Kerala High Court
Baiju @ Porinchu Baiju vs State Of Kerala on 28 January, 2025
Crl. Appeal No. 930 of 2019 1 2025:KER:5981
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
TH
TUESDAY, THE 28
DAY OF JANUARY 2025 / 8TH MAGHA,
1946
CRL.A NO. 930 OF 2019
AGAINST THE JUDGMENT DATED 18.08.2018 IN SC NO.558 OF 2010
OF DISTRICT COURT & SESSIONS COURT, THRISSUR
APPELLANT/ACCUSED:
AIJU @ PORINCHU BAIJU
B
AGED 48 YEARS
S/O. KUNJU, KOLLAMPARAMBIL HOUSE, EDAPPILLY VILLAGE,
VENNALA DESOM, ERNAKULAM DISTRICT - 682 028.
Y ADVS.
B
Sajitha
ANUROOPA JAYADEVAN(K/495/1995)
RESPONDENT/COMPLAINANT:
TATE OF KERALA
S
(REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE,
Crl. Appeal No. 930 of 2019 2 2025:KER:5981
ALA POLICE STATION - CR. NO. 189/2018 OF MALA POLICE
M
STATION) REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM - 682 031.
Y ADVS.
B
SMT.T.V. NEEMA, SENIOR PUBLIC PROSECUTOR
THIS
CRIMINAL
APPEAL
HAVING
COME
UP
FOR
FINAL
HEARING
ON
28.01.2025,
THE
COURT
ON
THE
SAME
DAY
DELIVERED
THE
FOLLOWING:
Crl. Appeal No. 930 of 2019 3 2025:KER:5981
"CR"
J U D G M E N T
Raja Vijayaraghavan, J.
Thepresentappealisdirectedagainstthejudgmentdated18.8.2008
in S.C.No.558 of 2010 passed by the Court of Sessions, Thrissur, finding the
appellant guilty for the offences punishable under Sections324,326and302of
the IPC and sentencing him to undergo -
a) imprisonmentforlifeandtopayafineofRs.2lakhsfortheoffence
under Section 302 of the IPC;
b) imprisonment for sixyearsandtopayafineofRs.50000/-forthe
offence under Section 326 of the IPC;
c) imprisonmentforthreemonthsfortheoffenceunderSection324of
the IPC.
2. Beforedelvingintothecontentionsraisedinthisappeal,itwouldbe
apposite to first set out the sequence of events, asestablishedbytheevidence
presented through the prosecution witnesses.
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a. The accused (Baiju), the deceased (Vinu), and PW2 (Rajan) werefriends
and associates. Divya (PW4) is the wife of thedeceased.On14.04.2008,
'Vishu' festival was celebrated across Kerala. Inthemorning,whileDivya,
along with the deceased and their son, wasontheirwaytothehouseof
Bindu,hersister,theyencounteredtheaccused.Vinustoppedthebikeand
informed the accused that they could meet later. The accused, the
deceased,andPW2(Rajan)wenttothemarketatVarapuzha,wherethey
consumed liquor before eventually parting ways for the time being.
b. PW2 was then asked by the deceased to buy alcohol and he bought the
same and went to the house of the deceased. He sat there and drank
alcohol alone for a coupleofhours.Atapproximately2:30p.m.,Vinuand
his wife returned home. Thereafter, the accused, the deceased,andPW2
proceeded to the house of PW1 (Thankamani), the mother-in-law of the
accused, in an auto rickshawdrivenbyPW3(Manoj).PW5(Bindu),along
with her brother (Biju) and PW1, were present in the house.
c. The accused, the deceased and PW2 consumed alcohol. Under the
apparent influence of alcohol, the deceased began making inappropriate
advances towards the wife of the accused. PW1 and her son strongly
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disapproved of Vinu's behaviour and PW1 questioned the accused for
inviting him in. The accused, in response, askedVinutoleavethehouse,
pushedhimoutside,andclosedthedoor. Meantime,PW2hadsteppedout
ofthehousetosmokeacigaretteandheoverheardthehueandcry.When
he got back, he found that Vinu and the accused were engaged in a
physical altercation. Vinu, who was shut out of the door, insisted on
re-entering. The accused, in a fit of anger, pushed him down. As Vinu
attempted to get up, the accused picked up a piece of firewood lying
outside the house and struck him on the head multiple times. Vinu
collapsed to the ground, bleeding profusely from the head.
