IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 7TH JULY 2010 / 16TH ASHADHA 1932 CRL.A.No. 1736 of 2006() ------------------------ SC.265/2002 of ADDL.SESSIONS COURT, PARAVUR CP.23/2001 of JUDL.MAGISTRATE OF FIRST CLASS-II, ALUVA .................... APPELLANT: ACCUSED: ---------------------- KOCHAGASTHY, S/O. LONAPPAN, NELLISSERY VEEDU, KOKKUNNUKARA, MOOKKANNUR VILLAGE. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT(S): ACCUSED: ----------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI. P.N. SUKUMARAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/06/2010, THE COURT ON 07/07/2010 DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No. 1736 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of July, 2010 JUDGMENT Joseph Francis, J. This appeal is filed by the accused in S.C. No.265 of 2002 on the file of the Additional Sessions Court, N.Parur. That was a case charge sheeted by the Circle Inspector of Police, Angamaly against the accused under Section 302 I.P.C. 2. The prosecution case is that on 10.6.2000 around 1 p.m. the accused committed murder of one Jose, aged about 35, s/o. Thoman, Nellissery Veedu, near Veternary Hospital, Kokkunnu Kara, Mookkannur village by stabbing him on his chest with a knife, while he was at the southern side of the road situated on the northern side of the property owned by Varghese, s/o. Ouseph, Nellanattukara, Kokkunnu, Anappara Road near Crl.A.No. 1736 of 2006 2 Vetenary Hospital, Kokkunnu kara, Mukkannur Village and thereby committed an offence punishable under Section 302 IPC. 3. PW1 - Varghese gave Ext.P1 F.I. statement before the police, on the basis of which, a case was registered as Crime No. 301 of 2000 of Angamaly Police Station and investigated. After completing the investigation, charge sheet was laid before the J.F.M.C. - II, Alwaye, from where it was committed to the Sessions Court, Ernakulam. Subsequently the case was made over to the Additional Sessions Court, N.Parur for trial and disposal. 4. In that court, on the side of the prosecution, Pws. 1 to 14 were examined, Exts.P1 to 13 were marked and Mos.1 to 10 were identified. On the defence side DW1 was examined. The learned Additional Sessions Judge, on considering the evidence, found that the accused committed murder of deceased Jose and he was convicted and sentenced to undergo imprisonment for life under Section 302 I.P.C. Against that conviction and sentence the accused filed this appeal. Crl.A.No. 1736 of 2006 3 5. Heard learned counsel for the appellant and the learned Public Prosecutor. 6. Learned counsel for the appellant submitted that the court below ought to have found that PWs. 1 and 2 being relatives of deceased and as such they are interested witnesses and no reliance could be placed on their testimony. Learned counsel for the appellant further submitted that the motive alleged by the prosecution is not proved. Learned counsel for the appellant submitted that there was no recovery under Section 27 of the Evidence Act. The learned counsel further submitted that the court below ought to have found that the prosecution has not proved its case beyond reasonable doubt and therefore the appellant is entitled to get an acquittal. The learned Public Prosecutor supported the judgment of the court below. 7. There is no dispute that the accused and the deceased are cousins. PW1-Varghese is an eye witness to the occurrence, who gave Ext.P1 F.I. statement before the police. PW1 deposed that on 10.6.2000 at about 12 noon while he was returning from the tea shop Crl.A.No. 1736 of 2006 4 of one Lonappan, he saw the accused and deceased Jose at the place of occurrence and the accused inflicting a stab injury on the chest of Jose by using MO1 knife. On receiving the stab injury, deceased Jose sat down on the ground slowly and fell down. According to PW1, the occurrence took place while they were on the side of the road situated on the northern side of his house near the compound wall. PW1 rushed to the scene of occurrence and PW2 and CW3 also came there. PW1 took the mundu worn by the deceased and pressed it on the wound in order to prevent the flow of blood. 8. PW2 - Elsy, who is the wife of one of the elder brothers of deceased, came there and she gave a bed sheet. PW1 then tied the deceased with the bed sheet over the wound around the body so as to prevent the flow of blood. PW1 deposed that after stabbing on the chest of Jose, the accused ran away from the scene of occurrence. PW1, along with PW7 and CW3 took Jose in an autorikshaw to Little Flower Hospital, Angamaly and on the way to the hospital Jose Crl.A.No. 1736 of 2006 5 succumbed to the injuries. PW1 identified MO1 as the knife used by the accused to stab the deceased. 