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2024 DIGILAW 1249 (KER)

Thomas v. State of Kerala

2024-09-30

G.GIRISH, RAJA VIJAYARAGHAVAN V.

body2024
JUDGMENT : G.Girish, J. The judgment dated 27.09.2017 of the Additional Sessions Court-I, Kottayam in S.C.No.116/2012 convicting and sentencing the sole accused for the commission of offence under Sections 449 and 302 I.P.C, is under challenge in this appeal. The appellant herein who faced trial in the said case, was awarded life imprisonment and fine Rs.50,000/- under Section 302 I.P.C and rigorous imprisonment for five years and a fine of Rs.10,000/- under Section 449 I.P.C. Prosecution Case 2. The accused and the victim are neighbours. A pathway in front of the courtyard of the house of the victim, is the only way of access to the residence of the accused. The transit of the accused and the persons associated with him through the above pathway often gave rise to issues between the victim and the accused. The accused wanted to widen the above pathway into a cartable road, but the victim was not willing to surrender land for it. Due to the above grudge, the accused used to verbally abuse the victim and his wife and threaten them. On 23.02.2011 at about 2:15 p.m, the accused, as usual, parked his Maruti Omni Van at the road ending near the residence of the victim and walked through the pathway by the side of the courtyard of the house of the victim showering verbal abuses attributing illicit relationship of the wife of the victim with a neighbour. PW4, the driver of the accused followed him. Hearing the abusive words of the accused, the victim and his wife came to the sitout of their house and asked the accused to stop the verbal abuse. Thereupon the accused criminally trespassed into the sitout of the house of the victim, pulled the victim out to the courtyard of the house and stabbed on his right eyebrow with a knife inflicting incised penetrating wound which pierced the dura and extended upto the under aspect of frontal lobe of the brain. PW2 and PW3, the neighbours of the victim, rushed to the spot hearing the screams. The victim who collapsed at the courtyard of his house, was taken to a nearby private hospital by PW2 and PW3, in the vehicle of the accused driven by PW4. The doctor who attended the victim at the private hospital declared that the victim was brought dead. Registration of the Crime and Commencement of Investigation 3. The victim who collapsed at the courtyard of his house, was taken to a nearby private hospital by PW2 and PW3, in the vehicle of the accused driven by PW4. The doctor who attended the victim at the private hospital declared that the victim was brought dead. Registration of the Crime and Commencement of Investigation 3. On getting information about the incident from the victim’s younger brother’s wife, PW1, the son of the elder brother of the victim, went to the private hospital and saw the body of the victim soaked in blood. After ascertaining the details from PW2 and PW3, PW1 went to the Kaduthuruthy Police Station and gave Ext.P1 first information statement on the basis of which Ext.P13 first information report was registered by PW20, the Sub Inspector of Police. Soon, PW21, the Circle Inspector of Police, took over the investigation and proceeded with the legal formalities. The accused was arrested by PW21 on the date of the incident itself. PW21 also conducted the inquest and effected the recovery of the weapon of offence and prepared the scene mahazar. The dead body was subjected to autopsy, and the material objects were sent for scientific analysis. During the course of investigation, the statements of PW2 to PW4 under Section 164 Cr.P.C were recorded by PW22, the Judicial First Class Magistrate-I, Ettumanoor. After the completion of the investigation, PW21 laid the charge sheet before the jurisdictional Magistrate. Enquiry by the Magistrate and Committal of the Case 4. The Judicial First Class Magistrate-I, Vaikom before whom the final report was filed, took the case to files and issued summons to the accused. After procuring the presence of the accused, the learned Magistrate complied with the legal formalities and committed the case to the Sessions Court, Kottayam which made over the case to the Additional Sessions Judge-I for trial. Framing of Charge 5. After considering the prosecution records and conducting the preliminary hearing, the learned Additional Sessions Judge-I, Kottayam framed charges under Sections 449 and 302 I.P.C against the accused (appellant). The charge was read over and explained to the accused to which he pleaded not guilty. The Trial before the Additional Sessions Court 6. The prosecution examined 22 witnesses as PW 1 to PW22, and marked 17 documents as Exts.P1 to P17. Two material objects were identified as MO1 and MO2. 7. The charge was read over and explained to the accused to which he pleaded not guilty. The Trial before the Additional Sessions Court 6. The prosecution examined 22 witnesses as PW 1 to PW22, and marked 17 documents as Exts.P1 to P17. Two material objects were identified as MO1 and MO2. 7. PW1 is the cousin of the deceased, who lodged Ext.P1 First Information Statement before the Kaduthuruthy Police. Admittedly, PW1 has got only hearsay knowledge about the incident. According to him, he came to know about the incident as informed over phone by the wife of the younger brother of the deceased at about 2.30 p.m. on 23.02.2011. 