Nazeer vs The State Of Kerala
2025 Latest Caselaw 6124 Ker

Kerala High Court

Nazeer vs The State Of Kerala on 22 May, 2025

Author: Raja Vijayaraghavan

Bench: V Raja Vijayaraghavan

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     ​    Crl.A.No. 1366 of 2022​   ​                1​
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                      IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                                PRESENT
              THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
                                                     &
                   THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
         THURSDAY, THE 22ND DAY OF MAY 2025 / 1ST JYAISHTA, 1947



                                        CRL.A NO. 1366 OF 2022


    AGAINST THE JUDGMENT DATED 11.06.2019 IN SC NO.1251 OF 2017

           OF ADDITIONAL DISTRICT & SESSIONS JUDGE-VI, KOLLAM


APPELLANT/ACCUSED:

                      NAZEER ​
                      AGED 38 YEARS​
                      S/O SHAHUL HAMEED, THADATHARIKATHUVEEDU, ERAPPEL,
                      MUTHAYIL MURI, MANCODE (V), PIN - 689694


                      BY ADVS. ​
                      RENJITH B.MARAR​
                      LAKSHMI.N.KAIMAL​
                      ARUN POOMULLI​
                      ABHIJITH SREEKUMAR​
                      PREETHA S CHANDRAN​
                      JOSEPH KIRAN D. THEKKEKARA
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    ​   Crl.A.No. 1366 of 2022​   ​           2​
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RESPONDENT/STATE:

                    THE STATE OF KERALA ​
                    REPRESENTED BY THE PUBLIC PROSECUTOR,
                    HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031

                    BY ADV. NEEMA T.V., SENIOR PUBLIC PROSECUTOR

THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON
22.05.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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    ​    Crl.A.No. 1366 of 2022​   ​            3​
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                                           JUDGMENT

Raja Vijayaraghavan, J.

In this appeal filed under Section 374 of the Code of Criminal Procedure,

1973 ("the Cr.P.C" for the sake of brevity), the appellant calls in question the

finding of guilt, conviction and sentence passed by the Additional District &

Sessions Judge-VI, Kollam in judgment dated 11.06.2019 in S.C. No. 1251 of

2017. The aforesaid case has arisen from Crime No. 793 of 2017 of the Kadakkal

Police Station. The appellant in the above case stood charge-sheeted for having

committed the offence punishable under Sections 341, 323, 324 and 302 of the

IPC. By the above judgment, he was convicted and sentenced to undergo

imprisonment for life for the offence under Section 302 of the IPC. No separate

sentence was awarded for the other offences.

Prosecution Case:

2.​ The deceased, Madhusudanan Nair @ Maniyan, was the

husband of Ambili (PW16). Owing to a strained marital relationship, he began

spending most nights at the Kadakkal Market and was employed there as a ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ 2025:KER:34629 ​ Crl.A.No. 1366 of 2022​ ​ 4​ ​

casual labourer. The accused, Nazeer, is alleged to have been both a friend

and a co-worker of the deceased. On the evening of 30.04.2017, at

approximately 6:30 p.m., the accused and the deceased arrived at the market,

at which point a verbal altercation ensued between them. Both individuals

were allegedly under the influence of alcohol and in an inebriated condition.

According to the prosecution, the quarrel escalated over the sharing of liquor,

culminating in the accused wrongfully restraining the deceased on the veranda

of the Triveni Supermarket, Kadakkal. It is further alleged that, in the course

of this confrontation, the accused assaulted the deceased using MO1, a piece

of firewood, and struck him on various parts of his body. As per the charge

against the accused, on 30.04.2017 at about 7:30 p.m., he wrongfully

restrained the deceased in front of the Triveni Supermarket and, with the

intention of causing his death, delivered a forceful punch below the deceased's

right ear and subsequently assaulted him with MO1 firewood. These acts are

alleged to have resulted in injuries that ultimately led to the death of the

deceased.