9. PW2 - Elsy is another eye witness to the occurrence. Deceased Jose is the brother of her husband. According to PW2, at the time of occurrence she was standing in the courtyard of her house. At that time the accused came to the scene of occurrence from west and stabbed on the chest of Jose by using MO1 knife and on receiving the stab injury Jose slowly sat down on the ground and then fell down. PW2 deposed that the occurrence took place near the compound wall of PW1. On seeing the incident, PW2 immediately rushed to the scene of occurrence, but returned back due to fear. Then she entrusted her child to her mother and proceeded to the house of PW4 situated on the southern side and called her sister-in-law. She also took a white bed sheet (cloth) as requested by PW1 and PW7 and entrusted the same to her sister-in-law, PW4, and according to her it is PW4, who brought the white bed sheet to PW1 in the occurrence place and she has identified the same as MO3 while in the box. She also identified the Crl.A.No. 1736 of 2006 6 shirt worn by the deceased at the time of the alleged occurrence as MO4 and the shuddy as MO5 and the chappels of the deceased as MO6. Besides, she had also identified MO1 knife as the weapon used for inflicting injury on the deceased by the accused. 10. PW3 is another eye witness to the occurrence, who turned hostile. According to PW3, he had seen the deceased lying on the road in and around 1 pm on 10.6.2000 and at that time PW1 along with CW3 and PW7 were there at the occurrence place and they took Jose from the ground and a bed sheet was tied around his body. Further, according to him, CW6 has informed him immediately after the incident that the accused has inflicted stab injury on the deceased. According to him, there was a quarrel in between the deceased and the accused on the very same day just two hours before the alleged incident and after the quarrel the accused went away towards south and Jose went away towards east. He deposed that they used to pick up quarrel occasionally. Crl.A.No. 1736 of 2006 7 11. PW4 - Thresiamma, deposed that PW2 entrusted her MO3 white bed sheet, which was given to PW1 and it is with that cloth PW1 tied the wound of the deceased and the deceased was taken to Angamaly Little Flower Hospital in an autorickshaw by Pws. 1, 7 and CW3. 12. PW7, the younger brother of the accused turned hostile. But he had admitted that he proceeded to the occurrence place after the alleged incident and took the deceased to the hospital along with PW1 and CW3. He also deposed that PW2 - Elsy and PW4 - Thressiamma came to the occurrence place and also stated about the white cloth (bed sheet), which was used for tying the wound around the body of Jose, even though he was turned hostile. 13. The accused was arrested on 13.6.2000 by PW14, Circle Inspector of Police, Angamaly. Then the accused gave a confession statement to PW14, which was recorded by him and according to the prosecution, in furtherance of the said information as led by the accused MO1 was recovered from the place, where it was kept. Ext.P6 Crl.A.No. 1736 of 2006 8 is the recovery mahazar and PW9 is one of the witnesses to the recovery mahazar. According to PW9, he had seen the police jeep while he was returning from his shop to his house and the police brought the accused to the property wherein the house by name Maliakkal is situated. 14. PW11 is Dr.Zacharia Thomas, who was working as Lecturer in Forensic Science and Assistant Police Surgeon, Medical College Hospital, Alleppey, who conducted the postmortem examination on the body of deceased Jose on 11.6.2000. Ext.P8 is the postmortem certificate, in which it is stated as follows: “A. General Body of a moderately built and nourished adult male of height 169 cms. Eyes were closed. Conjunctivae pale. Pupil were in mid position. Face, lips and finger nails were pale. All external body orifices were normal. Dry blood stains seen on the front of abdomen and both lower limbs. Crl.A.No. 1736 of 2006 9 Cornea bazy. Rigormortis fully established and retained all over. Postmortem staining at the back of trunk seen, fixed. No sign of decomposition. Body was not kept in cold room. B Injury (Antemortem) 1. Incised penetrating wound 3.5 x 0.5 cm, obliquely placed on the left side of front of chest, 3 cm above nipple, its upper end showed splitting of tissues with infiltration and as placed 9.5 cm. to the left of mid line and 11 cm. below collar bone. The lower end was clean cut. The wound was directed