8. PW2 and PW3 are the neighbours of the deceased who claimed to have arrived at the scene of crime hearing the hue and cry from the house of the deceased. Both of them stated that they saw the deceased lying in a pool of blood at the courtyard of his house, and the accused leaving the place with a knife in his hand. Both the above witnesses further stated that they took the deceased to a private hospital at Muttuchira with the help of PW4, the driver of the accused who was there along with the accused at the time of the incident. The statements given by PW2 and PW3 to the Magistrate under Section 164 Cr.P.C are marked as Exts.P2 and P3 through those witnesses. 9. PW4 is the driver of the accused, who is one among the two occurrence witnesses in this case. He is said to have accompanied the accused through the courtyard of the house of the deceased at about 2p.m on 23.02.2011 while the accused was going to his house for lunch. He stated before the trial court that the accused had been uttering abusive words at the wife of the deceased while walking through the compound of the deceased. As regards the incident, he gave two versions before the trial court. As per the first version, he did not see the accused stabbing the deceased with a knife. Instead, the deceased is said to have lost his balance while approaching the accused to assault him with bricks in his hands, and by the time PW4 caught hold of the deceased, he found profuse bleeding from the face of the deceased. As per the first version, he did not see the accused stabbing the deceased with a knife. Instead, the deceased is said to have lost his balance while approaching the accused to assault him with bricks in his hands, and by the time PW4 caught hold of the deceased, he found profuse bleeding from the face of the deceased. Subsequently, PW4 stated that the deceased suffered injury upon his right eye as stabbed by the accused with a knife. To the leading questions put during cross-examination, PW4 stated that there was a scuffle between the deceased and the accused when the accused verbally abused the wife of the deceased and that when the deceased tried to assault the accused with a brick, the accused whipped out his knife. He also stated about the hospitalization of the deceased in the vehicle of the accused. 10. PW5, another person of that locality, also stated that he had seen the accused going to his house with verbal abuses showered at the wife of the deceased, and that PW4 was also with the accused at that time. PW6, another neighbour and the wife of the brother of the deceased, stated before the trial court that she had seen the accused fleeing with a knife in his hand when she went to the house of the deceased at about 2.30 p.m. on 23.02.2011 hearing the cries of the wife of the deceased. A similar version has been tendered by PW7, the wife of the cousin of the deceased, who is also a neighbour of the deceased. 11. PW8 to PW10 are attestors to the inquest report marked as Ext.P5. PW11 and PW12 are attestors to Ext.P6 recovery mahazar prepared by PW21 at the time when MO1, the weapon of offence, was said to have been recovered from the house of the accused. PW13 is an attestor to Ext.P7 scene mahazar prepared by the Police. PW14 is the Doctor, who examined the deceased at Holy Ghost Mission Hospital, Muttuchira, when he was brought dead there at about 2.30 p.m. on 23.02.2011. PW15 is the Scientific Assistant of the Forensic Science Laboratory, who issued Ext.P9 report after examining the material objects sent by the Investigating Agency. PW16 is the Village Officer, Njeezhoor, who issued Ext.P10 scene plan showing the place of occurrence. PW15 is the Scientific Assistant of the Forensic Science Laboratory, who issued Ext.P9 report after examining the material objects sent by the Investigating Agency. PW16 is the Village Officer, Njeezhoor, who issued Ext.P10 scene plan showing the place of occurrence. PW17 is an attestor to Ext.P11 mahazar prepared by the Investigating Officer while recovering the dress worn by the accused at the time of commission of the offence. PW18 is the Professor and Police Surgeon of Government Medical College, Kottayam, who conducted autopsy of the body of the deceased and issued Ext.P12 postmortem certificate. 12. PW19 is the wife of the deceased, who is the other occurrence witness to this crime. She stated before the trial court that the accused came to the courtyard of her residence in between 2 p.m. and 3 p.m. of 23.02.2011 with verbal abuses showered against her and her husband and that when they questioned the accused, her husband was dragged from the sitout of the house to the courtyard by the accused and thereafter stabbed above his right eye with a knife. She also stated about the arrival of PW2 and PW3 hearing her cries, and the hospitalization of the deceased. 