IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 18TH AUGUST 2009 / 27TH SRAVANA 1931 CRL.A.No. 664 of 2005(C) -------------------------------- AGAINST THE JUDGMENT DT.1.4.2005 IN SC.621/2003 of SESSIONS COURT, THRISSUR .................... APPELLANT/ACCUSED: ----------------- SUNIL KUMAR, S/O.KOCHAKKAN, PALLAN VEEDU, KARAYAMPEDAN, VARANDARAPPILLY. BY ADV. SRI.P.VIJAYA BHANU & SRI.PRASUN.S RESPONDENT//COMPLAINANT: ---------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P.S. GOPINATHAN, JJ. ------------------------------ Crl.A. No.664 of 2005 ------------------------------ Dated this, the 18th day of August, 2009 JUDGMENT Balakrishnan Nair, J. The appellant was the accused in S.C.No.621 of 2002 on the files of the learned Sessions Judge, Thrissur. He was found guilty for the offence under Section 302 of the Indian Penal Code, (for short, “the I.P.C.”) and sentenced to undergo imprisonment for life. Feeling aggrieved by the conviction and sentence, this appeal is preferred by him. 2. The case of the prosecution in brief was that, on 8.6.2003 at about 5.30 p.m. at Karayampadam under the jurisdiction of Varanderappally Police Station, the appellant stabbed one Shibu @ Kannan with a knife on his chest and the injured succumbed to the injuries while being taken to the Elite Hospital, Thrissur. There was dispute between the local people and the lorry drivers regarding the plying of lorries through Karayampadam Road. The road was in a bad shape and the Crl.A.No.664 of 2005 - 2 - plying of the heavy vehicles was causing nuisance to the people and was dangerous to the life of the children using the road. So, the local people started causing obstructions to the vehicles from the noon of 8.6.2003. At about 5.00 p.m. one Pushpakaran came in a lorry and the deceased Shibu and others obstructed the lorry. Later, the lorry was let off. After a few minutes, another lorry by name, 'Chitira', came through the said road. The deceased Shibu and others obstructed the said vehicle also. While so, the appellant came there and intervened against the obstruction. There was exchange of words between the appellant and the deceased and his friends. Later, the said vehicle was also let off. One Mallika, the aunt of the appellant, came there and persuaded him to go to her house, which was on the southern side of the road. The appellant went to the house of his aunt, came out with a knife and stabbed on the chest of Shibu. On receiving the stab injury, Shibu fell down. Though the other persons at the scene of occurrence tried to prevent the appellant from fleeing, he waived his knife and managed to escape. Though the injured Shibu was taken to the Crl.A.No.664 of 2005 - 3 - hospital, he breathed his last in the vehicle while being taken to Elite Hospital, Thrissur. 3. The First Information Statement was lodged on the same day at about 11 p.m. by PW.4 before the Varandarappally Police Station and a crime was registered as Crime No.92 of 2003. The First Information Report, sent to the Magistrate's Court, was received in the court at 10.30 a.m. on the next day. PW.11, the investigating officer prepared the Scene Mahazar, questioned the witnesses, completed the investigation and laid the charge. The learned Magistrate committed the case for trial to the Sessions Court. 4. Before the trial court, the appellant/accused pleaded not guilty. The prosecution examined PWs.1 to 11 and marked Exts.P1 to P10 and also produced M.Os.1 to 6. On the side of the defence, Exts.D1 to D3, which were portions of the C.D. statements of the witnesses of the prosecution, were marked. The trial court after considering the evidence on record found the appellant guilty of the offence under Section 302 of I.P.C. and as mentioned earlier sentenced him to Crl.A.No.664 of 2005 - 4 - undergo imprisonment for life. 5. We heard Sri.P.Vijayabhanu, the learned counsel for the appellant and Sri.Noble Mathew, the learned Public Prosecutor. The learned counsel for the appellant took us through the depositions of the witnesses, PWs.1 to 3 and 5, who fully supported the prosecution case and submitted that, there was quarrel, exchange of words and altercation between the accused on one side and six or seven persons on the other side led by the deceased. So, even assuming the version of the occurrence witnesses is taken as true, the accused has committed the offence in private defence and therefore, he is entitled to be acquitted, it is submitted. Alternatively, it is submitted that, there was grave and sudden provocation and therefore, the accused went to the house of his aunt, came with a knife and struck the blow. There is only a single blow and therefore, it should be taken that the same was done under grave and sudden provocation on the part of the deceased and his friends. Therefore, at the worst, the appellant can be convicted only under Section 304, Part II of the I.P.C., it is Crl.A.No.664 of 2005 - 5 - submitted. In support of the submission, the learned counsel for the appellant also relied on the decision of the Apex Court in Sukhbir Singh v. State of Haryana, (2002) 3 SCC 327. 6. The learned Public Prosecutor, on the other hand, submitted that after the altercation between the parties, the accused was persuaded by his aunt to go to her house and he went there. After some time, he came back from the house of his aunt with a knife in his hand and stabbed on the chest of the deceased. It is pointed out by the learned Public Prosecutor that there was a gap of 10 to 15 minutes between the altercation and the stabbing done by the accused. Therefore, the defence of sudden and grave provocation is not available in this case, it is submitted. 