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         Registration of the crime and investigation:


                 3.​      Raveendran Nair (PW1), the elder brother of the deceased, was

informed by the President of the local Panchayat at approximately 7:00 a.m.

on 01.05.2017 that his younger brother, Madhusudanan Nair @ Maniyan, was

found lying dead in the veranda of the Triveni Supermarket, Kadakkal. On

receiving this information, PW1 immediately approached the local Police

Station, where his statement was recorded at 8:30 a.m. on the same day.

Based on his statement, Ext.P12 First Information Report was registered under

Section 174 of the Code of Criminal Procedure, 1973, as a case of unnatural

death, by PW17, the Station House Officer of Kadakkal Police Station. At the

time of the registration of Ext.P12 FIR, the cause of death of Maniyan was

unknown.

4.​ PW17 conducted the inquest over the body of the deceased and

prepared Ext.P2 Inquest Report.

5.​ Subsequently, PW18, the Inspector of Police, Kadakkal, assumed

charge of the investigation on 01.05.2017. He proceeded to the scene of

occurrence and took custody of the material objects seized earlier by PW8, the ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ 2025:KER:34629 ​ Crl.A.No. 1366 of 2022​ ​ 6​ ​

Scientific Officer, under Ext.P8 Mahazar. At around 5:30 p.m. on the same day,

the appellant was arrested as per Ext.P14 Arrest Memo. The nail clippings and

other biological samples collected during the postmortem examination by the

Medical Officer were formally seized by the Investigating Officer under Ext.P9

Mahazar. Ext.P13 Property List was thereafter submitted to the Court. On the

strength of the alleged disclosure statement made by the accused, the MO1

piece of firewood was recovered from the northern side of the shopping

complex, about 6 meters away from the place where the body of the deceased

was found. Ext.P4(a) contains the relevant extract of the accused's confession

statement leading to this recovery.

6.​ PW18 then submitted Ext.P15 report before the Court seeking

permission to retain the weapon in his possession for further investigation.

The clothes worn by the accused at the time of the incident were recovered

and seized under Ext.P10 Mahazar.

7.​ On 02.05.2017, the Investigating Officer once visited the scene

and prepared a Scene Mahazar. During this exercise, two buttons found at the

scene were recovered and documented under Ext.P21 Mahazar. He submitted ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ 2025:KER:34629 ​ Crl.A.No. 1366 of 2022​ ​ 7​ ​

Ext.P17 report before the Court seeking deletion of Section 174 Cr.P.C. and

incorporation of Sections 302, 341, and 323 of the Indian Penal Code.

Subsequently, Ext.P18 report was filed to include Section 324 of the IPC. After

completion of the investigation, the final report was filed before the

jurisdictional Magistrate, which was duly taken on file.

8.​ Committal proceedings were initiated in accordance with the law

and the case was committed to the Court of Session, Kollam. The case was

then made over to the Additional Sessions Court for trial and disposal. After

hearing the prosecution and the accused, charges under Section 302 of the

IPC were framed, and when the same was read over, he pleaded not guilty

and claimed that he be tried in accordance with law.

Evidence Tendered:

9.​ To prove the case of the prosecution, 18 witnesses were

examined as PWs 1 to 18, and through them Exts.P1 to P26 were exhibited

and marked. MO1 was produced and identified. After the close of

prosecution evidence, the incriminating materials arising from the

prosecution evidence were put to the accused under Section 313(1)(b) of ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ 2025:KER:34629 ​ Crl.A.No. 1366 of 2022​ ​ 8​ ​

the Cr.P.C. The accused denied the incriminating circumstances and

maintained that he was innocent. On the side of the defence, DW1 was

examined.

The findings of the learned Sessions Judge:

10.​ The learned Sessions Judge, after evaluating the entire

evidence, came to the conclusion that the prosecution had successfully

established through the testimonies of PWs 2 and 3 that it was the

appellant who had inflicted the fatal blows on the body of the deceased

with the intention to cause his death. Relying on the testimony of the

Doctor who conducted the postmortem examination, the Court further

found that injuries Nos. 1 to 5 were cumulatively sufficient to cause death

and that injury No. 5 taken individually was sufficient in the ordinary course

of nature to result in death. The "last seen together" theory was also

invoked by the learned Sessions Judge, based on the depositions of PWs 2

and 3, to reinforce the case of the prosecution. The court concluded that

the accused had, with clear intent, struck Madhusudanan Nair on the head

using MO1 firewood, causing fatal injuries. The court finally concluded that ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ 2025:KER:34629 ​ Crl.A.No. 1366 of 2022​ ​ 9​ ​

the act of the accused fell squarely within Clause 3 of Section 300 of the

IPC and accordingly, found him guilty of the offence under Section 302 of

the IPC and was thereafter sentenced to undergo imprisonment for life.

