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PETITIONER: A.M. KUNHIKOYA @ KOYA

       Vs.

RESPONDENT: STATE OF KERALA

DATE OF JUDGMENT26/03/1993

BENCH: SINGH N.P. (J) BENCH: SINGH N.P. (J) ANAND, A.S. (J)

CITATION:  1993 SCR  (2) 692        1993 SCC  Supl.  (3) 641  JT 1993 (3)   573        1993 SCALE  (2)275

ACT: Indian  Penal Code--Sections 148, 149, 302, 304 Part II  and 323--Appellant--Taking  into  account evidence  of  PWs  and circumstances  of  case--Held appellant had  knowledge  that injury  was  likely to cause death--No  intention  to  cause death of victim.

HEADNOTE: The appellant along with others was tried for offences under Section  302  read  with Sections 148, 149 and  323  of  the Indian Penal Code. The case of the prosecution was that on 16.9.80 Mammed Kutty at  6.00 a.m. in the morning pelted stones at the  house  of the  deceased.  At about 12.00 noon while Mammed  Kutty  and his brother Abdulla Kutty were passing in front of the house of  the  deceased,  a protest was made by  the  deceased  in respect of the morning incident which was denied. At  about 2.00 p.m. when the deceased was sitting  with  his wife  (PW  4)  and others on the varandah of  his  house,  5 persons  including the appellant came to his  courtyard  and challenged  him  to come out, if he wanted  to  beat  Mammed Kutty  and  Abdulla.   The deceased  stepped  out  into  his courtyard  and  asked the accused persons not  to  create  a scene,  when the appellant and the other accused  gave  some blows to the deceased on his hand.  Thereafter the  deceased raised  his hand to give a blow to the appellant,  when  the appellant  took  out  a dagger from his waist  and  gave  an injury  on the upper part of the chest of the deceased  near the  left shoulder and above the armpit.  The  deceased  ran towards  the  house  of  PW1  and  fell  on  the   varandah. Therefore,  the  accused persons escaped.   The  victim  was removed to the Medical Hospital where he was examined by  PW 9, but soon thereafter expired. The  F.I.R. was lodged at 7.15 p.m. and after  investigation the  chargesheet  was  submitted against  the  five  accused persons.   At  the  trial the  prosecution  examined  4  eye witnesses, PW1 to PW4, and PW8 the doctor who held the  post mortem examination. 693 The trial court on consideration of the materials on  record came to the conclusion that the charges leveled against  the accused   persons  had  not  been  established  beyond   all

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reasonable  doubt,  and on that finding  acquitted  all  the accused  including  the  appellant.   Great  importance  was attached  to the injury found on the person of  Abdulla  and adverse inference was drawn against the prosecution case. On  appeal  by  the  State, the  High  Court  convicted  the appellant  under  Section 302 and sentenced him  to  undergo rigorous imprisonment for life.  Another accused (Alavi) was convicted under Section 323 of the Penal Code and  sentenced to  payment  of  fine  of Rs. 250.   The  acquittal  of  the remaining 3 accused persons by the Trial Court was affirmed. The  High  Court  held  that  mere  non  disclosure  of  the superficial injuries on the person of Abdulla even if  those injuries  had been caused in the same occurrence, do not  in any manner affect the persecution case. In  the appeal to this court it was contended on  behalf  of the  appellants  that  the  statements  made  in  the  First Information  Report,  the evidence of the eye  witnesses  in connection  with the morning incident of pelting of  stones, show  that it was a concoction and that none had pelted  any stone on the house of the deceased, and that if this part of the prosecution case is disbelieved then it has a bearing on the main occurrence itself.  It was further submitted,  that the prosecution had suppressed the real manner of occurrence in as much as Abdulla was first assaulted by the prosecution party  on  the same day at about 130 p.m. and  that  he  was hospitalised  after receiving the injuries,  reliance  being placed  on  the evidence of DW1 who had stated that  he  had examined the injuries on the person of Abdulla on 16.9.80 at 430 p.m. Allowing the appeal in part, this Court, HELD:1. It is well settled that if the evidence of  the eye witnesses is held to be reliable and inspires confidence then  the accused cannot be acquitted solely on  the  ground that  some superficial injuries found on the person  of  the accused   concerned,   had  not  been   explained   by   the prosecution. [696 H] In  the  instant case, so far as the four  eye  witness  are concerned  they  have been named in the FIR.   The  FIR  was lodged  at 7.15 p.m., the same evening, within two hours  of the death of the victim.  The FIR mentions the 694 details of the occurrence, and the version disclosed therein had been supported by the eye witness before the Court.   No reason  has been shown as to why the evidence of these  P.Ws should not be accepted. [697 C] 2.The  prosecution has admitted that the accused  persons were  not carrying any weapon in their hands and during  the protest made, a sudden quarrel and fight took place  between the prosecution party and the accused persons.  This part of the  version  had  been admitted at the trial  by  the  eye- witnesses in their evidence, who also stated that first  the appellant and the other co-accused gave blows on the hand of the  deceased  and  that the knife blow  was  given  by  the appellant  when  the deceased was trying to give  a  counter blow to the appellant. [697 F] In  view  of the admitted position that a sudden  right  and quarrel  preceded  the  giving  of the  knife  blow  by  the appellant  to the victim which in all probability was  given not while the victim and the appellant were standing face to face  but during struggle between them, causing  tailing  of the injury, it shall not be just and proper to hold that the appellant had an intention to cause the death of the victim, but  only  knowledge that injury which he  was  causing  was likely  to  cause death.  In such a circumstance it  is  not possible to uphold the conviction of appellant under Section

