IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 7TH JANUARY 2010 / 17TH POUSHA 1931 CRL.A.No. 668 of 2006() ----------------------- SC.235/2002 of 1st ADDL. SESSIONS COURT, THRISSUR CP.6/2002 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA .................... APPELLANT): ACCUSED --------------------- JOHNY, S/O.LAZAR, THUDIYATH HOUSE, KADUPPASSERY VILLAGE, AVITTATHUR DESOM. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT: COMPLAINANT --------------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI K.J.MOHAMMED ANZAR & SHRI NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: “CR” R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * Crl.A.No.668 of 2006 ---------------------------------------- Dated this the 7th day of January, 2010 J U D G M E N T Basant,J Is the appellant entitled to the benefit of Exception 4 to Section 300 IPC? Was the culpable act done in the heat of passion? Did the appellant take undue advantage or act in a cruel or unusual manner? These are the questions that come up for consideration in this appeal before us mainly. 2. The appellant faced indictment for an offence punishable under Section 302 I.P.C. He is alleged to have committed the murder of Chandrasekharan at about 6.30 p.m on 11/4/2000 by inflicting three stab injuries with MO1 chisel. 3. The deceased was running a tea shop near the house of the accused. On 11/4/2000 in the afternoon at about 1 p.m. there was an untoward incident at the shop of the deceased. The accused allegedly went to the shop of the deceased and resorted to obscene behaviour. He allegedly exposed his private parts Crl.Appeal No.668/06 -2- and stated to the deceased that if his wife and daughter were made available he would impregnate them. The deceased wanted the accused to go back. After remaining in the premises for some more time and after committing mischief even thereafter in an adjacent premise, the accused allegedly returned to his house. 4. The next chapter of the unfortunate events occurs on that evening long later at about 6.30 p.m. The deceased proceeded to the house of the accused. PW1 Manikandan who was allegedly present at the first scene, saw this. Apprehending an untoward incident, PW1 had allegedly followed the deceased. When he reached near the house of the accused, he found that the deceased and the accused were involved in a physical altercation in the courtyard in front of the house of the accused. In the course of such physical altercation, the accused allegedly entered the house and came back with MO1 chisel, a tool which he uses for carrying on his income earning activity of comb making from animal horns. PW1 allegedly apprehended immediate danger and he shouted to the deceased to run away. PW1 also ran away; but he fell. Crl.Appeal No.668/06 -3- The accused allegedly reached the deceased and inflicted three stab injuries on him with MO1. According to the prosecution, this infliction took place beyond the courtyard of the house of the accused at the road in front. According to PW1, he had tried to deter the accused and in the course of such attempt, MO1 weapon had fallen down. PW1 took MO1 and threw it away so that it would not be available to the accused. The accused went away from the scene. PWs 3 and 4 are persons of the locality who came to know about the incident. They reached the scene of the occurrence. They removed the deceased to the doctor. He was pronounced dead. The police came to the scene on getting information about the incident which took place in the locality. PW8 Sub Inspector of Police went to PW1 and recorded Ext.P1 statement. On the basis of Ext.P1 F.I.S, Ext.P7 F.I.R was registered. PW9 commenced the investigation. Inquest report Ext.P2 was prepared. Pws 2 and 3 had signed as attestors in the inquest report. PW9 prepared Ext.P3 scene mahazer under which MO1 was seized from the place where it had fallen when PW1 threw it away. The accused was arrested on the next day and under Ext.P4 seizure Crl.Appeal No.668/06 -4- mahazer Mos 10 and 11 clothes allegedly worn by the accused at the time of the crime were seized by PW9. PW5 was an attestor of Ext.P4 seizure mahazer. PW6 doctor had conducted the postmortem examination. The deceased had three injuries on him. Each one individually was sufficient in the ordinary course of nature to cause death. Ext.P5 postmortem certificate was issued by PW6. PW7 Village Officer prepared Ext.P6 sketch. Under Ext.P8 seizure mahazer PW9 had seized Mos 2 and 3 clothes which PW1 was allegedly wearing at the time of the occurrence. Exts.P9 and P10 are forwarding note and chemical examiner's report submitted by the Chemical Examiner after examining the blood of the deceased. PW10 filed the charge sheet. 5. The accused, after committal, denied the charge against him before the Sessions Court. Thereupon the prosecution examined Pws 1 to 10 and proved Exts.P1 to P10. Mos 1 to 12 were also marked. 6. While PW1 was cross-examined, the accused took the stand that PW1 was not present at the scene of the occurrence. When examined under Section 313 Cr.P.C. he denied all Crl.Appeal No.668/06 -5- circumstances which appeared in evidence and which were put to him. He took a different stand in 313 examination and stated that PW1 and the deceased were the aggressors. Ext.D1, a case diary contradiction was marked when PW1 was examined. No other defence evidence was adduced. 7. The learned Sessions Judge on an anxious consideration of all the relevant circumstances came to the conclusion that the prosecution has succeeded in establishing all ingredients of the offence of murder punishable under Section 302 I.P.C against the appellant/accused. Accordingly, the learned Judge proceeded to pass the impugned judgment imposing the sentence of imprisonment for life and to pay an amount of Rs.50,000/- as compensation under Section 357(3) Cr.P.C. In default, the appellant/accused was sentenced to undergo R.I for a period of five years. 