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2024 DIGILAW 673 (KER)

Satheesh @ Kunchan v. State of Kerala

2024-06-19

A.K.JAYASANKARAN NAMBIAR, SYAM KUMAR V.M.

body2024
JUDGMENT : A.K. JAYASANKARAN NAMBIAR, J. 1. This Criminal Appeal has been filed by the accused in S.C. No. 969/2010 of the Additional District and Sessions Court, Thiruvananthapuram (arising out of Crime No. 303 of 2008 of Palode Police Station) against his conviction and sentence for the offences punishable under Sections 323, 324 and 302 of the Indian Penal Code [hereinafter referred to as the ‘IPC’]. The prosecution case: 2. The prosecution case is that the victim, now deceased, had an argument with the appellant over not joining him at a percussion performance in connection with the Srikrishnajayanthi celebrations, that took place a few days before the incident. This led to the appellant harbouring a grudge against the victim. On August 30, 2008, at around 5:30 p.m. while the victim, his cousin PW-1 Surendran, and the victim’s sister PW-2 Rejitha were having a conversation on the public road in front of the victim’s house, the appellant approached them with a knife in hand. He kicked the victim and caused him to fall to the ground, and stated that he had been looking for him for some time to seek revenge. After the victim fell face down, the appellant stabbed him in the back, causing a deep wound. The appellant then attempted to stab the victim in the neck, but the victim blocked the attack with both hands, resulting in injuries to the little finger on his left hand and the index finger on his right hand. When PW-1 attempted to save the victim, the appellant stabbed PW-1 in the back, causing injuries. The victim did not survive his injuries. The prosecution case, therefore, was that the appellant stabbed the victim with the intention of causing his death, thereby committing the offences under Sections 323, 324, and 302 of the Indian Penal Code. Proceedings before the trial court: 3. PW-12, the CI of Palode Police Station registered Crime No. 303 of 2008 and the investigation was conducted by PW-13 S. Madhusoodanan. After the appearance of the appellant, the learned public prosecutor opened the case under Section 226 of the Code of Criminal Procedure [hereinafter referred to as the “Cr.P.C.”] and after hearing both the sides under Section 227, charges were framed against the appellant. The appellant pleaded not guilty when the charges were read over and explained to him. Thereafter, the prosecution examined PW-1 to PW-14 and marked Exts.P1 to P14. The appellant pleaded not guilty when the charges were read over and explained to him. Thereafter, the prosecution examined PW-1 to PW-14 and marked Exts.P1 to P14. MO1 to MO12 were identified. 4. After the close of the prosecution evidence, the appellant was examined under Section 313 of the Cr.P.C. He denied the incriminating evidence against him. He explained that seven years ago, there was a scuffle between the victim and his father. During the altercation, the victim fell in the workshop, and an iron rod lying there pierced his right shoulder. Witnessing the police beating his father, he took responsibility for the incident to protect his father. The appellant had marked Ext.D1 previous statement of PW-1. No other evidence was adduced by the appellant, though an opportunity was given to him. 5. At the conclusion of the trial, the appellant was sentenced to imprisonment for life and to pay a fine of Rs. 50,000/- for the offence punishable under Section 302 of the IPC, in default of payment of fine, to undergo rigorous imprisonment for a period of one year; rigorous imprisonment for a period of six months for the offence punishable under Section 323 of the IPC and rigorous imprisonment for a period of one year for the offence punishable under Section 324 of the IPC. The appeal before us: 6. We have heard Smt. Saipooja, the learned counsel appearing on behalf of the appellant accused and Sri. Alex M. Thombbra, the learned public prosecutor on behalf of the respondent State. We have also perused the trial court records that are placed before us. 7. The appellant before us and the deceased victim were related to each other. The incident in question occurred during the course of an argument between the appellant and the victim in the presence of PW-1 Surendran, another cousin of theirs, as also PW-2 Rejitha, the sister and PW-3 Seetha, the mother of the victim. The testimony of PW-1 Surendran, who, along with PW-2 Rejitha and PW-3 Seetha, is an eye-witness to the incident, and is himself an injured witness, is consistent with Ext.P1 F.I. Statement recorded from him. The testimonies of PW-2 Rejitha and PW-3 Seetha also corroborate the testimony of PW-1 Surendran in all material particulars. 8. The testimony of PW-1 Surendran, who, along with PW-2 Rejitha and PW-3 Seetha, is an eye-witness to the incident, and is himself an injured witness, is consistent with Ext.P1 F.I. Statement recorded from him. The testimonies of PW-2 Rejitha and PW-3 Seetha also corroborate the testimony of PW-1 Surendran in all material particulars. 8. The evidentiary value of these testimonies is very high inasmuch as they are the un-impeached testimonies of eye-witnesses [PW-1 to PW-3] as well as an injured witness [PW-1]. They also satisfy the tests of the deposition of a sterling witnesses as laid down by the Supreme Court in Rai Sandeep vs. State (NCT of Delhi), (2012) 8 SCC 21 as follows: “In our considered opinion, the “sterling witness” should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to seive the other supporting materials for holding the offender guilty of the charge alleged.” Together with the evidence of PW-7 Dr. S. Sivasudhan, Assistant Professor of Forensic Medicine, Trivandrum Medical College, through whom Ext.P3 post mortem report was marked, and who deposed that the injury to the back of the victim was the cause of his death, and that the said injury could be caused by MO1 knife, and further that the injury was one that was likely in the ordinary course of nature to cause death, there is little scope for doubting the correctness of the finding of the trial court with regard to the death of the victim having been caused by the accused. There is also corroboration in the form of the recovery under Section 27 of the Indian Evidence Act of MO1 knife and the clothes worn by the accused at the time of the offence that has not been challenged at all. MO1 knife has also been identified by PW-1 to PW-3, and its recovery was witnessed by PW-9 Rajan, whose testimony has also not been demolished in cross-examination. 