IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 23RD FEBRUARY 2010 / 4TH PHALGUNA 1931 CRL.A.No. 649 of 2006-A ----------------------- SC.317/2004 of SESSIONS COURT, KALPETTA .................... APPELLANT: APPELLLANT ------------------------ VELIYAN, S/O.KAKKU, CONVICT NO.2733 CENTRAL JAIL, KANNUR. BY ADV. SMT.K.P.SANTHI,STATE BRIEF RESPONDENT: RESPONDENT ------------------------- STATE OF KERALA BY PUBLIC PROSECUTOR MR. NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23/2/ 2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ---------------------------------------------- CRL.APPEAL No.649 OF 2006 ----------------------------------------------------- DATED THIS THE 23rd DAY OF FEBRUARY, 2010 J U D G M E N T Basant, J. In this appeal preferred by the convict-prisoner through prison authorities, he assails the verdict of guilty, conviction and sentence in a prosecution under Section 302 IPC. He faces a sentence of imprisonment for life. 2. The appellant appears to be an impecunious indigent – an 'Adivasi'. The services of a counsel have been made available to him. The learned counsel for the appellant Ms.K.P.Santhi has advanced detailed arguments. We have heard Shri Noble Mathew, the learned Public Prosecutor also. 3. The charge against the appellant/accused is that at 9.15 p.m. on 11.5.2003, he caused the death of his elder brother Nambi by planting stab injury with MO2, a broken glass bottle used as a kerosene lamp. It is the case of the prosecution that the unmarried appellant who resides in an adjacent house had come to the family house, where the deceased was residing along with his parents, sisters, wife, child, etc. and picked up quarrel under the influence of alcohol. There was altercation between the deceased and the appellant. The mother of the deceased picked up MO1 stick and beat the accused to deter him from continuing the Crl.A.No.649/06 -2- quarrel. He allegedly went back to his house which is situated near the place of the incident and came back with MO2 weapon and inflicted the injuries on the deceased. The deceased succumbed to those injuries and was declared dead, when he reached the hospital. 4. Investigation commenced with Exhibit P1 FI statement lodged by PW1 at 0015 hours on the night of 11.5.2003. Exhibit P1(a) FIR was registered. Investigation was completed and final report filed by PW12, the Investigating Officer. The accused denied the charge under Section 302 IPC levelled against him. Thereupon the prosecution was directed to adduce evidence in support of its case. 5. The prosecution examined PWs 1 to 17 and proved Exhibits P1 to P14. MOs 1 to 9 were also marked. The accused did not engage a counsel of his choice to defend himself. Before the trial court also, he was granted the services of a State Brief Counsel. In the course of cross-examination of prosecution witnesses and when examined under Section 313 Cr.P.C., it appears that, a defence of total denial was raised by the appellant. No specific stand was taken about the charge in the Crl.A.No.649/06 -3- 313 examination. In the course of cross examination, we find that at some stage it was suggested that the deceased had suffered injuries on account of a fall on MO2. A suggestion was also raised that the deceased had also consumed alcohol and was responsible for the initial quarrel. 6. The court below on an anxious evaluation of all the relevant circumstances came to the conclusion that the prosecution has succeeded eminently in establishing all the ingredients of the offence alleged against the accused. Accordingly, the court below proceeded to pass the impugned judgment. 7. Arguments have been advanced before us by the learned counsel for the appellant and the learned Public Prosecutor. The learned counsel for the appellant assails the impugned judgment on the following grounds. (i) The oral evidence of PW11 should not have been relied on by the court below. Consequently, it must have been held that the appellant is entitled to the benefit of doubt. Crl.A.No.649/06 -4- (ii) At any rate, the court below erred in finding the appellant guilty of the offence punishable under Section 302 IPC. In any view of the matter, it must have been held that the appellant is entitled to the benefit of Exception 4 to Section 300 IPC. 8. No other contentions have been raised. 9. The alleged incident took place in the house of the deceased. He was residing there along with PWs 1 and 2- his father and mother, PWs 3 and 4- his sisters and PW11- his wife. His wife was pregnant. They have a two year old child also. Predictably, PWs 1 to 4 turned hostile to the prosecution. Blood is thicker than water and they did not find the sublimity and solemnity on oath to restrain them from going against their own earlier versions in Exhibit P1 FI statement (PW1), their earlier sworn statements before the Magistrate under Section 164 Cr.P.C. (PWs 1 and 2 -Exhibits P2 and P3) and their earlier case diary statements (PWs 3 and 4 – Exhibits P4 and P5, the alleged case diary contradictions). But, the court below placed reliance on the oral evidence of PW11, the wife of the deceased to come to Crl.A.No.649/06 -5- a conclusion against the appellant. 10. An appellate judgment is and must be read as a continuation of the judgment of the trial court. It is not necessary for this Court to attempt re-narration of the oral and documentary evidence relied on by the rival contestants. Suffice it to say that the learned counsel for the appellant has taken us exhaustively through the oral evidence of PWs 1 to 17, the documentary evidence, Exhibits P1 to P14 and all other relevant matters which are cognizable under Section 3 of the Evidence Act. We are hence not attempting a re-narration of the oral and documentary evidence. Wherever necessary, we shall specifically advert to the relevant pieces of evidence. 