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2024 DIGILAW 1083 (KER)

RAGESH @ VINOD S/O SUNDARESAN v. STATE OF KERALA

2024-08-30

C.PRATHEEP KUMAR, P.B.SURESH KUMAR

body2024
JUDGMENT : C. PRATHEEP KUMAR, J. 1. The appellant is the sole accused in Sessions Case No. 373/2018 on the file of the Additional District & Sessions Court-VI, Thiruvananthapuram. He stands convicted for murdering his father-in-law. The accused was residing along with his wife, minor child, parents-in-law and brother-in-law. On 18.11.2017, at about 1.45 p.m., the accused came home for having lunch. When he demanded lunch, his wife who was holding the child and told the accused to wait till the child sleeps. Infuriated by the same, the accused demanded to return back the money he had given to her on the previous day. At that time also she told him that she could return the money only after the child sleeps. The accused at that time, abused his wife and assaulted her. On seeing the same, the deceased, who is his father-in-law, intervened and questioned the conduct of the accused. Infuriated by the same, the accused has taken a seat-board which was present there and threw the same towards the deceased. It hit on the head of the deceased, causing injury on his head. The deceased questioned the accused as to why he had thrown the seat board on his head. At that time, his wife and daughter tried to pacify him and took him to the kitchen. In the mean time, the accused went inside the bed room, came out with a pair of scissors and stabbed on the chest of the deceased and then he ran away. Though immediately he was taken to the Taluk hospital, Vithura at about 2.30 p.m. he succumbed to the injury. 2. The accused was charged under Sections 294(b), 324 and 302 of the Indian Penal Code. The evidence in this case consists of the oral testimonies of PW1 to 17 and documentary evidence Exts.P1 to P25 on the side of the prosecution. MOs1 to 10 were also identified. On the side of the accused, portions of 161 Cr.P.C statement of PWs1 and 2 were marked as Exts.D1 and D2. After appreciating the available evidence, the trial court found the accused guilty of all the charges against him, convicted and sentenced him to undergo imprisonment for life and also to pay a fine of Rs.3,00,000/- under Section 302 of IPC. He was also punished under Section 324 IPC and under Section 294(b) IPC. After appreciating the available evidence, the trial court found the accused guilty of all the charges against him, convicted and sentenced him to undergo imprisonment for life and also to pay a fine of Rs.3,00,000/- under Section 302 of IPC. He was also punished under Section 324 IPC and under Section 294(b) IPC. Aggrieved by the above judgment of conviction and sentence, he preferred this appeal raising various contentions. 3. Now the points that arise for consideration are the following: (i) Whether the prosecution has succeeded in proving that the accused committed murder of deceased Sundaran? (ii) Whether the prosecution has succeeded in proving the offence under Section 294(b) IPC against the accused? (iii) Whether an accused who is punished under S.302 IPC is liable to be further punished under Section 324 IPC, for voluntarily causing hurt to the deceased? (iv) Whether the impugned judgment of conviction and sentence calls for any interference by this Court? 4. Heard both sides. 5. Point No. (i) - The prosecution has mainly relied upon the oral testimonies of PWs 1 to 3 to substantiate the prosecution case. PW1 is the wife of the accused as well as the daughter of the deceased. PW2 is the widow of the deceased. PW3 is a neighbour of PWs1 and 2. PW1 would swear that on 18.11.2017 at about 1.45 p.m., her husband namely the accused came home for having lunch. At that time, she was holding her 1½ year old child, who was about to sleep. When the accused demanded to have lunch, she requested him to wait till the child sleeps. Dissatisfied with the reply, the accused demanded to return the money paid by him on the previous day. Again she told him that she will return the money after the child sleeps. At that time, the accused abused and assaulted her. When her father intervened and tried to save her, the accused, who was infuriated by the intervention of the deceased, threw a seat-board on the head of the deceased. When the deceased questioned the accused for throwing the seat board on his head, she tried to pacify the deceased and her mother took the deceased towards the kitchen. At that time, the accused took out one scissors from an almirah from the bedroom and stabbed the deceased on his chest and thereafter he ran away. When the deceased questioned the accused for throwing the seat board on his head, she tried to pacify the deceased and her mother took the deceased towards the kitchen. At that time, the accused took out one scissors from an almirah from the bedroom and stabbed the deceased on his chest and thereafter he ran away. She screamed aloud and on hearing her scream, her aunt and neighbour namely, PW3, came there and tied the wound of the deceased using a cloth. Thereafter she took the deceased to the hospital at Vithura, with the help of an autorickshaw driver, PW7. 