cannot be brushed aside. The defence was not successful in shaking credibility the said witnesses. Crl.A.373/2012 : 15 : 9. Learned counsel for the appellant pointed out that, testimony of PW10 differs materially from the version testified by PW7 and PW9. There is discrepancy regarding the presence of PW10 at the place of 'theyyam' festival. Further it is pointed out that she is an activist of the political party to which the deceased as well as PW9 belong to; and that she is a close relative of the deceased and PW9. But on an appreciation of the entire deposition of PW10, it is evident that she had also witnessed the incident, in a manner more or less corroborative of the version deposed by PW7 and PW9. Therefore, the oral testimonies of PW7, PW9 and PW10, when put together would corroborate the fact that the appellant had inflicted Crl.A.373/2012 : 16 : fatal injuries on the deceased with MO1 dagger and that he had inflicted injuries on PW7 and PW9 with the same weapon. The said evidence, while evaluated along with the medical evidence deposed by PW1 and PW2 Doctors and Ext.P1 Post-mortem Certificate and Exts.P2 and P3 Wound Certificates and further Ext.P19 Chemical Analysis Report would clearly prove that the appellant had committed the act of stabbing the deceased as well as inflicting injuries on PW7 and PW9, at the time and place of the occurrence as described by the prosecution. 10. Learned counsel for the appellant contended that, the non-examination of the person who had knocked down the knife from the hands of the appellant by using MO12 Crl.A.373/2012 : 17 : cudgel, is fatal to the prosecution. He pointed out that, according to PW7 it is CW15 - Narkalan who had done so, whereas PW9 says that it is by CW3. PW10 also says that it is CW15 who had knocked down the knife from the hands of the appellant using MO12. It is also contended that, non-examination of both the above witnesses would amount to suppression of material evidence. It was contended that the prosecution had chosen only witnesses who are relatives of the deceased and who are activists of the political party to which the deceased belonged to. On a perusal of the records we notice that the prosecution had given up CW3 and CW15, becuase MO1 dagger as well as MO12 cudgel were discovered and seized from the scene of Crl.A.373/2012 : 18 : occurrence itself. This court is of the opinion that the nonexamination of CW3 and CW15 or the discrepancies with respect to the testimony regarding the person who had knocked down the knife with the cudgel, not assumes much importance. 11. Learned counsel for the appellant, Shri.Sunny Mathew had raised vehement contentions that there is no materials available on record to sustain a conviction under Section 302 I.P.C., because the ingredients of Section 300 has not been established through any corroborative evidence. He had pointed out that there is no evidence to prove that there existed any enemity between the appellant and the deceased, which can be pointed out as motive for Crl.A.373/2012 : 19 : inflicting the stabs on the deceased. He contended that the mere allegation raised by PW7 and PW9 while examined before the court, that the appellant was keeping enmity against the deceased with respect to his stand regarding the incident of fire to the house of one Sri.Vijayan, canot be taken as a convincing or corroborative evidence to prove the enmity which can be attributed as the motive. We are of the considered opinion that the prosecution has not succeeded in proving any cogent reason for the alleged enmity between the appellant and deceased. Therefore, there is no clear evidence with respect to the aspect of motive in committing the murder. Learned counsel had pointed out that, there is no evidence forthcoming as to Crl.A.373/2012 : 20 : who was carrying MO1 dagger and from where it was taken, before inflicting the stab injuries. He pointed out that the possibility of the knife being carried by the deceased or by PW7 or PW9 cannot be ruled out. Coupled with the above contention it is pointed out that, it is amply proved through evidence of PW7, PW9 and PW10 that there occurred a wordy altercation between the appellant and the deceased. All the 3 witnesses had conceded that there occurred a scuffle and fight at the scene of occurrence between the appellant and the deceased. The evidence of PW10 would indicate that PW7 and PW9 were also participants in the scuffle and fight. The prosecution has not succeeded in proving as to what exactly was the wordly Crl.A.373/2012 : 21 : altercation occurred at the scene, before the act of inflicting the injuries. It is strongly contended that there was a probability for the deceased attacked the appellant along with PW7 and PW9. It is also contended that in such an occasion the appellant had done the act of stabbing by way of private defence in good faith. Further, contention is also raised that there is every probability that he might have done the act on a grave and sudden provocation. It is pointed out that the prosecution could not succeed in establishing any premeditation, plan or execution in the culpable homicide. The evidence available regarding altercation, scuffle and fight would more probablise that the act was committed in the midst of a sudden fight in the heat Crl.A.373/2012 : 22 : of passion upon a sudden quarrel. Therefore, it is contended that, in all probability the act would at the most fall only under the exemptions 1, 2 and 4 of Section 300 I.P.C. Further contention is that the prosecution had