Contentions of the appellant:

11.​ Smt. Lakshmi N. Kaimal, the learned counsel appearing for the

appellant, contended that the finding of guilt recorded by the learned

Sessions Judge is unsustainable in law. She submitted that the testimonies

of PWs 2 and 3 are inconsistent with the medical evidence tendered by the

Doctor who conducted the postmortem examination. According to the

learned counsel, PW2, upon hearing a commotion, rushed to the scene and

allegedly witnessed the appellant assaulting the deceased only on the hand

and shoulder, without inflicting any blow to the head. However, even a

cursory examination of the postmortem report reveals that injury Nos. 1 to

5 were located on the head and face of the deceased. The learned counsel

further highlighted that both the conclusion drawn by the Investigating

Officer in Ext.P2 and the testimony of DW1 indicate that the deceased was

alive and well at 5:00 a.m. on 01.05.2017. If that be the case, she argued, ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ 2025:KER:34629 ​ Crl.A.No. 1366 of 2022​ ​ 10​ ​

the application of the "last seen" theory by the learned Sessions Judge was

wholly erroneous, and the consequent shifting of the burden of guilt onto

the accused was unwarranted. With respect to the recovery of the weapon,

it was submitted that MO1 was retrieved from an open area, accessible to

the public, approximately six metres north of the Triveni Supermarket,

where the deceased was found lying dead. PW3, the star witness of the

prosecution, had deposed before the court that the accused had walked

towards the Fire Force garage situated on the East, carrying the weapon

with him. In such circumstances, the learned counsel contended that the

recovery cannot be relied upon to establish guilt. It was only at a much

later stage that culpability was attributed to him, which, according to her,

raises serious doubts about the case set up by the prosecution.

Submissions of the learned Public Prosecutor:

12.​ In response, Smt. Neema T.V., the learned Public Prosecutor,

submitted that the altercation between the deceased and the appellant

commenced at about 6:30 p.m., as stated in his testimony by PW11. It

was argued that injuries could have been inflicted upon the deceased by ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ 2025:KER:34629 ​ Crl.A.No. 1366 of 2022​ ​ 11​ ​

the appellant using MO1 prior to the arrival of PW2 at the scene. If so, the

prosecution witnesses may not have been in a position to narrate the entire

sequence of events, and their testimonies cannot be rejected on that basis

alone. The learned Public Prosecutor further submitted that soon after the

crime was registered, the Scientific Officer arrived at the scene and

recovered two buttons, which, on forensic analysis, were found to have

originated from the shirt of the accused. Reliance was placed on Exts.P10

and P17 to demonstrate that the blood samples collected from the crime

scene matched those found on the dhoti worn by the accused, thereby

linking him directly to the offence. It was also pointed out that following the

incident, the appellant absconded from the locality and was apprehended

only later that evening by PW18. Referring to the postmortem certificate

and the evidence of the Medical Officer, the learned Public Prosecutor

reiterated that injury No.5 was declared to be fatal, and in the ordinary

course of nature sufficient to cause death. She argued that the learned

Sessions Judge had correctly applied the legal principles laid down by the

Hon'ble Supreme Court in Virsa Singh v. State of Punjab1, and rightly

AIR 1958 SC 465 ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ 2025:KER:34629 ​ Crl.A.No. 1366 of 2022​ ​ 12​ ​

invoked Clause 3 of Section 300 of the IPC to convict the accused under

Section 302 of the IPC. As for the contention that the recovery of the

weapon should be excluded from consideration, the learned Public

Prosecutor urged that such an argument is untenable, given the

surrounding corroborative evidence that connects the accused with the

crime.

