1. Conviction and sentence imposed against the accused in S.C.No.49/2010 on the files of the Additional Sessions Court, Vatakara, are under challenge in this appeal at the instance of the appellant/accused in the said case.

2. Heard the learned counsel appearing for the appellant/accused and the learned Public Prosecutor appearing for the State. Perused the verdict under challenge and the evidence available.

3. Originally, crime was registered and investigated alleging commission of offence punishable under Section 302 of Indian Penal Code (IPC for short hereafter) by the appellant/accused on the premise that at 4.30 p.m on 01.09.2009, the accused had attacked and caused fatal injuries to one Suneesh, the deceased, with intention to murder him.

4. The learned Additional Sessions Judge framed charge for the said offence and proceeded with trial. During trial, PW1 to PW17 were examined, Exts.P1 to P18 and M.O1 to M.O6 were marked on the side of the prosecution. No defence evidence was adduced and ultimately on analysis of the evidence, the learned Special Judge found that the appellant/accused committed offence punishable under Section 304 Part I of IPC and he was convicted and sentenced as under:

                  “Rigorous imprisonment for 7 (seven) years and a fine of Rs.1,0,000/ (Rupees One lakh only) in default of payment of fine Rigorous imprisonment for 1 (one) more years. The period of demand will be set off u/s.428 Cr.P.C. The MOs will be destroyed being valueless or weapon of offence. The fine amount, if realized will be given to the parents of victim equally u/s.357(1) Cr.P.C.”

5. While assailing the verdict, it is pointed out by the learned counsel for the appellant/accused that the verdict of the Special Court finding commission of offence punishable under Section 304 Part I of IPC, by the appellant, relying on the evidence of PW2 and PW3 occurrence witnesses, is erroneous, since the intention to cause death of Sri.Suneesh could not be found from their evidence. It is also submitted by the learned counsel for the appellant/accused further that, in this case, no motive, either alleged or proved, and in such view of the matter also, the prosecution case is in the midst of doubts. Hence he pressed for interference of the verdict impugned to negate the same.

6. Zealously opposing the above contentions raised by the learned counsel for the appellant/accused, the learned Public Prosecutor vehemently submitted that, in this case, PW15, who conducted the autopsy on the dead body of Suneesh, deposed that Suneesh died due to a cut injury on his left thigh, while supporting Ext.P10 post-mortem certificate issued by him and he also identified M.O1 stating that injuries in Ext.P10 could be caused by M.O2. Apart from the same, PW2 and PW3, the occurrence witnesses, fully supported the prosecution case. It is also submitted that the evidence available would suggest that the prosecution succeeded in proving commission of the offence punishable under Section 304 Part I of IPC and the said verdict do not require any interference.

7. In view of the above, the following points arise for consideration:

                  (i) Whether the Special Court is right in holding that the accused committed the offence punishable under Section 304 Part I of IPC?

                  (ii) Is it necessary to interfere with the impugned judgment in any manner?

                  (iii) The order to be passed?

Point Nos.(i) to (iii)

8. Here the case of the prosecution is that at about 4.30 p.m on 01.09.2009 at Vannarkandipalam Desom in Valayam Panchayat near the house of the accused, the accused caused serious injuries on Suneesh, on suspicion that the Suneesh maintained an immoral relationship with his wife. After the occurrence, Suneesh was taken to the hospital and he breathed his last on the way to the hospital. PW15 examined in this case is Dr. Syriac Job, who conducted the post-mortem examination of the deceased, Suneesh. He had deposed that while he was working as Assistant Professor forensic medicine and Deputy Police Surgeon Medical College hospital Kozhikode, on 02.09.2009, he had done autopsy on the dead body of Suneesh, aged 29 years, involved in this crime 151/2009 of Valayam Police Station. According to him, the injuries found on the dead body are:

                  1) Incised wound 8 x 3.5 cm front of left thigh the lower margin was transversed and the upper margin curred. Inner end was 3.5 cm below groin and was 6 cm outer to the inner border. Inner end was square cut compared to outer end and was contused. The wound was 6 c.m deep and its inner portion was of 3 cm and its outer 3rd shallow towards the outer end. The muscles were partially cut and the femoral artery was cut through and retracted. Femoral vains and nerve were also cut in the same time.

