IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1585 of 2005()
1. MOHANAN, S/O.KARITHIKEYAN,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.C.K.SAJEEV
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :16/12/2009
O R D E R
K.BALAKRISHNAN NAIR & P.S.GOPINATHAN, JJ.
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Crl.Appeal No.1585 of 2005
&
R.C.No. 1 of 2005.
= = = = = = = = == = = = =
Dated this the 16th day of December, 2009.
J U D G M E N T
Gopinathan, J.
The appellant in the criminal appeal, who is the
respondent in the revision case, was convicted by the
Additional Sessions Judge (Ad-hoc)-I, Kollam for offences
under Sections 302 and 307 I.P.C. and was sentenced to
rigorous imprisonment for a period of ten years for offence
under Section 302 I.P.C. and rigorous imprisonment for a
period of five years under Section 307 I.P.C. Assailing the
above conviction and sentence, this appeal was preferred.
2. When the appeal came up for admission, noticing
the illegality in awarding sentence for offence under Section
302, a suo motu revision was registered against the
appellant and notice was given.
3. The Circle Inspector of Police, Kundara police
station in Crime No.108 of 1999 of Anchalamood police
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station filed the charge sheet against the appellant before
the Judicial Magistrate of the First Class, Kollam alleging
the above said offences. The learned Magistrate took
cognizance and proceeded as C.P.23 of 2004. Having found
that the offences alleged were triable by a Court of Session,
after complying with the requisite procedures, by order
dated 18/7/2004, committed the case to the Court of
Session, Kollam. From there, it was made over to the
Additional Sessions Judge, Ad-hoc-I.
4. The prosecution case in brief is that P.W.1 Madhu
and his wife, late Beena jointly acquired a property with a
house bearing Door No.7/68, which was named
‘Madhuvilasam’. P.W.1 was employed as a Supervisor in a
cashew factory at Kuzhithara in Tamil Nadu and was
residing there. The mother of P.W.1, who was examined as
D.W.1 was residing in the Madhuvilasam house. The
appellant, who is the brother of P.W.1, was residing away
with his family. Later, the relationship between the
appellant and his wife got strained. Therefore, he shifted
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his residence to the Madhuvilasam house and had been
residing along with the mother. In the meanwhile, P.W.1
and late Beena proposed to sell the property. To facilitate
the sale, the appellant and mother were requested to shift
their residence and to give vacant possession. The
appellant was not amenable. P.W.1 and late Beena went to
Anchalamoodu police station and made an oral complaint.
It did not yield any result. On 26.3.1999, Ext.P2 complaint
was lodged against the appellant before the Sub Inspector
of Police, who was examined as P.W.17. P.W.16, a police
constable, was deputed by P.W.17 to serve a copy of Ext.P2
and to direct the appellant to appear before Pw17. P.W.16
went to Madhuvilasam house and the appellant was
informed. At about 11 a.m., P.W.1 and late Beena went to
Madhuvilasam house. Seeing P.W.1 and Beena, the
appellant got angry. He took a knife and stabbed P.W.1,
uttering that he and his wife filed a complaint against him
and they would not be spared. Seeing P.W.1 being stabbed,
Beena rushed to rescue him. The appellant, immediately,
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with the same knife stabbed at the front side of the buttock
of Beena. Beena got scared and ran towards the southern
side of the courtyard. The appellant, then followed and
kicked her. As a result she fell down. Hearing the cry,
P.W.3, a neighbour, then a B.Ed. student rushed to the spot.
He bandaged the wounds of P.W.1 and Beena and they were
rushed to the Government Hospital, Kollam. After first aid,
they were referred to the Medical College Hospital,
Thiruvananthapuram. While undergoing treatment at
Medical College Hospital, at 4.30 p.m., on the same day,
Beena succumbed to the injuries.
5. On getting information, P.W.17 rushed to the
Medical College Hospital, Thiruvananthapuram and at 5.30
p.m. recorded the First Information Statement given by
P.W.1, who was admitted in Ward No.18. Returning to the
police station, a case as Crime No.108 of 1999 was
registered by P.W.17 for offence under Sec.302 and 307
IPC. Ext.P11 is the First Information Report.
6. P.W.18, the then Circle Inspector of Police,
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Kundara took over the investigation. He rushed to the
Medical College Hospital, Thiruvananthapuram and
prepared Ext.P5 inquest report wherein P.W.8 is an
attestor. At the time of preparation of Ext.P5, clothes found
on the body of the deceased were seized. After making
arrangements for post-mortem examination, P.W.18
proceeded to the spot of occurrence and prepared Ext.P3
scene mahazar wherein P.W.6 is an attestor. From the spot
of occurrence, a plastic chappal and a rubber slipper which
were marked as M.Os.3 and 4 were seized. P.W.18 had also
seized M.O.1 shirt worn by P.W.1 and M.O.2 Churidar worn
by the deceased at the time of occurrence. The appellant
absconded. Hence, he could not be apprehended. P.W.18
made a search of the house. But, the weapon could not be
found out. Ext.P14 is the search memo.
7. On 27.5.2002, P.W.18 was succeeded by P.W.19.
He took over the investigation on 1.6.2002. On 5.8.2003,
the appellant was arrested. Thereafter, Pw19 filed Ext.P16
report showing the correct name and address of the
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appellant. On interrogation, it was revealed that the knife
used by the appellant to stab P.W.1 and Beena was thrown
into Pulikuzhi kayal flowing through the side of his house.
P.W.19, with the aid of P.W.11, a diver, made an attempt to
recover the knife from the kayal. Inspite of the earnest
efforts by P.W.11, the knife could not be recovered. The
appellant was produced before the Magistrate concerned
and got remanded to judicial custody. P.W.19 forwarded
the material objects for chemical examination along with
Ext.P17 forwarding note and obtained Exts.P18 and P20
reports. He completed the investigation and the charge-
sheet was filed.
8. The Addl.Sessions Judge after hearing both sides,
framed the charge. When read over and explained, the
appellant pleaded not guilty to the charge. Hence he was
sent for trial. On the side of the prosecution, Pws.1 to 19
were examined, Exts.P1 to P20 and Mos.1 to 6 were
marked. After closing the evidence, when the appellant was
questioned under Sec.313(1)(b) of the Crl.P.C., he denied
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the incriminating evidence and further stated that at about
11 am. on 26th when he went to see his mother at
Madhuvilasam House, Pw1 beat him at his head with a chair
stating that he was asked to not enter there. Then Beena
brought a knife and handed over to Pw1. Pw1 waved the
knife against him. It fell at the left buttock of Beena. Then
there was fight for weapon between Pw1 and the appellant.
Some how or other, in the fight the knife hit at the back of
Pw1.
9. Responding to the call to enter defence, the
mother was examined as Dw1. Dw1 would depose that one
week before the incident Beena and Pw1 started residence
along with Dw1 and that Beena was very hostile and cruel
to Dw1 and had even assaulted by her, for which, Beena
was beaten by Pw1 and that at about 9.30 pm on the fateful
day when the appellant came to the house, Pw1 beat him
with a chair by stating that the appellant was asked not to
go over there and there was scuffle between Pw1 and the
appellant and during the scuffle, Beena assaulted the
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appellant by beating at his back and then she went to the
kitchen and brought a knife which was handed over to Pw1
asking to ‘kill him’. Pw1 got the knife from Beena and
stabbed the appellant. The stab fell at the buttock of
Beena. When the appellant wrestled, the knife hit at the
back of Pw1. Five minutes later, Beena and Pw1 ran
towards the courtyard. Hearing the cries of Dw1, people
gathered and the injured were taken to the hospital. On
appraisal of the evidence, the trial court found in favour of
the prosecution.
10. To support the evidence of Pw.1, Pw.2 and Pw.3
were also examined as occurrence witnesses. Pw2 is the
brother-in-law of the appellant and Pw1. Pw2 turned totally
hostile to the prosecution. Though he was cross-examined
by the prosecution with the permission of the court no
material was disclosed in support of the prosecution other
than that he heard the incident and found Beena and Pw1
admitted in the District Hospital, Kollam from where they
were referred to the Medical College Hospital,
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Thiruvananthapuram.
11. Pw3, who is the neighbour also turned hostile to
the prosecution as regards the occurrence. He had deposed
that he was a student of B.Ed course as on the date of the
occurrence and while he preparing for the examination he
heard cries from Madhuvilasam house. He rushed to the
house and found that Pw1 and Beena were lying at the
southern courtyard with bleeding injuries. He alerted the
neighbours and with their help, Pw1 and deceased Beena
were lifted to the District Hospital, Kollam after bandaging
the wounds.
12. Such being the evidence of Pws.2 and 3, in
support of the prosecution case, the evidence available is
the solitary evidence of Pw1.
13. Pw1 had deposed that he was employed as a
Supervisor in a Cashew Factory at Kuzhithura and he was
on leave for about two months and during that time he
along with his wife Beena and children were residing in the
house of Pw2 and that Beena and Pw1 jointly owned 12
Crl.Appeal No.1585/05 & R.C.No.1/05.
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cents of property with the house and that since Pw1 was
employed at Kuzhithura, his mother was residing there.