13. PW20 is the Sub Inspector of Police, Kaduthuruthy, who registered Ext.P13 F.I.R on the basis of Ext.P1 statement given by PW1. PW21 is the Circle Inspector of Police, Kaduthuruthy, who conducted the investigation in this case and laid the final report before the Magistrate. PW22 is the Judicial First Class Magistrate, Ettumanoor, who recorded the statements of PW2 to PW4 under Section 164 Cr.P.C., which are marked as Exts.P2 to P4 respectively. The defence of the accused 14. Before the trial court, the accused took up the plea of right of private defence and argued that the incident occurred when the deceased assaulted him with three bricks, and he tried to defend himself by whipping out his knife. The version of the accused before the trial court was that the deceased who pounced upon him with three bricks, lost control of himself and fell upon him while he took out his knife in self defence, and sustained injury which eventually resulted in his death. Finding of the Trial Court 15. The version of the accused before the trial court was that the deceased who pounced upon him with three bricks, lost control of himself and fell upon him while he took out his knife in self defence, and sustained injury which eventually resulted in his death. Finding of the Trial Court 15. The learned Sessions Judge declined to accept the above defence and held that the evidence on record unequivocally established the assault of the accused, who inflicted the fatal stab injury upon the right eyebrow of the victim with MO1 knife leading to the death of the victim. The trial court also found that the criminal act committed by the accused in the above regard amounted to murder punishable under Section 302 I.P.C. Accordingly, the appellant was found guilty of commission of the offence of house trespass under Section 449 I.P.C and murder under Section 302 I.P.C and awarded the sentence. The challenge against the verdict of Trial Court 16. In the present appeal, the appellant would contend that the trial court committed gross error by declining to accept the plea of right of private defence advanced by the accused. Thus, it is stated that the trial court ought to have found that the case came under the General Exception envisaged under Section 100 of the Indian Penal Code, which conferred right upon a person to cause the death of the assailant in exercise of his right of private defence. 17. Heard Adv.Sri.R.Rohit, the learned counsel for the appellant and Adv.Smt.Neema T.V, the learned Senior Public Prosecutor representing the State of Kerala. The resolution of the issue 18. The fact that the deceased suffered death due to the injury sustained from the knife held by the accused at about 2:15 p.m on 23.02.2011 at the courtyard of the house of the deceased, is undisputed. According to the accused, he whipped out the knife which he usually carried with him for unwrapping the parcels being dealt with in connection with his avocation, at a time when the deceased attempted to assault him with a block of three bricks embedded in concrete, and that it was so done in exercise of his right of private defence to deter the deceased from further proceeding with the assault. It is also stated that the deceased lost control of his balance when he leaned forward with the above block of bricks and fell upon the accused with the head of the deceased striking on the knife held by the accused. Thus, the contention of the accused is that apart from whipping out the knife to scare away the deceased, he had not done anything, and that the deceased suffered the fatal injury as a result of his own act of falling upon the accused while attempting to hit the accused with a block of bricks. 19. The version of the appellant in the above regard is strongly challenged by the learned Senior Public Prosecutor by relying on the evidence of PW19, the wife of the deceased, and PW4, the driver of the accused, who were having the occasion to witness the incident. It is pointed out by the learned Senior Public Prosecutor that a close scrutiny of the evidence of PW4 and PW19 would leave no room for any doubt about the act of the accused criminally trespassing into the house of the deceased and mounting assault upon him by dragging the deceased to the courtyard of his house and stabbing beneath his right eyebrow with a knife which eventually resulted in the loss of life. 20. As already stated above in paragraph No.9, PW4, the driver of the accused had stated wavering versions before the Trial Court about the act of the accused stabbing the deceased with a knife. Though PW4 stated during chief examination that the deceased suffered injury as a result of the act of the accused stabbing with a knife, during cross-examination he turned round and stated that he did not see the accused stabbing the deceased. The learned counsel for the appellant harped much upon the point that the prosecution is bound to accept the version of PW4 insofar as they have not requested the Trial Court to get that witness declared hostile. The learned counsel for the appellant placed before us several authorities in support of the above argument pertaining to the predicament of the prosecution which would be precluded from challenging the evidence of its witness if such witness has not been declared hostile and cross-examined on the point spoken against the prosecution. The learned counsel for the appellant placed before us several authorities in support of the above argument pertaining to the predicament of the prosecution which would be precluded from challenging the evidence of its witness if such witness has not been declared hostile and cross-examined on the point spoken against the prosecution. We do not propose to inflate this judgment by extracting all those authorities since the point of law in the above regard is beyond dispute. But, as far as the present case is concerned, the failure of the prosecution to seek declaration of PW4 as a hostile witness, or to cross-examine him on his version that he did not see the accused stabbing the victim, cannot be said to be a circumstance favouring the accused. This is because of the fact that there is absolutely nothing in the evidence of PW4 that the victim suffered the fatal injury as a result of a fall upon the accused, as pleaded in defence. 