Thamban Nambiar Vs. State of Kerala  INSC 15 (9 January 1997)
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.
State of Kerala filed the appeal to the High Court
and the said criminal appeal was allowed by the High Court vide its impugned
Briefly state the prosecution case is as under:- The incident in question took
place at about 8.00
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.
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 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.
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.
therefore, pleaded that he had committed no offence and he be acquitted.
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.
witnesses to prove various panchanmas were also examined by the prosecution.
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.
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.
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 evidence of all these eye witnesses and Mr. Lalit
was unable to point out any error in appreciation of their evidence.
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
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.
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.
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.
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.
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