Shanilkumar @ Kannan vs State Of Kerala

P.B.Suresh Kumar, J.

The appellant is the sole accused in S.C.No.380 of 2011 on the files of the Court of the Sessions Judge, Thrissur. He stands convicted and sentenced for the offence punishable under Section 302 of the Indian Penal Code (IPC).

The victim is one Krishnan. He is a distant relative of the appellant. Both of them were coconut climbers by profession. The accusation in the case is that at about 5.45 p.m. on 05.02.2009, on account of the enmity the appellant had against the victim, for allegedly calling him as 'son of insane person', with a view to cause the death of the victim, the appellant took the victim to a toddy shop, gave him toddy and thereupon, while they were walking back from the toddy shop, the appellant took out a chopper which was hidden by him near the place of occurrence and inflicted a cut injury on the right shoulder of the victim and also on his left leg behind the knee and thereby caused his death.

On the appellant being committed to trial, the Court of Session framed charge against him under Section 302 IPC. The appellant pleaded not guilty. Thereupon, the prosecution let in evidence on its side. When the incriminating evidence was put to the appellant, he denied the same. Thereafter, on a consideration of the materials on record, the Court of Session found the appellant guilty of the offence alleged against him, convicted and sentenced him to imprisonment for life and to pay a fine of Rs.2,00,000/-. The appellant is aggrieved by his conviction and sentence.

The point that falls for consideration is whether the conviction of the appellant and the sentence imposed on him are sustainable in law.

Heard the learned counsel for the appellant as also the learned Public Prosecutor.

The learned counsel for the appellant did not challenge seriously the finding rendered by the Court of Session that it was the appellant who caused the death of the victim. On the other hand, serious arguments were addressed by the the learned counsel for the appellant against the finding rendered by the Court of Session that the proved facts in the case would make out a case of murder punishable under Section 302 IPC.

Even though the learned counsel for the appellant did not seriously challenge the finding rendered by the Court of Session that it was the appellant who caused the death of the victim, it is necessary to refer to the relevant evidence in the case in order to consider the contention raised by the learned counsel for the appellant that the proved facts do not make out a case of murder.

PW1 is none other than the son of the victim. He is an eyewitness to the occurrence. It was based on the information furnished by PW1 that the case was registered. It was deposed by PW1 that while he was coming back from work on the relevant day at about 5.30 p.m., he saw the victim and the appellant coming together and talking with each other and that the appellant was then holding a chopper which is usually used by coconut climbers. According to PW1, the victim was walking a hand's length ahead of the appellant and when PW1 reached near the house of one Abheesh, he saw the appellant, all of a sudden, hacking on the right shoulder of the victim. It was deposed by PW1 that when the victim turned towards the appellant, the appellant hacked again on the left leg behind the knee of the victim. It was deposed by PW1 that the victim was bleeding profusely on account of the attack and he fell down on his chest. It was deposed by PW1 that the appellant did not go away from the scene after the occurrence. Instead, the appellant was standing near the victim with the chopper and chased away those who approached him, threatening them with the chopper. It was deposed by PW1 that even though some of his relatives approached the appellant and pleaded to take the victim to the hospital, the appellant did not allow the same. It was deposed by PW1 that when the mother of the victim approached the appellant in the meanwhile, he pushed her away and threatened her as well. According to PW1, the appellant stood at the scene for about half an hour and by that time, the police party came to the scene, snatched the chopper from him and apprehended him. It was the version of PW1 that when the appellant was apprehended by the police party, the people who were assembled at the scene took the victim to the hospital in an ambulance. In the evidence tendered by PW1, he stated that the victim used to tease the appellant by calling him 'son of insane person' and it is on account of the said reason that the appellant assaulted the victim. PW1 affirmed in his evidence that it was he who lodged the First Information Statement and identified MO1 as the chopper that was used by the appellant to hack the victim.

