Sc 475/2010 Of Additional ... vs By Adv. Sri.Babu S. Nair
2021 Latest Caselaw 5486 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

          THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

                              &

            THE HONOURABLE MRS. JUSTICE M.R.ANITHA

   TUESDAY, THE 16TH DAY OF FEBRUARY 2021 / 27TH MAGHA,1942

                     CRL.A.No.279 OF 2016

       CP.11/2010 OF JUDICIAL MAGISTRATE OF FIRST CLASS
                     -II,PERINTHALMANNA

   SC 475/2010 OF ADDITIONAL SESSIONS COURT - III, MANJERI

   CRIME NO.73/2009 OF Melattur Police Station , Malappuram


APPELLANT/ACCUSED

            KUTTAN @ RADHAKRISHNAN
            S/O. NARAYANAN, CHENOMPILAKKAL HOUSE,
            PATHIRIKKODE, EDAPATTA, MALAPPURAM DISTRICT.

            BY ADV. SRI.BABU S. NAIR

RESPONDENT/STATE

            STATE OF KERALA
            REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
            OF KERALA, ERNAKULAM-682 031, FOR THE SUB
            INSPECTOR OF POLICE, MELATTOOR POLICE STATION,
            MALAPPURAM DISTRICT.



OTHER PRESENT:

            SENIOR PUBLIC PROSECUTOR SRI.S.U.NAZAR

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
2.2.2021, THE COURT ON 16-02-2021, DELIVERED THE FOLLOWING:
 Crl.A.No.279/2016
                                    2



                              JUDGMENT

Dated : 16th February, 2021

M.R.Anitha, J.

1. This appeal is filed against the conviction and

sentence passed against the appellant/accused in Sessions Case No.475/2010 dated 18.2.2016 on the file of the Additional Sessions Judge, Manjeri.

2. Prosecution case is that on 30.04.2009 at about

3.15 p.m in front of a toddy shop, T.S.No.40, at Pathirikottu accused intentionally caused the death of deceased Narayanan by slashing with MO1- log.

3. Immediately after the incident, PW1 who was the

Cook in the toddy shop, on hearing the alarm went to the spot in front of the toddy shop, followed by PW2 who was also an employee in the toddy shop and saw the deceased lying on the ground and accused standing near him holding MO1. Deceased was taken to Mariyam Medical Centre, Melattur. There he was declared dead by the Doctor. PW1 lodged Ext.P1 FIS to PW20, the Sub Inspector of Police, Melattur Police Station and based on the same, the Sub Inspector registered Ext.P13 FIR. Thereafter, PW21 the Circle Inspector of Police, Pandikkad took charge of the investigation of the case, prepared the scene mahazar, arrested the Crl.A.No.279/2016

accused, conducted the major investigation and questioned the witnesses. Thereafter PW22 continued the investigation and filed the final report. PW9 and PW11 are the witnesses in Ext.P4 scene mahazar. PW14 is the witness in the seizure mahazar-Ext.P7 which was prepared while seizing the blood sample of the deceased by the Doctor who conducted postmortem on the body of the deceased. PW15 was the Head Constable attached to Melattur Police Station who had signed in Ext.P8 the seizure mahazar prepared while seizing MO2 the shirt and MO3 dhothi of the accused which was alleged to have been worn by him at the time of the incident. PW17 is the photographer who took the photographs of the deceased at the time of inquest and the photographs were marked as Ext.P10 series and negatives were marked as Ext.P11 series. PW18 was the Police Constable who had been working at Karivarakkundu Police Station who was present at the time when Ext.P10 and P11 series were produced and seized by describing in the mahazar.

4. PW19 was the Assistant Village Officer, Edappatta

who visited the place of occurrence along with the Village Officer and prepared the sketch which is marked as Ext.P12.

5. On the side of the prosecution, PWs 1 to 22 were

examined and Exts.P1 to P22 were marked and MOs 1 Crl.A.No.279/2016

to 12 were identified and marked. Relevant portion of the 161 statement of the prosecution witnesses were marked as D1 to D5. Ext.D6 is the wound certificate, Ext.D7 is the 161 statement of CW5, Ext.D8 is the remand extension report marked from the side of the accused. After closure of the prosecution evidence, appellant/accused was questioned under Sec.313 Cr.P.C. He denied all the incriminating facts and circumstances put to him. Thereafter, on hearing both sides, Court below found the appellant/accused guilty under Section 302 IPC and convicted and sentenced him to undergo imprisonment for life and to pay a fine of Rs.25,000/- in default of payment of fine, to undergo rigorous imprisonment for a further period of three months. Assailing the conviction and sentence, the appellant/accused came up in appeal.

