Rajan vs State of Kerala

P.B. Suresh Kumar, J.—The accused in S.C. No. 787 of 2007 on the file of the Additional Sessions Court, Vadakara, is the appellant. He has been found guilty and convicted for the offence punishable under Section 302 of the Indian Penal Code, hereinafter, referred to as ''the IPC'', for short.

The case of the prosecution is that on account of previous enmity, on 24.09.2004, at about 9.00 p.m., the accused stabbed his immediate neighbour Krishnan at a place on the Kuttiadi-Vadakara public road in Mokeri town and Krishnan died on account of the injury sustained by him. On the basis of the information furnished by PW 1, a case was registered by Kuttiadi Police in connection with the said incident. PW 14 was the investigating officer. PW 14 conducted the inquest, prepared the scene mahazar, seized the material objects, questioned the witnesses, arrested the accused, recovered MO1 knife and Mos. 2 and 3 clothes of the accused based on the disclosures made by him and laid the charge, completing the investigation.

On appearance, the accused pleaded not guilty. Consequently, the prosecution was called upon to adduce evidence. The prosecution, thereupon, examined 15 witnesses as PW 1 to PW 15 and marked 13 documents as Exts. P1 to P13. 9 material objects were also caused to be identified by the witnesses. After the evidence of the prosecution, the accused was questioned under Section 313 of the Code of Criminal Procedure, concerning the incriminating circumstances appearing against him. He denied the circumstances brought out against him. In addition, he had also filed a statement narrating that the deceased received the stab injury in a group clash which took place at Mokeri town. Since this was not a case of no evidence for the prosecution, the accused was called upon to enter on his defence and he chose not to adduce any evidence.

The Court of Session, on a meticulous analysis of the evidence on record, found the accused guilty of the offence punishable under Section 302 of the IPC.

The issue that arises for consideration in this appeal is whether the accused is guilty of the offence punishable under Section 302 of the IPC.

We have heard the learned Senior Counsel, Sri. P. Vijayabhanu for the appellant and the learned Public Prosecutor for the State.

Ext. P3 is the post mortem certificate issued by PW 5, the Associate Professor, Forensic Medicine attached to the Medical College Hospital, Kozhikode. The sole ante-mortem injury noted by PW 5 on the body of the deceased, as recorded in Ext. P3 post mortem certificate, reads thus:

"Incised penetrating wound 2.2x0.3 cm on right side of neck towards back slightly oblique, front square cut end 2 cm above and back sharp cut end 1 cm above shoulder. The wound cut the muscles of neck, (transected) cut the blood vessels (carotid artery) and produced a superficial cut on the 6th neck vertebra (transverse process). The depth of the injury was 4.5 cm and direction slightly downwards and forwards."

It is certified in Ext. P3 that the death of the deceased was due to the said incised stab injury. PW 5 has given evidence that the injury found on the body of the deceased could be caused by MO1 knife. Ext. P3 certificate and the evidence tendered by PW 5 would establish that the death of Krishnan was a homicide.

The prosecution relies on the oral evidence of Pws. 1 and 2 and the circumstances established in evidence to bring home the guilt of the accused. Deceased Krishnan was an employee in a toddy shop. PW 1, who lodged the F.I. Statement, is a person who had gone to the said toddy shop on the relevant day for drinking toddy. PW 1 deposed that at about 8.45 p.m., when the shop was closed, he came out of the shop with the deceased and a few others. At that time, according to him, the accused was standing in front of the toddy shop. He has stated that all of them together proceeded to the main road thereafter, the accused and the deceased in front and the remaining persons behind them. PW 1 has also stated that when they reached the main road, the deceased, the accused and three others walked through the southern side of the road and he walked with one Suresh through the northern side of the road. According to PW 1, when they reached near a shop called ''Dubai Centre'', he found the accused and the deceased talking aloud and all of a sudden, he heard the deceased uttering that he was stabbed. PW 1 deposed that when he reached near the deceased, the deceased told him that the accused had stabbed him. PW 1 also deposed that he found the accused running away from the scene at that time. In cross-examination, PW 1 has stated that the accused and the deceased were immediate neighbours and to his knowledge there was no dispute between them. PW 1 has also stated in cross-examination that at the time of occurrence, all the shops near the place of occurrence were open. PW 1 has further stated in cross-examination that the accused is a person who used to pick up quarrel with others, after consuming toddy.

PW 3 is a person engaged in toddy tapping. He was also walking along with the accused and others from the toddy shop on the relevant day, after closing the toddy shop. PW 3 gave more or less the same version as that of PW 1, in so far as the occurrence is concerned. In addition, he deposed that he heard the deceased telling the accused that he will not permit the accused to sell the teak tree in the property of the accused, to prevent him from drinking and the accused uttering "Would you not permit me to live?". PW 3 also deposed that he saw the accused stabbing the deceased with a knife on the right side of his neck.