not adduced any evidence to properly identify MO1 dagger, as the weapon used by the appellant. It is also pointed out that, the prosecution has no case that the appellant had inflicted any stab injuries after the deceased fell down on the spot, nor had any case that any injury was inflicted after the deceased had attempted to run away from the scene. In other words, there is no evidence to show that the appellant had taken undue advantage of the situation or acted in a cruel and unusual manner. Crl.A.373/2012 : 23 : 12. In support of the above contentions, learned counsel for the appellant had pointed out that the probabilities as enumerated above are possible because the prosecution had failed in collecting evidence from the private Nursing Home where the deceased along with PW7 and PW9 were brought at the first instance. It is contended that non-recovery of the 'Accident Register-cum-Wound Certificate' of the deceased or that of PW7 and PW9 from the said Hospital, would clearly indicate that the prosecution had failed to bring all crucial and material aspects before the trial court. It is pointed out that, Ext.P3 would indicate that the wound sustained by PW9 was in a sutured condition when he was brought to the District Crl.A.373/2012 : 24 : Hospital, Kanhangad. PW13 while examined had conceded that the deceased was brought to Deepa Nursing Home, Kanhangad where he was found dead by the Doctor. He had further conceded about the non-production of the Wound Certificate and about the failure in questioning the Doctor who examined the deceased. According to PW13, during the investigation he never felt that collecting of such evidence is necessary. According to learned counsel for the appellant, failure in this regard will amount to suppression of best evidence available. He had also advanced an argument that the evidence in this regard was suppressed because the injured persons might have given a different version regarding the incident at the private Nursing Home, Crl.A.373/2012 : 25 : which might have been recorded there. Learned counsel for the appellant placed reliance on a decision of the honourable Supreme Court in **Ghapoo Yadav v. State of Madhya Pradesh (2003 SCC (Crl.) 765** ). It is held therein that, for the application of the Exception 4 of Section 300 I.P.C., the fact indicating that the appellant persons had caused the injuries on the deceased in the heat of passion upon a sudden quarrel followed by a fight and had not acted in cruel or unusual manner, is sufficient. While distinguishing the Exception 1 from Exception 4 of Section 300 I.P.C., the apex court found that, there is total deprivation of self control in the case of Exception 1, where in the case of Exception 4 what is required is only a heat of Crl.A.373/2012 : 26 : passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is the element of provocation in Exception 4 as well as in Exception 1. But in Exception 4 the injury done is not the direct consequences of that provocation. But it indicates origination of a quarrel which implies a sudden fight on mutual provocation and loss of control on each side. In such case, the homicide committed is clearly not traceable to the unilateral provocation nor the blame can be placed on one side. The honourable Supreme Court has laid down the appropriate applicability of Exception 4 on the following terms: _There is no previous deliberation or_ Crl.A.373/2012 : 27 : _determination to fight and the 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._ 13. The court in the decision cited above had summed up the proposition by observing that, Exception 4 can be invoked if death is caused: (a) without premeditation, (b) in sudden fight, (c)without the offender's having taken undue advantage or acted in a cruel or unusual manner, and (d) the Crl.A.373/2012 : 28 : fight must have been with the person killed. 14. Learned counsel submitted that all the above aspects which are required for granting the benefit of the exception is available from the probabilities enunciated through the evidence on record and therefore the appellant is entitled for an acquittal under the exceptions contemplated in section 300 I.P.C. 15. Learned Public Prosecutor appearing on behalf of the respondent had stoutly refuted the above contentions of the appellant. He had pointed out that MO1 is a weapon which is double edged and sharpened on its both sides with the tip of the blade pointed. It is a 'dagger' which is a deadly weapon not being normally used for any domestic Crl.A.373/2012 : 29 : or other purposes. Fact that the appellant was having in possession of such a weapon at the time of occurrence itself is an indicative of his premeditation in committing the offence of murder, is the contention. He had drawn attention of this court to the nature of the 3 injuries sustained by the deceased, which are elliptical incised wounds. It is argued that elliptical wounds could be caused only by a weapon which is sharpened on both edges. Further, there is evidence to show that the appellant had inflicted 3 stab injuries repeatedly on the deceased. It is pointed out that there is medical evidence to show that all the 3 injuries were sufficient to cause death and that the deceased succumbed to the injuries sustained on the spot Crl.A.373/2012 : 30 : itself. He also contented that previsions enmity of the appellant with the deceased is established through evidence of PW7 and PW9. According to the learned Public Prosecutor, when the eyewitnesses are the injured persons, their testimony need to be evaluated in a high pedestal and the minor discrepancies or contradictions with respect to the sequences of the situations either preceding or succeeding the actual incident, cannot be given much emphasis to discredit their version. He placed reliance in this regard on various decisions of the honourable apex court in **Ramlagan Singh v. State of Bihar [1973(3) SCC 881], Malkhan Singh v. State of U.P. [1975 (3) SCC 311], Machi Singh v. State of Punjab [1983 (3) SCC 470]** and Crl.A.373/2012 : 31 : **Abdul Sayeed v. State of Madhya Pradesh [2010(10) SCC 259].