1. The appeal is filed against judgment dated 9/7/2014 in Sessions Case No.667/2004 of the Additional Sessions Judge, Kasaragod. The sole accused has been convicted for offence u/s 302 of I.P.C. and was sentenced to undergo life imprisonment and a fine of Rs. 50,000/- in default of which, to undergo rigorous imprisonment for three years.
2. The prosecution case discloses as under:-
The accused and the deceased had a quarrel on 10/4/2003 by about 7.15 p.m and during the said quarrel, the accused took a firewood and inflicted an injury on the head of the deceased Manicha and on his left ankle. The injured was taken to the hospital. But he died while undergoing treatment. The first information was given by PW1 who was an eye witness to the incident. Crime has been registered by the Sub Inspector of Police, Adhur Police Station. Final report was filed before the Judicial First Class Magistrate Court-I Kasargod and the matter was committed to the
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Sessions Court. Charge was framed u/s 302 I.P.C. The accused pleaded that he is not guilty of the charges. Prosecution examined PW1 to PW10, relied upon Exts.P1 to P9 and MO1 to MO5. The defence examined 2 witnesses as DW1 and DW2. After giving an opportunity to the accused to explain the incriminating evidence against him in terms of S.313 Cr.P.C, the accused was found guilty and later sentenced as stated above.
3. The learned counsel for the appellant submits that this is the second round of appeal. Earlier the accused was found guilty and was convicted by the Sessions Court against which Crl.Appeal No. 1238/2008 was filed. One of the main contentions urged by the appellant was that he was a juvenile and therefore the Sessions Court did not have jurisdiction in the matter. This Court after considering the matter observed that the Sessions Court did not make any enquiry regarding the claim of juvenality and therefore the matter requires to be considered afresh. Accordingly, the conviction and sentence were set aside and the case was remanded to the trial Court for fresh consideration.
4. After remand, fresh evidence was taken and the Sessions Court found that at the time when the offence was committed, accused was a major and accordingly he was again convicted.
5. It is argued on behalf of the appellant that the Court below committed serious error in finding the accused guilty u/s 302 I.P.C. Even according to the prosecution, there was a scuffle between accused and deceased and during the said scuffle, the accused took a firewood piece with which he had inflicted one or two blows on the deceased. It is submitted that there was no premeditation to commit the murder and the alleged murder weapon was only a firewood piece, which was taken from a nearby house. Therefore, there was no intention to cause a bodily injury of such a nature to cause death. Learned counsel therefore argued that at best, the offence, if any, can be categorized as coming u/s 304 Part II of I.P.C.
6. On the other hand, learned Public Prosecutor supported the judgment of the Court below and submitted that the entire issue had been considered by the Court below in the proper perspective and had found that the commission of offence 4:- would come under murder and therefore there was justification to convict the accused for murder.
7. Before proceeding further, let us now examine the evidence that has been led by the prosecution. PW1 is an eye witness. He knew the accused as well as deceased. He heard a noise from the road near the house of one Madhavan. When he rushed to the place, he saw a scuffle between the deceased and accused. Both fell down and the accused managed to get up, took a wooden stick from the house of Madhavan and inflicted two blows on the head of deceased. When Madhavan came back, accused left the place leaving the firewood at the place of occurrence. Though the injured was taken to the hospital, he succumbed to the injuries.
8. PW2 is a person who also came to the scene of occurrence on hearing the hue and cry and she also saw the accused beating the deceased. PW3 is the son of deceased. He also came running on hearing the hue and cry and he saw his father lying with the injuries. He also saw the accused in the place of occurrence. From the evidence of PW1 and PW2, the incident is rather proved. Therefore, the fact that accused had inflicted two blows on the deceased on the aforesaid date with the firewood is proved. MO1 is the firewood that was used for inflicting the injury. Though it is argued by the learned counsel for appellant that the evidence of PW1 and PW2 is not believable, we do not find any contradictions in the said deposition warranting interference in the finding of fact by the trial Court. The trial Court has considered the entire evidence and had come to a finding which cannot be stated as erroneous in any manner. The evidence of Doctor PW7 strengthens the fact that the deceased died on account of the injury sustained by him. PW7 deposed that the deceased was having a fracture on the left side of his head, fracture on the left side of occipital bone extending anteriorly over the left parietal bone of the skull and fracture of left tibia and left fibula at its lower end. The cause of death was due to shock and hemorrhage because of head injury.
9. When the factum of death is due to the injury sustained by the deceased on account of the hit by the accused, question is whether it amounts to culpable homicide amounting to murder or culpable homicide not amounting to murder.
10. Learned counsel submits that even assuming that there is evidence to prove the commission of offence, at best it would only amount to culpable homicide not amounting to murder coming under the 4th Exception to S.300 I.P.C. 4th Exception to S.300 I.P.C. reads as under:-
'Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.'
11. Apparently there was a fight between the accused as well as the deceased. The question was whether there was any premeditation and whether the intention of the accused was to commit the crime. Of course there was a quarrel between the accused and deceased prior to the incident but the scuffle takes place all on a sudden while they were on the road. Accused had no weapon to commit the murder. After the fight when both of them fell down, accused got a firewood piece from a nearby house and he inflicted two injuries on the deceased. Therefore, the accused had no premeditation to commit the aforesaid act until the parties got involved in a fight and probably he would have committed without premeditation in a sudden fight in the heat of a passion upon a sudden quarrel. The finding of the trial Court that there was evidence to show that the accused and deceased were on inimical terms, the accused had strong dislike towards the deceased and further the nature of injuries caused would indicate that he was not entitled to get the benefit of 4th exception of S.300 I.P.C. We do not think that we can endorse the said view. At the time when the quarrel took place between them, there was no premeditation to commit murder. They might have been on inimical terms due to various reasons. But if the intention was to commit murder, he would have carried a weapon with him, which he did not. The accused saw the deceased and they had a verbal quarrel and later it led to a physical fight. Both of them fell down and suddenly the accused went to Madhavan's house, took a piece of wood and inflicted two blows. Apparently, he never had the intention to commit murder and therefore, we are of the view that this case would clearly fall under Exception 4 to S.300 in which event punishment can be given only u/s 304 I.P.C.
12. S.304 I.P.C. has two parts. Part I deals with punishment for culpable homicide not amounting to murder if the act by which the death is caused is done with the intention of causing death or of causing such bodily injury as is likely to cause deathPart II deals with instances where the accused does an act with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.
13. The fact that the accused had hit the deceased with a wooden stick on his head by itself may not indicate that he had an intention to cause death. The accused was just above 18 years at the time of the incident. It can't be stated that at the relevant time suddenly he developed an intention to cause death and being a person of such an age, he may not know whether such a bodily injury may cause death. He had hit the deceased on his head as well as on his leg and thereafter he left the place.
14. Taking an overall consideration of the evidence that had been adduced in the matter and the manner in which the genesis of the crime occurred, we are of the view that the accused is liable to be punished only for offence coming under Part II of S.304 I.P.C.
In the result, the appeal is allowed.
(i) We set aside the judgment of the Court below to the extent it finds the accused guilty u/s 302 I.P.C.
(ii) We find the accused guilty u/s 304 Part II I.P.C. and he is sentenced to undergo imprisonment for a period of 7 years and to pay a fine of Rs. 50,000/- (Rupees Fifty thousand only).
(iii) If there is default in payment of fine, he shall undergo simple imprisonment for a further period of one year.
(iv) The period of imprisonment he had already suffered during trial and pre-trial shall be adjusted towards the punishment as stated above.
(v) If he had already undergone the punishment as stated above, he shall be released forthwith, if his presence is not required in any other case.