13.​ We have considered the submissions advanced and have gone

through the entire records. We have also perused the judgment rendered

by the learned Sessions Judge.

Cause of death

14.​ There is no serious dispute from the side of the accused that

the death of Maniyan was not a case of homicide. PW1, the brother of the

deceased, stated that the person lying dead on the veranda of the Triveni

Supermarket was his younger brother. On 01.05.2017, at about 12:45

p.m., PW15, the Assistant Professor of Forensic Medicine, Medical College

Hospital, conducted the postmortem on the dead body of the deceased and

issued Ext.P11 certificate. Various injuries were noted on the body of the ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ 2025:KER:34629 ​ Crl.A.No. 1366 of 2022​ ​ 13​ ​

deceased. It would be pertinent to note that injury Nos. 1 to 5 were seen

inflicted on the face and head of the deceased. The doctor had stated that

the injuries found on the body of the deceased could have been caused by

inflicting injuries with MO1. He has also stated that injury Nos. 1 to 5 are

jointly sufficient in the ordinary course of nature to cause death, and injury

No.5 is independently sufficient in the ordinary course of nature to cause

death. We note that injury No. 5, which is a contusion 18x16 cm involving

the lower part of the left cheek, the back of the head and the adjoining

part of the neck, upper back extends just outer to midline at the level of

the occiput. It also involved the upper one-third of the right

sternocleidomastoid muscle. The doctor has noted that the blood clots were

seen in the left lateral ventricle and also in the III and IV ventricles. Gyri

were flattened, and Sulci were narrowed. After perusing the evidence of

the doctor coupled with the postmortem certificate, we have no doubt in

our mind that the death of Madhusudanan Nair was homicidal.

Evaluation of the evidence

15. The next question for consideration is whether the prosecution ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ 2025:KER:34629 ​ Crl.A.No. 1366 of 2022​ ​ 14​ ​

has succeeded in establishing the role of the appellant in the commission of

the offence. The prosecution primarily relied on the testimonies of PWs 2

and 3 to prove the guilt of the appellant.

16.​ PW2 deposed that he was employed at a meat vending shop in

the Kadakkal Market. Due to a strained relationship with his family, he used

to spend the night at the market. He stated that the deceased was a close

friend and associate, and they would often seek employment together. On

the day of the incident, both he and the deceased had gone to the house of

one Sabu to collect cow dung. They returned around 5:00 p.m. and shared

the wages. After freshening up, he went to "Ruchi Hotel" to have coffee.

PW3, Muraleedharan Pillai, was also present at the coffee shop. At around

7:30 p.m., PWs 2 and 3 stepped out of the shop and stood near a street

light. They then heard a commotion from the veranda of the Triveni

Supermarket. PW2 went to investigate and saw the appellant standing with

a stick in his hand, while the deceased lay on the veranda. PW2 stated that

the appellant struck the deceased with MO1 on the shoulder and chest.

When the appellant attempted to strike the deceased on the head, PW3

intervened, cautioning the appellant not to beat the deceased in his ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ 2025:KER:34629 ​ Crl.A.No. 1366 of 2022​ ​ 15​ ​

presence. Upon this, the appellant left the scene and walked towards the

market. He stated that the deceased remained lying there in an intoxicated

state. PW2 then went to the nearby shopping complex and slept under the

stairs. The next morning, at about 6:00 a.m., he went to the tea shop of

one Paramu, where he again saw the appellant. At that time, PW3 arrived

and told the appellant that the person he had beaten the previous day was

still lying on the veranda. They all proceeded to the spot, where they

discovered that the deceased had died. The police were informed and

arrived at the location within 15 minutes. PW2 further confirmed that he

could identify both the appellant and MO1 as the weapon used in the

assault. Despite being subjected to cross-examination, the defence was

unable to elicit any omissions or material contradictions in his evidence.

PW2 also clarified that there had been no prior disputes between the

appellant and the deceased. However, he admitted that after he had left

the scene, he had no occasion to verify whether Maniyan was in a normal

condition or not.