9. MO1 knife has also been identified by PW-1 to PW-3, and its recovery was witnessed by PW-9 Rajan, whose testimony has also not been demolished in cross-examination. 9. It is probably on account of the above unimpeachable evidence on record that unambiguously points to the commission of the crime by the accused that the learned counsel for the appellant directs her arguments to challenging only the finding that the offence committed by the accused was under Section 302 IPC. It is her submission that the proved circumstances in the instant case would only point to the commission of an offence punishable under Section 304 IPC. The conviction and sentence for the offences under Sections 323 and 324 of the IPC are also not seriously contested, presumably because the appellant has already served out the said sentence by now. 10. Before we proceed to analyse the evidence in the instant case, with a view to determine whether or not the punishment of the appellant under Section 302 IPC was justified, it would be apposite to refer to the Scheme of the IPC inasmuch as it relates to the offences of culpable homicide and murder respectively. Under the Scheme of the IPC, the genus “culpable homicide” is first defined and then “murder” which is a species of “culpable homicide” is defined. Thus, what is left out of culpable homicide after the special characteristics of murder are taken away, is culpable homicide not amounting to murder, and it is made punishable under Section 304 IPC. For the purposes of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognises three degrees of culpable homicide. The first is what may be called “culpable homicide” of the first degree. This is the greatest form of culpable homicide, which is defined in Section 300 as “murder.” The second may be termed as “culpable homicide of the second degree.” This is punishable under the first part of Section 304. Then, there is “culpable homicide of the third degree.” This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishment provided for the three grades and it is awarded in terms of the second part of Section 304 [State of Andhra Pradesh vs. Rayavarapu Punnayya and Another, (1976) 4 SCC 382 ]. 11. 11. As regards the interplay between Sections 299 and 300 of the IPC, the former [Section 299] speaks of three ways by which the offence of culpable homicide can be committed, namely; when the death is caused by a person by doing an act: (1) with the intention of causing death. (2) with the intention of causing such bodily injury as is likely to cause death. (3) with the knowledge that such an act is likely to cause death. Section 300 speaks of the circumstances under which culpable homicide will amount to murder, and they are, if the act, by which death is caused: (1) is done with the intention of causing death. (2) is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused. (3) is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. (4) if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk or causing death or such injury as aforesaid. It will be seen from the above definitions of “culpable homicide” and “murder” under Sections 299 and 300 of the IPC respectively, that the second limb of Section 299 corresponds to clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not, in the ordinary course of nature, be sufficient to cause the death of a person in normal health or condition. This situation is borne out by illustration (b) to Section 300 of the IPC. In clause (3) of Section 300, instead of the words “likely to cause death” occurring in the second limb of Section 299, the words “sufficient in the ordinary course of nature” have been used. This situation is borne out by illustration (b) to Section 300 of the IPC. In clause (3) of Section 300, instead of the words “likely to cause death” occurring in the second limb of Section 299, the words “sufficient in the ordinary course of nature” have been used. The distinction is thus between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The former makes the offence one of culpable homicide, whereas the latter makes it a murder. It is a fine distinction and one pertaining to the degree of probability of death resulting from the intended bodily injury. The word “likely” conveys the sense of probable as distinguished from a mere possibility. The words “sufficient in the ordinary course of nature” conveys the sense of “most probable” i.e. death will be the most probable result of the injury, having regard to the ordinary course of nature [Anbazhagan vs. State Rep. by the Inspector of Police, AIR 2023 SC 3660 ]. 12. As regards the establishment of intention in a case that falls for consideration under clause (3) of Section 300, the question is not whether the accused intended to inflict a serious injury or a trivial one but whether he intended to inflict the very injury that is proved to be present. If the accused can show that he did not, or if the totality of the circumstances justify such an inference, then the intent that the section requires is not proved. In other words, 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 [Virsa Singh vs. State of Punjab, AIR 1958 SC 465 ]. If the accused can show that the intention to inflict the injury did not extend to inflicting the particular injury that was proved as sufficient in the ordinary course of nature to cause death, then it would be a case where the ingredients of the offence under clause (3) of Section 300 have not been established, and accordingly, he can be found guilty only of the offence under Section 