RAJAN S/O.KUTTAPPAN Vs STATE OF KERALA

The appellant herein challenges the conviction and

sentence against him under Section 304 (Part-I) of the

Indian Penal Code in S.C 817/2009 of the Court of Session,

Alappuzha.

The prosecution case is that, at about 8 p.m on

9.10.2005 at the canal puramboke near the house of the

accused, he stabbed his close relative Ramesan to death

with a knife, due to some previous enmity in connection

with the destruction of the telephone cable to the house of

the said Ramesan. At about 2.30 a.m on 10.10.2005,

Ratheesan, the brother of the deceased, gave first

information statement to the Police, and on the basis of this

statement, the Police registered the crime under Section

302 I.P.C. The deceased was first taken to the local hospital

at Haripad, and was later shifted to the Medical College

Hospital, Alappuzha where he breathed his last within a

few hours. The material witnesses in this case are the

relatives of both the parties. After thorough investigation,

the Police submitted final report before the Judicial First

Class Magistrate''s Court-I, Haripad under Section 302 I.P.C.

After complying with the procedure prescribed under the

law, the learned Magistrate committed the case to the Court

of Session from where it was made over to the Additional

Sessions Court (Adhoc), Mavelikara for trial and disposal.

The accused pleaded not guilty to the charge

framed against him by the trial court under Section 302 I.P.C

and claimed to be tried. The prosecution examined 19

witnesses and proved Exts.P1 to P18 documents. The MO1

to MO7 properties, including the weapon of offence, were

also identified during trial. When examined under Section

313 Cr.P.C, the accused denied the incriminating

circumstances and projected a defence that deceased

Ramesan in fact sustained injuries accidentally when he fell

in the canal during a scuffle and wording quarrel that

ensued in connection with the destruction of the telephone

cable. The prosecution would allege that Ramesan was

stabbed by the accused while he was trying to save his

mother who fell in the canal; whereas the defence

contention is that it was deceased Ramesan, who actually

fell in the canal, and he died due to the injuries sustained in

the said fall. The accused did not adduce any oral evidence

in defence. However, Exts.D1 and D2 documents were

marked. These two documents do not contain anything

material to probabilise the defence case or to disprove the

prosecution case in any manner.

On an appreciation of the evidence, the trial court

found the accused not guilty under Section 302 I.P.C, but

found him guilty under the first part of Section 304 I.P.C as

a case of culpable homicide not amounting to murder. On

conviction thereunder, he was sentenced to undergo

rigorous imprisonment for seven years, and to pay a fine of

3000/- by judgment dated 25.7.2012. Aggrieved by the

judgment of conviction, the accused has come up in appeal.

When this appeal came up for hearing, the learned counsel

for the appellant submitted that there is absolutely no

satisfactory evidence to prove a case of culpable homicide

not amounting to murder, punishable under the first part of

Section 304 I.P.C or even under the second part of Section

304 I.P.C, and that deceased Ramesan in fact sustained

injuries when he fell in the canal during the scuffle that

ensued between the parties in connection with another

dispute. The learned counsel also submitted that if at all

the evidence of the material witnesses is believable to any

extent, what is revealed and proved is only a case of simple

assault. On the other hand, the learned Public Prosecutor

submitted that Ramesan died due to the fatal injury inflicted

by the accused with a knife on his neck, and the medical

evidence well proves that the said injury was the cause of

death.

On a perusal of the entire materials, and on an

examination of the entire evidence, I find that the cause of

death proved by definite medical evidence is the injury

inflicted on the neck of the deceased by the accused with a

knife, and that it will have to be further examined whether

the said injury was inflicted with the knowledge of

consequence, if not with intention to cause death and

whether the conviction can in fact be under the first part of

Section 304 I.P.C or only under the second part of Section

304 I.P.C

Of the 19 witnesses examined by the

prosecution, PW1 is the brother of the deceased, PW2 is his

mother, PW3 is a cousin of the deceased, and PW4 is the

paternal uncle of the deceased. He is also the brother-in-

law of the accused. PW1 to PW4 are the eye witnesses

examined by the prosecution to prove the incident. The

accused is the husband of the aunt (paternal) of the

deceased. Thus, all the main witnesses are closely related

to the accused also. It is here, the believability and

acceptability of the evidence given by the material

witnesses assumes importance in the process of evaluation

and appreciation of evidence. The evidence of PW5 to PW8

need not be discussed much because they are only

witnesses, who either took the deceased to the hospital or

witnessed to the inquest or attested the mahazar. PW9 is

the Doctor, who conducted postmortem examination on the

body of the deceased, PW10 is the scientific assistant who

collected some blood stained materials from the place of

incident, PW16 is the Doctor who examined the deceased

initially at the local hospital, PW18 is the Circle Inspector

who investigated the case and PW19 is the Doctor who had

attended the deceased initially at the Medical College

Hospital. The evidence of PW11 to PW14 is only formal as

persons, who either attested the scene mahazar or received

the dead body from the hospital, or the K.S.E.B official, who

issued a certificate to the effect that there was no power of

failure at the locality at the time of the alleged incident. The

evidence of these witnesses need not be discussed much.

