IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 5TH NOVEMBER 2007 / 14TH KARTHIKA 1929 CRL.A.No. 1061 of 2004() ------------------------ SC.220/1998 of ADDL. SESSIONS COURT (ADHOC), TRIVANDRUM CP.4/1997 & CP 92/2001 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, NEYYATTINKARA .................... APPELLANT: ACCUSED NO.1. ------------------------ VENU @ KUTHIRA VENU, S/O.RAGHAVAN PILLAI MEKKODE IDAVILAKATHU PUTHEN VEEDU, VANNIYOOR DESOM, VILAVAMKODE TALUK, PARASSALA. BY ADV. SRI.P.VIJAYA BHANU SRI.PRASUN.S RESPONDENT/COMPLAINANT: ------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05/11/2007, ALONG WITH CRA NO.1127 OF 2004 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.HEMA, JJ. ------------------------------- CRL.A.Nos.1061 & 1127 OF 2004 () ----------------------------------- Dated this the 5th day of November, 2007 J U D G M E N T KOSHY,J. Four accused faced trial for offences punishable under Sections 307 and 302 read with Section 34 of the Indian Penal Code. A1 and A2 were found guilty for offences punishable under Section 302 and 326 read with Section 34 of IPC. Against the conviction and sentence, A1 filed Crl.A.1061/2004 and A2 filed Crl.A.1127/2004. According to the prosecution, the Sub Inspector of Police, Vellarada, (PW10) got information on 4.11.1996 at 7.30 p.m. that a mini lorry carrying illicit arrack will be immediately passing through the Kathippara - Arattukuzhy road towards Tamilnadu, he along with police party reached at a place called Kathippara in a tempo van bearing registration No.KL-01 H 4368 and the police party was waiting in front of Elisa building a little bit east from Kathippara junction. PW10 deputed a police constable 50 metres east of Kathippara junction and directed him to CRL.A.Nos.1061 & 1127/2004 2 detain the lorry by showing his hands. When the lorry reached the place of occurrence, with the help of deceased Rajendran PW1 attempted to take the lorry into the custody by placing granite stones across the Arattukuzhy - Kadukkara road when the said lorry reached at a place called Kathippara and seeing the same, A1 slowed the lorry, thereby PWs.1, 10 and deceased Rajendran reached near the lorry and then A2 told A1 to “kill them by running over the lorry against them” and then A1 after reversing the lorry drove speedly towards PWs.1, 10 and deceased Rajendran, but they escaped by jumping to the northern foot path of the road and then at the tarred portion of the aforesaid road 18.6 metres east from the telephone post standing on the southern side of the side road. A1 swerved the mini lorry towards south and then drove forward, thereby the front left side of the lorry hit against the body of deceased Rajendran and PW1, thereby they were thrown to the southern foot path and the road and thereafter A1 ran over the mini lorry on the left side of buttocks and back of the deceased Rajendran resulting fracture of bones and injuries on the various parts of his body and also injuries on both wrists of PW1, right knee, fracture of left hand and deceased Rajendran succumbed to CRL.A.Nos.1061 & 1127/2004 3 injuries when he was examined by the doctor of the Medical College Hospital, Thiruvananthapuram at 11 p.m. According to the prosecution, A1 to A4 in furtherance of their common intention of causing the death of PWs.1 and 10 and deceased Rajendran and then by knowing fully well that their acts would be sufficient in the ordinary course of nature to cause their death, due to enmity towards them due to the reason that PW1 and deceased Rajendran attempted to take into custody the illicit arrack brought by them in the mini lorry committed offences punishable under Section 302 of IPC. PW10 took steps to take PW1 and deceased Rajendran to the Medical College Hospital and thereafter reached Vellarada police station and case was registered against the driver of the mini lorry and also against three others in the lorry for offences punishable under Section 307 read with Section 34 of IPC and Ext.P9 F.I.R. was prepared. PW11 Circle Inspector conducted investigation. He reached Medical College Hospital, Thiruvananthapuram and conducted inquest. PWs.1, 2 and 10 are examined to prove the occurrence. 