d. PW2 Rajan, aghast at the happenings, did not go to the rescue of his
friend or take him to the hospital. Instead, he fled fromthesceneinthe
autorickshawdrivenbyPW3leavingVinuinthehandsoftheaccusedand
PW1.
e. PW1 promptly dialed for an ambulance, to which PW6 responded. The
injuredwasimmediatelyshiftedtoSt.JamesHospital,Chalakkudy.Hewas
examinedbyPW10,theChiefMedicalOfficerofthehospital,at7:55p.m.
on14.04.2008.Theexaminationrevealedalaceratedwoundovertheright
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supraorbital region, a fracture of the supraorbital bone, and a lacerated
wound extending from the occipital area to the left parietal region. The
doctor also noted bleeding from the mouth, nose, and ears.
3. On15.04.2008,at1.45a.m.,whileVinuwasundergoingtreatment,
the statement of PW1, the mother-in-law of the accused, was recorded and
Ext.P9 crime wasregisteredasCrimeNo.189of2008oftheMalaPoliceStation
for the offences under Sections 324, 326 and 307 of the IPC.
4. Onthesamedayat4.20p.m.,theinjuredsuccumbedtotheinjuries
sustained by him.
5. On16.04.2008,Ext.P5inquestoverthedeadbodywaspreparedby
the Circle Inspector of Police, Mala Police Station who had taken over the
investigation. He prepared Ext.P6 scene mahazar andseizedthefirewoodwhich
was allegedly usedtoinflicttheinjuries. Thebodyofthedeceasedwashanded
over for autopsy and Ext.P8 report was prepared by PW11, the Professor and
HeadofForensicMedicine,MedicalCollegeHospital,Thrissur. Heopinedthatthe
injuriesnotedas3,4,14,and15weresufficientintheordinarycourseofnature
tocausedeath.Inthecourseoftheinvestigation,164statementofPWs1and5
were recorded by PW14, the Judicial Magistrate oftheFirstClass,Kodungalloor.
Crl. Appeal No. 930 of 2019 7 2025:KER:5981
On 17.04.2008, the accused was arrested as perExt.P15arrestmemo. Ext.P20
report was submitted adding Section 302 of the IPC. After completing the
investigation, the final report was laid before the Court.
6. The prosecution allegation as per the court charge is that the
accused with an intention to cause the death of Vinu, on 14.04.2008 at about
5.30p.m.,attackedhimwithfirewoodonhisheadknowingfullywellthathisact
would cause the death of Vinu and thereby committed the offences.
7. In order to prove its case, 16 witnesses were examined by the
prosecutionasPWs1to16andthroughthem,Exts.P1toP24wereexhibitedand
marked. MOs 1 to 7 were produced and identified. After the close of the
prosecution evidence, the incriminatingmaterialsarisingfromtheevidencewere
puttotheaccusedunderSection313(1)(b)oftheCodeofCriminalProcedure.He
emphatically denied the circumstances. Exts.D1 to D5 case diary contradictions
weremarkedbythedefencewhilecross-examiningtheprosecutionwitnesses.No
oral or documentary evidence was adduced by the defence.
8. The learned Sessions Judge, after evaluating the entire evidence,
cametotheconclusionthattheprosecutionhadsuccessfullyestablishedthatthe
appellant had committed the offences under Sections 324, 326, and 302 of the
Crl. Appeal No. 930 of 2019 8 2025:KER:5981
IPC and was convicted accordingly.