17.​ PW3, Muraleedharan Pillai, a loading worker, corroborated the

incident as having occurred on 30.04.2017. He testified that after ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ 2025:KER:34629 ​ Crl.A.No. 1366 of 2022​ ​ 16​ ​

completing his work at a godown, he proceeded to Ruchi Hotel in the

Kadakkal Market to have snacks. While he was there, he heard the

appellant shouting abuses. PW2 went ahead to investigate, and PW3

followed. Upon reaching the northern side of the market, PW3 saw the

appellant holding a piece of firewood, and the deceased was found lying on

the veranda. When the appellant attempted to strike the deceased again,

PW3 restrained him and told him not to assault Maniyan in his presence.

The appellant acceded to his request and left the spot and walked towards

the Fire Force Office with MO1 weapon in hand. PW3 stated that the

deceased was in an inebriated condition. He identified the appellant in

court and also identified MO1 as the weapon used. During

cross-examination, PW3 admitted that he was not present when the police

arrived at the scene. He also stated that he had not consumed alcohol on

the previous day.

18.​ PW4 is a Panchayat Member who attested to Ext.P2 Inquest

Report.

                19.​          PW5 is a Fireman who was present when the Scene Mahazar
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was prepared by PW18. PW6, also a Fireman, was a witness to Ext.P4

Recovery Mahazar.

20.​ PW7, the Secretary of the Panchayat, issued Ext.P5 certifying

that the shopping complex in question was owned by the Panchayat.

21.​ PW8 is the Scientific Assistant who arrived at the scene

immediately after the registration of the FIR and collected samples of

blood, as well as two buttons found at the scene.

22.​ PW9, the Village Officer, Kadakkal, prepared the Site Sketch.

23. PW10, the Assistant Engineer of KSEB Ltd., testified to Ext.P7

and confirmed that there was no electrical failure in the area on the date of

the incident.

24. PW13, a Civil Police Officer at Kadakkal Police Station, was

examined to prove Ext.P8 Seizure Mahazar.

25.​ In the case at hand, the prosecution has examined two

witnesses to prove the manner in which the incident took place. PW2 is a

close friend and co-worker of the deceased. He is also having close ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ 2025:KER:34629 ​ Crl.A.No. 1366 of 2022​ ​ 18​ ​

acquaintance with the appellant. In his evidence, he has stated that he had

occasion to witness the appellant attacking the deceased with a firewood.

According to him, at about 7:30 p.m., while he was having snacks with

PW3 at "Ruchi Hotel", he heard a hue and cry, and he rushed to the place.

He stated that the appellant was standing with a stick in his hand and was

beating the deceased. However, he emphatically stated that the appellant

had beaten Maniyan only on his shoulder and chest. He added that when

the appellant attempted to hit the deceased on the head, PW3 intervened

and restrained him from doing so. He stated that the appellant walked

away while the deceased was found lying in the same place. PW3 also

supported the version of PW2. However, he stated that he had come to the

place of occurrence only after PW2, and he had no occasion to see the

appellant assaulting the deceased with the stick. However, he stated that

when the appellant attempted to inflict a blow on the head of the

deceased, he intervened and dissuaded him. He added that the appellant

walked away towards the Fireforce Office with a stick in his hand.

26.​ Smt. Lakshmi N. Kaimal, the learned counsel appearing for the

appellant, argued that the version of PW2 is at variance with the medical ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ 2025:KER:34629 ​ Crl.A.No. 1366 of 2022​ ​ 19​ ​

records. PW15, the Doctor, who conducted the postmortem, had noted as

many as 8 injuries, of which injury Nos. 6 to 8 are contusions on the outer

aspects of the right and left arm, and on the left wrist. At the same time,

the Doctor has also noted injury Nos. 1 to 5, which are contusions on the

face and on the back of the head. It was persuasively argued that the

injuries found on the body of Maniyan would have been caused by

someone else at a different place and time.

