Venkidesan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** ## **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **THURSDAY, THE 24TH DAY OF OCTOBER 2019 / 2ND KARTHIKA, 1941** ## **CRL.A.No.1166 OF 2015(B)** **AGAINST THE JUDGMENT IN SC 89/2014 DATED 14-10-2015 OF ADDITIONAL DISTRICT COURT - I, KOZHIKODE.** **AGAINST THE ORDER IN CP 99/2013 DATED 16-01-2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS, KUNNAMANGALAM.** **CRIME NO.429/2013 OF MEDICAL COLLEGE POLICE STATION, KOZHIKODE.** **APPELLANT :** **VENKIDESAN, S/O.RASI, C.NO.801/15, CENTRAL PRISON, KANNUR.** **BY ADV. NAZEEBA.O.H (STATE BRIEF)** **RESPONDENT :** **STATE OF KERALA,** **MEDICAL COLLEGE POLICE STATION, KOZHIKODE. ( CRIME NO.429/2013 )** **BY PUBLIC PROSECUTOR SRI.NICHOLAS JOSEPH.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.Appeal No.1166 of 2015 2 ## A.HARIPRASAD & N.ANIL KUMAR, J J. -------------------------------------Crl.Appeal No.1166 of 2015 -------------------------------------Dated this the 24th day of October, 2019 ## J U D G M E N T ## A.HARIPRASAD, J Accused in Sessions Case No.89 of 2014 before the Additional Sessions Judge – I, Kozhikode is in appeal against the conviction under Section 302 of the Indian Penal Code (in short 'I.P.C') for an offence of murder and imposition of imprisonment for life. It is seen that the Additional Sessions Judge has not imposed a mandatory fine as required under Section 302 I.P.C, which is an illegality. 2. Heard Ms.Nazeeba, the learned counsel, appointed as State Brief and Sri.Nicholas Joseph, the learned Special Public Prosecutor. 3. Prosecution case in short is that on 25-06-2013 at 20.30 Crl.Appeal No.1166 of 2015 3 hours, the appellant committed murder of one Radhakrishnan by hitting on his head repeatedly with MO1 stone due to a monitory dispute between them. The evidence in the case would show that the victim succumbed to the injuries at about 10.45 hours in the night on the same day. PW1 lodged Ext.P13 First Information Statement (F.I.S) before the Medical College Police Station, Kozhikode and a crime was registered as Cr.No.429 of 2013 initially under Section 307 I.P.C and on the death of the victim, it was altered to Section 302 I.P.C. Despite the best efforts taken and even after taking coercive steps, the informant could not be examined. Ext.P13 F.I.S and Ext.P14 First Information Report (F.I.R) were proved through PW13, the Sub Inspector of Police. 4. Narration in Ext.P13 F.I.S would show that the informant, the appellant and the deceased were manual labourers and they used to sleep mostly in the varandha of a closed bakery. On 25-06-2013, at about 8.30 p.m., PW2 informed him that the appellant was beating the Crl.Appeal No.1166 of 2015 4 deceased infront of Varkey's bakery, which was lying closed for a long time. It is also informed that the appellant hit the deceased with MO1 stone causing bleeding injuries. When PW2 informed this fact to the informant, he along with PW2 came to the spot. By that time, other persons also assembled at the scene of occurrence. 5. PW2 supported the recitals in Ext.P13 F.I.S. According to his testimony, he along with the accused, deceased and the informant used to sleep in the varandha of Varkey's bakery. On the fateful night, the appellant picked up a quarrel with the deceased demanding money, which the deceased had allegedly borrowed from him. PW2 deposed that the fight was from the varandha of the closed bakery. It is his version that there was sufficient light to see the incident. PW2 stated that the appellant and deceased were standing face to face altercating and at that time, the appellant slapped the deceased and he fell down. Thereafter, the appellant picked up a stone and hit forcefully on the head and face of the Crl.Appeal No.1166 of 2015 5 deceased causing serious injuries. He identified MO1 stone as the one used by the appellant to assault the deceased. Despite cross examination, the testimony of PW2 regarding the incident remains credible. Learned defence counsel pointed out certain incongruities in his evidence to contend that his testimony cannot be relied upon. It is the defence case that although PW2 deposed that he used to sleep in the varandha of the closed bakery, he could not give the name of the bakery and therefore, his evidence cannot be accepted. We find no reason to discard the testimony of PW2 merely on these kind of minor contradictions. We have to consider the fact that PW2 is an illiterate worker and we cannot expect him to have photographic memory in respect of all the matters. Inspite of tough cross examination regarding the incident, PW2 adhered to his version that the appellant forcefully hit on the head of the victim with MO1 stone and that was the reason for causing injury. 