Section 302 IPC - No premeditation to cause the death - Offence would only fall under Section 304 Part II of I.P.C. [CASE LAW]
Penal Code, 1860 -
IN
THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE
A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE A.M.BABU
FRIDAY, THE 14TH DAY OF
DECEMBER 2018 / 23RD AGRAHAYANA, 1940
CRL.A.No. 1717 of 2013
AGAINST THE
JUDGMENT IN SC 6/2012 of ADDL.SESSIONS JUDGE,PATHANAMTHITTA DATED 12-08-2013 IN
CP 54/2011 of J.M.F.C.,RANNI
APPELLANT/ACCUSED:
THANKACHAN, C.NO.8365, CENTRAL
PRISON, TRIVANDRUM BY ADV. MANJU ANTONY
RESPONDENT/COMPLAINANT:
STATE OF
KERALA, REPRESENTED BY DGP, HIGH COURT OF KERALA.
BY
SR.PUBLIC PROSECUTOR SRI. S.U. NAZAR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY
HEARD ON 5.12.2018 THE COURT ON 14.12.2018 DELIVERED THE FOLLOWING:
J U D G M E N T
Shaffique, J.
The
appeal at hand is preferred by the sole accused in S.C.
No.6/2012
on the file of Additional Sessions Judge, Pathanamthitta by which he was found
guilty for offence under Section 302 of the Indian Penal Code, 1860 (for
brevity 'IPC') and sentenced to undergo imprisonment for life and to pay an amount
of `20,000/-
(Rupees Twenty Thousand only) as fine in default of which to undergo simple
imprisonment for one month.
2. The prosecution case is that, on
03/11/2010 at 05.30 p.m., at Ittiyappara, on Ranny-Erumely road, near MHB
vegetable shop situated on the west of the said road, the accused/appellant stabbed
on the upper part of the left side of front of the chest of Baby, S/o Thomas,
Mazhavancheril Veedu, Madathumpadi, Chellakkadu, Pazhavangadi Village and
thereby caused penetrating injury with a knife and caused his death.
3. Prosecution examined PWs 1 to 13
as witnesses, marked Exts.P1 to P15 and identified MO1 to MO3.
4. Prosecution evidence in brief are
as under: PW1 is the brother-in-law of the deceased. He gave Ext.P1 F.I.
Statement to PW13 and based on which Ext.P1(a) FIR is registered. PW13, the then
C.I. of Police took over the investigation and he conducted the inquest on the
body of the deceased and prepared Ext.P3 inquest report. PW13 reached the scene
of occurrence along with PW10, the Scientific Assistant and prepared Ext.P7
scene mahazar. Samples collected by PW10 were seized by PW13 and they were sent
to Court vide Ext.P8 form. Exts.P9 to P11 are memos prepared at the time of
formally recording the arrest of the accused/appellant. MO1 knife was recovered
from the possession of the accused/appellant through Ext.P2 seizure mahazar. It
is produced before Court vide Ext.P13 form. Ext.P14 is the form prepared for
forwarding MOs 2 and 3 to the Court. PW5 is the Doctor who conducted the
post-mortem examination of the deceased. Ext.P4 is the post-mortem report
issued by him. PW7 is the then Village Officer who prepared Ext.P6 scene plan.
Ext.P15 is the Forensic Science Lab reports proved through PW13. PW13 completed
the investigation and laid the charge-sheet.
5. During 313 examination, the
accused/appellant denied all incriminating circumstances and pleaded innocence.
No evidence was adduced from the side of defence.
6. The learned Counsel appearing for
and on behalf of the appellant Sri.Manju Antony argued that the appellant is totally
innocent in this case. There is absolutely no evidence to connect the appellant
with the crime. The appellant and the deceased were friends. Even according to
the prosecution, there is no motive for the crime. PW2 and PW8 cannot be
believed as they are falsely deposing before Court. PW2 is admittedly an autorickshaw
driver. It can be seen that he never tried to take the injured to hospital
inspite of him allegedly witnessing the incident, which improbabilizes his
presence. So is the evidence of PW8 and it is not credible. There is absolutely
no pre-meditation on the part of the appellant. There is no intention at all.
