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2011 DIGILAW 1151 (KER)

Gopalakrishnan @ Mani, Kannur v. State of Kerala

2011-11-30

R.BASANT, V.CHITAMBARESH

body2011
Judgment :- Basant, J. (i) Did the court below err in placing reliance on the oral evidence of P.Ws.1 and 3? (ii) Is the accused entitled to the benefit of doubt for the reason that the prosecution has not proved and explained the injuries on the accused? (iii) Is the conviction under Sec.302 IPC justified? These questions arise for determination in this appeal preferred by the sole accused/appellant who has been found guilty, convicted and sentenced under Sec.302 IPC to undergo imprisonment for life. 2. The prosecution alleged that on 9/5/01 at 9.15 p.m. the accused had inflicted fatal injuries on his father-in-law who succumbed to such injuries after he was removed to the hospital. An inconsequential and silly dispute between the father-in-law and the son-in-law had allegedly led to the occurrence. There was a further allegation that the appellant had caused simple hurt with the dangerous weapon to his mother-in-law/P.W.1 also; but on that aspect the accused was found not guilty and acquitted. 3. The crime was registered on the basis of Ext.P2 First Information Statement lodged by P.W.2, the brother-in-law of the appellant who had not witnessed the occurrence. Ext.P9 F.I.R. was registered on the basis of Ext.P2 First Information Statement. Investigation was completed and final report was filed by P.W.14, Investigating Officer. 4. The learned Magistrate, after complying with all legal formalities, committed the case to the Court of Sessions and the learned Sessions Judge took cognizance of the offence alleged against the accused. He pleaded not guilty to the charge framed against him by the learned Sessions Judge. Thereupon the prosecution examined P.Ws.1 to 14 and proved Exts.P1 to P15. M.Os.1 to 17 were also marked. 5. The accused denied all circumstances which appeared in evidence and which were put to him in the course of 313 examination. According to him, he was not responsible for any injury found on the person of the deceased. Nay, he went further and asserted that the injuries on the deceased were inflicted by P.W.1, his mother-in-law and P.W.3, a neighbour. He claimed that he had suffered injuries; but, according to him, that injury on him was inflicted by P.W.3. No defence evidence-oral or documentary was adduced by the defence. 6. The learned Sessions Judge came to the conclusion that the evidence of P.W.1 which is duly supported by other circumstances can safely be accepted and acted upon. He claimed that he had suffered injuries; but, according to him, that injury on him was inflicted by P.W.3. No defence evidence-oral or documentary was adduced by the defence. 6. The learned Sessions Judge came to the conclusion that the evidence of P.W.1 which is duly supported by other circumstances can safely be accepted and acted upon. The evidence of P.W.1 show that the injury was suffered by P.W.1 accidentally when she tried to wrest M.O.2 from the possession of the appellant. On that finding the appellant was acquitted of the charge under Sec.324 IPC. That acquittal has now become final on that challenge. 7. Before us the learned counsel for the appellant/accused and the learned Public Prosecutor have advanced their arguments. The learned counsel for the appellant/accused assails the impugned verdict of guilty, conviction and sentence on various grounds. First of all it is contended that the learned Sessions Judge had erred grossly in placing reliance on the oral evidence of PWs.1 and 2. The learned counsel further argues that the injuries on the accused having not been proved or explained by the prosecution, reliance ought not to have been placed on the sole testimony of interested P.W.1. The learned counsel vehemently contends that the offence in this case is not proved to be of the aggravated variety of culpable homicide amounting to murder under Sec.300 IPC. The conviction should have been entered only under Sec.299 and 304 IPC contends the learned counsel for the appellant. The learned counsel further argues that at any rate the accused is entitled to the mitigative protection of Exception 4 of Sec.300 IPC. 8. An appellate judgment is and ought to be read as a continuation of the judgment of the trial court which is impugned in the appeal. We deem it necessary that the appellate courts should caution themselves against unnecessary prolixity. It is unnecessary for the appellate court in the appellate judgment to refer to the pleadings, evidence and discussions by the trail court in a ritualistic manner. We fell that an appellate judgment can legitimately start with the opening statement that the impugned judgment is assailed on the specified grounds. That would be an adequate insurance against unnecessary prolixity in an appellate judgment. We fell that an appellate judgment can legitimately start with the opening statement that the impugned judgment is assailed on the specified grounds. That would be an adequate insurance against unnecessary prolixity in an appellate judgment. Pleadings and evidence need be narrated by an appellate court only if the appellate court feels that there has been any inadequacy or omission on the part of the trial court to refer to pleadings and evidence in the proper perspective. It will be advantageous that appellate judgments are issued along with the judgments of the trial court alone making it crystal clear that they must be read together as an integral whole. 9. We do not, in these circumstances, intend to re-narrate the oral evidence of P.Ws.1 to 14 or the contents of Exts.P1 to P15. Suffice it to say that the counsel have taken us in detail through the oral evidence of P.Ws.1 to 14. Their evidence has been read to us in detail. Exts.P1 to P15 have also been read to us in detail. The other documents before the trial court-including the charge framed by the learned Sessions Judge and the 313 examination of the accused have also been read to us in detail. We shall specifically advert to the relevant material, if necessary, in the course of discussions. 