6. PWs'11 and 12 are the other eye witnesses cited by the Crl.Appeal No.1166 of 2015 6 prosecution. PW11 saw the incident, when he alighted a bus at Medical College bus stop in order to supply an article to a nearby medical shop. He also testified that the incident happened in the front varandha of Varkey's super market, which was lying closed at that time. He identified the appellant from the accused dock. He also identified MO1 stone, which was said to have been used by the appellant to hit on the head of the victim. PW11 narrated the incident in perfect agreement with the testimony of PW2. It is his version that after inflicting injury on the victim, appellant tried to escape and his attempt was foiled by PW's 11 and 12 along with other persons converged at the place of occurrence. This witness was cross examined at length. Nonetheless no answer could be elicited to discredit his testimony regarding the incident. 7. PW12 also deposed in terms with the testimony of PWs' 2 and 11. It is the case of PWs' 11 and 12 that they together were present at the time of incident. PW12 also narrated the incident exactly in tune Crl.Appeal No.1166 of 2015 7 with the testimony of PW11 to prove convincingly that both of them were present at the scene of occurrence at the same time. It has come out in evidence through the testimony of these witnesses that the dispute was relating to money owed by the deceased towards the appellant and the sum was either Rs.300/- or Rs.500/-. These witnesses would speak that the appellant unleashed a brutal attack on the deceased even after if he had fallen down. The forceful hit with MO1 stone on the head of deceased had caused very serious injuries. As borne out from Ext.P15 postmortem certificate, injury Nos.1 and 2 are grave in nature. Relevant portion of the postmortem certificate reads as follows : - “ Antemortem Injuries : 1. 'Y' shaped lacerated wound 2.5 x 1 cm x bone deep, on outer aspect of left orbit and side of forehead with lower end just outer to angle of left eye and upper end 6cm left to midline forehead. 2. Lacerated wound 2.5 x 0.3 x 0.3 cm, oblique, linear Crl.Appeal No.1166 of 2015 8 on back of head at its left half, with abrasion 3.5 x 2 cm surrounding it. Upper left end 10 cm behind top of left half ear (hair around shaved during postmortem exam). Contusion front and sides of left frontal lobe 3 x 2 x 1cm. Contusion under aspect and tip of right temporal lobe 2.5 x 1.5 x 1 cm. Thick subarachnoid hemorrhage present bilaterally on fronto-temporo-parietal lobe. Fracture back midline of skull at occiput 12 cm, reaching back of rim of foramen magnum. ” 8. PW14 is the Assistant Professor and Assistant Police Surgeon attached to the Medical College Hospital, Kozhikode, who conducted autopsy on the body of the victim. He proved Ext.P15 postmortem certificate. In the course of his examination, he deposed that the victim died due to head injury. The fatal injury according to him was injury No.2 mentioned above. He deposed that a blunt weapon like MO1 piece of stone could cause the injuries mentioned in Ext.P15. Defence theory Crl.Appeal No.1166 of 2015 9 that injury could have been sustained in a fall is stoutly denied by PW14. 9. Ext.P8 is the accident register-cum-wound certificate. Immediately after the incident, the victim was taken to the causality ward in the Medical College Hospital, Kozhikode. In Ext.P8, the injuries suffered by the victim have been narrated. This document is proved through PW6. His testimony would show that the victim was admitted to hospital in a critical condition and there was no possibility of reviving him. 10. All these evidence would show that the appellant inflicted the fatal injuries on the deceased by using MO1 stone. The direct evidence given by PWs' 2, 11 and 12 remain credible in spite of challenge in cross examination. We do not find any reason to hold that the appellant did not commit the criminal act as alleged by the prosecution. 11. It has come out in evidence that the investigation has been Crl.Appeal No.1166 of 2015 10 completed after complying with all the formalities. Ext.P1 inquest report was proved through PW15, the Circle Inspector of Police, who conducted the investigation in the case. He prepared Ext.P3 scene mahazar. The materials collected from the crime scene were sent for chemical examination. Ext.P20 is the certificate-cum-report of chemical analysis. This document is proved through PW7, the Scientific Assistant. It is seen from Ext.P20 that MOs' 1 and 4 to 7 sent up for analysis tested positive for human blood. We find no reason to think that there was any procedural irregularity in the matter of investigation causing prejudice to the appellant. 