Accused convicted of stabbing a man suspected of an affair with his wife appealed against conviction under Section 302 IPC and Section 27 of the Arms Act. Court confirmed eyewitness evidence, weapon recovery via disclosure statement and rejected grave-and-sudden-provocation defence as showing premeditation; appeal dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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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 JOHNSON JOHN WEDNESDAY, THE 14TH DAY OF FEBRUARY 2024 / 25TH MAGHA, 1945
CRL.A NO. 910 OF 2019
CRIME NO.102/2016 OF Kadakkal Police Station
AGAINST JUDGMENT DATED 17.06.2019 IN SC 666/2018 OF IV ADDITIONAL SESSIONS COURT, KOLLAM
APPELLANT/ACCUSED:
SUNIL KUMAR, AGED 49 YEARS S/O.MADHAVAN, THIRUVONAM VEEDU, SANKAR MUKKU, KUTTICADU MURI, KADAKKAL VILLAGE, KOLLAM DISTRICT. BY ADV LATHEESH SEBASTIAN
RESPONDENT/STATE & COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM- 682 031.
BY ADV. SRI. E.C. BINEESH, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07.02.2024, THE COURT ON 14.02.2023 DELIVERED THE FOLLOWING:
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P.B. SURESH KUMAR & JOHNSON JOHN, JJ.
Crl. Appeal No. 910 of 2019
-------------------------------------------------------Dated this the 14th day of February, 2024.
JUDGMENT
Johnson John, J .
The sole accused in S.C No.666 of 2018 on the file of the Additional Sessions Judge - IV, Kollam, filed this appeal challenging the conviction and sentence imposed on him for the offences under Section 302 IPC and Section 27 of the Arms Act as per the impugned judgment dated 17-06-2019.
2 . The prosecution case is that the accused suspected illicit relationship between his wife and the deceased Prasad and on 20-012016 at about 5.20 p.m., when the accused reached his house, he saw the deceased near his wife and because of that enmity and with the intention to commit the murder of Prasad, he chased the deceased in his Aviator scooter bearing registration No.KL-24-H-249 armed with a sword stick. When the accused reached near house bearing No.IV/153 of Kadakkal Grama Panchayat situated on the northern side of the Kuttikad Kottappuram Panchayat road, he saw the deceased standing in front of the said house and then the accused questioned the deceased and took the sword from the back of his shirt and stabbed on the left chest of
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Prasad. The deceased who sustained grievous injuries died on the spot and the accused is thereby alleged to have committed the offences as aforesaid.
3 . On the basis of Ext.P1 First Information Statement of PW1, Ext.P13 First Information Report was registered by PW17 Sub Inspector of Kadakkal Police station. Thereafter, PW18, the then Sub Inspector of Kadakkal Police station conducted the investigation and after completing the investigation, the final report was filed by PW19, the then Circle Inspector of Kadakkal Police station, before the Judicial First Class Magistrate, Kadakkal and after committal and on the appearance of the accused before the trial court, charge was framed under Sections 341 and 302 IPC and Section 27 of the Arms Act and when the charge was read over and explained to the accused he pleaded not guilty. Thereafter, the prosecution examined PWs 1 to 19 and marked Exts.P1 to P43 and MOs 1 to 10 to prove the charge against the accused. Since it was found that the accused is not entitled for an acquittal under Section 232 Cr.P.C, he was called upon to enter on his defence. From the side of the accused, DWs1 to 5 were examined and Exts.D1 to D6 were marked.
4 . After hearing both sides and considering the oral and documentary evidence on record, the learned Additional Sessions Judge by the impugned judgment dated 17-06-2019 convicted and sentenced the accused to undergo imprisonment for life and to pay a fine of
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Rs.1,00,000/- and in default of payment of fine to undergo simple imprisonment for one year for the offence under Section 302 IPC and to undergo rigorous imprisonment for one year for the offence under Section 27 of the Arms Act.
5 . Heard Sri.Latheesh Sebastian, the learned counsel for the appellant and the learned Public Prosecutor Sri.E.C.Bineesh and perused the records.
6 . The point that arises for consideration in this appeal is whether the conviction and the sentence passed against the accused is legally sustainable.
