IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH FRIDAY, THE 18TH NOVEMBER 2011 / 27TH KARTHIKA 1933 CRL.A.No. 611 of 2007() ----------------------- SC.343/2005 of ADDL. SESSIONS COURT (ADHOC), THALASSERY CP.46/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, KANNUR .................... APPELLANT(S): RESPONDENT ------------------------ PALAYODU BINU S/O.SREEDHARAN, C.NO. 3615 CENTRAL PRISON KANNUR BY ADV. SRI.DEEPU THANKAN RESPONDENT(S): --------------- STATE OF KERALA CRIME NO. 21/04 IRIKKOOR POLICE STATION PUBLIC PROSECUTOR SRI. ROY THOMAS THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & V. CHITAMBARESH, JJ -------------------------------------------- CRL. APPEAL NO. 611 OF 2007 ------------------------------------ Dated this the 18th day of November, 2011. JUDGMENT Basant, J. 1. Is the offence under Section 302 IPC proved satisfactorily by the prosecution against the appellant/accused? 2. Is the accused entitled to the right of private defence ? 3. Is he at any rate entitled to the protection of Exception 4 to Section 300 IPC? 2. These are the questions that arise for consideration in this appeal preferred by the appellant/accused against the verdict of guilty, conviction and sentence imposed on him under Section 302 IPC. He faces the sentence of imprisonment for life and fine of Rs.25,000/- and in default to undergo rigorous imprisonment for a period of one year. 3. The prosecution alleged that the appellant had committed the offences punishable under Section 302 and 324 IPC. The offence under Section 302 IPC was allegedly 2 Crl. Appeal No. 611/2007 committed against deceased Gopinathan Nair, the father-in-law of PW1. The Offence under Section 324 IPC was allegedly committed by the appellant/accused against his own mother PW4. The alleged incident took place on 14.01.2004. The specific case of the prosecution is that, the deceased Gopinathan Nair was found present in the residential premises of the appellant/accused. In that house, the mother of the appellant PW4, a woman aged about 46 years was there. In addition, the sister of the accused Vilasini aged 26 years was also present in that house. The accused came to the house on that night at about 7.30 p.m. and he found, the deceased interacting with his mother. The accused questioned the presence of the deceased in his house at that time of the night. It was explained that the deceased had come to the house to secure employment of the mother of the accused (PW4) on the next day at his house in connection with the sinking of a well. The accused was dissatisfied with that explanation. He quarreled with his mother for entertaining the deceased at his house at that time of the night. The mother took a broom and tried to beat the accused. The accused allegedly beat his mother with a stick. Seeing this, 3 Crl. Appeal No. 611/2007 the deceased allegedly intervened and tried to restrain the accused. A quarrel and altercation ensued. In the course of that, the accused allegedly beat the deceased with a stick and with the handle of a spade. The accused also cut the deceased with MO1 chopper. The deceased fell down after suffering the injuries. He was hit with a stone. The accused allegedly went away from the house. 4. The investigation commenced on the basis of Ext.P1 First Information statement lodged by PW1, the son-in-law of the deceased to whom information was carried by PW3 (a relative of PW1 and a neighbour of the appellant). PW2 had also allegedly witnessed the occurrence. PW4 mother of the accused was of course present at the scene. PW5 a neighbour had come to the scene. He had only helped to remove the deceased to the hospital where he was pronounced it. PW6 Doctor conducted the postmortem examination. PW7 Doctor examined PW4, the mother of the appellant, who had also suffered injury. Investigation was completed and final report was filed by PW14, the investigating officer. 5. The learned Magistrate before whom the final report 4 Crl. Appeal No. 611/2007 was filed, committed the case to the Court of Sessions. On committal, the learned Sessions Judge took cognizance of the offence. The accused denied the offences alleged against him and thereupon the prosecution examined PWs 1 to 14 and proved Exts. P1 to P15. MOs 1 to 17 were also marked. 6. After the close of the prosecution evidence, the accused was examined under Section 313 Cr.PC. When examined under Section 313 Cr.PC. and in the course of cross- examination, the accused appeared to take a fairly definite and specific stand. According to him, the deceased had objectionably come to his house. He had contumaciously attempted to outrage the modesty of his mother. She was indecently assaulted by the deceased. It is then that he intervened to save his mother. He had attempted to do the same to deter the assault by the deceased on his mother. He had wield him MO1 chopper and he had swung it at the deceased. No defence evidence was adduced. 7. The learned Sessions Judge on an anxious evaluation of all the relevant inputs came to the conclusion that the prosecution has succeeded and proving the offence of murder 5 Crl. Appeal No. 611/2007 punishable under Section 302 IPC against the appellant. He was found not guilty and acquitted of the offence under Section 324 IPC allegedly committed by him against his mother PW4. 