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302  of the Indian Penal Code.  It is therefore  set  aside, and the appellant convicted under Section 304 Part 11 of the Indian   Penal  Code  and  sentenced  to  undergo   rigorous imprisonment for 7 years. [697 H,698 A-C]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 818  of 1985. From  the  Judgment and Order dated 4.7.1985 of  the  Kerala High Court in Criminal Appeal No. 251 of 1982. P.S. Poti and Ms. Malini Poduval for the Appellant. M.T. George for the Respondent. The Judgment of the Court was delivered by N.P.  SINGH, J. The appellant along with others was  put  on trial  for offenses under sections 302 read with  149,  148, 323 of the Penal Code on the charge of committing the murder of Moideen Kutty (hereinafter referred to as the  deceased). The Trial Court on consideration of the 695 materials on record came to the conclusion that the  charges leveled   against   the  accused  persons  have   not   been established, beyond all reasonable doubt and on that finding acquitted  the  appellant as well others.  On  appeal  being filed  on  behalf  of the State of  Kerala  the  High  Court convicted the appellant under section 302 of the Penal  Code and sentenced him to undergo rigorous imprisonment for life. So  far another accused Alavi who had been acquitted by  the Trial  Court  was  also convicted by the  High  Court  under section 323 of the Penal Code and sentenced to pay a fine of Rs. 250 and in default thereof to suffer simple imprisonment for  a  term of one month.  The acquittal of  other  accused persons  was affirmed by the High Court by dismissal of  the appeal against them. The  case  of the prosecution is that  on  16.9.1980  Mammed Kutty at 6.00 A.M. in the morning pelted stones at the house of  the deceased.  At about 12.00 in the noon  while  Mammed Kutty and his brother Abdulla Kutty were passing in front of the  house  of  the  deceased, a protest  was  made  by  the deceased  in respect of the morning incident.   They  denied that  any stone had been pelted by them.  It is the  further case  of  the  prosecution that at about 2  P.M.  while  the deceased  was sitting with his wife (PW4) and others on  the varandah of his house, five persons including the  appellant came to his courtyard and challenged him to come out, if  he wanted  to  beat aforesaid Mammed Kutty  and  Abdulla.   The deceased  stepped  out  into his  courtyard  and  asked  the accused  persons  not  to  create  a  scene.   At  this  the appellant and the other accused (since acquitted) gave  some blows to the deceased on his hand.  Thereafter the  deceased raised  his hand to give a blow to the appellant.   At  this very moment, the appellant took out a dagger from his  waist and  gave  an injury on the upper part of the chest  of  the deceased  near the left shoulder and above the armpit.   The deceased  ran  towards  the house of PW1  and  fell  on  the varandah.   Thereafter  the accused  persons  escaped.   The victim was removed to the Medical Hospital Calicut, where he was  examined by PW9.  But soon thereafter he expired.   The First  Information  Report  was lodged at  7.15  P.M.  After investigation  the charge sheet was submitted  against  five accused persons. At the trial prosecution examined four eye witnesses PW1  to PW4.   The doctor who held the post mortem  examination  was examined  as  PW8.  He found only  one  incised  penetrating