                  2) Incised wound on the front of right thumb 1.2 cm above its top 1.5 cm long superficial with loss of skin in a triangular form towards its tip for width of 0.5 cm.

                  3) Incised wound vertical 5x.03 cm bone deep over the front of right palm midline from distal fold of wrist joint cutting the tend on and bone.

                  4) Incised wound 9 cm across the palm from the root of the thumb to 0.5 cm below distal palmar skin fold one the inner boarder. The wound was directed obliquely downwards cutting the proximal phalanx of the little finger. The finger were wore hanging by the skin at its front outer part joint skin with soft tissues to the level of bone was retracted to the root of index finger from the mid portion of the transverse wound incised wound extended towards the inner boarder of nail bed of middle finger bone deep cutting the tendons and vessels.

9. PW15 testified that the deceased had died due to the cut injury to the left thigh. He identified the post-mortem certificate issued by him containing his signature as Ext.P10. He also deposed that injuries 2 and 4 were defensive wounds and other injuries could be caused with M.O2 weapon.

10. As regards to the occurrence and overt acts at the instance of the appellant/accused, the prime witness is PW2 Anilkumar, who had supported by the evidence of PW3 Roopesh. He testified that the deceased Suneesh was his friend and he had been residing at Vannarkandipalam in Valayam. Suneesh sustained injuries at 4.30 p.m on 01.09.2009. The incident was in front of the house of the accused in the mud road which would lead to Thamarassery from Vannarkandipalam. The exact place of incident was near the laterate steps leading to the house of the accused. At the time of incident, along with him, Rupesh, Sajith, Manoharan @ Aswanth, Prakash and the deceased Suneesh were there. The date of incident was on the first Onam. According to him, while they were going to the house of their friend Ranjith, they proceeded through the way to the house of Peetakandi Sajith by walking, talking each other and making noise, the accused Yoosaf had reached there after getting down from the steps to the road with a chopper from his house telling (uttering to kill calling them as children of dog). He and his friends had moved some distance forward, when this witness was turning back, he had seen that the accused inflicted cut injury to Suneesh with the chopper he brought with him telling that, That was warded off by Suneesh and the same caused injury on his right arm. When he was about fall down, the accused inflicted another cut by using the very same chopper which was on the left leg inner part of his left thigh near to his leg joint. Suneesh cried and ran about 40 meters and stopped near the house of this witness. At that time, the accused climbed to his house with . According to PW2, the injuries were inflicted in two places at a distance of about 10 to 40 meters. PW2 and his friends took Suneesh and laid in front of his house, i.e on the 'varandha'. The difference between the place where Suneesh standing and his house was about 20 to 40 meters. He also deposed that, he had seen that, from the cut injuries on the body of the Suneesh blood was oozing out. He testified that a saffron dhothi was worn by Suneesh at the time of occurrence and the same was removed and another dhothi brought from Surendran's jeep, and after wearing the same, Suneesh was taken to VIMS hospital in Kallachi, there the doctor examined him and directed them to take him to Medical College hospital. Then Suneesh was taken to Medical College Hospital and during this time, Suneesh was conscious. The incident was narrated to the doctor of Kallachi by someone there with Suneesh, and Rupesh, Sajith, Manoharan etc. were there. Suneesh was taken to Medical College hospital in an ambulance and when they reached Vatakara Suneesh became motionless. Then he was taken to Co-operative hospital Vatakara and the doctor confirmed the death of Suneesh. His body was kept at the Mortuary. Then PW2 went to Valayam police station and made complaint, disclosing the occurrence and that was taken down by the SI of police Valayam and he had affixed his signature therein. The FIS given by PW2 was tendered in evidence through PW2. He deposed further that he had the belief that the accused was suspecting illicit relation between his wife and Suneesh and that might be the reason for this incident. PW2 also deposed that he had shown the place of incident to the investigating officer. He had also shown the blood pooled place to the police. The blood stained saffron dhothi which was worn by Suneesh at the time of incident was produced to the police. During cross-examination, PW2 had given rational answers to the queries put to him by reiterating his version given during chief examination. According to PW2, he knew there was some issue between the accused and his wife. He also testified that at that time the accused was very healthy and a strong bodied man. He deposed further that after inflicting cut injuries the accused went back to his house. He categorically deposed further that Suneesh ran away after getting cut injury, then the accused followed him and attacked again.

