Judgment:
ORDER
Bhavadasan, J.
1. The accused, who was tried for the offences punishable under Section 302 of the Indian Penal Code was found guilty. He was accordingly convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 50,000/-, in default of payment of which to suffer rigorous imprisonment for a further period of four years. The fine amount if realised was directed to be paid to the parents of the deceased as compensation.
2. The prosecution unfolds the story thus:
On 3.12.2001 in the evening, the deceased along with P.W. 1 after their supper had gone to the house of P.W.4 to attend a Bhajan. After the Bhajan, they were on their way to the house of one Janaki Chechi ('Chechi' in Malayalam means elder sister). On the way, they happened to meet the accused. Subhash, the deceased seems to have enquired with the accused whether things were going well. The prosecution case is that hearing that enquiry, the accused ran into the house of Yesodharan and came back with a knife. He then is said to have asked the deceased whether he would abuse his mother and thereafter stabbed him. The deceased, crying aloud fell on the ground. He was helped by the P.W.1. Hearing the cries other people reached the spot. They tried to tie the wound with a towel. The injured was immediately removed to the Government Hospital, Pathanamthitta. The doctor examined him and pronounced him dead. P.W. 1 laid Ext. P1 First Information Statement before Thannikkode Police Station. P.W. 14, the Sub Inspector Police attached to Thannikode Police Station recorded Ext. P1 first information statement furnished by P.W. 1 and on the basis of the said FIS registered Crime No. 118 of 2001 for the offences punishable under Section 302 IPC as per Ext.P9 FIR. He also conducted inquest over the body of Subash and prepared Ext. P7 inquest report. P.W. 15 took over the investigation. He prepared Ext. P4 scene mahazar and seized M. Os. 10 and 11 found at the scene of occurrence. On search of the house of the accused, he seized M. Os. 2 and 3 kaily and shirt said to have been worn by the accused at the time of the incident. It is claimed that on the basis of Ext.P6(a) confession statement said to have been given by the accused, M.O. 1 weapon was seized as per Ext.P6 mahazar.
3. In the meanwhile, the body was sent for postmortem examination. Autopsy was conducted by P.W. 13, who furnished Ext.P8 postmortem certificate. P.W. 15 obtained necessary documents, completed investigation and laid charge before court.
4. JFCM-II, Pathanamthitta took cognizance of the offence. On appearance of the accused before the said court, all legal formalities were complied with. The learned Magistrate found that the offence is one exclusively triable by a court of Sessions and accordingly committed the case under Section 209 Cr.P.C. to Sessions Court, Pathananthitta. The said court made over the case to Additional District and Sessions Court (Ad Hoc) Fast Track-I, Pathanamthitta for trial and disposal.
5. The latter court, on receipt of records issued summons to the accused, who appeared before court. After hearing both sides, charge was framed against him for the offence punishable under Section 302 IPC. The accused pleaded not guilty and claimed to be tried. Prosecution therefore examined P.Ws. 1 to 15 and marked Exts.P1 to P19. M. Os. 1 to 11 were identified and marked. Defence had Exts.D1 to D5 marked. Exts. C1 and C2 were marked as court exhibits. After the close of the prosecution evidence, the accused was questioned under Section 313 of the Criminal Procedure Code. He denied all the incriminating circumstances brought out against him and maintained that he is innocent. He would state that on 3.12.2001 at about 7 p.m. anticipating a clash between two groups, the then C.I. of Police, Anil Das came to his house along with 5 - 6 police men and took him into custody. Thereafter this case has been foisted on him. He claims that he is not involved in any incident which would constitute an offence. Finding that the accused could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. The accused chose to adduce no evidence.
6. The court below on a consideration of the materials before it came to the conclusion that the prosecution has succeeded in establishing the case against the accused and convicted and sentence dhim as already mentioned. The said conviction and sentence are assailed in this appeal.
7. The question that arises for consideration is whether the court below was justified in finding the accused guilty of the offence alleged against him.
8. The short facts are that, on the date of the incident while P.W. 1 and his companion, the deceased, namely, Subash were returning after attending a Bhajan, they have happened to see the accused on the way. The deceased enquired about the welfare of the accused. Prosecution would allege that then the accused attacked the deceased causing fatal injury to him, to which he later succumbed. The court below has chosen to accept the evidence of P.Ws. 1 to 3 and so also the FSL report.
