Kerala High Court

Gopi C.No.4141 vs The State Of Kerala on 9 August, 2023

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
        THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
                               &
          THE HONOURABLE MRS. JUSTICE C.S. SUDHA
 WEDNESDAY, THE 9TH DAY OF AUGUST 2023 / 18TH SRAVANA, 1945
                     CRL.A NO. 550 OF 2021
AGAINST THE JUDGMENT IN SC 488/2016 OF ADDITIONAL SESSIONS
                 COURT - III, MAVELIKKARA
APPELLANT/ACCUSED:

         GOPI, AGED 56 YEARS,
         S/O. THANKAPPAN, C.NO.4141,
         CENTRAL PRISON & CORRECTIONAL HOME, POOJAPPURA,
         THIRUVANANTHAPURAM
         AND RESIDED AT THOPPUPARAMBIL VEEDU,
         CHELLANAM PANCHAYATH WARD NO.VII, ERNAKULAM
         THROUGH THE SUPERINTENDENT,
         CENTRAL PRISON & CORRECTIONAL HOME, POOJAPPURA,
         THIRUVANANTHAPURAM

         BY ADV DHANYA P ASHOKAN, STATE BRIEF


RESPONDENT/COMPLAINANT:

    1    THE STATE OF KERALA
         REPRESENTED BY THE PUBLIC PROSECUTOR,
         HIGH COURT OF KERALA PIN 682031

    2    THE CIRCLE INSPECTOR OF POLICE, KAYAMKULAM,
         ALAPPUZHA 690502.

         BY SENIOR PUBLIC PROSECUTOR SRI.ALEX M. THOMBRA

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
31.07.2023,  THE  COURT  ON   09.08.2023 DELIVERED THE
FOLLOWING:
 Crl.A. No.550 of 2021              -: 2 :-




             P.B.SURESH KUMAR & C.S.SUDHA, JJ.
              -----------------------------------------------
                 Criminal Appeal No.550 of 2021
              -----------------------------------------------
            Dated this the 9th day of August, 2023


                              JUDGMENT

P.B.Suresh Kumar, J.

The sole accused in S.C.No.488 of 2016 on the files

of the Additional Sessions Court-III, Mavelikkara is the appellant

in this appeal. The appellant stands convicted and sentenced

for the offence punishable under Section 302 of the Indian

Penal Code (IPC).

2. The deceased and the accused were labourers

engaged in cleaning work. Both of them did not have any place

to reside. They used to sleep in public places at night. The

accusation against the accused, as stated in the final report, is

that at about 10.15 p.m. on 12.10.2015, while the deceased

was sleeping on the cement bench of a waiting shed, on

account of previous enmity, the accused struck with a

casuarina rod on the face and legs of the deceased a number

of times and thereby caused his death. As regards the previous

enmity, the allegation in the final report is that on 03.10.2015,

the deceased struck on the leg of the accused using another

wooden rod.

3. On receiving information about the occurrence,

Kareelakulangara Police registered a crime, and after

investigation, filed final report against the accused alleging

commission of the offence punishable under Section 302 IPC.

On committal, the accused denied the charge framed against

him by the Court of Session and faced the trial. The evidence

let in by the prosecution thereupon consists of the oral

evidence of PWs 1 to 26 and Exts.P1 to P23 documents. MOs 1

to 36 are the material objects in the case. On culmination of

the evidence of the prosecution, the incriminating

circumstances brought out were put to the accused in terms of

the provision contained in Section 313 of the Code of Criminal

Procedure (the Code). The accused, however, denied the same

and maintained that he is innocent. In addition, he also stated

that he did not go to the place of occurrence on that day. As

the Court of Session did not find the case to be one fit for

acquittal under Section 232 of the Code, the accused was

called upon to enter on his defence. The accused did not

however avail the opportunity to adduce evidence in the case.

4. On an appraisal of the materials on record, the

Court of Session found the accused guilty of the offence

punishable under Section 302 IPC and sentenced him to

undergo imprisonment for life and to pay a fine of Rs.25,000/-.

Default sentence was also imposed on the accused. The

accused is aggrieved by the said decision of the Court of

Session and hence, this appeal.

5. Heard the learned counsel for the accused as

also the learned Public Prosecutor.