The appellant, who was residing away, locked horns with
the wife and started residence along with the mother. As a
result, when Pw1 came back on leave he was forced to
reside at the house of Pw2. Pw1 had intension to sell the
said property and to purchase a property at the place of his
employment. Hence the appellant was asked to vacate the
house. Then he demanded that five cents of property
should be assigned to the mother, but Pw1 was not
amenable. A week back, Pw1 orally complained before the
police requesting to take steps to get the mother and the
appellant evicted from the house. Since there was no
development, on 26.3.1999 Pw1 filed Ext.P2 complaint
against the appellant at Anchalummoodu Police Station and
thereafter he along with Beena had been to the house.
Noticing Pw1 and Beena at the courtyard, the appellant
came out and stabbed Pw1 by stating that he and his wife
had filed complaint against him and that none of them
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would be spared. The stab fell at the back left side and was
bleeding. Seeing that, Beena rushed to rescue him. By the
time the appellant stabbed Beena and it fell at her buttock.
Beena ran towards the southern courtyard. The appellant
chased her and kicked, following which Beena fell down.
When Pw1 rushed to Beena, the appellant took to his heels
with the knife. The neighbours gathered and Pw1 and
Beena were taken to the District Hospital, Kollam, from
where they were referred to the Medical College Hospital,
Thiruvananthapuram. While undergoing treatment, at 4.30
pm. Beena succumbed to the injuries. It was further
deposed that being motivated because of the filing of Ext.P2
complaint, Pw1 and Beena were stabbed by the appellant
with the intention to commit murder. Pw1 identified Ext.P1
and the clothes.
14. Pw4 is a friend of Pw5, the brother of deceased
Beena. Pw4 and 5 are painting workers. According to Pw4,
in February, 1999 while he was to the house of Pw5, the
appellant and Beena were there at the house of Pw5. The
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appellant stated to Beena that the appellant was a rowdy
and that unless Pw1 was taken away from Kollam he would
be murdered.
15. Pw5 had deposed that at 7.30 pm on 16.2.1999
the appellant came to his house while Beena was in his
house. The appellant picked up quarrel with Beena and
stated to Beena that he was a goonda and that unless Pw1
was taken from Kollam the appellant would not spare Pw1
and that later he came to know that Beena and Pw1 filed a
complaint against the appellant and he heard that Beena
and Pw1 were attacked by the appellant and they were
taken to the Medical College Hospital. He rushed to the
Medical College Hospital and found that Beena was dead.
Pw5 is also an attester to the inquest report.
16. Pw6 is an attester to Ext.P3 scene mahazar. He
had further deposed that a rubber chappel and a plastic
chappel were seized by the police from the place of
occurrence and those materials were marked as MO4 series
and MO3 series. Pw7 is a Head Constable attached to
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Anchalummoodu Police Station. He is an attester to Ext.P4,
a mahazar dated 28.3.1999 prepared for the seizure of
Ext.P2 petition filed by Pw1 and Beena against the
appellant on the date of the occurrence. Pw9 is the
paternal uncle of Beena. He would depose that he had got
back the dead body of Beena from the Medical College
Hospital after the postmortem examination.
17. Pw10 is a police constable residing at Kayankeri.
He would depose that in June, 2003 the appellant worked as
a mason for the construction of his house and he was
staying at the worksite. The evidence of this witness was
relied upon by the prosecution to bring on record that after
the incident the appellant had been absconding.
18. Pw13 would depose that he was Assistant
Surgeon at District Hospital, Kollam and that at 12.20 pm.
on 26.3.1999 he examined Beena aged 25 years, who was
brought to the hospital with a stab injury and that Beena
had an incised wound 2×0.5×4 cms. on the upper inner
quadrant of right buttock and she was referred to the
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Medical College Hospital, Thiruvananthapuram. It was
further deposed that at 12.30 pm. he examined Pw1 who
had an incised penetrated wound 2×0.5×7 cms. on the back
left side of the trunk 5 cms. outer to midline. The injury
was alleged to have been sustained by stabbing with a knife
and that if the injury had penetrated into the internal organ,
it would have become fatal and that Ext.P8 and Ext.P7
respectively are the wound certificates issued by him.
19. Pw14, the Professor of Surgery at Medical College
Hospital, Thiruvananthapuram, would depose that on
26.3.1999 Pw1 was admitted in Ward No.18 and was
treated by him and that Pw1 had a stab injury on the left
lumbar region and he was discharged on 3.4.1999 and that
Ext.P9 is the discharge certificate issued by him.
20. Pw15 would depose that on 27.3.1999 he was the
Medical Officer-in-charge of the Forensic Medicine, Medical
College Hospital, Thiruvananthapuram and that he
conducted autopsy on the body of Beena and that Ext.P10 is
the postmortem certificate issued by him and that Beena
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had a penetrating injury sustained to abdomen involving
internal iliac artery. The injury was on the vital part of the
body and was sufficient to cause death in the ordinary
course of nature and that the death was due to that injury
and Ext.P10 is the postmortem certificate issued by him.
