Kerala High Court
Shanilkumar @ Kannan vs State Of Kerala on 10 October, 2024
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
THURSDAY, THE 10TH DAY OF OCTOBER 2024 / 18TH ASWINA, 1946
CRL.A NO. 425 OF 2021
AGAINST THE JUDGMENT DATED 06.10.2017 IN SC NO.380
OF 2011 OF THE DISTRICT COURT & SESSIONS COURT, THRISSUR
APPELLANT/ACCUSED:
SHANILKUMAR @ KANNAN,
AGED 36 YEARS, S/O. MADHAVAN, APPANATH VEEDU,
KARUVANTHALA, VENKITHANGU, THRISSUR DISTRICT,
PIN 680 510
BY ADVS.
C.A.CHACKO
C.M.CHARISMA
ALEKH THOMAS
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM 682 031.
SRI.E.C.BINEESH PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
30.09.2024, THE COURT ON 10.10.2024 DELIVERED THE
FOLLOWING:
Crl.Appeal No.425 of 2021
-: 2 :-
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P.B.SURESH KUMAR & C.PRATHEEP KUMAR, JJ.
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Crl.Appeal No.425 of 2021
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Dated this the 10th day of October, 2024
JUDGMENT
P.B.Suresh Kumar, J.
The appellant is the sole accused in S.C.No.380 of
2011 on the files of the Court of the Sessions Judge, Thrissur.
He stands convicted and sentenced for the offence punishable
under Section 302 of the Indian Penal Code (IPC).
2. The victim is one Krishnan. He is a distant
relative of the appellant. Both of them were coconut climbers
by profession. The accusation in the case is that at about 5.45
p.m. on 05.02.2009, on account of the enmity the appellant
had against the victim, for allegedly calling him as 'son of
insane person', with a view to cause the death of the victim,
the appellant took the victim to a toddy shop, gave him toddy
and thereupon, while they were walking back from the toddy
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shop, the appellant took out a chopper which was hidden by
him near the place of occurrence and inflicted a cut injury on
the right shoulder of the victim and also on his left leg behind
the knee and thereby caused his death.
3. On the appellant being committed to trial, the
Court of Session framed charge against him under Section 302
IPC. The appellant pleaded not guilty. Thereupon, the
prosecution let in evidence on its side. When the incriminating
evidence was put to the appellant, he denied the same.
Thereafter, on a consideration of the materials on record, the
Court of Session found the appellant guilty of the offence
alleged against him, convicted and sentenced him to
imprisonment for life and to pay a fine of Rs.2,00,000/-. The
appellant is aggrieved by his conviction and sentence.
4. The point that falls for consideration is
whether the conviction of the appellant and the sentence
imposed on him are sustainable in law.
5. Heard the learned counsel for the appellant as
also the learned Public Prosecutor.
6. The learned counsel for the appellant did not
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challenge seriously the finding rendered by the Court of
Session that it was the appellant who caused the death of the
victim. On the other hand, serious arguments were addressed
by the the learned counsel for the appellant against the finding
rendered by the Court of Session that the proved facts in the
case would make out a case of murder punishable under
Section 302 IPC.
7. Even though the learned counsel for the
appellant did not seriously challenge the finding rendered by
the Court of Session that it was the appellant who caused the
death of the victim, it is necessary to refer to the relevant
evidence in the case in order to consider the contention raised
by the learned counsel for the appellant that the proved facts
do not make out a case of murder.
8. PW1 is none other than the son of the victim.
He is an eyewitness to the occurrence. It was based on the
information furnished by PW1 that the case was registered. It
was deposed by PW1 that while he was coming back from work
on the relevant day at about 5.30 p.m., he saw the victim and
the appellant coming together and talking with each other and
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that the appellant was then holding a chopper which is usually
used by coconut climbers. According to PW1, the victim was
walking a hand's length ahead of the appellant and when PW1
reached near the house of one Abheesh, he saw the appellant,
all of a sudden, hacking on the right shoulder of the victim. It
was deposed by PW1 that when the victim turned towards the
appellant, the appellant hacked again on the left leg behind
the knee of the victim. It was deposed by PW1 that the victim
was bleeding profusely on account of the attack and he fell
down on his chest. It was deposed by PW1 that the appellant
did not go away from the scene after the occurrence. Instead,
the appellant was standing near the victim with the chopper
and chased away those who approached him, threatening
them with the chopper. It was deposed by PW1 that even
though some of his relatives approached the appellant and
pleaded to take the victim to the hospital, the appellant did not
allow the same. It was deposed by PW1 that when the mother
of the victim approached the appellant in the meanwhile, he
pushed her away and threatened her as well. According to
PW1, the appellant stood at the scene for about half an hour
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and by that time, the police party came to the scene, snatched
the chopper from him and apprehended him. It was the version
of PW1 that when the appellant was apprehended by the police
party, the people who were assembled at the scene took the
victim to the hospital in an ambulance. In the evidence
tendered by PW1, he stated that the victim used to tease the
appellant by calling him 'son of insane person' and it is on
account of the said reason that the appellant assaulted the
victim. PW1 affirmed in his evidence that it was he who lodged
the First Information Statement and identified MO1 as the
chopper that was used by the appellant to hack the victim.
