Penal Code, 1860 - Benefit of Exception 1 and 4 of Section 300 [JUDGMENT]

Penal Code, 1860 - Ss. 342 & 302 - Even though the accused had committed the heinous offence of brutally assaulting his father with a wooden stick, there is no evidence on record, direct or circumstantial, to attribute the accused with the intention of causing his father's death. Hence, the accused cannot be found guilty of the offence of murder under Section 300 IPC and on the other hand the accused can be found guilty of only the offence under Section Part II of Section 304 IPC.

The weapon of offence in the instant case is MO1, a wooden stick having a length of only 48 cm. Even going by the prosecution case the accused had attacked the deceased during the course of a wordy altercation. Of course, that is no justification for the brutal manner in which the deceased was beaten up. Even then the question looms large as to whether the accused had intended to cause the death of his father. From the evidence and the attendant circumstances it is not possible to infer that the accused had such an intention. Therefore, applying the principles in Pulicherla's case, the only possible conclusion that can be arrived at is that even though the accused had committed the heinous offence of brutally assaulting his father with a wooden stick, there is no evidence on record, direct or circumstantial, to attribute the accused with the intention of causing his father's death. Hence, the accused cannot be found guilty of the offence of murder under Section 300 IPC and on the other hand the accused can be found guilty of only the offence under Section Part II of Section 304 IPC. Hence, the appeal is allowed in part by modifying the conviction under Section 302 to one under Section 304 Part II IPC. Consequently the sentence of life imprisonment imposed by the trial court is modified and reduced to imprisonment for ten years. The appeal is allowed in part.

Penal Code, 1860 - Benefit of Exception 1 and 4 of Section 300.

There is a clear distinction between a case of premeditated attack with intention to cause death and a case where there was no such premeditated intention and death was caused in the heat of the moment or fit of anger during an altercation or quarrel. No doubt, even in the heat of the moment or fit of anger one should not attack somebody since human beings are different from animals inasmuch as they have the power of self-control. Nevertheless, the fact remains that in the heat of the moment and in a fit of anger people sometimes do acts which may not have been done after premeditation. Hence the law provides that while those who commit acts in the heat of the moment or fit of anger should also be punished, their punishment should be lesser than that of premeditated offences. It is for this reason that Exceptions 1 and 4 have been inserted in Section 300 IPC. 

Broad principles for understanding as to whether the particular act was committed with the intention to cause death. 

The circumstances enumerated are as follows: i) Nature of the weapon used; (ii) whether the weapon was carried by the accuse or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) Whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

A.M.SHAFFIQUE & V.G.ARUN, JJ.

Crl.A.No.72 of 2015

Dated this the 26th day of November, 2018

AGAINST THE JUDGMENT IN SC 44/2014 of III ADDL.DISTRICT & SESSIONS JUDGE, PALAKKAD DATED 24-11-2014 AGAINST THE ORDER IN CP 67/2013 of J.M.F.C., PATTAMBI CRIME NO. 67/2013 OF PATTAMBI POLICE STATION, PALAKKAD

APPELLANT/S

ARUNKUMAR, C.NO.2145, AGED 29 YEARS, CENTRAL PRISON, VIYYUR P.O, THRISSUR-680 010

BY ADV. NEEMA. T.V. (STATE BRIEF)

RESPONDENTS:

STATE OF KERALA, RESPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, PATTAMBI POLICE STATION, REP: BY GOVT.PLEADER & PUBLIC PROSECUTOR.