6. PW2, the wife of the deceased also adduced evidence almost in tune with the charge. According to her, on 18.11.2017 at about 1.45 p.m., the accused came home for having lunch. At that time, PW1 was breastfeeding the child and therefore, she requested the accused to wait. Infuriated by the same, the accused abused and assaulted his wife. When the deceased intervened, the accused threw a seat-board towards him and inflicted injury on his head. When the deceased questioned the above conduct of the accused, she along with PW1 took the deceased to the kitchen to avoid a clash with the accused. At that time, the accused took out a pair of scissors from the almirah, questioning whether he will not be permitted to live and hurling abusive words stabbed on the chest of the deceased and then he ran away. 7. PW3, the neighbour and aunt of PW1, deposed that on 18.11.2017 at about 1.45 p.m., upon hearing the scream of PW1, that her father was stabbed, she rushed to the house of PW1 and on the way, she saw the accused running away from the said house. She also saw the deceased with bleeding injury. She had tied the wound using a cloth taken from there and thereafter took the deceased to the hospital. 8. PW6, who was doing some road work near the residence of the deceased would swear that on 18.11.2017 during lunch time, he heard wordly altercation between the deceased, his wife, son-in-law and daughter. After about 20 minutes he also saw the accused running away from the said house, holding in his hand, a pair of scissors containing blood. PW10 is an attestor to Ext.P6 recovery mahazar. After about 20 minutes he also saw the accused running away from the said house, holding in his hand, a pair of scissors containing blood. PW10 is an attestor to Ext.P6 recovery mahazar. He deposed that he saw the accused taking out a knife from the nearest rubber plantation and handing over the same to the investigating officer. He identified the said pair of scissors as MO2 before the Court. 9. PW17, the Circle Inspector of Palode police station who had conducted the investigation in this case deposed that after examining the dead body of the deceased, he prepared Ext.P4 inquest report and seized the dress of the deceased. On 19.11.2017, he prepared Ext.P5 scene mahazar and seized MO1 seat-board from the place of occurrence. On 20.11.2017, at about 4.00 pm he arrested the accused, seized Mos 4 and 5 dress worn by the accused at the time of incident, as per Ext.P11 mahazar. On questioning the accused, he disclosed that the pair of scissors was kept by the side of the pathway leading to Chethanpara. Accordingly, as directed by the accused, he was taken to that place from where he had taken out MO2 pair of scissors and the same was seized as per Ext.P6 seizure mahazar. Ext.P6(a) is the relevant portion of the disclosure given by the accused. Ext.P25 is the FSL report in respect of examination of the material objects involved in this case. 10. PW13 was the Casualty Medical Officer, Taluk hospital, Vithura who had treated the deceased at 2.05 p.m. on 18.11.2017 and issued Exhibit P8 wound certificate. He would swear that at about 2.20 p.m., the patient succumbed to the injuries. 11. PW14 was the doctor who conducted the autopsy on the body of the deceased and issued Exhibit P9 postmortem certificate. He had noticed the following ante-mortem injuries on the body of the deceased: “1. Incised penetrating wound 2x0.5 cm, oblique on the left side of front of trunk with the upper inner sharp end 20 cm below top of breast bone and just to the left of midline. Its lower outer blunt end showed a tailing of 0.5 cm directed downwards and to the left and the other end was sharply cut. The lower margin near the blunt end showed abraded contusion over an area 0.5x0.1 cm. Its lower outer blunt end showed a tailing of 0.5 cm directed downwards and to the left and the other end was sharply cut. The lower margin near the blunt end showed abraded contusion over an area 0.5x0.1 cm. The wound entered the chest cavity through the 5th intercostal space, made a cut in the anterior mediastinum, pierced the pericardium (3.5x1 cm), at 4 cm above the cardiac apex and terminated in the right atrial chamber by making a cut 1.5x0.5x0.4 cm. The surrounding endocardium showed haemorrhage. The wound was directed backwards and upwards for a total minimum depth of 2.5 cm. The pericardial cavity contained 150 g blood clot and 150 ml fluid blood. The left chest cavity contained 150 ml of fluid blood. 2. Lacerated wound 2.5x0.4x0.5 cm, horizontal on back of head across midline, 10 cm above root of neck and 11 cm behind middle of attachment of right ear. 3. Graze abrasion 6x4 cm, oblique on right side of back of chest, 7 cm outer to midline and 13 cm below the top of shoulder. 4. Abrasion 4x0.3x 0.7 cm, oblique on left side of front of abdomen with inner lower narrower end 13.5 cm outer to midline and 12 cm above top of hip bone. 5. Contusion 2.5x1.5x0.5 cm on right side of front of chest involving the muscle of 5th intercostal space, 7 cm outer to midline.” 12. According to PW14, the cause of death is injury No. 1 namely, incised penetrating injury sustained to the chest. At the time of evidence, after verifying MO2 scissors PW14 deposed that the above injury No. 1 can be caused using MO2 scissors. He has also deposed that injury No. 1 is sufficient in the ordinary course of nature to cause death. 