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Appukuttan Pillai vs State Of Kerala on 4 September, 2008

Kerala High Court
Appukuttan Pillai vs State Of Kerala on 4 September, 2008
       

  

  

 
 
  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.
                 ----------------------------------------
                  Crl.Appeal No.279 OF 2005
                 ----------------------------------------
          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

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