Before going to the ocular evidence, let me see

what is the medical evidence proving the cause of death.

PW9, the Doctor who conducted postmortem examination,

has given evidence regarding the ante-mortem injuries

found on the body of Ramesan on examination, and also

regarding the cause of death detected by him on post-

mortem examination. The Ext.P4 post-mortem certificate

contains the details of the ante-mortem injuries noted by

PW9. Prominent among the injuries is a penetrating incised

wound 2.8x0.5 c.ms oblique in nature, on the left half of

the front of the neck, with its inner lower blunt end 4.5  c.ms outer to midline, and 7 cms below the jaw bones.

Swelling 12x9x2 c.m was also found around the injury. The

said injury had cut through the stap muscles of neck,

making a partial cut in the left internal jugular vein, and a

partial cut in the back wall of esophagus, further cutting the

right subclavian artery. The stab had entered the right

pleural cavity through the thorasic inlet. The wound was

seen directed downwards, backwards and to the right for a

total minimum depth of 9 c.ms. The right lung was seen

partially collapsed. In the post-mortem certificate, and also

in evidence, the Doctor affirmed and stated that the cause

of death was the penetrating incised wound noted as No.1 in

the post-mortem certificate. When cross-examined by the

defence, the Doctor ruled out the possibility of such an injury

being caused accidentally in a fall or due to contact with the

the projecting part of an iron rod. The Doctor affirmed that

such an injury is possible only with a sharp weapon, and

stated that it is possible with a weapon like MO1 knife.

Thus, the defence could not bring out anything in the cross-

examination of PW1 to probabilise, that the fatal injury

which led to death was somehow caused accidentally, or

that it was not voluntarily caused by any person.

PW19 is the Doctor, who initially attended the

deceased at the Medical College Hospital, Alappuzha. The

deceased was first taken to the Government Hospital,

Haripad from where he was referred to the Medical College

Hospital. At the Government Hospital, he was attended by

PW16. Finding that the injuries are serious, this Doctor

referred the patient to the Medical College Hospital after

giving some emergency treatment. Of course, it is true that

a case of assault is not seen recorded in the hospital records

including the Ext.P10 certificate. It is not known who gave

information at the hospital. There is no doubt that the

deceased was not in a condition to give the details because

he was in a very critical state, with the fatal injury sustained

on the neck. He was taken to the hospital by some persons

of the locality. Just because, this is recorded as a case of

fall in the hospital records, the court cannot come to a

conclusion that this is not a case of culpable homicide, when

the very material witnesses who are related to both sides,

have affirmed in evidence that this is a case of culpable

homicide. Whether this is a case of murder, or whether this

is a case of culpable homicide, not amounting to murder is

not the matter to be spoken to by the witnesses. They can

only give evidence regarding the actual incident that

happened, and it is for the court to decide on an

appreciation and evaluation of the entire evidence, whether

this is in fact a case of murder or only a case of culpable

homicide coming under the first part or the second part of

Section 304 I.P.C.

The evidence given by PW19 shows that when an

emergent process for an operation was going on, the

deceased developed a cardiac attack. It is pertinent to note

that no definite question was put to this witness in cross-

examination regarding the said caridac attack that

developed during the operation procedure, as to whether

the actual cause of death was the said cardiac attack, or the

fatal injury sustained on the neck. This is a very important

area where the defence failed to elicit some important

aspect. In such a circumstance where the defence has not

raised any serious question or issue regarding the cardiac

attack that developed during the operation process, the

court will have to accept the undiscredited evidence given

by PW9 that Ramesan died due to the fatal injury sustained

on the neck. Thus, on an appreciation of the entire medical

evidence, I find that Ramesan died due to the fatal injury

sustained on the neck, described as the prominent injury

No.1 in the Ext.P4 post-mortem certificate.

Now the question is whether the fatal injury was

inflicted by the accused in this case, and also whether the

act of offence will come under the first part of Section 304,

or under the second part. Let me see what is the evidence

given by the material witnesses examined as PW1 to PW4.