13. At the time of arguments, the learned counsel for the accused Sri. Godwin Joseph attempted to show that this is not a case of murder, but culpable homicide not amounting to murder, coming under Section 304 Part II of IPC. Further according to him, the accused is entitled to get the benefit of exception (4) of Section 300 of IPC. On the other hand, the learned Public Prosecutor Sri. E.C. Bineesh would submit that this is a clear case of murder and that the accused is not entitled to get the benefit of exception (4) of Section 300 of IPC. Further according to him, the accused is entitled to get the benefit of exception (4) of Section 300 of IPC. On the other hand, the learned Public Prosecutor Sri. E.C. Bineesh would submit that this is a clear case of murder and that the accused is not entitled to get the benefit of exception (4) of Section 300 of IPC. Therefore, he prayed for dismissing the appeal. 14. On a perusal of the evidence of PWs 1 and 2 it can be seen that there is no material contradiction or material omission in their evidence. The only contradiction marked during the cross examination of PW1 is Exhibit D1. At the time of evidence, PW1 deposed that her father was scared of her husband. However, in her 161 statement, she had stated that whenever her father is present in the house, her husband used to behave well, as he is scared of her father. The above contradiction as to whether the deceased was scared of the accused or whether the accused was scared of the deceased has nothing to do with the fact in issue involved in this case. Though during the cross-examination of PW2, an attempt was made to show that her evidence to the effect that the accused took out MO2 from the almirah in the bedroom is not correct, similar version given by PW1 was not challenged. Therefore, the evidence of PW1 to the effect that the accused has taken out MO2 from the almirah in the bedroom to attack the deceased is liable to be believed. 15. Similarly, during the cross-examination of PW2 a contradiction was marked as Exhibit D2. At the time of evidence, PW2 deposed that the accused never used to pay any maintenance to his wife. However, in the statement given to the investigating officer, she stated that the accused occasionally used to pay something to his wife. The above contradiction as to whether the accused used to pay maintenance to his wife or not also is not something connected with the fact in issue involved in this case. Therefore, Ext.D2 in not sufficient enough to discredit the testimony of PW2. During the cross examination of PWs 1 and 2 no other contradictions could be brought out. Similarly, no material omission also could be brought out in their evidence. Therefore, the oral testimonies of PWs 1 and 2 are cogent, convincing and trustworthy. 16. Therefore, Ext.D2 in not sufficient enough to discredit the testimony of PW2. During the cross examination of PWs 1 and 2 no other contradictions could be brought out. Similarly, no material omission also could be brought out in their evidence. Therefore, the oral testimonies of PWs 1 and 2 are cogent, convincing and trustworthy. 16. From Ext.P25 FSL report, it is revealed that MOs 4 and 5, the shirt and kaili worn by the accused at the time of commission of offence contained blood stains which are insufficient for determining the origin and group. At the same time, it is also reported that there was no blood stain in MO2 scissors. The law is well settled that presence of blood on the clothes of the accused is an incriminating circumstance against him. The fact that the blood group of the stains is not determined does not make much difference. 17. It was argued that absence of blood in MO2 is a circumstance showing that it was not the weapon used for the commission of the offence. However, as noticed by the trial court, and as argued by the learned Public Prosecutor, MO2 weapon was seized from near a stream and as such, the possibility of removing the blood stains by washing the weapon could not be ruled out. 18. In the decision in State of Rajasthan v. Teja Ram and Others, 1999 (3) SCC 507 , the Hon'ble Supreme Court held in paragraph 25 as follows: “Failure of the serologist to detect the origin of the blood due to disintegration of the serum in the meanwhile does not mean that the blood stuck on the axe would not have been human blood at all. Sometimes it happens, either because the stain is too insufficient or due to haematological changes and plasmatic coagulation that a serologist might fail to detect the origin of the blood. Will it then mean that the blood would be of some other origin? Such guesswork that blood on the other axe would have been animal blood is unrealistic and far fetched in the broad spectrum of this case. The effort of the criminal court should not be to prowl for imaginative doubts. Unless the doubt is of a reasonable dimension which a judicially conscientious mind entertains with some objectivity, no benefit can be claimed by the accused.” 19. The effort of the criminal court should not be to prowl for imaginative doubts. Unless the doubt is of a reasonable dimension which a judicially conscientious mind entertains with some objectivity, no benefit can be claimed by the accused.” 19. After analysing two earlier decisions of the Hon'ble Supreme Court in Prabhu Babaji v. State of Bombay, AIR 1956 SC 51 and Raghav Prapanna Tripathi v. State of U.P. AIR 1963 SC 74 the court further held in Theja Ram (supra) in paragraph 27 as follows: “27. We are unable to find out from the aforesaid decisions any legal ratio that in all cases where there was failure of detecting the origin of the blood, the circumstance arising from recovery of the weapon would stand relegated to disutility. The observations in the aforesaid cases were made on the fact situation existing therein. They cannot be imported to a case where the facts are materially different.” 