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 4TH FEBRUARY 2010 / 15TH MAGHA 1931 CRL.A.No. 992 of 2006() ----------------------- SC.1255/2004 of ADDL. DISTRICT AND ADDL.SESSIONS COURT -I(ADHOC), KOLLAM CP.148/2003 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOTTARAKKARA .................... APPELLANT: ACCUSED NO.3 ----------------------------------- ASKAR, S/O.ABDUL KARIM, SOUDA MANZILIL, ELAMPAZHANOOR MURI, KADAKKAL VILLAGE. BY ADV. SRI.SHABU SREEDHARAN SRI.P.A.NOOR MUHAMMED SRI.C.K.PRASAD RESPONDENT: COMPLAINANT --------------------------------- STATE OF KERALA, REP: BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI K.J.MOHAMMED ANZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04/2/2010, ALONG WITH CRA NOS. 1360 OF 2006 & CRA NO.2529 OF 2006 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ---------------------------------------------- CRL.APPEAL Nos.992, 1360 & 2529 OF 2006 -------------------------------------------------------------- DATED THIS THE 4th DAY OF FEBRUARY, 2010 J U D G M E N T Basant, J. (i) Does the offence of culpable homicide allegedly committed by the first accused amount to murder or not? (ii) Can accused Nos. 2 and 3 be held to be guilty of sharing the common intention with the first accused and consequently held constructively liable for the offence allegedly committed by the first accused? These are the questions that principally arise for consideration in these appeals. 2. These appeals are preferred by the 3 accused persons/appellants who are found guilty, convicted and sentenced for the offence punishable under section 302 read with section 34 IPC. Each of them face the sentence of imprisonment for life. The appellants/accused are being referred to in this judgment as accused Nos.1 to 3 respectively. Crl.A.Nos.992, 1360 & 2529/2006 -2- 3. The charge against the accused persons is that they in furtherance of their common intention caused the death of deceased Mujeeb - by accused No.3 pushing the deceased, Accused No.2 catching hold of the hand of the deceased and facilitating the infliction of a stab injury by accused No.1 and accused No.1 by stabbing the deceased twice with MO3 knife which the first accused allegedly had in his possession, on 27.1.1999 at about 11.30 p.m. at Kadackal Village on the public road in front of the house of PW3. 4. The factual allegations raised by the prosecution against the accused persons can be summarised as follows: 5. Deceased Mujeeb was a taxi driver. Along with PW1, a friend of his, he was passing through the road in his car. Accused Nos.1 to 3 stopped the car and wanted them to be taken in the car. The deceased had reservations about accused Nos.1 and 2. He felt that they had an unacceptable past record. He was not willing to take them in his car. He stated that he will take accused No.3; but not accused Nos.1 and 2. An exchange of words ensued. Accused No.3 told the deceased that after all he was going to make the payment and accused Nos.1 and 2 must Crl.A.Nos.992, 1360 & 2529/2006 -3- be carried in the car along with him. PW1, a friend of the deceased Mujeeb also advised the deceased not to make an issue of it and to carry accused Nos.1 and 2 also in the car. The deceased obliged in silence. Thereupon accused Nos.1 to 3 got in and occupied the rear seat of the car. The deceased was driving the car. They came across PW2, who, as he did not get any bus to carry him to his destination, was walking along the road. PW2 stopped the car and he was permitted to enter and occupy the front seat of the car. The car proceeded with PW1, PW2 and deceased driver on the front seat and accused Nos.1 to 3 in the rear. When the car reached the road in front of the house of PW3, accused No.1 wanted the car to be stopped. All of them, ie., accused Nos.1 to 3 got out of the car through the rear door. The 3rd accused stated contemptuously that the car was a special car which does not admit all persons (അയതമള ക റ ണ ) and therefore fare will be paid only whe n money is available. The deceased was really perturbed at this impropriety. He demanded that money must be paid before the accused persons left. Accused No.1 at this stage pushed the Crl.A.Nos.992, 1360 & 2529/2006 -4- deceased. The deceased thus reached a water tub which was there near the scene. The deceased caught hold of accused Nos.1 and 3 with his hands and demanded that they must pay the money and then only leave. 