11. Apart from PW2, PW3 also deposed supporting the version of PW2 and he also deposed that the accused assaulted Suneesh on uttering that Suneesh would be killed.

12. Even though the learned counsel for the appellant/accused read out the evidence of PW2 and PW3, supporting the occurrence with a view to find lacuna in their evidence, in fact, no material contradiction could be found in the evidence of PW2 and PW3 in the matter of occurrence, which led to the injuries sustained as noted in Ext.P10 certificate issued by PW15, and consequential death of Suneesh.

13. In this case Ext.P4 scene mahazar was tendered in evidence through PW5 and he admitted his signature therein. Supporting the evidence of PW1, PW6 and PW2 also, he deposed that he came out of the house on seeing the crowd and he had witnessed Sajith, Roopesh, Manojan etc. along with Suneesh in a blood oozing condition and on enquiry he knew that Suneesh sustained injuries inflicted by the accused. PW7 Govindankutty, a retired Senior Superintendent of KSEB also supported the prosecution case that soon after the occurrence, Suneesh was taken to the veranda of the house of PW2.

14. PW8 Kumaran, supported the prosecution case in the matter of production of blood stained saffron colour dhothi worn by Suneesh at the time of occurrence and its recovery by preparing Ext.P5 mahazar . He identified his signature in Ext.P5 mahazar and M.O1 as the blood stained saffron colour dhothi so recovered. PW12, the constable attached to Valayam, police station deposed that, at 18 hours on 02.09.2009, the Circle Inspector of Police taken blood stained lungi worn by the accused while in custody as per Ext.P8 mahazar and he had identified lungi as M.O3. M.O2 identified as the chopper (koduvaal) used by the accused to cause injuries on deceased Suneesh and PW13 the neighbour of the accused deposed that the accused ordered for a chopper (koduvaal) about 1 1/2 months prior to the incident. Thereafter he demanded the chopper (koduvaal) and accordingly it was supplied to him on getting Rs.500/-. He identified M.O2 chopper (koduvaal). Ext.P9 is the site plan tendered in evidence by PW14.

15. PW16 then S.I of Valayam police station testified that at 20.45 hours on 01.09.2009, PW2 Anilkumar came to the station and reported that his friend Alamkottu Suneesh was murdered at 4.30 hours on 01.09.2009 by Thalikunnunnal Yoosaf by inflicting cut injuries. Accordingly Ext.P2 statement was recorded and on the basis of Ext.P11, FIR in crime No. 151/2009 u/s 302 I.P.C of Valayam Police Station had been registered. Thereafter that had been forwarded to his Senior Officer.