8. We have heard the learned counsel for the appellant and the learned Prosecutor. The learned counsel for the appellant first of all contends that no safe reliance can be placed on the oral evidence of PWs 2, 3 and 5. Therefore the accused is at any rate entitled to the benefit of doubt and a consequent acquittal, contends counsel. Alternatively and parallely he contends that the evidence available in the case convincingly points to the availability of the right of the private defence for the appellant/accused. His plea for protection of the right of private defence is liable to be accepted, contends the learned counsel. Thirdly and finally the learned counsel contends that in any view of the matter on the accepted case of the prosecution the accused/appellant is entitled to claim the protection of Exception 4 to Section 300 IPC. Conviction under Section 302 IPC is hence not justified. Conviction at any rate deserves to be altered to Section 304 (1) IPC contends counsel. 9. We have considered all the relevant inputs. An 6 Crl. Appeal No. 611/2007 appellate judgment essentially is a continuation of the judgment of the trial court and has to be read as such. We are in these circumstances not proceeding to re-narrate the oral evidence of Pws 1 to 14 as also the contents of documents Exts.P1 to P15. We need only say that counsel have read oral evidence of PWs 1 to 14 in detail before us. Exts. P1 to P15 as also all other documents including 313 statement of the accused have been read to us in detail. 10. Coming to the first contention, the learned counsel for the appellant contends that there is nothing to show that the injuries suffered by the deceased described in Ext.P2 postmortem certificate to which the deceased succumbed were suffered by him at the hands of the appellant. No satisfactory evidence is adduced in support of such theory of the prosecution, contends the learned counsel for the appellant. 11. For the purpose of considering and answering this contention, we can for a moment safely ignore the oral evidence of PWs 2, 3 and 4 as to what actually transpired at the time of the incident. There is indisputable evidence now from PWs 1, 2 and 3 that the deceased, before he was removed to the hospital 7 Crl. Appeal No. 611/2007 in the injured condition, had narrated that he had suffered injury at the hands of the accused. That statement of the deceased is clearly admissible as dying declaration under Section 32 of the Indian Evidence Act. Not a semblance or doubt lingers in our mind about the acceptability of the said dying declaration given by the deceased. To offer confirmation and assurance for the acceptability of that dying declaration is the specific statement given by the accused in his 313 examination, which shows that the deceased without any injuries was present in his house and that he had to wield weapon against the deceased. The totality of circumstances leave no doubt in our mind that the injuries found on the deceased were suffered by him at the hands of the appellant. The first contention raised is therefore without any merit. 12. How did the incident commence? What is the genesis of the incident? Can the accused successfully claim a right of private defence? These are the next questions raised by the learned counsel for the appellant. The evidence of PW1 throws no light on this aspect. He was elsewhere and the information of the deceased sustained injuries was conveyed to him by Pw3. He 8 Crl. Appeal No. 611/2007 reached the scene of occurrence long later to find his father- in- law lying with injuries in the court yard of the house of the appellant. The evidence of PWs 2 and 3 even if accepted in toto does not at all offer any clue as to how exactly the incident had commenced. Even if the evidence of PWs 2 and 3 were accepted in toto, they only reveal that after the incident commenced, at different points of time they reached the scene of occurrence. Their evidence confirms that the injuries were suffered by the deceased at the hands of the appellant/accused. About the precise commencement of the incident and the genesis of the incident before it reached the stage when PWs 2 and 3 allegedly perceived the same by their ocular senses, there is no help offered by the evidence of Pws 2 and 3. About what really happened and how the incident commenced, we have the oral evidence of PW4 alone other than the version of the appellant in his 313 examination. PW4 is the mother of the accused. It is the common case of all that she was present at the scene of the occurrence when the incident commenced. She had given a version to the investigating officer and that exhaustive version is encapsulated in Ext.P11 case diary contradiction marked by the 9 Crl. Appeal No. 611/2007 prosecution after PW4 was declared hostile. In court PW4 went further. She embellished her version in Ext.P11. In court, she asserted that she was indecently assaulted by the deceased and that her son had intervened to save her. She stated before Court that the injury found on her person was not intentionally inflicted by the accused and she happened to suffer that injury in the melee when the incident between the accused and the deceased took place in her house. 