11. The court below chose to accept and act upon the oral evidence of PW11, the wife of the deceased. She spoke about the initial quarrel between the appellant and the deceased and the later incident in which the appellant planted the stab injury on the deceased. Her evidence appeals to us to have the fragrance of truth. Her evidence is eminently supported by the oral evidence of PWs 1 to 4, notwithstanding their hostility. Her present version tallies on all fours with the contents of Exhibit P1 Crl.A.No.649/06 -6- FI Statement lodged by PW1. It is crucial to note that PW1 admits his signature in Exhibit P1. The present version of PW11 is in tandem with the earlier statements of PWs 1 to 4. In any view of the matter, we find absolutely no hesitation in endorsing the conclusion of the court below that reliance on PW11's evidence can safely be made. Presence of PW10 at the scene of the crime is clearly indicated by the evidence of PWs 1 to 4 as also the contents of Exhibit P1 FI Statement. We conclude by mentioning that we have not a scintilla of doubt in our minds about the acceptability of the oral evidence of PW11. The candid admission by PW11 that her husband had also consumed alcohol and that he had started the quarrel when he deterred the appellant who came drunk to the family house does also satisfactorily reveal her bona fides and willingness to speak to truth even if truth be unfavourable to the case of the prosecution. 12. There can virtually be no doubt that the injuries inflicted by the appellant on the deceased had led to his death. The offence of culpable homicide under section 299 IPC is thus clearly established. The injuries inflicted with MO2, it is clear as day light from other evidence as also the evidence of PW13 Crl.A.No.649/06 -7- who conducted the postmortem examination and issued Exhibit P11, was sufficient in the ordinary course of nature to cause death. Clause (3) of Section 300 IPC comes into operation straightaway and the offence of culpable homicide gets exalted to the offence of murder defined under Section 300 IPC. 13. Undaunted, the learned counsel for the appellant argues that the offence under Section 300 IPC must slide back to the offence under Section 299 IPC on application of the benevolent Exception 4 to Section 300. The quarrel was sudden. The fight which followed was sudden and unpremeditated. Passions were running high and in these circumstances, the appellant/accused is entitled to the benefit and protection of Exception 4 to Section 300 IPC, it is contended. 14. Exception 4 to Section 300 IPC reveals the humane acceptance by the legislature that even the best of men may resort to act in the heat of passion which they would not resort to if reason and sense were to prevail. In respect of such persons, law in its humane attempt to do justice stipulates that the offence under Section 300 IPC can slide back to the offence under Section 299 IPC. Crl.A.No.649/06 -8- 15. Is the 4th Exception to Section 300 IPC applicable, is the only question that survives for consideration. It is trite and it is not necessary to advert to precedents on this aspect that to invite application of Exception 4 all the ingredients stipulated therein must simultaneously co-exist. There must have been a sudden quarrel. The sudden quarrel must have led to a sudden fight. The sudden fight must not be a premeditated fight. The culpable overt act must have been performed in the heat of passion. All these circumstances have to co-exist simultaneously to attract the play of Exception 4 to Section 300 IPC. 16. We visit the facts again. There was an initial quarrel. There was an altercation between the assailant and the victim. The victim, it cannot be lost sight of, was carrying his two year old child and was walking in the courtyard when the incident commenced. At that time, the appellant did not carry MO2 weapon with him. He was drunk. The deceased had also admittedly consumed alcohol. The deceased had wanted the appellant to withdraw and not to continue in the drunken state there. The appellant did not oblige. This persuaded PW2, the mother of the deceased and the appellant to come to the scene Crl.A.No.649/06 -9- with MO1 stick. She beat the appellant/accused and forced him to withdraw to his house. It is after some time that we find the appellant coming back to the scene with MO2 improvised weapon. He did not have this, when he came to the scene at the first instance. By no stretch of imagination can it be held, in these circumstances, that the culpable overt act was done “in the heat of passion”. There was sufficient time for passion to die down and reason to interpose. The appellant did not make use of that opportunity. He cannot now claim that his act must be held to be protected as one performed in the heat of passion. We are not persuaded to agree that the appellant is entitled to the protection of Exception 4 to Section 300 IPC. The challenge raised on this ground must in these circumstances fail. 17. No other grounds of challenge are raised and none arises for consideration also. We must say that we have noted that the accused and the deceased had other injuries also on their person. But admittedly, there was an altercation when the first incident took place at the scene. The fact that there were other injuries on the deceased and the accused cannot in these circumstances succeed in generating any reasonable doubt in our Crl.A.No.649/06 -10- mind about the genesis of the incident or the sequence of events which led to the ultimate infliction of injury with MO2 by the accused on the deceased. 18. We do, in these circumstances, concur with the conclusion of the court below that all the ingredients of the offence punishable under Section 302 IPC have been established satisfactorily against the appellant. The sentence imposed is only the minimum sentence permitted under Section 302 IPC. 19. In the result: (a) this appeal is dismissed. (b) the impugned judgment is upheld in all respects. R.BASANT, JUDGE. M.C.HARI RANI,JUDGE. dsn