6. A perusal of the impugned judgment indicates

that it is placing reliance on the oral evidence let in by PWs 1

and 2 as also other circumstances brought out by the

prosecution that it was found that the accused is guilty of the

offence. The learned counsel for the accused, after taking us

through the oral evidence let in by PWs 1 and 2, vehemently

contended that the evidence let in by the said witnesses that

they saw the occurrence, is not believable. Similarly, it was also

contended by the learned counsel that the discovery of MO1

casuarina rod would not fall within the scope of Section 27 of

the Indian Evidence Act inasmuch as it is stated to have been

seized from a public place, namely, on the side of the National

Highway. It was also contended that if the evidence of PWs 1

and 2 are eschewed, the circumstances relied on by the

prosecution do not conclusively establish the guilt of the

accused, especially since the prosecution has miserably failed

in proving the motive, as has been alleged. It was also argued

by the learned counsel that even though the case put forward

by the prosecution is that the accused inflicted blows on the

face and legs of the deceased, who was sleeping in the waiting

shed, using a casuarina rod brought by him, the evidence let in

by the prosecution would itself show that the casuarina rod

allegedly used by the accused for inflicting injuries on the

deceased is one that was always carried by the deceased. If

that be so, according to the learned counsel, the occurrence is

not as alleged by the prosecution. The learned counsel also

contended that at any rate, even if the allegations are

accepted as true, a case of murder is not made out and the

accused can be convicted only under Section 304 IPC. The

learned counsel elaborated the said argument pointing out that

there were no injuries on the vital parts of the body of the

deceased; that the weapon used was only a wooden rod; that

injuries which led to the death are only in the nature of

lacerations and contusions and therefore, the injuries intended

cannot be treated as sufficient in the ordinary course of nature

to cause death.

7. Per contra, the learned Public Prosecutor

argued that there is absolutely no reason to disbelieve the

evidence tendered by PWs 1 and 2 that they saw the

occurrence. Even if it is found that the evidence let in by the

said witnesses cannot be believed, inasmuch as they deposed

as to the manner of the occurrence, their evidence coupled

with the scientific evidence let in by the prosecution that the

group of the blood stains contained on the shirt worn by the

accused when he was taken into custody by the police and the

casuarina rod discovered and seized based on the information

furnished by the accused, would certainly establish that it is

the accused who had inflicted injuries on the deceased and

caused his death. In reply to the argument advanced by the

learned counsel for the accused that the allegations proved do

not make out a case of murder, it was argued by the learned

Public Prosecutor that if several blows are inflicted on the face

of a person using a casuarina rod, it can certainly be inferred

that the intention of the assailant was to cause bodily injury

sufficient in the ordinary course of nature to cause death. In

short, the submission made by the learned Public Prosecutor is

that the decision of the Court of Session is in order, and no

interference is called for.

8. The points that arise for consideration are (1)

whether the conviction and sentence of the accused are

sustainable in law and (2) if not, the relief, if any, to which the

accused is entitled to.

9. The points: The first and foremost aspect to be

considered is whether the death is homicidal. PW15 is the

doctor who conducted the post-mortem examination of the

body of the deceased. Ext.P5 is the post-mortem certificate.

PW15 has stated in his deposition, the particulars of the ante-

mortem injuries. The cause of death, according to PW15, was

due to the blunt injuries sustained to the face and both lower

limbs, namely injury Nos. 1 to 3, 8 and 10. The said injuries as

stated by PW15 in his evidence read thus:

"1. Lacerated wound 2.5x1cm, involving whole thickness and with irregular margins, on middle of upper lip; splitting the lip into two halves. The surrounding tissue showed contusion in its whole thickness with crushing of edges. Underneath, the upper alveolar margin showed a fracture forming a freely mobile segment of size about 5x5x1.5cm. The mobility was towards the inner aspect of mouth cavity. The gum margin was in a partially separated state. The upper central incisors, right upper lateral incisor and canine were missing from the respective sockets (fresh loss). The maxilla (upper jaw bone) showed a transverse fracture involving both sides and through its middle with depression of fractured segment.

2. Crushed lacerated wound 7x2cm, involving the whole thickness and raising a flap like segment (7x2.5x1.3cm) towards right side and outwards, over the right outer half of lower lip. The adjacent soft-tissues showed crushing with contusion. The wound had irregular margins due to splitting of tissues.

3. Lacerated wound 3x1.8cm, involving the whole thickness, obliquely placed on left half of lower lip, 1.5cm outer to midline. The adjacent soft tissue showed effect of crushing and contusion.