10. P.Ws.1 is the sole person who has witnessed the incident in its totality. P.W.2 is the brother-in-law of the accused and son of the deceased. He had only hearsay information on the basis of which he lodged Ext.P2 First Information Statement. P.W.3, a neighbour, claimed to be present when the incident began in the house of the deceased. Thereafter he had not witnessed the incident proper. P.W.5 the minor son of the accused was examined in support of the theory of motive. There is no motive to murder the deceased as such. What is at best revealed is only an insignificant dispute and quarrel which unfortunately led to the incident. P.W.4, the another neighbour examined by the prosecution, had also not witnessed the incident proper. He along with P.W.3 was present when the deceased and the injured were removed to the hospital. They do speak about certain alleged utterances of the appellant while the deceased and he were being removed to the hospital. 11. P.W.4, the another neighbour examined by the prosecution, had also not witnessed the incident proper. He along with P.W.3 was present when the deceased and the injured were removed to the hospital. They do speak about certain alleged utterances of the appellant while the deceased and he were being removed to the hospital. 11. The learned counsel for the appellant, first of all, contends that the learned Sessions Judge should not have accepted and acted upon the oral evidence of P.W.s.1 and 3. P.W.1 is the interested she being the wife of the deceased. P.W.3 is said to be interested he being a neighbour of the deceased. This theory of interestedness of P.Ws.1 and 3 does not in any way impress us. P.W.1 is the wife of the deceased. She is the mother-in-law of the appellant/accused. Similarly P.W.3 is a neighbour of both the accused and the deceased. Significantly nothing has been brought in evidence to suggest that P.Ws.1 and 3 have any animus against the appellant or interesting the deceased. Their interestedness is identical to the accused as well as to the deceased. In these circumstances, the attempt to brand P.Ws.1 and 3 as interested witnesses and the request to reject their evidence in an omnibus manner cannot be accepted. 12. We do first of all note that the presence of P.Ws.1 and 3 at the scene of the occurrence is not disputed by the appellant. It is the very case of the appellant that both of them were present when the incident commenced. On this aspect there is no dispute whatsoever. It would be puerile for the appellant now to contend that P.Ws.1 and 3 were not present when the incident commenced. Read this with the specific stand taken by the accused in the course of 313 examination that the injuries on the deceased wee inflicted by P.Ws.1 and 3. Consider that in the light of the stand taken by the accused that he had suffered an injury on his person and that injury was inflicted by P.W.3. We are adverting to this aspect only to re-assure ourselves that the presence of P.Ws.1 and 3 at/near the scene of occurrence cannot possibly be disputed by the appellant. 13. Consider that in the light of the stand taken by the accused that he had suffered an injury on his person and that injury was inflicted by P.W.3. We are adverting to this aspect only to re-assure ourselves that the presence of P.Ws.1 and 3 at/near the scene of occurrence cannot possibly be disputed by the appellant. 13. Their presence at the scene of the occurrence having thus been confirmed by us, the next question is whether they are exaggerating and giving a one sided version placing all blame for the incident unjustifiably at the doors of the appellant. We feel that this is the only aspect which must zealously be considered by us when the oral evidence of P.Ws.1 and 3 is being appreciated. 14. We shall straightaway refer to the plea that the deceased may have suffered injuries at the hands of P.Ws.1 and 3 and that the accused must have suffered the injury at the hands of P.W.3. Nothing can be farther from reason, logic and commonsense than this theory which is seen specifically advanced by the appellant in the course of 313 examination. We have been taken through the cross-examination of P.Ws.1 and 3. There is not a semblance of attempt even to suggest that P.Ws.1 and 3 had any motive against the deceased or that P.W.3 had any motive against the appellant to justify the theory that the appellant had suffered any injury at the hands of P.W.3. Inference appears to be irresistible for a prudent mind that the appellant is only attempting to some how wriggle out of the inconvenient situation in which he finds himself pointing compellingly to his contumacious role in the incident in which the deceased suffered injuries. 15. The evidence of P.W.3 can cover only the first part of the incident. In that part of the incident the deceased or the accused had not suffered any injuries. Go by the case of the prosecution or by the case of the accused it is evident that at the first spot i.e., the house of the deceased neither the deceased nor the accused had suffered any injuries. There was of course a quarrel. It was an unpremeditated and unanticipated quarrel, it is evident from all inputs. The father-in-law was entertaining the son-in-law. Even alcohol was served. P.W.3 a neighbour was also present. There was of course a quarrel. It was an unpremeditated and unanticipated quarrel, it is evident from all inputs. The father-in-law was entertaining the son-in-law. Even alcohol was served. P.W.3 a neighbour was also present. It is in the course of such circumstances that an unanticipated quarrel ensued between deceased and the appellant. P.W.3’s evidence, it is clear, covers only the first part of the incident. Of course in that incident P.W.1 is shown to have suffered an injury and that is confirmed by the evidence of P.W.9 Doctor and Ext.P6 wound certificate issued by him. There was a bleeding injury for P.W.1 as seen from Ext.P6. That injury, it is further revealed from Ext.P6 was an injury which called for suturing of the wound. It is evident that at the first scene of the occurrence only P.W.1 had suffered injury and such injury was a bleeding injury. Though the prosecution had initially alleged that the appellant had committed the offence under Sec.324 IPC in having so inflicted the injury on P.W.1, the trial court has found that it was an accidental injury and not injury voluntarily caused. That finding has become final in the absence of any appeal by the State or challenge by P.W.1. In so far as the first part of the incident is concerned which took place in the house of the appellant, there is not a semblance of reason to doubt or suspect the version of P.Ws.1 and 3. 