12. However, the question to be decided is whether the accused is guilty of murder as defined in Section 300 I.P.C or for culpable homicide not amounting to murder as mentioned in Section 304 I.P.C. There cannot be any dispute that the offence alleged against the appellant falls within the ambit of culpable homicide as defined in Crl.Appeal No.1166 of 2015 11 Section 299 I.P.C. In order to qualify the act as murder under Section 300 I.P.C, the prosecution should show that the appellant had committed the criminal act with the intention of causing death of the victim. It is seen from the evidence that they were quarreling for money. Most reliable prosecution witnesses viz; PWs' 2, 11 and 12 have no case that the appellant manifested any intention to commit murder of deceased Radhakrishnan. Likewise, from the prosecution evidence it is not seen that the accused had an intention of causing such bodily injury as the offender knew to be likely to cause death of the victim. In the course of committing the crime, the appellant had hit forcefully on the head of the victim atleast on two occasions, as revealed from Ext.P15 postmortem certificate, in order to cause two injuries to his head. It is true that the act of the appellant in all probability would have resulted in the death of a person considering the body part selected for inflicting the injuries and nature of the weapon used. Yet, we are unable to hold that he had an Crl.Appeal No.1166 of 2015 12 intention to commit murder of the appellant. We are inclined to think that this is a case, wherein exception 4 to Section 300 I.P.C will squarely apply. Exception 4 clearly says that culpable homicide is not murder if it is committed without a premeditation, in a sudden fight, in the heat of passion, upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. If we accept the prosecution case spoken through PWs' 2, 11 and 12, it can be seen that the appellant picked up a quarrel with the deceased, beat him and when he fell down, hit him with the MO1 stone lying nearby causing the fatal injuries. Nobody has a case that he had possessed any other weapon for assaulting the victim. 13. Ratanlal and Dhirajlal on Indian Penal Code 33rd Edition, Page 1616 has made the following observations : “62. Exception 4 - Death on a sudden fight without premeditation, accused not taking any Crl.Appeal No.1166 of 2015 13 undue advantage.- Exception 4 to Section 300 Indian Penal Code provides that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation to Exception 4 to the Section further provides that it is immaterial in such cases which party offers provocation or commits the first assault. A perusal of the provision would reveal that four conditions must be satisfied to bring the matter within Exception 4 : - (i) it was a sudden fight; - (ii) there was no premeditation; - (iii) the act was done in the heat of passion; and; that - (iv) the assailant had not taken any undue advantage or acted in a cruel manner. For bringing in operation Exception 4 to Crl.Appeal No.1166 of 2015 14 Section 300 Indian Penal Code, 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. ” This opinion of the authors was approved by the Supreme Court in Vijender Kumar Alias Vijay v. State of Delhi ((2010) 12 SCC 381) 14. On reconsidering the entire evidence, we are of the view that the prosecution has succeeded in proving that the appellant had inflicted fatal injury on the head of the victim by using MO1 stone at the alleged time and place. Testimony of PWs' 2, 11 and 12 fortify this aspect. However, from their evidence, we are unable to find that the appellant had intended to commit murder of the victim. Therefore, we find the appellant guilty under Section 304 Part I I.P.C and the conviction of the trial court under Section 302 I.P.C is hereby set aside. Crl.Appeal No.1166 of 2015 15 In the result, the appeal is allowed in part. Conviction of the appellant under Section 302 I.P.C is set aside; instead he is found guilty of an offence under Section 304 Part I I.P.C. Sentence is modified as follows : The appellant shall undergo rigorous imprisonment for a period of nine years and pay fine of Rs.1,000/-(Rupees one thousand only). In default of payment of fine, he shall undergo simple imprisonment for a period of one month. He is entitled to get the benefit of set off under Section 428 Cr.P.C for the period for which he was kept in custody in connection with this case. ## A. HARIPRASAD, JUDGE. N.ANIL KUMAR, JUDGE amk