downwards, backwards and to the right for a total minimum depth of 7 cm, and in its course, cut the 4th rib. Structures of 4th intercostal space and terminated by cutting the wall of right lower chamber of the heart, involving its whole thickness. The left lung was collapsed and pale. Pericardial contained 15 ml. of fluid blood. The left chest cavity contained 1550 ml. of dark fluid blood mix with clots. Crl.A.No. 1736 of 2006 10 C. Other Findings: Air passages were pale. Stomach contained 200 ml. of milky fluid mixed with soft whitish unidentifiable food material with a sour odour its mucosa was normal. All internal organs appeared normal. Blood sample was collected and preserved for chemical analysis. The opinion as to cause of death is stated by the doctor in Ext.P8 certificate as 'died of stab injury sustained to the chest involving heart' and according to the doctor the above injury can be produced by a weapon like MO1. 15. When the accused was questioned under Section 313 Cr.P.C. his defence is alibi. But DW1, who is examined on the side of the accused, did not speak about alibi pleaded by the accused. PW1 is equally related to the accused and the deceased and therefore there is no possibility of false implication of the accused. Since the testimony Crl.A.No. 1736 of 2006 11 of Pws. 1 and 2 is corroborative of each other on all material particulars and duly corroborated by the medical evidence, we are of the view that the learned Additional Sessions Judge is perfectly justified in arriving at a conclusion that the accused caused the death of deceased Jose by stabbing him on the chest by using MO1 knife. 16. The next question to be considered is as to what is the offence committed by the accused. In Ext.P6 seizure mahazar relating to MO1 knife the description of MO1 is given as follows: 17. PW11, who conducted the postmortem examination, did not depose the fact that MO1 kitchen knife is a dangerous weapon and the injury caused on the body of Jose is sufficient in the ordinary course of nature to cause death. 18. In the decision reported in Mahesh Balmiki alias munna v. State of Madhya Pradesh (AIR 1999 SC 3338) it was held that : Crl.A.No. 1736 of 2006 12 “There is no principle that in all cases of single blow S.302, IPC is not attracted. Single blow may, in some cases, entail conviction under S. 302, IPC, in some cases under S. 304, IPC and in some other cases under S. 326, IPC. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. The nature of the injury, whether it is on the vital or non-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him.” 19. In the decision reported in Mavila Thamban Nambiar v. State of Kerala (AIR 1997 SC 687), it was held that : “The appellant had given one blow with a pair of scissors on the vital part of the body of Madhavan and, therefore, it would be reasonable to infer that he (appellant) had knowledge that any injury with the pair Crl.A.No. 1736 of 2006 13 of scissors on the vital part would cause death though he may not have intended to commit the murder. We accordingly alter the conviction of the appellant from 302 IPC to one under Section 304, Part II of the IPC. In the decision reported in Tholan v. State of Tamil Nadu (1984 (2) SCC 133), it was held that: “Single knife blow, ordinarily sufficient to cause death, inflicted on chest of the deceased on the spur of the moment. Deceased having no previous dispute with the accused and his presence at the scene of occurrence wholly accidental. Even if exception I to Section 300 not attracted, held, the requisite intention under Section 300 absent and therefore, conviction under Section 302 not proper. But the accused having wielded a weapon like a knife, he can be attributed with the knowledge that he was likely to cause injury which was likely to cause death. Hence, accused must be convicted under Section 304 Part II.” Crl.A.No. 1736 of 2006 14 20. In the decision reported in Jayaraj v. State of Tamil Nadu (1976 (2) SCC 788), it was held that: “It was incumbent on the prosecution to question the medical witness specifically as to whether all or any of the injuries found on the deceased was sufficient to cause death in the ordinary course of nature. But this was not done. Also death resulted after nine or ten days during which the deceased was operated upon in the hospital. So the prosecution had failed to prove beyond all manner of doubt that this injury on the abdomen of the deceased, was sufficient to cause death in the ordinary course of nature. The act of the appellant did not amount to murder, the nature of the offence committed would be culpable homicide not amounting to murder.” 