The cause of death deposed by Pw15 was not at all
challenged.
21. The evidence of Pw1 coupled with the evidence of
Pws.3, 13, 14 and 15 supported by Exts.P8 and P10 along
with other attendant circumstances would establish that
Pw1 had sustained a stab injury at his back and he had
undergone treatment at the District Hospital, Kollam and
the Medical College Hospital, Thiruvananthapuram. Beena
had also sustained stab injury and she was treated at
District Hospital, Kollam and referred to the Medical
College Hospital, Thiruvananthapuram. While undergoing
treatment at Medical College Hospital, she succumbed to
the injuries. The evidence of Pw15 would convincingly
establish that the death of Beena is a homicide.
Crl.Appeal No.1585/05 & R.C.No.1/05.
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22. The fact that Pw1 and Beena sustained injury was
not disputed by the defence. Whereas the defence version
supported by Dw1 is that Pw1 and Beena were the
aggressors. According to the defence, when the appellant
went to see Dw1 at the house of Pw1 and Beena, the
appellant was beaten by Pw1 with a chair. However, there
is no case that the appellant sustained any injury or that he
had taken any treatment from any hospital for the injury he
sustained when beaten with the chair. It is the further case
of the appellant that while Pw1 was beating the appellant,
Beena brought a knife from the kitchen and handed it over
to Pw1, which he waved against the appellant and then the
stab stuck at the buttock of Beena. Thereafter, there was
fight for the weapon and during the fight it somehow or
other struck at Pw1 and thus he sustained injury. The
evidence of Pw3, who was the first man to rush to the spot
of occurrence, would show that Beena and Pw1 were lying
at the southern courtyard with bleeding injuries. Ext.P3
scene mahazar, wherein Pw3 is an attester, would show
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that the southern courtyard was stained with blood. On the
other hand, there was no blood stain inside the house. The
very specific case of Pw1 is that himself and Beena didn’t
enter the house and they were assaulted by the appellant
when they reached the courtyard and that when stabbed,
Beena ran to the southern courtyard. That evidence of Pw1
appears to be true. The evidence of Pw3 and the presence
of blood stain support the evidence of Pw1 on that aspect.
At the same time, the absence of blood stain inside the
house and absence of injury on the appellant belie the
defence version. The defence version itself would show that
the stab to Beena was with force. But Pw1 sustained injury
accidentally while fighting for the weapon. The injury found
on Pw1 and certified in Ext.P7 which is corroborated with
the evidence of Pw13 would show that the injury sustained
to Pw1 had a depth of 7 cms. Pw13 had opined that the
injury was alleged to have been caused by stabbing with a
knife and it could be caused as alleged. There is no
suggestion in cross-examination that the injury sustained to
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Pw1 could be accidentally caused while fighting for weapon.
The cause of injury spoken by Pw13 remain unchallenged.
So, the medical evidence didn’t support the defence version.
At the same time it supports the prosecution case.
23. The defence theory being neither believable nor
probable, we find that the evidence of Pw1, though not
supported by any other independent witness, regarding the
injuries sustained, is believable. It is also pertinent to note
that the appellant had absconded and despite the
investigation made by the investigating officer, he could not
be found out and he could be arrested only on 5.8.2003. If
Pw1 and Beena were the aggressors and they sustained
injuries in the manner stated by the appellant, in the normal
course, the appellant who is the brother of Pw1 would not
have absconded from the scene. Moreover, he would have
provided aid to take Pw1 and deceased Beena to the
hospital. He should have attended funeral. The evidence of
Pw10 to some extent support the case of the prosecution
that the appellant had been absconding. The evidence of
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Pw10 would show that though under the shade of
employment, the appellant was remaining far away from the
place and the police could not trace him. So, the fact that
the appellant absconded from the scene, that too for a long
period indicates the complicity of the appellant with the
crime alleged.
24. The evidence of Pw3 would show that from the
spot of occurrence Pws.1 and Beena were lifted to the
hospital. There is little chance for them to remove the
weapon. On the very next day itself, Pw18 went to the spot
of occurrence and prepared Ext.P7 scene mahazar. The
knife with which Beena and Pw1 were inflicted injury was
not found anywhere in the scene. According to Pw19, the
appellant stated to him that the knife was thrown into the
back water near his house. Though Pw19 made attempts to
recover the knife it could not be traced. The evidence of
Pw1 would show that when the neighbours rushed to the
spot the appellant took to his heels with the knife. That
evidence could not be shaken in cross examination. If the
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defence story is true, the knife would have been found at
the spot of occurrence, because evidently neither Beena nor
Pw1 had occasion to remove the knife. Therefore, the
evidence of Pw1 that the appellant ran away with the knife
appears to be true. The fact that the appellant ran away
with the knife soon after the incident also persuades us to
find against the appellant.