Only one wound is seen on the deceased. Prosecution failed to prove to whom MO1
belongs. The alleged seizure is not admissible. Also, there is inordinate delay
in lodging FIR and sending it to Court, examining witnesses etc. All these
aspects cast doubt about the prosecution version. The Court below erred in
finding the appellant guilty and hence he may be extended the benefit of doubt
and be exonerated. He cited the following decisions of the Apex Court to
support his arguments:-
(i) Harjinder Singh v. Delhi Administration (AIR 1968 SC 867) was cited to
show that prosecution must first establish that an injury is caused, and that
the nature of such injury in the ordinary course of nature is to cause death
and then comes the most vital aspect to be proved i.e., whether there was
intention to inflict that very injury and not some other injury and that it was
not accidental or unintentional. If both are found against the offender, then
alone the offence of murder is satisfied.
(ii)
Surain Singh v. State of
Punjab [(2017)
5 SCC 796], Jagtar
Singh v. State of Punjab (AIR
1983 SC 463), Athul
Thakur v. State of Himachal Pradesh [(2018)
2 SCC 496] and Ranjitham
v. Basavaraj and Others [(2012)
1 SCC 414] were relied to emphazise circumstances under which the offence would
fall under S.304 Part II of IPC.
7. The learned Senior Public
Prosecutor Sri.S.U.Nazar argued that the case against the appellant is proved
by the prosecution beyond reasonable doubt. There is direct evidence of ocular
witnesses. The deposition of PW2 and PW8 inspire full confidence and they are
probable and natural witnesses. They had no animosity towards the appellant.
They specifically spoke about the overt act. The recovery of weapon also is a corroborating
circumstance against the appellant. MO1 knife belongs to the appellant. The
injury inflicted was on the very vital part of the body and it went to a depth
of 9 c.m. The nature and depth of stab shows the intention of the appellant.
Court below is fully justified in arriving at the present conclusion and hence
no interference is required in the case. He relied on the decision of the Apex
Court in Gurmail
Singh v. State of Punjab
[2011(4) KLT Suppl. 54 (SC)] to
show that injury causing to the vital part of the body which lead to
instantaneous death shows intention to kill the victim.
8. Prosecution placed before the
trial Judge the following evidence to prove the guilt of the appellant:-
(i)
Oral evidence of PWs 2 and 8 about the incident who are eyewitnesses.
(ii)
Corroboration offered by the oral evidence of PWs 1, 4 and 11 to the ocular
version of PWs 2 and 8.
(iii)
Corroboration afforded by Ext.P1 FIS lodged by PW1.
(iv)
Corroboration afforded by medical evidence of PW5 and 6 and Exts.P4 and P5.
(v)
Recovery of MO1 knife from the possession of the accused/appellant.
(vi)
Apprehension of the accused/appellant from the scene of occurrence.
(vii)
Expert evidence tendered by PW10.
9. Court below elaborately looked
into the challenges posed by the defence upon the prosecution evidence. The following
aspects were raised by the defence:-
(1) Prosecution failed to establish the
identity of the accused.
(2)
Delay in examination of witnesses renders their evidence untrustworthy.
(3)
Presence of PW2 is doubtful in view of the fact that he did not bring the
victim to hospital in his autorickshaw.
(4)
Delay in registration of FIR raises doubt about the prosecution case.
(5)
Delay in sending FIR to the Court also casts doubt on the prosecution story.
(6)
Prosecution failed to establish the motive of the accused/appellant to commit
the crime.
10. It can be seen that the trial
Court analysed each aspect noted above and came to its present conclusion. The question
is whether the Court below was justified in arriving at the said finding in the
light of available evidence.
11. PW6 is the then Medical Officer
at Taluk Hospital, Ranny. She issued Ext.P5 wound certificate of the deceased.
She noted the following injuries on the body of the victim:
Patient was seen with socked
blood in the shirt, dresses. Deep wound was seen in the upper left chest (?
Stab wound) below the clavicle bone.
12. PW5 is the Doctor who conducted
the autopsy of the deceased. He issued Ext.P4 post-mortem certificate.
According to him, the cause of death is penetrating injury sustained to the chest
(Injury No.1). Medical evidence coupled with Ext.P3 inquest report would prove
that death of Baby was a homicide.
13. The whole case rests primarily on
the evidence of eyewitnesses to the incident PW2 and PW8.