6. At that juncture accused No.3 allegedly pushed the deceased stating that the deceased does not appear to improve. The second accused at this juncture caught hold of the hand of the deceased. PWs 1 and 2 who were siting in the car smelt trouble and they came towards the deceased. At that stage, when the deceased was held by accused No.2, accused No.1 took out MO3 knife and planted a stab on the abdomen of the deceased. Accused Nos.2 and 3 ran away from the spot at this juncture. The deceased cried aloud and placed his one hand on the site of the injury. He went after the first accused and caught hold of the dhothi of the first accused with the other hand. The first accused then planted another stab on the back of the deceased. He extricated himself from the deceased who was holding his dhothi. The dhothi came into the hands of the deceased. Accused No.1 ran away with the knife. The deceased was taken to the hospital. He was pronounced dead. Crl.A.Nos.992, 1360 & 2529/2006 -5- 7. Investigation commenced with Exhibit P1 FI Statement lodged by PW1 before the police. Exhibit P1(a) FIR was registered. Investigation was completed by PW12 Investigating Officer, who filed the final report. Cognizance was taken. The case was committed to the Court of Sessions in accordance with law. 8. All the three accused denied the offence alleged against them and thereupon the prosecution examined PWs 1 to 12 and proved Exhibits P1 to P11. MOs 1 to 4 were also marked. 9. In the course of cross examination of the witnesses and when examined under Section 313 Cr.P.C., accused Nos.1 to 3 admitted that an incident had taken place. According to the second accused there was an exchange of words between the deceased on the one side and accused Nos.1 and 3 on the other at the scene. He therefore did not wait there and went away. He did not know anything more about the incident. 10. The 3rd accused took the stand that he does not know how the deceased suffered injuries. He admitted that he had travelled in the car till the scene of occurrence. He later, came Crl.A.Nos.992, 1360 & 2529/2006 -6- to know that the deceased had died of stab injuries. Accused No.1 took the stand that there was an altercation between the deceased on the one hand and Accused Nos.1 and 3 on the other. Seeing this, PWs 1 and 2 had come to him with a drawn knife. Deceased had caught hold of his dhothi. The stab which was attempted to be planted on him had landed on the abdomen of the deceased. He lost his dhothi at the scene. He ran away to his house. Only next morning he came to know that the deceased had died of stab injury. No defence evidence, oral or documentary, was adduced. 11. We shall straightaway advert to the evidence relied on by the prosecution. PWs 1 and 2 are eye witnesses to the occurrence. There is no serious dispute about their presence at the scene of occurrence. Exhibit P1 is the FI Statement lodged by PW1 before PW11 Sub Inspector of Police on the basis of which Exhibit P1(a) FIR was registered. MO1 dhothi of the 1st accused, MO2 clothes of the deceased and MO3 knife were marked through PW1. Both PWs 1 and 2 supported the prosecution case in toto. PW3 is an adjacent house owner who allegedly had come to the scene on hearing the commotion. He Crl.A.Nos.992, 1360 & 2529/2006 -7- was cited as a witness. He did not support the prosecution case. He turned hostile completely. According to him, he had not witnessed the occurrence. PW4 is an attestor to Exhibit P2 inquest report prepared by the police after examining the body of the deceased. PW5 is an attestor to Exhibit P3 scene mahazar under which MO4, one of a pair of slippers was seized by the police from the scene. PW7 is the owner of the car which the deceased was driving at the relevant time and Exhibit P5 is the kaichit/bond under which the vehicle was released to him by the police. PW8 is the doctor who conducted the postmortem examination and issued Exhibit P6 postmortem certificate. Exhibit P7 is the chemical Examiner's report which shows that the deceased had consumed alcohol and had 69 mg. per 100 ml. of alcohol content in his blood. PW9 is the Village Officer who prepared Exhibit P3(a) sketch of the scene of occurrence. PW10 is the Doctor to whom the deceased was taken immediately after the occurrence and who pronounced him dead. PW12 had conducted the investigation. In the course of investigation, he had arrested accused No.1 on 28.1.1999 at about 11.10. p.m. He was interrogated. In such interrogation, he allegedly made a Crl.A.Nos.992, 1360 & 2529/2006 -8- confession statement. He furnished information about the concealment of MO3 knife. Under Exhibit P4 seizure mahazar PW12 seized MO3 knife from the place of concealment as pointed out by the first accused. Exhibits P8 to P11 were also marked through PW12. 