8. Before us, the learned counsel for the appellant and the learned Public Prosecutor have advanced their arguments. The learned counsel for the appellant mainly contends that the appellant/accused is entitled to the benefit of exception 4 to Section 300 I.P.C. Crl.Appeal No.668/06 -6- 9. We may hasten to observe that the learned counsel for the appellant has not made any concessions; but the arguments were advanced seriously only on the above aspect. Of course, a contention was raised that PW1 would not have witnessed the occurrence. Alternatively and simultaneously, a contention was urged that the deceased was the aggressor and the accused was entitled to the right of private defence. We shall deal with these contentions at the outset. We have gone through the cross-examination of PW1. There is not a semblance of a suggestion that PW1 was speaking falsehood for any purpose. The police had traced PW1 on the same night and had recorded Ext.P1 First Information Statement at 9.45 p.m on the same night, the incident having taken place at 6.30 p.m. A fairly complete and exhaustive narration in tune with the present narration of PW1 is available in Ext.P1, the First Information Statement. The F.I.R was registered at 10.45 p.m later on 11/04/2000 and the F.I.R had reached the learned Magistrate at 10.30 a.m on 12/4/2000. As against PW1, the initial allegation is that he was not present at all; but later at the stage of 313 examination, a totally different stand is taken Crl.Appeal No.668/06 -7- that he was the aggressor along with the deceased. We find absolutely no reason to discard the evidence of PW1. The same rhymes with probabilities and has the fragrance of nascent truth stated in Ext.P1. Ext.D1 case diary contradiction has been relied on; but we do not find that to be of any serious significance. Exhibit D1 deals only with the manner in which the deceased had proceeded to the house of the accused. In the circumstances of the case, we do not find Exhibit D1 to be of any crucial significance or relevance. The contention that PW1 cannot be believed has got to be rejected in these circumstances. 10. Though no serious arguments have been advanced before us, clamouring for the right of private defence or the benefit of Exception 2 to Section 300 IPC, it may be appropriate to mention that there is absolutely no circumstances which can suggest that the accused had any right of private defence to protect him. It is true that after the incident which took place in the morning the deceased had gone to the house of the accused allegedly to apprise his wife and mother of the gross indiscretion committed by the accused at the shop of the Crl.Appeal No.668/06 -8- deceased in the afternoon. We find this statement even in Exhibit P1. No one has a case that he was armed. In these circumstances, accepting the yardstick of a reasonably prudent person, one cannot locate or invent any circumstance which can suggest that the accused was justified in apprehending any danger to himself or to his property when the deceased walked from his shop to the house of the accused. This is so notwithstanding the statement of PW1 in Exhibit P1 and in Exhibit D1 that he apprehended untoward incident when he saw the deceased proceeding to the house of the accused. There is thus absolutely no foundation for the claim for right of private defence or exceeding such right of private defence. In the absence of a serious attempt to rely on such right of private defence or exceeding the right of private defence, we do not think it necessary to advert to that aspect in any greater detail. In fact the impugned judgment reveals that it was conceded that the right of private defence is not claimed. Notwithstanding such concession, if there be elements of a right of private defence revealed from evidence we would certainly have gone into that in greater detail. But, we are Crl.Appeal No.668/06 -9- satisfied that the said question does not warrant detailed consideration in the facts and circumstances of this case. 11. The learned counsel for the appellant emphatically pleads that Exception 4 to Section 300 IPC is available to the accused/appellant. The learned counsel contends that though indisputably the burden is on the accused to show that his case would come under Exception 4, the accused has no obligation to adduce any evidence on his side to bring his case within the sweep of Exception 4. The accused is undoubtedly entitled, we agree, on the available materials adduced by the prosecution, to show that his case falls within the sweep of Exception 4 to Section 300 IPC. 12. Before proceeding to consider the play of Exception 4 to Section 300 IPC, we must note that on facts it is easy to come to the conclusion that the offence alleged against the appellant/accused falls first within Section 299 IPC and later under the third clause of Section 300. It becomes an offence of murder under Section 300 IPC. On this aspect also, we are of the opinion that it is not necessary to delve deeper into facts. That the deceased died of the three injuries described in Exhibit Crl.Appeal No.668/06 -10- P5 postmortem certificate is not disputed. That these injuries were inflicted by the accused by stabbing thrice with MO1 is also clearly established. Those injuries are sufficient in the ordinary course of nature to cause death is also established beyond the pale of controversy. The accused planted these stabs on the vital parts - neck and chest, of the deceased and his intention to cause the injuries which resulted is a matter of prudent inference. In these circumstances, but for the play of one of the Exceptions under Section 300 IPC the act proved would fall squarely within the offence of murder defined under Section 300 IPC punishable under Section 302 IPC. 13. The question of considering the Exceptions can arise only after the Court is satisfied that the offence is one of culpable homicide under Section 299 IPC aggravated under one of the four clauses under Section 300 IPC. We therefore have initially tried to satisfy ourselves that the offence proved is murder otherwise before proceeding to consider the exceptions. 