16. The court below trifurcated the incident into three. The first one was what transpired at the house of the deceased where none other than P.W.1 had suffered any injury. The second part of the incident is at the spot marked in the scene mahazar. It is there that the deceased had suffered injuries. On this aspect of the matter, we have only the evidence of P.W.1. P.W.3 along with the wife of the accused and the daughter of the accused had left for his house from the house of the deceased after the first part of the incident. We do have only the evidence of P.W.1 about the incident proper. Her evidence is supported by the nature of the injuries found on the person of the deceased as is revealed from the oral evidence of P.Ws.8 and 9 doctors and Ext.P5 post-mortem certificate and Ext.P7 wound certificate issued by them. We do have only the evidence of P.W.1 about the incident proper. Her evidence is supported by the nature of the injuries found on the person of the deceased as is revealed from the oral evidence of P.Ws.8 and 9 doctors and Ext.P5 post-mortem certificate and Ext.P7 wound certificate issued by them. The short question is whether the oral evidence of P.W.1 about the manner in which the deceased suffered injuries can be accepted. The court below which had the occasion and the opportunity to see P.W.1 perform in the witness stand before it chose to place reliance on the oral evidence of P.W.1. Assessed on broad probabilities and for its intrinsic worth, we find no reason to disagree with the conclusion of the court below that reliance can be placed on the oral evidence of P.W.1. 17. The learned counsel for the appellant assails the oral evidence of P.Ws.1 and 3 on three broad aspects. First of all he contends that the description in the scene mahazar suggests that blood was present at scene No.1 i.e., the house of the deceased. Lot of blood is seen in the house of the deceased. There is no satisfactory explanation forthcoming. It is contended that this must suggest that the real incident started or occurred in the house of the deceased. P.W.1 is suppressing that part of the incident which initially took place in the house of the deceased, contends Sri. P. Vijayabhanu, the learned counsel for the appellant vehemently. 18. We have looked into this grievance. The accused does not also have a specific case that anything more than what is spoken to by P.Ws.1 and 3 did actually take place in the house of the deceased (i.e., scene No.1). This theory is built up by the learned counsel for the appellant on the mere circumstance that blood was found in the house of the deceased as per the description in Ext.P4 scene mahazar. It is in this context that the evidence of P.W.1 about the injury suffered by her at that venue assumes significance. We note that she had suffered a bleeding injury which required suturing by P.W.9 Doctor. It is in this context that the evidence of P.W.1 about the injury suffered by her at that venue assumes significance. We note that she had suffered a bleeding injury which required suturing by P.W.9 Doctor. Presence of blood in the house of deceased where he resides along with P.W.1 who admittedly had suffered injuries in the course of the incident there cannot in the facts and circumstances of this case-particularly in the light of the stand taken by the accused in the course of cross-examination and 313 examination, be held to generate any reasonable doubt in the mind of the court that P.Ws.1 and 3 are not speaking the truth about the incident that took place in the house of the deceased. Merely from the presence of blood in the house of the deceased as described in Ext.P4 scene mahazar we find it impossible to persuade ourselves to throw over board the evidence of P.Ws.1 and 3 of what they perceived at scene No.1. 19. The learned counsel for the appellant submits that the description of the scene of the crime at scene/venue No.1 i.e., by the side of the pathway between the two houses does not also support the case of P.W.1 the sole witness who tendered ocular testimony about the incident at the spot. We have looked into Ext.P4 scene mahazar in detail to correctly appreciate this contention. A perusal of Ext.P4 suggests that a lot of blood stained articles were available at the scene. P.W.1 the sole witness or P.W.3 who had witnessed the earlier part of the incident does not explain how these articles were present at the scene. The articles present are M.Os.2 to 11. The learned counsel argues that M.O.2 going by the version of P.Ws.1 and 3 was wrested by P.W.1 from the possession of the appellant and thrown away. How was M.O.2 found to be near the scene of occurrence which as per the description in the scene mahazar is at a distance of about 44 Mtrs. from the house of the house. The evidence of P.W.1 only shows that she had wrested the possession of the knife and thrown it away. We have no better evidence about the spot where M.O.2 fell after it was thrown away by P.W.1 The argument that P.W.1 cannot be attributed with such powers as to throw M.O.2 to such a distance is strenuously canvassed. The evidence of P.W.1 only shows that she had wrested the possession of the knife and thrown it away. We have no better evidence about the spot where M.O.2 fell after it was thrown away by P.W.1 The argument that P.W.1 cannot be attributed with such powers as to throw M.O.2 to such a distance is strenuously canvassed. This does not at any rate succeed in generating any reasonable doubt in our mind against the version of P.W.1 about the incident at scene No.2. 20. Particular reliance is placed by the learned counsel for the appellant on the description in Ext.P4 of the presence of various articles including M.O.14 iron rod which was found to be blood stained also. There were certain other articles like clothes, utensils etc., also-some of them blood stained at the scene of the occurrence. The learned counsel for the appellant argues that the presence of these articles at scene No.2 is not explained by the version given by P.W.1. 