21. The portion of the evidence of PW4 which the accused relied on in abundance is that the victim had attempted to assault the accused with three bricks held in his hands, and that it appeared to him that the victim lost control of his body balance, and a scuffle ensued. Within seconds, PW4 is said to have seen the victim with profuse bleeding upon his face. There is absolutely no statement tendered by PW4 to the effect that the victim suffered the fatal injury as a result of his face striking on the knife held by the accused at the time when the victim is said to have lost control of his body balance. On the other hand, PW4 is seen to have spoken in many words about the brawl of the accused with the victim, and the efforts made by him by standing in between them and getting hold of the deceased to leave the fighting persons apart. PW4 also stated in unequivocal terms that he saw the accused whipping out his knife, and that within a short while during the scuffle he could see the deceased with bleeding injuries upon his face. It is pertinent to note that PW4 had even stated in his earlier version during chief examination that he saw the accused stabbing the victim with a knife. It is pertinent to note that PW4 had even stated in his earlier version during chief examination that he saw the accused stabbing the victim with a knife. Thus the prosecution cannot be blamed for not requesting the Trial Court to consider PW4 as a hostile witness since there is absolutely no statement tendered by the above witness exculpating the accused. On the other hand, the cumulative effect of the statements tendered by the said witness is that the deceased suffered the fatal injury upon his right eyebrow as a result of the use of a knife by the accused during the course of the scuffle with the deceased. 22. Now, coming to the plea of right of private defence put forward by the appellant, it has to be stated that the contention in the above regard is prima facie unsustainable since it is writ large from the evidence that it was the appellant, the aggressor, who ventured to criminally trespass into the courtyard of the residence of the deceased with grave provocation by uttering abusive words which even included the imputation of unchastity and illicit relationship of the wife of the deceased. If at all the contention of the appellant that the deceased attempted to assault the accused with bricks is accepted for the sake of arguments, still the accused cannot plead his right of private defence against the above assault since it was he who commenced the commission of the crime of criminal trespass into the property of the deceased and incited serious provocation with vulgar words. The assault, if any, on the part of the deceased could only be considered as one committed in exercise of his right of private defence against criminal trespass into his property, covered under the second clause of Section 97 I.P.C. The accused cannot plead right of private defence against such assault since it is well settled that a person cannot claim the right of private defence against the act done by another in exercise of his right of private defence. Nor could the actual aggressor who initiated the violence and brought the victim to fight, be heard to say that his atrocious acts which snatched the life of the victim, deserve the protection of the right of private defence. Nor could the actual aggressor who initiated the violence and brought the victim to fight, be heard to say that his atrocious acts which snatched the life of the victim, deserve the protection of the right of private defence. As regards the parameters of law within which a person could claim the right of private defence, the Apex Court had observed in Munney Khan v. State of M.P., (1970) 2 SCC 480 as follows: “The right of private defence is codified in Sections 96 to 100 IPC, which have all to be read together in order to have a proper grasp of the scope and the limitations of this right. By enacting these sections the authors of the Code wanted to except from the operation of its penal clauses classes of acts done in good faith for the purpose of repelling unlawful aggression. This right is available against an offence and, therefore, where an act is done in exercise of the right of private defence such act cannot give rise to any right of private defence in favour of the aggressor in return. This would seem to be so even if the person exercising the right of private defence has the better of his aggressor provided of course he does not exceed his right because the moment he exceeds it, he commits an offence. There is also no right of private defence in cases where there is time to have recourse to the protection of public authorities. The right of private defence is essentially a defensive right circumscribed by the statute, available only when the circumstances clearly justify it. It should not be allowed to be pleaded or availed of as a pretext for a vindictive, aggressive or retributive purpose. According to Section 97 this right vests even in strangers for the defence of the body and property of other persons against offences mentioned therein. The courts have, therefore, to be careful in seeing that no one on the mere pretext of the exercise of the right of private defence takes side in a quarrel between two or more persons and inflict injuries on the one or the other. The courts have, therefore, to be careful in seeing that no one on the mere pretext of the exercise of the right of private defence takes side in a quarrel between two or more persons and inflict injuries on the one or the other. In a case when two parties are having a free fight without disclosing as to who is the initial aggressor it may be dangerous as a general rule to clothe either of them or his sympathiser with a right of private defence. If, however, one of them is shown to be committing an offence affecting human body then that would of course seem to give rise to such right. If there is no initial right of private defence then there can hardly be any question of exceeding that right.” 