IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 24TH NOVEMBER 2009 / 3RD AGRAHAYANA 1931 CRL.A.No. 238 of 2006() ----------------------- SC.800/2003 of ADDL. SESSIONS COURT, ALAPPUZHA .................... APPELLANT(S): ACCUSED: ------------------------------------- 1. NARAYANAN @ CHANNAR, S/O. AYYAN, UTHAMANGALATHUCHIRA VEEDU, WARD XIII, KANJIKUZHI PANCHAYATH. 2. MANOJ @ THAMPI, S/O. NARAYANAN, UTHAMANGALATHUCHIRA VEEDU, WARD XIII, KANJIKUZHI PANCHAYATH. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT(S): COMPLAINANT: ------------------------------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl. Appeal No. 238 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of November, 2009. JUDGMENT Balakrishnan Nair, J, The appellants were the accused in Sessions Case No.800 of 2003 on the file of the Court of Additional Sessions Judge, Alappuzha. The case of the prosecution in brief is as follows: The appellants are father and son. In the morning of 15.6.2001, the second appellant went to take tea from the tea shop of Raghulal, the deceased. While taking tea sitting in a chair, the second appellant placed his legs on another chair. The same was disliked by Raghulal, who shouted at second appellant to remove his legs from the chair. The second appellant went away warning Raghulal that he will be dealt with appropriately in the evening. 2. In the evening, at about 7.30 p.m., the appellants came to the shop of the deceased. The second appellant stood Crl.A. 238/2006. 2 outside. The first appellant entered the tea shop and picked up a quarrel with the deceased asking about the incident in the morning. He also slapped on the left cheek of Raghulal. That was followed by a scuffle between them. In the midst of the scuffle the first accused exhorted the second accused to stab and kill Raghu. The son obediently came forward and stabbed Raghu. Though he warded off one or two stabs, the third one hit him on his chest and caused a deep injury. The assailants immediately went away in the bicycle, in which they came. P.Ws.1 to 3, who were present in the tea shop took the injured to the Government Hospital, Cherthala from where he was referred to the Medical College Hospital. The Doctor in the Medical College, on examining the injured, informed the persons, who have accompanied the injured, that he had already breathed his last. P.W.1 at 9.30 p.m. itself lodged the information before P.W.18, Assistant Sub Inspector of Police, who recorded his statement, Ext.P1 and registered Ext.P1(a) FIR. The Circle Inspector of Police, P.W.20, took over the investigation. He Crl.A. 238/2006. 3 conducted inquest, arranged for the conduct of autopsy, prepared the scene mahazar and questioned the witnesses. The accused were arrested on 25.6.2001 and M.O.1 knife used for stabbing the deceased was recovered under Ext.P11 mahazar based on Ext.P11(a) disclosure statement of the second appellant on 26.6.2001. He almost completed the investigation and P.W.19, the successor C.I. laid the charge before the Judicial First Class Magistrate's Court -I, Alappuzha. The learned Magistrate, after completing the formalities, committed the case for trial to the Sessions Court, as the offence disclosed included the offence under Section 302 IPC. The case was made over to the Additional Sessions Judge, Alappuzha for trial and disposal. 3. The learned trial Judge framed charges against the accused, to which the accused pleaded not guilty. The prosecution, to prove its case, examined P.Ws. 1 to 20 and produced Exts.P1 to P21. The material objects, M.Os. 1 to 7 were identified and marked. From the side of the defence, Exts.D1 to D3(a) were Crl.A. 238/2006. 4 marked during the examination of the witnesses. The learned Sessions Judge, after hearing both sides, found the appellants guilty of the offence under Section 302 IPC and sentenced them to undergo imprisonment for life and also to pay a fine of Rs.15,000/- each. In default of payment of fine, they were directed to undergo rigorous imprisonment for one year. Accused No.1 was sentenced to undergo imprisonment for six months for the offence under Section 323 IPC. If the fine amount is realised, Rs.25,000/- out of it was to be paid to the widow and children of the deceased by way of compensation. The appellants, feeling aggrieved by the conviction and sentence, have preferred this criminal appeal. 4. We heard learned counsel on both sides. 5. Learned counsel for the appellants took us through the deposition of the witnesses and the documents produced in support of the case of the prosecution. According to him, the version of the witnesses cannot be believed. At any rate, it is Crl.A. 238/2006. 5 pointed out that there was no intention or premeditation to commit murder and the second appellant inflicted the stab injury to save his father from the clutches of the deceased. Right of private defence extends to saving of the lives of dear and near also, it is submitted. Alternatively, it is submitted that the case is covered by the fourth exception to Section 300 and therefore at the worst the conviction should have been only under Section 304 IPC. 6. Learned Public Prosecutor on the other hand submitted that the appellants came to the scene armed with a deadly weapon. On the exhortion of the first appellant, the second appellant had inflicted the deadly injury. Since the first appellant trespassed into the tea shop, picked up quarrel and slapped the deceased on his left cheek, the claim of the appellants that the offence committed is culpable homicide not amounting to murder cannot be accepted. Their actions fall under Clause Fourthly of Section 300 IPC, it is submitted. Crl.A. 238/2006. 