BY SR.P.P.SRI.S.U.NAZAR P.P. SRI. NICHOLAS JOSEPH

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 5.11.2018, THE COURT ON 26.11.2018 PASSED THE FOLLOWING:

J U D G M E N T

Arun, J

The Crl.Appeal is filed by the sole accused, challenging the conviction and sentence imposed on him for the offences under Sections 342 and 302 of the Indian Penal Code, by the Sessions Court (III), Palakkad in SC No.44 of 2014. The prosecution case is that on 16.1.2013, at about 3.30 p.m, the appellant picked up a quarrel with his father Kuttikrishna Menon, on his father refusing to accede to the demand of the appellant for the purchase of a new autorickshaw. It is alleged that during the course of the altercation the appellant had beaten up his father severely and later had illegally confined Kuttikrishna Menon in the bed room of his house, by locking the door from outside. It is alleged that, when Kuttikrishna Menon was not seen outside his house, PW2, who is an immediate neighbour went to the house of Kuttikrishna Menon by about 5.30 p.m on 17.1.2013 and enquired about him. Thereupon, the appellant who was present in the house, informed PW2 that Kuttikrishna Menon was lying inside the bed room and when PW2 insisted on seeing Kuttikrishna Menon, the appellant initially refused permission and after much persuasion opened the door of the bed room. On entering the bed room, PW2 found Kuttikrishna Menon lying motionless bleeding from his mouth and with injuries all over his body. At the insistence of PW2, the appellant along with his mother (PW15) took Kuttikrishna Menon to the Government Hospital, Pattambi from where Kuttikrishna Menon was referred to the Medical College, Thrissur. During the course of treatment, Kuttikrishna Menon succumbed to the injuries inflicted on him by the appellant.

2. In order to prove its case, the prosecution had examined PWs 1 to 18 and marked Exts. P1 to P23, as also MO1 and MO2. No defence evidence was tendered on behalf of the appellant, other than filing a statement under Section 313(1)(b) of the Code of Criminal Procedure. Based on the evidence, the trial court came to the conclusion that the prosecution had succeeded in establishing and proving beyond reasonable doubt that the accused was the person responsible for the death of his father, by inflicting injuries mainly on the chest and face of the deceased with MO1 and that the indiscriminate attack resulting in 25 ante-mortem injuries and the illegal confinement of the deceased inside his bed room, thereby denying basic amenities and medical assistance till the intervention of PW2, was with the intention to cause the death of his father and therefore the act of the appellant fell within the definition of culpable homicide mentioned in Section 299 of IPC, amounting to murder under Section 300 Clause No.II, punishable under Sections 302 and 342 IPC.

3. In the appeal, Advocate Neema T.V, appearing on State Brief, made strenuous and commendable efforts to assail the trial court judgment on various grounds. It was contended that the sole eye witness to the incident is PW15, who is the wife of the deceased and mother of the accused, had deposed before the court that Kuttikrishna Menon had sustained injuries by falling from the steps of his house and that the accused had not caused any injury to the deceased. It was further contended that in the absence of any direct evidence and since the circumstantial evidence relied on by the trial court did not form a complete chain, the trial court had committed a grave error in convicting the appellant based on such incomplete circumstantial evidence. It was also contended that the prosecution had miserably failed in proving the motive alleged against the accused.

4. For arriving at a just and proper decision in the appeal it is necessary to consider as to whether the appreciation of evidence by the trial court was proper and the finding of guilt based on such appreciation, the only possible conclusion.

5. PW1 is the nephew of deceased Kuttikrishna Menon, who had given Ext P1 First Information Statement at the Pattambi Police Station on 18.1.2013. In his testimony PW1 stated that he had visited Kuttikrishna Menon at the Government Hospital, Pattambi on 17.1.2013 and had accompanied Kuttikrishna Menon in the ambulance, while he was taken from the Government Hospital, Pattambi to the Medical College Thrissur. PW1 further stated that while being taken from Pattambi to Thrissur in the ambulance Kuttikrishna Menon had told PW1 that he had been beaten up by the appellant, when he refused to purchase a new autorickshaw for the appellant.