9. Smt. Sajitha, the learned counsel appearing for the appellant,
submitted that the learned Sessions Judgearrivedatthefindingofguiltwithout
properlyappreciatingtheevidenceinitsproperperspective. Shepointedoutthat
a thorough evaluation of the evidence of PWs1,2,and5wouldrevealthatthe
deceased,undertheinfluenceofalcohol,hadmadeadvancestowardsthewifeof
the appellant. She contended that the incident occurred on the spur of the
momentduetothegraveandsuddenprovocationbythedeceased,whichledto
the infliction of injuries by the accused on the deceased using a stick that was
lying in the courtyard. According to the learned counsel, the case does not
amount to premeditated murder. It was further urged that, even if the
prosecutioncaseisacceptedassuch,theoffenceunderSection302oftheIPCis
notmadeout.Thelearnedcounselsubmittedthatthecasewouldonlyfallwithin
theambitofException1toSection300oftheIPC,andasthefactsmadeoutdo
notrevealthattheaccusedhadnointentiontokill,theoffencemadeoutcanonly
be culpable homicide not amounting to murder, falling under Part II of Section
304oftheIPC.Tobolsterhersubmissions,relianceisplacedonStateofA.Pv.
Crl. Appeal No. 930 of 2019 9 2025:KER:5981
Rayavarapu Punnayya1, Mangesh v. State Of Maharashtra2, Devku
Bhikha v. State Of Gujarat3, Bonda Devesu v. State Of A.P4, and Budhi
Singh V. State of Himachal Pradesh5.
10. While refuting the contentions of the appellant, Smt. T.V. Neema,
the learned Public Prosecutor, submitted that there was a clearintentiononthe
part of the accused to kill the deceased. She pointed out that the Doctor who
conductedtheautopsyhadclearlyopinedthatinjuriesNos.3,4,14,and15were
sufficient in the ordinary course of nature to cause death and that the said
injuries could have been caused by MO1 firewood stick. It is urged that the
accusedhadinflictedinjuriesonthevitalpartofthebodyofthedeceasedwitha
heavy weapon and he has to be attributed with the intention to cause bodily
injurytothedeceasedandthebodilyinjuryintendedtobeinflictedissufficientin
the ordinary course of nature to cause death. She submitted that the appellant
could not be absolved of the liabilities and consequences of committing the
offence of murder.
1
(1976) 4 SCC 382
2
( 2011) 2 SCC 123
3
(1996) 11 SCC 641
4
(1996) 7 SCC 115
5
[(2012) 13 SCC 663]
Crl. Appeal No. 930 of 2019 10 2025:KER:5981
11. We have carefully considered the submissions advanced and have
gone through the prosecution records. We have also perused the judgment
rendered by the learned Sessions Judge.
12. We shall now evaluate the evidence let in by the prosecution.
13. PW1 (Thankamani) is the mother-in-law of theaccused.Shealong
withherdaughter,herson,andtheappellanthavebeenresidinginthehouseat
Annamanada. She stated that about 10 years back, on a 'Vishu' day, at about
5.30 p.m., Vinu and his friends had come to herhouse. She,however,pleaded
ignorance as to the manner in which Vinu had sustained injuries. She was
confronted with her previous statement to the police as well as to the learned
Magistrate. Shedeniedthatshehadseenherson-in-lawattackingthedeceased
with the firewood.
14. PW2(Rajan),afriendofboththedeceasedandtheaccused,stated
that on 14.05.2008, assuggestedbytheaccused,hewenttothehouseofPW1
in an auto rickshaw driven by PW3 (Manoj). PWs 1 and 5, along with the
accused's brother-in-law, were present in the house. All of them had consumed
alcoholbeforereachingthehouse.Aftersometime,PW2steppedouttosmokea
cigarette, and then he heard a hue and cry. He found the accused and the
Crl. Appeal No. 930 of 2019 11 2025:KER:5981
deceasedengagedinascuffleandheintervenedandseparatedthembypushing
them outside the home. However, whilestandinginthecourtyard,thedeceased
and the accused engaged in another physical altercation. The accused pushed
Vinu to the ground, and when heattemptedtogetup,theaccusedpickedupa
pieceoffirewoodlyinginthecourtyardandstruckhimtwotothreetimes.Upon
seeing Vinu bleeding, PW2 left the scene in the autorickshaw. During
cross-examination, PW2 stated that he hadseenthedeceasedat8:00a.m.and
later met him at the Varapuzha marketandtheyconsumedalcohol.Afterlunch,
theyproceededtothehouseoftheaccused.Headmittedthathehadconsumed
alcohol at Vinu's house earlier in the day and that it was as suggested by Vinu
thathehadbroughtalcohol.Hefurtherstatedthattheyconsumedalcoholagain
on the way totheaccused'shouse.Whenconfrontedwithhisearlierstatements
to the police,PW2deniedhavingstatedtothepolicethatVinumisbehavedwith
PW5,thewifeoftheaccused,andattemptedtostandclosetoherandthatBiju,
the brother of PW5, intervened and when Vinu went at him, Biju blocked him.