14. PW2 is an autorickshaw driver. He
is familiar with both the appellant and the deceased. It is his version that,
on 03/10/2010, at or about 05.30 p.m., while he was standing in front of MHB
vegetable shop at Ranny, he saw the appellant stabbing the deceased on the left
side of the front of the chest using MO1 knife. He further deposed that after
getting the stab, the deceased moved forward and fell down on the side of the road.
He identified appellant as the person who stabbed the victim. According to him,
Fire Force officials took the injured to hospital. He is an attestor to Ext.P2
seizure mahazar of MO1 knife. He also identified MOs 2 and 3 as the dress worn
by the deceased at the relevant time.
15. PW8 is a salesman in MHB
vegetable shop at Ranny. According
to him, the incident happened in front of the said shop. He
is also familiar with both the appellant and the deceased. According
to him, on 03/11/2010 at about 05.30 p.m., Dikky (Nickname of the
appellant/accused) stabbed on the chest of the deceased Baby using MO1 knife.
He identified MO1 as the weapon used and the appellant as the aggressor.
16. As far as the evidence of these
two witnesses are concerned, there is nothing to disbelieve their version. They
are natural and probable witnesses who were available at the place. Their
evidence corroborated each other in all material particulars. Nothing
is brought out in evidence to show that they had not witnessed the incident.
Appellant does not have a case that these witnesses had any grudge against him.
Under such circumstance, we hold that the evidence of PW2 and PW8 is believable.
17. The MO1 knife is seized from the
appellant vide Ext.P2 mahazar and PW2 is an attestor to it. Ext.P15 FSL report
proved by PW10 would show that MO1 was stained with human blood belonging to
group A. These evidence prove beyond doubt that the fatal injury noted by PW5
and PW6 in Exts.P5 and P6 respectively was inflicted on the deceased by the
appellant herein using MO1 knife as weapon of offence. As far as the other challenges
raised by the learned counsel are concerned, we don't think it bears much
relevance in the light of proved circumstances of the case.
18. It is brought out in evidence
that the injury inflicted by the appellant on the deceased (injury no.1 in
Ext.P4) is sufficient in the ordinary course of nature to cause death. Ext.P4
describes injury no.1 as follows: -
“1. Incised penetrating wound
3x8x0.9 cm, vertical, on the upper part of left side of front of chest, its
upper sharply cut end was placed 9.5 cm outer to midline and 6 cm below top of
shoulder, the other end was blunt. The structures of left second intercostal
space was penetrated and terminated by making a cut on front aspect of upper
lobe of left lungs 20.3x0.5 cm. The wound was directed backwards, downwards and
to the right for a total minimum depth of 9.5 cm. The left lung was pale and
collapsed. Left chest cavity contained 1 litre of fluid blood mixed with clots.”
19. The next aspect to be
considered is whether the appellant had the intention to inflict the said
injury on the deceased. Admittedly, prosecution does not have a case to show the
motive of the crime. Prosecution does not have a specific case as to how the
incident which led to the stabbing occurred. It is also on record that both the
appellant and the deceased were friends. Evidence in its entirety shows that
there was no premeditation on the part of the appellant to cause the death of
the deceased. He had no intention to cause such a bodily injury as well. Only
one injury is inflicted on the victim. Nothing is brought out in evidence to
prove, to whom the knife MO1 belongs. Evidence
of PW2 and PW8 would show that there was altercation between the two ensued by
scuffle. Considering the factual scenario of the case at hand, we are of the
view that the crime will not fall under S.302 of IPC. Of course, if there was
intent and knowledge, the case would have come within the sweep of S.304 Part I
of I.P.C. But here, as already discussed, only knowledge could be attributed to
the appellant regarding the injury he inflicted on the victim. Of course, the
injury is fatal, but, taking into consideration the facts of the case, it could
not be stated that the accused had the intention to cause death of the deceased
especially when pre-meditation for commission of the crime is not proved in the
case. The position of law is well settled in the judgment of the Apex Court in Murlidhar Shivram Patekar
v. State of Maharashtra [(2015)
1 SCC 694]. Hence, the offence would only fall under Section 304 Part II of
I.P.C.
In
the result, the appeal is partly allowed. The conviction and sentence passed by
the Court below under Section 302 of I.P.C. is hereby set aside. The appellant
is found guilty under Section 304 Part II of I.P.C. and sentenced to suffer
rigorous imprisonment for 10 years. The period of detention, if any, undergone
by the appellant in connection with this case, shall be given set off under
Section 428 of Cr.P.C.