9. P.W. 1 is the person who was accompanying the accused at the relevant time. As far as P.Ws. 2 and 3 are concerned, they came after the stabbing was over and hearing the wails of the deceased.
10. There cannot be any dispute regarding the fact that Subash suffered an injury at the hands of the accused. The injuries suffered by him are reflected in Ext.P8 postmortem certificate and also Ext. P7 inquest report. It was P.W. 13 who conducted autopsy over the body of the deceased. P.W. 13 in his evidence has stated that he has in the postmortem report, namely, Ext.P8 narrated his findings. According to him, the death was due to injury No. 1, a stab injury, which was fatal and inflicted on the vital part of the body. He has also opined that the said injury could be caused by the use of a weapon like M.O. 1. The injury inflicted is on the chest of the victim. From these items of evidence, it is clear that the death of Subash was homicidal.
11. The next question is whether the prosecution as succeeded in proving that it was the accused who caused the fatal injury. The main item of evidence consists of the oral testimony of P.W. 1. He would depose that the deceased himself and the accused are known to each other very well. P.W. 1 and the deceased are related. According to him the incident occurred on 3.12.2001 at about 8.45 p.m. He and the deceased were returning after attending a Bhajan on their way to the house of Janaki Chechi. On the way they happened to meet the accused when they reached in front of the house of one Yesodharan. According to this witness when the deceased asked about the welfare of the accused, all of a sudden the accused rushed to the house of Yesodharan. He returned with M.O. 1 knife and stabbed Subash. He asked the deceased whether he would dare to abuse his mother. Receiving the stab, Subash cried aloud. The wound was tied with a towel. But that time, several people had gathered at the place. Even though he was removed to the hospital immediately, Subash did not survive.
12. P.W.2 is a mason by profession. He is an inhabitant of the same place where the accused resides. He too would say that the incident occurred on 3.12.2001 at about 8.45 p.m. The incident had occurred in the front of the house of Yesodharn. While he was coming along the way and when he reached near the house of Yesodharan, he heard a loud cry. When he reached the spot, he found the accused running away with a knife in his hand. The deceased was found leaning on the body of P.W. 1. By that time, several people had gathered at the place and Subash was taken to the hospital. He had identified M.O. 1 as the knife used by the accused.
13. P.W.3 is yet another witness who supported the prosecution. She would say that hearing the loud cries she went to the place and found the accused running away with a knife and Subash injured. P.W. 1 was holding on to the deceased. When she reached near the victim she found that Subhash was bleeding from an injury on his chest and he was removed to the hospital.
14. The lower court for cogent reasons rejected the plea based on Section 27 of the Indian Evidence Act regarding recovery of M.O. 1. No grounds are made out to take a different view. But the court accepted that the evidence of Blacksmith, namely, P.W.7, who claimed to have made M.O. 1 knife and sold it to the accused.
15. These are the items of evidence against the accused.
16. Learned Counsel appearing for the appellant pointed out that on a close reading of the evidence it can be seen that the prosecution has not come forward with the true version of the incident. According to the learned Counsel it is very clear from the evidence that the incident had not originated as alleged by the prosecution and the prosecution had concealed much more than what it has revealed. According to the learned Counsel, it is unbelievable that when the deceased enquired about the welfare of the accused, he would have simply stabbed him. There was no occasion for the accused to get infuriated by the words of the deceased if what prosecution says is true. So it is clear that the deceased was not so innocent and he had done something which must have provoked the accused. Learned Counsel also drew attention of this Court that it is significant to notice that the accused had no clue that the deceased and his friends would come along the way where he was standing. It is significant to notice, according to the learned Counsel, the accused was not carrying any weapon with him and that the attack was not pre-meditated or a planned one. Learned Counsel also pointed out that going by the prosecution evidence the accused ran into the house of Yasodharan and came out with a knife from that house. The evidence of P.W.1 clearly shows that the first person to reach the spot was Yasodharan. Learned Counsel drew attention of this Court to the fact that the prosecution had taken abundant caution to have the statement of Yasodharan recorded under Section 164 Cr.P.C. by a learned Magistrate. However, it is surprising to note that Yasodharan is not shown even as a charge witness in the final report and it is alleged that the prosecution had deliberately done that to see that the true version of the incident does not came before court. Prosecution version therefore looks highly improbable and appears to be doubtful in which case learned Counsel pointed out that the accused is entitled to benefit of doubt.