PW2 is a relative of the appellant as also the victim. PW2 deposed that he was present near the scene at the time of occurrence and when he turned towards the scene on hearing the screaming of PW1, he saw the victim falling down and the appellant standing near him with a chopper. It was deposed by PW2 that even though he pleaded the appellant to take the victim to the hospital, the appellant did not allow the same, uttering that he will leave the scene only after ensuring the death of the victim as he has been teasing the appellant for quite a long time by calling him 'son of insane person'. It was deposed by PW2 that when the victim made some noise in the meanwhile, the appellant placed his leg over the head of the victim. PW2 also deposed that the appellant was standing near the victim for about half an hour till the police party came to the scene. Likewise, PW2 also identified MO1 as the chopper used by the appellant to hack the victim.

PW3 is another relative of the appellant as also the victim who came to the scene after the occurrence. PW3 also gave evidence more or less on similar lines as the evidence tendered by PW2 as regards the events that took place after his arrival at the scene. PW4 is the neighbour of both the appellant and the victim. PW4 also gave evidence more or less on similar lines as the evidence tendered by PW3. PW5 is a relative of both the appellant and the victim. By the time PW5 arrived at the scene, the police party had taken the appellant from the scene. According to PW5, he accompanied the victim to the hospital. It was deposed by PW5 that on reaching the hospital, after examining the victim, the doctor said that the victim was brought dead.

PW7 was an employee in the toddy shop in the locality of the residence of the appellant as also the victim. He deposed that on the date of the occurrence, by about 5.00 p.m., the appellant brought the victim to the toddy shop and instructed PW7 to give the victim as much as toddy as he wanted and accordingly, PW7 gave the victim two litres of toddy. It was also deposed by PW7 that the appellant was carrying a bottle of liquor with him then and when he attempted to consume the same in the toddy shop, PW7 objected to the said conduct. It was deposed by PW7 that after sometime, both of them left the shop.

PW10 was the doctor who examined the victim at Amala Medical College Hospital, Thrissur. PW10 deposed that it was he who examined the victim who was brought dead on 05.02.2009. PW14 was the doctor who conducted the postmortem examination on the body of the deceased and issued Ext.P5 postmortem certificate. The ante-mortem injuries found by PW14 at the time of postmortem examination on the body of the deceased as deposed by him were the following:

“1. Incised wound of 8 cm long across right shoulder obliquely placed, front inner end 5cm outer to root of neck with contused margins. The depth of the wound is 1cm (8x1.5x1cm). The wound was having a tailing for 2 cm from its back end.

Incised wound 10x4x5cm on back of left knee, left upper end 36cm above lateral malleolus. The wound cut both heads of gastrocnemeus muscle and upper ends of both tibia and fibula for a depth of 5cm. Wound also cut the poplitial artery completely at its bifurcation and also other blood vessels and nerves. The wound was directed forwards and slightly downwards.”

According to PW14, the victim died due to injury 2, the incised wound sustained to the back of the left knee. It was deposed by PW14 that injury 2 is sufficient in the ordinary course of nature to cause death. Although it was deposed by PW14 that injury 1 was on the fatal part of the body near the neck region, it was clarified by PW14 that injury 1 was superficial in nature and has not contributed to the cause of death. It was also deposed by PW14 that MO1 chopper could produce the injuries sustained by the victim. In cross-examination, it was clarified by PW14 that injury 1 was not deep. To a suggestion put to PW14 by the counsel for the appellant that injuries 1 and 2 were not on the vital parts of the body, the answer given by PW14 was that all parts of human body contain vital structures, injury to which may result in death. The suggestion and the answer given by PW14 read thus:

“Both injury No.1 and 2 are not on vital part? All part of human body contains vital structures injury to which can produce death”

PW12 was a Police Constable attached to Pavaratty Police Station during the relevant time. PW12 deposed that on the relevant day, by about 5.45 p.m., someone called the station over telephone about the occurrence and he along with the Sub Inspector of Police proceeded to the scene and when they reached there, he saw a person lying on the ground with injuries. It was deposed by PW12 that the appellant was standing then near that person with a chopper and he was brandishing the same to prevent others from approaching him. It was deposed by PW12 that he went behind the appellant and by that time, the Sub Inspector of Police who accompanied him snatched away from the appellant, the chopper carried by him. PW16 was the Sub Inspector of Police who accompanied PW12 to the scene and he also gave evidence on similar lines as the evidence tendered by PW12. PW17 was the investigating officer. He deposed among others that after taking over the investigation in the case, he recorded the arrest of the appellant at the police station and seized MO1 chopper as per Ext.P6 mahazar.