21. The learned Prosecutor promptly replies that the presence of these articles at venue No.2 cannot lead the court to a ready and instant conclusion that those articles are in any way involved in or used in the occurrence by any one. P.W.1 the sole eye witness has no such case. The accused in the course of examination of the prosecution witnesses or when examined under Sec.313 Cr.P.C. does not have even a suggestion that these articles including the blood stained iron road (LANGUAGE) M.O.14 was used by any one in the incident that took place. We find merit in the submission of the learned Prosecutor that by all indications the work of thatching of the house of the appellant was going on and the presence of these articles at the scene of the crime can be explained perfectly in these circumstances. The incident even according to the prosecution had taken place there and blood on the articles at the scene as perceived in Ext.P4 cannot lead a prudent mind to the conclusion that those articles were used in connection with the incident. We find the explanation of the learned Prosecutor to be reasonable and cogent. This is particularly so as P.W.1 has no case that such articles were used in the incident. We find the explanation of the learned Prosecutor to be reasonable and cogent. This is particularly so as P.W.1 has no case that such articles were used in the incident. The accused does not also have a case that such articles had anything to do in the admitted incident at that spot in which he claimed to have suffered injuries. He does not dispute that the deceased had suffered injuries at that spot. 22. In these circumstances, the description of the articles available at the scene of occurrence in Ext.P4 scene mahazar (which includes certain blood stained articles/clothes etc.,) cannot generate any reasonable suspicion in our mind against the version of P.W.1. The second circumstance relied on by the learned counsel for the appellant cannot also, in these circumstances, deliver any advantage to the accused or persuade us to approach the evidence of P.W.1 with any suspicion or distrust. 23. We now come to the third circumstance relied on by the learned counsel for the appellant. Counsel submits that it cannot now be disputed by the prosecution that the accused had suffered injuries. P.W.1 does not explain the injuries. But we have evidence available which suggests that the accused was found with injuries near the scene of occurrence and had complained immediately that he had suffered injuries at the hands of the deceased. P.W.1 the sole eye witness does not explain the injury on the accused. She asserts that the appellant could not have suffered these injuries at the hands of the deceased. The fact remains that the injuries on the accused is not explained by P.W.1. The sole witness who tendered evidence about the incident is thus not able to offer any explanation for the injury which was allegedly suffered by the appellant. 24. In this context we come to the next aspect. The injury on the accused is not seen proved by the prosecution. The evidence of P.W.11 the police officer who conducted the initial investigation reveals that the accused did have injuries and that he had lodged a counter FIR. The same was registered. The same was investigated into and according to P.W.1 it was referred. Obviously the same will have to be referred if the allegation is that the deceased had inflicted the injuries on the appellant, the deceased having expired and the charge against him having abated. But P.W.11 has a different version. The same was registered. The same was investigated into and according to P.W.1 it was referred. Obviously the same will have to be referred if the allegation is that the deceased had inflicted the injuries on the appellant, the deceased having expired and the charge against him having abated. But P.W.11 has a different version. According to him, it was referred because the Investigating Officer (evidently not he) felt that the injury on the accused was a self-inflicted injury. The Doctor who examined the appellant has not been examined. There is no evidence tendered that the injury (whatever that injury be) suffered by the accused could be a self-inflicted injury. We have, in these circumstances, no doubt that the prosecution has not discharged its burden to prove the injury on the accused at the first instance and then explain the injury on the accused. 25. What are the consequences? This is of greater importance for us. That the accused had suffered injuries appears to be clear from the totality of inputs. We have no authentic evidence to explain the injury. We are unable to render an authentic finding as to whether the said injury could be self-inflicted or not. Does this generate any reasonable doubt in the mind of the court? This is the crucial question to be answered. 26. It is trite that there is burden on the prosecution to explain the injury on the accused. This is not a mere fetish. There is a reason, rationale and logic behind this obligation that the prosecution must explain the injuries on the accused. A witness who tenders evidence about the incident and is unable to explain the injury on the accused, it is quite possible, may not have actually witnessed the incident. If he does not witness the infliction of the injury on the accused, there is possibility of the contention being true that the witness may not have been present at the scene of occurrence at all. This is first angle from which the absence of explanation for the injuries on the accused has to be considered. In the instant case we have no such worry at all. It is the admitted case of all concerned that P.W.1 was present at the scene of occurrence. This is first angle from which the absence of explanation for the injuries on the accused has to be considered. In the instant case we have no such worry at all. It is the admitted case of all concerned that P.W.1 was present at the scene of occurrence. The omission on the part of P.W.1 to explain the injury on the accused does not at all succeed in generating any doubt in our mind as to whether she was preset at the spot or not. 27. We come to the next dimension of the inability of a witness to explain the injury on the deceased. An interested witness bent on implicating an accused and speaking in favour of the victim may choose to white wash the role of the deceased and place the entire blame for the incident at the doors of the accused. This is the second reason why courts traditionally adopt an attitude of care and caution while appreciating the evidence of an eye witness who does not explain the injury on the accused. In this case significantly the accused does not have a case that he suffered injuries at the hands of the deceased. His 313 examination is eloquent in this context. According to him, the deceased suffered the injuries at the hands of P.Ws.1 and 3. We have already adverted to the hollowness of this contention. He has no case that he suffered injuries at the hands of the deceased. His very specific case in 313 examination is that he suffered the injury at the hands of P.W.3. We have adverted to the emptiness of this contention also already. It is in this context that we look at the inability