20. The above decision was followed by the Apex Court in the subsequent decision in Shaji v. State of Kerala, AIR 2013 SC 651 . In paragraph 17 the Hon'ble Supreme Court held thus: “A failure by the serologist to detect the origin of the blood due to dis-integration of the serum, does not mean that the blood stuck on the axe could not have been human blood at all. Sometimes it is possible, either because the stain is insufficient in itself, or due to haematological changes and plasmatic coagulation, that a serologist may fail to detect the origin of the blood in question. However, in such a case, unless the doubt is of a reasonable dimension, which a judicially conscientious mind may entertain with some objectivity, no benefit can be claimed by the accused in this regard.” 21. It was further held in the decision in Shaji (supra) that once the recovery is made in pursuance of a disclosure statement made by the accused, the matching or non-matching of blood group loses significance. In the instant case, since PWs 1 and 2 have in clear terms identified MO2 pair of scissors as the weapon used by the accused for the commission of the offence, and there is no reason to suspect their evidence in that respect, absence of blood stain in the said weapon is of no consequence. 22. In the instant case, since PWs 1 and 2 have in clear terms identified MO2 pair of scissors as the weapon used by the accused for the commission of the offence, and there is no reason to suspect their evidence in that respect, absence of blood stain in the said weapon is of no consequence. 22. During the cross-examination of PWs 1 and 2 the accused has taken two different stands with respect to the manner in which the deceased sustained fatal injury. During the cross-examination of PW1, the stand taken by her is to the effect that when the deceased chased the accused, he fell down on granite arranged in line around a coconut tree, hit against a pointed iron rod and got himself injured. PW1 has vehemently denied the above suggestion put to her. However, she admitted that after the incident, the deceased fell down near the granite, as after the incident the deceased went towards the toilet and on the way, he fell down. She clarified that the deceased went towards the toilet only after the accused stabbed him and ran away. 23. During the cross examination of PW2, a suggestion was put to her to the effect that the deceased has taken a brick from the kitchen and threw it towards the accused, which she vehemently denied. Thereafter it was suggested to her that the deceased sustained injury in a clash with her own son, which was also denied by her. From the evidence of PWs 1 to 3 it was revealed that the son of the deceased was not present in the house, at the time of the incident. The suggestion given by the accused during the cross examination of PWs 1 and 2 with regard to the manner in which the deceased sustained injury stands not proved. On the other hand, from the evidence of PW1 and 2, it is revealed that the deceased died due to the stab injury caused by the accused on his chest. 24. The evidence of PW3 to the effect that she heard the scream of PW1 that her father was stabbed, and when she rushed to the house of PW1, she saw the accused running away from there and also saw the deceased with bleeding injury also corroborates the evidence of PWs 1 and 2. 24. The evidence of PW3 to the effect that she heard the scream of PW1 that her father was stabbed, and when she rushed to the house of PW1, she saw the accused running away from there and also saw the deceased with bleeding injury also corroborates the evidence of PWs 1 and 2. Therefore, from the evidence of PWs 1 to 3 the prosecution has succeeded in proving that on 18.11.2017 at about 1.45 p.m., the accused abused his wife and the deceased in filthy language, that he voluntarily caused hurt to the deceased by using a seat-board and thereafter inflicted a stab injury on his chest and as a result of which the deceased succumbed to the injuries at about 2.20 p.m on the same day. Since the accused inflicted injury on the chest of the deceased using a pair of scissors, even if it is assumed that he had no intention to cause the death of the deceased, he had the intention to cause a bodily injury. Since the bodily injury was inflicted on the chest of the deceased, which is a vital part, using a sharp weapon like a pair of scissors, it can be further presumed that the bodily injury intended to be inflicted by the accused is likely to cause death and as such the above act of the accused amounts to culpable homicide, as defined under section 299 IPC. 25. Now the question to be considered is whether the act of the accused amounts to culpable homicide amounting to murder as defined under S.300 IPC. It was argued by the learned counsel for the accused that though the accused had the opportunity to inflict more injuries, only one injury was inflicted and hence it is to be presumed that he had no intention to commit murder of the deceased. On the other hand, the learned Public Prosecutor would argue that even though there is only a single injury using MO2 scissors, the same was so fatal and grave enough resulting in the death of the victim immediately after the incident. 