17. The learned Public Prosecutor on the other hand pointed out that the evidence is so clear that it was the accused who had caused the fatal injury to the deceased. There is nothing to doubt the version of P.Ws. 1 to 3 and also the recovery said to have been effected based on the confession statement of the accused.
18. It must be said that there is some substance in the submission made by the learned Counsel for the appellant. There is nothing to indicate in this case, even accepting the evidence of P.Ws. 1 to 3, that the accused was waiting for the deceased to come along the way to attack him. As rightly pointed out by the learned Counsel for the appellant, the accused had no weapons with him. One aspect needs to be noticed here. P.W.7, a Blacksmith had been examined to show that M.O. 1 was made by him and sold to the accused. Obviously the intention is to show that the accused was preparing to attack the deceased. But the prosecution conveniently forgot that the evidence in the case shows that the accused had ran into the house of Yasodharan and came out with a knife. The knife belongs to Yasodharan and not to the accused. This over-enthusiasm on the part of the prosecution creates a doubt in the prosecution version of the incident.
19. Equally baffling is the non-examination of Yasodharan. As rightly pointed out by the learned Counsel for the appellant, even going by the evidence of P.W. 1, the accused ran into the house of Yasodharan and came out with a knife from that house. It was Yasodharan, who reached the place first and the prosecution evidence shows that his statement under Section 164 Cr.P.C. was got recorded. Inspite of all this, for reasons best known to the prosecution, they chose to avoid him and he was not even shown as a charge witness. There seems to be some substance in the contention of the defence that it is to conceal the real incident or the origin of the incident that he was deliberately withheld. One must say that one would not simply ignore the above contention.
20. Even assuming that the above facts are true, the question would still remain whether the act committed by the accused is justified or not. Certainly not. There is nothing to indicate that the deceased was carrying any weapon with him. May be that the incident may not have originated as alleged by the prosecution. It may be that the accused was provoked by something done by the deceased. But whether that would justify his act is the question. At any rate, the accused had no knowledge that the deceased would come by that way nor did he carry a weapon with the intention of inflicting injury on the deceased. It must have been the result of spontaneous reaction from the accused. Something done by the deceased must have provoked the deceased and the prosecution has concealed the same. One should also remember that there was only one stab injury inflicted on the chest and there is also another minor injury. There is nothing to indicate that the accused had any intention or pre-meditation to do away with the deceased. It was done at the spur of the moment and it is not possible to understand as to what had provoked him. At any rate, the incident did not originate as stated by the prosecution.
21. The lower court has come to the conclusion that M.O. 1 is the weapon and the injury inflicted is a fatal one. The court thereafter assumes that at some point of time the mother of the accused would have been abused by the deceased and that would have a grudge in him. Then the court goes on to assume that the accused was planning to do away with the deceased and took the opportunity to stab him. The lower court also goes on to say that the accused was waiting for an opportunity to attack the deceased and had kept a weapon ready with him.
22. None of the above assertions is supported by any evidence on record. In fact the evidence is to the effect that the accused did not have any weapon at the relevant time and he was simply standing in front of the house of Yasodharan. P.W. 1 and the deceased had come along the way and P.W. 1 must have done something which provoked the accused. The lower court is not justified in holding that the accused had kept a weapon ready with him. He got a weapon from the house of Yasodharan and stabbed the deceased. Considering the above facts and circumstances, we are unable to accept the finding of the court below that the act committed by the accused falls within Section 302 of IPC.
23. However, the fact remains that the accused had used a very dangerous weapon and had inflicted a fatal injury on the vital part of the body. He must be credited with the awareness that the injury so caused by him is sufficient in the ordinary course of nature to cause the death. At any rate, his act cannot escape falling under Part I of Section 304 IPC. From the principle laid down in the decision reported in State of Punjab v. Bakhish Singh : AIR 2009 SC 1510 and Ramachandra Dhondiba Kaware v. State of Maharashtra : AIR 2009 SC 1835 it can be seen that an act similar to the one in this case at best falls only under Section 304 Part I of of IPC.
In the result, we set aside the conviction and sentence passed by the court below against the appellant for the offence punishable under Section 302 IPC and hold that the accused is guilty of the offence punishable under Section 304 Part I IPC and sentence him to suffer rigorous imprisonment for a period of ten years and to pay fine of Rs. 10,000/-, in default of which he shall suffer rigorous imprisonment for a further period of six months. He will be entitled to set off as per law.