IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 7TH JULY 2010 / 16TH ASHADHA 1932 CRL.A.No. 2202 of 2006() ------------------------ SC.803/2004 of ADDL. SESSIONS COURT (ADHOC), THODUPUZHA CP.86/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, PATHANAMTHITTA .................... APPELLANT: IST ACCUSED ------------------------- SRI.RAJAPPAN, S/O.NARAYANAN, SOBHA BHAVAN, AMBALATHUMPATTU, CHENNERKARA MURI, CHENNARKARA VILLAGE, PATHANAMTHITTA. BY ADV. SRI.S.HARIKRISHNAN RESPONDENTS: COMPLAINANTS --------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE CIRCLE INSPECTOR OF POLICE, PATHANAMTHITTA. PUBLIC PROSECUTOR SHRI. S.V.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25/06/2010, THE COURT ON 07/07/2010 DELIVERED THE FOLLOWING: K.M. JOSEPH & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl. Appeal No.2202 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of July 2010 JUDGMENT Joseph Francis J., This appeal is filed by the first accused in S.C. No. 803 of 2004 on the file of Additional Sessions Judge (Fast Track) Court - 1, Pathanamthitta. That was a case charge sheeted by the C.I. of police, Pathanamthitta against accused nos. 1 and 2, who are the husband and wife under Section 302 r/w Section 34 of IPC. 2. Prosecution case in brief is that, accused nos. 1 and 2 are running a teashop at Ambalathupadu. They were not on good terms with Rathesh (deceased) since accused firmly believed that, deceased was responsible for the fire occurrence in which their shop was gutted down one month ago. On 6.1.02 at 7.30 p.m. when 1st accused came to close down the reading room, deceased Crl. A. No.2202/2006 2 Rathesh told him that, he need close the reading room only at 8 p.m. There was some exchange of words between accused and the deceased. 2nd accused asked him, was he not the person who set fire to their tea shop and 2nd accused threw ash on the face of Rathesh and 1st accused stabbed him with a knife below his right nipple knowing well that, their acts would result in the death of Rathesh. Rathesh died on account of the injury sustained, on his way to the hospital. 3. PW1 gave Ext.P1 F. I. statement before the police on the basis of which a case was charge sheeted as crime no. 18 of 2002 of Pathanamthitta police station and investigated. On completing the investigation charge sheet was laid before the JFCM, Pathanamthitta from where the case was committed to Sessions Court, Pathanamthitta. Thereafter the case was made over to Additional Session Court Fast Track Court No.I, Pathanamthitta for trial and disposal. 4. In that court on the side of prosecution, PWs 1 to 13 were Crl. A. No.2202/2006 3 examined and Exts. P1 to 10 were marked and Mos 1 to 5 were identified. DW1 was examined on the side of defence. Learned Additional Session Judge on considering the evidence found that the second accused has not committed any offence and therefore she was acquitted under section 235 of Cr.P.C. The first accused was found guilty and he was convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.25,000/- in default to undergo R/I for one year more under Section 302 of IPC. Out of that fine amount, if realised, Rs.25,000/- will be given to PW1 – the father of deceased by way of compensation under Section 357 (1) Cr.P.C. Against that conviction and sentence, the first accused filed this appeal. 5. Heard the learned counsel for the appellant and learned Public Prosecutor. 6. PW1- Purushothaman who gave Ext.P1 – F. I. statement before the police is not an eye witness to the occurrence. PW1 deposed that on 6.1.02 at about 7.45 p.m., while he was returning Crl. A. No.2202/2006 4 from the shop he saw his son Rathesh who was made to sit on the road in between the reading room and Gurumandirum and blood was found oozing from below his right nipple. He learnt that his son was stabbed by the 1st accused. He tied the wound with a shawl and he was taken to the hospital. On the way to the hospital Rathesh died due to the injuries sustained on his chest. PW2 Mohanlal, PW3 Spiji and PW4 Renthish are the eye witnesses to the actual occurrence. Accused 1 and 2 were running a tea shop – cum – petty shop on the side of road leading to Ambalathumpadu junction, Chennorkara, Pathanamthitta. On the same side of the road near to that shop