This portion of the statementwasmarkedasExt.D2.Similarly,whenquestioned
about whether he had informed the police that PW1 confronted the accused
about his friends' inappropriate behaviour, and that the accused asked Vinu to
leavethehouse,hedeniedhavingmadesuchastatement,andthatportionwas
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marked as Ext.D3.
15. PW3statedthatPW2(Rajan)hadtravelledinhisautorickshawand
they had gone to a place called Annamanada. He stated thatthepersonswho
had travelled with him in the auto-rickshaw were not there in the Court. When
asked whether he knows the accused, he answered in the negative.
16. PW4isDivyaC.S.,thewifeofVinu.Shestatedthaton14.04.2008,
whilesheandthedeceasedwereonthewaytohersister'shouse,theyhadseen
the accused. Vinu stopped the bike and told the accused that he would come
back immediately. Later, she came to know thatherhusbandwasnomore.She
identified MO2 mundu, and MO3 shirt worn by the deceased on that day.
17. PW5 is Bindu, the wife of the accused. She stated that on
14.04.2008, at about 5:30 p.m., an incident had occurred in her house. She
stated that one Vinu sufferedcertaininjuriesonthatdayandwasshiftedtothe
hospital. She stated that Vinu had come to herhouseintheevening,andthree
persons were with him. She also mentioned that Vinu had behaved
inappropriately towards her. It was after this, that the incident leadingtoVinu's
injuries occurred. She did not state anything about the involvement of the
accused.
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18. The above is in short the evidence let in by the prosecution.
19. The defence is not disputing that the death of Vinu was not
homicidal. A readingoftheevidenceofPW11wouldrevealthattheDoctorhad
noted about 15 injuries which include abrasions andcontusions. Hestatedthat
theinjuriesNos.3,4,14,and15weresufficientintheordinarycourseofnature
tocausedeath. TheprosecutionhasthusestablishedthatthedeathofVinuwas
a case of homicide.
20. The next question is whether the prosecution has established the
fact that the injuries were inflicted by the accused as alleged in the charge.
21. AreadingoftheevidenceofPWs1,2,and5wouldleavenomanner
ofdoubtthattheincidenthadoccurredinthecourtyardofthehouseofPW1.The
only question that needs to be examined iswhethertherewassuchagraveand
suddenprovocationthatwouldbringthecaseoftheappellantwithintheambitof
Exception 1 to Section 300 of the IPC. As stated above, the deceased and the
accusedareclosefriends. TheaccusedhadinfactinvitedthedeceasedandPW2
to his house on 'Vishu' day to celebrate. Even the wife of the deceased hasno
case that there was any prior animosity betweentheparties. Thedeceasedand
PW2 had been drinking since the morning. From the sequence of events
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establishedinthecase,itappearsthatthechosenmodeofcelebrationfor'Vishu'
by the parties involved--including the accused, the deceased, and the prime
witness, Rajan (PW2)--was binge drinking alcohol. It has also come out in
evidence that the deceased behaved inappropriately towards the wife of the
accused,undertheinfluenceofalcohol,andthisirkedthein-lawsoftheaccused.
ThedeceasedwasinitiallypushedoutsideandthisfactisspokentobyPW2.The
confronted portion of the evidence of PW2 gives a clear picture of what had
transpiredinthehouse. ItwaswhenVinuinsistedongettingbackinthehouseto
taunt the wife of the accused thattheaccused,inafitofanger,tookafirewood
lying in the courtyard and hit the deceased with the same. From the entire
prosecutionevidence,itisdifficulttogatherthattheaccusedhadtheintentionto
murderhisclosefriendandthattheactwaspremeditated. Theinjuriesnotedby
the Doctor were a result of theimpactoftheheavyfirewoodlogratherthanthe
force applied.
