IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 4TH SEPTEMBER 2008 / 13TH BHADRA 1930 CRL.A.No. 279 of 2005() ----------------------- SC.814/2003 of ADDL. SESSIONS COURT (ADHOC), PATHANAMTHITTA CP.57/2003 of JUDL.MAGISTRATE OF FIRST CLASS COURT, RANNI .................... APPELLANT: ----------- APPUKUTTAN PILLAI, S/O. GOPALAN NAIR, C.NO.8788, CENTRAL PRISON, TRIVANDRUM-12. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT: ------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR, JAI GEORGE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ---------------------------------------- Crl.Appeal No.279 OF 2005 ---------------------------------------- Dated this the 4th day of September, 2008 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The appellant, aggrieved by his conviction under Section 302 of the I.P.C. and the sentence imposed on him in S.C.No.814/2003 on the files of the Additional District and Sessions Court, (Adhoc) Fast Track Court-II, Pathanamthitta, has preferred this Criminal Appeal. The prosecution case in brief as follows: 2. The accused and the deceased were co-workers. They were the employees of one Mr.Siddique, who was engaged in purchasing, cutting and removing trees from its owners. The accused, the deceased and PWs 2 to 4 and 6 were the employees engaged for cutting and loading of trees. The accused was jealous of the deceased for the reason that the deceased was treated as a better worker by the employer. Crl.A.No279/2005 2 On 12.6.2002 at about 9.15.p.m. the accused picked up a quarrel with the deceased Sasi. Both of them took food from the Thattukada run by PW1, after the day's work. During the course of the quarrel the accused using his left hand (he is a left handed person) beat on the right cheek of Sasi. Sasi retaliated and struck on the cheek of the accused. Infuriated by this the accused took a knife and stabbed at the neck of Sasi, who fell down and succumbed to the injury. 3. PW1 lodged the first information statement before PW14. Though he is cited as an occurrence witness, he did not say that he actually saw the stabbing. PW13, the Circle Inspector of Police, who was the investigating officer arrested the accused on 13.6.2002 at 7.p.m. PW13 conducted the inquest and prepared Ext.P2 inquest report. He questioned the witnesses, completed the investigation and laid the charge before the Judicial First Class Magistrate's Court, Ranni. The case was committed for trial to the Sessions Court, Pathanamthitta. The Sessions Court made over the case to the Additional District and Sessions Court (Adhoc) Fast Track-II, Crl.A.No279/2005 3 Pathanamthitta. The accused pleaded not guilty to the charges framed against him. From the side of the prosecution, PWs 1 to 14 were examined and Exts.P1 to P17 were marked. From the defence side, Exts.D1 to D7 were marked which were the relevant portions of the statements under Section 161 of the Cr.P.C of the witnesses which were at variance with reference to their statements before the court. Ext.D8 is the report forwarded along with the material objects for chemical examination by the doctor who conducted the autopsy. The said report contains the statement that the contents of the stomach were having the smell of alcohol. Material Objects MO1 to MO8 were also produced and marked from the side of the prosecution. While questioning under Section 313 of the Cr.P.C., the accused denied the circumstances which appeared against him in the evidence. He has further stated that he has been falsely implicated at the instance of Mr. Siddique, his employer. 4. The learned Sessions Judge after hearing both sides found the accused guilty and convicted him for the offence under Section 302 of the I.P.C. He was sentenced to undergo rigorous Crl.A.No279/2005 4 imprisonment for life and also to pay a fine of Rs.5,000/- and in default to undergo rigorous imprisonment for one year. 5. Before the trial court, the defence tried to claim the benefit of the first exception to Section 300 of the I.P.C. that the offence was committed under grave and sudden provocation. The learned Additional Sessions Judge considered the point and rejected the said claim of the defence. Before us, the learned counsel for the appellant canvassed that the offence proved against the appellant will amount to culpable homicide not amounting to murder falling under the 4th exception to Section 300 of the I.P.C. The learned counsel pointed out that there was a quarrel between them. The accused was provoked and he beat Sasi on his cheek. Sasi retaliated by beating the accused. So, in the midst of that fight, he waved a knife at Sasi and the same hit on his neck. There was only one injury. The learned counsel also pointed that the workers engaged in cutting and loading of trees usually carry such weapons with them. The presence of the knife with the accused would not show that there was preparation or pre-meditation from his part to commit the Crl.A.No279/2005 5 offence. They were living together in the same room, they were working together and they have taken food together in that evening. Even assuming there is some ill-will between them, the same is not a ground to commit the offence of murder. Unpleasant feelings between the colleagues working together is a usual general thing and the same cannot be described as a motive for commission of murder. In this case, under the heat of passion, the accused waved the knife and the same resulted in inflicting the fatal injury on the deceased. Therefore, the offence committed by him will amount to culpable homicide, not amounting to murder and therefore he is liable to be convicted only under Part I of 304 of the I.P.C., it is submitted. We heard the learned Public Prosecutor on the above point. 