Vijayanpillai(Pappan) vs State Of Kerala

P.B.Suresh Kumar, J.

The sole accused in S.C.No.550 of 2017 on the files of the Court of the Additional Sessions Judge-III, Kollam, is the appellant in the appeal. He stands convicted and sentenced for the offence punishable under Section 302 of the Indian Penal Code (IPC).

The victim is one Sivankutty Pillai. The accused is his younger brother. The occurrence which is the subject matter of this case took place on 12.05.2013. The victim was not residing with his family at the time of occurrence owing to the strained relationship he had with his wife. The victim was residing in a shed in a property belonging to his family right in front of the house where his wife and son were residing. There is a road in between the properties. The accused was also residing in the shed with the victim. On 14.05.2013, the dead body of the victim was found with clogged blood in the shed. The matter was informed to the police by the son of the victim. A case was registered on that basis by Thekkumbhagom Police. The investigation in the case revealed that it was the accused who caused the death of the victim. Final report was accordingly filed against the accused alleging commission of the offence punishable under Section 302 IPC. The accusation in the final report is that on 12.05.2013, there occurred a quarrel between the accused and the victim over the consumption of liquor kept by the accused in a bottle in the shed and in the midst of the said quarrel, the accused took a wooden plank and beat the victim a few times on his head and thereby caused his death.

On the accused being committed to trial, the Court of Session framed charge against him to which he pleaded not guilty. Thereupon, the prosecution examined 21 witnesses as Pws.1 to 21 and proved through them 20 documents as Exts.P1 to P20. MOs 1 to 14 were the material objects in the case. When the incriminating evidence was put to the accused in terms of the provisions contained in Section 313 of the Code of Criminal Procedure (the Code), he denied the same and maintained that he is innocent. Since the trial court did not find the case to be one fit for acquittal under Section 232 of the Code, the accused was called upon to enter on his defence. The accused did not adduce any evidence. Thereupon, on an appraisal of the materials on record, the Court of Session found the appellant guilty of the offence punishable under Section 302 IPC, convicted him and sentenced him to undergo imprisonment for life and pay a fine of Rs.1,00,000/-. The appellant is aggrieved by his conviction and sentence in the said case, hence this appeal.

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

The learned counsel for the accused took us through the entire evidence in the case and submitted that even if the entire evidence is accepted, a case of murder punishable under Section 302 IPC is not made out. Per contra, the learned Public Prosecutor supported the impugned judgment.

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

The learned counsel for the appellant did not raise any argument concerning the finding rendered by the Court of Session that the death of the victim was a homicide. As such, it is not necessary to go in deep into the said question. As noted, the argument of the learned counsel was that the evidence in the case does not make out a case of murder. In order to consider the said argument, it is necessary to refer to the evidence in the case in detail.

PW1 is none other than the elder son of the victim who informed the death to the police. PW1 deposed the said fact in his evidence. In addition, it was deposed by PW1 that the accused did not participate in the rituals in connection with the death of his father. PW2 is the wife of the victim and the mother of PW1. PW2 deposed that at about 6.30 p.m. on 12.05.2013, while she was sitting along with the wife of PW1 in the eastern veranda of her house, she saw the accused and PW3 proceeding to the shed first and later PW4 following them and that after sometime, she overheard an exchange of abusive words in a loud voice from the shed. It was also deposed by PW2 that after about an hour, at around 7.30 pm, she again heard an intense quarrel from the shed and when she came out of the house and reached near the road, she saw PW4 coming out of the shed and proceeding towards the north ignoring the call of the accused from the shed requiring PW4 to come back to the shed and that she saw the accused going inside the shed thereafter. PW2 also clarified that at that time, she saw the accused and PW4 in the background of the light from the porch of the house of PW19. It was also deposed by PW2 that even thereafter, she heard intense quarrel between the victim and the accused inside the shed and PW3, who was standing outside the shed at that time, also walked away from there. It was also deposed by PW2 that she thereafter heard her husband crying aloud "എ屲尨屲䵜牜 屲 നെ ൊല്ലു屲尨屲䵜牜, രക്ഷിക്ക屲⍜片േ " and saw the accused leaving the shed after throwing something onto the southern side of the shed. It was also deposed by PW2 that she did not hear any sound thereafter from the shed and on 14.05.2013, she was informed by PW8 that her husband is lying dead in the shed. PW2 also deposed that the accused did not participate in the rituals in connection with the death of her husband.