6. PW2, is the immediate neighbour of Kuttikrishna Menon who gave evidence to the effect that Kuttikrishna Menon had been living alone and that the appellant and his mother had started residence with Kuttikrishna Menon about 1 ½ months prior to the incident. PW2 further stated that there were frequent quarrels between Kuttikrishna Menon and the appellant and that he had heard the sounds of a wordy altercation between the appellant and Kuttikrishna Menon on 16.1.2013 also. According to the version of PW2, he had gone to the house of Kuttikrishna Menon at about 5.30 p.m on 17.1.2013, since Kuttikrishna Menon was not seen outside his house for two days. That on enquiry, the appellant told him that he had locked his father inside the house, since Kuttikrishna Menon had refused to accede to his demand for a new autorickshaw. That, when PW2 tried to enter the house, the appellant initially resisted, but later permitted PW2 to open the bed room door. That, on opening the door PW2 found Kuttikrishna Menon lying motionless and on a closer look found blood oozing out of Menon's mouth. Thereupon, at the insistence of PW2, the appellant along with his mother took Kuttikrishna Menon to the hospital.

7. PW3 is the brother of the deceased, who had visited Kuttikrishna Menon at the hospital, but had no direct knowledge regarding the incident in which Kuttikrishna Menon had injured.

8. PW4 was a signatory to Ext P2 scene mahazar and PW5 is a signatory to Ext P3 search list under which MO1 and MO2 were recovered. PW6 is a signatory to Ext P4 inquest report. PW7 is another brother of deceased who stated before court that when he visited his brother at the Government Hospital, Pattambi he was told by Kuttikrishna Menon that he had been assaulted by his son and wife. Ext P5, a letter allegedly written by the appellant, while he was in judicial custody was marked through PW7. PW8 is the Medical Officer who initially examined the deceased on 17.1.2013 at 8.50 p.m and had referred the patient for expert treatment to the Medical College Hospital, Thrissur. Ext P6 accident registercum- wound certificate is marked through PW8. In Ext P6, PW8 has noted that the patient was admitted in the ward with history of weakness of left side of body and that later, relatives had alleged that Kuttikrishna Menon had been assaulted by his son Arun. PW9 is the police surgeon who conducted post mortem of the deceased on 26.1.2013 and issued Ext P7 post mortem certificate wherein he noticed 25 ante-mortem injuries as under: 

1. Fracture of right upper lateral incisor teeth with partial healing of the teeth socket.

2. Abrasion 1 x 0.5 cm over the right side of head 5 cm above the right eye brow and 7 cm outer to midline with brownish black adherent scab.

3. Abrasion 1 x 1 cm over the right side of forehead near the right eyebrow and 5 cm outer to midline with brownish black adherent scab.

4.Multiple healing wound over an area 5 x3 cm over the top and back of head across midline with brownish black adherent scab.

5. Contusion 3 x 2 cm involving the full thickness of scalp over the right side and top of head 18 cm above the right supra orbital ridge and inner extent at midline, yellowish brown in colour (seen on dissection) 6. Sutured wound 3 cm long transversely place over the front of neck across midline 3cm above the supra sternal notch with black sutures insitu (Surgical Tracheostomy wound) 7. Sutured wound 3.5 cm long obliquely placed over the right side of Chest with sutures insitu its upper outer end 7 cm below the right axilla and 15 cm outer to midline (intercostals drain site).

8. Sutured wound 2 cm long with sutured insitu obliquely placed over the left side of chest its upper end 9 cm below the left axilla and 17 cm outer to midline (intercostal drain site).

9. Multiple abrasions over an area 4 x 2 cm over the top and back of right shoulder 17 cm outer to midline.

10.Multiple abrasions over an area 9 x 1cm over the back of left shoulder and adjoining chest inner extent 11 cm outer to midline.

11. Contusion 9 x 6 cm bone deep over the back of trunk across midline yellowish brown in colour with surrounding abrasion over an area 19 x 5 cm across midline upper extent 20 cm below the root of neck incorporating two healing wounds with slopping edges of size 1 x 0.5 cm on either side of midline and 23cm below the root of neck and 0.5 cm outer to midline.