22. Now the question is whether offenceattractedismurderasdefined
under Section 300 of theIPC. Section299oftheIPCdefinesculpablehomicide.
Section 299 covers classes of cases where an act is done with the intention of
causingdeathand/orwiththeintentionofcausingsuchbodilyinjuryasislikelyto
causedeathorwiththeknowledgethatheislikelybysuchacttocausethedeath
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oftheotherperson.Inallthesesituations,itwillamounttoaculpablehomicide.A
culpablehomicidewouldbemurderunlessitfallsinanyofthegeneralExceptions
(1) to (5) to Section 300 of the IPC which would bring the offence outside the
purview of Section 300 and make it culpable homicidenotamountingtomurder.
Once it falls in that class of cases, then it is permissible for the courttoimpose
milder punishment in terms of Section 304 PartIorPartII,asthecasemaybe.
ThepunishmentunderSection302oftheIPContheonehand,andSection304of
the IPC on the otherisdividedbyafinelineofdistinctionastowhenaculpable
homicidewouldorwouldnotbemurder.TheprovisionsofSection304itselfform
a kind of exception to the applicabilityofSection302oftheIPC,inotherwords,
provisions of Section 304 Part II of the IPC would apply only if it is not a murder.
23. Atthisstageitself,itwouldberelevanttonoticeSection300IPCand
Exception (1) to the said provision:
"300. Murder.-- Except in the cases hereinafter excepted culpable
homicideismurder,iftheactbywhichthedeathiscausedisdonewith
the intention of causing death, or--
2ndly.--If it is done with the intention of causing such bodilyinjuryas
theoffenderknowstobelikelytocausethedeathoftheperson
to whom the harm is caused, or--
3rdly.--If it is done with the intention of causing bodily injury to any
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personandthebodilyinjuryintendedtobeinflictedissufficientin
the ordinary course of nature to cause death, or--
4thly.--If the person committing the act knows thatitissoimminently
dangerous that it must, in all probability, cause death, or such
bodily injury as is likely to cause death, and commits such act
withoutanyexcuseforincurringtheriskofcausingdeathorsuch
injury as aforesaid."
Exception1.--Whenculpablehomicideisnotmurder.--Culpablehomicide
isnotmurderiftheoffender,whilstdeprivedofthepowerofself-control
by grave and sudden provocation, causesthedeathofthepersonwho
gavetheprovocationorcausesthedeathofanyotherpersonbymistake
or accident.
The above exception is subject to the following provisos--
First.-- hat the provocationisnotsoughtorvoluntarilyprovokedby
T
the offender as an excuse for killing or doing harm to any
person.
Secondly.--That the provocation is not given by anything done in
obedience to the law, or by a public servant in the lawful
exercise of the powers of such public servant.
Thirdly.--Thattheprovocationisnotgivenbyanythingdoneinthelawful
exercise of the right of private defence.
xplanation.--Whethertheprovocationwasgraveandsuddenenoughto
E
prevent the offence from amounting to murder is a question of fact."
(emphasis supplied)
24. The aforesaid Section provides five exceptions wherein culpable
homicide does not amount to murder. In this case, we are concerned only with
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Exception (1). Under Exception (1), an injury resulting in the death of a person
would not be considered murder when the offender has lost self-control due to
graveandsuddenprovocation.Itiscrucialtonotethattheprovisionitselfclarifies
through the Explanation that determining what constitutes a grave and sudden
provocation, sufficient to take out the offence from the ambit of murder, is
inherently a question of fact. Provocation, in this context, is understood as an
externalstimulusthatcanresultinalossofself-control.Suchprovocation,andthe
reaction it triggers, must be assessed in light of the surrounding circumstances.