2. PW10 who registered the F.I.R. and who was present CRL.A.Nos.1061 & 1127/2004 4 at the time of occurrence deposed that on 4.11.1996 at 7.30 p.m. he got information through phone that cans containing arrack are being loaded in a mini lorry at Sankarankadavu and immediately the same will be transported to Tamilnadu along the Kathippara - Arattukuzhy road. So he along with the Assistant Sub Inspector of Police and four other police constables went towards Kathippara in a tempo van bearing registration No.KL-01 H 4328 and the tempo van was stopped a little bit east from Kathippara infront of Elisa building and posted P.C.8274 50 metres east from the above building with a direction to stop the lorry and about 8.25 p.m. the mini lorry came from east to west, thereby the aforesaid police constable attempted to stop the lorry, but the lorry did not stop. Therefore he whistled and then the police party with the help of 4 to 5 persons who were present there placed granite stones across the road with a view to create obstruction, thereby A1 the mini lorry driver on seeing the obstruction stopped the lorry a little bit from the place of obstruction without the engine of the lorry being off and seeing the same, himself and the police partly along with others reached near the lorry and A2 who was sitting in the cabin of the lorry uttered “kill them by CRL.A.Nos.1061 & 1127/2004 5 running over the lorry”. Then A1 who was driving the lorry reversed the lorry a little bit and thereafter raised the engine of the lorry and drove the lorry forward at a high speed and therefore himself and policy party jumped towards the northern side of the road and therefore the lorry did not hit against them. But the lorry hit against the bodies of deceased Rajendran and PW1 Suresh who were standing on the southern part of the road, thereby deceased Rajendran fell on the footpath of the road and then the lorry was caused to run over his body and thereafter the lorry swerved towards north and drove at a very high speed towards west. PW10 stated that after posting two police constables there, he took steps to sent deceased Rajendran and PW1 to the hospital and after reaching the police station, suo motu case was registered. PW10 then described the incident very clearly. PW1 who was seriously injured in the incident fully support the prosecution case. PW2 another occurrence witness gave similar evidence. PW2 also corroborated the evidence of PWs.1 and 10. PWs.1, 2 and deceased Rajendran were members of the anti liquor body. There is no material to disbelieve their evidence. CRL.A.Nos.1061 & 1127/2004 6 3. PW1 sustained the following injuries mentioned in Ext.P8 wound certificate: 1. Multiple abrasions right knee. 2. Multiple abrasions left wrist with haematoma left wrist at forearm. 3. X-ray right wrist showed dislocation Radio carpel joints with fracture of carpel bones. 4. X-ray wrist showed fracture left radius lower part with Radio carpel dislocation. PW8 conducted post mortem and the following injuries were noted in Ext.P7 postmortem certificate. 1. Graze abrasion 10 x 7 cm on the back of right forearm 1 cm below elbow. 2. Abrasion 20 x 3 cm on the inner aspect of right forearm and hand 8 cm below elbow. 3. Multiple small abrasions over an area 13 x 6 cm on the inner aspect of middle of right leg. 4. Fracture of both bones of left leg 29 cm above heel. The fractured end of tibia was protruding through a lacerated wound 5 x 1 cm on the inner aspect of left leg. 5. Stretch laceration 17 x 4 x 3 cm oblique on left groin with an abrasion 25 x 13 cm around on the CRL.A.Nos.1061 & 1127/2004 7 front of upper part of left thigh with fracture fragmentation of public bone. Left sacroiliac joint showed fracture separation. 6. Multiple small abrasions over an area 8 x 2 cm involving front and side of penis just below its root. 7. Abrasion 3 x 2 cm on the back of left elbow. 8. Abrasion 8 x 6 cm on the outer aspect of left arm 4 cm below the top of shoulder. 9. Multiple small abrasions over an area 13 x 4 cm on the back of trunk just to right just to right of midline and 1 cm above the top of pelvic bone. 10. Abrasion 5 x 4 cm on the upper outer quadrant of right buttock.” PW9 also in cross examination stated that injury on the right knee may be the hit portion. The scene mahazar and the medical evidence coupled with the evidence shows that a mini lorry ran over the body of the deceased and also PW1 at the Kathippara junction as narrated by the witnesses. 