of P.W.1 to explain the injury on the accused. If the injury suffered is substantial-of such a nature that an honest witness ocularly perceiving the incident could not have omitted to see the infliction of injury on the accused an attitude with distrust against such testimony may be justified. But not so in this case where the accused takes up a fairly definite and specific stand that he suffered the injuries not at the hands of the deceased; but at the hands of P.W.3. But not so in this case where the accused takes up a fairly definite and specific stand that he suffered the injuries not at the hands of the deceased; but at the hands of P.W.3. The second dimension of the inability of a witness to explain the injury of an accused does not also worry us in this context in the facts an circumstances of this case as the accused does not have a case in the course of trial that he suffered the injury at the hands of the deceased on account of any contumacious conduct on the part of the deceased. 28. We now come to the third dimension/consequence of the inability of a witness to explain the injury on the accused. The accused may have acted in private defence. The witness may be falsely perjuring before court to effectively shut out the plea of private defence by the accused. This is the third possibility. In this case we note that the right of private defence is not specifically pleaded. Of course, we are not oblivious to the law that if one the facts proved a right of private defence emerges notwithstanding the failure/omission of an accused to take up such plea specifically, definitely the court cannot deny the benefit of the right of private defence to such an accused merely because he has not pleaded it. 29. In this context it will be appropriate to refer to Sec.105 of the Evidence Act. The burden is on an accused to bring his case within one of the general exceptions to criminality under the Indian Penal Code. The accused in this case does not take up such a defence. He does not urge such a defence. On the contrary he offers quite a different explanation for the injury suffered by him. The totality of circumstances clearly reveal that the evidence of P.W.1 does not deserve to be approached with any amount of doubt, distrust or suspicion because she does not perceive and explain the injury suffered by the appellant. 30. This is not to say that we have not perceived the inadequacy on the part of the prosecution to prove the injury suffered by the accused. The Prosecutor shall not merely clamour for conviction of an accused. It is the solemn and sublime duty and responsibility of a Prosecutor to place the entire facts before the court. 30. This is not to say that we have not perceived the inadequacy on the part of the prosecution to prove the injury suffered by the accused. The Prosecutor shall not merely clamour for conviction of an accused. It is the solemn and sublime duty and responsibility of a Prosecutor to place the entire facts before the court. Even where the Prosecutor does not discharge his obligation to the hilt and to the satisfaction of the court a ritualistic concession of benefit of doubt cannot and should not follow. Evidently the accused on whom the burden lay to prove his plea for protection of the right of private defence did not think it necessary to prove the injury on himself. There is nothing to show that any serious injury has been suffered by the accused. We repeat that we are not oblivious to the fault/flaw on the part of the prosecution of not proving the injury. Suffice it to say that there is nothing to show that any such injury was suffered by the accused, the non-explanation of which by P.W.1 can be reckoned as sufficient reason to discard the evidence of P.W.1. Nor does it in any way help the court to concede to the accused any benefit of doubt. It does not also persuade the court to even remotely suspect that the accused did have a right of private defence which is not even pleaded by him. On the contrary his plea is contrary to the availability of a right of private defence in his favour. 31. We are not, in these circumstances, persuaded to agree, notwithstanding our dissatisfaction about the course adopted by the prosecution of not proving the injury on the accused, that such omission to prove the injury and the non-explanation of such injury should persuade us to concede to the accused the benefit of any doubt. We entertain no such reasonable doubt about the acceptability of the evidence of P.W.1 and the complicity of the accused. 32. The above discussions lead us to the conclusion that the learned Sessions Judge has not committed any error in accepting and acting upon the oral evidence of P.W.1 about the entire incident and the evidence of P.W.3 about the first part of the incident that took place in the house of the deceased. 33. 32. The above discussions lead us to the conclusion that the learned Sessions Judge has not committed any error in accepting and acting upon the oral evidence of P.W.1 about the entire incident and the evidence of P.W.3 about the first part of the incident that took place in the house of the deceased. 33. We shall, before proceedings further, now consider the claim for protection of Exception No.4 to Sec.300 IPC. We extract Exception-4 below: “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 under advantage or acted in a cruel or unusual manner. Explanation.—It is immaterial in such cases which party offers the provocation or commits the first assault. 34. It is trite that the following circumstances must simultaneously and cumulatively coexist to entitle an indictee to claim the benefit Exception No.4. They are: (i) There must be no premeditation. (ii) There must have been a sudden fight upon a sudden quarrel. (iii) The act must have been committed in the heat of passion. (iv) The offender must not have (a) taken undue advantage; or (b) acted in a cruel or unusual manner. 