Wilson @ Vincent v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P. BHAVADASAN & THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 16TH DAY OF MARCH 2016/26TH PHALGUNA, 1937 CRL.A.No. 206 of 2011 (A) -------------------------- AGAINST THE JUDGMENT IN SC 135/2008 of ADDITIONAL SESSIONS COURT, KOTTAYAM. APPELLANT(S)/ACCUSED: --------------------- WILSON @ VINCENT, S/O.THOMAS, THENGUMPPILLIL VEEDU, PERUMALAKKUNNU COLONY, PONADU KARA, LALAM VILLAGE, PALA. BY ADVS. SRI.V.K.SUNIL SMT.NIMA JACOB RESPONDENT(S)/COMPLAINANT: -------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. K.K. RAJEEV. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN & RAJA VIJAYARAGHAVAN.V., JJ - - - - - - - - - - - - - - - - - - Crl.A.206 of 2011 - - - - - - - - - - - - - - - - - - Dated 16[th] March, 2016 ## JUDGMENT ## P.BHAVADASAN, J. The accused in this case has been tried for the offence punishable under Section 302 and 506(ii) of Indian Penal Code. He was found guilty of the offence punishable under Section 302 of I.P.C. on both counts. He was convicted and sentenced to undergo imprisonment for life for the offence punishable under Section 302 of I.P.C., but was acquitted for the offence punishable under Section 506(ii) of the IPC. Set off as per law was allowed. ## 2. The prosecution story runs thus: The incident in this case occurred on 9.7.2007 at about 7.30 p.m. Binoy is the victim. According to the prosecution case, the accused is the brother-in-law of the deceased Binoy and the family members of Binoy were not on good terms with the accused. The accused was on enmical terms with the deceased Binoy because there Crl.A. 206/2011. 2 existed a case and counter case between them for causing hurt. On the date of occurrence, a quarrel had taken place between the deceased Binoy and the accused. The accused had threatened the deceased with a knife. Therefore, the deceased had gone over to the shop run by PW1- Manoj, his brother, and told him about the misbehaviour of the accused. PW1 claims to have pacified him and sent him back. At about 8.30 p.m on the same day, the accused who had earlier threatened to do away with the deceased, in fact had stabbed Binoy. When PW1 reached home, he was informed that Binoy had been admitted to the hospital after having sustained stab injury. PW1 claims to have gone to the Government Hospital, Pala. When he reached the place, he was informed that the injured had been removed to the Medical college Hospital, Kottayam. While undergoing treatment in the Medical College Hospital, at about 2.20 am on 10.7.2007 Binoy succumbed to his injuries. PW1 therefore, went to the police station at Pala and gave FI statement. That was recorded by PW9 who registered crime Crl.A. 206/2011. 3 as per Ext.P1(a) FIR. 3. Investigation was taken over by PW14-Suresh Kumar. He went to the Medical College Hospital and conducted inquest over the body of the deceased. PW10 is an attestor to Ext.P6 inquest report. PW8-Dr.Thankamma George, then conducted autopsy over the body of the deceased and furnished Ext.P4 certificate. In the meanwhile, PW14 had proceeded to the place of occurrence and prepared Ext.P7 scene mahazar. He then conducted search of the house of the accused and prepared Ext.P11 search list. Finding that the offence under Section 506(ii) of the IPC is also attracted, he filed a report before the Court to incorporate Section 506 (ii) also. On 18.7.2007, at about 3.00 p.m, the accused was arrested. Based on Ext.P13 confession statement MO1 weapon was recovered as per Ext.P9 mahazar. Since the accused disclosed that he was wearing the shirt which he had worn at the time of incident, that was taken into custody as per Ext.P10 mahazar. Later, at the instance of the accused, MO3-lunki Crl.A. 206/2011. 4 was also recovered as per Ext.P14 mahazar. PW14 thereafter forwarded the articles seized by the Investigating Officer for Forensic examination. He prepared Ext.P15 report. He questioned witnesses, completed investigation and laid charge before Court. 4. The Court before which the final report was laid took cognizance of the offence and finding that the offence is exclusively triable by a Court of sessions, committed the case to the Court of Sessions, Kottayam, under Section 209 of the Cr.P.C after following the necessary procedure. The said Court made over the case to the Additional Sessions Court, for trial and disposal. 5. The latter Court on receipt of records and on appearance of accused before Court framed charge for the offence punishable under Section 302 and 506 (ii) of IPC. 6. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore, had examined PW1 to 15 and had Exts.P1 to 16 series marked. MO1 to 4 were got identified and marked. Crl.A. 206/2011. 5 7. After the close of the prosecution evidence, the accused was questioned u/s 313 of the Cr.P.C. Apart from denying the incriminating circumstances pointed out to him, he maintained that he is innocent. 8. Finding that the accused could not be acquitted under Sec.232 of the Cr.P.C, he was asked to enter on his defence. He chose to adduce no evidence . 9. The court below, considering the evidence of PW2, 3, 4, 5 and 15, felt no doubt about the act committed by the accused and came to a conclusive finding that the accused has caused the death of Binoy. 