It is based on the evidence discussed above that the Court of Session came to the conclusion that it was the appellant who caused the death of the victim. Having regard to the evidence tendered by PW1, the son of the victim and the evidence tendered by the relatives of the appellant as also the victim who reached the scene at the time of occurrence and immediately thereupon, we do not find any infirmity in the finding rendered by the Court of Session that it was the appellant who caused the death of the victim.

Let us now deal with the serious contention raised by the learned counsel for the appellant that the proved facts do not make out a case of murder. According to the learned counsel, from the evidence tendered by PW1, the eyewitness, it cannot be inferred that the appellant intended to cause the death of the victim. It was pointed out that if as a matter of fact, the appellant had intended to cause the death of the victim, he need not have to inflict an injury on the leg of the victim and inasmuch as he was carrying a formidable weapon, he could have simply given a hack on a vital part of the body of the victim and from the fact that the appellant did not choose to inflict any injury on the vital part of the body, it will have to be inferred that he never intended to cause the death of the victim. It was also argued by the learned counsel that the fatal injury being one inflicted on the left leg behind the knee, it cannot be said that the same is one which is sufficient in the ordinary course of nature to cause death. According to the learned counsel, the proved facts would only make out, at the most, a case of grievous hurt punishable under Section 326 IPC inasmuch as the appellant has, by his conduct endangered a human life.

Per contra, the learned Public Prosecutor argued that the facts proved in the case would indicate beyond reasonable doubt that it is a case where the appellant intended to cause the death of the victim. To bring home the point, the learned Public Prosecutor brought to our notice the conduct of the appellant in not allowing anyone to take the victim to the hospital for about half an hour after the occurrence. The learned Public Prosecutor has also brought to our notice the evidence tendered by PW2 that even though PW2 pleaded, the appellant did not permit him to take the victim to the hospital by uttering that he will leave the scene only after ensuring the death of the victim.

Section 299 IPC defines “culpable homicide”. The said Section without its illustrations and explanations reads thus:

“Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.”

Section 300 IPC defines “murder”. The said Section without its illustrations and exceptions reads thus:

“Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or

(Secondly) — If it 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, or

(Thirdly) — If it 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, or

(Fourthly) — 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.”

In the light of the aforesaid penal provisions, the first and foremost question to be considered is what injury was intended to be caused by the appellant to the victim. As noted, the case of the prosecution is that the appellant hacked on the right shoulder of the victim as also on his left leg behind the knee. No doubt, the weapon used by the appellant, namely MO1 chopper to inflict injuries on the victim, is a formidable one. The relevant portion of the description of the said weapon as contained in Ext.P6 seizure mahazar reads thus:

“വളഞ വ കത ക , പ ചളകട  ട കട യ മരത ക  ഉരണ പ ട  ഭ ഗത ന സമ   7 3/4 ക .മ റ  ന ളവ#, പ ട ടയ ട ട$ നള വളഞള അല ക  ഉരണ ഭ ഗത ന സമ   22 ക .മറ  നളവ#, പരന അടതയ വളഞള അല ഭ ഗത ന സമ  32 ക .മറ  നളവ#, അല ക  പരന ഭ ഗത ക  മദ-ഭ ഗത ന സമ   4 ക .മറ  വത യ#, അല ക  പരന ഭ ഗത ന ഒര തല മ ചയളത#......... "

Even though PW1 gave evidence in support of the case of the prosecution that the appellant hacked on the right shoulder of the victim with MO1 chopper, a close reading of the evidence tendered by PW1 in this regard in the background of the First Information Statement given by him creates a doubt in our minds as to the correctness of the said part of the deposition of PW1. The reason for the doubt is that if one hacks another with a weapon in the nature of MO1 chopper, it is sure to produce a deep cut injury on the body. But, injury 1 allegedly caused by the appellant on the right shoulder of the victim is only a superficial one. Be that as it may, what was stated by PW1 in the First Information Statement is that even though the appellant hacked the victim on his back, the hack did not correctly fall on the body. The relevant part of the First Information Statement reads thus:

“കപക ന ണ  വ കത  ക ണ അചക  പറ   കവ   . കവ  നന യ  ക ണ ല കപക ന കന ഞ  ല   വണ# കവ  "

In other words, PW1 had no case in the First Information Statement that the appellant hacked on the right shoulder of the victim. PW1 however made an improvement and deposed that the appellant hacked on the right shoulder of the victim. The relevant evidence reads thus:

“പടക വ കത  ക ണ അചക  വലത  shoulder കവടയ യ രന .”