Underneath, the alveolar margin showed fracture with inward compression of teeth sockets. The gum margin

was in a partially avulsed state and showed free mobility backwards. Underneath, the lower jaw bone (mandible) showed multiple fractures with fragmentation, which was seen split into two halves in the middle. The central incisors, canine on the left side and the 1st and 2nd premolars on left side of lower jaw were missing from sockets (fresh loss). The tongue showed a contusion (6x2.3cm, involving the whole thickness) in its front aspect. The oral cavity and the pharygo-laryngeal region contained fluid blood. The air passages also contained fluid blood mixed with mucus, down to its lower divisions. The bronchi and their further divisions were seen completely occluded by fluid blood mixed with mucous. Both lungs were heavy (Right- 692, Left- 632 grams) and showed multiple foci of aspirate blood.

xxx xxx xxx

8. Contusion 9x6cm, involving the whole thickness, obliquely placed on front and inner aspect of right thigh, just above the knee. Underneath the right thigh bone showed a fracture, with fragmentation and displacement of the fractured ends, just above the level of condyles (bulge of lower end).

xxx xxx xxx

10. Abraded contusion, 9x5cms, involving its whole thickness, obliquely placed on lower part of front of left thigh, just above the knee. Underneath the left thigh bone showed fracture with displacement and over-riding of fractured ends."

PW15 also deposed that the said injuries are possible with the

casuarina rod discovered and seized based on the information

furnished by the accused. In cross-examination, PW15 affirmed

that the injuries noted on the body of the deceased are

sufficient to cause death. He also clarified in cross-examination

that injury Nos.1 to 3, 8 and 10 would cause severe and

profuse blood loss as also collection of blood in the airways

causing airway obstruction. According to him, both the

mechanisms acted together to cause the death of the victim.

There is no serious challenge to the evidence let in by PW15. It

is thus established that the case on hand is a case of homicide.

10. The next question to be considered is whether

the prosecution has established beyond reasonable doubt that

it is the accused who caused the death of the deceased. The

evidence let in by the prosecution needs to be referred to, so

as to deal with this question.

11. PW1 is a person examined by the prosecution

as an eyewitness to the occurrence. PW1 deposed that at about

10 p.m. on the relevant day, he was sitting in a chair kept in

front of a restaurant named "SK Fried Chicken" situated right in

front of the Kareelakulangara Spinning Mill, on the opposite

side of the National Highway. He deposed that he saw the

accused striking the deceased on his body, especially on his

face with a casuarina rod which he identified as MO1. PW1

deposed that though he crossed the road immediately, by the

time he reached the scene, the accused had left in a cycle

towards south with the casuarina rod. PW1 deposed that he

chased the accused along with three of his friends in two bikes

for a distance of about 500 meters and intercepted the

accused. PW1 deposed that when they intercepted the

accused, he did not have the casuarina rod with him. PW1 also

identified MO4 shirt and MO5 dhoti worn by the accused at the

time when they intercepted him. PW1 deposed that there were

blood stains on MO4 shirt. But in cross-examination, PW1

deposed that the distance between the Spinning Mill and the

place where the accused was intercepted would be

approximately one kilometer and the distance between the

waiting shed and the place where PW1 was standing at the

time of occurrence would be approximately 50 meters. He also

deposed in cross-examination that the new National Highway

on the side of which the waiting shed exists is constructed at a

height of two and a half feet from the old National Highway;

that remnants of the old National Highway still exist and the

restaurant in front of which PW1 was sitting at the time of

occurrence is the restaurant situated 10 feet away from the old

National Highway.

12. PW2 is also a person examined by the

prosecution as an eye witness to the occurrence. PW2 is a lorry

goods driver by profession. He deposed that while he was

talking with PW1, he heard a sound from the waiting shed and

when he looked towards that direction, he saw the accused

moving away from the waiting shed and coming back again to

the waiting shed and striking on the deceased. PW2 deposed

that he immediately went near the waiting shed in his bike and

by the time, the accused had left the scene towards south. PW2

deposed that he along with others chased the accused and

intercepted him at Puthenroad junction. PW2 also deposed that

though the accused had a wooden rod with him while leaving

the scene, the same was not with him when he was

intercepted. PW2 deposed that after sometime, the police

came and took the accused into custody. PW2 also identified

MO1 casuarina rod as the wooden rod with which he inflicted

injuries on the deceased as also MO4 and MO5 as the clothes

worn by the accused at the time of occurrence.