10. The learned counsel appearing for the appellant assailed the conviction and sentence on several grounds. The learned counsel went on to point out that on a meticulous consideration of the evidence on record, it is clear that there is no evidence regarding the origin of the incident and in the absence of evidence in that regard, it could not be said that the incident has happened as alleged by the prosecution. Even according to the prosecution Crl.A. 206/2011. 6 evidence, there were exchange of abusive words between the accused and the deceased and there is nothing to show as to what prompted the deceased to follow the accused. At any rate, PW2 and 3 only speak about a portion of the incident. The learned counsel would go to the extent of saying that there was deliberate suppression of facts so as to cause prejudice to the accused. It is further contended that, after having picked up quarrel with the accused, when the accused proceeded to the toddy shop, the deceased had no business to follow him. Regarding the abusive words alleged to have been used by the deceased as spoken to by the witnesses, the learned counsel would contend that there is clear evidence of provocation. It is the further submission of the learned counsel that the act committed by the accused was a spontaneous one and it was neither pre-intended nor pre-meditated. It occurred during the sudden quarrel in a heat of passion and it could not be said that the accused had the intention either to cause death of the deceased or Crl.A. 206/2011. 7 to cause such an injury which is sufficient in the ordinary course of nature to cause death. He further stated that it is difficult to believe that the accused had any intention to do away with the deceased. 11. The learned counsel then pointed out that usually, when death is caused by a single stab, the act would fall only within the ambit of Section 304 part II of the IPC only. It is therefore contended that the court below is not justified in holding that the accused had committed the offence under Section 302. 12. The learned Public prosecutor, countering the above arguments, submitted that it is not as if that the mere fact that only a single injury is inflicted on the deceased, the act would automatically fall under either part of 304 I.P.C. In such circumstances, the nature of the weapon used, the manner in which the injury was inflicted, force used in causing the injury should be taken note of. The learned Public Prosecutor submitted that every person is presumed to know the consequences of his act. Crl.A. 206/2011. 8 There is nothing to show that there was any quarrel between the accused and the deceased which provoked the accused to stab the deceased. According to the learned Public Prosecutor, the deceased was unarmed and going by the prosecution version, there was nothing to show that it was the deceased who had initiated the quarrel by showering abuses on the accused. The learned Public Prosecutor further pointed out that, even assuming that on hearing the abuses showered, the deceased had crossed the road and moved towards the accused, that cannot by itself justify the act of accused. 13. The court below had evaluated the evidence of PWs 2, 3, 4, 5, 6 and 15 in detail. 14. PW2-Biju is an occurrence witness. He speaks about the incident in detail. He would depose that the incident occurred at about 8.30.p.m on 9.7.2007 near the Thottunkal petrol pump. He along with PW3, had gone for taking toddy in a shop nearby. At that time, he heard the accused showering abuses on Binoy who was coming Crl.A. 206/2011. 9 along the road. Then the accused is said to have taken a knife and threatened him with dire consequences. The evidence of PW2 would reveal that he too had a taste of the wrath of the accused. 15. The evidence of the witnesses is sought to be discredited on the basis of certain statements in the cross examination. The defence was able to extract from PW2 a portion of abuses showered by the deceased on the accused. Holding on to that, it is contended that the deceased who had provoked the accused to commit the act and then it falls within the ambit of Exception 4 of Section 300 of the IPC. 16. Coming to the evidence of PW3-Robbin, he too speaks about the incident in which he happened to see the accused stabbing the deceased. He also speaks about exchanging of words between the parties. PW3 was cross-examined at length. There is nothing to indicate in his evidence that the deceased had provoked the accused. Crl.A. 206/2011. 10 17. The learned counsel for the appellant highlighted the fact that by the time PW3 reached the spot, altercation between the deceased and the accused had already commenced and therefore, PW3 may not be knowing the full details of the incident. The initial quarrel started at 7.30 p.m which was followed by the threatening of the accused with dire consequence. PW3 had stated that he happened to see the altercation between the accused and the deceased; but he asserted that he did not know what had been transpired before he actually saw the accused stabbing the deceased. 18. PW4 is another witness for the prosecution. He disclaimed having seen the incident involved in the case. However, he would say that on the date of the incident, at about 7.30 p.m. he met the deceased in the town near Maharani Silk House. They were engaged in conversation for ten minutes and by about 8 p.m. when they were about to catch the bus to their respective houses and reached Sangam Hotel, the accused, Chekuthan Johny Crl.A. 206/2011. 