35. We have no hesitation to agree with the learned counsel for the appellant that there was no premeditation. The quarrel was sudden and the fight which ensued was also sudden. It is also possible to perhaps agree that the appellant had not taken any undue advantage or had not acted in an unusually cruel manner. All murders can widely be described to be cruel and unusual. To attract Exception No.4, the cruelty or unusualness in the manner of infliction must certainly be exceptional. We therefore find it possible to agree with the learned counsel for the appellant in respect of ingredients 1, 2 and 4; but certainly the 3rd ingredient that the act must have been committed in the heat of passion is not satisfied in the facts and circumstances of this case. Exception No.4 does not entitle an accused to absolution from culpable liability. It helps the accused only to claim mitigation of his culpable liability. Exception No.4 is a classic case of the legislature making an offender less responsible for his culpable indiscretion when he acts in an occasion when passion over runs reason. Exception No.4 does not entitle an accused to absolution from culpable liability. It helps the accused only to claim mitigation of his culpable liability. Exception No.4 is a classic case of the legislature making an offender less responsible for his culpable indiscretion when he acts in an occasion when passion over runs reason. In the instant cage the first incident took place in the house of the deceased and the appellant had all the time in the world to cool his passion and get over the emotional disturbance if any. We are certainly of the option that incident No.2 which is at a point geographically distant from the place of incident No.1 and chronometrically away from the incident which took place at scene No.1 cannot be held to be one entitling the accused to the plea that he acted in the heat of passion. The plea of Exception No.4 does not therefore appeal to us. 36. The learned counsel for the appellant now contends that, at any rate, the offence under Sec.300 IPC is not established. If the evidence of P.W.1 is believed, it is possible to come to a conclusion that the deceased had suffered injuries 1 and 6 described in Ext.P5 post-mortem certificate at the hands of the appellant. It is also possible to conclude from the evidence of P.W.8 and Ext.P5 post-mortem certificate that the deceased hado succumbed to those injuries. We think it apposite now to extract injuries 1 and 6 described in Ext.P5. They are: “1. Incised wound 4.5 x 1.5 cm. almost horizontal over left side of the face. Its front end 1.5 cm. above, 5 cm. outer to left angle of mouth. Back end 1.5 cm. below left ear lobule with tailing for a length of 3.5 cm directed backwards, from the back end of injury. Underneath the muscles, vessels, nerves were found cut. Xxx Xxx Xxx 6. Chop wound 9.5 x 4.5 cm bone deep horizontal over the back outer inner aspect of right leg; outer end 17 cm above the prominence of outer aspect ankle. Inner and 17 cm above prominence of inner aspect of ankle. Underneath muscles, vessels, nerves complete cut and separated. Tibia was cut partially; fibula was cut through and through corresponding to injury described.” The evidence of P.W.8 shows that the deceased had succumbed to these injuries. Inner and 17 cm above prominence of inner aspect of ankle. Underneath muscles, vessels, nerves complete cut and separated. Tibia was cut partially; fibula was cut through and through corresponding to injury described.” The evidence of P.W.8 shows that the deceased had succumbed to these injuries. Therefore the offence clearly is brought within the four walls of Sec.299 IPC-of culpable homicide not amounting to murder which is the genus. We now consider whether the offence of culpable homicide under Sec.299 IPC gets aggravated to the offence of murder defined under Sec.300 IPC. For this the prosecution has to show that the act by which the death is caused would fall under one of the four limbs of Sec.300 IPC. Culpable homicide under Sec.299 would amount to murder under Sec.300 IPC only if the act by which death is caused falls under one of the four limbs of Sec.300 IPC. It is only thereafter that a court is called upon to consider whether any of the Exceptions 1 to 5 would be attracted so that the offence of murder under Sec.300 IPC would slide back to the offence under Sec.299 IPC. 37. The learned counsel for the appellant contends that none of the four limbs of Sec.300 IPC is satisfied and therefore the offence cannot be said to satisfy the ingredients of the offence of murder under Sec.300 IPC. 38. We look at injury Nos.1 to 6 described above. The first question is whether these injuries could have been inflicted with the intention of causing death. Injury No.6 is an injury on the right leg-back outer inner aspect of right leg-above the ankle. That injury cannot evidently bring the case within clause firstly of Section 300 IPC. That injury cannot certainly be said to be an injury caused with the intention of causing death. The relatively non vital part of the anatomy where the injury is inflicted definitely militate against the theory that the injury could have been caused with the intention of causing death. So is injury No.1 also. It is an injury suffered on the left side of the face. It is stated that muscles, vessels, nerves etc. were found cut. But there is nothing to indicate that there was any major vessels cut by that injury. There was no bony injury resulting from Injury No.1. That gives us an idea of the force employed. It is an injury suffered on the left side of the face. It is stated that muscles, vessels, nerves etc. were found cut. But there is nothing to indicate that there was any major vessels cut by that injury. There was no bony injury resulting from Injury No.1. That gives us an idea of the force employed. In these circumstances, from the totality of inputs including the guesses of the incident, we are of the opinion that Injury No.1 cannot also bring the case within the first limb of Section 300 IPC. There is no contention even remotely possible that the offence in this case can be brought under Section 300 with the help of clauses secondly or fourthly of Section 300. 