26. The difference between culpable homicide not amounting to murder and amounting to murder was discussed by the Hon’ble Supreme Court in the decision in State of A.P. v. Rayavarapu Punnayya and Another, AIR 1977 SC 45 . 26. The difference between culpable homicide not amounting to murder and amounting to murder was discussed by the Hon’ble Supreme Court in the decision in State of A.P. v. Rayavarapu Punnayya and Another, AIR 1977 SC 45 . In paragraph 21 the Apex Court concluded that: “From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder,' on ,the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in S.299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of S.300, Penal Code is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of murder' contained in S.300. If the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of S.304, depending, respectively, on whether the second or the third Clause of s.299 is applicable. If this question is found in the positive, but the case comes, within any of the Exceptions enumerated in s. 300, the offence would still be 'culpable homicide not amounting to murder' punishable under the First Part of s.304, Penal Code.” 27. In the decision in Virsa Singh v. State of Punjab, AIR 1958 SC 465 , the Apex Court had occasion to consider how the intention is to be inferred even in a case of single injury. In paragraph 16 and 17 the court held that: “.......The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. In paragraph 16 and 17 the court held that: “.......The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question. It is true that in a given case the enquiry may be linked up with the seriousness of the injury. For example, if it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury. The difference is not one of law but one of fact; and whether the conclusion should be one way or the other is a matter of proof, where necessary, by calling in aid all reasonable inferences of fact in the absence of direct testimony. His intention in such a case would be to inflict a totally different injury. The difference is not one of law but one of fact; and whether the conclusion should be one way or the other is a matter of proof, where necessary, by calling in aid all reasonable inferences of fact in the absence of direct testimony. It is not one for guess work and fanciful conjecture.” 28. In a recent decision in Anbazhagan v. State, AIR 2023 SC 3660 , after analyzing a plethora of decisions, the Apex Court has summarised the principles to be followed in ascertaining the intention of the accused, in paragraph 60 as follows: “Few important principles of law discernible from the aforesaid discussion may be summed up thus: (1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused. To illustrate : 'A' is bound hand and foot.” 'B' comes and placing his revolver against the head of 'A', shoots 'A' in his head killing him instantaneously. Here, there will be no difficulty in holding that the intention of 'B' in shooting 'A' was to kill him, though only single injury was caused. The case would, therefore, be of murder falling within Clause (1) of Section 300 of the IPC. Taking another instance, 'B' sneaks into the bed room of his enemy 'A' while the latter is asleep on his bed. Taking aim at the left chest of 'A', 'B' forcibly plunges a sword in the left chest of 'A' and runs away. 'A' dies shortly thereafter. The injury to 'A' was found to be sufficient in ordinary course of nature to cause death. There may be no difficulty in holding that 'B' intentionally inflicted the particular injury found to be caused and that the said injury was objectively sufficient in the ordinary course of nature to cause death. This would bring the act of 'B' within Clause (3) of Section 300 of the IPC and render him guilty of the offence of murder although only single injury was caused. This would bring the act of 'B' within Clause (3) of Section 300 of the IPC and render him guilty of the offence of murder although only single injury was caused. (2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC. (3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is ‘guilty intention,’ whereas the second part would apply when there is no such intention, but there is ‘guilty knowledge’. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is ‘guilty intention,’ whereas the second part would apply when there is no such intention, but there is ‘guilty knowledge’. (4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder. (5) Section 304 of the IPC will apply to the following classes of cases: (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression 'sufficient in the ordinary course of nature to cause death' but is of a lower degree of likelihood which is generally spoken of as an injury 'likely to cause death' and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death. To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC. (6) The word 'likely' means probably and it is distinguished from more 'possibly'. When chances of happening are even or greater than its not happening, we may say that the thing will 'probably happen'. (6) The word 'likely' means probably and it is distinguished from more 'possibly'. When chances of happening are even or greater than its not happening, we may say that the thing will 'probably happen'. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death. (7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC. (8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack. (9) Intention to kill is not the only intention that makes a culpable homicide a murder. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack. (9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries. (10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case. (11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies. (12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC.” 29. In the light of the above decisions it can be seen that the intention of the accused is to be drawn from the proved circumstances of the case, having regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack. 30. MO2 is a steel pair of scissors with sharp edge having a total length of 18.5 c.m. Considering the size, the length and sharp edge, it can be seen that MO2 scissors could be used as a lethal weapon. The accused inflicted the fatal injury on the chest of the deceased, after PWs 1 and 2 lead him from the hall room to the kitchen, as a precaution to avoid a clash between them. At that time there was absolutely no necessity for the accused to attack the deceased or to inflict such an injury on his chest. Immediately before inflicting the fatal injury, he had given up the seat-board, went to the bedroom, took out MO2 scissors from the almirah and then proceeded to the kitchen to inflict the injury. Immediately after inflicting the above injury, he ran away from the place. 31. The above stab has resulted in causing an incised penetrating wound 2x0.5 cm, oblique on the left side of front of trunk below top of breast bone and just to the left of midline. The wound entered the chest cavity through the 5th intercostal space, made a cut in the anterior mediastinum, pierced the pericardium (3.5x1 cm), at 4 cm above the cardiac apex and terminated in the right atrial chamber by making a cut 1.5x0.5x0.4 cm. The surrounding endocardium showed haemorrhage. The wound was directed backwards and upwards for a total minimum depth of 2.5 cm. 32. From the conduct of the accused in inflicting stab injury on the chest of the deceased when he was held by PWs 1 and 2, in spite of the fact that he had the option to inflict injury on any other part of the body assumes significance. Due to the impact of the above stab, the deceased sustained injury on the chest cavity also and he died immediately after the incident. Due to the impact of the above stab, the deceased sustained injury on the chest cavity also and he died immediately after the incident. PW14 the Doctor, who had conducted the autopsy, in clear terms deposed that injury No. 1 could be caused using MO2 Scissors and also that the said injury is sufficient in the ordinary course of nature to cause death. It was in the above context, the trial court found that the 1st accused has inflicted the injury using MO2 with the intention of causing the death of the deceased. 33. As already stated, at the time of inflicting the vital injury, the deceased was held by PWs 1 and 2 at the kitchen, to avoid any clash with the accused. In spite of the fact that he had no threat from the deceased, the accused chose to misuse that opportunity to inflict the fatal injury on the chest, one of the most vital parts of the deceased. In the light of the above circumstances, even if it is assumed that the accused had no intention to cause the death of his father-in-law, it is evident that the injury intended to be inflicted by him on the chest of the deceased is sufficient in the ordinary course of nature to cause death. Accordingly, the above act of the accused will come under clause 3 of Section 300 of IPC, amounting to murder punishable under S.302 IPC. 34. Now the question to be considered is whether the above act of the accused comes within the purview of Exception (4) to Section 300 IPC. Exception (4) to Section 300 IPC 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's having taken undue advantage or acted in a cruel or unusual manner.” 35. In order to bring the case under exception (4) of Section 300 IPC, the accused has to establish that he had committed the act without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel and without having taken undue advantage or acted in a cruel or unusual manner. In order to bring the case under exception (4) of Section 300 IPC, the accused has to establish that he had committed the act without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel and without having taken undue advantage or acted in a cruel or unusual manner. From the available evidence, it is revealed that at about 1.45 pm on 18.11.2017 when the accused came for having lunch, his wife was holding the 1½ year old child, who was about to sleep. The accused got provoked as his wife did not serve lunch to him immediately and started abusing and assaulting his wife. It was at that time the deceased questioned his above conduct. Infuriated by the same, the accused threw a seat-board towards the head of the deceased and caused injury on his head. It was followed by an altercation between the deceased and the accused. At that time PWs 1 and 2 took the deceased to the kitchen from the hall room, to avoid any clash between them. At that time the accused took out a scissors from an almirah in the bedroom, entered the kitchen and stabbed on the chest of the deceased. The evidence of PW1, the wife of the accused that on one day she saw MO2 inside the almirah and on inquiry the accused told her that he received it from his mother and brought it for being used in case if required, also remains unchallenged. 