13. PW3 who was riding a bike at about 10 p.m. on

the date of occurrence through the National Highway abutting

the Spinning Mill deposed that when he reached Puthenroad

junction, he saw a crowd on the road and when he proceeded

passing the crowd, he saw another crowd near the waiting shed

in front of the Spinning Mill and when he halted his bike, he

found that a person who had suffered injuries on his face, was

lying on the concrete bench of the waiting shed. He informed

the matter to the police and also called for an ambulance. He

also deposed that after sometime, an ambulance came and he

took the injured to Kayamkulam Taluk Hospital, where after

examining the injured, the doctor told him that the injured is no

more. PW4, the owner of the restaurant "SK Fried Chicken",

deposed that on the relevant day evening, while he was busy in

the shop, somebody came up to him and informed him that

there is some issue in the waiting shed opposite to the shop

and required him to inform the matter to the police. He

deposed that accordingly, he informed the matter to the police.

He clarified that he did not see the occurrence. PW5 deposed

that on 12.10.2015, at about 10.30 p.m. while he was engaged

in playing carroms at the reading room of a library, he saw the

accused being intercepted by a few persons who followed him

by their bikes. He deposed that he had acquaintance with the

accused as the accused used to visit the library to read the

newspaper. He deposed that the accused is a person who used

to sleep in the first floor of the Pullukulangara Service Co-

operative Bank and the persons who followed the accused

informed him that the accused struck the deceased with a

stick. He deposed that he accordingly proceeded to the waiting

shed and upon reaching, he saw the deceased being taken in

an ambulance. He deposed that by the time he returned to the

reading room, the police took the accused into custody. PW5

identified the clothes worn by the accused at the relevant time

as MO4 and MO5. PW6 also gave evidence more or less on the

same lines as the evidence tendered by PW5. PW7 deposed

that he had prior acquaintance with the accused and the

deceased as they were persons who used to sleep on the

veranda of the Co-operative Bank functioning on the first floor

of the building where he runs a tyre shop. PW7 also deposed

that a week before the occurrence, he found the accused with a

swelling on his leg and when he enquired about the same, he

told him that somebody hit him. PW9 is the security guard of

the Co-operative Bank. He deposed that he had prior

acquaintance with the accused and the deceased, as they used

to sleep on the veranda in the ground floor of the Bank

building. He deposed that on the night of 02.10.2015, when he

climbed down hearing a loud noise, he saw the accused crying

and when he enquired about the reason, the accused told him

that the deceased struck him with a wooden rod and ran away.

PW11 is a security guard of the Spinning Mill. He deposed that

on 12.10.2015, he was on day and night duty. He deposed that

the night lights on the compound wall of the Spinning Mill is

switched off only in the mornings. PW13 is the senior civil

police officer attached to Kareelakulangara Police Station. He

deposed that on 13.10.2015, the circle inspector of police

brought the accused to the police station, and MO4 and MO5

were the clothes worn by him at that time.

14. PW14 was the CMO at Taluk Hospital,

Kayamkulam during October, 2015. He deposed that on

12.10.2015 at about 10.40 p.m., a group of persons brought

dead an unknown person. He proved Ext.P4 wound certificate

issued by him in this regard. As noted, PW15 is the doctor who

conducted the post-mortem examination of the body of the

deceased. Apart from the facts relating to the post-mortem,

PW15 also deposed that on 14.10.2015, he examined the

accused as various injuries were noted on his body and issued

Ext.P6 medico-legal certificate. He deposed that on an

examination, he found a healing abrasion 5x1.3 cm obliquely

placed on the outer aspect of the lower part of the right leg

above the ankle joint. He deposed that the accused told him

that he had a quarrel with the deceased on 03.10.2015 at night

and that the deceased beat him with a wooden rod over his

right ankle region. He deposed that the accused also told him

that on 12.10.2015, he hit back the deceased with the very

same wooden rod.

            15.    PW21     was    the        Station   House     Officer   of

Kareelakulangara        police    station.      He      deposed    that     on

12.10.2015, at about 10.11 p.m., he received a telephone call

from mobile No.9847046491 regarding a scuffle in the waiting

shed of the Spinning Mill; that the injured person was taken to

the hospital and that the assailant was restrained at the scene.

He deposed that after recording the information in the general

diary, he went to the spot and took the accused into custody

and registered suo motu Ext.P10(a) case. Ext.P10 is the First

Information Statement.