6. Heard the learned counsel for the appellant Sri.

Babu S.Nair and the learned Public Prosecutor Sri. S.U.Nazar. Lower Court Records were called for and perused.

7. To prove the factum regarding the death of the accused, prosecution examined PW10, the Medical Officer who examined the deceased immediately after the incident and he issued Ext.P5 prescription which is only a letter to Sub Inspector of Police intimating that the person Crl.A.No.279/2016

named Narayanan was brought dead at about 3.45 p.m. The doctor would state that he was brought dead and was referred to Manjeri or Perinthalmanna Government hospital for further management. Postmortem was conducted by PW16 who was the Police Surgeon attached to District Hospital, Manjeri. The ante-mortem injuries noted are as follows:

(Ante-mortem) External:- (1) Lacerated wound 3x0.2x0.7cm, 'Y' shaped, limbs of 'Y' directed downwards, involving middle of front aspect of nose, upper end of stem of 'Y' at 1cm below root of nose. (2) Lacerated wound 3x0.3x1cm horizontal, involving left side of face, inner end at 1 cm inner to outer margin of left ala of nose. (3) Lacerated wound 1x0.2x0.5cm, oblique, involving left ala of nose, upper end at just below middle of wound no.(2). (4). Lacerated wound 3x1x0.5cm involving right upper gum of oral cavity inner end at midline. (5) Loss of tooth, of left lower lateral incisor completely socket showed fresh reddish haematoma and margins of gum around socket showed minute lacerations (fresh loss) (6) Two lacerations of inner aspect of lower lip, each 2x0.5x0.5 cm at 2 cm apart, both vertical, upper ends of gum margins. (7) Multiple contused abrasions 0.5x0.5cm - 3x0.7cm sizes over an area 5x4cm involving front aspect of chin of face, upper end at lower margin of lower lip. (8) Contused abrasion 1x0.5cm involving front aspect of left chest, upper inner end at 5cm below Crl.A.No.279/2016

collar bone and 3 cm outer to midline. Internal:- (1) Contusion of scalp 7x5cm size, involving middle aspect of back of head, lower end at 5cm above hairline. (2) Thick subdural and subarachnoid haemorrhages involving entire cerebrum and cerebellum. (3) Fracture separation involving entire nasal cartilages and nasal bones (4) Fracture separation involving upper jaw bone, in the midline (5) Fracture separation involving first piece of body of sternum. (6) Fracture separation involving left 3rd rib at 5cm outer to sterno-costal joint.

8. The Doctor deposed that the death was due to head

injury and all the injuries are possible to be caused by beating with MO1. He also stated that injury Nos.1 and 2 are fatal injuries. The learned counsel for the accused has got a contention that the injury sustained by the deceased might have been caused by hitting against the compound wall of the toddy shop which is situated nearby. Questions were put to PW16 to bring out that the injuries could be caused due to fall. But PW16 the Doctor though stated that injury Nos.5 and 6 can be due to multiple hit or single hit on the face with fall and not with fall alone. On further cross-examination he stated injury Nos.5 and 6 can be caused due to fall if the person fall from a height of around 10 feet. He also stated that if a person is a Crl.A.No.279/2016

chronic alcoholic and very weak 5th and 6th injures can be caused by fall from a less height. But he reiterated further in cross-examination that injures can be caused by beating with thick lower portion of MO1 ie, at any side of the thick portion. But it is very pertinent to note that opinion as to cause of death by the Doctor is internal injury Nos.1 and 2. He categorically stated during cross-examination that injury Nos.1 and 2 are the result of external injury Nos.1 to 7 and further categorically stated that when beating with MO1 on the front of face internal injury Nos.1 and 2 can occur. According to him with or without fall depending on the force applied in beating, injury Nos.1 and 2 (internal) can be caused. So the evidence of Doctor that the fatal injury Nos.1 and 2 can be caused by beating with MO1 cannot be discredited in spite of hectic cross-examination. Evidence of PW10 would show that at about 3.45 p.m he examined the victim and victim was brought dead and he has given the intimation to the police. The death seems to be instantaneous. So we do not find any reason whatsoever to disbelieve the evidence of PW16 the Doctor who conducted postmortem that the cause of death is head injury by beating with MO1. So deceased had a homicidal death stands proved.