PW19 is a lady residing in the house on the immediate south of the shed, where the victim was residing. PW19 deposed that on 12.05.2013, there was a commotion at the shed at about 7.30 p.m. and after sometime, she heard the victim crying aloud and there was no sound thereafter. It was also deposed by PW19 that on the morning of the following day, she saw the accused, PW3 and one Raju proceeding to the shed of the victim and on the succeeding day, she came to know that the victim is no more.

PW3 is a cousin brother of the victim. It was deposed by him that on 12.05.2013, while he was standing at the place called Chennankara, the accused asked PW3 to accompany him to consume liquor and PW3 went to the shed along with the accused and consumed liquor. It was also deposed by PW3 that thereafter, the accused and PW3 went out to meet PW4 and came back to the shed again after inviting PW4 also to consume liquor together and at about 3.00 p.m. when they returned to the shed, the victim was in the shed. It was deposed by PW3 that after sometime, PW4 also came to the shed and thereupon PWs 3, 4 and the accused consumed liquor together and whilst so, the victim attempted to consume the leftover liquor and the accused did not permit him to do so. It was further deposed by PW3 that there occurred a quarrel thereupon between the accused and the victim and while the quarrel was going on, PW4 left the shed. It was deposed by PW3 that he then attempted to dissuade the accused and the victim from the quarrel and he was unable to do so and consequently he also left the shed, for the quarrel between them was a usual affair. It was deposed by PW3 that on the morning of the following day, the accused informed him that there was a fight on the previous day between him and the victim, and the victim suffered an injury on his head in the course of that fight and wanted PW3 to go along with the accused to see the victim. It was also deposed by PW3 that he then went to the shed along with the accused and one Raju, and there he saw the victim lying with blood clogged on his body. It was deposed by PW3 that even though he volunteered to take the victim to the hospital, the victim refused to go to the hospital. It was also deposed by PW3 that on the next day, though the accused contacted PW3 and requested him to go to the shed to see the victim again, PW3 could not do so, as he had work on that day. PW4, a relative of the victim gave evidence on similar lines as the evidence tendered by PW3. PW5 is the wife of PW1. PW5 gave evidence on similar lines as the evidence tendered by PW2. PW8 was the person who informed PW2 about the death of the victim and he deposed the said fact in his evidence. In addition, PW8 also deposed that he was told by one Ajayakumar that the victim is lying without any movement in the shed and when PW8 went to the shed on receiving the said information, he saw the victim lying dead with blood clogged on his body.

PW21 is the investigating officer. PW21 deposed that he arrested the accused on 17.05.2013 and during interrogation after the arrest, the accused informed PW21 that he threw away a wooden plank near the shed and when the accused was taken to that place as guided by him, the accused took out and handed over to PW21, MO1 wooden plank, and PW21 seized the same in terms of Ext.P10 mahazar. Ext.P10(a) is the disclosure which led to the recovery of MO1. PW18 is the Assistant Director, Serology attached to the Forensic Science Laboratory, Thiruvananthapuram. Ext.P11 is the report issued by PW18. Item 14 in Ext.P11 report is MO1 wooden plank. It is stated in Ext.P11 report that item 14 contained human blood.

PW16 was the doctor who conducted autopsy of the body of the victim. Ext.P9 is the autopsy certificate issued by PW16. Injuries 1 to 3 noted by PW16 at the time of autopsy on the body of the victim read thus:

“1. Lacerated wound 5.5x0.5x0.5cm obliquely placed on right side of top of head, its front inner end was 2.5cm outer to midline and 14m above eyebrow (margins swollen), scalp showed contusion 6x4x0.6cm underneath and around.

Abraded contusion 10x1.5 to 2.5x0.3cm, sagittally placed on left side of top of head, its front extent was 10cm above top of left ear covered by reddish brown scab.