9. PW2 is a relative of the appellant as also the
victim. PW2 deposed that he was present near the scene at the
time of occurrence and when he turned towards the scene on
hearing the screaming of PW1, he saw the victim falling down
and the appellant standing near him with a chopper. It was
deposed by PW2 that even though he pleaded the appellant to
take the victim to the hospital, the appellant did not allow the
same, uttering that he will leave the scene only after ensuring
the death of the victim as he has been teasing the appellant
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for quite a long time by calling him 'son of insane person'. It
was deposed by PW2 that when the victim made some noise in
the meanwhile, the appellant placed his leg over the head of
the victim. PW2 also deposed that the appellant was standing
near the victim for about half an hour till the police party came
to the scene. Likewise, PW2 also identified MO1 as the chopper
used by the appellant to hack the victim.
10. PW3 is another relative of the appellant as also
the victim who came to the scene after the occurrence. PW3
also gave evidence more or less on similar lines as the
evidence tendered by PW2 as regards the events that took
place after his arrival at the scene. PW4 is the neighbour of
both the appellant and the victim. PW4 also gave evidence
more or less on similar lines as the evidence tendered by PW3.
PW5 is a relative of both the appellant and the victim. By the
time PW5 arrived at the scene, the police party had taken the
appellant from the scene. According to PW5, he accompanied
the victim to the hospital. It was deposed by PW5 that on
reaching the hospital, after examining the victim, the doctor
said that the victim was brought dead.
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11. PW7 was an employee in the toddy shop in the
locality of the residence of the appellant as also the victim. He
deposed that on the date of the occurrence, by about 5.00
p.m., the appellant brought the victim to the toddy shop and
instructed PW7 to give the victim as much as toddy as he
wanted and accordingly, PW7 gave the victim two litres of
toddy. It was also deposed by PW7 that the appellant was
carrying a bottle of liquor with him then and when he
attempted to consume the same in the toddy shop, PW7
objected to the said conduct. It was deposed by PW7 that after
sometime, both of them left the shop.
12. PW10 was the doctor who examined the victim
at Amala Medical College Hospital, Thrissur. PW10 deposed
that it was he who examined the victim who was brought dead
on 05.02.2009. PW14 was the doctor who conducted the
postmortem examination on the body of the deceased and
issued Ext.P5 postmortem certificate. The ante-mortem injuries
found by PW14 at the time of postmortem examination on the
body of the deceased as deposed by him were the following:
"1. Incised wound of 8 cm long across right shoulder obliquely
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placed, front inner end 5cm outer to root of neck with
contused margins. The depth of the wound is 1cm
(8x1.5x1cm). The wound was having a tailing for 2 cm from
its back end.
2. Incised wound 10x4x5cm on back of left knee, left upper
end 36cm above lateral malleolus. The wound cut both heads
of gastrocnemeus muscle and upper ends of both tibia and
fibula for a depth of 5cm. Wound also cut the poplitial artery
completely at its bifurcation and also other blood vessels and
nerves. The wound was directed forwards and slightly
downwards."
According to PW14, the victim died due to injury 2, the incised
wound sustained to the back of the left knee. It was deposed
by PW14 that injury 2 is sufficient in the ordinary course of
nature to cause death. Although it was deposed by PW14 that
injury 1 was on the fatal part of the body near the neck region,
it was clarified by PW14 that injury 1 was superficial in nature
and has not contributed to the cause of death. It was also
deposed by PW14 that MO1 chopper could produce the injuries
sustained by the victim. In cross-examination, it was clarified
by PW14 that injury 1 was not deep. To a suggestion put to
PW14 by the counsel for the appellant that injuries 1 and 2
were not on the vital parts of the body, the answer given by
PW14 was that all parts of human body contain vital structures,
injury to which may result in death. The suggestion and the
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answer given by PW14 read thus:
"Both injury No.1 and 2 are not on vital part? All part of human
body contains vital structures injury to which can produce death"
13. PW12 was a Police Constable attached to
Pavaratty Police Station during the relevant time. PW12
deposed that on the relevant day, by about 5.45 p.m.,
someone called the station over telephone about the
occurrence and he along with the Sub Inspector of Police
proceeded to the scene and when they reached there, he saw
a person lying on the ground with injuries. It was deposed by
PW12 that the appellant was standing then near that person
with a chopper and he was brandishing the same to prevent
others from approaching him. It was deposed by PW12 that he
went behind the appellant and by that time, the Sub Inspector
of Police who accompanied him snatched away from the
appellant, the chopper carried by him. PW16 was the Sub
Inspector of Police who accompanied PW12 to the scene and
he also gave evidence on similar lines as the evidence
tendered by PW12. PW17 was the investigating officer. He
deposed among others that after taking over the investigation
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in the case, he recorded the arrest of the appellant at the
police station and seized MO1 chopper as per Ext.P6 mahazar.
