Balan Kani vs State of Kerala

Kader, J.—Balan Kani, now 27, was tried along with another by the II Additional Sessions Judge, Trivandrum for offences punishable under Sections 302 and 323 read with Section 34, Indian Penal Code for having caused the death of one Lopez 24 and voluntarily caused simple hurt to his brother Gnanaseelan (P.W. 1). On the conclusion of the trial the second accused was acquitted of all the charges and the Appellant was acquitted of the charge u/s 302 but convicted u/s 304 I.P.C. and sentenced to rigorous imprisonment for 7 years.

The occurrence was at about 6:30 p.m. on 3rd July 1978 and the scene of offence is a pathway which runs through Kani settlement, a little beyond the boundary junction near which the Lopez and P.W. 1 were residing. P.W. 1, P.W. 2, Lopez (the deceased) and C.W. 4 were all mazdoors employed at the material time in connection with the construction of Peppara Dam which is only about 6 kms. Away from the place of occurrence by a short cut. In the Kani settlement there are a number of trees belonging to the Government and some Kanis are also residing therein. On the date of occurrence after the day''s work, P.W. 1 and his brother Lopez were returning home along the pathway passing through the place of occurrence. P.W. 1 was walking a little in front of Lopez. P.Ws. 2 and 4 were also returning after the day''s work and coming almost closely behind P.W. 1 and Lopez. When Lopez and P.W. 1 reached the place of occurrence they saw the Appellant and the other accused sawing a tree standing in the settlement. On seeing this, P.W. 1 questioned the accused persons and as there was no reply P.W. 1 repeated the question. The second accused then called obscene words at P.W. 1 who retorted in the same language. The second accused then rushed towards P.W. 1 and beat him on his left cheek which was warded off by P.W. 1. He then kicked P.W. 1 on his left side below the stomach. Seeing P.W. 1 being attacked, Lopez who was just behind him hurried towards P.W. 1 and pushed back the second accused. Then the Appellant who came there drew out M.O. 1 knife from his loins and inflicted a stab on the left side of his chest below the neck of Lopez causing a bleeding injury. Lopez moved a litter crying that the first accused stabbed him and fell down. The injured was then removed to the boundary junction but before a car was brought for removing him to the hospital, Lopez died at 7-30 p.m. Thereafter P.W. 1 want to the Aryanad Police Station and gave the first information statement Ext. P-1 at 12:15 a.m. on the same night. A case was registered on that basis and investigation was taken up by the Circle Inspector of Police. P.W. 8 held inquest over the dead body under Ext. P-6 inquest report. P.W. 6, doctor, held autopsy over the dead body and issued Ext. P-5 post-mortem certificate. The Appellant was arrested on 18th July 1978, 14 days after the occurrence.

The plea of the Appellant was one of complete denial adding that he was not at the place of occurrence. He stated further that P.W. 1 and Lopez and others attempted to cut a tree belonging to one Sankaran Kani and that there ensued a quarrel between Sankaran Kani''s people and these people, in the course of which Lopez sustained the injury.

There was no witness to be examined on his side.

The learned advocate appearing for the Appellant contended that P.Ws. 1 and 2 are interested witnesses; that their evidence should not be relied on; that admittedly there were persons residing in the neighbourhood; that none of them has been examined; and that the knife itself was recovered long after the incident which will create suspicion in the prosecution case.

There is no dispute that Lopez died as a result of the injury sustained by him on the date of occurrence and that is proved by the evidence of P.Ws. 6 and 8 and Exts. P-5 and P-8. It was relying on the direct testimony of P.Ws. 1 and 2 and the other circumstances proved in the case that the trial court held that it was the Appellant who inflicted the injury on Lopez which resulted in his death in the manner alleged by the prosecution and convicted and sentenced him as aforesaid. It is not disputed that P.Ws. 1, 2, Lopez and C.W. 4 are mazdoors working in the Peppara Dam and that they had to pass through the pathway running through die place of occurrence while returning home. It was pointed out by the counsel for the Appellant that P.W. 2 is a person residing far away from the place and he had no business to come to the place of occurrence. It has come out in his evidence that himself and his sister are mazdoors working in the Peppara Dam; that her sister is residing very near the place of occurrence, that on the date of occurrence his sister did not attend to the work; and that on knowing that his sister did not attend to the work on that day he was going to his sister''s house to make enquiries about her absence. P.W. 2 has also to pass through the road running through the place of occurrence. Merely because P.W. 1 is related to Lopez and P.W. 2 is a mazdoor working the same place, their evidence cannot be disbelieved. In the circumstances of this case, both these witnesses are natural and probable witnesses. Evidence shows that the Investigating Officer questioned all the neighbours and none of them had seen the occurrence and that is why he did not cite any one of them as witness. Cross examination of P.Ws. 1 and 2 did not bring out any tangible material or circumstance to disbelieve or suspect their evidence on the material points deposed to by them. Ext. P-1, first information statement, has been laid without any unreasonable delay and that contains the names of P.W. 2 and C.W. 4 and the material facts of the case. P.W. 1 has sworn to the entire incident and his evidence is corroborated on all material particulars by the evidence of P.W. 2, Ext. P-1 and also the medical evidence. It has been conclusively proved by the prosecution that it was the Appellant who inflicted the fatal injury on Lopez in the manner and under the circumstances alleged by them. The doctor noticed a gaping incised wound 5 � 2 cms. on the left side of the neck which had penetrated into the chest cavity and according to the doctor, this injury was necessarily fatal and Lopez died as a result of sustaining this injury. But it is surprising that in spite of this evidence on record, and the finding that it was the Appellant who inflicted the fatal injury on Lopez in the manner alleged, the learned Sessions Judge acquitted the Appellant of the charge u/s 302 I.P.C. There is no appeal filed by the State against this acquittal. It is also surprising to note that the learned Sessions Judge acquitted the second accused on a concession given by the Public Prosecutor that no charge u/s 323 would stand against him, as there was no injury noticed on him. There also the State has filed no appeal against acquittal. More surprising is the reason given by the learned Sessions Judge for convicting the Appellant u/s 304 I.P.C. The learned Sessions Judge appears to have overlooked the fact that Section 304 consists of two parts. It is not clear from the judgment whether it is under Part I or Part II that the Appellant has been convicted. A similar defect was noticed by this Court in another case of the same court and that has been pointed out in that judgment. It was on the ground that the case came within 4th Exception to Section 300 I.P.C, that the learned Sessions Judge convicted the Appellant u/s 304 I.P.C. There is absolutely no evidence or material on record to come to the conclusion that Exception 4 to Section 300 is attracted to this case. The mere assertion in the judgment that "the murder was committed without pre-meditation and in the heat of passion upon a sudden quarrel without taking undue advantage" cannot bring a case under that Exception unless the evidence on record disclosed that the act attributed to the accused was done in a sudden fight in the heat of passion upon a sudden quarrel and without tile offender taking undue advantage or without acting in a cruel or unusual manner. There is no evidence in this case that there was either a sudden fight or a sudden quarrel between the Appellant and Lopez or that the act attributed to the Appellant was committed in the heat of passion. To attract exception 4 to Section 300, all the elements stated there must be proved. Fight implies exchange of blows and the fight must be with the person who is killed. In order to constitute fight there should be exchange of blows. The fight must have been taken place, upon a sudden quarrel.

In the result this appeal fails and is hereby dismissed confirming the conviction and sentence passed against the Appellant.