In other words, the said evidence of PW1 is not consistent with the First Information Statement. There is no other material also before the court to infer as to how then injury 1 was sustained by the victim on his right shoulder. In the absence of any material as to how the victim sustained injury 1 on his right shoulder, it may not be safe to hold that the appellant intended to cause an injury on the right shoulder of the victim with MO1 chopper. We take this view also for the reason that had the appellant intended to cause an injury with MO1 chopper on the right shoulder of the victim or on any other vital part of his body, there was absolutely no impediment for him to cause such an injury when the victim fell down. There is no satisfactory evidence to hold that the appellant inflicted any injury other than the injury he inflicted on the left leg behind the knee of the victim. If the appellant intended to cause the death of the victim, there was no difficulty for him to inflict an injury with the weapon carried by him on any of the vital parts of the body of the victim when he fell down, especially when the appellant was waiting there for almost half an hour after the occurrence. In the above background, we are of the view that we may not be justified in holding that the appellant intended to cause the death of the victim by his act. At the same time, according to us, the proved facts would certainly show that the appellant intended to cause a bodily injury on the left leg of the victim. Having found that the appellant intended to cause an injury on the left leg of the victim, what is to be seen next is as to whether the injury inflicted is one as is likely to cause death. Having regard to the weapon used by the appellant to inflict the injury, it cannot be contended that such an injury would never cause death, especially since the same was one inflicted with great force resulting in not only the cutting of both heads of gastrocnemeus muscles and upper ends of both tibia and fibula for a depth of 5 cm as also poplitial artery completely as revealed from the evidence tendered by PW14. In other words, the proved facts would certainly make out a case of culpable homicide punishable under Section 304 IPC. The next question is whether the culpable homicide found to have been committed by the appellant would amount to murder punishable under Section 302 IPC. It is trite that an act which would fall under the second limb of Section 299 IPC would amount to murder only if it falls within the head 'Thirdly' in Section 300 IPC, if the case does not fall within the scope of any of the exceptions to Section 300 IPC. The appellant has no case that his case would fall under any of the exceptions to Section 300 IPC. The question next be seen is whether the act of the appellant would fall under the head 'Thirdly' in Section 300 IPC. An act would fall within the scope of the head 'Thirdly' in Section 300 only if the act is done with the intention of causing bodily injury and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It is well settled that the distinction between “a bodily injury likely to cause death” and “the bodily injury sufficient in the ordinary course of nature to cause death” is fine, but real and if overlooked, may result in miscarriage of justice. The difference lies in the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of gravest, medium or the lowest degree. The words “bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death” mean that death will be the most probable result of the injury, having regard to the ordinary course of nature. We do not think that the act committed by the appellant is an act which, in all probability, would result in the death of the person. If that be so, the case would not fall within the scope of Section 300 IPC and would fall only within the scope of Section 299 IPC. If that be so, the accused is liable to be convicted only under Part I of Section 304 IPC. Even if it is assumed that the act committed by the appellant is not one as is likely to cause death and that the act committed by the appellant would only amount to the offence punishable under Section 326 IPC, inasmuch as the hurt caused by the appellant to the victim endangered the life of the victim, we do not think that the same would bring any benefit to the appellant inasmuch as both Part I of Section 304 IPC and Section 326 IPC provide for imprisonment for life in appropriate cases.

Having regard to the peculiar facts of this case, according to us, the proportionate sentence to be awarded to the appellant for the offence punishable under Part I of Section 304 IPC is rigorous imprisonment for a period of ten years and to pay a fine of Rs.10,000/-.

In the result, the appeal is allowed in part, the conviction of the appellant under Section 302 IPC is altered to Part I of Section 304 IPC and he is sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.10,000/- and in default of payment of fine to undergo simple imprisonment for three months.