4. It has come out in evidence that there was no number plate in the lorry at the time when the incident occurred. But the lorry was traced on the basis of the confession statement by A1. It is true that the mini lorry was seized and found out CRL.A.Nos.1061 & 1127/2004 8 after 21 days of the incident. It was contended that even if the seized lorry caused injuries, there is no evidence or clear identification of the driver of the vehicle or the co-passengers. But it has come out in evidence that the police party had torch in their hands and there was enough light arising from adjacent building and there was clear visibility. PW10 and police party came there and signalled to stop the vehicle. Even though it did not stop and the lorry came straight but since the granite stones were placed and seeing the police party, it stopped. Then it reversed and passed through the portion of the road where there were no granite stones. PWs.1 and deceased Rajendran along with police party were standing there. According to occurrence witnesses, lorry was ridden by the driver, hitting two persons after A2 uttered to kill those persons. Incident occurred not within seconds. First lorry was stopped by Police then only it happened. There was enough time to identify the driver and persons in the lorry. Occurrence witnesses also stated that there was enough light. Police party have torch light also. All the occurrence witnesses have seen and identified A1 as person who was driving the vehicle and others who were sitting inside the cabin of the lorry. But it is CRL.A.Nos.1061 & 1127/2004 9 very difficult to believe that they can identify the person who uttered to kill the persons and take away the vehicle. It is true that apart from the driver, there were three persons including A2 in the cabin. It is true that when the lorry was stopped, reversed and moved, they were able to see the driver and passengers in the cabin. Merely because of these persons in the cabin, it cannot be stated that they have any part in the killing or infliction of injuries on the deceased. There is no case that even though PW1 has stated that he knew A1 and A2 earlier, there is no evidence to show that he can identity A2 from the voice alone. There is no satisfactory evidence that A2 is the person who uttered to kill. Therefore we are of the opinion that benefit of doubt can be given to A2 and A2 can be acquitted. 5. As far as A1 is concerned, it was argued that no test identification parade was done. Test identification parade is a matter of the Investigating Officers for identifying the accused. PW1 also stated that he knew A1 and A2 earlier. All the four accused, that is, driver A1 and three co-passengers were identified by the occurrence witnesses. Court who saw the demeanor of the witnesses believed the same. We are of the CRL.A.Nos.1061 & 1127/2004 10 opinion that identification of A1 who was driving the lorry is very clear. He stopped the lorry and when the police party reached towards the lorry he reversed the lorry and then drove the lorry speedly hitting PW1 and deceased despite they were standing there. From the evidence, we also find that A1 was clearly identified as the driver of the lorry. All the persons were able to see the persons in the driving seat and cabin and it is A1 who drove the vehicle such a way to cause death of one person and causing serious injuries on the other. It is also argued by the counsel for the 1st accused that even if the above allegation is correct and he was identified as the driver, he is only guilty for the offence for rash and negligent driving under Section 304 A and at the maxim it will come under Section 304 II of the IPC as culpable homicide not amounting to murder as defined under Section 300. It is also argued that, even if the prosecution story is believed, they want only to escape with the lorry and there is no intention to cause any harm to PW1 or deceased. It is argued by the prosecution that even though main motive includes an escape, there was also intention to cause death as driver A1 after seeing that PW1 and deceased are standing on the part of the road where CRL.A.Nos.1061 & 1127/2004 11 granite stones were not placed, drove the lorry and inevitable consequence was known to him and further utterance of one person who is in the cabin to kill that person shows intention. Intention can be developed immediately on the spur of the moment also. Motive is defined in the Ramanathan's Law Lexicon as follows: Motive: Motive is that which stimulates or incites an action; the mainspring of human action; some cause or reason that moves the will and induces action; the moving power which impels to action for a definite result. Cause and reason that moves the will and induces action; an inducement or that which leads or tempts the mind to indulge in a criminal act [S.161, I.P.C.]