9. The case was investigated based on the Crl.A.No.279/2016

circumstances which led to the death of the deceased. There are plethora of decisions declaring the law on the aspect of proof of guilt in cases based on circumstantial evidence.

10. We may quote the fundamental and basic principles laid down by the Apex Court in Hanumant v. State of Madhya Pradesh (AIR 1952 SC 343 = 1953 Crl.L.J. 129) which has been subsequently followed in a catena of decisions. The principles laid down therein reads as follows (1) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely "may be" fully established. (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say they should not be explainable on any other hypothesis except that the accused is guilty. (3) Circumstances should be of conclusive nature and tendency. (4) They should exclude every possible hypothesis except the one to be proved (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

11. It is also relevant to quote State of Maharashtra v. Annappa Bandu Kavatage (AIR 1979 Crl.A.No.279/2016

SC 1410 = 1979 KHC 797) where in a case charged under Sec.300, 364 it has been held that before a Court can act on circumstantial evidence the circumstances proved must be complete and of a conclusive nature so as to be fully inconsistent with the innocence of the accused and are not explainable on any other hypothesis except the guilt of the accused.

12. In Ram Gopal v. State of Maharashtra (AIR 1972 SC

656), Sharat Birdhichand Sardar v. State of Maharashtra (1984 (4) SCC 116), etc the above dictum has been followed

13. In this case prosecution mainly relies on the circumstances viz., motive, the last seen together, dying declaration of the deceased, the presence of the accused with weapon near the deceased, the recovery of the weapon and also the scientific evidence to prove the complicity of the accused in the offence.

14. To prove that the deceased and accused were seen

together last, prosecution relies on the evidence of PW1 and 2. PWs 1 to 3 are the witnesses mainly relied on by the prosecution to prove the material fact regarding the dying declaration and the injury sustained by the deceased in front of the toddy shop and the presence of the accused immediately before the incident and after with the deceased.

Crl.A.No.279/2016

15. PW1,the cook of the toddy shop deposed that the incident occurred on 30.04.2009 and he was on duty on that day along with PW2 who was the salesman in the shop. Deceased came at about 2.30 p.m to the toddy shop and consumed toddy. Subsequently accused came and he also consumed toddy and there was an exchange of words in between them and PW2 asked them to get out of the shop and they went out. Further he stated that deceased sat outside on the verandah while he was supplying the curry. When CW5 came there, he heard a commotion outside and he rushed to that place, then deceased was found lying down and accused was holding a log in his hand. They separated the accused. Then the deceased was taken to his lap and water was given. There was bleeding and he saw a wound on the face. Further he categorically stated that deceased told him that accused beat him. Accused went away with the log. All of them together took the deceased to the hospital and there he was declared dead. Further he stated about the statement given by him to the police and he identified MO1 as the log used by the accused for beating the deceased.

16. PW2 deposed in corroboration with PW1. He is in

acquaintance of the deceased and the accused. According to him, both of them used to come to the toddy shop. He also deposed that the deceased Crl.A.No.279/2016

came first after 2 'O' Clock, he consumed one bottle of toddy. Thereafter accused came and he also consumed one bottle of toddy. Accused, deceased and 5 to 6 other people were talking in the toddy shop. After sometime he asked the deceased to go home. Then the deceased went out of the shop. According to him, thereafter he saw the deceased sitting on a ridge near the compound wall. Then he heard the commotion, PW1 reached there first. They found the deceased lying with injuries. CW6 asked him to bring water. PW1 took him to his lap and gave water. According to him, accused was standing just nearby, holding a firewood piece. He identified MO1 as the said wooden piece. According to him, Ayyappan (CW5), PW1 and Gopi (CW6) took him to the Hospital.

17. PW3 was mainly examined to prove the alleged dying declaration of the deceased that accused had beat him. He is the nephew of the deceased. According to him, he went to the spot on getting information from his Nephew about the incident. It is also stated that he along with Pradeep Kumar went to the spot and saw the deceased lying in the autorikshaw and blood was dripping from the nose and mouth and the deceased told him that accused beat him. He claims to have accompanied the deceased to the Hospital. He is a witness in Ext.P2 inquest.