11 and his son were seen coming along the road. The accused called the deceased. He would say that he had occasion to see the accused pointing a knife at the deceased. He would claim that he managed to take away the deceased from the place. He would further say that later on he came to know that the deceased had sustained stab injury and he had met him in the hospital. When he reached the hospital, the deceased was in an unconscious state and he was removed to Medical College Hospital. 19. The evidence of this witnesses though not very relevant in the context was sought to be discredited by referring to certain contradictions with reference to his previous statement to the police under Section 161 Cr.P.C. The contradictions so pointed out are insignificant and immaterial and nothing to doubt the version of the prosecution. At any rate, his evidence is not very helpful to the prosecution with regard to the actual incident. 20. PW15 is another prosecution witness on whose evidence reliance had been placed by the court Crl.A. 206/2011. 12 below. His evidence is to the effect that on the date of the incident the accused had gone along with him for work. They were engaged in work in rubber nursery at Andoor. After work, on their way back home, they had drinks. In fact, they had taken drinks in the afternoon of that day. The evidence of PW15 is to the effect that later in the day when he went to Pala along with his son, he happened to see the deceased and accused engaged in a wordy altercation in front of Sangam Hotel. PW15 claims to have intervened in the matter and pacified the two persons and they left the place. PW15 says that thereafter he and his son went to Komalam Hotel and when they came out of the hotel, they found the deceased standing there having sustained an injury and PW2 beside him. The injured was taken to the hospital in an autorickshaw. 21. The evidence regarding the actual incident remains confined to the testimony of PWs 2 and 3. The evidence of PW4 is with reference to the incident which took place earlier in the day. The evidence of PW15 is also Crl.A. 206/2011. 13 to the same effect. But, however, the evidence of PW15 that when he came out of Komalam Hotel, he saw the deceased standing on the road with the injuries sustained by him to certain extent supports the prosecution case. However, he does not depose anything about the presence of the accused in the place of incident. 22. True, the evidence of PWs4 and 15 would show that there were two separate incidents and it has already been noticed that the evidence regarding the actual incident is furnished by PWs 2 and 3 and their evidence has already been discussed. 23. Learned counsel appearing for the appellant then contended that after the first incident, the accused had proceeded towards the toddy shop and the deceased had no business to follow him. It is contended that it was the deceased who had followed the accused and picked up a quarrel with him which later might have resulted in the incident. Crl.A. 206/2011. 14 24. True the evidence of PWs 2 and 3 are to the effect that the deceased was seen coming along the road and he crossed over to the side where the incident took place. Since there is no evidence regarding as to what had actually transpired between the two before PW2 had actually seen them, there is no evidence regarding the origin of the incident. 25. The above arguments cannot be accepted. The evidence of PWs 2 and 3 are clear to the effect that it was the accused who had done the gruesome act causing injuries to the deceased. Any inconsistencies in the evidence of PWs. 2 and 3 with reference to the place of incident is insignificant. The court below was therefore perfectly justified in placing reliance on the evidence of PWs 2, 3, 4 and 15. 26. Before proceeding further, even assuming that defence version is true and that when the accused had left the toddy shop and the deceased had followed, there is no evidence to show that any act was done by the deceased Crl.A. 206/2011. 15 against the accused. In support of the contention, prosecution has placed heavy reliance on the decision reported in Hari Ram v. State of Haryana (1983 Crl.L.J. 346). Much arguments were made on the issue that since there was only a single blow, by no stretch of imagination the act can fall under Section 302 of I.P.C. 27. First of all, there is no rule of law that in all cases where there is only a single stab which finally resulted in the death of the person concerned, the act cannot fall within the ambit of Section 300 I.P.C. 28. In Pulicherla Nagaraju alias Nagaraja Reddy v. State of A.P. (AIR 2006 SC 3010) the facts are almost identical with the case on hand. The decision goes on to say that intention to cause death can be gathered generally from a combination of four of the following circumstances: (i) Nature of weapon used (ii) The part of the body where injury was inflicted. Crl.A. 206/2011. 16 (iii) The force with which injury was caused. - (iv) Number of injuries caused etc. 29. Except for the imaginative exercise done by the learned counsel for the appellant, there is absolutely no evidence to show that it was the deceased who had initiated the quarrel or that any act was done by the deceased to provoke the accused. 