299 IPC. The distinction is crucial when considering the punishment that is attracted. The distinction is crucial when considering the punishment that is attracted. While a case that falls within Section 300 would attract the punishment under Section 302 IPC, cases that do not fall under Section 300 would only attract the punishment under Section 304 of the IPC. Further, Section 304 IPC also contains two limbs, and the difference between the two limbs of the Section is that under the first limb, the crime of murder is firstly established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC. Under the second limb, however, the crime of murder is never established at all. It is for this reason that, for the purposes of holding an accused guilty of the offence punishable under the second limb of Section 304 IPC, the accused need not bring his case within one of the exceptions to Section 300 IPC at all. If the evidence on record points only to the commission of an offence under Section 299 IPC, then the punishment that is attracted is only as per the second limb of Section 304 IPC [Anbazhagan’s case (supra)]. 13. When we examine the proved circumstances in the instant case, in the light of the legal position as discernible from the precedents cited above, the issue that needs to be considered is whether or not the punishment under Section 302 IPC is warranted in this case. The learned counsel for the appellant Ms.Saipooja would argue that it is borne out from the eye-witness testimonies of PW-1 to PW-3 that there was an altercation between the accused and the victim while the latter was taking a bath in the river along with PW-1, and it was PW-1 who separated the accused and the victim at that point in time. It was thereafter, and within a short span of 1 to 1½ hours, that the accused accosted the victim with a knife and inflicted the fatal injuries. The injuries were inflicted in the presence of PW-1 Surendran, PW-2, the sister of the victim and PW-3, the mother of the victim, and their depositions clearly suggest that the injury was occasioned in the midst of an altercation in which PW-1 also sustained injuries while trying to separate the accused and the victim. The injuries were inflicted in the presence of PW-1 Surendran, PW-2, the sister of the victim and PW-3, the mother of the victim, and their depositions clearly suggest that the injury was occasioned in the midst of an altercation in which PW-1 also sustained injuries while trying to separate the accused and the victim. That apart, the evidence also shows that immediately after the first injury to the back was inflicted, the victim had risen and evaded another stab attempt and thereafter the accused had run away from the scene. The aforesaid sequence of events, according to the learned counsel, would clearly indicate that the accused had not intended to cause a fatal injury or alternatively, that it was under a grave provocation that the accused inflicted the injury on the victim. She relies on the decisions in Anbazhagan vs. State Rep. by the Inspector of Police, AIR 2023 SC 3660 , Kunhunni vs. State of Kerala, 1996 KHC 186, V. Sreedharan vs. State of Kerala, 1992 KHC 700, K.M. Nanavati vs. State of Maharashtra, 1962 KHC 501, Ramkumar N. vs. State Rep. by Inspector of Police, 2023 KHC 6830 and Raju and Another vs. State of Haryana, 2010 KHC 313 . She contends therefore that the punishment of the appellant could only have been under Section 304 IPC. 14. We find force in the submission of the learned counsel for the appellant. The eye-witness testimonies in this case, namely the testimonies of PW-1 to PW-3 clearly brings out the fact that the injuries were caused during a scuffle that followed an earlier altercation in the river when the victim was having a bath along with PW-1. The scuffle resulted in the stab injury on the back of PW-1 as well, when he tried to break up the fight between the accused and the victim. The nature of the altercation and scuffle that appears to have taken place, coupled with the evidence on record that clearly suggests that it was motivated merely on account of the remorse expressed by the victim to the accused for not having participated in a percussion performance in connection with Sreekrishnajayanthi festival, leads us to find that the appellant/accused did not intend to inflict the particular injury that eventually led to the death of the victim. We cannot also overlook the fact that accused in this case was a close relative of the victim, and the evidence of PW-3, the victim’s mother, reveals that he was staying in her house at the time of the incident. We find it difficult to believe that the injury inflicted by the appellant accused, under such circumstances, would have been with an intention to cause the death of the victim. We therefore find that the appellant can be found guilty only of the offence of culpable homicide under Section 299 IPC and not for the offence of murder under Section 300 IPC. If that be so, then the punishment that can be imposed on him can only be under the second limb of Section 304 IPC. As regards the appellant’s conviction and sentence for the offences under Sections 323 and 324 of the IPC, we see no reason to interfere with the findings of the trial court as regards the same, and we confirm the said findings. 15. In the result, taking note of the evidence, facts and circumstances of the case, we find ourselves unable to sustain the conviction of the appellant under Section 302 IPC, and are satisfied that it deserves to be altered to Section 304 Part II IPC. It is ordered accordingly. Considering the period of custody undergone after his conviction, and finding that the appellant has already suffered the sentence imposed in connection with the offences under Sections 323 and 324 of the IPC, we alter the sentence of the appellant under Section 304 Part II IPC to the period of custody already undergone. The appellant may be released forthwith if not required in any other case. 16. The Criminal Appeal is allowed in part with the aforesaid modification of the conviction and sentence.