IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 279 of 2005()
1. APPUKUTTAN PILLAI,
... Petitioner
Vs
1. STATE OF KERALA, REP. BY
... Respondent
For Petitioner :SRI.GRASHIOUS KURIAKOSE
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :04/09/2008
O R D E R
K. BALAKRISHNAN NAIR & M.C.HARI RANI, JJ.
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Crl.Appeal No.279 OF 2005
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Dated this the 4th day of September, 2008
J U D G M E N T
~~~~~~~~~~~
Balakrishnan Nair, J.
The appellant, aggrieved by his conviction under Section
302 of the I.P.C. and the sentence imposed on him in
S.C.No.814/2003 on the files of the Additional District and
Sessions Court, (Adhoc) Fast Track Court-II, Pathanamthitta,
has preferred this Criminal Appeal. The prosecution case in
brief as follows:
2. The accused and the deceased were co-workers. They
were the employees of one Mr.Siddique, who was engaged in
purchasing, cutting and removing trees from its owners. The
accused, the deceased and PWs 2 to 4 and 6 were the
employees engaged for cutting and loading of trees. The
accused was jealous of the deceased for the reason that the
deceased was treated as a better worker by the employer.
Crl.A.No279/2005 2
On 12.6.2002 at about 9.15.p.m. the accused picked up a quarrel
with the deceased Sasi. Both of them took food from the
Thattukada run by PW1, after the day’s work. During the course
of the quarrel the accused using his left hand (he is a left handed
person) beat on the right cheek of Sasi. Sasi retaliated and
struck on the cheek of the accused. Infuriated by this the
accused took a knife and stabbed at the neck of Sasi, who fell
down and succumbed to the injury.
3. PW1 lodged the first information statement before
PW14. Though he is cited as an occurrence witness, he did not
say that he actually saw the stabbing. PW13, the Circle
Inspector of Police, who was the investigating officer arrested
the accused on 13.6.2002 at 7.p.m. PW13 conducted the inquest
and prepared Ext.P2 inquest report. He questioned the
witnesses, completed the investigation and laid the charge
before the Judicial First Class Magistrate’s Court, Ranni. The
case was committed for trial to the Sessions Court,
Pathanamthitta. The Sessions Court made over the case to the
Additional District and Sessions Court (Adhoc) Fast Track-II,
Crl.A.No279/2005 3
Pathanamthitta. The accused pleaded not guilty to the charges
framed against him. From the side of the prosecution, PWs 1 to
14 were examined and Exts.P1 to P17 were marked. From the
defence side, Exts.D1 to D7 were marked which were the
relevant portions of the statements under Section 161 of the
Cr.P.C of the witnesses which were at variance with reference to
their statements before the court. Ext.D8 is the report
forwarded along with the material objects for chemical
examination by the doctor who conducted the autopsy. The said
report contains the statement that the contents of the stomach
were having the smell of alcohol. Material Objects MO1 to MO8
were also produced and marked from the side of the prosecution.
While questioning under Section 313 of the Cr.P.C., the accused
denied the circumstances which appeared against him in the
evidence. He has further stated that he has been falsely
implicated at the instance of Mr. Siddique, his employer.
4. The learned Sessions Judge after hearing both sides
found the accused guilty and convicted him for the offence under
Section 302 of the I.P.C. He was sentenced to undergo rigorous
Crl.A.No279/2005 4
imprisonment for life and also to pay a fine of Rs.5,000/- and in
default to undergo rigorous imprisonment for one year.
5. Before the trial court, the defence tried to claim the
benefit of the first exception to Section 300 of the I.P.C. that the
offence was committed under grave and sudden provocation.
The learned Additional Sessions Judge considered the point and
rejected the said claim of the defence. Before us, the learned
counsel for the appellant canvassed that the offence proved
against the appellant will amount to culpable homicide not
amounting to murder falling under the 4th exception to Section
300 of the I.P.C. The learned counsel pointed out that there was
a quarrel between them. The accused was provoked and he beat
Sasi on his cheek. Sasi retaliated by beating the accused. So, in
the midst of that fight, he waved a knife at Sasi and the same hit
on his neck. There was only one injury. The learned counsel
also pointed that the workers engaged in cutting and loading of
trees usually carry such weapons with them. The presence of
the knife with the accused would not show that there was
preparation or pre-meditation from his part to commit the
Crl.A.No279/2005 5
offence. They were living together in the same room, they were
working together and they have taken food together in that
evening. Even assuming there is some ill-will between them, the
same is not a ground to commit the offence of murder.