23. In State of M.P. v. Ramesh [2005 (1) KLT SN 22 (C.No. 25) SC = (2005) 9 SCC 705 ], the Apex Court held as follows about the legal disability of an aggressor to plead the right of private defence: “The right of private defence is essentially a defensive right circumscribed by the governing statute i.e. IPC, available only when the circumstances clearly justify it. It should not be allowed to be pleaded or availed as a pretext for a vindictive, aggressive or retributive purpose of offence. It is a right of defence, not of retribution, expected to repel unlawful aggression and not as retaliatory measure. While providing for exercise of the right, care has been taken in IPC not to provide and has not been devised a mechanism whereby an attack may be a pretence for killing. A right to defend does not include a right to launch an offensive, particularly when the need to defend no longer survived.” 24. In Bhanwar Singh v. State of M.P., (2008) 16 SCC 657 , the Apex Court held as follows in paragraph 60 of that judgment about the nature of the right of private defence: “To put it pithily, the right of private defence is a defence right. It is neither a right of aggression or of reprisal. There is no right of private defence where there is no apprehension of danger. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger not of self-creation. It is neither a right of aggression or of reprisal. There is no right of private defence where there is no apprehension of danger. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger not of self-creation. Necessity must be present, real or apparent.” Therefore, in the case on hand, the plea of right of private defence advanced by the appellant is devoid of legal sanctity. 25. As already stated above, the evidence tendered by PW19, the wife of the deceased would clearly establish the act of the accused arriving at the courtyard of the house of the deceased with verbal abuses, criminal trespass into the sitout of the house of the deceased, dragging the deceased to the courtyard of that house and inflicting the deadly stab injury above his right eye with the knife. The evidence of PW19 clearly shows that the incident occurred in the presence of herself as well as PW4 who tried to prevent the assault of the accused. There is absolutely no reason to disbelieve the version of PW19 in the above regard. It is pertinent to note that the statements of PW19 about the act of the accused whipping out a knife and stabbing upon the face of her husband, are to a great extent corroborated by the version of PW4 during the former part of his testimony. Even though in the latter part of his testimony PW4 stated that he did not see the accused stabbing the victim, the totality of the version conveyed by PW4 clearly point to the deceased suffering fatal injury near his right eyebrow from the knife whipped out by the accused during the course of his aggression after criminally trespassing into the courtyard of the residence of the deceased with verbal abuses showered upon the deceased and his wife. Thus, the evidence adduced by PW4 and PW19 would clearly establish the charge against the accused. Thus, the evidence adduced by PW4 and PW19 would clearly establish the charge against the accused. The evidence tendered by PW2, PW3, PW6 and PW7 that they saw the accused fleeing from the scene of crime with a knife shortly after the incident, and the evidence of PW5 that on the date of incident he saw the accused passing through the courtyard of the deceased with verbal abuses showered on the wife of the deceased, are also highly relevant as it points to the previous and subsequent conduct of the accused with reference to the crime attributed to him. Needless to say, the prosecution had successfully established the charge against the appellant that he criminally trespassed into the residence of the victim and caused the death of the victim by stabbing with a knife upon the portion of his face near to his right eyebrow. Whether the homicide involved in this case could be termed as culpable homicide not amounting to murder 26. The learned counsel for the appellant, at the fag end of his arguments, tried to canvass the point that the act of the appellant causing death of the victim does not come within the purview of murder envisaged under Section 300 of the I.P.C. It is submitted that the act of inflicting a single fatal injury upon the victim, that too, during the course of a scuffle could only be termed as an act committed upon grave and sudden provocation while the appellant was deprived of his self control. We are not inclined to accept the above argument of the learned counsel for the appellant since the evidence adduced in this case clearly reveal that the whole incident occurred as a result of the provocation on the part of the appellant who ventured to criminally trespass into the residence of the victim and subject him and his wife to virulent verbal abuses. Thus, the first exception