16. PW22 was the Assistant Director of Serology

Department of Forensic Science Laboratory,

Thiruvananthapuram. PW22 issued Ext.P11 report after

examining the various objects that were forwarded for forensic

examination. Item No.8 in Ext.P11 report is the shirt worn by

the accused at the time when he was taken into custody which

is marked in the proceedings as MO4. Item No.10 is the blood

sample of the deceased and item No.18 is MO1 casuarina rod.

PW22 deposed that the blood group of the deceased is 'O'. She

also deposed that item Nos.8 and 18 contain human blood

belonging to group 'O'.

17. PW26 is the investigating officer in the case.

He deposed that MO4 blood stained shirt of the deceased was

seized by him in terms of the Ext.P2 seizure mahazar. PW26

also deposed that on the strength of Ext.P1(a) disclosure

statement of the accused, he discovered and seized MO1

casuarina rod from the weed on the north-west of the National

Highway at Puthenroad junction in terms of Ext.P1 seizure

mahazar. He deposed that MO1 was also found to be blood

stained at the time of seizure.

18. As noted, the main argument of the learned

counsel for the accused relates to the acceptability of the

evidence tendered by PWs 1 and 2. On a close scrutiny of the

said evidence, we find force in the argument. As noted, the

place of occurrence is the waiting shed in front of the Spinning

Mill on its side of the National Highway. The case of the

prosecution is that the deceased was sleeping on the cement

bench on the southern side of the waiting shed. The time of

occurrence is between 10 p.m. and 10.15 p.m. As noted, at the

time of occurrence, PW1 was sitting in a chair kept in front of

the restaurant "S.K. Fried Chicken". It has come out from the

evidence of PW1 itself that the said restaurant is situated on

the opposite side of the National Highway, of course, in front of

the Spinning Mill. It has also come out in evidence that

adjoining the National Highway on the opposite side of the

Spinning Mill, remnants of the old National Highway exist at a

lower level, approximately 2.5 feet below and it is

approximately 10 feet away from the old National Highway that

the restaurant referred to above is situated. PW1 admitted in

cross-examination that the distance between the waiting shed

and the restaurant would be approximately 50 meters. To a

specific question put to PW1 in cross-examination as to how he

could then see the occurrence, the answer given by PW1 was

"ശബ ക ട തരഞ ക ക യ യരന." Similarly, to a question as to

whether the restaurant in front of which he was sitting is right

in front of the waiting shed, his answer was "ക ശ തതക ടമ റയ ണ

ത ഡ." In cross-examination, PW1 also clarified that he is not

sure as to how many times the accused struck the deceased

using the casuarina rod. It was suggested to PW1 that it is not

possible for anyone to see what is happening inside the waiting

shed from a long distance, for want of light. PW1 denied the

suggestion and added that "വ ഹ ങളത തവളചമണ ക ." On an

evaluation of the evidence tendered by PW1, we are of the

view that it was not possible at all for PW1 to see what was

happening about 50 meters away, that too, inside a waiting

shed, even if there was light from the vehicles passing by. In

other words, it is not safe to rely on the evidence tendered by

PW1 that he saw the accused striking the deceased on his

body, especially on his face, that too, with a casuarina rod

which he identified as MO1 in court. We take this view also for

the reason that on a question put to PW1 in cross-examination,

he stated that the distance between the Spinning Mill and the

place where the accused was intercepted by him and others

was almost one kilometer. As noted, immediately on witnessing

the occurrence, PW1 crossed the road and proceeded to the

waiting shed. In other words, the evidence tendered by PW1 is

that by the time he reached 50 meters, the accused covered

almost one kilometer by cycle. PW2 also gave evidence more

or less on the same lines of the evidence given by PW1. PW2

was a person who was talking with PW1 at the time of

occurrence. If PW1 cannot be believed inasmuch as he deposed

that he witnessed the occurrence, PW2 also cannot be

believed. Be that as it may, in cross-examination, even though

PW2 deposed that it is on hearing the sound that they turned

their attention to the waiting shed, he replied evasively to all

the questions put to him in cross-examination which were

intended to elicit from him that it is not possible for him to see

the occurrence. The relevant portion of the deposition of PW2

reads thus:

                  "ഞങൾ waiting shed-ക          ക   യത ശബ ക ടക( ൾ ആണ.       ഒര തള
                  അ കന ശബമ യരന ഞ ൻ ക ടത. ഞങൾ            ന സ വ shed ഉ തമലള
                  അ      പറയ ൻ പറതല. Question repeated 10m ഉണ          .    S.K.