25. The evidence of Pw19 would show that after the
apprehension of the appellant he was interrogated and on
the basis of the information given by the appellant that he
had thrown away the knife into the ‘kayal’ (back waters)
near his house, Pw19 made attempt to recover the knife.
Pw11 was engaged to dive and search. The earnest efforts
to recover the knife were in vain. The prosecution had
sufficiently explained the reason for its failure to find out
the weapon used for the crime. The explanation given by
the prosecution appears to be convincing. In the above
circumstance, the failure of the prosecution to procure the
weapon used for the offence can in no way affect the
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prosecution case.
26. We had carefully and critically scrutinized the
evidence of Pw1 and the evidence of Dw1 as well as defence
version, we find that the evidence of Pw1 is credible.
Whereas the defence version as well as the evidence of Dw1
especially in the circumstances stated earlier is not at all
convincing. Neither it is probable.
27. The prosecution had also established the motive
alleged against the appellant. The appellant had been
occupying the house owned by Pw1 and late Beena. Though
the appellant was requested to vacate the house, the
appellant didn’t heed. So, Pw1 had first orally complained
to the police. But, there was no action. Hence, on the date
of occurrence, Ext.P2 complaint was filed. The evidence of
Pws.16 & 17 would show that Pw1 had given Ext.P2
complaint to Pw17 and that Pw16 was authorised to enquire
and to inform the appellant to report before the police
station. The evidence of Pw1, 16 and 17 on that aspect is
believable. The evidence of Pw1 would further show that
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Pw1 and Beena had been to the house soon after the
appellant was informed by Pw16 about Ext.P2 complaint.
The appellant got angry and that is evident by his uttering
before inflicting injuries and the consequent action causing
injuries to Pw1 and Beena. The motive is very well
established.
28. Pw5, who is the brother of the deceased and his
friend Pw4 had deposed that on 16.2.1999 the appellant had
been to the house of Pw5 when Beena was there. The
appellant told Beena that he was a goonda and Beena was
asked to take Pw1 from Kollam. It was also threatened that
otherwise the appellant would finish Pw1. The above
conduct of the appellant would show that the appellant was
badly motivated against Pw1 though not against the
deceased Beena.
29. The nature of the injuries sustained to Pw1 would
show it was inflicted at a vital part. The weapon pierced
into the body to a depth of 7 cms. In the light of the
evidence of Pws.4 and 5 regarding the uttering of the
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appellant a few days before the inflicting of injuries, we fail
to find anything lesser than the intention to commit murder
of Pw1. The available evidence would show that in fact,
Pw1 and Beena were unarmed. They had been seeking
recourse through the police to get the house vacated. It is
evidenced by the testimony of Pws.16 and 17 supported by
Ext.P2. The case of the appellant that he was not in the
house and that when he came to the house, Pw1 and Beena,
who were inside, attacked the appellant is belied by the
evidence of Pws.16 and 17 and by Ext.P2. Even according
to the appellant, Pw1 got the knife only after Pw1 started
beating the appellant with a chair. That story is also not at
all believable. So, we are persuaded to conclude that Pw1
and Beena were unarmed and other than the persistent
requests to the appellant to vacate the house and the
attempt to evict with the aid of the police, there was no
intention on the part of Pw1 and Beena to get the premises
vacated by force or assaulting the appellant.
30. While critically analyzing the evidence of Pw1 and
Crl.Appeal No.1585/05 & R.C.No.1/05.
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searching for the probability of the evidence of Dw1, we
balanced the evidence of Pw1 and Dw1 on the golden scale.
All circumstances revealed by the evidence on record only
support the evidence of Pw1. At the same time, the
evidence of Dw1 looks odd. She, being the mother of the
appellant and Pw1, was in between devil and sea. She, who
hadn’t cared to give any statement before the investigating
officer, had come up with a new story. If what she deposed
is true or probable, Pw1 and Beena were taking law in their
hands to vacate the appellant from the house. That theory
is belied by Ext.P2 and the evidence of Pw16 and 17. Thus
the basic foundation of the evidence of Dw1 itself is
collapsed. The other circumstances, which we had
discussed earlier, also improbabilise the defence theory.
Absconding from the scene with the weapon for pretty long
time is a very strong circumstance against the appellant.
We find that the court below had rightly rejected the
defence theory. We are persuaded by evidence on record to
conclude that Pw1 was stabbed by the appellant with
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intention to commit murder. Attempt to commit murder of
Pw1 is proved beyond doubt.
31. The question which then arises is whether there
was intention to commit murder of Beena. We had earlier
found that the death of Beena was a homicide and the injury
leading to the cause of death was caused by the appellant.