27.​ We are of the considered view that the said contention

deserves only to be noted for the purpose of being rejected. PW11, a close

friend and associate of both the accused and the deceased, clearly deposed

that all of them had consumed alcohol on 30.04.2017 and had assembled

at the market around 6:30 p.m. He specifically spoke of an altercation

between Maniyan and the accused, during which both were seen hurling

abuses at each other. It was only at approximately 7:30 p.m. that PW2 and

PW3 decided to intervene and proceeded to the scene. It was at that

juncture that PW2 witnessed the appellant striking the deceased with a

stick on his body. PW2 could have testified only to what he personally

observed. The possibility that injuries, particularly those on the head, were ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ 2025:KER:34629 ​ Crl.A.No. 1366 of 2022​ ​ 20​ ​

inflicted prior to the arrival of PWs 2 and 3 cannot be ruled out. Given that

the incident occurred after sunset, it would be unreasonable to expect the

eyewitnesses to identify with exactitude the precise part of the body where

each injury was inflicted. It has also come out that the accused was found

lying on the ground when PW2 arrived at the scene. Moreover, PW15, the

doctor who conducted the post-mortem examination, categorically opined

that the injuries observed on the body of the deceased were consistent

with having been caused by a wooden log resembling MO1. This medical

evidence lends further corroboration to the ocular version of the

prosecution witnesses.

28.​ The presence of the appellant at the scene of the occurrence is

further established beyond doubt through scientific evidence. PW8, the

Scientific Assistant who arrived at the location shortly after the incident,

collected two buttons and bloodstains found at the scene of the crime. The

forensic report, marked as Ext.P25, disclosed that the buttons recovered

from the scene were compared with the buttons on the shirt of the

accused, which had been seized under Ext.P21 Mahazar. The comparison

was made in terms of colour, shape, style, and other physical ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ 2025:KER:34629 ​ Crl.A.No. 1366 of 2022​ ​ 21​ ​

characteristics. On examination, the buttons collected from the crime scene

were found to be similar to those on the accused's shirt. It was also

specifically noted that the buttons recovered from the scene could have

been the ones missing from the shirt of the accused. Further, Ext.P25

reveals that a saffron-colored single dhoti, stated to have been worn by the

appellant at the time of the incident, was subjected to DNA analysis. The

bloodstains on the dhoti were compared with the reference blood sample of

the deceased, and the report confirmed that the blood originated from the

same male individual. Thus, the scientific evidence not only substantiates

the presence of the appellant at the scene but also corroborates the

testimonies of PWs 2 and 3 regarding the appellant's role in inflicting the

fatal blows on the deceased.

29.​ At this juncture, it would be profitable to advert to the

evidence of the defence witness, who was examined as DW1. He was

examined to prove that no incident of the nature alleged by the prosecution

had taken place. DW1 deposed that he is a farmer by occupation and, on

the date of the death of Madhusudanan Nair, at approximately 5:00 a.m.,

he had gone to the Kadakkal Market to sell betel leaves. While having tea ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ 2025:KER:34629 ​ Crl.A.No. 1366 of 2022​ ​ 22​ ​

at the tea shop of one Paramu, he claimed to have seen the deceased also

consuming tea at the same location. Subsequently, around 6:30 a.m., he

came to know about the death of the deceased, whose body, according to

him, was found lying near the road adjacent to the Fire Force office.

However, during cross-examination, DW1 admitted that he did not know

the exact date of the occurrence. He further acknowledged that he is the

de facto complainant in a separate case, wherein one Nazeer had allegedly

attempted to murder him by striking his head. He was unable to specify the

date on which he purportedly saw the deceased at Paramu's tea shop. He

also confirmed that the accused was not present at the tea stall at the

relevant time. Significantly, he admitted having no knowledge about the

incident that had occurred on the previous day of the deceased's death.

Having carefully evaluated the evidence of DW1, we are of the view that

the same is unsafe to be acted upon.