chicken തന direct opposite ആകണ waiting shed (Q) അതത (A) പതയ N.H. ഏ ക;ശ 40 അ വ<ത വരതകല (Q) അറയല (A). പതയ N.H. ഉ പഴയ N.H. ഉ തമൽ 2½ അ ത ഴ വവതവ സ ഇകല (Q) വ യ വവതവ സ ഇല. ഞങൾ ൽകനത ണ ൻ പറ (A). പഴയ N.H. ൽ ന 10 അ ദരതൽ അതല ങൾ നരനത (Q) അറയല (A) ങൾ ന ത ന waiting shed തന ഉളത രവങൾ ണ ൻ പറ ല എന പറയന (Q) ശരയല (A) വ ഹ ങൾ കപ കകമ ൾ ങൾ എങത sound ക ട (Q). ത ർചയ യ വ ഹ ങൾ കപ യരനല (A)"

The answers given by PW2 to the questions put to him in cross-

examination as referred to above also compel us to come to

the conclusion that PW2 is a person who did not see the

occurrence. That does not mean that they were not present in

the locality at the time of occurrence. The evidence given by

them would indicate that on hearing the noise from the waiting

shed, they proceeded to the waiting shed and having found the

deceased in an injured state, they chased and intercepted the

accused. The fact that the accused was intercepted on the

relevant day immediately after the occurrence at Puthenroad

junction which is almost a kilometer away from the place of

occurrence, is established from the evidence of PWs 5 and 6

also. The fact that the matter was informed to the police in the

meanwhile and that the police came to the spot and took the

accused into custody is also established from the evidence of

PWs 5 and 6. There is absolutely no reason to disbelieve the

said evidence of PWs 5 and 6.

19. PWs 7 and 9 are persons examined by the

prosecution to prove the motive, namely that the deceased had

struck on the leg of the accused on 03.10.2015 using a

casuarina rod. Among them, PW7 is a person who is running a

tyre shop on the ground floor of a two storeyed building at

Puthenroad Junction where the Co-operative Bank is

functioning and PW9 is the security guard of the Bank

functioning on the first floor of the building. The version of PW7

is that the accused and the deceased normally used to sleep in

the veranda of the Co-operative Bank on the first floor of the

building, whereas the version of PW9 is that the accused and

the deceased used to sleep in the veranda of the ground floor

of the building. That apart, the evidence tendered by PW7 in

this regard is only that a week before the occurrence, he found

the accused with a swelling on his leg and when he enquired

about the reason, the accused told him that somebody hit him.

From the evidence tendered by PW7, it cannot be inferred that

it is the deceased who had struck on the leg of the accused,

that too with a casuarina rod. Similarly, the evidence tendered

by PW9 in this regard is only that on the night of 02.10.2015,

when he climbed down the stairs hearing a loud voice, he

found the accused crying, and when he enquired about the

reason, the accused told him that the deceased struck him with

a wooden rod and ran away. Similarly, PW9 has not seen the

deceased striking on the leg of the accused with the casuarina

rod. What is deposed by him is only that the accused told him

that the deceased hit him on his leg and ran away. Even PW9

does not refer to the wooden rod as casuarina rod. Yet another

material relied on by the prosecution to prove the motive of the

accused is Ext.P19 First Information Report in Crime No.1458 of

2015 and Ext.P19(a) final report in the said case. The said

crime is one registered by the police against the victim after his

death based on the statement given by the accused to PW15,

the doctor who examined him when he was brought for medical

examination, having found an injury on his leg at the time

when he was taken into custody. The accusation against the

deceased in the said case is that on 03.10.2015, at about 3.30

a.m., the deceased struck on the ankle of the accused with a

casuarina rod. The aforesaid, according to us, is not sufficient

to prove the motive attributed to the accused. Even assuming

that there was an occurrence as alleged, according to us, the

same is not sufficient to develop the motive of the accused to

cause the death of the deceased.

20. As noted, the crime referred to in the

preceding paragraph is one registered by the police against the

victim after his death based on the statement given by the

accused to PW15. PW15 also gave evidence that the accused

told him that there was a quarrel with the deceased on

03.10.2015 at night and that the deceased beat him with a

wooden rod over his right ankle region. PW15 also gave

evidence that the accused told him that on 12.10.2015, the

accused hit back the deceased with the very same wooden rod.