12.Abrasion 3 x 2 cm over the back of trunk at gluteal region at midline l cm above the gluteal cleft with brownish black adherent scab.

13.Contusion 27 x 17 cm bone deep seen on the front of chest across midline 9 cm below the suprasternal notch (seen on dissection). Fracture of right ribs 5, 7, 8, 9 noted over the front aspect near mid clavicular line and over the back aspect near vertebral column with surrounding infiltration of blood. Fracture of left ribs 7, 8, 9 noted over the front aspect in the mid axillary line and 5th and 6th ribs in the mid clavicular line with surrounding infiltration of blood. Lung contusion noted involving the front and outer aspect of lower lobes of both lungs. The right upper and lower lobes showed consolidation (cut pieces sinks in water) and exuded yellowish purulent material admixed with frothy fluid on pressure. Consolidation noted on the entire upper and lower lobes of left lung (cut pieces sinks in water) and exuded yellowish purulent material and blood stained frothy fluid on showed adherent yellowish purulent material on the surface. The left lung was firmly adherent to the chest wall with thick adhesions and showed adherent yellowish purulent material on the surface.

14. Fracture lateral dislocation of 9th thoracic vertebrae with surrounding blood infiltration over the front and side of 9th, 10th and 11th thoracic vertebrae.

15. Abrasion 6 x 4 cm over the right gluteal region with adherent yellowish pus 14 cm below the top of hip bone.

16. Abrasion 6 x 2 cm over the left gluteal region and adjoining thigh 15 cm below the top of hip bone.

17. Multiple abrasions over an area 7 x 4 cm over the back of right elbow with brownish black scab.

18.Contusion 19 x 2.5 x 0.5 cm over the front aspect of right arm, forearm and elbow, upper extent 25 cm below the top of shoulder.

19. Healing wound 1 x 1 cm over the inner aspect and back of right forearm 12 cm below the elbow.

20. Abrasion 1 x 1 cm over the outer aspect of right elbow with brownish black adherent scab.

21. Multiple abrasions over an area 7 x 3 cm over the outer aspect of right knee with brownish black adherent scab.

22. Abrasion 1.5 x 1 cm over the inner aspect of right foot 1 cm below the ankle.

23. Multiple abrasions over an area 2.5 x 2.5 cm over the font and outer aspect of left knee with brown adherent scab.

24. Healing wound 4 x 3 cm with yellowish purulent material over the outer aspect and back of left elbow with surrounding abrasion with brownish adherent scab.

25. Contusion 6 x 4 x 0.5 cm over the front aspect of left arm 5 cm above the elbow, yellowish brown in colour.

9. In Ext P7, as well as his deposition before the trial court, PW9 had opined that the deceased died due to complications of blunt injury sustained to the chest. PW10 is the medical record librarian of MCH, Thrissur, who is the signatory to Ext P8 seizure mahazar under which Ext P9 case sheet was produced before court. PW11 is the Village Officer, Ongallur, who prepared Ext P10 scene plan and PW12 is the Assistant Sub Inspector of Police who is a signatory to Ext P11 seizure mahazar under which Ext P12 photos were produced before court. PW13 is the photographer who had taken Ext P12 photographs of the deceased. PW14 is a person from the locality who had only hearsay information regarding the incident. PW15, Vijayalakshmi, is the wife of the deceased and mother of the accused. During her examination, PW15 retracted from her statement before the police and gave evidence to the effect that on the fateful day, Kuttikrishna Menon, who had weakness on the left side of his body, had fallen from the steps of his house in an inebriated state. Though PW15 was cross-examined by the Prosecutor with the permission of the court, she did not deviate from the statement given during chief examination. PW16 is the Panchayat Secretary who had issued Ext P13 ownership certificate of the residential house in the name of Kuttikrishna Menon. PW17 is the Sub Inspector of Police, who registered Ext P14 FIR and arrested the accused under Ext P15 memo. Though the FIR was initially registered, for the offence under Section 326 IPC alone, offence under Section 342 was added as per Ext P18 report and the offence under Section 326 was altered to one under 302 IPC as per Ext P19 report. PW18 is the Circle Inspector of Police who took over investigation of the crime on 25.1.2013 and submitted final report before court on completion of the investigation.