The provocation must be such that it would unsettle not merely a hasty,
hot-tempered, or hypersensitive person but also a person of calm temperament
and ordinary sensibilities. By crafting this Exception, the law aims to consider
situations in which a person of normal behaviour reacts to a given incident of
provocation. Thus, the protection extended by Exception (1) applies to a normal
person acting reasonably and naturally under the circumstances of the given
provocation. The law ensures that such situations are evaluated with due
consideration for the natural human reaction to grave and sudden provocation,
therebydistinguishingculpablehomicidefrommurder.(See:ArunRajvUnionof
India and Others6).
6
2010 6 SCC 457
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25. In Budhi Singh (supra), the Apex Court, while explaining the
doctrine of sudden provocationcomingunderException(1)ofSection300ofthe
IPC observed as under:
"18. The doctrine of sudden and grave provocation is
incapable of rigid construction leading to or stating any principle of
universal application. This will always havetodependonthefactsofa
given case. While applying this principle, the primary obligation of the
court is to examine from the point of view of a person of reasonable
prudence if there was such grave and sudden provocation so as to
reasonably conclude that it was possible to commit the offence of
culpable homicide, and as per the facts, was not a culpable homicide
amounting to murder. An offence resulting from grave and sudden
provocation would normally mean that a person placed in such
circumstances could lose self-control but onlytemporarilyandthattoo,
inproximitytothetimeofprovocation.Theprovocationcouldbeanact
or series of acts done by the deceased to the accused resulting in
inflicting of injury.
19. Another test that isappliedmoreoftenthannotisthat
the behaviour of the assailant was that of a reasonable person.Afine
distinction has to be kept in mind between sudden and grave
provocation resulting in sudden and temporary loss of self-control and
the one which inspires an actualintentiontokill.Suchactshouldhave
beendoneduringthecontinuationofthestateofmindandthetimefor
such person to kill and reasons to regain the dominionoverthemind.
Oncethereispremeditatedactwiththeintentiontokill,itwillobviously
fall beyond the scope of culpable homicide not amounting to
murder........"
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26. As held by the Apex Court, the doctrine of sudden and grave
provocation is incapable of rigid construction or the formulation of a principle of
universalapplication.Itsapplicabilitymustalwaysdependonthespecificfactsand
circumstancesofagivencase.Whileapplyingthisprinciple,theprimaryobligation
of the Court is to examine, from the perspective of a person of reasonable
prudence, whether the provocation was so grave and sudden that it could
reasonably lead to the commission of the offence of culpable homicide, and
whether, based on the facts, it does not amount to murder. Another commonly
applied test is whether the behaviour of the assailant is what would have been
expected from a reasonable person placed in an identical situation. A clear
distinction must be drawn between a sudden and grave provocation leading to a
temporarylossofself-controlandanactinspiredbyanactualintentiontokill.The
actinquestionmusthavebeencommittedduringthecontinuationoftheprovoked
state of mind, without sufficient time for the accused to regain control over his
mind and actions. Once it is established that the act was premeditated with the
intent to kill, it would clearly fall beyond the scope of culpable homicide not
amountingtomurder.Anoffenceresultingfromthegraveandsuddenprovocation
wouldtypicallyimplythatapersonplacedinsuchcircumstancescouldtemporarily
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loseself-controlandthatsuchlossofcontrolmusthaveoccurredincloseproximity
to thetimeofprovocation.Theprovocationmayconsistofasingleactoraseries
of acts committed by the deceased against the accused, ultimatelyleadingtothe
infliction of injury.
27. K. M. Nanavati v. State Of Maharashtra7 is a much-cited
judgment of the Apex Court, which dealt with and explained the concept and
doctrine of grave and sudden provocation within its legal dimensions.
85. The Indian law, relevant to the present enquiry, may be
statedthus:(1)Thetestof"graveandsudden"provocationiswhethera
reasonableman,belongingtothesameclassofsocietyastheaccused,
placed in the situation in which the accused was placed would be so
provoked as to lose his self-control. (2) In India, words and gestures
may also, under certain circumstances, cause grave and sudden
provocation to an accused so as to bring his act within the First
Exception to Section 300 of the Indian Penal Code. (3) The mental
backgroundcreatedbythepreviousactofthevictimmaybetakeninto
consideration in ascertaining whether the subsequent actcausedgrave
and sudden provocation for committing the offence. (4)Thefatalblow
should be clearly traced to the influence of passion arising from that
provocationandnotafterthepassionhadcooleddownbylapseoftime,
or otherwise giving room and scope for premeditation and calculation.