** Based on the above contentions it is argued that, the appellant had miserably failed in establishing any circumstance under which he is entitled for the benefit of any of the exceptions under Section 300 I.P.C. It is pointed out that the appellant had not set up a case in the defence, probablising any of the situations which will fall under Exceptions 1 to 4 of Section 300 I.P.C. It is pointed out that not even any statement was given by the appellant to that effect while questioned under Section 313 Cr.P.C. The prosecutor pointed out that the burden of proving that the case of the appellant will come within the exceptions, is upon the appellant and that the court shall presume in the Crl.A.373/2012 : 32 : absence of any such circumstance that there occurred murder punishable under Section 302 I.P.C. 16. Based on the rival contentions, the question mooted for decision is as to whether the guilt of the appellant under Section 300 I.P.C. is proved convincingly so as to convict him under Section 302 I.P.C. As discussed above, the prosecution had failed in establishing any cogent reasons for the aspect of enmity, which can be attributed as motive for committing the murder. There is ample evidence regarding an altercation, scuffle and fight occurred at the scene. Coupled with that there is lack of evidence regarding the source of MO1 dagger, as to whether the appellant was carrying the same or not. There Crl.A.373/2012 : 33 : are occasions when, even if the appellant fails to discharge his burden of proof as contemplated under section 105 of the Evidence Act, the court can visualise from the entirety of the circumstances regarding the probabilities which will fall within Exceptions 1 to 4 of Section 300. It is open to the court to consider such a plea of exception, even when the same arises from the material on record. The above principle has been enunciated in the decisions of the apex court in **Munshi Ram v. Delhi Administration (1968 KHC 589) : (AIR 1968 SC 702).** In the case of plea under Section 84 I.P.C. also, identical principles has been evolved by the apex court in **Bapu @ Gajraj Singh v. State of Rajastan [2007 (8) SCC 66]** and in **Dahyabhai** Crl.A.373/2012 : 34 : **Chhaganbhai Thakkar v. State of Gujrat (AIR 1964 SC 1563).** But in the case at hand, there is evidence to the effect that 3 consecutive injuries, which are elliptical incised wounds of considerable depth were inflicted on the deceased, that too from his back side. Therefore question arises as to whether the appellant had taken undue advantage or acted in a cruel or unusual manner. Even if it is probable that the act was done under a grave and sudden provocation or in a heat of passion or in a sudden fight upon a sudden quarrel, whether the appellant had taken undue advantage or acted in an unusual manner, is the matter which requires consideration. Learned Public Prosecutor had raised vehement contentions in this regard. Crl.A.373/2012 : 35 : But we are of the opinion that the probabilities cannot be ruled out in toto merely because the injuries are of grave or fatal nature and is inflicted from the back side of the victim. The entirety of the circumstance adduced in the evidence on record would totally rule out any premeditated intention to commit murder. Therefore, this court is of the opinion that he offence committed by the appellant will fall within the ambit of culpable homicide not amounting to murder, which is punishable under part 1 of Section 304 I.P.C. Hence we are inclined to alter the conviction imposed under Section 302 I.P.C. to one provided under part 1 of Section 304 I.P.C. The offence committed under section 324 I.P.C. stands proved and the same is liable to be Crl.A.373/2012 : 36 : ## confirmed. 17. Considering the facts and circumstances, we are of the considered opinion that sentence of rigorous imprisonment for a period of 9 years and fine of Rs.25,000/- (Rupees twenty five thousand only) and in default to undergo rigorous imprisonment for one year would be a reasonable punishment to be imposed under part 1 of Section 304 I.P.C. 18. Hence the above appeal is allowed in part. The conviction and sentence imposed against the appellant under Section 302 will stand altered under Part 1 of Section 304 I.P.C. The appellant is sentenced to undergo rigorous imprisonment for a term of 9 (nine) years and to pay a fine Crl.A.373/2012 : 37 : of Rs.25,000/-(Rupees twenty five thousand only) and in default of payment to undergo rigorous imprisonment for one year under Section 304 part I of I.P.C. The conviction and sentence imposed by the trial court under Section 324 I.P.C. will stand confirmed. The substantive sentence of imprisonment shall run concurrently. The appellant will be entitled to set off with respect to the period of his detention in connection with this case, under Section 428 Cr.P.C. Sd/- **C.K.ABDUL REHIM, JUDGE** Sd/- **B.SUDHEENDRA KUMAR, JUDGE** _dl/2.6.16_ _// True Copy //_ _PA to Judge_