30.​ Having considered the evidence in its entirety, we are of the

view that there is no reason to doubt their version. They are close friends

and associates of the accused as well as the deceased, and their

explanation as to their presence in and around the scene of the crime ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ 2025:KER:34629 ​ Crl.A.No. 1366 of 2022​ ​ 23​ ​

appears to be reliable and trustworthy. They are persons who have no axe

to grind against the accused. Even the defence has no case that they had

any reason to falsely implicate the appellant. They were present on

30.4.2017 from 6:30 p.m. in and around the scene of the crime. Probably

because they were also in an inebriated state, they were not in a position

to assess whether the deceased required prompt medical attention. As the

deceased used to spend the night in the veranda of the Triveni

Supermarket, they did not deem it necessary to shift him to any other

place. We have no reason to doubt the credibility of the evidence given by

PWs 2 and 3.

31.​ Insofar as the recovery of MO1 effected under Section 27 of

the Indian Evidence Act, 1872, at the instance of the accused is concerned,

we have serious reservations about the same. Both PWs 2 and 3 in their

evidence had stated that after the infliction of the injury, the appellant had

walked away with the stick towards the Fire House Garage on the east.

However, the recovery of the weapon in terms of Ext.P4(a) disclosure

statement has been effected from a place about 6 meters to the northeast

of the north eastern corner of the shed. Furthermore, as rightly pointed out ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ 2025:KER:34629 ​ Crl.A.No. 1366 of 2022​ ​ 24​ ​

by the learned counsel, there is no case for the prosecution that the

appellant made any attempt to conceal the weapon. The weapon was

recovered from an open place accessible to all. When the Investigating

Officer was examined, he merely stated that the accused, while in custody,

furnished a statement and nothing more. None of the prosecution

witnesses deposed the exact statement said to have been made by the

appellant herein, which ultimately led to the discovery of a fact relevant

under Section 27 of the Indian Evidence Act, 1872. In his evidence, he has

not proved the contents of the recovery mahazar. He has also not

mentioned that he had procured the presence of independent witnesses

from the locality to witness the search. The principles of law laid down by

the Hon'ble Supreme Court in Ramanand @ Nandlal Bharti v. State of

Uttar Pradesh2, pertaining to the preconditions that must be satisfied for

a recovery to be admissible under Section 27 of the Indian Evidence Act,

have not been scrupulously followed in the present case.

32.​ Having found that the infliction of injuries by the appellant has

been proved by the prosecution, we shall now come to the contention

2022 SCC OnLine SC 2248 ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ 2025:KER:34629 ​ Crl.A.No. 1366 of 2022​ ​ 25​ ​

advanced by the learned counsel that if it is taken that the occurrence

stands established, the offence, if any, proved against the appellant would

not fall within the purview of Section 302 of the IPC. According to her, only

an offence under Section 324 of the IPC was made out. PW15, the Doctor

who conducted the autopsy, stated that the fatal injury was Injury No. 5,

and it is independently sufficient in the ordinary course of nature to cause

death and that the injuries on the arms could be caused while warding off

the blows. PW2, in his testimony, stated that he saw the accused beating

the deceased on the chest and shoulder. He further stated that when the

accused attempted to strike the deceased on the head, PW3 intervened and

told him not to do so.

33.​ Going by the definition of 'Culpable Homicide' as defined under

Section 299 of the IPC and 'Murder' as defined under Section 300 of the

IPC, one may note that there is no radical difference between them. The

cause of death is common to both offences. There must necessarily be

criminal intention or knowledge in both cases. The act which caused the

murder is the act of the offender in each case. The true difference lies in

the degree. In the case of murder, there will be the presence of a greater ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ 2025:KER:34629 ​ Crl.A.No. 1366 of 2022​ ​ 26​ ​

intention or knowledge of the fatal result than in the case of culpable

homicide. This difference is attempted to be emphasised by the four

clauses describing the offence under Section 300 of the IPC.