28. In the case on hand, the facts establish thattheaccusedandthe
7
(AIR 1962 SC 605)
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deceased were close friends. They had met in the morning andhadconsumed
alcohol at Varapuzha. The accused had invited the deceased to his house to
celebrateVishuwiththefamilyoftheaccused.Evenonthewaytothehouseof
the accused,thedeceasedandPW2hadconsumedalcohol. Thedeceasedwas
so tipsy that he started misbehaving with PW5, in the presence of her family
members. This irked Biju, the brother of PW5, and PW1. Both of them
questionedtheaccusedandreprimandedhimforbringingthedrunkdeceasedto
their house. The accused pushed the deceased out of the house and this
resultedinaphysicalaltercation.Itwaswhenthedeceasedtriedtore-enterthe
house,thattheaccusedtookalogoffirewoodlyinginthecourtyardandhithim
2-3 times. The infliction of the injury with the firewood,whichwaslyinginthe
courtyard, was not premeditated and was a direct result of grave and sudden
provocationwhentheaccusedsawthedeceased,undertheinfluenceofalcohol,
continuing to misbehave with his wife, despite having been pushed out of the
house. It has to besaidthatareasonableman,belongingtothesameclassof
society as the accused,placedinthesituationinwhichtheaccusedwasplaced
would certainly be provoked to lose his self-control and if that be the case it
wouldbringhisactwithintheFirstExceptiontoSection300oftheIPC.Asheld
by the Apex Court, the mental background created by the previous act of the
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victim also has to be taken into consideration in ascertaining whether the
subsequent act caused grave and sudden provocation for attacking the
deceased.Thefatalblowcaneasilybeclearlytracedtotheinfluenceofpassion
arisingfromthatprovocationandthereisnomaterialtosuggestthattherewas
any time forpremeditationandcalculation.Itneedstobeborneinmindatthis
juncture that premeditation and intention to kill are two vital factors among
others that the Court must consider before holding the accused guilty of an
offence under Section 302 or Section 304 of the IPC.
29. As stated above, Section 300 of the IPC provides for Exceptions
that will constitute culpable homicide not amounting to murder andpunishable
under Section 304 of the IPC.Whenandifthereisintentandknowledge,then
thesamewouldbeacaseofSection304PartIoftheIPCandifitisonlyacase
of knowledge and not theintentiontocausemurderandbodilyinjury,thenthe
same would be a case of Section 304 Part II of the IPC. It is trite law that
Section304PartIIoftheIPCcomesintoplaywhenthedeathiscausedbydoing
anactwithknowledgethatitislikelytocausedeathbutthereisnointentionon
thepartoftheaccusedeithertocausedeathortocausesuchbodilyinjuryasis
likely to cause death (See:Jagriti Devi v. Stateof H.P8).
8
(2009) 14 SCC 771
Crl. Appeal No. 930 of 2019 23 2025:KER:5981
30. In Camilo Vaz v. StateofGoa9,theApexCourtafteranalyzing
Section 299 of the IPC which deals with punishment for culpable homicide not
amounting to murder observed as under:
14.Thissectionisintwoparts.Ifanalysed,thesectionprovidesfortwo
kindsofpunishmenttotwodifferentsituations:(1)iftheactbywhich
death iscausedisdonewiththeintentionofcausingdeathorcausing
such bodily injury as is likely to cause death. Here the important
ingredient is the "intention"; (2)iftheactisdonewiththeknowledge
thatitislikelytocausedeathbutwithoutanyintentiontocausedeath
or such bodily injury as is likely to cause death. When a person hits
another with a danda on a vital partofthebodywithsuchforcethat
the person hit meets his death, knowledge has to be imputed to the
accused.InthatsituationthecasewillfallinPartIIofSection304IPC
as in the present case.
