IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 17TH DECEMBER 2008 / 26TH AGRAHAYANA 1930 CRL.A.No. 388 of 2005(C) ------------------------ SC.369/2003 of ADDL.SESSIONS COURT, KOZHIKODE CP.94/2003 of JUDL.MAGISTRATE OF FIRST CLASS, NADAPURAM .................... APPELLANT/ ACCUSED: ------------------ SCARIA S/O. THOMAS, AGED 49, THAIPURAYIDATHIL HOUSE, MARUTHOMKARA AMSOM DESOM, PASSUKADAVU, KOZHIKODE DISTRICT. C.NO.9134, CENTRAL PRISON, KANNUR. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT: --------------- STATE OF KERALA. PUBLIC PROSECUTOR, SRI.JAI GEORGE. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/12/2008, THE COURT ON 17/12/2008 DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ---------------------------------------- Crl.Appeal No. 388 OF 2005 ---------------------------------------- Dated this the 17th day of December, 2008 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The appellant, aggrieved by the conviction and sentence imposed on him for the offence under Section 302 of the I.P.C by the Additional Sessions Judge, Kozhikode, has come up in appeal. 2. The brief facts of the case are the following: The accused was engaged in distilling and sale of illicit arrack. On 25.1.2001 at about 7.p.m the victim, Kannan, along with PW1, Kanaran, came to the appellant's residence for drinking arrack. At the relevant time, a few other customers were also present there. The victim, Kannan, asked for a glass of illicit liquor called 'Mankurni' in local parlance. The accused/appellant asked Kannan whether he has got money for the same. Thereupon, Kannan handed over a hundred rupee note to the accused. Kannan and PW1 were served with liquor. Crl.Appeal.No.388/2005. 2 After they drank, they claimed the balance amount out of the hundred rupees paid by them. The accused retorted that there is no balance available and he even said they did not give any money to him. The same led to an exchange of words between the accused on the one side and Kannan and PW1 on the other side. The accused thereafter called Kannan to his house, which is a thatched hut, to receive the balance. Serving and drinking of liquor was going on in the courtyard of his house. Kannan and PW1 followed the accused into his house. Kannan and the accused went inside and PW1 stood by the door. Immediately, the accused took MO1 knife from the drawer of a table and stabbed Kannan on his left chest below the nipple. Kannnan cried out that he was stabbed. The accused immediately got out from the house and ran away carrying MO1 knife. PW1 found Kannan with the bleeding stab injury. The victim came out and fell in front of the house of the accused. On getting information, some of the persons from the nearby street came running. They carried the injured in a jeep to the nearby Government Community Health Centre. The Doctor, who examined the injured, pronounced him dead. PW1, as he was not wearing any shirt, did not accompany Kannan. But, he, immediately went Crl.Appeal.No.388/2005. 3 home and after wearing a shirt, rushed to the hospital. On coming to know that Kannan died, he lodged Ext.P1 First Information Statement before Thottilpalam police station, which was recorded by PW12 Head Constable. The investigation was taken over by PW13 Circle Inspector of Police. Later, PW14, Circle Inspector of Police, Kuttiadi, took over and almost completed the investigation. PW15, Circle Inspector of Police verified the records and laid the charge before the Judicial First Class Magistrate's Court, Nadapuram. The case was committed by the learned Magistrate to the Sessions Court, Kozhikode, which was made over to the Additional Sessions Judge for trial. 3. The accused pleaded not guilty to the charge framed against him. From the side of the prosecution, PWs 1 to 15 were examined and Exts.P1 to P16 were marked. MOs 1 to 13 were also produced and marked. The circumstances put to the accused appearing in the evidence against him, under Section 313 of the Cr.P.C., were denied/explained by him. No evidence was let in from the side of the defence. The learned Sessions Judge, after hearing both sides, found the accused guilty of the offence under Section 302 of the I.P.C. and sentenced him to Crl.Appeal.No.388/2005. 4 undergo rigorous imprisonment for life. It was also ordered that he should pay a fine of Rs.10,000/- and in default to undergo simple imprisonment for six months. 4. The learned counsel for the appellant mainly canvassed before us the contention that the offence committed by the accused will come only under Section 304 of the I.P.C. The evidence of the prosecution witnesses would show that there was a quarrel between the appellant on the one side and the deceased and PW1 on the other side. Soon thereafter, the stabbing took place. There is only one injury inflicted. So, the offence committed by him will come under the 4th exception to Section 300 of the I.P.C. The incident need not necessarily be as deposed by the prosecution witnesses. The possibility of a full fledged quarrel and in the heat of passion inflicting the injury cannot be ruled out. The incident took place in the residence of the appellant. All these factors, cumulatively, would show that the offence committed is only culpable homicide not amounting to murder. The accused was in custody from the date of his arrest on 26.1.2001. So, he has completed seven years of imprisonment, which would be sufficient punishment for the offence under Section 304 (Part 1) of the I.P.C., it is submitted. Crl.Appeal.No.388/2005. 