It appears that it is from the statement given by the accused to

the police in connection with Ext.P19 crime, that the police

came to the conclusion that the weapon used by the accused is

a casuarina rod. True, the evidence of PW15 aforesaid is only as

regards the statement made to him by the accused while he

was being examined. Nevertheless, if the police came to the

conclusion that the weapon used by the accused is a casuarina

rod, then naturally, it could be inferred that MO1 is a weapon

that was always carried by the deceased.

21. Let us now deal with the remaining evidence.

The evidence of PW21 reveals that what was informed to him

over telephone was that there was a scuffle in the waiting shed

of the Spinning Mill. The evidence tendered by PW26 would

reveal that MO4 blood stained shirt of the deceased was seized

by him on his arrest in terms of Ext.P2 seizure mahazar. The

evidence tendered by PW26 would also reveal that on the

strength of Ext.P1(a) disclosure statement of the accused, he

discovered and seized MO1 casuarina rod from the weed on the

north-west of the National Highway at Puthenroad junction in

terms of Ext.P1 seizure mahazar. He deposed that MO1 was

found to be blood stained at the time of seizure. The evidence

tendered by PW22 would reveal that the blood stains found in

MO4 shirt and MO1 casuarina rod is found to be of the Group

'O' which is the blood group of the deceased. There is no

explanation from the accused as to how the shirt which he was

wearing and the casuarina rod which was discovered based on

the information given by him contained stains of blood

belonging to Group 'O', especially when it was established by

the evidence of PW15 and Ext.P6 medico-legal certificate

issued by PW15 that the blood group of the accused is 'A Rh-

Positive'.

22. Of course, as noted, one of the arguments

advanced by the learned counsel for the accused is that the

discovery and seizure of MO1 casuarina rod would not fall

within the scope of Section 27 of Indian Evidence Act, as it was

claimed to have been discovered and seized from the side of a

road which is a public place. It is now trite that merely for the

reason that a material object is discovered and seized from a

public place based on the information furnished by the

accused, the information that distinctly relates to the fact

discovered would not become inadmissible. Even if an object is

hidden or concealed in a public place, according to us, the

information that distinctly relates to the fact discovered is

admissible, if the place where the object is hidden or concealed

is a place, the particulars of which are known only to the

accused. In the case on hand, Ext.P1 mahazar would indicate

that the disclosure was that the accused kept the casuarina rod

at a place known to him near the reading room. The mahazar

would also indicate that on the accused being taken near the

reading room, he took MO1 casuarina rod from the weed on the

side of the road. The relevant recitals in the mahazar read thus:

" ര< കളങര PS കK 1456/15 u/s 302 IPC പ രമള ക സത പതയത കറസമതതമ ഴയൽ റ ഴ ഞ ൻ വ യ ശ യടത വചടണ എതന ത ണകപ യ ൽ റ ഴ വച സ വ റ ഴയ ഞ ൻ ണച തര എന പത സSകമധയ പറഞ കറസമത തമ ഴയകVൽ പത യച യച വഴകയ പതയതമ ത സഞരച ത ല - ആ പഴ ക;ശ<യപ തയലള പതൻകറ ഡ ജ ഗ ൽ വ കവശതമത ക;ശ<യപ തയത ഴകവശ സതത[യന മർ കരഖത(ടതയടല ത ക ൺK<റ ഇ ക കപ സതന ചവടൽ ന 3 m 10 cm വ ക പ ഞ റ മ റ ക;ശ<യപ തയത ഴകഭ ഗത യ വളർന ൽകന പ തഴ ൾ വ ഞ മ റ ആയതനളൽ കന റ ഴ പത ചണ ണച തര യ ൽ ആയത ബനവസത ടകനതക യ കള കപ <സ ഇൻസ തപകർ K.S.ഉ;യഭ ന

13.10.2015 കവ 6.20 മണ സ ക ളത യ മറ സ ധവതൽ തയ റ കന റ വറ മഹസർ."

The recitals aforesaid in the mahazar would indicate that the

material object was concealed by the accused in a place

exclusively known to him and it could not have been

discovered, but for the disclosure made by the accused to the

police. The argument advanced by the learned counsel for the

accused in this regard, in the circumstances, is only to be

rejected.

23. From the discussion aforesaid, we are of the

view that the prosecution has established the case beyond

reasonable doubt that there was a scuffle between the

deceased and the accused in the waiting shed in front of the

Spinning Mill and that in the course of the scuffle, the accused

struck the deceased using MO1 casuarina rod on his face and

also on his legs and thereby caused his death. It is doubtful as

to whether the casuarina rod with which the accused struck the

deceased is one which was carried by him to the place of

occurrence.