31. InJagtarSinghv.StateofPunjab10,theaccusedonthespurof
themomentinflictedaknifeblowonthechestofthedeceased.Theinjuryproved
tobefatal.TheDoctoropinedthattheinjurywassufficientintheordinarycourse
ofnaturetocausedeath.TheApexCourtheldasunderinparagraphNo.8ofthe
judgment:
"8. ........The quarrel was of a trivial nature and even in suchatrivial
quarrel theappellantwieldedaweaponlikeaknifeandlandedablow
9
( 2000) 9 SCC 1
10
[(1983) 2 SCC 342]
Crl. Appeal No. 930 of 2019 24 2025:KER:5981
in the chest. In these circumstances, it isapermissibleinferencethat
the appellant at leastcouldbeimputedwithaknowledgethathewas
likely to cause an injury which was likely to cause death."
The Apex Court altered theappellant'sconvictionfromSection302ofthe
IPC toSection304PartIIoftheIPCandsentencedtheaccusedtofiveyearsof
rigorous imprisonment.
32. InHemRajv.TheState(DelhiAdmn.)11,theaccusedinflicteda
single stab injury landing on the chest of the deceased. The occurrence
admittedlyhadtakenplaceonthespurofthemomentandintheheatofpassion
upon a sudden quarrel. According to the Doctor, the injury wassufficientinthe
ordinary course of nature to cause death. The Apex Court observed as under:
14. The question is whether the appellant could be said tohave
caused thatparticularinjurywiththeintentionofcausingdeathofthe
deceased.Asthetotalityoftheestablishedfactsandcircumstancesdo
showthattheoccurrencehadhappenedmostunexpectedlyinasudden
quarrel and without premeditation during the course of which the
appellant caused a solitary injury, he could not be imputed with the
intentiontocausedeathofthedeceasedorwiththeintentiontocause
thatparticularfatalinjury;buthecouldbeimputedwiththeknowledge
that he was likely to cause an injurywhichwaslikelytocausedeath.
Becauseintheabsenceofanypositiveproofthattheappellantcaused
the death of the deceased with the intention of causing death or
11
[1990 SCC (Cri) 713]
Crl. Appeal No. 930 of 2019 25 2025:KER:5981
intentionallyinflictedthatparticularinjurywhichintheordinarycourse
of nature wassufficienttocausedeath,neitherclauseInorclauseIII
of Section 300 IPC will be attracted."
The Apex Court while setting aside the conviction under Section 302 of
the IPC, convicted the accused under Section 304 Part II of the IPC.
33. Inlightoftheabove,weareoftheviewthattheappellantcannot
beattributedwiththeintentiontocausedeathortocausesuchbodilyinjuryas
is likely to cause death, but only be attributed with the knowledge that his
actions were likely to cause an injury that could result in death. Weareofthe
view that the act was committed without premeditation, at the spur of the
moment,duetosuddenprovocation,andwithoutanyunduecruelty. Undersuch
circumstances,weareinclinedtoholdthatthecaseathanddoesnotfallwithin
ClausethirdofSection300oftheIPCandthattheaccusedcouldonlybefound
guilty under Part II of Section 304 of the IPC.
34. In the result, we allow this appeal but only to the extent that
instead of Section 302 of the IPC, the appellant shall stand convicted for the
offenceofculpablehomicidenotamountingtomurderpunishableunderSection
304 Part-II of the IPC and sentenced to undergo Rigorous Imprisonment for a
period of seven (7)yearsandtopayafineofRs.1,00,000/-(RupeesOnelakh
Crl. Appeal No. 930 of 2019 26 2025:KER:5981
only) and in default of payment of fine, to undergoRigorousImprisonmentfor
sixmonths.TheconvictionandsentencepassedfortheoffencesunderSections
326 and 324 of the IPC are upheld. The sentences shall run concurrently. The
fineimposedupontheappellantandthedefaultsentenceawardedtohimforthe
offence under Section 326 of the IPC shall remain unaltered. If the fine is
realized, Rs.1,50,000/- shall be given to PW4.
The appeal is disposed of in the above terms in modification of the
judgment passed by the learned Sessions Judge.
Sd/-
RAJA VIJAYARAGHAVAN V,
JUDGE
Sd/-
P.V. BALAKRISHNAN,
JUDGE
PS/A
PM/25/01/25