According to the learned counsel, the appellant had no
intention to commit murder of Beena and that the injury
was not at all on a vital part and that some how or other,
the injury became fatal. It was also submitted that had
Beena been given proper treatment in time, the death
would not have occurred. The contention that if Beena had
been given proper treatment in time, death would not have
occurred is devoid of any merit because there is little
material on record to come to a conclusion that there was
any medical negligence to cause death of Beena. Beena
was first taken to the District Hospital, Kollam and from
there she was referred to Medical College Hospital,
Thiruvananthapuram. The time lag for lifting the injured
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from one hospital to another can no way be avoided. Other
than that time lag, there is nothing on record for the delay
in providing the medical aid. So, the contention that Beena
could have been saved if timely and proper treatment was
given is devoid of merit. Adding to that, in the light of the
evidence of Pw15 that the injury was at a vital part and
sufficient enough to cause death in the ordinary nature of
course, it cannot be heard from the appellant that had
timely proper treatment was given, death wouldn’t have
occurred. According to the learned counsel, if a surgical
intervention was done at Kollam, instead of referring to the
Medical College, Thiruvananthapuram, life should have
been saved. That argument is also devoid of merit.
32. Pw1 was first stabbed by the appellant. When
Beena came to rescue she was also stabbed. The intention
at the time of infliction of injury to Beena is within the
knowledge of the appellant alone. The evidence of Pws.4
and 5 would show that though there was threat against Pw1
the appellant had no intention to commit murder of Beena.
Crl.Appeal No.1585/05 & R.C.No.1/05.
-: 27 :-
33. With the available materials, irrespective of the
intention of the appellant as to whether Beena would be
murdered or not, there is sufficient material to conclude
that Beena was stabbed by the appellant with the intention
to inflict injury. The evidence of Pw15 would show that the
injury was fatal and it was sufficient to cause death in the
ordinary course of nature. According to the learned Public
Prosecutor, such being the materials available on record
regarding the occurrence, the homicide would come within
the third clause of Sec.300 IPC and it would amount to
murder punishable under Sec.302 IPC. On the other hand,
the learned counsel for the appellant would argue that there
was no intention for the appellant to commit murder of
Beena and that the inflicting of injury was not premeditated,
but inflicted in a sudden heat of passion, and hence it would
come within the third exemption of Sec.300 IPC and is
liable to be punished only under Part II of Sec.304 IPC.
34. The learned Public Prosecutor canvased our
attention to the decisions reported in Virsa Singh v. State of
Crl.Appeal No.1585/05 & R.C.No.1/05.
-: 28 :-
Punjab (AIR 1958 SC 465); Rajwant Singh v. State of Kerala
(AIR 1966 SC 1874; Jagrup Singh v. State of Haryana (AIR
1981(3) SCC 616). On the other hand, the learned counsel
for the appellant canvased our attention to the decisions
reported in Harjinder Singh v. Delhi Administration (AIR
1968 SC 867); Laxman Kalu v. State of Maharashtra (AIR
1968 SC 1390); Guljar Hussain v. State of UP (1992 Crl.L.J.
3659; Sebastian @ Kunju v. State (1992(2) KLJ 295),
Parusuraman v. State of Tamil Nadu (1992 Crl.L.J. 3939),
Bhera v. State of Rajastan (2000(10) SCC 225 and
Lakshminath v. State of Chhatisgarh (2009(3) SCC 519).
35. In Virsa Singh’s case, the accused thrust a spear
into the abdomen of the deceased with such force that it
penetrated the bowels and the coils of the intestine came
out of the wound and that digested food oozed out from cuts
in three places. It was held that it is a case coming under
Clause 3 of Sec.300 and that the essentials to be proved for
the application to Sec.300 are; (i) it must establish, quite
objectively, that a bodily injury is present; (ii) the nature of
Crl.Appeal No.1585/05 & R.C.No.1/05.
-: 29 :-
the injury must be proved; (iii) it must be proved that there
was an intention to inflict that particular bodily injury, that
is to say, that it was not accidental or unintentional, or that
some other kind of injury was intended. Once these three
elements are proved, lastly it must be proved that the injury
of the type just described made up of the three elements set
out above is sufficient to cause death in the ordinary course
of nature. Once these four elements are established by the
prosecution, the offence is murder under “thirdly” of
Sec.300 IPC and it does not matter that there was no
intention to cause death or that there was no intention even
to cause an injury of a kind that is sufficient to cause death
in the ordinary course of nature.
36. In Rajwant Singh’s case, referring to the ratio of
the decision in Virsa Singh’s case, it was held that it must
be established objectively as to what the nature of that
injury in the ordinary course of nature is? If the injury is
found to be sufficient to cause death one test is satisfied.