PW 7 was the immediate neighbour of the accused. He was an attester to Ext. P5 mahazar evidencing recovery of MO1 knife from the house of the accused. In cross-examination, PW 7 deposed that he also went to the Medical College Hospital on the date of occurrence to see the body of the deceased along with the son of the deceased and the brother of the accused. PW 7 also deposed in cross-examination that even after the occurrence, he is maintaining good relationship with the accused. PW 14, the investigating officer deposed in court that he had arrested the accused on 25.09.2004 from his house and during interrogation, the accused disclosed to him that he had concealed the knife used for inflicting injury on the deceased and the clothes worn by him at the time of occurrence at his house and based on the said disclosure, he took the accused to his house and recovered MO1 knife and MO2 and MO3 clothes from the place where the same were concealed by the accused, as per Exts. P5 and P6 mahazars.

It has come out in evidence that Pws. 1 and 3 were walking along with the deceased and the accused from the toddy shop on the relevant day. The evidence of PW 3 would indicate that he saw the accused stabbing the deceased with a knife on the right side of his neck at the place of occurrence. The evidence of PW 1 would indicate that he saw the deceased falling down and the accused running away from the scene. The evidence of PW 1 would also indicate that the deceased told him that the accused stabbed him. The evidence of PW 1, being the statement of the deceased as to his cause of death, the same is admissible under Section 32 of the Evidence Act. Nothing was brought out in the cross-examination of the said witnesses to suspect the veracity of their evidence. There is nothing unusual or improbable also in their evidence. Further, the evidence of Pws. 7 and 14 would establish that MO1 knife and MO2 and MO3 clothes worn by the accused at the time of occurrence were recovered based on disclosures made by the accused. PW 5, the doctor who conducted the post mortem had given evidence that the injury noted on the body of the deceased could be inflicted with MO1 knife. Ext. P13 is the report of the Chemical Examiner. The material objects listed as item Nos. 4 and 5 in Ext. P13 report are Mos. 2 and 3 clothes worn by the accused at the time of the occurrence and the material object listed as item No. 6 in the said report is MO1 knife. The report of the chemical examination indicates that MO1 contained human blood of Group ''O'', as contained in Mos. 2 and 3 which were the clothes worn by the deceased at the time of occurrence. The evidence tendered by PW 3 that he has seen the accused stabbing the deceased with a knife on the right side of his neck, is corroborated by the evidence of Pws. 3, 5 and 14. The said evidence of PW 3 is corroborated by the report of the chemical examination also. In view of the evidence and the circumstances stated above, we agree with the finding of the Court of Session that the prosecution has succeeded in establishing the complicity of the accused in the crime.

The learned counsel for the appellant has then argued that the proved facts in this case do not make out a case of murder punishable under section 302 of the IPC. Relying on the decisions of the Apex Court in Sangharaj Bhogappa Kamble Vs. State of Maharashtra, , Gurdial Singh and Others Vs. State of Punjab, , Budhi Singh Vs. State of H.P., and Manjeet Singh Vs. State of Himachal Pradesh, , he contended that at any rate, the accused can be convicted only under Part I of Section 304 of the IPC. We find force in this argument. It has come out in evidence that the accused and the deceased were residing in adjacent houses. The conduct of the brother of the accused in going to see the body of the deceased at the Medical College Hospital would show that the families of the accused and the deceased were maintaining good relationship. The conduct of the accused in waiting for the deceased near the place of work of the deceased and walking along with the deceased and others as a group towards their respective residences in cordial terms, would indicate that the accused was not maintaining enmity to the deceased. The place of occurrence is a public road. It has come out in evidence that the shops on either side of the road were open at the time of occurrence. The evidence of PW 3 that the deceased was objecting to the plan of the accused to sell the teak tree in the property of the accused for preventing him from drinking using the proceeds of the sale, would indicate that the quarrel between the accused and the deceased was due to the reason that the accused did not like the interference of the deceased in his personal matters. It has come out in evidence that the accused is a person who is picking up quarrel with others after consuming liquor. It has also come out in evidence that there was only a single blow by the accused on the body of the deceased. It has further come out in evidence that after the occurrence, the accused was waiting at his own house to face the consequences of his act. From all these circumstances, it is evident that the single injury inflicted by the accused on the deceased was either due to loss of self control on account of the provocations made by the deceased or due to heat of passion in a sudden fight upon a sudden quarrel. We are, therefore, of the view that the prosecution has not made out a case under Section 302 of the IPC and that the accused is liable to be convicted only under Part I of Section 304 of the IPC.

In view of the nature of the weapon used by the accused and the injuries sustained by the deceased, we feel that rigorous imprisonment for a period of eight years would be the appropriate sentence to be imposed on the accused in the interests of justice.

In the result, the conviction of the appellant is altered to Part I of Section 304 of the IPC and the sentence imposed on him is modified to rigorous imprisonment for a period of eight years. The appellant would be entitled to set off under Section 428 of the Code of Criminal Procedure.

The appeal is allowed to the extent indicated above.