Allowed

Dilip v. State of Kerala

Kerala HC6 Sept 2012CRL.A/969/2003

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal on the ground that the offence fell under Section 308 IPC instead of Section 307 IPC due to lack of intention to cause death. The conviction was altered to Section 308 IPC while the sentence and compensation direction were affirmed.

What did the court decide?

Conviction altered from Section 307 IPC to Section 308 IPC; sentence of 2 years rigorous imprisonment and fine of Rs.15,000/- affirmed; compensation direction sustained.

Dilip Vs State of Kerala — Murder and Culpable Homicide | Kerala HC (2012)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN

¶4

THURSDAY, THE 6TH DAY OF SEPTEMBER 2012/15TH BHADRA 1934

¶5

CRL.A.No. 969 of 2003 ( )

¶6

SC.222/1999 of ADDL. SESSIONS COURT (FAST TRACK-II), THRISSUR

¶7

APPELLANT(S)/ACCUSED :-

¶8

DILIP, S/O.KESAVAN, KURUPPATH HOUSE, MUTTICHOOR KADAVU, NATTIKA VILALGE, CHAVAKKAD TALUK.

¶9

BY ADV. SRI.JAYASANKAR P.G ( STATE BRIEF)

¶10

RESPONDENT(S)/COMPLAINANT :-

¶11

STATE OF KERALA REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, VALAPPAD REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

¶12

BY PUBLIC PROSECUTOR SRI.ROY THOMAS

¶13

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶14

jvt

¶15

N.K.BALAKRISHNAN, J.

¶16

Crl.A. No.969 of 2003

¶17

Dated this the 6^th day of September 2012

¶18

J U D G M E N T

¶19

This appeal is directed against the conviction and sentence passed by the Addl. Sessions Judge, Fast Track Court-II (Adhoc), Thrissur. The appellant was convicted for the offence punishable under Sec.307 IPC and was sentenced to undergo R.I. for 2 years and to pay a fine of Rs.15,000/- and in default to undergo R.I. for one year.

¶20

The incident took place on 27.7.1996 at a place near a toddy shop at 7.30 – 8 PM. PW6, the injured went to the toddy shop for consuming toddy. He consumed toddy. He was demanding more toddy. The accused went to that toddy shop. There was some wordy altercation between PW6 and the accused. It is stated that the accused had kicked at the desk kept in the toddy shop. The accused thereafter left the toddy shop. The Manager of the toddy

¶21

Crl.A. No.969 of 2003

¶22

-: 2 :-

¶23

shop closed the toddy shop. Even thereafter PW6 was demanding for toddy. At that time, the accused who was on the road threw a challenge against PW6 saying that if he (PW6) wanted toddy, to come out and meet him (the accused) if he is so dare enough. On hearing the challenge PW6 went to the road, near the accused. According to the prosecution, the accused then stabbed PW6 thrice. The first and the 2^nd knife blows fell on the arm. The 3^rd knife blow fell on the lower side of chest on the mid axillary line. PW6 fell down. PWs.5 and another reached there. The

¶24

injured was at first taken to the Elite Hospital and from there he was taken to West Fort Hospital, Thrissur. From there, the wound was bandaged and PW6 was taken to the Medical College Hospital, Thrissur. The police went there and recorded his statement, based on which the FIR was registered. Investigation was conducted. The knife (MO1) stated to have been used to inflict the injury was recovered based on the disclosure statement given by PW6. After

¶25

Crl.A. No.969 of 2003

¶26

-: 3 :-

¶27

completing the investigation the charge sheet was laid against the accused for commission of offence punishable under Sec.307 IPC.

¶28

PWs.1 to 13 were examined and Exts.P1 to P12 were marked. MO1 to MO3 were also marked.

¶29

PW6, the injured deposed in tune with the prosecution case. It was corroborated by PW5. Relying on the evidence given by PWs.6 and 5, which was further corroborated by the evidence given by the doctor and the factum of recovery of MO1, the court below found the appellant guilty of the offence punishable under Sec.307 IPC.

¶30

Adv.Sri.P.G.Jayasankar, the learned counsel appointed as State Brief has argued at length challenging the correctness of the finding entered by the court below that the offence proved against the appellant is Sec.307 IPC. It is vehemently argued by the learned counsel that the evidence given by PW4, the doctor who proved Ext.P1

¶31

Crl.A. No.969 of 2003

¶32

-: 4 :-

¶33

certificate would show that injuries 1 and 2 were only incised injuries ½ x ½ x 1 cm; the first one on the upper arm and the 2^nd one was just above injury No.1. The only injury, which according to the prosecution, was sufficient in the ordinary course of nature to cause the death of the victim was the incised injury inflicted on the lower side of chest on the mid axillary line penetrating into the pleural cavity. It is pointed out by the learned counsel that PW4 has stated that he did not note that there was bleeding. If the accused had the intention to inflict an injury sufficient in the ordinary course of nature to cause the death using MO1 having a blade of 18 cms length, then the injury should have been deeper, penetrating into the pleura itself, causing damage to the lungs. But the injury noted by the doctor is not of that much dimension as was likely to cause death. It is also argued by the learned counsel that since the first and 2^nd injuries were inflicted on the left arm in the natural course the 3^rd injury also might have been aimed at on the

¶34

Crl.A. No.969 of 2003

¶35

-: 5 :-

¶36

arm of the injured. In any event since the injury was not so penetrating, it cannot be said that the accused had the intention to inflict such an injury, Sri.Jayasankar argues. In other words, according to the learned counsel, it cannot be said that the accused had the intention to cause the death of the victim.