Crl.A.No.279/2016

18. Though PW3 claims to have reached the spot before

the deceased having been taken to the Hospital, PW1 and PW2, who were present in the scene at the time when the deceased was taken to the Hospital, did not state about the presence of PW3. On analyzing the cross-examination of PW3 also it could be seen that he was not actually present while the deceased was taken to the Hospital. He would state that he did not know who had taken the deceased in the autorikshaw and also did not know as to where himself and Pradeep Kumar were sitting inside the auto. On analyzing his evidence, as rightly pointed by the learned Counsel for the accused, it appears that he is a witness planted subsequently by the Prosecution just to give a corroboration to the dying declaration of the deceased; which according to us was unnecessary for reason of the testimony of PW1 & 2, uninterested witnesses whose evidence remained unshaken and had a ring of truth.

19. PW4 is the autorikshaw driver. Though he has been

declared as hostile by the Prosecution and cross- examined, on appreciating his evidence it seems that he is a truthful and trustworthy witness. He admitted that in his autorikshaw the deceased was taken to the Hospital after the incident. According to him, at that time apart from the injured, two other persons were present in the Crl.A.No.279/2016

autorikshaw and it was after about 3'O' Clock. It was PW1 who had waylaid the autorikshaw in the presence of Ayyappan and the deceased was unconscious at that time. Though he was declared hostile, since he denied the deceased having talked while traveling in the autorikshaw, in view of the seriousness of the injury sustained by the deceased to his head, his evidence that he did not hear the deceased talking while travelling in the autorikshaw, cannot be held as false. The evidence of PW4 also would belie the statement of PW3 that he also accompanied the deceased in the autorikshaw to the Hospital.

20. On analyzing the evidence of PW1 and 2, it could

be seen that they are most natural witnesses who could be examined to prove the incident happened in front of the toddy shop. Truthfully PW1 who immediately reached the place on hearing the alarm did not state that he had seen the accused beating the deceased with MO1. But at the same time he stated categorically that he saw the accused near the deceased holding MO1-log. PW2 who accompanied him to the spot also would state that as directed by Gopi (CW6), he brought water from the toddy shop. At that time deceased was lying on the lap of PW1 who gave water to the deceased. So the evidence of PW1 and 2 would convincingly establish that accused and deceased Crl.A.No.279/2016

were present together last in the toddy shop and they reached the spot immediately after the incident before the accused left the spot. The evidence of PW1 who reached the spot first on hearing the alarm that the deceased told him that accused had beat him, seems to be most truthful and trustworthy statement by PW1.No question seen to have been put to PW1 regarding his evidence that deceased told him that accused beat him. So in effect the statement of the deceased to PW1 with regard to the cause of death remains unchallenged. It is pertinent to note that PW2 who reached the spot after taking water as directed by Gopi did not depose about the dying declaration of the deceased. He also has no case that he heard the deceased making the dying declaration to PW1. It is very pertinent to note that what PW1 and 2 deposed in corroboration, was that accused was present while the deceased was lying on the lap of PW1 and accused was holding MO1 at that time. Both of them were shown MO1 at the Office by the Circle Inspector and they categorically identified MO1 before the Court also. So the evidence of PW1 establish that accused was present at the spot where the deceased was lying with injuries holding MO1. That would support the evidence of PW1 that the deceased told him while he was taken on his lap Crl.A.No.279/2016

that the accused beat him.

21. The statement of Pw1 that deceased told him that

accused beat him is a statement relating to cause of death which is admissible under Section 32 (1) of Indian Evidence Act,1872 as Dying declaration. So the dying declaration of the deceased is clearly proved through the evidence of PW1 who is a very trustworthy and natural witness who reached the spot within no time after the incident. It is well settled that dying declaration if found to be true and voluntary it can form basis of conviction even without any further corroboration.

22. We may place reliance in this context to Khusal

Rao v. State of Bombay (AIR 1958 SC 22) paragraph No.22 of the said decision which reads thus :

"On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid , (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in Crl.A.No.279/2016

view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other piece of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent Magistrate in the proper manner , that is to say in the form of question and answers and as far as practicable in the words of the maker of the declaration , stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memories and human character, and (6) that in order to test the reliability of a dying declaration , the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night, whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances Crl.A.No.279/2016

beyond its control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.