30. Section 106 of the Indian Evidence Act has some relevance in this regard which reads as follows :- Illustration (a) of Section 106 - When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. It is by now well settled that a single blow theory is not absolute. The nature of weapon used, the question as to whether the deceased was unarmed and the nature of injuries inflicted are to be looked into. Apart from all the above, the issue is as to whether the case would fall within section 302 or 304 of the IPC or guided by the principle Crl.A. 206/2011. 17 that if a person who uses a dangerous weapon and inflicts a blow on the vital part of the body using considerable force, he cannot be heard to say that he did not intent to cause death. This aspect was considered by the Division Bench in Dhupa Chamar v. State of Bihar (2002 KHC 1320) the Apex Court has held as follows: “INTENTION is different from motive. It is the intention with which the act is done that makes difference, in arriving at a conclusion whether the offence is culpable homicide or murder. Therefore, it is necessary to know the meaning of expression 'intention' as used in these provisions. In this connection, we may usefully refer to the high authority of Vivian Bose, J., with whom Jafer Imam and P. B. Gajendragadkar, JJ. agreed in the case of Virsa Singh v. State of Punjab. In that case, appellant Virsa Singh was convicted under Section 302 of the Penal Code which was upheld by this Court although there was only one injury which was attributed to him which was caused as a result of spear thrust. It was contended in that case that as it was a case of solitary injury, it could not be inferred that Crl.A. 206/2011. 18 there was intention to inflict a bodily injury that was sufficient to cause death in the ordinary course of nature as such act of the offender did not amount to murder. After analysing the Clause, Thirdly, it was laid down in that case where Vivian Bose, J. speaking for the Court, observed thus, "To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 "thirdly"; First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved; These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential Crl.A. 206/2011. 19 and has nothing to do with the intention of the offender. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under Section 300, thirdly ... it does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional." "In the absence of evidence, or reasonable Crl.A. 206/2011. 20 explanation, that the prisoner did not intend to stab in the stomach with a degree of force sufficient to penetrate that far into the body, or to indicate that his act was a regrettable accident and that he intended otherwise, it would be perverse to conclude that he did not intend to inflict the injury that he did. Once that intent is established (and no other conclusion is reasonably possible in this case and in any case it is a question of fact), the rest is a matter for objective determination from the medical and other evidence about the nature and seriousness of the injury." "The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, Crl.A. 206/2011. 21 or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence of the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question. It is true that in a given case the enquiry may be linked up with the seriousness of the injury. For example, if it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury. The difference is not one Crl.A. 206/2011. 22 of law but one of fact; and whether the conclusion should be one way or the other is a matter of proof, where necessary, by calling in aid all reasonable inferences of fact in the absence of direct testimony. It is not one for guesswork and fanciful conjecture." Referring to these observations, a Bench of this Court in the case of Jagrup Singh v. State of Haryana:- "These observations of Vivian Bose, J. have become locus classicus. The test laid down in Virsa Singh's case for the applicability of Clause Thirdly is now ingrained in our legal system and has become part of the rule of law... The decision in Virsa Singh's case has throughout been followed as laying down the guiding principles." 31. It is not the number of blows which determines the issue as to whether the act falls within the ambit of Section 300 of I.P.C. These aspects have been considered in a number of decisions by the Apex Court and the final conclusion seems to be that the assessment should be made on the basis of the weapon used, the injury caused, the force with which the injury was inflicted Crl.A. 206/2011. 23 and such other matters. Even assuming that there is only a single stab but it penetrates deep into the body of the victim causing injury to vital organs, then the person cannot be heard to say that he was not aware of the consequences of his act. No doubt, the act was brutal. In the light of the evidence of PWs 2 and 3 we find no grounds to interfere with the findings of the court below. The claim made by the accused that his case would fall under exception 4 to Section 300 cannot be countenanced. For the above reasons, we find no reason to interfere with the judgment of the court below. This appeal is devoid of merits and it is accordingly dismissed. P.BHAVADASAN, JUDGE RA JA VIJAYARAGHAVAN.V. JUDGE Mrc & sb.