IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 CRL.A.No. 1810 of 2005(D) ------------------------------------ SC.670/1999 of ADDL.SESSIONS COURT (ADHOC-I), KASARAGOD CP.50/1998 of JUDL. MAGISTRATE OF FIRST CLASS-II, HOSDRUG .................... APPELLANT/ACCUSED: ------------------- K.P.SHAJI, CONVICT NO.1501, CENTRAL PRISON, KANNUR. BY ADV. ADV.GRASHIOUS KURIAKOSE RESPONDENT/COMPLAINANT: --------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR SRI.P. RAVINDRA BABU. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P.S. GOPINATHAN, JJ. ------------------------------ Crl.Appeal No.1810 of 2005 ------------------------------ Dated this, the 28th day of August, 2009 JUDGMENT Balakrishnan Nair, J. The appellant was the accused in Sessions Case No.670 of 1999 on the files of the Court of Additional Sessions Judge (Ad hoc-I), Kasaragod. Feeling aggrieved by the conviction and sentence imposed on him in the said case, this appeal is filed. The prosecution case in brief is as follows:- The appellant and the deceased were living in the neighbourhood. The deceased was living with her parents, brother and sister. Her house was located in a rubber estate owned by her father. A pathway was passing through that rubber estate, which was being used by the appellant and his family. The family of the deceased constructed a new house in that property. The pathway was passing very close to the newly constructed building. So they wanted to shift the pathway, so that, it is at a reasonable distance from their residential Crl.App. No.1810 of 2005 - 2 - building. Regarding the shifting of the pathway, there was difference of opinion between the families and it generated quarrels also. According to the prosecution, on the preceding day of the incident, on 9.11.1997, there was a wordy duel between the appellant (Shaji) on the one side, and the deceased (Jessy) and her younger sister (PW.11 - Sally Varghese), on the other. On 10.11.1997, while the appellant was passing through the pathway, the brother of the deceased, who was examined in this case as PW.5 (Jobi Varghese), was collecting rubber latex. The appellant made certain disparaging remarks to PW.5, about his sisters, Jessy and Sally. PW.5 replied in the same tone and the said quarrel ended up in a fight. The appellant waving MO.1 knife came forward and attacked PW.5. He tried to ward off those blows and as a result, he sustained injuries on his hand and shoulder. Hearing his cries, the mother of PW.5, who was examined in this case as PW.6 (Mary Varghese), came running to the scene, asking the appellant not to harm her son. She intervened and stood in between them. Thereupon, the appellant attacked PW.6 and as a result, she sustained an injury at the back Crl.App. No.1810 of 2005 - 3 - of her left ear. Hearing her cries, Jessy, the sister of PW.5 and the daughter of PW.6, came running. At that time, PW.5 was holding the appellant from his back and the knife fell from his hand. Jessy, who came there, immediately took the knife, but, the appellant wriggled out of the hold of PW.5 and caught hold of the knife on the blade portion and by using force, he wrested it out from her hand and stabbed her. It caused an injury on her right forearm near the wrist. Thereafter, the appellant struck a deadly blow on the left side of her chest, which pierced into the inner part of her body, giving rise to an incised wound of 13 cms. The length of the blade was 12 cms. and because of the heavy blow, there was contusion at the outer edge of the above wound. On sustaining the injury, Jessy fell back. Then, PW.7 (E.K.Mani @ Kunhukunhu) a neighbour, came running to the scene. On seeing him, the appellant ran away, throwing away the knife. As per the prosecution case, at the relevant time, the appellant's father (Kuttappan) was also present and using a branch/stick from a rubber tree, he made some blows on PW.6, the mother of the deceased. Since, the trial court has Crl.App. No.1810 of 2005 - 4 - acquitted him and there is no appeal against that acquittal, we are not referring to the overt acts done by him. PW.7 called a Jeep, in which the injured Jessy was taken to the hospital by PWs.5, 6, 7 and 11. Jessy was taken to the Government Hospital, Kanhangad, where she was declared dead. The other injured were admitted in the Surgicare Hospital. PW.5 lodged Ext.P5 First Information Statement before the police on the very same day at 2.30 p.m.. In the evening, the accused appeared before the police and he was arrested. PW.13, the Circle Inspector of Police, Vellarikunnu, prepared the inquest report. PW.12 is the doctor who conducted post mortem examination and issued Ext.P11 certificate. PW.13 questioned the witnesses, prepared the scene mahazar, completed the formalities and laid the charge before the Judicial First Class Magistrate's Court – II, Hosdurg. The learned Magistrate committed the case for trial by the Sessions Court. 2. The appellant pleaded not guilty to the charges. The prosecution, in support of their case, examined PWs.1 to 13, marked Exts.P1 to P15 and produced MOs.1 to 11. From the side of the defence, Ext.D1, which is a portion of the Crl.App. No.1810 of 2005 - 5 - C.D. statement of PW.6, which was at variance with her version before the court, was marked. The learned Sessions Judge, after hearing both sides, found the appellant guilty of the offences under Sections 447, 324 and 302 of the Indian Penal Code (for short, “the I.P.C.”), and sentenced him to undergo rigorous imprisonment for three months for the offence under Section 447, rigorous imprisonment for two years for the offence under Section 324 and life imprisonment for the offence under Section 302 of the I.P.C. All the sentences were ordered to run concurrently. Aggrieved by his conviction and sentence, the appellant has preferred this appeal. 