14. Benefit is claimed of Exception 4. We extract Exception 4 below. Exception 4.- Culpable homicide is not Crl.Appeal No.668/06 -11- 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.- It is immaterial in such cases which party offers the provocation or commits the first assault.” 15. We note first of all that Exception 4 is one affording mitigation and not absolution from liability. Culpable homicide falling under Section 299 IPC gets aggravated and falls within the sweep of Section 300 IPC if the mental element falls within one of the four clauses of Section 300 IPC. The law then takes note of certain circumstances and mandates that if one of the five exceptions are applicable, the offence of murder under Section 300 IPC would slide back again to the offence of culpable homicide not amounting to murder under Section 299 IPC. 16. Going by the plain language of Exception 4, the following ingredients must be shown to exist to justify the claim for sliding down of the offence of murder under Section 300 IPC Crl.Appeal No.668/06 -12- to that of culpable homicide not amounting to murder under Section 299 IPC. They are: (i) There must be no premeditation. (ii). There must have been a sudden fight upon a sudden quarrel. (iii). The act must have been committed in the heat of passion. (iv). The offender must not have (a) taken undue advantage; or (b) acted in a cruel or unusual manner. 17. We repeat that Exception 4 to Section 300 IPC would be applicable if all these ingredients are simultaneously satisfied. Sudden fight upon a sudden quarrel by itself is not sufficient. It is not enough if such sudden fight upon a sudden quarrel was not premeditated. All these four circumstances must simultaneously co-exist to justify the claim for the advantage of mitigation under Exception No.4. 18. Having thus understood the ingredients, let us now look at the precise facts that have been proved. The following facts appear to have been established with absolute certainty. (1) There was a strain in the relationship between Crl.Appeal No.668/06 -13- the accused and the deceased in consequence to the incident which took place in the afternoon at about 1 P.M earlier on that day. (2) Following that incident, at 1.30 PM, the deceased had gone to the house of the accused. (3) PW1, seeing the manner in which the deceased was proceeding to the house of the accused apprehended that there could be trouble and hence followed the deceased. (4) When PW1 reached near the house of the deceased, he found the deceased and the accused locked in physical altercation. (5) In the course of such physical altercation at the courtyard of the house of the accused, the accused took MO1 Chisel, from his house. (6) When PW1 saw the accused with MO1, he apprehended real danger and shouted to the deceased to run away. (7) Before the deceased could escape, the accused with MO1 planted three stabs on the neck and Crl.Appeal No.668/06 -14- chest of the deceased outside the courtyard at the road in front. (8) PW1 tried to deter the accused and in the course of such attempt, he threw away MO1 chisel which had fallen from the hand of the accused. (9) The deceased took a few steps forward and fell. (10) The accused ran away from the scene. 19. The million dollar question before us is whether on application of the law relating to Exception 4 to the above facts, the accused can claim mitigation. 20. That there was no premeditation is the common case. We are convinced that there was no premeditation. So far as the accused is concerned, it was a sudden fight. This again is very clear. When the deceased went to the house of the accused, the deceased may have or could have anticipated a fight. But, so far as the accused in the house was concerned, unquestionably, it was an unanticipated sudden fight. We do not have clear evidence of what had transpired before PW1 saw them locked in physical combat. But it was definitely a sudden fight upon a sudden quarrel as insisted by Exception 4. On that Crl.Appeal No.668/06 -15- aspect also, there cannot possibly be any doubt. Ingredients 1 and 2 above of Exception 4 are thus clearly established. 21. The next crucial question is whether the act was committed “in the heat of passion”. Exception 4 of Section 300 IPC recognises the principle that heat of passion may cloud sober reasons of persons and may urge them to deeds which they would not otherwise do. Exception 4 is thus a humane provision to help an offender to claim mitigation when the act has been committed by him under the heat of passion which act he may not have committed if sober reasons were to prevail. Explanation to Exception 4 makes it clear that it is irrelevant as to who had given the provocation for the incident. In fact provocation does not appear to be relevant while considering the play of Exception 4. In the light of the explanation, even when provocation is offered by the offender himself, the offender is entitled for the advantage of Exception 4. Even when the first assault is committed by an offender, the law declares in the explanation that he can still claim the advantage of Exception 4. We have doubts about the correctness of the statement that Exception 4 also deals with provocation. The Crl.Appeal No.668/06 -16- explanation speaks otherwise. Provocation may be there or may not be there. The explanation operates even if the first assault is made by the offender himself. The crucial question to be decided is whether the act was committed “in the heat of passion” and not in the wake of any provocation. 