22.........Thus the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence as held in some of the reported cases , but from the fact that the Court in a given case has come to the conclusion that that particular dying declaration was not free from infirmities referred to above or from such other infirmities as may be disclosed in evidence in that case."

23. In Ramachandra Reddy v. Public Prosecutor (AIR 1976 SC 1994) it has been held that dying declaration if true and voluntary, is sufficient to find the conviction even without further corroboration. In Appukuttan v. State of Kerala (2018 (1)KLJ 920 = 2018 (2) KHC 262) it has been held that once the Court is satisfied that the dying declaration is true and voluntary, it is sufficient to find the conviction even without any corroboration.

Crl.A.No.279/2016

24. So what could be deducted from the settled position of law is that dying declaration can be the sole basis for conviction without any corroboration if the Court is satisfied that it is true and voluntary. In the present case, we have already discussed in detail the acceptability of the evidence of PW1 who is the most natural witness who could be examined by the prosecution and also found to be a trustworthy witness. He categorically stated even during cross-examination that on reaching the spot he tried to give water to the deceased and he had taken the deceased from the ground and made him lie on his lap when the deceased was talking. Apart from a suggestion that he is willfully stating falsehood at the instance of the son and other relatives of the deceased nothing could be brought out to show that he has got any ill-will towards the accused or any special interest in the matter. It has also come out from the evidence of PW10 the Doctor that he was brought dead at the hospital. So there had no chance for getting the dying declaration recorded through a Magistrate. So the evidence of PW1 with respect to the dying declaration of the deceased is free from any doubt and is fully admissible. So without any independent corroboration that can be accepted as proof of guilt of the accused. Crl.A.No.279/2016

25. To prove that accused and deceased were seen together last, Prosecution relies on the evidence of PW1 and PW2. Both of them deposed in corroboration that deceased and accused came to the toddy shop on that fateful day and both of them consumed one bottle each of toddy from the shop.

26. According to the learned counsel for the accused

there is no evidence to show the time gap between the incident and the time at which they went out of the toddy shop. So the case of the Prosecution that the incident occurred after they went out of the toddy shop and their presence in the toddy shop taken as a circumstance of last seen together cannot be accepted.

27. During cross-examination of PW1 he reiterated that both accused and deceased had one bottle each of toddy on that day. He would further state that both of them used to come to the toddy shop and consume toddy. He also stated that on the date of incident, since there was a talk between the deceased and accused PW2 asked the deceased to go out of the shop.

28. PW1 in chief-examination itself stated that the deceased came to the shop at about 2.30 pm and consumed toddy and it is after that the accused came and consumed toddy. There occurred some wordy altercation between them and he asked both Crl.A.No.279/2016

of them to go out of the shop.

29. PW2 also deposed that deceased came first and consumed toddy and thereafter the accused came. According to him, after sometime he asked the deceased to get out of the shop and he went out. On analyzing the evidence of PW1 and 2 it could be seen that their evidence would prove in abundance the presence of the accused and deceased together in the toddy shop before the incident. The fact that both of them were seen together while leaving the toddy shop is not further challenged during cross-examination of PW1 and both PW1 and PW2 deposed in corroboration that while they saw the deceased with injuries, the accused was standing there with MO1-log. The fact that accused and deceased were seen together last while they went out of the toddy shop is proved convincingly. The time of the incident as per the prosecution is 3.15pm. It appears that it is just after they went out of the toddy shop, the incident happened. No attempt was made during cross-examination of PW1 and 2 to bring out that after the accused and deceased went out of the toddy shop anybody has seen either the deceased or accused separately or at any place other than the scene of occurrence. So the theory of last seen together also stands established by the Prosecution beyond any reasonable doubt. Crl.A.No.279/2016

30. Being a case based on circumstantial evidence motive is one of the main ingredients to be proved by the Prosecution. In other words, motive assumes importance mainly in a case based on circumstantial evidence. The motive alleged in this case by the Prosecution is that long years ago the Uncle of the accused was murdered by the deceased, out of which accused nurtured an enmity towards the deceased, which enmity resulted in the accused intentionally causing the death of the deceased.