13. The learned counsel for the appellant first of all highlights the law on the point. We deem it unnecessary to specifically refer to any precedent as the law of point is too well settled. We need only reiterate the same. The burden is always heavy on the prosecution to prove its case beyond doubt. That heavy burden rests on the shoulders of the prosecution and continues un abated, whatever be the defence taken up by the accused. The accused is entitled to claim the benefit of doubt if the prosecution case leaves behind any reasonable doubt in the mind of the court, notwithstanding the failure on the part of the accused to set up the defence pleaded by him. 14. The right of private defence is one of the general 10 Crl. Appeal No. 611/2007 exceptions to criminality recognized under the Indian Penal Code. Sections 96 to 106 of the IPC deal with the right of the private defence. Under Section 97 of the IPC every person has a right subject to the restrictions recognized by law to defend not only his own body but the body of any other person against any offence affecting the human body. If the mother of the accused (PW4) were indecently assaulted by the deceased he undoubtedly has the right of private defence under Section 97 clause firstly. Such right of private defence would extend to the causing of death under Section 100 IPC if any of the six clauses in Section 100 were satisfied. According to the appellant, he would fall under clause thirdly as he described the alleged indecent assault on his mother PW4 by the deceased as an assault with the intention of causing rape. 15. About the precise commencement of the incident as stated earlier, we have only the oral evidence of PW4. But PW4 is a hostile witness. She was cross-examined with reference to her earlier version before the investigating officer as also the Doctor PW7 who had examined her and issued Ext.P3 wound certificate. In Ext.P11, there is significantly no version that she 11 Crl. Appeal No. 611/2007 was indecently assaulted. It is crucial because PW4 herself admits that she had given that version to the police. That she gave such a version to the police is not disputed and is admitted. Similarly a version was given to PW7 doctor by PW4 who recorded the same in Ext. P3 wound certificate. That version does not reveal that the deceased had indecently assaulted her. On the contrary it reveals that she had suffered the minor/insignificant injury described in Ext.P3 at the hands of her son the appellant/accused herein. 16. The crucial question to be decided by the court is whether the oral evidence of PW4 before Court can be accepted in the light of the admitted version given by her before the investigating officer PW14, in Ext.P11 as also in Ext.P3 wound certificate to PW7 the doctor. 17. The interest of PW4 in the appellant is evident, he being her son. An anxiety on the part of any mother to save her son from such a serious prosecution can be judicially taken note of by the court. It is in this context that her explanation for Ext.P11 and P3 assumes a lot of significance. She who admitted that she has given such version, now attempts to wish away 12 Crl. Appeal No. 611/2007 those earlier statements on the plea that the police and the doctor had compelled her to give such version. Can this present version of PW4 in court inspire the confidence of the court? That is the crucial question. We have no hesitation to agree that the version of PW4 who is totally interested in her son/the appellant now before court will have to be tested and evaluated in the light of her earlier admitted versions in Exts.P11 and P3. We fail to understand what interest PW7 doctor could possibly have to record her version about course of the injury suffered by her incorrectly. In this context we take note of the oral evidence of PW4. She has no case that she was taken to PW7 by the police. In fact her evidence is significant and eloquent. According to her the Circle Inspector had provided her with the necessary money to enable her to go to PW7 and get herself treated. Less said about the alleged interest of the investigating officer PW14 and the doctor PW7 to coerce PW4 to make incorrect statements, the better. We are satisfied that the embellishment by interested PW4 when she was examined on oath, evidently with the intention of supporting her son the appellant, will have to be ignored and it can safely be assumed that her earlier prompt 13 Crl. Appeal No. 611/2007 versions in Ext.P11 and P3 deserve and commend themselves for acceptance. 18. It is of course true that the prosecution could have examined Vilasini, the daughter of PW4, the half sister of the appellant as a witness. She was present in the house when the incident commenced. The prosecution though they had cited her as a witness chose not to examine her. The defence also did not choose to examine her though in the attempt to establish their right of private defence they could also have examined her. The fact remains that the court was not given the advantage of the evidence of Vilasini the sister of the appellant by either side. 19. On the available materials, it appears to us that it is absolutely safe to conclude that the version of PW4 in court was rightly not accepted by the learned Sessions Judge wholly. Her evidence can be accepted only to the extent that such version gets support from Exts. P11 and P3. That leads us to the conclusion that the appellant has totally failed in his attempt to establish his claim for the right of private defence. The plea of the accused that he is protected by the right of private defence must hence fall to the ground. The defence raised has not been 14 Crl. Appeal No. 611/2007 established. No reasonable doubt is aroused in the mind of the court about the initial case of the prosecution on the basis of the unsuccessful attempt to plead and establish the right of private defence. The second contention raised must also hence in these circumstances fail. 20. The learned counsel for the appellant finally contends that at any rate the appellant/accused is entitled to the protection of Exception 4 to Section 300. It is true that this plea is not seen raised specifically before the Court below. It is trite now that the plea for protection of an exception need not be specifically raised by any accused person. It is for the court on an evaluation of the totality of circumstances to decide whether an accused is entitled to the protection of any of the exceptions. The burden will certainly be on the accused to show to the court that his case is covered by one of the exception. But this is not to say that the burden is on him to plead, prove and establish the necessary facts. He can safely rely on the totality of circumstances available and the evidence adduced by the prosecution to contend that he is at any rate protected by one of the exceptions under Section 300 IPC. 15 Crl. Appeal No. 611/2007 21. We now come to Exception 4. It will be advantageous to extract Exception 4 straight away. We extract the same below. “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 -- It is immaterial in such cases which party offers the provocation or commits the first assault.” 