7 . The learned counsel for the appellant argued that the evidence adduced from the side of the prosecution is of a circumstantial nature and the prosecution has not succeeded in fully establishing the circumstances from which the conclusion of guilt is to be drawn and that there are serious contradictions and inconsistencies in the evidence of the material witnesses who supported the prosecution. But the learned Public Prosecutor argued that PWs2 and 3 are witnesses to the occurrence and their evidence is also supported by medical evidence, recovery of the weapon of offence on the basis of the disclosure statement of the accused and all the proved circumstances taken cumulatively has a definite tendency unerringly pointing towards the guilt of the accused and that there is no escape from the conclusion that
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within all human probability, the crime was committed by the accused and none else.
8 . PW1 is the brother of the deceased, who preferred Ext.P1 First Information Statement and his evidence shows that on getting information from his friend that his brother sustained a stab injury and lying near the house of Sasi Annan, he reached the place of occurrence and at that time the injured was being taken to the hospital and by the time they reached the hospital, he was no more. PW1 identified his signature in Ext.P1 First Information Statement and according to PW1, previously there was a quarrel between the accused and the deceased on the allegation that the deceased is having illicit relations with the wife of the accused.
9 . PW2 deposed that at about 5.30 p.m., on 20-01-2016, the deceased Prasad came to her house and enquired about her husband and since her husband was not there in the house, she gave the phone number of her husband to the deceased and at that time, the accused came there in a scooty and there was some verbal altercation between the accused and the deceased and then the accused took something from his back and swung against the deceased and at that time she went inside the house to contact her husband through phone and then she heard the sound of a metal pipe falling and when she came out of the house, she saw the accused running in the direction of the house of
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her sister and the deceased following him and falling to the ground. PW2 also clarified that when she entered her house to contact her husband through phone, only the accused and the deceased were in the courtyard of her house and the scooty in which the accused came there was also near the sit-out of her house. The evidence of PW2 shows that she has given a statement under Section 164 Cr.P.C to the Magistrate and the same is marked as Ext.P2. PW2 deposed that she also saw a metal pipe lying in the courtyard of her house and that the same was subsequently taken by the police.
10. PW3 is the brother of the husband of PW2 and his evidence shows that he is residing near to the house of PW2. PW3 cannot remember the date of occurrence, but he would say that at about 6.00 p.m., while he was standing in the courtyard of his house, he saw the accused proceeding in a scooty towards the house of PW2 and two minutes thereafter, he heard the cry of PW2 and when he rushed to that place, he saw the accused running from there and the deceased lying in supine position in front of PW2 and blood oozing from the mouth and nose of the deceased. According to PW3, even though the injured was taken to hospital, he later came to know about his death. Ext.P3 is the statement under Section 164 Cr.P.C given by the witness to the Magistrate. PW3 also identified the accused before the court.
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11. PW7 is a witness to Ext.P4 inquest report. PW8 was the driver of the ambulance in which the injured was taken to the hospital. According to PW8, the Doctor, after examining the injured, declared that he was dead. According to PW8, after the inquest, the body of the deceased Prasad was taken to the medical college hospital in his ambulance. PW8 deposed that he reached the place of occurrence after getting a telephone call from the brother-in-law of the deceased and when he reached there, the deceased was lying near a rubber tree and blood was oozing from his mouth.
12. PW9 is a witness to Ext.P5 mahazar for the recovery of a bike bearing registration No.KL 24-A-5960. PW16 was the then Village Officer of Kadakkal Village, who prepared Exhibit P2 scene plan. PW17 was the Sub Inspector of Kadakkal Police Station, who registered Exhibit P13 FIR on the basis of of Exhibit P1 First Information Statement on 20.01.2016.
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“ Injuries (Ante-Mortem)
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reached the place of occurrence and prepared Exhibit P15 scene mahazar and at that time, he also recovered 2 footwears and the cover of a sword from the place of occurrence. The footwears are marked as MO2 series and the cover of the weapon as MO1. He also recovered a blood stained wood piece and a mobile phone from there and the same are marked as MOs 3 and 4 respectively. PW18 stated that he recovered scooty bearing registration No. KL-24-H-249 used by the accused to reach the place of occurrence and the property list prepared in this connection is marked as Exhibit P16. The dress of the deceased taken to custody at the time of the inquest are marked as MOs 5 to 7.