there is a Public Library and Reading room and the first accused was authorised to open and close that reading room every day. It is alleged by the prosecution that accused nos. 1 and 2 were not in good terms with deceased Rethesh as they believed that Rathesh was responsible for the fire occurrence in which their shop was gutted down one month ago. 7. PW2 to 4 deposed that on 6.1.2002 at 7.30 p.m., they were Crl. A. No.2202/2006 5 in the reading room watching television. At that time first accused came to the room to close the same and the deceased Rathesh objected to the same on the ground that closing time was at 8 p.m. Then the first accused told him that he cannot carry out the task of closing the reading room any more and that they may arrange some body else from next day onwards and the first accused returned to his tea shop. When first accused told about the incident to the second accused – his wife, she began to abuse Rathesh. There was some exchange of words between Rathesh and the second accused. In the course of altercation Rathesh and PW2 to 4 came out of the reading room and reached near the tea shop of the accused. Rathesh asked the second accused to stop abusing him. Then the second accused asked Rathesh whether he was not the person who set on fire their tea shop earlier and they she threw some ash on his face and in the meanwhile the first accused stabbed Rathesh with MO1 knife below his right nipple. Rathesh died on the way to the hospital. PW2 to 4 identified MO1 as the knife used by first Crl. A. No.2202/2006 6 accused to stab Rathesh. PW2 to 4 deposed that they could see the occurrence in the light emanating from the reading room, tea shop and street light. 8. PW10 – Dr. Umesh, was working as District Police Surgeon, General Hospital, Pathanamthitta. On 7.1.02 at 1.15 p.m. he conducted the postmortem examination on the body of Rathesh, aged 19 years and issued Ext.P6 postmortem certificate. 9. As per Ext.P6 postmortem certificate Rathesh sustained a deep incised stab injury 3.5 cms x 0.2 cms incise externally on the right side of the chest, placed merely horizontal just below the nipple and 15 cms below collar bone and 8 cms out took midline. The inner end of the injury was sharply cut and outer end rounded. The injury entered the chest cavity between 3rd and 4th ribs and then cut the middle lob of the lung through and through and then cut the peri-cardium and entered the basis of iota cutting the heart wall superficially and not entering heart chamber. The general direction of the injury was inwards to left and upwards. The total minimum Crl. A. No.2202/2006 7 depth of the injury could be 9 cms. The right chest cavity contained 2 litres of fluid blood and clots. PW10 opined as to the cause of death as follows. “The deceased died due to stab injury to the lung and heart and the said injury is possible with MO1.” 10. When PW10 was cross – examined about the possibility of inflicting such an injury by the assailants stabbing the victim on from the back or front right side, he answered that, if stabbed from the front right side it is possible. PW10 ruled out the possibility of inflicting such an injury in a commotion when the assailants wave the weapon. 11. PW12 is the C.I. of police, Pathanamthitta who investigated the case. PW12 deposed that he arrested both the accused on 8.1.2002 at 1.15 p.m. from Muttathukonam junction. According to PW12 on arresting both the accused, they were questioned. Ext.P4(a) is the incriminating statement given by first accused regarding the concealment of MO1 knife. MO5 is a bunch Crl. A. No.2202/2006 8 of keys. In Ext.P4(a) statement accused has disclosed about the concealment of the knife in his shop and he led the police party to the place of concealment, his shop and accused opened the shop and took and produced MO1. PW8 is an attester to Ext.P4 recovery mahazar. He identified his signature as well as MO1 knife recovered. 12. PW5 Ramachandran was the Secretary of Chennakkara Gramina Vayanasala. He deposed that reading room will remain opened from 9 a.m. to 8 p.m. and that at the time of occurrence it was the first accused who was in charge of opening and closing of the reading room. PW11 Mohanan was the line man of KSEB. PW11 deposed that he was in charge of the place including the place of occurrence and that there was electric supply on the day of occurrence. 