34.​ In a case under Section 302 of the IPC, what Courts have to

see is whether the injury was caused with the intention of causing death or

whether the injuries were sufficient in the ordinary course of nature to

cause death or to cause such bodily injuries as the accused know to be

likely to cause death although death was ultimately due to supervention or

some other cause. It is not necessary for the application of Clause (3) of

Section 300 of the IPC that the injury must be such as would make it

impossible for the injured to escape death. All that is required is that the

injury intended must be such as would, in the ordinary course of nature, be

sufficient to cause death. Obviously, there is a fine distinction between "a

bodily injury likely to cause death" and "a bodily injury sufficient in the

ordinary course of nature to cause death". The difference between clause

(b) of Section 299 of the IPC and clause (3) of Section 300 of the IPC is

one of the degree of probability of death resulting from the intended bodily

injury. It is the degree of probability of death which determines whether a ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ 2025:KER:34629 ​ Crl.A.No. 1366 of 2022​ ​ 27​ ​

culpable homicide is of the gravest, medium or the lowest degree. The

word "likely" in clause (b) of Section 299 of the IPC 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. (See also Thangaiya v. State of Tamil

Nadu3).

35.​ There may be a case in which even though the injury was

sufficient in the ordinary course of nature to cause death, the injured may

escape death, but if he dies as a result of such an injury, the offence would

be covered by Clause (3) of Section 300 of the IPC and be murder. If,

however, the injury inflicted is of such a nature that it is only likely to cause

death and would not in the ordinary course of nature be sufficient to cause

death, they can only be attributed with the knowledge that the infliction of

bodily injury was likely to cause death.

36.​ In Jagriti Devi v. State Of Himachal Pradesh4, it was held

(2005) 9 SCC 650)

2009 AIR SC 2869 ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ 2025:KER:34629 ​ Crl.A.No. 1366 of 2022​ ​ 28​ ​

by the Apex Court that Section 304 Part II comes into play when the death

is caused by doing an act with knowledge that it is likely to cause death but

there is no intention on the part of the accused either to cause death or to

cause such bodily injury as is likely to cause death

37.​ On a careful evaluation of the facts of the instant case in the

light of the principles above, it can be seen that the accused and the

deceased were friends and co-workers, and had gone to work together on

the date of the incident. After completing their work, they consumed

alcohol together. It was thereafter that an altercation broke out between

them regarding the sharing of liquor. The weapon used by the appellant

was a piece of firewood, which could only have been picked up from the

market premises. This indicates that the altercation turned into violence at

the spur of the moment rather than premeditation. Moreover, even as per

the prosecution version, when PW3 intervened during the assault, the

appellant immediately stopped beating him and left the scene with the

stick. There is no material to suggest that the assault was preplanned or

that the appellant had any prior intent to cause grievous harm or to murder

the deceased. The quarrel appears to have arisen from a relatively trivial ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ 2025:KER:34629 ​ Crl.A.No. 1366 of 2022​ ​ 29​ ​

issue, and the assault itself lacks the indications of calculated violence. The

injuries, apart from injury No. 5, which ultimately proved fatal, were limited

to contusions on the hands and face. Having carefully considered the

nature of the weapon, the circumstances of the altercation, and the

sequence of events, we are of the considered view that injury No. 5 was

not intended to be fatal and was likely inflicted in the heat of the moment,

possibly even accidentally. There is no evidence to indicate that the

appellant specifically aimed to cause a fatal injury to the skull, nor that the

other injuries were sufficient, in the ordinary course of nature, to cause

death. At the most, it can be said that the appellant had the knowledge

that his act was likely to cause an injury that could result in death.

Therefore, in view of the facts and circumstances of the case, and the role

attributed to the appellant, we are of the opinion that the offence

committed does not fall under Section 302 r/w. Section 300 "thirdly" of the

Indian Penal Code, but rather under Section 304 Part II of the IPC.

Conclusion:

In the result, we allow this appeal but only to the extent that instead ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ 2025:KER:34629 ​ Crl.A.No. 1366 of 2022​ ​ 30​ ​

of Section 302 of the IPC, the appellant shall stand convicted for the

offence of culpable homicide not amounting to murder punishable under

Section 304 Part - II of the IPC and sentenced to undergo Rigorous

Imprisonment for seven (7) years and to pay a fine of Rs.50,000/- (Rupees

Fifty Thousand only) and in default of payment of fine, to undergo Rigorous

Imprisonment for three months. 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/-
​               ​       ​        ​        ​   ​       ​         ​   ​         K.V. JAYAKUMAR,
                                                                                   JUDGE


APM