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was recovered by preparing Exhibit P6 mahazar. The relevant portion of the disclosure statement of the accused is marked as Exhibit P28. PW18 identified the stick sword recovered as MO9.
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the accused Sunil Kumar pointing out to the police a stick sword in the shrubs and the police recovered the same.
“ആസമയം�്ᩚ �തി�സ�നി�ൽഒരു� scooty യം�ൽവᩐ�. ്ᩚ�സ�ുᨨ�� അയം�ുᨵ��തിᩜ �ൽസ�സ�രുമ�യം�നി�പോ��ടാ�എᩐ��റᨼ�. സ�നി� ��റകി�ൽ എപോ�� ഒᩐ� എടാ�ᩈ� വ�ശി�്ᩚ �സ�ുᨨ ഒഴി�ᨼ�. ഞാ�ൻ അകിᩈ�കിയംറ�പോ$്ᨾനെനി phone നെ$യ്തി�. അപോ(�ൾഒരു�ശിᩒᩏ�പോകി്ᨾ ഒരു�കി�ഴിൽവ�ഴി�ᩐശിᩒᩏമ�യം�രു�ᩐ�. ഞാ�ൻപോനി�ᨪ�യംപോ(�ൾഒരു�ൾ പോ$ᨴ�യം�നെടാവ�ടാ�നെ- അടാ�പോᩈᨪ ഓടാ�ᩐതി കിᩂ�. �സ�ുᨨ ��റനെകി ഓടാ�. ഞാ്ᨲുᨵ �നെടാഅടാ�ᩈ��രുയം�ടാᩈ�ൽവ�ണു�. ഞാ�ൻവ�്ᨾ�ൽകിയംറ�. ആനെരു�നെᨪപോയം�വᩐ�. �സ�ുᨨ�നി നെ$റ�യംഅനിᨪമ�ᩂ�യം�രു�ᩐ�. ഞാ�ൻ വ�്ᨾ�നികിᩈ�കിയംറ� phone നെ$ᩞ �ൻപോ��കി�പോ3�ൾ്ᩚ�സ�ുᨨ��്ᩚ�തി�യം�� മ�്ᩚതിപോമമ�്ᩢᩈ�ᩂ�യം�രു�ᩐ�ᩦ 6. ആവഴി�എനെവ�്ᨾ�പോ7ᨪ മ�്ᩚതിമ�ᩦ വഴി�യം�യം�രു�ᩐ�. �തി�വᩐ scooty എനെവ�ടാ�നെ- Sitout നിടാ�ᩈ�തിനെᩐ ഉᩂ�യം�രു�ᩐ�. ”
not only the verbal altercation between the accused and deceased, but
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also saw the accused taking out something from behind and attempting to assault the deceased with the said object and it was at that time, she returned to the house to telephone her husband and then, she heard the sound of the fall of a metal pipe. The evidence of PW2 clearly shows that when she came out of the house, the accused was seen running towards the side of the house of her sister and the deceased following him and falling down in the nearby property. It is in evidence that PW3 is residing near to the house of PW2 and he saw the accused travelling in a scooty towards the house of PW2 on the date of occurrence at about 6 p.m. and 2 minute thereafter, he also heard the cries of PW2 and he rushed to the place of occurrence.
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was examined from the side of the defence to discredit the evidence of PW15 and the findings in Exhibit P11 postmortem certificate regarding the nature of injury and the weapon of offence. But, he admitted in cross examination that he is not a forensic expert and that only a forensic expert is competent to depose about the dead body. In cross examination, DW1 admitted that he cannot say at what time rigour mortis will start and disappear in a dead body. The evidence of DW2, finger print expert attached to D.C.R.B., Kollam, only shows that he developed 3 chance prints from the cover of the weapon seized from the place of occurrence and subsequently, filed a report to the effect that the same is not identical with the fingerprint slips of the accused. DW2 admitted in cross examination that if the object is recovered from an open space, the finger print will be that of the person who handled the same and since the cover of the weapon was recovered from an open space, the process of elimination was not possible.
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that the police has shown the accused to him and he denied the suggestion of the defence that he is seeing the accused for the first time in court.