31. To prove the motive Prosecution examined PW3-

Nephew of the deceased, PW5-Son of the deceased and PW6-younger Brother of the deceased. PW1 and PW2 only say about some hearsay knowledge regarding the enmity. According to PW1, it has been heard that the Uncle of accused had been attacked by the deceased and PW2 stated that it was heard that before 10 to 40 years some of the family members of the accused had died and somebody from the family of the accused had done the same. So the evidence of PW1 and PW2 in this aspect is only hearsay and is not admissible.

32. PW3-Nephew of the deceased stated that in an incident occurred earlier, the Uncle of the accused died. He would further state that accused had stated that he would kill somebody from the family of the deceased. But during cross- Crl.A.No.279/2016

examination he could not say as to who had been murdered by the deceased though he is the nephew of the deceased. So the evidence of PW3 in this regard is very vague. Even otherwise we have already found that PW3 is not a reliable witness.

33. PW5-Son of the deceased also stated about the enmity of the accused towards his father. But admittedly he has no direct knowledge about it. According to him accused told about it. It has also come out from his cross-examination that in C.C.575/2012 pending before the Perinthalmanna Court, he is the first accused, though he further stated that it is a case of assault. So his evidence will not in any way help the prosecution to prove the motive.

34. PW6 - the younger brother of the deceased deposed about the murder of the uncle of accused and that the deceased and himself were accused in that case. During cross-examination he categorically stated that the incident occurred before 32 - 35 years and it was on 10.7.1973. At that time, the accused was 18 years old. But Sec.313 Cr.P.C statement in this case would show that accused was just 35 years old on 8.6.2012. Then how can he be of 18 years in 1973 ?

35. Further he admitted that accused and deceased used to be in the toddy shop together and consume liquor. On any such occasion accused did not make Crl.A.No.279/2016

any provocative assault. So the evidence by the prosecution witnesses would show that the alleged incident, projected as motive happened 32 - 35 years ago. The evidence of PW1 and 2 would show that accused and deceased were their frequent customers in the toddy shop and they used to be together in the toddy shop on many occasions.

36. Hence, the evidence adduced from the side of the

Prosecution, though would show that there was an incident in the year 1973 of murdering Uncle of the accused by the deceased and some others, there is nothing to infer that accused had any subsisting enmity towards the deceased out of that incident which took place long ago. That may be the reason why PW1 and 2 stated that accused and deceased used to be regularly in the toddy shop for consuming liquor, at the same time . The evidence adduced by the Prosecution would not prove that anything precipitated in the mind of the accused due to the incident which happened years back so as to embitter the accused to the extent of planning to do away with the deceased. There is also no evidence as to any prior preparation having been made by the accused. At best the accused took a firewood, lying casually in the premises of the toddy shop, with which he hit the deceased. In effect, it has to be concluded that Prosecution could not prove the Crl.A.No.279/2016

motive as alleged.

37. The next circumstance proved by the Prosecution is the recovery of MO1 weapon at the instance of the accused. As stated earlier, PW1 and 2 who reached the spot immediately after the incident clearly identified MO1 as the weapon used by the accused for beating the deceased. PW21 was the Circle Inspector, Pandikkad, who took charge of the investigation on 1.5.2009 and arrested the accused on the same day. Exts.P16, P17 and P18 are the arrest memo, Inspection Memo and Arrest Notice respectively prepared at the time of arresting the accused. PW21, the Circle Inspector stated that on questioning the accused, after the arrest he recorded the confession statement, Ext.P6(a), given by the accused and as led by the accused, MO1 was recovered and it was seized , as described in Ext.P6 scene mahazar. PW13 is the witness in Ext.P6 scene mahazar, who fully supported the recovery of the weapon and identified MO1 and also stated about the presence of blood at the time of recovery of weapon. So recovery of the weapon is clearly proved.

38. Ext.P22 is the FSL report. It would prove that the human blood belonging to Group 'B' was detected on MO1. Ext.P22 would prove that blood stains found on shirt and dhothi, the blood sample collected from the floor and also the Crl.A.No.279/2016

blood stains found on MO1 were of Group 'B'. So it is conclusively proved that blood on MO1 recovered at the instance of the accused, which has been identified as one held by the accused, by PW1 and 2 while he was standing near the deceased immediately after the incident is of Group B. So recovery of the weapon at the instance of the accused and the detection of the blood belonging to the Group of the deceased on the weapon would constitute a clear link of circumstances to connect the accused with the offence.