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wound vertically placed on the front of left shoulder  above the  left  armpit ’tailing 6 cm. in length  running  towards from the lower sharp end." According to his opinion, "The an 696 died  because  the artery was cut.....  This  injury  became dangerous only because it cut the artery....... In the cross examination  PW8 stated that it was impossible to  cause  an injury like one which was found on the person of the  victim by  the assailant standing in front of the victim.  He  also stated  that the tailing of the injury show that either  the knife  was  dragged  after stabing or that  the  injury  was caused during the course of the struggle.  According to him, if the accused had given a direct blow, as is normally done, there would not have been the tailing of the injury. The  learned counsel appearing for the appellant placed  the statement made in the First Information Report, the evidence of  the  eye  witnesses,  in  connection  with  the  morning incident  of  pelting  of  stones, to show  that  it  was  a concoction and none had pelted any stone on the house of the deceased.  According to the learned counsel, if this part of the  prosecution  case is disbelieved then it shall  have  a bearing on the main occurrence itself.  It was also  pointed out  that  the  prosecution has suppressed  real  manner  of occurrence  in  as much as one Abdulla on the  side  of  the accused persons was first assaulted by the prosecution party on  the same day at about 1.30 P.M. and he was  hospitalised after  having received the injuries.  That incident  was  an integral part of the occurrence which has not been disclosed by  the prosecution.  In this connection our  attention  was drawn  to  the evidence of DW1 who has stated  that  he  had examined  the  injuries  on the person  of  one  Abdulla  on 16.9.1980  at  4.30  P.M. and found three  injuries  on  his person, (i) A contusion on the left shoulder 4 x 2 cm,  (ii) abrasion  below  the right collar bone 3 x 5 cm.  and  (iii) injury on the outer side of the left ankle 4 x 3 cm.  He has also  stated that the said Abdulla had alleged that  he  had been  assaulted  with a wooden stick at 1.30 P.M.  the  same day. The  Trial  Court while acquitting the accused  persons  has attached great importance to the injury found on the  person of aforesaid Abdulla and has drawn adverse inference against the  prosecution case.  The High Court has  rightly  pointed out that merely non-disclosure of the aforesaid  superficial injuries on the person of Abdulla even if those injuries had been caused in the same occurrence, shall not in any  manner affect the prosecution case: It is well-settled that if  the evidence  of the eye witnesses are held to be  reliable  and inspire  confidence  then the accused  cannot  be  acquitted solely on the ground that some superficial injuries found on the person of the accused concerned, had not been  explained by the prosecution. 697 According  to  us,  if the evidence of  four  eve  witnesses including  the  evidence  of the son and  the  wife  of  the deceased are accepted as reliable and trust worthy then  the prosecution  case cannot be rejected merely on  .the  ground that the incident of pelting of the stones on behalf of  the accused  in  the  early  morning  had  not  been  proved  or established  or  that some minor injuries on the  person  of Abdulla caused in the same occurrence had not been disclosed and explained by the prosecution. So  far the four eve witnesses are concerned they have  been named   in   the  First  Information  Report.    The   First Information Report was lodged at 7.15 P.M. the same evening, within  two hours of the death of the victim.  In the  First

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Information  Report the details of the occurrence  was  men- tioned.   The  version disclosed in  the  First  Information Report  has been supported by the eye witnesses  before  the Court.   The  learned counsel appearing  for  the  appellant could  not point out any reason why their  evidence  against the appellant should not be accepted.  It may be pointed out that  in  the  First  Information  Report  itself  PW1,  the informant,  stated that this appellant came to the house  of the deceased and challenged him as to who was there to  beat Abdulla  and Muhammed Kutty.  He further stated that  having heard this the deceased moved towards them and asked them to go  back.  At that very moment this appellant and the  other co-accused Alavi gave him blows on his hand.  Thereafter the deceased tried to give counter blow to the appellant.   Then the  appellant  took out a knife from his waist and  gave  a blow from the said knife, to the deceased at his left collar bone.   The  prosecution very fairly admitted  that  accused persons  were  not carrying any weapon in  their  hands  and during  the  protest made, a sudden quarrel and  fight  took place between the prosecution party and the accused persons. Even at trial evidence the eve witnesses have admitted  this part of the version and have stated that first the appellant and  the  other  co-accused gave blows on the  hand  of  the deceased.   The knife blow was given by the  appellant  when the  deceased  was  trying to give a  counter  blow  to  the appellant. There is no dispute that the appellant suddenly took out the knife  during the course of the quarrel and fight  from  his waist.  From the evidence of doctor PW8 referred to above it appears that injury aforesaid could not have been caused  by the  assailant  standing in front of the victim.   It  could have  been caused only during the struggle.  In view of  the admitted  position that a sudden fight and quarrel  preceded the giving of the knife 698 blow   by  the  appellant  to  the  victim  which   in   all probabilities  was  given  not  while  the  victim  and  the appellant  were standing face to face but during a  struggle between them, causing tailing of the injury, it shall not be just  and proper to hold that appellant had an intention  to cause  the death of the victim.  Taking the evidence of  the witnesses along with circumstances of the case, according to us, the appellant had the knowledge that injury which he was causing was likely to cause death but he had no intention to cause  the death of the victim.  In such a circumstances  it is  not possible to uphold the conviction of  the  appellant under  section  302  of the Penal  Code.   Accordingly,  the conviction  and sentence passed against the appellant  under section 302 of the Penal Code are set-aside.  The  appellant is convicted under section 304 part 11 of the Penal Code and sentenced to undergo rigorous imprisonment for seven  years. The appeal is allowed in part to the extent indicated above. The bail bond is cancelled. N.V.K.                           Appeal partly allowed. 699