21. In the decision reported in Jagtar Singh v. State of Punjab (1983 (2) SCC 342) it was held that: Crl.A.No. 1736 of 2006 15 “Single knife blow inflicted deep in the chest on a trivial quarrel resulting in injury to the heart and death of the deceased. On facts of the case, conviction under Section 302 found to be improper. In the circumstances held, the accused had knowledge that he was likely to cause an injury which was likely to cause death. Hence he must be convicted under Section 304 Part II of I.P.C. 22. In the decision reported in Vijayan v. State of Kerala (1982 KLT Short Notes Case No.9), it was held that: “No doubt the injury is on the chest. But the evidence is not clear whether the appellant actually aimed a stab on the chest or whether it fell on the chest accidentally; although it has been conclusively proved that it was the appellant who caused the injury. It is not clear from the evidence that the appellant intended this injury. PW8 is the Doctor, who held autopsy over the dead body and his Crl.A.No. 1736 of 2006 16 evidence only shows that this injury can cause death in the ordinary course. Therefore the fourth element of S.300 IPC namely the nature of the injury and sufficiency of the injury to cause death, which has to be proved objectively has not been established beyond reasonable doubt in this case. In a murder case, it is incumbent on the prosecution, while examining the Doctor, who held autopsy over the dead body, to question him and elicit particulars regarding the cause of death and the nature of the injury, namely whether the injury was necessarily fatal or sufficient in the ordinary course of nature to cause death or was only likely to cause death. If the prosecutor fails in his duty in this regard, the Sessions Judge also has a duty to put necessary questions to the doctor and elicit the necessary particulars.” 23. In the decision reported in Magister Chaudhary and others v. State of Bihar (2006 (10) SCC 639, it was held that: Crl.A.No. 1736 of 2006 17 “Single injury inflicted on the left side of the chest of the deceased. Doctor not opining that the injury was sufficient in the ordinary course of nature to cause death or was likely to cause death. No attempt made by the accused to cause serious injury on any vital part of the deceased neither was there any motive or intention to commit murder. Held, the case falls within the third part of Section 299 and will be punishable under the second part of Section 304 IPC as culpable homicide not amounting to murder. Act was done with the knowledge that it was likely to cause death. Hence conviction altered from S.302 to S.304 Pt. II.” 24. In the present case the accused inflicted only one injury on the chest of the deceased with MO1 kitchen knife and when PW1 came to the scene of occurrence, the accused ran away with the knife. As already mentioned, PW11, the doctor who conducted the postmortem examination, did not depose that the injury inflicted by using MO1 Crl.A.No. 1736 of 2006 18 kitchen knife is sufficient in the ordinary course of nature to cause death and he did not opine that MO1 kitchen knife is a dangerous weapon. 25. Since the accused had given only a solitary blow on the chest of the deceased with MO1, which is an old rusted kitchen knife and he did not make any attempt at giving a second blow, and as there is no evidence to show that the single injury thus caused is sufficient in the ordinary course of nature to cause death it cannot be said that the accused had the intention to commit murder of the deceased, but the accused could be attributed to the knowledge that he was likely to cause an injury which was likely to cause death. Therefore, we are of the view that the accused had committed an offence punishable under Section 304 Part II of I.P.C. and not under Section 302 I.P.C. Considering the facts and circumstances of the case, we are of the view that sentencing the accused to undergo R.I. for a period of 8 years under Section 304 Part II of I.P.C. would meet the ends of justice. Crl.A.No. 1736 of 2006 19 26. Accordingly this appeal is allowed in part. The conviction and sentence of the appellant/accused in S.C. No. 265 of 2002 on the file of the Additional Sessions Court, N. Parur under Section 302 I.P.C. is set aside and the appellant is convicted and sentenced to undergo R.I. for a period of 8 years under Section 304 Part II of I.P.C.. The appellant is entitled to get set off under Section 428 Cr.P.C. The court below is directed to issue revised committal warrant. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm