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PETITIONER: MAVILA THAMBAN NAMBIAR

       Vs.

RESPONDENT: STATE OF KERALA

DATE OF JUDGMENT:       09/01/1997

BENCH: M.K. MUKHERJEE, S.P.KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.P. KURDUKAR. J.      This criminal  appeal is  file by the appellant accused impinging the judgment and order of the High Court of Kerala dated January  19, 1993, whereby the appellant was convicted and sentenced to suffer imprisonment for life for committing the murder of Madhavan. The trial court at the conclusion of the trial  found the appellant not guilty and acquitted him. The State  of Kerala  filed the appeal to the High Court and the said  criminal appeal was allowed by the High Court vide its impugned judgment. 2.   Briefly state the prosecution case is as under:-      The incident  in question took place at about 8.00 p.m. on May  19, 1988  at Kattapunna. On this day, a "Thaiyyam"(a village ballet)  was arranged by Madhavan in the evening and for that  purpose, he  needed a petromax which was available in the  shop of the appellant. Madhavan had gone to the shop of the  appellant  and  requested  him  to  give  a  lighted petromax. The  appellant refused  to oblige.  Earlier in the day, brother  of Madhavan  had also  gone to the shop of the appellant and  requested him  to give  him  two  benches  to celebrate the  said festival.  When Madhavan had gone to the shop of  the appellant  with a request to give him a lighted petromax and on the latter’s refusal, there were exchange of words which  was followed  by a scuffle. Chalil Krishnan (PW 1) who  happened to  be in the shop intervened and separated them A.  Narayanan (PW  6) who runs a tea shop near the shop of the  accused also  reached the place of incident and held Madhavan with a view to take him away. The appellant who was then sitting on a stool picked up a pair of scissors (M.O.2) lying on  the table in front of him and caused a stab injury on the  right side  of the  chest of Madhavan. The appellant again tried  to inflict  one more blow which landed on right cheek of Madhavan who thereafter fell down on the ground. 3.   A lorry was hired to carry Madhavan to the hospital but on the  way it  broke down. A car was then procured in which Madhavan while  being carried  to the hospital, succumbed to his injuries.  Chalil Krishnan  (PW  1)  then  proceeded  to Kasaragod police  station and  made a  report  to  the  head constable on  duty (PW 13). The case was then transferred to

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Bakel police  station in whose jurisdiction the incident had taken place.  The First  Information Report (Ex.P11) came to be  recorded  at  9.00  p.m.  which  was  forwarded  to  the Magistrate at  about 10.00 p.m. After holding the inquest on the dead  body of  Madhavan, it  was forwarded  to the civil hospital for  post mortem  examination. After completing the necessary  investigation,   a  charge  sheet  was  submitted against  the  appellant  for  an  offence  punishable  under Section 302 of the Indian Penal Code. 4.   The appellant  denied the  accusations levelled against him and pleaded that he is innocent. He further pleaded that Madhavan was  the aggressor  and infact  in that scuffle, at the instance of Madhavan he sustained an injury on his head. He, therefore,  pleaded that he had committed no offence and he be acquitted. 5.   The prosecution in order to bring home the guilt of the accused examined  as many as six witnesses of facts who were P.W.1 to  P.W.6. In  addition to  this ocular  evidence, the prosecution examined  Dr. George Mathew (PW 10) to prove the post mortem  examination report  and  the  cause  of  death. Formal witnesses  to  prove  various  panchanmas  were  also examined by the prosecution. 6.   Learned Sessions  Judge after  the  conclusion  of  the trial by his judgment and order dated May 9, 1989, found the accused not  guilty and  consequently passed  the  order  of acquittal. The State of Kerala preferred the criminal appeal to the  High Court which was allowed and the appellant stood convicted under  Section 302 of the Indian Penal Code. It is this judgment and order of the High Court which is sought to be challenged in this criminal appeal. 7.   We have  gone through  the  learned  judgments  of  the courts below  very carefully.  We are  also conscious of the fact that  the trial  court had  acquitted the appellant but the High Court has reversed the order of acquittal and found the appellant  guilty of  committing the  murder of Madhavan and convicted  him under  Section 302  of the  Indian  Penal Code. The  High Court  in  its  judgment,  recorded  several unimpeachable reasons  and very  succinctly demonstrated how the reasons for acquittal recorded by the Session Court were perverse. We  are in complete agreement with the judgment of the High  Court that  the order  of acquittal  passed by the trial court  was based  on totally  untenable  grounds.  Mr. Lalit, Learned  Senior Counsel  appearing in support of this appeal despite  his strenuous efforts was unable to persuade us to  uphold the  order of  acquittal passed  by the  trial court. 8.   In the  present case,  there were  as many  as six  eye witnesses (P.W.1 to P.W.6) who have consistently deposed how the assault  on madhavan  took place. Chalil Krishnan (PW 1) who was  present in  the shop of the appellant and witnessed the entire  incident had  given a  credible version  how the assault took place. He was the person who took Madhavan in a truck to  the police  station for lodging the report and his First Information  Report (Ex.P11)  was recorded  within one hour from the time of incident. The First Information Report lends corroboration  to the  evidence of Chalil Krishnan (PW 1) in  all material particulars. So is the evidence of other five eye  witnesses. A.Narayanan  (PW6) came  to the shop in order to  take away Madhavan. He then testified that when he was holding the hands of Madhavan, the appellant picked up a pair of  scissors (M.O.2) and inflicted a stab injury on the right side  of the  chest of  Madhavan. Second  blow by  the appellant with the pair of scissors fell on Madhavan’s right cheek who thereafter fell down on the ground. The High Court in its  impugned judgment  has  elaborately  considered  the

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evidence of all these eye witnesses and Mr. Lalit was unable to point  out any  error in  appreciation of their evidence. The medical  evidence of  Dr. George  Mathew  evidence.  The medical evidence  of Dr.  George Mathew  (PW 10)  also lends corroboration to  the evidence  of the  eye  witnesses.  Dr. George Mathew (PW 10) has proved the post mortem examination report (Ex.5)  and also proved the cause of death. According to Dr. Mathew, injuries noted in the post mortem examination report (Ex.5)  were ante  mortem and  were sufficient in the ordinary  course  of  nature  to  cause  death.  We  see  no hesitation in  accepting the  finding of the High Court that the appellant  caused the  injuries on the vital part of the body of  Madhavan with  the pair  of scissors which resulted into his  death. We are also in agreement with the dining of the High  Court that  the evidence  of the  eye witnesses is credible and  it proved  the complicity  of the appellant in the present crime. 9.   Mr. Lalit then urged that it was Madhavan who initially picked up  a quarrel  in the shop of the appellant which was followed by  a scuffle.  The appellant  had  also  sustained injury on  his head and this injury was not explained by the prosecution. It  would, therefore,  be reasonable  to  infer that Madhavan  had attacked  the  appellant  by  causing  an injury on  the head  and therefore, he was the aggressor and the appellant  had a  right of  private defence.  We see  no substance in  this contention.  Madhavan was totally unarmed and when he was held by A.Narayanan (PW 6) to take him away, appellant caused the injury on the vital part of the body of Madhavan with  the pair  of scissors. On these proved facts, it is  not  possible  to  accept  the  contention  that  the appellant had any right of private defence. 10.  Mr. Lalit  then, seriously challenged the conviction of the appellant under Section 302 of the Indian Penal Code. He urged that the appellant had neither intention nor knowledge that such an injury would result into the death of Madhavan. He, therefore, urged that the appellant at the most could be convicted for any other minor offence. Mr. George, appearing for the State of Kerala urged that the appellant was rightly convicted under  Section 302 of the Indian Penal Code and no interference  was  called  for.  After  giving  our  careful thought to  the nature  of offence, we are of the considered view  that   the  offence   of  the   appellant  would  more appropriately fall  under Section  304 part II of the Indian Penal Code.  The appellant had given one blow with a pair of scissors on  the vital  part of  the body  of Madhavan  and, therefore,  it   would  be   reasonable  to  infer  that  he (appellant) had  knowledge that  any injury with the pair of scissors on  the vital  part would cause death though he may not have intended to commit the murder. We accordingly alter the conviction  of the  appellant from  302 IPC to one under Section 304 part II of the IPC. 11.  For the  foregoing conclusions,  the appeal  is  partly allowed. The  conviction of  the appellant under Section 302 IPC is  altered to  one under  Section 304  part II  of  the Indian  Penal  Code.  Consequently,  the  sentence  of  life imprisonment awarded to the appellant is set aside and he is sentenced to  suffer rigorous  imprisonment for  seven years for the altered conviction. The appellant, if on bail, shall surrender to  his bailbonds  to serve out the remaining part of his sentence.