3. The learned counsel for the appellant took us through the deposition of the witnesses and the exhibits marked in this case, and contended that, the finding of guilt against the appellant made by the trial court is unsustainable. The learned counsel pointed out that, all the witnesses, who supported the prosecution are interested witnesses, who are admittedly on inimical terms with the appellant. The only independent witness available, PW.7, did not support the Crl.App. No.1810 of 2005 - 6 - prosecution. He has categorically deposed that he has not seen the appellant at the scene of occurrence. The learned counsel also submitted that, going by the materials on record, the deceased and the injured were not innocent. It is submitted that, PW.5, the deceased and PW.11 supported by their mother, PW.6, attacked the appellant. It was one against four. He also pointed out that PWs.5 and 6 sustained only minor injuries. The injury on the appellant would show that, the incident has not happened as spoken to by the prosecution witnesses. The investigation was one sided. The appellant was arrested, when he went to the police station to report the incident in which he sustained injury on his hand. But, no crime was registered. Except the fatal injury sustained by Jessy, other injuries sustained by her and other injured were lacerated injuries. The prosecution speaks about only the presence of MO.1 knife. If it was used, the causing of lacerated injuries has to be ruled out. Some other weapon was also used in the clash. So, the case of the prosecution lacks credence and therefore, the appellant is entitled to acquittal. Alternately, it is submitted that the appellant has no intention Crl.App. No.1810 of 2005 - 7 - or premeditation to kill Jessy. Admittedly, there was a quarrel and he seized the weapon from the hands of the deceased. So, even if a single blow is struck by the appellant in the heat of passion, the offence committed by him will be covered by the fourth exception to Section 300 of the I.P.C. defining murder. So, at the worst, the offence committed by him will be covered by Section 304 I.P.C. only, it is submitted. 4. The learned Public Prosecutor, on the other hand, submitted that, there is no reason to disbelieve the version of the prosecution witnesses, though, they are relatives of the deceased. The witnesses corroborate each other and their case is supported by medical evidence also, it is submitted. The appellant was waving the knife indiscriminately and if the blunt side of it hit against the body, the same will cause lacerated injury. The said aspect, that is the presence of lacerated injury, even though the weapon used is a knife, has been explained properly by the prosecution before the trial court and the learned Sessions Judge has accepted that version also. The learned Public Prosecutor also Crl.App. No.1810 of 2005 - 8 - submitted that, the actions of the appellant will be covered by the third limb of the definition of murder, in Section 300 of the I.P.C.. He has dealt a blow on the vital part of the body of the deceased and it is not relevant whether he intended to cause death or not. The learned Sessions Judge has considered the above aspect also and rejected the contention of the defence on this point, rightly, it is submitted. So, the learned Public Prosecutor prayed for dismissing the appeal. 5. We considered the rival submissions made at the Bar. We also perused the evidence and other materials on record. We find that, though PW.7 turned hostile, PWs.5,6 and 11, who were in the scene of occurrence have spoken to about the incident consistently. PW.5, the brother of the deceased, has deposed that, the incident happened at about 10 a.m. on 10.11.1997 in the rubber estate belonging to his father, Varghese. The Mangot-Miluvalley road is on the eastern side of the estate. On the fateful day, he was collecting latex from the tapped rubber trees of that estate. While so, the appellant called him by his name. On turning Crl.App. No.1810 of 2005 - 9 - back, he found that the appellant was approaching through the pathway lying across the said estate. The appellant told him to restrain his sisters. The witness retorted that his sisters are in his house only and they have not come to the appellant. Apparently irritated by the reply, the appellant said that, if PW.5 is not able to restrain his sisters, he will do that. Immediately, stating that he will show him, the appellant took out MO.1 knife and waved at him. It hit on his left elbow and caused injury. The injury was caused as he tried to ward off the blow. Again, the appellant stabbed him. This time, it fell on his left shoulder and he was injured. He cried out loudly. Hearing this, his mother came running pleading not to harm her son. She intervened and stood between him and the appellant. Immediately, the appellant stabbed her and she was injured behind the back of her left ear. At that time, the second accused was also standing in the scene of occurrence. Using a dried branch of a rubber tree, the second accused, who is the father of the appellant, struck his mother. It fell on the fingers of her left hand. On finding that her mother was being beaten, Jessy came running and tried to push away PW.6. Crl.App. No.1810 of 2005 - 10 - Thereupon, the appellant waved his knife towards Jessy. Seeing this, PW.5 caught hold of the appellant and the knife fell from his hand. Jessy came running and took the knife holding it by its handle. The appellant thereupon wriggled out of the hold of the witness and caught hold of the blade of the knife, wrested it out from her hand and stabbed on her wrist. Seeing this, PW.11 Sally, the younger sister of Jessy, came running, crying not to harm her sister. Suddenly, the appellant raised the knife and stabbed on the left chest of Jessy. When PW.11 intervened, the appellant waved the knife against her. She sustained injury on her right hand thumb. Jessy fell backwards. While so, PW.7, who was the owner of the neighbouring estate, came running. Thereupon, the appellant ran away leaving the knife (MO.1), used for commission of the offence. The witness identified the knife. PW.7 called a jeep, in which injured Jessy was taken to the hospital. 