12. The court below on an anxious evaluation and appreciation of the evidence tendered came to the conclusion that the oral evidence of PWs 1 and 2, which is duly supported by the prompt Exhibit P1 FI Statement and the recovery of MO3 knife on the basis of the confession statement of the 1st accused under Exhibit P4, can safely be accepted and acted upon. Accordingly, the court came to the conclusion that the offence alleged against the accused has been proved. The first accused had planted both the stabs intentionally on the deceased and consequently it was found that he was guilty of the offence punishable under Section 302 IPC. The court entered a finding of fact that all the three accused had acted in furtherance of their common intention. Therefore, accused Nos.2 and 3 were also found guilty under Section 302 read with Section 34 IPC. The court below accordingly proceeded to pass the impugned Crl.A.Nos.992, 1360 & 2529/2006 -9- verdict of guilty, conviction and sentence imposing the lesser of the two alternative sentences permissible under Section 302 IPC on all the three accused. 13. Before us the learned counsel for the appellants and the learned Public Prosecutor Shri K.J.Mohammed Anzar have advanced their arguments. On the arguments advanced at the Bar, the following points arise for determination. 1) Whether the court below was justified in accepting and acting upon the oral evidence of PWs 1 and 2? 2) Even if the version of PWs 1 and 2 were accepted, was the court below justified in coming to the conclusion that an offence punishable under Section 302 IPC has been proved against the first accused? 3) Is the court below justified in coming to the conclusion that accused Nos.2 and 3 are constructively liable for the offence of murder by the application of the principle of vicarious constructive culpable liability under Section 34 Crl.A.Nos.992, 1360 & 2529/2006 -10- IPC? 14. We will now go to the first point raised. Oral evidence of PWs 1 and 2 is there to reveal before court what happened on the date of occurrence at the scene of occurrence. The presence of PWs 1 and 2 at the scene is unambiguously admitted by all the accused. Accused .2 and 3 make no allegations against PWs 1 and 2 whereas accused No.1 wants the court to believe that they had, with a drawn out knife, gone towards the accused and the deceased while quarrel was going on. This remains in the realm of a totally unsubstantiated suggestion thrown at the witnesses and in the 313 statement of 1st accused. We find absolutely no reason to doubt, suspect or discard the evidence of PWs 1 and 2. The presence of PWs 1 and 2 at the scene is admitted. The circumstances under which all the six persons – deceased, PW1, PW2, Accused Nos.1, 2 and 3, reached the scene of occurrence is explained satisfactorily by the oral evidence of PWs 1 and 2. Their version about the incident gets convincing support from the almost contemporaneous and prompt FI Statement, Exhibit P1. A fairly exhaustive narration of the sequence of events at the scene of the crime is given in Exhibit P1 by PW1. Evidence of Crl.A.Nos.992, 1360 & 2529/2006 -11- PW1 and PW11 shows that the said version was recorded on the same night at 12.25 p.m. (00.25 hours). Exhibit P1(a) FIR, it is seen, had reached the Court only at 7.35 p.m. on 29.1.1999. But, we find no reason to doubt or suspect the evidence of PWs 1 and 11 that Exhibit P1 FI Statement was given at 00.25 hrs. on 27.1.1999 and the crime was registered at the Police Station immediately. The fact that the FIR reached the court at 7.35 p.m. on 29.1.1999 [as seen from the signature of the learned Magistrate on Exhibit P1(a)], is according to us too feeble and insufficient a reason to doubt or suspect the version of PWs 1 and 2. The significance of the FIR reaching the court belatedly varies in the facts and circumstances of each case. We are not in the circumstances of this case persuaded to attach any crucial significance to such delay in the FIR reaching the court, though we are dissatisfied that there was such delay in the FIR reaching the court. The evidence of PWs 1 and 2 gets support from the perceptions of the Investigating Officer at the scene of the crime recorded in the scene mahazar - Exhibit P3. Their evidence gets further support and corroboration from the recovery of concealed MO3 knife on the basis of Exhibit P4(a) information Crl.A.Nos.992, 1360 & 2529/2006 -12- furnished by the first accused in his confession to the police. To sum up, we find not a semblance of doubt, suspicion or reservation to accept and act upon the oral evidence of PWs 1 and 2. The first point raised must in these circumstances be answered against the appellants. 