13. DW1 Sunil Kumar was the Assistant Executive Engineer, Electrical Sub Division. DW1 deposed that there was a neon light at Ambalathupadu junction and that it was there for more than 5 Crl. A. No.2202/2006 9 years. 14. When the first accused was questioned under Section 313 of Cr.P.C., he denied the occurrence and stated that, he never went to the reading room and he was not in charge of the reading room. He also denied the recovery as well as the disclosure statement marked Ext.P4(a). There was no sufficient light for witnessing the occurrence according to him. He further added that, he was running a petty shop adjacent to the said teashop. Eatables were prepared and brought from his house. Tea was made with the aid of gas stove. No fire hearth is there in the shop. He was an active worker of CPI(M). There was exercise of muscle power between Rathesh and Sudheer a DYFI activist at about 2 p.m. on the same day noon. He heard that, DYFI activists manhandled Rathesh in the evening. Police falsely implicated them. 15. The learned counsel for the appellant submitted that the police procured MO1 knife in a clandestine manner and the alleged Section 27 Recovery was nothing but a drama staged by the Crl. A. No.2202/2006 10 Investigating Officer. The learned counsel for the appellant further argued that when MO1 knife was produced before Magistrate Court it was returned by the court stating that it does not contain blood stains as stated in the property list dated 8.1.2002 and thereafter the very same property list was resubmitted on 30.1.2002, after scoring of of the words 'blood stains '. 16. The learned counsel submitted that these facts would clearly show that MO1 knife has no connection with the crime. But these arguments cannot be accepted in view of the fact that Ext.P10 chemical analysis report shows that blood was detected in MO1 knife. The appellant has no case that PW12 had previous enmity towards him and no reason is stated by the appellant for discarding the testimony of PW12. Since the testimony of PW12 regarding the recovery of MO1 knife on the basis of the recovery statement of first accused is corroborated by testimony of attesting witness, we find no reason to disbelieve the evidence regarding the recovery of MO1. Crl. A. No.2202/2006 11 17. The learned counsel for the appellant submitted that the prosecution has not proved the motive of the appellant in committing the crime. That argument has no force since in criminal case evidence of motive becomes immaterial when direct and credible evidence of eye witnesses is available. 18. Learned counsel for the appellant submitted that since PW2 to 4 are highly interested witnesses their testimony is not sufficient to convict the appellant in the absence of the evidence of independent witnesses. 19. PW4 is the brother of the deceased and PW2 and 3 are their friends. The presence of PW2 to 4 in the scene of occurrence is stated in Ext.P1 F.I. statement given by PW1 on the day of occurrence at 10 p.m. Therefore, presence of PW2 to 4 in the scene of occurrence cannot be doubted. Mere acquaintance or friendship of PW2 to PW3 with deceased by itself could not be treated as a reason to discard the evidence of PW2 and PW3. PW4 being brother of the deceased would not conceal the actual culprit and Crl. A. No.2202/2006 12 make allegations against an innocent person. Since the testimony of PW2 to PW4 is corroborative of each other and further corroborated by medical evidence, we are of the view that the Additional Sessions Judge is fully justified in finding that the first accused caused the death of deceased by stabbing him on his chest by using MO1 knife. 20. The next question to be considered is as to what is the offence committed by the first accused. 21. In the decision reported in Mahesh Balmiki alias munna v. State of Madhya Pradesh (Air 1999 SC 3338) it was held that “There is no principle that in all cases of single blow S.302, IPC is not attracted. Single blow may, in some cases, entail conviction under S. 302, IPC, in some cases under S. 304, IPC and in some other cases under S. 326, IPC. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. The nature of the injury, whether it is on the vital or non-vital part of the body, the weapon used, the Crl. A. No.2202/2006 13 circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him.” 22. In the decision reported in Tholan v. State of Tamil Nadu (1984 (2) SCC 133), it was held “Single knife blow, ordinarily sufficient to cause death, inflicted on chest of the deceased on the spur of the moment. Deceased having no previous dispute with the accused and his presence at the scene of occurrence wholly accidental. Even if exception I to Section 300 not attracted, held, the requisite intention under Section 300 absent and therefore, conviction under Section 302 not proper. But the accused having wielded a weapon like a knife, he can be attributed with the knowledge that he was likely to cause injury which was likely to cause death. Hence, accused must be convicted under Section 304 Part II.” Crl. A. No.2202/2006 14 23. In the decision reported in Jagtar Singh v. State of Punjab (1983 (2) SCC 342) it was held “Single knife blow inflicted deep in the chest on a trivial quarrel resulting in injury to the heart and death of the deceased. On facts of the case, conviction under Section 302 found to be improper. In the circumstances held, the accused had knowledge that he was likely to cause an injury which was likely to cause death. Hence he must be convicted under Section 304 Part II.” 24. In the decision reported in Mavila Thamban Nambiar v. State of Kerala (1997 Crl. L. J. 831) it was held “Penal code (45 of 1860), S.304, Part II – Murder. Accused giving one blow with pair of scissors on vital part of body of deceased. Knowledge on part of accused that injury would cause death can be inferred though he might not have intention to commit murder. Conviction altered from S.302 to one under Section 304, Part II.” Crl. A. No.2202/2006 15 25. In the decision reported in K. Ramakrishnan Unnithan v. State of Kerala (AIR 1999 (SC) 1428), in which it was held that “Penal code (45 of 1860) Ss. 300, 304 Part II. Murder. Proof. Single blow by accused which was quite severe as a result of which intestine of deceased protruded. Accused however, having no animosity towards deceased and was involved because of altercations with son of deceased. Scenario at time of occurrence not showing that he had intention or requisite knowledge to cause murder. Held, accused did not commit offence under S.302 but under S.304, Part. II.” 26. In Shankar V. State of Madhya Pradesh (AIR 1979 S.C 1532), the accused caused injury on the neck of the the deceased with a dagger. Their Lordships found that there was no pre- meditation for the murder and accused had no intention to cause particular injury that he caused to the deceased. But he must be deemed to have knowledge that the death may be caused by his act. Crl. A. No.2202/2006 16 Accordingly the conviction under Section 302 was altered to one under Section 304 Part II of IPC. 27. Keeping the aforesaid principles in mind and the circumstances in which a single blow was inflicted by the appellant on the chest of the deceased with MO1 knife at the spur of the moment in the heat of passion without any pre meditation, we are of the view that the appellant could not be convicted under Section 302 of IPC. But the appellant is persumed to have the knowledge that the injury inflicted by him was likely to cause death and hence offence would come under Section 304 (Part II) of IPC. The appellant is a T.B. Patient and he has no children. His wife is residing alone in another place. Considering all these aspects, we are of the view that sentencing the appellant to undergo R/I for 8 years under Section 304 (Part II) of IPC would meet the ends of justice. Accordingly this appeal is allowed in part. The conviction and sentence of the appellant/1st accused in S.C. No. 803 of 2004 Crl. A. No.2202/2006 17 on the file Additional Session (Fast Track) Court No.1, Pathanamthitta under Section 302 of IPC is set aside and the appellant/first accused is convicted and sentenced to undergo R I for a period of 8 years under Section 304 Part II of IPC. The appellant is entitled to get set off under Section 428 of Cr.P.C. The court below is directed to issue revised committal warrant. K.M. JOSEPH, JUDGE M. L. JOSEPH FRANCIS, JUDGE dl/ Crl. A. No.2202/2006 18