None of these witnesses can be branded as interested

witness because they are equally related to the accused

also. PW1 is the brother of the deceased and PW2 is his

mother. It was submitted that they are the most interested

witnesses in this case, and so their evidence cannot be

believed without independent corroboration. Of course, it is

true that they are interested, and they are bound to be  interested when PW1 lost his direct brother and PW2 lost her

son. If their evidence is believable, they cannot be

mercilessly branded as interested witnesses. Their evidence

is well corroborated on all materials particulars by PW3 and

PW4. Of course, PW3 is a cousin of the deceased, but he is

related to the accused also. PW4 is the brother-in-law of the

accused. He is the direct brother of the father of the

deceased. PW4, who is more related to the accused, than

PW3, has described the actual incident, and he is definite in

evidence that Ramesan died due to the neck injury inflicted

by the accused with a knife during a scuffle that ensued

there in connection with some other dispute. The defence

has no explanation why PW4 should give any false evidence

against the accused, or why he should show special interest

in the prosecution. Anyway, before discussing the evidence

of the two witnesses, who will have to be treated as

independent witnesses in view of their relationship to both

sides, let me see what is the evidence given by the brother

of the deceased and the mother of the deceased.

The main witnesses in this case, who witnessed  the incident are PW1 to PW4. Of them, PW1 is the first

informant. PW4 is the brother-in-law of the accused. The

wife of the accused is the sister of PW4. There is nothing to

show that PW3 and PW4 had any sort of enmity, or that

they had any reason to give any false evidence against the

accused. All the witnesses are consistent that the accused

stabbed Ramesan with the MO1 knife during a scuffle that

ensued between the parties in connection with an earlier

incident, wherein, the telephone cable to the house of PW2

was damaged by the accused. The house of the accused is

not far away from that of the deceased. PW3 and PW4 are

also nearby residents. PW3 was near the scene of incident,

and PW4 was at his residence. PW4 came to the scene on

hearing the noise of the scuffle. All are consistent that

during the said scuffle, PW2 fell in the canal, and when the

deceased tried to save her, the accused, infuriated by the

words of PW2, stabbed Ramesan on his neck with a knife.

PW1 and PW2 are consistent that the accused

came there at about 8 p.m and picked up a quarrel in

connection with the earlier incident, wherein, the telephone

cable was damaged by him. Prior to the incident also, on

the same day, the accused had come to pick up a quarrel,

but he was sent back to his house by PW1 and others. He

came there again at about 8 p.m with a knife in his hands

and picked up a quarrel. The house of the deceased is just

near the canal. The house of the accused is also very near.

In the scuffle that ensued, PW2 fell in the canal, and at that

time she blamed the accused, that he was responsible for it.

Just then, Ramesan tried to save his mother, and at that

time, the infuriated accused rushed towards Ramesan and

stabbed on his neck with a knife. This is the consistent

version given by PW1 and PW2 regarding the incident.

These two witnesses are well corroborated on all material

particulars by PW3 and PW4.

The evidence of PW3 and PW4 is that they had

clearly seen the incident wherein, the accused stabbed on

the neck of Ramesan with a knife. The material witnesses

also identified the MO1 knife during trial. These two

witnesses are definite and consistent that the unfortunate

incident happened only because the accused came there to pick up a quarrel with Ramesan and others, and when

Ramesan tried to save his mother, who fell in the canal, the

accused stabbed on his neck with a knife. It appears that

when PW2 fell in the canal she blamed the accused that he

was responsible for it. These words of PW2 probably

infuriated him, and as the quarrel was in fact between him

and Ramesan, the accused rushed towards Ramesan, who

was holding his mother at the side of the canal, and when

Ramesan was not free with his hands, while holding his

mother, the accused stabbed on his neck with a knife.

Though PW1 to PW4 were extensively cross-examined by

the defence, nothing could be brought out to discredit their

evidence. Of course, it is true that PW13 examined to prove

the recovery of the MO1 knife under Section 27 of the

Evidence Act turned hostile. But the recovery is proved by

the Circle Inspector, who recovered it as part of

investigation. A material object is only a piece of evidence.

Even in cases where the material object is not produced or

proved, the court can find the accused guilty and convict

him, if the ocular evidence regarding the actual incident is

clear, convincing and satisfactory. Here is a case where

PW1 to PW4 are definite and consistent regarding the way

in which the incident happened. All are consistent that

Ramesan died due to the injury inflicted on his neck by the

accused with a knife. All are consistent that the accused

stabbed on the neck of Ramesan while he was trying to save

his mother who fell in the canal. All the witnesses are

consistent that the unfortunate incident happened in

connection with an earlier incident where the telephone

connection to the house of PW2 was damaged by the

accused. These are the factual aspects clearly brought out

by the evidence of PW1 to PW4. Of course, it is true that

some minor inconsistencies are there. But I find that none

of the witnesses had any special reason to give any false

evidence against the accused. This is not a case where any

of the witnesses can be branded as interested witnesses.