22. The learned counsel for the appellant submits that in the sequence of events in this case, it is crystal clear that passion must have been running high. The learned counsel contends that even if we go by the case of the prosecution, the deceased must have gone to the house of the accused to reveal to his wife and mother of the indiscretion that the accused had committed earlier on that morning. The accused must have been very badly wanting to avoid such disclosure. The deceased was bent on revealing that information to the wife and mother of the accused. Passion must have been running high considering the nature of the quarrel that triggered and the combat that followed. Adrenaline must have been pumped into the blood stream of both, when such unpremeditated sudden fight followed such a sudden quarrel. When the incident commenced, undoubtedly, the initial acts in the unpremeditated Crl.Appeal No.668/06 -17- sudden fight upon sudden quarrel were committed by them in the heat of passion. 23. The question is whether there was sufficient time after the commencement of the combat before infliction of the fatal injuries to justify the contention that the act could not have been committed in the heat of passion. The learned Public Prosecutor contends that available indications suggest that in the course of the incident, the accused had gone to his house from the courtyard and had obtained MO1. He further contends that after PW1 called to the deceased to run away and the deceased attempted to do that, the accused had gone after the deceased and had inflicted the stab injuries on him. The time gap for the movement of the accused from the courtyard to his house to collect MO1 and back to the spot where the injuries were inflicted is sufficient time for him to have cooled down and the passions to die down. The learned Public Prosecutor argues that in these circumstances it cannot be accepted that the act was committed in the heat of passion notwithstanding the undisputed fact that it may have been committed in the course of an unpremeditated fight upon Crl.Appeal No.668/06 -18- sudden quarrel and in a sudden fight. 24. The law on the point is clear. Whether the act was or was not committed in the heat of passion is a question of fact. That question has to be answered in each case cognizant of the facts and circumstances of each case. We may advantageously refer to this statement of the law in paragraph 17 of Sukhbir Singh v. State of Haryana (2002(3) SCC 327). “17 ......... ....... The time gap between quarrel and the fight is an important consideration to decide the applicability of the incident (sic the exception). If there intervenes a sufficient time for passion to subside, giving the accused time to come to normalcy and the fight takes place thereafter, the killing would be murder but if the time gap is not sufficient, the accused may be held entitled to the benefit of this exception.” 25. The question is how much time would have been taken between the initial incident of physical combat at the courtyard before the accused collected MO1 and the moment when the accused planted the stabs on the deceased. If there Crl.Appeal No.668/06 -19- intervenes sufficient time for passion to subside and reason to interpose, obviously Exception 4 can have no application. How much time was required for passion to subside and reason to interpose is the crucial question here. We have no precise evidence about the place from where MO1 was collected from the house. We have material to show that the accused had collected it from his house. He works as a comb maker with horns and MO1 is the tool/instrument which was available at his house for his work. The learned counsel for the appellant contends that the mere fact that PW1 stated that the accused went to his house and came back with MO1 cannot lead the Court to come to the conclusion that there was much gap of time between the two. The initial incident took place in the courtyard, admittedly. Too much of time is not required for a person to get MO1 from his own house. In these circumstances, merely because PW1 describes that the weapon was obtained from the house by the accused it may not be held that sufficient time for passion to subside and reason to interpose was there, contends the learned counsel for the appellant. According to the learned counsel, it can only be concluded that after the Crl.Appeal No.668/06 -20- commencement of the incident, MO1 came in handy for the accused. 26. The learned counsel for the appellant then contends that the precise spot where the infliction of injury took place cannot be authentically ascertained from the evidence available. PW1 stated before Court that he was not present when the scene mahazar Ext.P3 was prepared. No other eye witness was available at the scene to enable the police officer to correctly identify the precise spot of infliction of injuries authentically. Of course in Exhibit P3, we find two spots marked as places where blood marks were available. The police appear to have concluded that the initial infliction took place at the first spot which is at a distance of 19.36 metres from the house of the accused. Here again we must note that the scene mahazar does not describe the courtyard of the house of the accused where the incident commenced. In fact, there is some amount of confusion prevailing