16. In this case, MO.2 chopper(koduvaal) was recovered under Section 27 of the Evidence Act, as taken and produced by the accused after disclosing the authorship of concealment of the same. That is to say, MO.2 was taken by the accused himself from the house bearing No.1/58G of Valayam Panchayat from the north side of that house, near the place where firewood was kept, close to eastern corner, where woods were kept. In this regard PW17, the then C.1 of police Nadhapuram supported the prosecution case. He had given evidence that on 02.09.2009, he had taken over the investigation of this case at 17.30 hours. Then he had reached the hospital and prepared the inquest report of Suneesh which got marked as Ext.P3. The blood stained dhothi, underwear and shirt were taken into custody. That dhothi got identified and marked as MO.4. Blood stained maroon shirt got identified and marked as MO.5. The underwear with writing "Aswathi' got identified and marked as MO.6 describing the same that in the inquest report. On that date on 2 pm as shown by witness Anilkumar, in presence of the witnesses, scene mahazar Ext.P4 was prepared. Then Janu of Vaniyamveetil had produced the blood soaked dhothi (MO.1) worn by Suneesh at the time of occurrence and the same was seized by preparing Ext.P5 seizure mahasar. Thereafter statement of witnesses were recorded. On that date, at 6.00 pm, the arrest of the accused, who was in police surveillance at the Valayam Police Station, was recorded as per Ext.P12. Further for the body inspection Ext.P13 inspection memo also was prepared. Then while the accused was in the custody of this witness, he had revealed that Thus he followed the accused and reached the house and he had taken MO.2 chopper and produced before him and he had taken the same into custody.

17. Going through the evidence as discussed it is relevant to note that the evidence of PW2 and PW3 supported by other evidence categorically proved that while Suneesh along with others were moving through the road near the house of the accused, the accused reached near them carried a chopper(koduvaal) after uttering to kill Suneesh and thereafter he had caused injuries narrated in Ext.P10. Even though the prosecution alleged commission of offence under Section 300 of IPC punishable under Section 302 of IPC, the learned Sessions Judge was not inclined to punish the accused for the offence punishable under Section 302 of IPC. Anyhow the prosecution did not raise any challenge regarding this finding and also the finding of the learned Sessions Judge that the accused committed offence under Section 304(1) of IPC.

18. It is argued by the learned counsel for the appellant/accused that in the facts of the case, the offence punishable under Section 304 part I of IPC would not attract. According to him, otherwise the offence made out from the evidence is one punishable under Section 304 Part II of IPC. Adverting to this argument, it is necessary to look into the ingredients for the offence punishable under Section 304 of IPC. Section 304 of IPC is the penal provision to be invoked on finding commission of offence under Section 299 of IPC, ie., `culpable homicide not amounting to murder'. Section 299 of IPC provides that :

                  “S 299 : Culpable Homicide :-- Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.”

19. Now the question to be considered is; whether the evidence available is sufficient to prove commission of offence punishable under Section 304 of IPC by the accused. If so, whether the same would fall under part I or Part II of 304 of IPC. Now, it is necessary to address the ingredients required to attract the offence under Section 304 of IPC. The same are extracted as under:-

                  “304-Punishment for culpable homicide not amounting to murder--Whoever commits culpable homicide not amounting to murder, shall be punished with [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, 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 death,

                  or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done 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.

                  (a) Essential Ingredients-An offence under this section provides punishment to culpable homicide not amounting to murder. Culpable homicide not amounting to murder has been made punishable in the following cases:

                  (1) If the act by which death is caused is done with intention of causing death or such bodily injury as is likely to cause death, the punishment is imprisonment for life, or imprisonment of either description for a term which may extend to ten years and fine.

                  (2) If the act is done with knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death, the punishment is imprisonment of either description for a term which may extend to ten years, or with fine, or with both.”

                  The Indian Penal Code, 1860 recognises two kinds of homicide: (1) Culpable homicide, dealt with between sections 299 and 304 of the Indian Penal Code, 1860 and (2) Not-culpable homicide, dealt with by section 304-A of IPC. There are two kinds of culpable homicide: (i) Culpable homicide amounting to murder (sections 300 and 302 of the IPC), and (ii) Culpable homicide not amounting to murder (section 304 of the IPC).