5 5. The learned Public Prosecutor on the other side submitted that the infliction of injury was not at the scene of quarrel. The accused played deception on the victim and called him to his house promising to pay the balance amount. The innocent victim followed him and suddenly the knife was taken and injury was inflicted. This would clearly show a premeditation from the part of the accused to inflict an injury on the vital part of the accused, which is sufficient in the ordinary course to cause death. Therefore, the claim of the accused for the benefit of 4th exception under Section 300 of the I.P.C. is unsustainable. From the nature of the injury and the circumstances under which it was inflicted, a clear motive to murder the victim can be inferred, it is pointed out. 6. PWs 1, 2 and 5 are occurrence witnesses. All the three have stated before the Court that there was a quarrel between the accused and Kannan regarding the payment of balance amount. All of them said the accused told Kannan to come to his house to receive the balance amount and Kannan followed him to his house. PW1, who followed them to the door of the house, spoke about the actual infliction of the injury. Crl.Appeal.No.388/2005. 6 Other witnesses have stated that the victim cried out about the stab injury suffered by him and came out with bleeding. All the witnesses have spoken to the fact that they saw the accused running away, carrying MO1 knife. In view of the above evidence, it is proved beyond reasonable doubt that the victim suffered the fatal injury at the hands of the accused. 7. The medical evidence, especially, the evidence of PW3, who conducted the postmortem examination, and Ext.P3 postmortem certificate would show that the victim died of a deep incised wound in his chest. The doctor stated that the said injury can be caused by using MO1 knife. The opinion given by the said witness regarding the cause of death is the said injury sustained on the left chest. It was specifically stated that the said injury was fatal in the ordinary course and the same caused his death. 8. The MO1 knife was recovered based on the disclosure statement made by the accused which is marked as Ext.P2(a). The recovery was made by PW13 Investigating Officer. MO8 'Lunki' which was worn by the accused at the time of arrest on Crl.Appeal.No.388/2005. 7 the next day of the incident, contained human blood as evident from Ext.P16 chemical analysis report. MO1 was also found to contain human blood. The above facts would lent further corroboration to the case of the prosecution. We agree with the reasons and conclusions of the trial court that the victim suffered the fatal injury at the hands of the appellant. 9. In view of the above overwhelming materials pointing to guilt of the accused, the learned counsel for the appellant tried to canvass that the offence committed by the appellant will come only under Section 304 of the I.P.C. Now, we will consider whether the offence committed by the appellant will fall under the 4th exception to Section 300 of the I.P.C. as canvassed by the learned counsel for the appellant. The 4th exception reads as follows. “Exception 4: 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.” Crl.Appeal.No.388/2005. 8 10. To come under the 4th exception, the culpable homicide must be one committed without premeditation. The act must have been done in a sudden fight in the heat of passion upon a sudden quarrel. The accused could not have taken undue advantage or acted in a cruel or unusual manner. In this case, of course, there was a quarrel between the victim and the accused regarding the payment of balance amount. If a fight ensued and in that fight if injury was inflicted, the offence will definitely be culpable homicide not amounting to murder. But, in this case the accused invited the victim to receive the balance amount from his house and persuaded him to follow him to his house, where the fatal injury was inflicted. Therefore, we are of the view that there was definitely a premeditation from the part of the accused to attack Kannan. Though, it was in a short time, there was a planning to inflict injury on the victim and it was executed cleverly. The injury cannot be described as one inflicted in a fight in the heat of passion upon a sudden quarrel. The trial court has also dealt with the above aspect, as this point was canvassed by the defence before it. We agree with the conclusion of the trial court on this point. As mentioned earlier, Crl.Appeal.No.388/2005. 9 we have independently examined the matter and hold that the conduct of the accused does not come under the 4th exception to Section 300 of the I.P.C. In the result, we find that no ground has been made out warranting interference with the judgment of the trial court. Accordingly, the Criminal Appeal fails and it is dismissed. (K.BALAKRISHNAN NAIR, JUDGE) (M.C.HARI RANI, JUDGE) ps Crl.Appeal.No.388/2005. 10 K.BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. =========================== Crl.Appeal..No.388/2005 =========================== JUDGMENT DATED 17TH DECEMBER, 2008 ============================== Crl.Appeal.No.388/2005. 11