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this regard is also supported by the evidence of PW5. The evidence of PWs 2 and 3 shows that the accused escaped from the place of occurrence and that he abandoned the cover of the sword in the courtyard of the house of PW2 and from the evidence of PWs 5 and 6, it can be seen that on the next day of the occurrence, he reserved a ticket in a tourist bus to Selam and he boarded the said bus after parking his motorcycle at the house of PW6.
the Indian Evidence Act, as it is well settled that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
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normal discrepancies in evidence are those which are due to normal errors of observations and normal errors of memory due to lapse of time and such discrepancies and errors will always be there, however honest and truthful a witness may be.
(4) SCC 158, the Hon’ble Supreme Court held thus:
“A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as a fact or relevant facts which may lead to the discovery of the fact issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not
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a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by an isolated scrutiny.”
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that the specific case of the prosecution is that the deceased had some illicit relationship with the wife of the accused and on 20.01.2016, at about 5.20 p.m., the accused saw the deceased and his wife together in his house and therefore, it is clear that the accused, who was deprived of the power of self control by grave and sudden provocation, caused the death of the deceased. But, in this case, it is in evidence that the occurrence took place, while the deceased was standing in the courtyard of the house of PW2 at about 5.30 p.m., on 20.01.2016 and that the accused came there in a scooty armed with MO9, sword, and inflicted the fatal injuries on the deceased and there is no evidence in this case to show that there was any sudden provocation from the side of the deceased at the time of occurrence.
“Exception 1.—When culpable homicide is not murder.—
Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the
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provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisos:—
First.—That the provocation is not sought or voluntarily provoked by 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.—That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation.—Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
Illustrations
(a) A, under the influence of passion excited by a provocation given by Z, intentionally kills Y, Z's child. This is murder, inasmuch as the provocation was not given by the child, and the death of the child was not caused by accident or misfortune in doing an act caused by the provocation.
(b) Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol at Y, neither intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not committed murder, but merely culpable homicide.
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(c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by the arrest, and kills Z. This is murder, inasmuch as the provocation was given by a thing done by a public servant in the exercise of his powers.
(d) A appears as a witness before Z, a Magistrate. Z says that he does not believe a word of A's deposition, and that A has perjured himself. A is moved to sudden passion by these words, and kills Z. This is murder.
(e)A attempts to pull Z's nose. Z, in the exercise of the right of private defence, lays hold of A to prevent him from doing so. A is moved to sudden and violent passion in consequence, and kills Z. This is murder, inasmuch as the provocation was given by a thing done in the exercise of the right of private defence.
(f) Z strikes B. B is by this provocation excited to violent rage. A, a bystander, intending to take advantage of B's rage, and to cause him to kill Z, puts a knife into B's hand for that purpose. B kills Z with the knife. Here B may have committed only culpable homicide, but A is guilty of murder.”
605], the Honourable Supreme Court held that the first test is whether a reasonable man, of the same sociological strata as the accused, would lose his self control in a similar situation. The next important aspect to be considered is whether the provocation is of such a nature as not to leave room for pre meditation and contemplation, and the act must solely be rooted in the passion of the moment. It cannot be disputed
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that the graveness and suddenness of the provocation must both be simultaneous.
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imposed on the accused by the trial court.
In the result, this appeal is dismissed confirming the conviction entered and the sentence passed by the learned Additional Sessions Judge in S.C No. 666 of 2018. Interlocutory applications, if any pending, shall stand closed.
sd/-
P.B. SURESH KUMAR, JUDGE.
sd/- JOHNSON JOHN, JUDGE.
amk/Rv
2 issues framed by the court
Whether the conviction and sentence for offences under Section 302 IPC and Section 27 of the Arms Act are legally sustainable.
Whether the accused is entitled to the benefit of Exception 1 to Section 300 IPC on grounds of grave and sudden provocation.
Colour shows how this judgement treated each authority
State of Uttar Pradesh vs. M.K. AnthonyRelied on¶31
AIR 1983 SC 48 · Who else cites this
Zahira Habibullah H. Sheikh v. State of GujaratRelied on¶32
2004 (4) SCC 158 · Who else cites this
K.M. Nanavati v. State of MaharashtraRelied on¶36
AIR 1962 SC 605 · Who else cites this
6 provisions across 3 enactments
Sunil Kumar
State of Kerala
P.B. Suresh Kumar
Johnson John
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