14. It is based on the evidence discussed above
that the Court of Session came to the conclusion that it was
the appellant who caused the death of the victim. Having
regard to the evidence tendered by PW1, the son of the victim
and the evidence tendered by the relatives of the appellant as
also the victim who reached the scene at the time of
occurrence and immediately thereupon, we do not find any
infirmity in the finding rendered by the Court of Session that it
was the appellant who caused the death of the victim.
15. Let us now deal with the serious contention
raised by the learned counsel for the appellant that the proved
facts do not make out a case of murder. According to the
learned counsel, from the evidence tendered by PW1, the
eyewitness, it cannot be inferred that the appellant intended to
cause the death of the victim. It was pointed out that if as a
matter of fact, the appellant had intended to cause the death
of the victim, he need not have to inflict an injury on the leg of
the victim and inasmuch as he was carrying a formidable
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weapon, he could have simply given a hack on a vital part of
the body of the victim and from the fact that the appellant did
not choose to inflict any injury on the vital part of the body, it
will have to be inferred that he never intended to cause the
death of the victim. It was also argued by the learned counsel
that the fatal injury being one inflicted on the left leg behind
the knee, it cannot be said that the same is one which is
sufficient in the ordinary course of nature to cause death.
According to the learned counsel, the proved facts would only
make out, at the most, a case of grievous hurt punishable
under Section 326 IPC inasmuch as the appellant has, by his
conduct endangered a human life.
16. Per contra, the learned Public Prosecutor
argued that the facts proved in the case would indicate beyond
reasonable doubt that it is a case where the appellant intended
to cause the death of the victim. To bring home the point, the
learned Public Prosecutor brought to our notice the conduct of
the appellant in not allowing anyone to take the victim to the
hospital for about half an hour after the occurrence. The
learned Public Prosecutor has also brought to our notice the
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evidence tendered by PW2 that even though PW2 pleaded, the
appellant did not permit him to take the victim to the hospital
by uttering that he will leave the scene only after ensuring the
death of the victim.
17. Section 299 IPC defines "culpable homicide".
The said Section without its illustrations and explanations
reads thus:
"Whoever causes death by doing an act with the intention of
causing death, or with the intention of causing such bodily
injury as is likely to cause death, or with the knowledge that
he is likely by such act to cause death, commits the offence of
culpable homicide."
Section 300 IPC defines "murder". The said Section without its
illustrations and exceptions reads thus:
"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."
In the light of the aforesaid penal provisions, the first and
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foremost question to be considered is what injury was intended
to be caused by the appellant to the victim. As noted, the case
of the prosecution is that the appellant hacked on the right
shoulder of the victim as also on his left leg behind the knee.
No doubt, the weapon used by the appellant, namely MO1
chopper to inflict injuries on the victim, is a formidable one.
The relevant portion of the description of the said weapon as
contained in Ext.P6 seizure mahazar reads thus:
"വളഞ വ കതക, പ ചളക ട ട കടയ മരതക ഉരണ പ ട ഭ ഗതന സമ ർ 7 3/4
ക .മ റർ ന ളവ#, പ ടടയ ട ട$ർനള വളഞള അല ക ഉരണ ഭ ഗതന സമ ർ 22
ക .മ റർ ന ളവ#, പരന അ ടതയ വളഞള അല ഭ ഗതന സമ ർ 32 ക .മ റർ ന ളവ#,
അല ക പരന ഭ ഗതക മദ-ഭ ഗതന സമ ർ 4 ക .മ റർ വ ത യ#, അല ക പരന
ഭ ഗതന ഒര തല മർചയളത#......... "
Even though PW1 gave evidence in support of the case of the
prosecution that the appellant hacked on the right shoulder of
the victim with MO1 chopper, a close reading of the evidence
tendered by PW1 in this regard in the background of the First
Information Statement given by him creates a doubt in our
minds as to the correctness of the said part of the deposition of
PW1. The reason for the doubt is that if one hacks another with
a weapon in the nature of MO1 chopper, it is sure to produce a
deep cut injury on the body. But, injury 1 allegedly caused by
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the appellant on the right shoulder of the victim is only a
superficial one. Be that as it may, what was stated by PW1 in
the First Information Statement is that even though the
appellant hacked the victim on his back, the hack did not
correctly fall on the body. The relevant part of the First
Information Statement reads thus:
"കപക ന ണൻ വ കത ക ണ അചക പറ ൽ കവ . കവ നന യ ക ണ ല കപക ന
കന ഞ ല ൽ വ ണ# കവ "
In other words, PW1 had no case in the First Information
Statement that the appellant hacked on the right shoulder of
the victim. PW1 however made an improvement and deposed
that the appellant hacked on the right shoulder of the victim.