24. The next question is whether the proved facts

would disclose the offence of murder punishable under Section

302 IPC. As noted, one of the arguments advanced by the

learned counsel for the accused is that the proved facts, at the

most, would amount only to culpable homicide not amounting

to murder, an offence punishable under Section 304 IPC. We

have, in Criminal Appeal No.467 of 2017, explained the

difference between the two offences and indicated the

procedure to be followed for deciding the question whether in a

given case, the offence is murder, or culpable homicide not

amounting to murder. It was held by us in the said case that

whenever a court is confronted with the question whether the

offence is 'murder' or 'culpable homicide not amounting to

murder', it would be convenient for the court to approach the

problem in three stages. It was held that the question to be

considered at the first stage would be whether the accused has

done an act, by doing which he has caused the death of

another. Proof of a causal connection between the act of the

accused and the death leads to the second stage for

considering whether that act of the accused amounts to

'culpable homicide' as defined in Section 299. It was held that

if the answer to this question is prima facie found in the

affirmative, the stage for considering the operation of Section

300 IPC, is reached and it is at this stage, the court should

determine whether the facts proved by the prosecution bring

the case within the ambit of any of the four clauses of the

definition of 'murder' contained in Section 300. If the answer to

this question is in the negative, the offence would be 'culpable

homicide not amounting to murder', punishable under the first

or the second part of Section 304, depending, respectively, on

whether the second or the third clause of Section 299 is

applicable.

25. With the aforesaid principles in mind, let us

now consider the case on hand. We have already found that the

prosecution has established that there was a scuffle between

the deceased and the accused in the waiting shed in front of

the Spinning Mill and that in the course of the scuffle, the

accused struck the deceased using MO1 casuarina rod on his

face and also on his legs and thereby caused his death. In

other words, we are now at the stage of deciding the question

whether the act of the accused amounts to culpable homicide

as defined under Section 299 IPC. The accused has no case

that the proved facts would not amount to culpable homicide.

The case of the accused is only that the proved facts would not

amount to murder, but only culpable homicide not amounting

to murder. This takes us to Section 300 IPC. The relevant

portion of Section 300 reads thus:

"300. Murder

Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--

Secondly --If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or Thirdly --If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly --If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk or causing death or such injury as aforesaid.

xxxx xxxxx

The evidence does not indicate that the accused possessed

knowledge as regards the state of health of the deceased so

that the harm caused by him is likely to be fatal. The evidence

also does not indicate that the accused possessed knowledge

that the act is so imminently dangerous that it must, in all

probability, cause death or some bodily injuries as is likely to

cause death, and that the same has been done without any

excuse for incurring the risk of causing death or such injury as

is mentioned above. On the other hand, the proved facts would

certainly establish that the accused intended to cause bodily

injury to the deceased. If that be so, the next question is

whether the bodily injury intended by the accused is sufficient,

in the ordinary course of nature, to cause death.

26. It was explained by us in Criminal Appeal

No.467 of 2017 that the distinction lies between a bodily injury

intended likely to cause death and a bodily injury sufficient in

the ordinary course of nature to cause death. In other words, if

it is found that the bodily injury intended is only likely to cause

death, it is culpable homicide not amounting to murder and if it

is found that the bodily injury intended is sufficient in the

ordinary course of nature to cause death, it is murder. It was

also explained by us in the said case that the difference is one

of the degree of probability of death resulting from the

intended bodily injury. The relevant passage in the judgment

reads thus:

"In Clause (3) of S.300, instead of the words 'likely to cause death' occurring in the corresponding clause (b) of S.299, the words "sufficient in the ordinary course of nature" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of S.299 and clause (3) of S.300 is one of degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word "likely" in clause

(b) of S.299 conveys the sense of 'probable' as distinguished from a mere possibility. The words 'bodily injury.... sufficient in the ordinary course of nature to cause death' mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature."

In the light of the above decision, what remains to be seen is

whether the injuries of the type caused by the accused is

sufficient in the ordinary course of nature to cause death. It

was clarified by the Apex Court in Virsa Singh v. State of

Punjab, AIR 1958 SC 465 that this part of the enquiry is purely

objective and inferential and has nothing to do with the

intention of the offender. It is trite that if the distinction

between murder and culpable homicide not amounting to

murder is overlooked, it would result in miscarriage of justice.

We have, in the circumstances, closely examined the injuries.

As rightly pointed out by the learned counsel for the accused,

there were no injuries on the vital parts of the body of the