10. On an analysis of the evidence the trial court had come to the definite conclusion that even after eschewing the evidence of PW15, the circumstantial evidence in the case was sufficient to prove that the appellant had caused injuries to Kuttikrishna Menon leading to his death. The trial court further found that such injuries were caused with the intention of causing the death of Kuttikrishna Menon and hence the act of the accused amounted to murder, warranting punishment under Section 302 IPC.

11. From a reappraisal of the evidence, the following circumstances emerge.

a) The evidence of PW2 would prove that the accused had illegally confined Kuttikrishna Menon inside the bed room of his house. The evidence of PW2, the recovery of MO1 and MO2 from the house, the finding in Ext P22 Chemical Examiner's report and the statement in Ext P5 letter written by the accused to PW 7 is sufficient to prove that it was the accused who had caused the injuries to the deceased. Over and above the aforementioned evidence, the accused had, while giving his answers during the questioning under Section 313 Cr.P.C, stated that he is innocent and that the incident was an unintentional mishap. In this regard it may be pertinent to refer to the decision of the Hon'ble Supreme Court in Ashok Deddarma v State of Tripura [(2014)4 SCC 747], wherein the Hon'ble Supreme Court has held that for the purpose of conviction, the statement of the accused given under Section 313 can be used for corroboration along with other evidence.

b) From the evidence of PWs 8 and 9 and Exts P6, P7 and P9 there cannot be any doubt that Kuttikrishna Menon had died as a result of the injuries inflicted on him by the accused.

12. In the light of the conclusive proof that it was the accused who had caused injuries to the deceased, the absence of proof regarding motive becomes irrelevant, as rightly held by the trial court, by placing reliance on the decision of the Hon'ble Supreme Court in Nithuni Yadav v State of Bihar [(1998) 9 SCC 238]. The alternative theory of Kuttikrishna Menon having sustained the injuries by falling from the steps of his house suggested in the statement filed by the accused under Section 313 (i)(b) of the Cr.P.C is only to be eschewed for the reason that even the date on which the deceased was taken to the hospital for the first time has been wrongly stated.

13. The only question that remains for consideration is as to whether the offence committed by the appellant amounts to culpable homicide amounting to murder falling under Section 300 and punishable under Section 302 or whether the appellant is guilty of only culpable homicide not amounting to murder punishable under Section 304 of the IPC. As a corollary a further question emerges as to whether, in the event of the accused being found punishable for the offence under Section 304, the act committed by him amounts to an offence punishable under Section 304 Part I or Section 304 Part II.

14. Even though on a first blush, it may appear that the appellant is guilty of the offence of homicide(patricide), on a close scrutiny of the evidence it becomes apparent that the prosecution had failed to prove that the accused had caused injury to his father 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, so as to attract the offence of culpable homicide. As a matter of fact none of the prosecution witnesses had stated that the accused had caused injuries with the intention that it should result in his father's death. On the other hand, PW1 had stated that while accompanying Kuttikrishna Menon in the ambulance, he was told by Kuttikrishna Menon himself that the accused had assaulted him. If the accused had beaten him up with the intention of killing him, Kuttikrishna Menon would have definitely spoken about it to PW1. According to PW2, on being asked about Kuttikrishna Menon the accused had replied that he had locked up his father inside the house for refusing to purchase a new autorickshaw for him, which also does not disclose an intention on the part of the accused to commit murder. Therefore, even though the medical evidence is to the effect that Kuttikrishna Menon had succumbed to the injuries, some of them grave, inflicted by the accused, that by itself is not sufficient to prove that the accused had inflicted those injuries with the intention that it would result in the death of his father.