6 7. P.Ws. 1 to 3 were present in the shop while the first appellant came, picked up quarrel and exhorted the second appellant to kill Raghu. They have also seen the second appellant inflicting the deadly blow. It was they, who, took the injured to the hospital. 8. P.W.1 is a Headload worker. He used to come and take tea from the tea shop of the deceased. On 15.6.2001, he came to the shop at about 7.10 p.m.. While he was taking the tea, appellants 1 and 2 came in a bicycle and got down near the teashop. The first appellant went inside the shop. He asked Raghu, what was the dispute between him and the second appellant, which led to the incident in the morning. Raghu retorted that the first appellant may ask his son. Thereupon the first appellant used abusive words against Raghulal. There was exchange of words between them. First appellant slapped Raghu. Raghu retaliated. Thereupon, the first appellant called out to the second appellant to stab and kill Raghu. Hearing the words of his Crl.A. 238/2006. 7 father, the second appellant came inside the shop, took out a knife and stabbed Raghu. He warded off the same using his hands. The third stab hit on the chest of the deceased. Thereupon he cried aloud that he was stabbed and sat on the floor. P.Ws. 1 to 3 rushed to Raghu and thereupon the appellants went away in their bicycle. The injured was taken to the hospital by the said witnesses. He was given first aid at Government Hospital and from there he was referred to the Medical College Hospital. But the doctor from the Medical College Hospital, who examined him, reported that he is dead. Thereupon, P.W.1 laid the first information statement, based on which a crime was registered. The above version of the incident given by P.W.1 was not in any manner shaken in his extensive cross-examination by the defence. P.Ws. 2 and 3 also while in the box spoke on the incident substantially supporting the version of P.W.1. 9. The evidence of P.W.6, who conducted autopsy and issued Ext.P2 postmortem certificate would depose that death was Crl.A. 238/2006. 8 due to injury No.4 mentioned in the postmortem certificate. Details of the stab injury given in the postmortem certificate reads as follows: “4. Incised penetrating wound on front of left side of chest 3.5 x 1.4 cm vertical, the upper end blunt with infiltration of blood and abraded, the lower end pointed. The wound 21 cm below collar bone on mid clavicular line and 4 cm outer to the front midline. The wound pierced the skin and subcutaneous tissue cut open the left 7th costochandral junction entered the chest cavity. The wound pierced the front wall of apical region of the pericardium (2 x 1.3 cm) entered the pericardial sac and made a nick on the front wall of right ventricle of heart (1.8 x 0.8 cm) entered the right ventricle. The left chest cavity contained a total of 2 litres of blood including 250 gms of clotted blood. The wound had a total minimum depth of seven centimetres.” 10. The doctor has stated that the said injury could be caused by M.O.1 knife. So the evidence of the said witness conclusively prove that the death of Raghu was homicidal. Crl.A. 238/2006. 9 11. M.O.1 knife was recovered, based on Ext.P11(a) confession statement of the second appellant, as per Ext.P11 mahazar by P.W.20. FSL report would show that there were blood stains on M.O.1. But owing to insufficiency of blood, it cannot be found out whether it was human blood or not. 12. We notice that the version of P.Ws. 1 to 3 is supported by the medical evidence and also corroborated by the recovery of the weapon by P.W.20. Having regard to the facts of the case, we find no reason for the witnesses to falsely implicate the appellants or to spare the real culprit. So we are inclined to hold that the fatal injury was inflicted by the second appellant and it was done by him on the exhortion of the first appellant. 13. The next point to be considered is whether the offences committed as contended by the learned counsel for the appellants, would fall only under Section 304 or will be covered by Section 302 IPC. The appellants claim that their actions will be covered by the fourth exception to Section 300 IPC, which reads Crl.A. 238/2006. 10 as follows: “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.” In this case, we notice that the first appellant went inside the shop of the victim, picked up quarrel with him, and then asked his son, the second appellant, to come and stab the victim. The said conduct will not fall under Exception 4 to Section 300. Even if there was no premeditation or intention to commit murder, we think the actions of the appellants will fall under Clause Fourthly of Section 300, which reads as follows: “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.” Crl.A. 238/2006. 11 14. In view of the above position, we hold that the second appellant is guilty of murder and therefore punishable under Section 302 IPC. Since the second appellant committed the crime at the exhortion of the first appellant, the latter is also liable for murder in view of Section 34 IPC. The first appellant is guilty of the offence under Section 323 IPC also. So we hold that the trial court has rightly found the appellants guilty, convicted and sentenced them. We find no reason to take a different view. In the result this criminal appeal fails and it is dismissed. K. Balakrishnan Nair, Judge P. Bhavadasan, Judge sb. Crl.A. 238/2006. 12 K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl. Appeal No. 238 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 24.11.2009.