¶37

The argument further proceeds that to hold that the accused did the act with intend to cause murder of the victim, one of the four ingredients enumerated under Sec.300 of IPC should have been established, but there is no definite finding nor is there any sufficient material to hold that the act imputed against the accused would fall under any of the four ingredients coming under Sec.300 of IPC.

¶38

The evidence given by PW4, the doctor would show that injury No.3, the incised wound on the left lower side of the chest on the mid axillary line penetrating into the pleural cavity was fatal in nature. It was also stated that cumulatively the injuries can cause the death of the

¶39

Crl.A. No.969 of 2003

¶40

-: 6 :-

¶41

victim. Sri.Jayasankar, the learned counsel for the appellant would submit that had the injury been penetrating there would have been bleeding. But the doctor has stated that he did not note any bleeding. But, there is evidence to show that the victim was at first taken to Elite Hospital and from there to West Fort Hospital and from there, the injury was bandaged. It was thereafter he was taken to the Medical College Hospital. It is also in evidence that when he was taken to the Medical College Hospital the victim was in an unconscious state. The very fact that the 3^rd injury was inflicted on a vital part that too with a knife having a blade of 18 cms length would clearly show that the injury was inflicted with intent to cause such an injury which was sufficient in the ordinary course of nature to cause death. But, because timely medical aid was given the appellant did not succumb to the injuries.

¶42

The only other point that survives for consideration is whether the offence would fall actually

¶43

Crl.A. No.969 of 2003

¶44

under Sec.307 IPC or whether it would only amount to an offence under Sec.308 IPC. It is pointed out by Sri.Jayasankar that the learned trial judge has also stated that the accused must certainly be attributed with the knowledge that his act was likely to cause death of the injured and so the offence would fall under Sec.304 IPC had the victim died, and if that is so, for the attempt to cause culpable homicide, the offence alleged against the appellant would fall only under Sec.308 IPC. It is also argued by the learned counsel that had the accused any intention to cause the death he would have certainly used sufficient force on the weapon to cause the injury penetrating into the vital part (pleural cavity), but it did not penetrate causing injury to the lungs since the accused did not use that much force. Therefore, that also is a strong indication to show that the accused had no intention to cause the death, it is argued. Further, it is also argued that there was no previous enmity for the appellant towards the victim and that incident did in

¶45

Crl.A. No.969 of 2003

¶46

-: 8 :-

¶47

a drunken state. There is evidence to show that the victim was drunken. Even in that state of intoxication he wanted more toddy to consume. PW5, the witness also was drunk as he also came out from the toddy shop.

¶48

There is one more aspect which also may assume relevance. The evidence would show that PW6 (the injured) on hearing the challenge made by the accused went to the road and he caught hold of the hand of the accused. That might have caused grave and sudden provocation especially because the parties were drunk. The very fact that the incident took place from near the toddy shop and that the injured went out of the toddy shop in a state of intoxication also may have to be borne in mind. It is also pointed out that it is not possible to hold that the accused committed the offence with pre-meditation but in a sudden fight in the heat of passion upon a sudden quarrel. In such circumstances, it is immaterial which party offered the provocation or committed the first assault.

¶49

Crl.A. No.969 of 2003

¶50

-: 9 :-

¶51

Since PW6 and the witness (PW5) were drunk and since no other independent witness has spoken about the genesis of the incident it is not possible to hold that the accused inflicted the injury with such intention that by inflicting that injury, he intended the death of the victim. So, considering the totality of the circumstances, it is safer to hold that the offence falls under Sec.308 IPC and not under Sec.307 IPC.

¶52

Learned Public Prosecutor submits that considering the nature of the offence, the learned trial judge has already taken a very lenient view awarding only a sentence of imprisonment for 2 years and a fine of Rs.15,000/-.

¶53

Considering all the aspects, I find that the conviction can be altered to under Sec.308 IPC. He has to be sentenced to undergo R.I. for 2 years and to pay Rs.15,000/- as fine.

¶54

In the result, this Crl.A. is allowed only to the

¶55

Crl.A. No.969 of 2003

¶56

-: 10 :-

¶57

extent that the conviction of the appellant is altered, convicting the appellant for the offence under Sec.308 IPC. But the appellant is sentenced to undergo R.I. for 2 years and to pay Rs.15,000/- as fine and in default to undergo R.I. for one year. The direction that if the fine amount is paid, the entire amount shall be paid to PW6 as compensation is also sustained. The court below will take steps to execute the sentence forthwith.

¶58

N.K.BALAKRISHNAN, JUDGE.

¶59

Jvt

Dilip v. State of Kerala

Case brief

What is this about?

What did the court decide?

Dilip v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

State of Kerala Vs Swayambhoothalingam @ Ravi

Biju Vs State of Kerala

Baby Vs State of Kerala

V.Sunil Kumar Vs the Excise Inspector

Safi Valappan Vs State of Kerala

Anil Koshy Vs Sub Inspector of Police,Pathanamthitta