The relevant evidence reads thus:
"പടക വ കത ക ണ അചക വലത shoulder ൽ കവട യ യരന."
In other words, the said evidence of PW1 is not consistent with
the First Information Statement. There is no other material also
before the court to infer as to how then injury 1 was sustained
by the victim on his right shoulder. In the absence of any
material as to how the victim sustained injury 1 on his right
shoulder, it may not be safe to hold that the appellant
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intended to cause an injury on the right shoulder of the victim
with MO1 chopper. We take this view also for the reason that
had the appellant intended to cause an injury with MO1
chopper on the right shoulder of the victim or on any other
vital part of his body, there was absolutely no impediment for
him to cause such an injury when the victim fell down. There is
no satisfactory evidence to hold that the appellant inflicted any
injury other than the injury he inflicted on the left leg behind
the knee of the victim. If the appellant intended to cause the
death of the victim, there was no difficulty for him to inflict an
injury with the weapon carried by him on any of the vital parts
of the body of the victim when he fell down, especially when
the appellant was waiting there for almost half an hour after
the occurrence. In the above background, we are of the view
that we may not be justified in holding that the appellant
intended to cause the death of the victim by his act. At the
same time, according to us, the proved facts would certainly
show that the appellant intended to cause a bodily injury on
the left leg of the victim. Having found that the appellant
intended to cause an injury on the left leg of the victim, what is
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to be seen next is as to whether the injury inflicted is one as is
likely to cause death. Having regard to the weapon used by the
appellant to inflict the injury, it cannot be contended that such
an injury would never cause death, especially since the same
was one inflicted with great force resulting in not only the
cutting of both heads of gastrocnemeus muscles and upper
ends of both tibia and fibula for a depth of 5 cm as also
poplitial artery completely as revealed from the evidence
tendered by PW14. In other words, the proved facts would
certainly make out a case of culpable homicide punishable
under Section 304 IPC. The next question is whether the
culpable homicide found to have been committed by the
appellant would amount to murder punishable under Section
302 IPC. It is trite that an act which would fall under the second
limb of Section 299 IPC would amount to murder only if it falls
within the head 'Thirdly' in Section 300 IPC, if the case does
not fall within the scope of any of the exceptions to Section
300 IPC. The appellant has no case that his case would fall
under any of the exceptions to Section 300 IPC. The question
next be seen is whether the act of the appellant would fall
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under the head 'Thirdly' in Section 300 IPC. An act would fall
within the scope of the head 'Thirdly' in Section 300 only if the
act is done with the intention of causing bodily injury and the
bodily injury intended to be inflicted is sufficient in the ordinary
course of nature to cause death. It is well settled that the
distinction between "a bodily injury likely to cause death" and
"the bodily injury sufficient in the ordinary course of nature to
cause death" is fine, but real and if overlooked, may result in
miscarriage of justice. The difference lies in the 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 gravest,
medium or the lowest degree. The words "bodily injury
intended to be inflicted is 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. We do not think that the act committed by
the appellant is an act which, in all probability, would result in
the death of the person. If that be so, the case would not fall
within the scope of Section 300 IPC and would fall only within
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the scope of Section 299 IPC. If that be so, the accused is liable
to be convicted only under Part I of Section 304 IPC. Even if it
is assumed that the act committed by the appellant is not one
as is likely to cause death and that the act committed by the
appellant would only amount to the offence punishable under
Section 326 IPC, inasmuch as the hurt caused by the appellant
to the victim endangered the life of the victim, we do not think
that the same would bring any benefit to the appellant
inasmuch as both Part I of Section 304 IPC and Section 326 IPC
provide for imprisonment for life in appropriate cases.
18. Having regard to the peculiar facts of this
case, according to us, the proportionate sentence to be
awarded to the appellant for the offence punishable under
Part I of Section 304 IPC is rigorous imprisonment for a period
of ten years and to pay a fine of Rs.10,000/-.
In the result, the appeal is allowed in part, the
conviction of the appellant under Section 302 IPC is altered to
Part I of Section 304 IPC and he is sentenced to undergo
rigorous imprisonment for a period of ten years and to pay a
fine of Rs.10,000/- and in default of payment of fine to undergo
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simple imprisonment for three months.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
C.PRATHEEP KUMAR, JUDGE.
ds.