39. Based on the above discussion of facts and circumstances and the evidence adduced it could be found that Prosecution could establish the unbroken chain of circumstances viz., last seen together, dying declaration, presence of the accused with the weapon nearby the deceased, recovery of weapon, blood stains of the deceased on the weapon and the injuries which, according to expert opinion, resulted in the death of the victim. These circumstances form a complete chain which leads to an irresistible conclusion regarding the connection of the accused with the offence. Though motive could not be successfully established by the prosecution, in view of the other strong links of circumstances pointing to the guilt of the accused, absence of proof of Crl.A.No.279/2016

motive behind the incident for the commission of the offence by itself will not in any way constitute any missing link in view of the settled position of law. In this context we may place reliance on Koshy @ Baby v. State (DB) [1991 Crl.L.J 17760 (Kerala)] where in it has been held that motive for doing a criminal act is a difficult area for prosecution. Failure to prove motive is not sufficient to draw an inference adverse to prosecution. Mere fact that prosecution failed to translate that mental disposition of the accused into evidence does not mean that no such mental condition existed in the mind of the assailant. Though it is sound proposition that every criminal act is done with a motive, it is unsound to suggest that no such criminal act can be presumed unless motive is proved. After all motive is a psychological phenomenon and it could be abrupt and immediate. Fact that prosecution failed to translate that mental disposition of the accused into evidence does not mean that no such mental condition existed in the mind of the assailant.

40. Bhim Singh and Another v. State of Utharakhand (2015 4 SCC 281) is also relevant to be quoted wherein it has been held that when facts are clear, it is immaterial whether motive is proved. Absence of motive does not break the link in the Crl.A.No.279/2016

chain of circumstances connecting the accused with the crime. Moreover, in this case in the coming paragraphs we are discussing about the probability of sudden provocation at the instance of the accused which actually might have led to the incident.

41. So in effect, we do not have any hesitation to conclude that Prosecution established a chain of circumstances which only leads to the hypothesis of the guilt of the accused.

42. The next contention of the learned counsel which actually was the alternate contention of the learned counsel, is that there was no intention or the act is not a pre-meditated one which occurred out of sudden quarrel between the deceased and the accused. Hence the accused is entitled for the benefit of Exception I of Sec.300 of the Indian Penal Code.

43. It is relevant in this context to quote Gokul Parashram Patil v. State of Maharashtra (AIR 1981 SC 1441 = MANU/SC/0144/1981). In that decision in a case of alteration of charge under Secs 300(c)

(ii), 302 and 304 Part-II of IPC it has been discussed whether particular injury which was found to be sufficient in the ordinary course of nature to cause death was the injury intended by the appellant and it has been held that Sec.300(c)(ii) IPC provides that injury must be Crl.A.No.279/2016

intended to have been caused by the culprit and injury which was found sufficient in the ordinary course of nature to cause death does not satisfy the above test because it cannot be said to have been intended by the assailants and accordingly the appeal was allowed and conviction under Sec.302 IPC was set aside and altered to Sec.304 Part-II IPC. In that case also, prosecution case was that appellant attacked the deceased with a knife giving the latter a little blow above the left clavicle where it went muscle deep to cause incised wound having dimension 1 - ¼ x 1/3 .

44. In Ajit Singh v. State of Punjab (2011 (9) SCC 462 = 2011 KHC 4773) while dealing with Secs 302 and 304 IPC, it has been held that, in the absence of clear evidence regarding intention to cause death and the intention to cause more bodily injuries to hold whether an offence would fall under Sec.302 or 304 Part-I IPC, the courts have to be cautious in examining whether the same falls under Sec.300 or it would fall under its five Exceptions which lays down when culpable homicide is not murder.