39. That leaves us with the third limb of Section 300. This limb would be attracted if intentional injury was inflicted and the injury suffered is sufficient in the ordinary course of nature to cause death. Precedents galore on this aspect and the law is too well settled that it is not necessary to specifically refer to precedents. The injuries will have to be looked at. The Court will have to answer the question whether the injury, objectively assessed, is sufficient in the ordinary course of nature to cause death. If that question is answered in the affirmative, Court then has to consider whether the injury was intentionally inflicted. If it is seen that there was an intentional infliction of injury and the resultant injury was sufficient in the ordinary course of nature to cause death, the offence of culpable homicide defined under Section 299 IPC will get aggravated to the offence punishable under Section 300 IPC by the play of the third limb (clause thirdly) of Section 300 IPC. 40. The learned counsel for the appellant points out that significantly there is no evidence at all to show that either Injury No.1 or Injury No.6 described in Ext.P5 is sufficient in the ordinary course of nature to cause death. Yes, there is evidence to show that death resulted. But there is significant absence of evidence on the question whether the injury was sufficient in the ordinary course of nature to cause death. Yes, there is evidence to show that death resulted. But there is significant absence of evidence on the question whether the injury was sufficient in the ordinary course of nature to cause death. The learned counsel for the appellant argues that in these circumstances, the accused is entitled to contend that the offence proved must remain under Section 299 IPC of culpable homicide not amounting to murder and does not get aggravated to the offence of murder defined under Section 300 IPC. 41. We have already noted that the injuries inflicted are not sufficient to enable us to draw a presumption/assumption that the injuries were inflicted with the intention of causing death. In the facts and circumstances of this case, we have no reason to assume that the injury suffered was not intentionally inflicted. The intentional infliction of injuries 1 and 6 is thus proved. But there is no evidence to prove that those injuries are sufficient in the ordinary course of nature of cause death. 42. It is not as though, courts must always look up to medical evidence on this aspect. An omission on the part of the prosecutor or trail court to adduce specific evidence on this aspect may not be crucial or vital when the court is satisfied on the materials on record that the injury was sufficient in the ordinary course of nature to cause death. A grievous injury inflicted on the heart, piercing the heart can certainly be held to be an injury sufficient in the ordinary course of nature to cause death, even without the specific assistance of an expert’s evidence. But in the instant case, we have already noted that Injury No.1 is not shown to have resulted in any bony injury. Injury No.6 is suffered on the lower leg. We are certainly of the opinion that this is eminently a fit case where the Court must look for specific expert evidence to prove that either of the two injuries are sufficient in the ordinary course of nature to cause death. For absence of evidence on that aspect, the appellant is bound to succeed. We do further take note of the totality of the circumstances in this case. It was an un-premeditated offence which followed an unexpected sudden quarrel and sudden fight. The intention to cause death significantly is not forthcoming from the evidence. For absence of evidence on that aspect, the appellant is bound to succeed. We do further take note of the totality of the circumstances in this case. It was an un-premeditated offence which followed an unexpected sudden quarrel and sudden fight. The intention to cause death significantly is not forthcoming from the evidence. The intentional infliction of injuries 1 and 6 though proved, the court is not satisfied that without expert evidence on this question, it is possible for the Court to conclude that the injuries (1 and 6) are sufficient in the ordinary course of nature to cause death. We are, in these circumstances, of the opinion that the benefit of doubt on this aspect-on the decision as to whether the offence falls under Section 300 IPC or Section 299 IPC can safely be conceded to the accused for absence of crucial evidence on this vital aspect. 43. We therefore come to the conclusion that the appellant is entitled to succeed on that short question. We are satisfied that the offence proved against the appellant is the one defined under Section 299 IPC punishable under Section 304(1) IPC. Act least the state of mind on the part of the accused must be presumed that the intentional bodily injury inflicted is likely to cause death. Therefore, we hold that the accused is liable to punished under Section 304(1) IPC. The challenge in this appeal can succeed only to the above extent. 44. Before we part with this case, we feel compellingly persuaded to reiterate and make observations on the role of the trial Judge in the administration of criminal justice. We deem it necessary to remind the trial Judges o their real role, duty and mission as part of the criminal justice delivery system. The trial Judge is an inevitable and vital part of the system of criminal justice administration. A system becomes a system only when every member of the system acts to perform its duties to further the common mission or task. The attainment of a crime free society is the mission, dream or goal of any system of administration of criminal justice worth its salt. Every member-the legislator, the investigator, the adjudicator and the correctional facility has to play the complimentary role resting on his shoulders. The most acceptable definition of Justice is that it ensures “to each what he deserves”. The attainment of a crime free society is the mission, dream or goal of any system of administration of criminal justice worth its salt. Every member-the legislator, the investigator, the adjudicator and the correctional facility has to play the complimentary role resting on his shoulders. The most acceptable definition of Justice is that it ensures “to each what he deserves”. Criminal justice delivery system must ensure punishment to the guilty because that is what the guilty deserves. Identification of the guilty and imposition of punishment on the guilty is the duty of the criminal justice delivery system. Imposition of punishment is justice because the guilty deserves punishment. Such punishment is justice to him and justice to society because society deserves protection from the crime and the criminal. In discharging this duty, there is also the obligation to ensure acquittal of the innocent. The primary duty is of course to ensure punishment of the really guilty. There is a concomitant duty-equally onerous and sublime, to secure exoneration of the innocent. Courts have to discharge this twin duty-of ensuring punishment of the guilty, at the same time, zealously ensuring exoneration of the innocent. 