15. We now come to the nature of the offence committed by the first accused. We find that both injuries found on the person of the deceased were inflicted by the first accused with MO3 knife. It will be apposite straightaway to look at MO3 knife. MO3 is a folding knife. The blade portion has a length of 7.75 cms. The broadest portion of the blade has a width of 1.25 cms. When closed, the knife has a total length of 9.5 cms. 16. We take note of the nature of the weapon first of all. The injury was inflicted with such a weapon. The intention to cause death cannot be deciphered when they started the journey or reached the scene of occurrence. The nature of the weapon also shows that an intention to cause death cannot be readily gathered from the nature of the weapon or the situs of the injury. As stated earlier, there is no semblance of doubt that both the injuries described in Exhibit P6 were inflicted by the first Crl.A.Nos.992, 1360 & 2529/2006 -13- accused with MO3 knife. The question now is what offence has been committed by the first accused. That death has resulted from the injuries is evident from Exhibit P6 and the oral evidence of PW8. That injury No.1 is sufficient in the ordinary course of nature to cause death is also clear from Exhibit P6 and the oral evidence of PW8. Objectively viewed, as explained in Virsa Singh v. State of Punjab (AIR 1958 SC 465), injury is sufficient in the ordinary course of nature to cause death. That injury undoubtedly was intentionally inflicted. It cannot be described to be an accidental injury. The learned counsel for the first accused vehemently argues that an intention to cause that injury cannot be deciphered or inferred. We are unable to agree. The injury and the nature of injury is proved. That it was inflicted with MO3 knife is also established. There is not a semblance of data which can arouse any amount of doubt, in the mind of the court that the very injury was intended. Under Section 114 of the Evidence Act that inference is liable to be drawn in the absence of any other circumstance. We do in these circumstances come to the conclusion that though an intention to cause death as to attract Clause (1) of Section 300 IPC is not Crl.A.Nos.992, 1360 & 2529/2006 -14- available, the case squarely falls within Clause (3) of Section 300 and the culpable homicide committed by the first accused gets included in the offence of murder defined under Section 300 IPC in view of the 3rd clause of Section 300 IPC. We do not find any hesitation to endorse the conclusion of the court below that the offence committed by the first accused thus falls under the sweep of Section 300 IPC. 17. The learned counsel for the first accused Shri Gracious Kuriakose contends that in any any view of the matter, the offence allegedly committed by the first accused must be brought down and must slide back to the offence of culpable homicide not amounting to murder in the light of Exception 4 to Section 300 IPC. It is the contention of the learned counsel for the first accused that it was the sudden quarrel which led to a sudden unpremeditated fight and the injury must at any rate be held to have been inflicted in the heat of passion. The learned counsel hence contends that the offence proved against the first accused is punishable only under Section 304 IPC. The learned counsel hastens to submit that no undue advantage has been taken by the first accused and he cannot be Crl.A.Nos.992, 1360 & 2529/2006 -15- said to have acted in any cruel or unusual manner. In these circumstances, the learned counsel prays that the first accused may be given the advantage of Exception 4 to Section 300 IPC. 18. We shall have a look at Exception 4 of Section 300 again. It reads: “Exception 4.- 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.” 