Superficial lacerated wound 3.5x0.2cm on left side of forehead and adjoining areas of face, its upper inner extent was 6cm outer to midline and 3cm above eyebrow with area of contusion 8x5x0.5cm underneath and around.

Brain showed diffuse subdural haemorrhage bilaterally and patchy subarachnoid haemorrhage over fronto tempero parietal areas bilaterally. Sulci narrowed and gyri flattened.”

It was deposed by PW16 that the cause of death was due to head injury, and injuries 1 to 3 are sufficient in the ordinary course of nature to cause death. It was also deposed by PW16 that the said injuries could be inflicted independently or in combination, and MO1 would produce such injuries.

As seen from the evidence discussed above, there is no direct evidence to prove the occurrence. The prosecution was, therefore, attempting to prove the occurrence through circumstantial evidence. We have examined meticulously, the depositions of the witnesses referred to above and the documents proved through them, and we do not find any reason to disbelieve the witnesses. The evidence given by the witnesses appears to us to be natural and consistent. The circumstances proved by the prosecution through the said witnesses are the following:

(i) That the accused and the victim were residing together in the shed where the dead body of the victim was found.

(ii) That while the accused, PW3 and PW4 were consuming liquor in the shed, the victim attempted to consume the leftover liquor and there arose a quarrel between the accused and the victim on account of the same.

(iii) That PW3 and PW4 left the shed while the accused and the victim were quarrelling and they alone were there in the shed thereafter.

(iv) That after PW3 and PW4 left the shed, PW2 and PW19 heard the victim crying aloud and screaming "എ屲尨屲䵜牜屲 നെ ൊല്ലു屲尨屲䵜牜, രക്ഷിക്ക屲⍜片േ " and immediately thereupon, the accused also left the shed.

(v) That the accused told PW3 on the morning of the following day that there was a fight in the shed on the previous day between him and the victim and the victim suffered an injury on his head in the course of that fight.

(vi) That PW3 saw the victim with blood clogged on his body lying in the shed on the morning of 13.05.2013.

(vii) That PW8 saw the victim lying dead in the shed on the morning of 14.05.2013 with blood clogged on his body.

(viii) That the death of the victim was a homicide and the cause of death was the head injuries sustained by him.

(ix) That the head injuries suffered by the victim are injuries that could be inflicted with MO1 wooden plank.

(x) That MO1 wooden plank was recovered based on the information furnished by the accused from a place close to the shed and it contained human blood.

(xi) That the accused who is the younger brother of the victim and who was residing with the victim, did not participate in the rituals in connection with the death of the victim.

The question to be examined first in the above background is whether the circumstances aforesaid are sufficient to hold that it was the accused who caused the death of the victim by hitting him with MO1 wooden plank on his head. In order to examine the said question, it is necessary to keep in mind the principles to be followed in arriving at a finding in a case on circumstantial evidence. The principles are:

(1) that the circumstances from which the conclusion of guilt is drawn are fully established,

(2) that the facts so established are consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(3) that the circumstances are of a conclusive nature and tendency,

(4) that they should exclude every possible hypothesis except that the accused is guilty, and

(5) that there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused.

It is also necessary to state in this context that in the light of the provision contained in Section 3 of the Indian Evidence Act, a fact is said to be proved not only when, after considering the matters before it, the court either believes it to exist, but also when the court considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. No doubt, the standard of proof required to be applied in a case of this nature is “proof beyond reasonable doubt”, but that does not mean that the degree of proof must be beyond a shadow of doubt [See Iqbal Moosa Patel v. State of Gujarat, (2011) 2 SCC 198]. In other words, the degree of proof need not reach certainty, but it must carry a high degree of probability. Reverting to the case on hand, the circumstances enumerated in the preceding paragraphs are consistent only with the hypothesis of the guilt of the accused; that they would exclude every possible hypothesis except that the accused is guilty, and that they constitute a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and the same would show in all human probability, that the death of the victim was caused by the accused.

Let us now deal with the argument advanced by the learned counsel for the accused. The argument is that the facts proved do not indicate that the accused intended to cause the death of the victim nor has he intended to cause a bodily injury on the victim which is sufficient in the ordinary course of nature to cause death. If that be so, according to the learned counsel, the accused cannot be punished for the offence of murder. According to the learned counsel, at the most, it is only a case of culpable homicide not amounting to murder, and not murder.