45. The mantle of the trial Judge is that of an unbiased impartial adjudicator. He has to ensure fair trial. Every reasonable opportunity must be given to an indictee to know, understand and controvert the allegation/evidence against him. Every reasonable opportunity must be given to the accused to establish his innocence. It is part of the sublime principles of natural justice or of inalienable human rights that an impartial, unbiased adjudicator must dispassionately after a fair trial pronounce on the guilt or innocence of the indictee. 46. But this is not to say that the trial Judge is a mere observer or umpire. He is and ought to be a disinterested dynamic participant in the trial that goes on before him. He is, to borrow, an oft repeated adage, not to be a blind and mute spectator or umpire in the drama of adversarial duel before him. He must be a dynamic disinterested participant in the trial. We remind trial Judges, the oft repeated imagery, employed in the judicial academies that the trial is a voyage. You have to cross the ocean of untruth, half truths, exaggeration and embellishments and reach the ultimate shores of truth and justice. He must be a dynamic disinterested participant in the trial. We remind trial Judges, the oft repeated imagery, employed in the judicial academies that the trial is a voyage. You have to cross the ocean of untruth, half truths, exaggeration and embellishments and reach the ultimate shores of truth and justice. In the voyage, the captain of the ship, the helmsman, the holder of the rudder is the trial Judge. Counsel for the rival contestants are the oarsmen in the voyage. The duty is on the captain of the voyage to navigate the vessel to the shores of truth and justice. The importance of the trial Judge in the voyage has to be alertly perceived and understood. It has to sink in to the minds of all trial Judges. The trial Judge is not one who has the holy water in his mouth, who cannot spit it or swallow it and hence must remain mute and inactive all through. A trial Judge who does not have the passion to discover truth and do justice is a liability to the system. He denies to himself the rapturous pleasure that can be derived when truth is discovered and justice is dispensed. As part of the criminal justice delivery system, a trial Judge, without commitment, will only bely his mission. 47. If there be any doubts, a perusal of Section 311 Cr.P.C. and Section 165 of the Evidence Act can be a source of perpectual inspiration for the Trial Judge. We extract the same. 311. Power to summon material witness, or examine person present-Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. 165. 165. Judge’s power to put questions or order production-The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question: Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved: Provided also that this section shall not authorize any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted. The sweeping powers of the trial Judge to take any necessary step at any point of time, if justice so demands, is important. The power under Section 165 of the Evidence Act to ask any question to the witness, even ignoring the law relating to relevancy is significant. Please note the number of “any” used in both the sections to identify the width and the sweep of such powers. These powers are of course to be cautiously invoked with circumspection. They afford indication of the expectation of the system from a trial Judge. He is clothed with ample powers to do justice. He is not to be a mute and blind spectator with no commitment to anything. His commitment must be to truth and justice and he must be adept at handling the tools which the system/legislature has afforded to him to discharge the mission left to him. 48. We have said so much because we are perturbed by the omissions on the part of the trial Judge in this case. The materials available suggest that the accused had suffered some injuries. 48. We have said so much because we are perturbed by the omissions on the part of the trial Judge in this case. The materials available suggest that the accused had suffered some injuries. He was seen by a doctor and a First Information Report was registered at his instance. The prosecution-for obscure or indifferent reasons had not examined the doctor or proved the wound certificate and the FIR. The defence did not think it necessary to produce and prove the relevant documents. Similarly, when the doctor who conducted the postmortem examination was examined, the prosecutor did not perceive the necessity to ascertain whether the injuries were sufficient in the ordinary course of nature to cause death. The defence, obviously aware that attempt can be made to capitalize on any inadequacy on the part of the prosecution, did not also choose to clarify. We are anguished that the trial Judge did not also choose to invoke his powers under Section 311 Cr.P.C. to get the doctor examined and to get the wound certificate of the accused (and the counter FIR) produced and proved. We are dissatisfied that the trial Judge did not choose to invoke his power under Section 165 of the Evidence Act to ascertain from the doctor who conducted the postmortem examination whether the injuries suffered were sufficient in the ordinary course of nature to cause death. This was unjustified abdication of jurisdictional responsibility on the part of the learned trial Judge. Our grievance is that the trial Judge did not appreciate and comprehend his vital and sublime role in the trial as a member of the system of administration of criminal justice. We do not want Trail Judges to repeat such indiscretion and hence this digression and general observations. 49. In the result: (a) This appeal is allowed in part. (b) The verdict of guilty and conviction is upheld, but is altered from Sec.302 IPC to Sec.304(1) IPC. (c) The sentence imposed on the appellant is modified to rigorous imprisonment for a period of 8 years and a fine of Rs.10,000/-. In default of payment of fine, the appellant shall undergo rigorous imprisonment for a further period of one year. 50. Communicate a copyof this judgment to the court below to issue revised warrant of commitment. 51. (c) The sentence imposed on the appellant is modified to rigorous imprisonment for a period of 8 years and a fine of Rs.10,000/-. In default of payment of fine, the appellant shall undergo rigorous imprisonment for a further period of one year. 50. Communicate a copyof this judgment to the court below to issue revised warrant of commitment. 51. Needless to say, if the appellant has already served the above sentence, necessary steps shall be taken by the court below and jail authorities to release him forthwith from custody.