45. With the above principles in mind, the facts and

circumstance of this case has to be analyzed, once more to find whether the action of the accused falls under the exception. The learned counsel would contend that there is evidence Crl.A.No.279/2016

adduced by the Prosecution to prove that accused and deceased were present inside the toddy shop and PW1 and PW2 deposed that they were asked to get out of the shop and nobody thereafter had seen them and the facts and circumstances according to him, would speak in abundance about the probability of the accused doing the act out of sudden provocation at the instance of the deceased. Even though the learned counsel would contend that there is no evidence whatsoever to prove as to when exactly the incident took place after they have been sent out of the toddy shop, the said argument does not seem to be acceptable since it has come out from the evidence of PW1 that deceased came to the toddy shop for consuming liquor on the fateful day at about 2.30 pm. PW1 and PW2 also deposed in corroboration that it is thereafter the accused came and he was also supplied with one bottle of toddy and thereafter there might have occurred a heated exchange of words between the accused and the deceased, inside the toddy shop and that is why PW1 categorically stated that he asked both of them to get out of the shop. PW2 stated that he asked the deceased to get out of the shop. It was also the evidence of PW2 that the deceased was quarrelsome. Any way it can reasonably be concluded that they might have gone out of the Crl.A.No.279/2016

shop sometime after 3 o' Clock. Incident in this case is alleged to have taken place at about 3.15 pm. So there is not much time gap in between the time when they went out of the toddy shop and the occurrence as such. It has come out in evidence that MO1 is a log-piece kept in the toddy shop premises for using as firewood. Admittedly it is not a weapon brought by the accused. It was hence earlier, we ruled out the possibility of any pre- planned act on the side of the accused. Further, it has come out in evidence that the deceased was a person of quarrelsome nature. It has also come out that the accused is not a person having any criminal antecedents or a person indulging in any provocative acts, causing harm to anybody.

46. Evidence of PW1 in this context is relevant to be appreciated. He would categorically admit that accused never attempted to annoy the deceased on any previous action though he would admit that both of them together used to be in the toddy shop. He also admitted that accused never attempted to attack anybody after consuming liquor. It was also his evidence that since the deceased was in the habit of behaving in an unruly manner after consuming liquor, he was asked to get out of the shop by PW2. It is also his evidence that on that day, when there was some talk in between the deceased and accused, Crl.A.No.279/2016

PW2 asked them to get out of the shop. He would further admit that he had not seen any revengeful act from the part of the accused towards the deceased and he has not stated to Police that out of ill-will, accused has done anything to the deceased.

47. PW8 who is none other than the son of the deceased, who categorically stated that he had not ever heard any provocative act from the side of the accused before this incident.

48. PW9 is a person from the locality and in acquaintance with the accused and deceased. During cross-examination he stated that deceased used to create problem after consuming liquor by making unnecessary comments and he is a drunkard. So on evaluation of the evidence adduced from the side of the prosecution there is nothing to infer that the accused is a person having any criminal antecedent or was in the habit of picking quarrels with anybody or doing any provocative act to any other person much less the deceased. There is no evidence that the accused had been involved in any incident where he had reacted violently causing harm to the body or person of any one. It has also come out in evidence that both of them were present together in the toddy shop and employees in the toddy shop asked them to get out of the shop and accordingly Crl.A.No.279/2016

they came out of the shop. Presumably the quarrel might have continued and the deceased, during the course of the quarrel would have provoked the accused by word or deed, which ultimately might have led to the accused picking up MO1 log lying in the premises of the toddy shop to hit blows on deceased. As has been rightly contended by the learned counsel for the accused, it appears that the act of the accused is without any premeditation in a heat of passion upon sudden provocation. The stage was set inside the toddy shop, where obviously the deceased was the initiator. There is also nothing to infer from the medical evidence and analyzing the nature of the injuries sustained by the deceased that the accused had taken any undue advantage or acted in a cruel or unusual manner. Hence the act of the accused can be classified as culpable homicide not amounting to murder coming under Part -1 of S.304 So the claim of benefit of Exception I of Sec.300, according to us, is quite acceptable. Hence the act of the accused is classified as culpable homicide not amounting to murder under Sec.304 Part-I IPC

49. In the result, Criminal Appeal is allowed in part and conviction passed against the accused under Sec.302 IPC is hereby set aside and it is altered to Sec. 304 Part-I IPC. Accused is Crl.A.No.279/2016

sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.25,000/- (Rupees twenty five thousand only) in default of payment of fine, to undergo further period of imprisonment for three months. Set off allowed.

Sd/-

K. VINOD CHANDRAN JUDGE

Sd/-

M.R.ANITHA

JUDGE Mrcs/Shg. xxx