to Section 300 I.P.C has no applicability in the facts and circumstances of this case. As regards the second exception, it has to be stated that the appellant cannot plead right of private defence for the reasons which we have discussed in paragraph Nos.22 to 24 above, and hence there is absolutely no reason to consider it as an act of exercise of right of private defence exceeding the limitations. As regards the second exception, it has to be stated that the appellant cannot plead right of private defence for the reasons which we have discussed in paragraph Nos.22 to 24 above, and hence there is absolutely no reason to consider it as an act of exercise of right of private defence exceeding the limitations. Exception 4 of Section 300 I.P.C also does not come into play in the case on hand since the quarrel ignited by the appellant cannot be termed as one which broke out without pre-meditation leading to the commission of the crime in a sudden fight in the heat of passion. As it is apparent from the evidence adduced in this case that the appellant persistently involved in maligning the victim and his family by showering verbal abuses upon them while passing through the land by the side of the courtyard of the victim, it cannot be said that the incident occurred in this case was an isolated instance of unexpected outbreak of quarrel between the victim and the appellant. Therefore, the appellant cannot seek refuge under the protection of Exception 4 to Section 300 I.P.C. 27. The facts and circumstances under which culpable homicide tantamounts to murder, and the principles governing the field, are dealt with exhaustively by the Apex Court in State of Uttarakhand v. Sachendra Singh Rawat, (2022) 4 SCC 227 . Therefore, the appellant cannot seek refuge under the protection of Exception 4 to Section 300 I.P.C. 27. The facts and circumstances under which culpable homicide tantamounts to murder, and the principles governing the field, are dealt with exhaustively by the Apex Court in State of Uttarakhand v. Sachendra Singh Rawat, (2022) 4 SCC 227 . After discussing the case law in 13 decisions of the Apex Court, from Virsa Singh v. State of Punjab, AIR 1958 SC 465 to Stalin v. State represented by the Inspector of Police (2020) 9 SCC 524 , the Hon’ble Supreme Court enumerated the following factors to be looked into for deciding a case of culpable homicide not amounting to murder and the intention to cause death: (i) Nature of the weapon used; (ii) Whether the weapon was carried by the accused or was picked up from the spot; (iii) Whether the blow is aimed at a vital part of the body; (iv) The amount of force employed in causing injury; (v) Whether the act was in the course of sudden quarrel or sudden fight or free-for-all fight ; (vi) Whether the incident occurs by chance or whether there was any pre-meditation; (vii) Whether there was any prior enmity or whether the deceased was a stranger; (viii) Whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) Whether it was in the heat of passion; (x) Whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) Whether the accused dealt a single blow or several blows; As far as the present case is concerned, the weapon used is MO1 knife, apparently lethal, and it was carried by the accused. The nature of the injury suffered by the deceased would reveal that he was stabbed with the above weapon on a vital part of his body with much force. The manner in which the crime was committed would disclose that the accused deliberately ignited the quarrel to inflict grave bodily injury upon the deceased. The commission of the crime was apparently not on grave and sudden provocation or under the heat of passion. On the other hand, it could be seen from the evidence on record that the appellant herein was the actual provocator. The commission of the crime was apparently not on grave and sudden provocation or under the heat of passion. On the other hand, it could be seen from the evidence on record that the appellant herein was the actual provocator. So also, it is seen from the evidence that even though the accused had caused only a single injury, he acted in a cruel manner by inflicting deep penetrating injury just above the right eye of the deceased with that deadly weapon which protruded upto the brain of the victim. 28. The evidence tendered before the Trial Court through Ext.P12 postmortem certificate and the testimony of PW18 would reveal that the injury inflicted upon the deceased was so grave that it was sufficient in the ordinary course of nature to cause death. The nature of the crime as well as the manner in which it was done by the appellant are indicative of the accused committing the act with the intention of causing death of the victim, or with the intention of causing such bodily injury which is sufficient in the ordinary course of nature to cause death. Therefore, there is absolutely no scope for the argument that the criminal act committed by the appellant which deprived the life of the victim would come under the exceptions which would exclude it from the category of murder punishable under Section 302 I.P.C. The trial court rightly found that the accused committed murder punishable under Section 302 I.P.C. 29. As a conclusion to the aforesaid discussion, we find no reason to interfere with the conviction and sentence of the appellant for the commission of offence punishable under Sections 302 and 449 I.P.C as found by the Trial Court as per the judgment under challenge. Resultantly, the appeal stands dismissed.