Then it must be proved that there was an intention to inflict
Crl.Appeal No.1585/05 & R.C.No.1/05.
-: 30 :-
that very injury and not some other injury and that it was
not accidental or unintentional. If this is also held against
the offender the offence of murder is established.
According to the learned Public Prosecutor, the prosecution
had proved the above essentials and it is a clear case of
murder punishable under Sec.302 IPC.
37. In Harjinder Singh’s case, it was held that if the
intention of the accused to inflict the particular injury on
the particular place was not proved, Sec.300 ‘thirdly’ could
not be applied. In Laxman Kalu’s case, there was only one
injury and it was found that there was no intention to cause
death, though the accused had knowledge that the act was
likely to cause death. Hence it was held that thirdly of
Sec.300 of the Indian Penal Code does not cover and it
could not be said that the death was intended and that it
would come within the third part of Sec.299 IPC and would
be punishable under the second part of Sec.304 and not
under Sec.302 IPC.
38. In Jagrup Singh’s case, a single blow was inflicted
Crl.Appeal No.1585/05 & R.C.No.1/05.
-: 31 :-
by the accused, in the heat of moment in a sudden fight
with blunt side of gandhala on the head of the deceased
causing his death – injury sufficient in the ordinary course of
nature to cause death, but the intention to cause such injury
not clearly made out – held – clause ‘thirdly’ of Sec.300 was
not applicable and the offence was held to fall under
Exemption 4 of Sec.300 IPC. Conviction under Sec.302 IPC
was altered to one under Sec.304 Part II.
39. In Gujar Hussain’s case, there was only one fatal
blow, accused did not repeat the blow, though nothing
stopped him. In the circumstances, conviction under
Sec.302 was altered to Section 304 Part I. In Sebastian’s
case, the accused brandished knife at the victim causing
fatal injuries. It was held that clause ‘thirdly’ of Sec.300 is
not attracted, offence under Sec.304 IPC was made out.
40. Parusuraman’s case, participation of accused
persons in occurrence resulting in the death of victim was
proved. Most of the injuries however, found on body of
deceased were external and on lower legs and arms. It was
Crl.Appeal No.1585/05 & R.C.No.1/05.
-: 32 :-
held, intention of accused was to cause grievous hurt and
not murder. Conviction altered from 302 IPC to Sec.304,
Part I.
41. In Bhera’s case, accused and deceased while
quarrelling, accused in anger suddenly took out a knife and
gave blow on the chest of the deceased which resulted in
his death. Held, it cannot be said that the accused gave the
knife blow with the requisite intention of causing murder of
the deceased. Hence, offence would be one under Sec.304
Part II and not under Sec.302 IPC. In Laxminath’s case,
death of deceased was due to shot of an arrow by appellant-
accused. It was held that there was no intention to cause
death. The conviction was altered to Sec.304 IPC Part I.
42. In the instant case, the appellant inflicted a stab
injury on Pw1. Seeing that Pw1 was being hurt, Beena
came to rescue. In the heat of passion, Beena was also
stabbed. It fell at the buttock. Beena ran. The appellant
followed her and kicked her. As a result, she fell down.
Though the appellant could stab her again, he didn’t. The
Crl.Appeal No.1585/05 & R.C.No.1/05.
-: 33 :-
stab cut iliac artery, caused bleeding which resulted in the
death. Injury was neither intended nor inflicted targeting
a vital part. But, it struck at the buttock. The injury was
sufficient to cause death in the ordinary course of nature
and the victim succumbed to the injuries. Our considered
view is that there was no intention to cause death, but the
intention was only to inflict injuries to Beena. Therefore, no
offence under Sec.302 IPC was established, but only an
offence under Sec.304 IPC, Part II was established.
Conviction under Sec.302 IPC is liable to be altered to
Sec.304 IPC, Part II. We do so.
43. Having due regard to the facts and circumstances
of the case, we find that a sentence of rigorous
imprisonment for a period of ten years for offence under
Sec.304 Part II with a fine of Rs.One lakh would meet the
ends of justice. In default of payment of fine, the appellant
shall under go simple imprisonment for a further period of
two years. The sentence awarded by the lower court for
offence under Sec.307 IPC for attempting to commit murder
Crl.Appeal No.1585/05 & R.C.No.1/05.
-: 34 :-
of Pw1 is just and reasonable and requires no modification.
44. In the result, the appeal is allowed in part. While
altering conviction under Section 302 IPC to one under
Sec.304 Part II, the conviction and sentence under Sec.307
IPC are confirmed. The appellant is sentenced to pay a fine
of Rs.One lakh and rigorous imprisonment for ten years
under Sec.304 Part II IPC. In default of payment of fine, the
appellant shall undergo simple imprisonment for a further
period of two years. Substantive sentences shall run
concurrently. Appellant shall surrender before the trial
court forthwith for execution. Lower court shall see the
execution and report compliance.