36. The deceased first questioned the conduct of the accused only when his daughter was abused and assaulted in front of him, in his own house, by the accused. Then he questioned the accused only when the accused threw a seat-board towards his head and inflicted injury on his head. The conduct of the deceased in questioning the accused in those two occasions cannot be found fault with, as there was justifiable reasons for the same. Even if there was any heat of passion upon a sudden quarrel till then, it was averted by PWs 1 and 2 by taking the deceased to the kitchen. Thereafter there was absolutely no necessity for the accused to attack and cause injury on the deceased. Even if there was any heat of passion upon a sudden quarrel till then, it was averted by PWs 1 and 2 by taking the deceased to the kitchen. Thereafter there was absolutely no necessity for the accused to attack and cause injury on the deceased. Even if it is assumed that the conduct of PW1 in not serving lunch to the accused immediately on demand had provoked him, there was no such provocation from the side of the deceased towards the accused. In this case, there is also no sudden fight between the accused and the deceased. 37. The learned counsel for the accused relied upon certain decisions in support of his argument that Section 302 IPC cannot be attracted. The scope of exception (4) of Section 300 of IPC was considered by the Hon'ble Supreme Court in the decision in Salim Sahab v. State of Madhya Pradesh, 2007 (1) SCC 699 . In paragraph 16, the Apex Court held that: “16. The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300, IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'. Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is out of all proportion, that circumstance must be taken into consideration to decide whether undue advantage has been taken. Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is out of all proportion, that circumstance must be taken into consideration to decide whether undue advantage has been taken. In Kikar Singh v. State of Rajasthan, AIR 1993 SC 2426 it was held that if the accused used deadly weapons against the unarmed man and struck a blow on the head it must be held that using the blows with the knowledge that they were likely to cause death, he had taken undue advantage.” 38. In Mavila Thamban Nambiar v. State of Kerala, AIR 1997 SC 687 relied upon by the learned counsel for the accused, there was exchange of words, which was followed by a scuffle between the deceased and the accused. It was thereafter the accused therein used a scissors to inflict a single injury on the vital part of the body of the deceased. However, in the instant case, there is no such scuffle, as in the above decision and as such the above decision does not apply to the facts of this case. 39. In the decision in Johny v. State of Kerala, 2010 (1) KHC 585 relied upon by the learned counsel for the accused, a Division Bench of this Court held that for the mere fact that three injuries were inflicted in quick succession evidently while the combat was going on may indicate conduct in frenzy in the heat of passion and cannot in the circumstances be held to be indicative of sufficient reason to deny the advantage of Exception (4) of Section 300 IPC to the accused. In the above decision, the deceased went to the house of the accused for questioning his previous conduct, which was followed by a quarrel and physical combat between the deceased and the accused. It was in the above context the Division Bench held that for the mere reason that three injuries were inflicted, the benefit of exception (4) of Section 300 could not be denied to the accused. In the instant case, there was no physical combat between the deceased and the accused. Moreover, it is not a case where the deceased went to the house of the accused for questioning the previous misbehaviour of the accused. In the instant case, there was no physical combat between the deceased and the accused. Moreover, it is not a case where the deceased went to the house of the accused for questioning the previous misbehaviour of the accused. Therefore the dictum laid down in the above decision is not applicable to the facts of this case. 40. In the decision in Deepak v. State of Uttar Pradesh, (2018) 8 SCC 228 , relied upon by the learned counsel for the accused, irked by the loud noise of the tape recorder being played by the deceased in his house, the appellant had a verbal altercation with the deceased which culminated in a single sword-blow by the appellant in the rib-cage area of the deceased. In that case, after the verbal argument, the appellant rushed to his house, which is just opposite to that of the deceased, came back with a sword, delivered a single blow on the rib-cage area of the deceased and then ran away threatening to see him again later. The entire incident lasted only for 11/2 to 2 minutes. It was in the above facts and circumstances, the Apex Court held that the offence committed by the accused comes within Section 304 Part II of IPC. But, in the instant case, as we have already noted above, there was no provocation from the side of the deceased. Moreover, the provocation, if any, was from the