7. Before dealing with the rival contentions, we will first refer to the depositions of the witnesses, especially those of the occurrence witnesses, in brief. PW.1, Satheeshkumar is the brother in law of the deceased, Shibu. He is an occurrence witness. He has stated that the incident took place at 5.30 p.m on 8.6.2003. The scene of occurrence was in front of the house Crl.A.No.664 of 2005 - 6 - of one Balachandran. The people of the locality obstructed the lorries carrying red earth through Karayampadam road. The reason for causing obstruction was the bad condition of the road and also for the reason that children could not walk through the road because of the frequent plying of heavy vehicles through it. The obstruction was caused from noon on the said day. Thereafter, no vehicle was taken through the road. While so, at about 5.00 p.m., one Pushpakaran came with a lorry. PW.1 and others caused obstruction to it. Later, it was let off. Then another lorry by name “Chitira” came. That lorry was also obstructed by them. Immediately, the accused intervened and the vehicle was also released. Smt.Mallika, the aunt of the accused persuaded him to go to her house. He went to her house. After some time, the accused came out from the house of his aunt armed with a knife and stabbed on the chest of Shibu. When Shibu was going to fall down, all others who were present lent support to him and took him to Elite Hospital, Thrissur. On the way, he died. He identified MO.1 knife used by the accused. It was PW.1, who lodged the First Information Crl.A.No.664 of 2005 - 7 - Statement. He also recognised his signature in the F.I. Statement. He was extensively cross examined by the defence. But, we notice that nothing was brought out to discredit his version that it was the accused who struck the deadly blow on the chest of the deceased. PWs. 2, 3 and 5 were also occurrence witnesses. They also spoke about the accused stabbing the deceased on the chest with MO.1 knife. We notice that they also withstood the extensive cross examination by the defence. There may be some discrepancies in the details in the versions of those witnesses. But, on the main point, that the accused came from his aunt's house armed with a knife and struck the deadly blow, the witnesses have spoken consistently. 8. PW.4 is the witness to Ext.P2 inquest report. PW.6 is the attestor to Ext.P3 scene mahazar. PW.7 is the Village Assistant, who prepared Ext.P4 sketch of the scene of occurrence. PW.8 is the witness to Ext.P5 seizure mahazar under which MO.1 knife was seized. He was declared hostile by the prosecution. PW.9 was also a witness to Ext.P5 seizure mahazar. He was also declared hostile by the prosecution. But, Crl.A.No.664 of 2005 - 8 - both of them have admitted their signature in Ext.P5 seizure mahazar. PW.10 is the doctor who conducted the post mortem examination and gave Ext.P8 post mortem certificate. He has opined on the cause of death of Shibu that, he died because of the incise penetrating wound sustained on the chest. He also said that the said injury could be caused by MO.1 weapon. PW.11 is the investigating officer, who completed the investigation and laid the charge. Through him, other material objects were marked. Apart from other documents, Ext.P5 recovery mahazar was also proved through him. 9. Going by the evidence on record, as mentioned earlier, PWs.1 to 3 and 5 have consistently spoken of the involvement of the appellant in causing injury to the deceased. The medical evidence would conclusively prove that death was homicidal and it was due to the injury caused on his chest. The learned counsel for the appellant pointed out that, all those witnesses were either relatives or friends of the deceased and it is not safe to act upon their version. We are sure, such close friends or relatives will not allow the real culprit to escape and Crl.A.No.664 of 2005 - 9 - will implicate an innocent person in the offence. So, the said contention of the learned counsel for the appellant cannot be accepted. We have already noted the two other contentions of the learned counsel for the appellant, claiming the right of private defence and alternatively claiming that, the offence was committed under grave and sudden provocation. So, the offence under Section 304, Part II alone is made out, it is contended. 10. We notice that the crowd including the deceased, who blocked the road was unarmed. There was no physical violence against the vehicles or its drivers. They were causing obstruction and thereby they may be committing an offence under Section 341 of I.P.C. against the drivers of the vehicles. But, the accused in this case, went into the crowd, argued with them and caused the release of the vehicle obstructed by the local people including the deceased. Therefore, he cannot claim any right of private defence. He voluntarily went into the crowd, argued with them in support of the driver of the vehicle. There is no evidence on record to show that there was any Crl.A.No.664 of 2005 - 10 - attack by the local people on the accused. There were only heated exchange of words. There is no evidence on record that, in the incident, the accused suffered any bodily injury. Therefore, the claim of private defence has to be rejected and we do so. 11. The next point is whether the stabbing was done under grave and sudden provocation. There was no physical attack on the accused. There was only heated exchange of words, because both sides thought that their stand was correct and naturally that led to some arguments. From the scene, the accused was persuaded by his aunt to go to her house. From the house of his aunt, he found out a knife, came back with it and struck the deadly blow. We do not find any material on record to show that the accused has done the attack under grave and sudden provocation as contemplated under Exception 1 to Section 300 of the I.P.C.. The accused came from the house of the aunt with the intention to attack the deceased and for that he was armed with a deadly weapon. Knowing fully the consequences, he struck the deadly blow. We Crl.A.No.664 of 2005 - 11 - do not find any circumstance, as mentioned earlier, warranting us to take the view that this attack was done under grave and sudden provocation. We find that, it is a cold blooded murder. In the result, we find no ground to interfere with the conviction and sentence imposed on the accused. Accordingly, the Criminal Appeal is dismissed. Sd/- K. Balakrishnan Nair, Judge. Sd/- P.S. Gopinathan, Judge. DK. (True copy)