R.C.No.1 of 2005.
45. Section 302 IPC provides only two mode of
sentences, one, the maximum – death, the other, the
minimum – imprisonment for life. It does not prescribe any
other mode of sentence. The sentence of rigorous
imprisonment for ten years awarded by the learned
Addl.Sessions Judge for offence under Sec.302 IPC is not
Crl.Appeal No.1585/05 & R.C.No.1/05.
-: 35 :-
the one provided by the Penal Code. It is illegal and not
sustainable. The learned Addl.Sessions Judge ought to have
born in mind that punishment is a sanction imposed on an
offender for the infringement of law committed by him.
Once a person is found guilty it is the duty of the Court to
impose such sentence as is prescribed by law. Every Judge
must be conscious and mindful of proportion between an
offence committed and penalty imposed. So also, its impact
on the society and the victim of the crime in particular.
Once an assailant is found guilty, due sentence shall be
given according to the law. Undeserving sympathy would
give disastrous results. It will make the system ridiculous.
46. The object of punishment has been succinctly
stated in Halsbury’s Laws of England (4th Edition; Vol.II;
para.482) thus:
“The aims of punishment are now
considered to be retribution, justice,
deterrence, reformation and protection and
modern sentencing policy reflects a
combination of several or all of these aims.
The retributive element is intended to show
public revulsion to the offence and to punish
Crl.Appeal No.1585/05 & R.C.No.1/05.
-: 36 :-
the offender for his wrong conduct. The
concept of justice as an aim of punishment
means both that the punishment should fit
the offence and also that like offences should
receive similar punishments. An increasingly
important aspect of punishment is
deterrence and sentences are aimed at
deterring not only the actual offender from
further offences but also potential offenders
from breaking the law. The importance of
reformation of the offender is shown by the
growing emphasis laid upon it by much
modern legislation, but judicial opinion
towards this particular aim is varied and
rehabilitation will not usually be accorded
precedence over deterrence. The main aim
of punishment in judicial thought, however,
is still the protection of society and the other
objects frequently receive only secondary
consideration when sentences are being
decided.”
In B.G.Goswami v. Delhi Administration, [(1974) 3 SCC 85 :
AIR 1973 SC 1457], the Apex Court stated thus:
“Now the question of sentence is always a
difficult question, requiring as it does,
proper adjustment and balancing of various
considerations which weigh with a judicial
mind in determining its appropriate quantum
in a given case. The main purpose of the
sentence broadly stated is that the accused
must realise that he has committed an act
which is not only harmful to the society of
which he forms an integral part but is also
harmful to his own future, both as anCrl.Appeal No.1585/05 & R.C.No.1/05.
-: 37 :-
individual and as a member of the society.
Punishment is designed to protect society by
deterring potential offenders as also by
preventing the guilty party from repeating
the offence; it is also designed to reform the
offender and re-claim him as a law abiding
citizen for the good of the society as a whole.
Reformatory, deterrent and punitive aspects
of punishment thus play their due part in
judicial thinking while determining this
question. In modern civilized societies,
however, reformatory aspect is being given
somewhat greater importance. Too lenient
as well as too harsh sentences both lose
their efficaciousness. One does not deter
and the other may frustrate thereby making
the offender a hardened criminal.”
In Dinesh v. State of Rajasthan [(2006) 3 SCC 771 : AIR
2006 SCW 1123], it is held:
“An undeserved indulgence or liberal
attitude in not awarding adequate sentence
in such cases would amount to allowing or
even to encouraging ‘potential criminals’.
The society can no longer endure under such
serious threats. Courts must hear the loud
cry for justice by society in cases of heinous
crime of rape and impose adequate sentence.
Public abhorrence of the crime needs
reflection through imposition of appropriate
sentence by the Court.”
In this case, the learned Addl.Sessions Judge forgot the
necessity of awarding due sentence. He had shown undue
Crl.Appeal No.1585/05 & R.C.No.1/05.
-: 38 :-
leniency in awarding a sentence lesser than the minimum
sentence, that too, after finding that the appellant deserved
no leniency and liable to be punished deterrently. He had
assigned no reason to award a lesser sentence. The
sentence awarded for offence under Sec.302 IPC is illegal.
But in view of our finding in appeal that the conviction
under Sec.302 is to be altered to one Sec.304 Part II and we
having been found that a sentence of rigorous imprisonment
for ten years with fine would meet the ends of justice, no
separate order is warranted in this Revision Case.
Accordingly, the Revision Case is disposed of. We hope that
the learned Addl.Sessions Judge would take lessons.
K.BALAKRISHNAN NAIR, JUDGE
P.S.GOPINATHAN, JUDGE
Kvs/-