15. The subtle difference between homicide amounting to murder and homicide not amounting to murder had engaged the attention of the courts, including the Apex Court time and again. Even though it is not possible to provide a straight jacket formula for arriving at a decision as to whether a particular case falls within the ambit of culpable homicide amounting to murder or not amounting to murder, the broad principles that can be relied on for the purpose of arriving at such conclusion has been laid down by the Hon'ble Supreme Court in Pulicherla Nagaraju v State of Andhra Pradesh [(2006)11 SCC 444] followed in Muthu v State (2009)17 SCC 433. In the said decision the Apex Court laid down the broad principles for understanding as to whether the particular act was committed with the intention to cause death. The circumstances enumerated are as follows: 

i) Nature of the weapon used; 

(ii) whether the weapon was carried by the accuse or was picked up from the spot; 

(iii) whether the blow is aimed at a vital part of the body; 

(iv) the amount of force employed in causing injury; 

(v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; 

(vi) Whether the incident occurs by chance or whether there was any premeditation; 

(vii) whether there was any prior enmity or whether the deceased was a stranger; 

(viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; 

(ix) whether it was in the heat of passion; 

(x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; 

(xi) whether the accused dealt a single blow or several blows.

16. In Muthu (supra), the Apex Court, after referring to Pulicherla's case, especially with regard to the following observation therein, “it is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II cannot be understood to mean that the court should somehow try to find out some way of treating the offence to be under Section 302 IPC, proceeded to acquit the appellant therein.

There is a clear distinction between a case of premeditated attack with intention to cause death and a case where there was no such premeditated intention and death was caused in the heat of the moment or fit of anger during an altercation or quarrel. No doubt, even in the heat of the moment or fit of anger one should not attack somebody since human beings are different from animals inasmuch as they have the power of self-control. Nevertheless, the fact remains that in the heat of the moment and in a fit of anger people sometimes do acts which may not have been done after premeditation. Hence the law provides that while those who commit acts in the heat of the moment or fit of anger should also be punished, their punishment should be lesser than that of premeditated offences. It is for this reason that Exceptions 1 and 4 have been inserted in Section 300 IPC” granted the benefit of Exception 1 and 4 of Section 300 to the appellant therein and held that the case comes under Section 304 Part II IPC. The finding was arrived at on the ground that the incident in question occurred in a sudden fight and a heat of passion by a sudden quarrel without the appellant having taking undue advantage or acting in a cruel or unusual manner.

17. The weapon of offence in the instant case is MO1, a wooden stick having a length of only 48 cm. Even going by the prosecution case the accused had attacked the deceased during the course of a wordy altercation. Of course, that is no justification for the brutal manner in which the deceased was beaten up. Even then the question looms large as to whether the accused had intended to cause the death of his father. From the evidence and the attendant circumstances it is not possible to infer that the accused had such an intention. Therefore, applying the principles in Pulicherla's case, the only possible conclusion that can be arrived at is that even though the accused had committed the heinous offence of brutally assaulting his father with a wooden stick, there is no evidence on record, direct or circumstantial, to attribute the accused with the intention of causing his father's death. Hence, the accused cannot be found guilty of the offence of murder under Section 300 IPC and on the other hand the accused can be found guilty of only the offence under Section Part II of Section 304 IPC. Hence, the appeal is allowed in part by modifying the conviction under Section 302 to one under Section 304 Part II IPC. Consequently the sentence of life imprisonment imposed by the trial court is modified and reduced to imprisonment for ten years.

The appeal is allowed in part. The conviction and sentence of the appellant/accused passed by the trial court under Section 302 is set aside and the accused is found guilty of the offence under Section 304 Part II IPC. The finding of the trial court under Section 342 IPC is confirmed. The appellant/accused is sentenced to undergo rigorous imprisonment for a period of ten years for the offence under Section 304 Part II of IPC inclusive of the period of imprisonment already undergone. The sentence of imprisonment for the offences under Sections 342 and 304 Part II of IPC shall run concurrently.