Unpleasant feelings between the colleagues working together is
a usual general thing and the same cannot be described as a
motive for commission of murder. In this case, under the heat of
passion, the accused waved the knife and the same resulted in
inflicting the fatal injury on the deceased. Therefore, the offence
committed by him will amount to culpable homicide, not
amounting to murder and therefore he is liable to be convicted
only under Part I of 304 of the I.P.C., it is submitted. We heard
the learned Public Prosecutor on the above point.
6. In this case there is clear evidence to show that the
accused inflicted the fatal injury on the deceased. PWs 2, 3 and
4 have spoken to the incident. The version of PW1 also supports
the case of the prosecution. So, the trial court rightly found that
it was the accused who inflicted the injury using the knife MO1.
MO1 contained blood stain and the same was confirmed by
Crl.A.No279/2005 6
Ext.P16 report of the Forensic Science Laboratory, Trivandrum.
MO1 was recovered under Section 27 of the Evidence Act based
on the confession statement of the accused. The evidence of
doctor and Ext.P5 post-mortem certificate would show that the
stab injury inflicted was the cause of death of Sasi. The stab
injury on the neck is sufficient in the ordinary course to cause
death. So, we feel that it is unnecessary to refer to the evidence
of the witnesses in detail, especially, in view of the limited plea
raised by the learned counsel for the appellant. So, we confirm
the finding of the learned Sessions Judge that it was the accused
who caused the stab injury on the neck of the deceased and the
said injury caused his death.
7. The next point to be considered is whether the
conviction entered by the trial court under Section 302 of the
I.P.C. is sustainable or whether the offence committed falls
under the first part of Section 304 of the I.P.C. We find
considerable force in the submission of the learned counsel for
the appellant. The fact that the accused was carrying a knife
would not show that he had intention or pre-meditation to
Crl.A.No279/2005 7
murder Sasi. The workers engaged in cutting, loading etc. of
trees in many places carry such weapons with them. In this
case, as rightly pointed out by the learned counsel for the
appellant, the accused and the deceased were living together in
the same room, they were working together and on the fateful
day they took food together also. So, it cannot be said that the
accused was intentionally planning to murder Sasi and he was
waiting for an opportunity. Having regard to the place of
occurrence, no man in his sense will select a public street in the
presence of several persons familiar to both of them, as a
suitable place to commit the murder. So, we are of the view that
there was no pre-meditation for the commission of the offence.
It has come in evidence that there was some quarrel and
exchange of unpleasant words between the accused and the
deceased. Thereupon, the accused beat Sasi on his cheek, who
in turn retaliated by beating him. Thereupon, the accused waved
the knife which hit at the neck of the deceased causing the fatal
stab injury. It must be presumed that the injury caused by him is
sufficient in the ordinary course to cause death and he has
struck the blow knowing the same. But, having regard to the
Crl.A.No279/2005 8
facts of the case, he committed the act without pre-meditation in
the midst of a quarrel under the heat of passion. Therefore, we
are of the view that the offence committed by the accused in this
case is culpable homicide not amounting to murder, coming
under the first part of the Section 304 of the I.P.C.
8. Therefore, we set aside the conviction of the
accused/appellant under Section 302 of the I.P.C. in
S.C.No.814/2003 on the files of the Additional District and
Sessions Judge, (Adhoc) Fast Track Court-II, Pathanamthitta and
the sentence imposed for the same. We find him guilty of the
offence under the 1st part of Section 304 of the I.P.C. We
convict him for the said offence and sentence him to suffer
rigorous imprisonment for 6 years. A fine of Rs.5,000/- is also
imposed on the accused/appellant. But, we are not ordering any
default sentence. If the said amount is paid or recovered from
the assets of the accused, the same shall be paid to the legal
heirs of the deceased Sasi. The accused was an under-trial
prisoner from 13.6.2002 to 15.9.2004. From 16.9.2004 he was a
convict and he has already suffered imprisonment for 4 years
Crl.A.No279/2005 9
and 2 months. We order that the accused/appellant is entitled to
get set off under Section 428 of the Cr.P.C. Now, therefore, the
appellant/accused has already suffered 6 years imprisonment.
So, he shall be set at liberty forthwith, provided, his detention is
not required in connection with any other case.
The Criminal Appeal is allowed as above.
(K.BALAKRISHNAN NAIR, JUDGE)
(M.C.HARI RANI, JUDGE)
ps