6. The material part of the deposition of PW.5 concerning the involvement of the appellant in the incident was unshaken, notwithstanding the extensive cross examination done on behalf of the defence. PW.6, the mother of the Crl.App. No.1810 of 2005 - 11 - deceased, stated as follows: On 10.11.1997, at about 10 a.m., she was working in the kitchen. Jessy was also in the house. Sally (PW.11), her younger daughter was in the newly constructed house. While so, she heard a hue and cry from the rubber estate, on the northern side of her house. She went in that direction. On finding that the appellant and his father were attacking her son, Joby (PW.5), she ran to the scene. She saw the appellant stabbing PW.5 on his left shoulder. She pushed away PW.5 and stood in between them. Then, the appellant stabbed her. It fell behind her left ear. When the knife was pulled back, she sustained injury on her face also. The appellant's father, using a branch of a rubber tree, struck on her left palm. Seeing this, Jessy came running. The appellant tried to stab Jessy. Immediately, PW.5 caught hold of the appellant and the knife fell from appellant's hand. Jessy caught on the handle of the knife. The appellant caught on the blade of the knife. He wrested out the knife from the hands of Jessy. Apparently, for that reason, the appellant sustained some injury on his palm. Using the said knife, the appellant stabbed Jessy. The blow fell on the left palm of her. Crl.App. No.1810 of 2005 - 12 - While so, PW.11 came running. The appellant again stabbed Jessy. The second stab fell on the left chest of Jessy. She fell down. Then, the appellant again waved the knife. PW.11 sustained injury on her right thumb. While so, PW.7 came running there. On seeing him, the appellant and his father ran away in the direction of their house. PW.7 called a jeep in which Jessy was taken to the Government Hospital, Kanhangad. The other injured including PW.6 were taken to Kanhangad and were admitted in Surgicare Hospital. She also withstood the cross examination of the defence. The suggestion that she and her children wrongfully restrained the appellant and attacked him was denied by her. PW.11 also substantially supported the above version of PWs. 5 and 6. 7. From the medical evidence on record and the post mortem certificate, it is clear that Jessy died because of the injury sustained by her on the left chest, having a depth of 13 cms. It is proved beyond doubt that her death was homicidal. 8. The next point to be considered is whether, the above versions of PWs.5, 6 and 11 could be believed and it Crl.App. No.1810 of 2005 - 13 - could be held that it was the appellant who inflicted the fatal injury. Though, they are witnesses closely related to the deceased, we find no reason for them to shield the real culprit and implicate an innocent person. Apparently realising this difficulty, the learned counsel for the appellant canvassed for the position that even if he has done it, this case is covered by the fourth exception to the definition of murder in Section 300 of I.P.C.. Going by the depositions of PWs. 5, 6 and 11, and the medical evidence available on record, which corroborates their version, we have no doubt in our mind that, it was the appellant who inflicted the deadly blow on the left chest of deceased, Jessy, which resulted in her death. So, the point which remains to be considered is, whether the appellant is entitled to get the benefit of fourth exception to Section 300 of the I.P.C. The said exception reads 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.” Crl.App. No.1810 of 2005 - 14 - Going by the evidence on record, to which we have already adverted to, we notice that, it was the appellant who trespassed into the property of the father of the deceased, picked up a quarrel with her brother and injured him using MO.1 knife. On hearing his cries, his mother PW.6 came. On hearing her cries, the deceased came to the scene. We also notice that, the deceased attempted to take the knife only to save her brother, who was being attacked by the appellant using that weapon. So, even if to prevent the deceased from using that weapon, the appellant has wrested it out from her hand, there was no reason for him to deal a heavy blow on an unarmed young woman. The blow was so heavy and as a result, not only the entire blade having a length of 12 cms. pierced inside, even the upper part of the handle entered the body to an extent of about 1 cm., making the depth of the injury as 13 cms. So, here, the appellant has taken undue advantage and acted in a cruel or unusual manner, by striking the deadly blow. So, we think, the appellant is not entitled to get the benefit of Exception 4 to Section 300 of the I.P.C.. As Crl.App. No.1810 of 2005 - 15 - rightly pointed out by the learned Public Prosecutor, the actions of the appellant come under the third limb of the definition of murder. Even though, the appellant did not have any plan or premeditation to kill Jessy, but, he intentionally caused the bodily injury, which was sufficient in the ordinary course of nature, to cause death. So, we find no merit in any of the contentions raised on behalf of the appellant. In the result, the Criminal Appeal fails and it is dismissed. Sd/- K. Balakrishnan Nair, Judge. Sd/- P.S. Gopinathan, Judge. DK. (True copy)