. INTENT DISTINGUISHED. Motive is the moving power which impels to action for a definite result; intent is the purpose to use a particular means to effect such result in the popular mind, intent and motive are not infrequently regarded as one and the same thing. In law there is a clear distinction between them. Intention of a man is difficult to prove with precision. Circumstances to develop intention may differ from person to person. Intention of a person is to be gathered from the circumstances of each case. The words used by one of the CRL.A.Nos.1061 & 1127/2004 12 accused from the cabin 'to kill and go' would show the intention developed to run over PW1, deceased etc. who are creating obstructions and the act of the 1st accused in driving the vehicle in that space even after seeing that PW1 and deceased Rajendran are standing in the portion of the road where no granite stones were put and inevitable consequence which a driver can foresee also supports the prosecution case. It is not a mere case of rash and negligent driving or act done only to escape. Here the vehicle was stopped. Thereafter A1 took a reverse and speeded up and drove through the place where there were no granite stones so as to endanger the lives of PW1 and deceased who were standing there. In the above circumstances, we are of the view that trial court was correct in convicting A1 for the offences punishable under Section 302. 6. It is argued by the Public prosecutor that the activity of A1 will squarely applicable under the 3rd clause of Section 300 of the IPC as it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death and relied on often quoted decision of the Apex Court in CRL.A.Nos.1061 & 1127/2004 13 Virsa Singh v. State of Punjab (AIR 1958 SC 465). But we are of the opinion that even if it is not coming under the 3rd clause of Section 300, it will come under 4th clause of Section 300 of IPC. Section 300 reads as follows: Section 300: Murder:- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or- Secondly:- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or - Thirdly:- If it is done with the intention of causing of bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or- Fourthly:- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. xxx xxx xxx 4th clause of Section 300 is applicable if the act by which death is caused is so imminently dangerous, that the accused must CRL.A.Nos.1061 & 1127/2004 14 be presumed to have known that it would in all probability cause death of such bodily injury as is likely to cause death. Apex Court in Santosh v. The State of Madhya Pradesh (AIR 1975 SC 654) held that an intention to kill is not required in every case. A knowledge that the natural and probable consequences of the act would be death, will suffice for a conviction under Section 302. Apex Court in State of Andhra Pradesh v. Ram Prasad (AIR 1968 SC 881) held that fourthly of Section 300 is invoked in those cases where there is no intention to cause death of any particular person and it also covers cases where there is such callousness towards the result and the risk taken is such that the person knows the act is so imminently dangerous, that it may likely to cause death or bodily injury and is likely to cause death if any particular person is not targetted. The evidence in this case shows that A1 drove the bus through the space where PW1 and deceased were standing, knowing fully well that in all probability it may cause death or cause such bodily injuries likely to cause death. It is not mere rash and negligent Act coming under Section 304 A. There was no reasonable excuse for the Act and he is not entitled to the benefit of any of the exception. The CRL.A.Nos.1061 & 1127/2004 15 evidence in this case fully justified the conviction under Section 302. PW1 did not die even he also resulted to injuries likely to cause death in the ordinary course. For the same reasons conviction and sentence of A1 under Section 326 is confirmed. In the result, conviction and sentence imposed against A1 is confirmed. However, Prosecution was not able to prove the case against A2 beyond reasonable doubt. Hence A2 is acquitted and he should be set free forthwith if his continued detention is not required in any other case. Crl.A.No.1061/2004 is dismissed and Crl.A.No.1127/2004 is allowed accordingly. J.B.KOSHY, JUDGE K.HEMA, JUDGE prp J.B.KOSHY & K.HEMA, JJ. -------------------------------------------------------- CRL.A.Nos.1061 & 1127 OF 2004 --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 5th November, 2007