PW3 and PW4 are related to both sides, and their evidence

is clear and convincing regarding the incident. When these

two witnesses are definite and consistent that Ramesan

died due to the injury inflicted by the accused on his neck

with a knife, the court cannot at all brand PW1 and PW2 as

interested witnesses. Their evidence is fully consistent with

the evidence given by PW3 and PW4. It does not matter

whether there is blood stain on the knife. The Doctor has

explained that in certain circumstances where the knife

happened to rest, there is possibility of the stains of blood

being erased. Here the MO1 knife was recovered after a few

days. All the witnesses are definite and consistent that

Ramesan was stabbed by the accused with a knife. When

the ocular evidence is fool-proof, it is quite immaterial that

the witnesses are not 100% sure whether MO1 is exactly

the knife used by the accused to inflict the fatal injury.

I find no reason to disbelieve PW1 to PW4, who

have corroborated one another, and who are consistent on

all the material particulars. Thus, I find that the case on

facts stands well proved by their evidence that the death of

Ramesan was caused by the accused in this case by

inflicting a fatal injury on his neck with a knife.

Now the question is whether the offence proved

in this case will come under the first part of Section 304  I.P.C or under the second part. Evidence well satisfies the

court that the accused had no intention to kill Ramesan

when he inflicted an injury on his neck. It appears that

there was some provocation during the scuffle that ensued,

but it is a fact that the quarrel was in fact caused by the

accused, and the scuffle that ensued was also at his

instance. I find that the accused will not get any

justification in this case for the infliction of fatal injury, that

he happened to inflict it during a scuffle. He inflicted the

injury with the full knowledge of consequence that such an

injury inflicted on the neck may cause death.

The accused has projected a defence that this

case was falsely foisted against him due to some previous

enmity. His defence is that deceased Ramesan had an illicit

affair with a lady, but later she abandoned him and joined

the son of the accused. This had resulted in some dispute

between the families, and Remesan had even made an

attempt to commit suicide. According to the accused, the

said enmity, that the girl who once loved Ramesan crossed

over to the other side and started living with the son of the

accused, was the reason for the scuffle that ensued at the

place of incident. What Ramesan sustained is an incised

injury on the neck. Such an injury cannot be caused by a

projecting iron rod in the canal. The description of injury

and its direction inside the body will make it amply clear

that the injury was inflicted with a sharp edged weapon. A

projecting iron rod will not cause such an injury.

The defence case stands not in any manner

probabilised that Ramesan sustained injury when he fell in

the canal, or that this case was falsely foisted against him

due to some previous enmity. On the other hand, it stands

clearly proved by convincing and satisfactory evidence that

Ramesan died due to the injury inflicted by the accused on

his neck with a knife.

Of course, I find that the accused had no intention

to kill Ramesan when he inflicted injury on his neck with a

knife. There is nothing to show that the accused came at

the scene of incident with the object of killing anybody,

though he had a knife in his hands. In the above circumstances, I find that what is actually applicable here is

the second part of Section 304 I.P.C. What I find is that

Ramesan died due to the injury inflicted by the accused on

his neck with the knowledge of consequence that such an

injury inflicted with such a weapon may cause death in the

ordinary circumstances. Thus, I find that the conviction in

this case made by the court below under the first part of

Section 304 I.P.C, will have to be altered to one under the

second part of Section 304 I.P.C. Subject to this

modification, the conviction will have to be confirmed in

appeal.

The sentence imposed by the trial court is

rigorous imprisonment for seven years and a fine of

3000/-. The amount of fine is very very meagre. Anyway,

when the conviction is being altered, the sentence also will

have to be reasonably modified and reduced. The age of

the accused reported at the time of incident is 58 years.

Now he must be aged around 65 years. There is nothing to

show that the accused is a person of bad antecedents. The

parties are close relatives. They had one reason or the other

to be not in good terms. The alleged incident happened in

an unfortunate situation. This is not a case of calculated

murder, and this is not a case where the accused inflicted

injury with the object of causing death. In the above factual

situation, I find that rigorous imprisonment for four years

under the second part of Section 304 I.P.C will be the

adequate sentence.

In the result, this appeal is allowed in part. The

conviction against the appellant under Section 304 I.P.C in

S.C 817/2009 of the court below is confirmed subject to the

modification that the conviction shall be under the second

part of Section 304 I.P.C, and it stands altered accordingly.

Consequently, the jail sentence imposed by the trial court

will also stand reduced to rigorous imprisonment for four

years under the second part of Section 304 I.P.C. The fine

sentence imposed by the court below with the default

sentence thereon, is maintained. The appellant will get the

benefit of set off as already ordered by the trial court.