19. We have anxiously considered this plea. The burden, it is trite, is on the accused to show before the court that the offence allegedly committed by him would fall within the sweep of Exception 4. He does not of course have the burden to adduce any evidence in support of such plea. He can certainly rely on the materials relied on by the prosecution and which have been brought out in the course of cross examination and the defence evidence if any to contend that he must be granted the benefit of Crl.A.Nos.992, 1360 & 2529/2006 -16- any one of the Exceptions. 20. The crucial question is whether the first accused can claim the advantage of Exception 4. All the circumstances indicated in Exception 4 must simultaneously co-exist to justify the invocation of Exception 4. Having rendered our very anxious consideration to this plea laboriously raised by the learned counsel for the first accused Shri Gracious Kuriakose, we are unable to agree that by any stretch of imagination that the quarrel which led to the fight can be said to be a sudden quarrel. Persons who travelled in a taxi car were obliged to pay money/fare. More so, in the instant case where the driver of the taxi car had reservations to admit accused Nos.1 and 2 and was finally prevailed upon to so carry them on the promise that fare shall be paid by one of them(accused No.3) and he need not worry about the fare. Such persons after they get out of the car and walk away without paying the money and a quarrel ensues, it cannot by any stretch of imagination be held that it was a sudden quarrel. It was a quarrel which must have been anticipated. It was a quarrel which the accused bargained for. Exception 4 jurisprudentially must be reckoned as a humane Crl.A.Nos.992, 1360 & 2529/2006 -17- provision accepting the fact that even the most rational of men may under the heat of passion do acts which they may not have done or would not do if saner faculties were to prevail. To such persons, law in a humane manner, permits mitigation if and only if it is proved that the passion happened to run in a sudden fight upon a sudden quarrel. Any reasonably prudent person must have anticipated that there shall be a quarrel if he walks away from a taxi car without paying heed to the demand of the driver that the fare must be paid. We have not a semblance of doubt in our mind that the quarrel which led to the fight and running of passion was not a sudden fight. It was an anticipated fight. Nay, all the accused bargained for it. In these circumstances, we hold that the first accused/appellant is not entitled to the benefit of Exception 4 to Section 300 IPC. Accordingly, we confirm the conviction of the first accused under Section 302 IPC. The second point is answered in favour of the prosecution. 21. We now come to the play of Section 34 IPC. Culpable liability normally must arise from action of an individual. Law recognises vicarious/constructive culpable liability under certain exceptional circumstances. Sections 34, 120B and 149 IPC are Crl.A.Nos.992, 1360 & 2529/2006 -18- the most common examples where law saddles a person with vicarious culpable liability. We are concerned in this case about the play of Section 34 IPC. Before proceeding to consider the play of Section 34 against accused Nos.2 and 3, it may be appropriate and apposite to record specifically findings of fact against accused Nos.2 and 3 which are justified on the basis of the evidence available. 22. We have already taken note that the evidence of PWs 1 and 2 can be believed. Once the evidence of PWs 1 and 2 duly supported and corroborated by Exhibit P1 FI Statement is accepted, the following findings of fact stem from their oral evidence. The specific findings of fact can be enumerated as follows: (1) All the three got out from the car at the scene of the crime. (2) Accused No.3 refused to give the taxi fare and stated that the amount shall be paid when he is able to do that. (3) The deceased demanded that the accused must leave only after making the payment. Crl.A.Nos.992, 1360 & 2529/2006 -19- (4) First accused pushed the deceased asking “what will you do, if the money is not paid”. (5) The deceased caught hold of accused Nos.1 and 3 and demanded that they should go only after making the payment. (6) The 3rd accused stated that this man (the deceased) is not likely to improve and pushed the deceased. (7) Accused No.2 caught hold of the hand of the deceased and turned it to the rear and stated, we will give him what is due to him. (8) At this stage, accused No.1 stabbed the deceased with