side of the accused in attacking the deceased unnecessarily. When the accused caused injury on the head of the deceased by throwing a seat-board, the deceased was taken to the kitchen by PWs 1 and 2, to avoid a possible clash between them. Thereafter, there was no necessity or reason for the accused to attack the deceased again. In the light of the above facts, the decision in Deepak (supra) also does not apply to the facts of the present case. 41. In this case the deceased had not used any force against the accused. Therefore, it is evident that in this case, there was no fight, much less, any sudden fight, between the deceased and the accused. When PWs 1 and 2 intervened and took the deceased to the kitchen, there was absolutely no necessity or reason for the accused to again attack the deceased. Therefore, it is evident that in this case, there was no fight, much less, any sudden fight, between the deceased and the accused. When PWs 1 and 2 intervened and took the deceased to the kitchen, there was absolutely no necessity or reason for the accused to again attack the deceased. It appears that PWs 1 and 2 were holding the deceased and retaining him in the kitchen, when the accused came with a pair of scissors and stabbed on the chest of the deceased. He has not even considered the fact that the deceased is his own father-in-law and an old man. Since the accused stabbed the deceased on his chest when he was held by PWs 1 and 2 at the kitchen, it is evident that the accused took undue advantage of the above situation and acted in a cruel and unusual manner. In the above circumstances, the above conduct of the accused will not come within the purview of exception (4) of Section 300 IPC. With regard to the conviction and sentence passed under Sections 294 (b) IPC, no argument was advanced by the learned counsel for the accused. Accordingly, the conviction and sentence passed under Sections 294 (b) and 302 IPC are liable to be sustained. Points 1 and 2 answered accordingly. 42. Point No. 3: It appears that the trial court has charged the accused under Section 324 of IPC also, in addition to Section 302 of IPC for causing hurt to the deceased. Further, he was convicted and sentenced under Section 324 IPC, in addition to Section 302 IPC. Section 71 of IPC states that where any offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such offences, unless expressly provided. It further states that when an offence falls within two or more separate definitions of offences or where several acts, of which one or more than one would, by itself or themselves constitute an offence, constitute, when combined, a different offence, the offender shall not be punished with a more severe punishment than the court which tries him could award for any one of such offences. 43. 43. In a recent decision in Satheeshkumar @ Kari Satheesh v. CBI, 2024 KHC Online 211, a Division Bench of this court (in which one of us was a party) had occasion to consider whether the accused who was convicted and sentenced under Section 302 IPC can be again punished under Section 326 of IPC, for causing grievous hurt to the deceased. The Division Bench held that: “....when an offence under Section 302 IPC has been established, it takes in the ingredients of the offence under Section 326 IPC, and the offences, though falling under two different definitions of offences, form a single transaction, and the appellant cannot be convicted for both the offences.” 44. The above decision was followed by this Bench in the decision in Sajeev v. State of Kerala (Crl. Appeal No. 382 of 2018 decided on 2.8.2024) and held that conviction of the accused under Section 323 IPC in addition to Section 302 of IPC is unsustainable in view of Section 71 IPC, in the following words: “In this case also, when the offence under Section 302 IPC is proved, it takes within it's sweep the ingredients of the offence under Section 323 IPC also. In the above circumstance, since the accused was punished under Section 302 IPC, no separate punishment can be awarded to them under Section 323 IPC.” 45. In this case also, when the offence under Section 302 of IPC is proved, it takes within it's sweep the ingredients of the offence under Section 324 IPC also. Therefore, the accused who was punished under Section 302 IPC, cannot be awarded separate punishment under Section 324 IPC, for causing hurt to the deceased. In the above circumstance, the conviction and sentence passed against the accused under Section 324 IPC is liable to be set aside. Point No. 3 answered accordingly. 46. Point No. 4: For the offence under Section 302 of IPC, the trial court has awarded the minimum punishment of imprisonment for life alone, in addition to fine and as such no interference is called for in the punishment imposed under Section 302 of IPC. 47. In the above circumstances, the appeal is liable to be allowed in part as follows: The conviction and sentence passed under Section 294(b) and 302 IPC are sustained. At the same time, the conviction and sentence passed under Section 324 IPC is set aside. 47. In the above circumstances, the appeal is liable to be allowed in part as follows: The conviction and sentence passed under Section 294(b) and 302 IPC are sustained. At the same time, the conviction and sentence passed under Section 324 IPC is set aside. The appellant is acquitted of the offence under Section 324 IPC under Section 386(b)(i) Cr.P.C.