As noted, the accused is none other than the younger brother of the victim. They were residing together in the very same shed from where the dead body of the victim was found. There is nothing on record to indicate that they were maintaining a strained relationship. It has come out in the evidence that the victim was an alcoholic. The evidence tendered by PW3 and PW4 would show that a quarrel occurred between the accused and the victim over the leftover liquor kept in a bottle by the accused after he consumed the same with PWs 3 and 4. It is evident from the materials that the accused consumed liquor with PW3 as also with PW4 prior to the quarrel with the victim. In other words, the accused was under the influence of liquor when he picked up quarrel with the victim. It has come out in evidence that there was no electricity in the shed and the brothers were using candles for light inside the shed. The materials also indicate that the head injuries suffered by the victim are those that could be caused by a single blow using MO1 wooden plank which was kept in the room for holding lit candles, for MO1 contained remnants of used candles. From the aforesaid background, it can certainly be inferred that it is not a case where the accused intended to cause the death of the victim. Such an inference is inevitable from the subsequent conduct of the accused in making an attempt to take the victim to the hospital.

If the accused never intended to cause the death of the victim, the question that arises would be the nature of the injury that was intended to be caused by the accused. If the nature of bodily injury intended to be caused is one sufficient in the ordinary course of nature to cause death, it is murder, for in such situations, the case would fall under the head “Thirdly” in Section 300 IPC, punishable under Section 302 IPC. On the other hand, if the injury intended to be caused is one which is likely to cause death, the offence is only culpable homicide not amounting to murder, falling under the second limb of Section 299 IPC, punishable under Section 304 IPC. The word 'likely' in the second limb of Section 299 conveys the sense of 'probability'. MO1 is a wooden plank having a length of 28 cm, width of 19 cm and a thickness of 1.5 cm. Since the hit using an object like MO1 resulted in a bleeding injury, it can certainly be held that the accused intended to cause a bodily injury which is likely to cause death for, death in such cases is probable. If the death is probable, it can certainly be held that the bodily injury intended to be caused is one which is likely to cause death. The second limb of Section 299 corresponds with the cases that fall under the head “secondly” and “thirdly” of Section 300. The distinguishing feature of the mens rea required under “secondly” 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 way of nature be sufficient to cause death of a person in normal health or condition. In the absence of such a case for the prosecution, the case on hand would not fall under the head “secondly” of Section 300. If the case on hand would not fall under the head “secondly”, the next aspect to be considered is whether the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death to bring the case under the category “thirdly” in Section 300 IPC, so that the act done by the appellant would amount to murder. 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.

Reverting to the facts, according to us, the act of the accused in hitting down the victim using a wooden plank having a length of 30cm and 1.5cm which was used for holding lit candles, cannot be said to be an act intended to cause a bodily injury that would most probably result in the death of the person hit down, especially in the factual background of the case. In other words, it can certainly be construed as a case where chance of death is less when compared to chance of survival. If that be so, the act would only amount to culpable homicide not amounting to murder punishable under Part I of Section 304 IPC since the act is one which is done with the intention of causing such bodily injury as is likely to cause death. True, the opinion of the doctor who conducted the post mortem examination was that the injuries sustained by the victim on his head is sufficient in the ordinary course of nature to cause death. But, according to us, the said opinion shall not deter us in rendering a finding otherwise, since the evidence rendered by the doctor is only his opinion and the question whether the injury sustained by the victim is an injury which is sufficient in the ordinary course of nature to cause death is one to be decided by the court, having regard to the facts and circumstances of the case [See Shafeek v. State of Kerala, 2024 KHC OnLine 445]. Needless to say, the conviction of the appellant under Section 302 IPC is liable to be converted to Section 304 Part I IPC.

Coming to the sentence, having regard to the totality of the facts and circumstances of the case, we are of the view that rigorous imprisonment for a period of seven years and a fine of Rs.10,000/- and in default of payment of fine to undergo rigorous imprisonment for a period of six months, would be adequate punishment to the appellant for the offence found to have been committed by him namely the offence punishable under Part I of Section 304 IPC.

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