                  This Section provides punishment for culpable homicide not amounting to murder. Under it there are two kinds of punishments applying to two different circumstances:

                  (1) If the act by which death is caused is done with intention of causing death or such bodily injury as is likely to cause death, the punishment is imprisonment for life, or imprisonment of either description for a term which may extend to ten years and fine.

                  (2) If the act is done with knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death, the punishment is imprisonment of either description for a term which may extend to ten years, or with fine, or with both.

                  If there is intent and knowledge then the same would be a case of section 304 Part I and if it is only a case of knowledge and not intention to cause murder and bodily injury then the same would fall under section 304 Part II.

                  In a judgment of Richhpal Singh Meena v. Ghasi, the Supreme Court had admitted that in spite of the death of a person, and a finding in some of them of an act of voluntarily causing grievous hurt, this Court has not considered the provisions of section 299 read with section 304 of the Indian Penal Code. In our opinion, such a consideration is important not only from the jurisprudential point of view but also from the sentencing point of view. From the jurisprudential point of view it is important because when an act or omission of an accused causes the death of any person, he or she is either guilty of culpable homicide or guilty of not-culpable homicide. It is for the Court to determine on the evidence whether, if it is culpable homicide, it amounts to murder as explained in section 300 of the Indian Penal Code, 1860 (along with all its clauses) or not as explained in section 304 of the IPC. If culpable homicide cannot be proved, then it would fall in the category of “not-culpable homicide”. According to the Supreme Court a five-step inquiry is necessary:

                  (i) Is there a homicide?

                  (ii) If yes, is it a culpable homicide or a “not-culpable homicide.”?

                  (iii) If it is a culpable homicide, is the offence one of culpable homicide amounting to murder (section 300 of the Indian Penal Code, 1860) or is it a culpable homicide not amounting to murder (section 304 of the IPC)?

                  (iv) If it is a “not-culpable homicide” then a case under section 304-A of the Indian Penal Code, 1860 is made out.

                  (v) It it is not possible to identify the person who has committed the homicide, the provisions of section 72 of the Indian Penal Code may be invoked.

                  In Jagriti Devi v State of Himalachal Pradesh, it was held that the expressions “intention” and “knowledge” postulate the existence of a positive mental attitude. It was further held that when and if there is intent and knowledge, then the same would be a case under first part of section 304 and if it is only a case of knowledge and not intention to cause murder by bodily injury, then the same would be a case of second part of section 304.

                  It cannot be laid down as a rule of universal application that whenever one blow is given, section 302 of the Indian Penal Code, 1860 is ruled out. It would depend upon the weapon used, the size of it in some cases, force with which the blow was given, part of the body on which it was given and several such relevant factors.”

                  Thus in this case, the intention of the accused to do away Suneesh, on suspecting that Suneesh had an illicit relationship with his wife, is established by the prosecution beyond reasonable doubts and the overt acts proved would squarely fall under Section 304 Part I of IPC and not under Section 304 Part II of IPC. Thus the motive behind this crime also is proved by the prosecution to the effect that the illicit relationship between the wife of the accused and the deceased is the motive which tempted the accused to commit the crime. Therefore, none of the contentions raised by the learned counsel for the appellant is acceptable to undo the verdict impugned.

20. In view of the matter, the conviction imposed by the learned Special Judge on finding conviction under Section 304 Part I of IPC is liable to be confirmed.

21. Coming to the sentence, going through the seriousness of the crime, sentence also is found to be very reasonable. Accordingly, the sentence also is confirmed.

22. In the result, this Appeal fails and is accordingly dismissed. The conviction and sentence imposed by the Special Court are confirmed. As a sequel thereof, the order suspending sentence and granting bail to the accused stands cancelled and the bail bond also stands cancelled.

23. The accused is directed to surrender before the Special Court to undergo the sentence forthwith, failing which the Special Court shall execute the sentence forthwith.

Registry is directed to forward a copy of this judgment to the Special Court for compliance and further steps.