22. To claim umbrage under Exception 4 it must be shown to the court that the following circumstances do simultaneously co-exist. They are : 1. There must be no premeditation. 2. There must have been a sudden fight upon a sudden quarrel. 3. The act must have been committed in the heat of passion. 4. The offender must not have (a) taken undue advantage; or (b) acted in a cruel or unusual manner. 23. What we should now consider is whether the above 16 Crl. Appeal No. 611/2007 four ingredients are simultaneously satisfied. We repeat that it is not sufficient to establish one or the other of these ingredients. It must be shown that all the four do simultaneously co-exist to enable an accused person to claim the benefit of the Exception. 24. Was there pre meditation? This is the first question. Even accepting the prosecution case in total, there is no semblance of material to even remotely indicate that there was the possibility of any pre meditation. Unfortunately, the occasion and the opportunity for the incident presented itself. We have evidence to suggest that the appellant was employed outside the state and used to come to his house once in a fortnight. It was on one such occasion when the accused was available at his native place that the incident took place. The arrival of the deceased at the scene could not have been anticipated by the accused. No one has such a case at all. In these circumstances, we find it absolutely safe to come to a firm conclusion that there was no pre meditation whatsoever prior to the incident. 25. Was it a sudden fight upon a sudden quarrel? This is 17 Crl. Appeal No. 611/2007 the next question to be considered. The accused and PW4 belong to the Paniya community, a Scheduled Tribe. The deceased, the available indications suggest was a high caste Hindu (Nair). The evidence of PW4 suggests that the family of PW4 consists of young men who work and earn their livelihood. A certain amount of new fund self confidence can certainly be attributed to the appellant in the circumstances. He found the deceased in his premises at an untimely hour. He raised objections to such presence. It was attempted to be explained by the deceased as also his mother PW4 (going by the admitted Ext.P11 version) that the deceased had come to the house of PW4 to hire for work the next day in connection with the sinking of a well in the house of the deceased. There is nothing in evidence to show that such work of sinking a well was in progress in the house of the deceased. The righteous appellant was evidently not prepared to swallow that version. He raised objections. He asked very pertinent question as to why in the house where only women are there (PW4 and her young daughter aged about 26 years), the deceased had come at that time of the night. PW4 it appears did not relish the questioning 18 Crl. Appeal No. 611/2007 of the conduct of the deceased by the accused. She took a broom and tried to beat the accused. The accused allegedly assaulted PW4. It is at this juncture that the deceased intervened and physically tried to stop the accused. A quarrel was there it was followed by a physical altercation. The quarrel was sudden. The fight was also sudden. We find it absolutely safe in these circumstances to conclude that it was a sudden fight between the appellant and the deceased and such sudden fight was upon a sudden quarrel. The quarrel and the fight were also totally un anticipated by either. 26. The question whether the events that transpired can be described to be a “fight” has engaged our attention. Mere exchange of words may amount only to a quarrel and may not amount to a fight. But in the instant case going by the oral evidence of PW4 in court there was definitely a physical fight. But it is difficult to swallow the version of PW4 in court. Even her version in Ext.P11 indicates that the deceased had physically intervened to restrain and stop the appellant. It was a case where physicality was involved and it was not a mere verbal altercation. It is in these circumstances that we conclude 19 Crl. Appeal No. 611/2007 that it was a sudden quarrel and upon such sudden quarrel there was a sudden fight also. 27. That takes us to the next question as to whether the act was committed 'in the heat of passion'? The question whether an act can be said to be committed 'in the heat of passion' cannot yield to any litmus test. No straight jacket formula can be prescribed. Facts in each case will have to be appreciated to decide whether the act was one committed 'in the heat of passion'. In the instant case we note that the incident was a short one. It was an integral one. There was no time gap between the various acts that took place in the transaction between the accused and the deceased. There was attempt to beat with the stick followed by attempt to beat with the handle of spade culminating