6. In this case there is clear evidence to show that the accused inflicted the fatal injury on the deceased. PWs 2, 3 and 4 have spoken to the incident. The version of PW1 also supports the case of the prosecution. So, the trial court rightly found that it was the accused who inflicted the injury using the knife MO1. MO1 contained blood stain and the same was confirmed by Crl.A.No279/2005 6 Ext.P16 report of the Forensic Science Laboratory, Trivandrum. MO1 was recovered under Section 27 of the Evidence Act based on the confession statement of the accused. The evidence of doctor and Ext.P5 post-mortem certificate would show that the stab injury inflicted was the cause of death of Sasi. The stab injury on the neck is sufficient in the ordinary course to cause death. So, we feel that it is unnecessary to refer to the evidence of the witnesses in detail, especially, in view of the limited plea raised by the learned counsel for the appellant. So, we confirm the finding of the learned Sessions Judge that it was the accused who caused the stab injury on the neck of the deceased and the said injury caused his death. 7. The next point to be considered is whether the conviction entered by the trial court under Section 302 of the I.P.C. is sustainable or whether the offence committed falls under the first part of Section 304 of the I.P.C. We find considerable force in the submission of the learned counsel for the appellant. The fact that the accused was carrying a knife would not show that he had intention or pre-meditation to Crl.A.No279/2005 7 murder Sasi. The workers engaged in cutting, loading etc. of trees in many places carry such weapons with them. In this case, as rightly pointed out by the learned counsel for the appellant, the accused and the deceased were living together in the same room, they were working together and on the fateful day they took food together also. So, it cannot be said that the accused was intentionally planning to murder Sasi and he was waiting for an opportunity. Having regard to the place of occurrence, no man in his sense will select a public street in the presence of several persons familiar to both of them, as a suitable place to commit the murder. So, we are of the view that there was no pre-meditation for the commission of the offence. It has come in evidence that there was some quarrel and exchange of unpleasant words between the accused and the deceased. Thereupon, the accused beat Sasi on his cheek, who in turn retaliated by beating him. Thereupon, the accused waved the knife which hit at the neck of the deceased causing the fatal stab injury. It must be presumed that the injury caused by him is sufficient in the ordinary course to cause death and he has struck the blow knowing the same. But, having regard to the Crl.A.No279/2005 8 facts of the case, he committed the act without pre-meditation in the midst of a quarrel under the heat of passion. Therefore, we are of the view that the offence committed by the accused in this case is culpable homicide not amounting to murder, coming under the first part of the Section 304 of the I.P.C. 8. Therefore, we set aside the conviction of the accused/appellant under Section 302 of the I.P.C. in S.C.No.814/2003 on the files of the Additional District and Sessions Judge, (Adhoc) Fast Track Court-II, Pathanamthitta and the sentence imposed for the same. We find him guilty of the offence under the 1st part of Section 304 of the I.P.C. We convict him for the said offence and sentence him to suffer rigorous imprisonment for 6 years. A fine of Rs.5,000/- is also imposed on the accused/appellant. But, we are not ordering any default sentence. If the said amount is paid or recovered from the assets of the accused, the same shall be paid to the legal heirs of the deceased Sasi. The accused was an under-trial prisoner from 13.6.2002 to 15.9.2004. From 16.9.2004 he was a convict and he has already suffered imprisonment for 4 years Crl.A.No279/2005 9 and 2 months. We order that the accused/appellant is entitled to get set off under Section 428 of the Cr.P.C. Now, therefore, the appellant/accused has already suffered 6 years imprisonment. So, he shall be set at liberty forthwith, provided, his detention is not required in connection with any other case. The Criminal Appeal is allowed as above. (K.BALAKRISHNAN NAIR, JUDGE) (M.C.HARI RANI, JUDGE) ps