Sophy Thomas, J.

1. The sole accused in SC No.862 of 2014 on the file of Additional Sessions Judge-V, Kollam, is the appellant herein. He has preferred this appeal through the Superintendent of Central Prison and Correctional Home, Poojappura, Thiruvananthapuram, impugning the judgment, by which he was convicted and sentenced to life imprisonment and fine under Section 302 of Indian Penal Code.

2. The appellant/accused was chargesheeted by the Circle Inspector of Police, Kadakkal, in Crime No.949 of 2013 of Kadakkal Police Station, for having committed an offence punishable under Section 302 of IPC.

3. The prosecution allegation was that, on 22.05.2013, around 6.30 p.m., while the deceased Rathnakaran was sitting on the cement platform on the southern side of the veranda of Shop No.VII/388 of Ittiva Grama Panchayath at Melakadu Thampuran Mukku, possessed by CW4 Sivaprasad, the accused, due to his previous enmity towards the deceased, and with the intention of causing his death, inflicted a blow on his head with an wooden stick thereby causing severe head injury resulting in his death at 2.40 a.m., on 23.05.2013, while undergoing treatment at Medical College Hospital, Thiruvananthapuram.

4. The law was set in motion with the First Information Statement of PW1, the elder brother of the deceased, at 8.10 a.m. on 23.05.2013. PW8, Sub Inspector of Police, Kadakkal Police Station, registered Crime No.949 of 2013 of Kadakkal Police Station, and registered Ext.P6 FIR. Investigation was conducted by PW9, Circle Inspector of Police, Kadakkal, and Final Report was laid against the accused under Section 302 of IPC before the Judicial First Class Magistrate Court-II, Kottarakkara, who, in turn, duly committed the case to the Sessions Court, Kollam, where it was numbered as SC No.862 of 2014 and later made over to the Additional Sessions Court - V, Kollam.

5. The accused was arrested on 23.05.2013 at 6.10 p.m. and subsequently he was released on bail. He appeared before the trial court on summons, and after complying with the legal formalities, the learned Sessions Judge framed charge against him under Section 302 of IPC, to which he pleaded not guilty and claimed to be tried. Trial was conducted by examining PWs 1 to 12, marking Exts.P1 to P17 and identifying MOs 1 to 3.

6. On closure of prosecution evidence, the accused was questioned under Section 313(1)(b) of Cr.P.C. He denied the prosecution allegations and filed written statement contending that, on 22.05.2013 evening, he was taken to Police Station by a policeman, while he was standing in the fish market, near to Kadakkal Police Station. Several persons known to him were also present in the Police Station, who were taken into custody by Police, in connection with the murder of Sri.Rathnakaran. But, except him, all others were released on political or other influences, and as there was nobody to get his release, on the next day, he was produced before the Magistrate Court.

7. After examining the accused under Section 313(1)(b) of Cr.P.C. and on hearing the prosecution and the defence, the learned Trial Judge found that, there were no grounds to record an order of acquittal under Section 232 of Cr.P.C., and so, the accused was called upon to enter on his defence and to adduce evidence if any he may have in support thereof. The accused did not adduce any evidence and thereupon the learned trial court heard the final arguments from either side.

8. The learned Trial Judge, on analysing the facts and evidence, came to the conclusion that, the death of Sri.Rathnakaran was due to the head injury he had suffered from the blow inflicted by the accused with M.O 1 wooden stick, and thus he was found guilty of the offence of committing murder of Sri.Rathnakaran, for which he was convicted under Section 302 of IPC.

9. After affording an opportunity for hearing to the accused, on the question of sentence, the learned Trial Judge, finding that it was not a case falling under the category of ‘rarest of rare’, warranting capital punishment, and on taking into account the extenuating circumstance such as the accused was having two children, he was sentenced to undergo imprisonment for life and fine of Rs.10,000/- under Section 302 of IPC, with a default sentence of rigorous imprisonment for six months, allowing set off as well.

10. The accused was sent to Central Prison and Correctional Home, Poojappura, Thiruvananthapuram, for executing the sentence and thereafter, he preferred this appeal through the Superintendent of Central Prison with a delay of 650 days. The delay was condoned, and appeal was admitted and Adv.Smt.S.A.Sherly was appointed as State Brief for the appellant.

11. The appellant is assailing the impugned judgment mainly on the following grounds:

1. The alleged motive was not proved, as PW2 denied to have witnessed the previous altercation between the accused and the deceased.

2. Testimony of PW3 is not believable, as his presence at the scene of crime is doubtful.

3. Name of the assailant was not stated to the Doctor by the deceased, though he was stated to be conscious at the time of examination, negatives the involvement of the accused in the crime.

4. The multiple injuries noted in Ext.P5 Postmortem Certificate are not possible in a single blow, whereas the prosecution alleges only a single blow against the accused, and so it makes the prosecution case doubtful.

5. The M.O 1 stick was not sent for scientific examination to get scientific evidence that the said weapon was used for commission of the offence.

6. The single blow alleged to have been inflicted by the accused was not sufficient enough, in the ordinary course of nature, to cause death of the deceased.

7. Circumstances leading to the incident, the nature of the injury and the weapon used would suggest that, the accused had no intention or premeditation to cause death of the deceased, and the incident ensued on a sudden quarrel in a heat of passion so as to bring it under Exception 4 to Section 300 of IPC.

12. Heard Smt.S.A.Sherly, learned counsel appearing for the appellant and Sri.Alex M Thombra, learned Prosecutor appearing for the respondent-State.

13. Let us reanalyse the facts and evidence based on the grounds urged by the appellant, and also the arguments put forward from either side, so as to find out whether there is any illegality or impropriety in the impugned judgment, convicting the appellant under Section 302 of IPC and sentencing him to life imprisonment and fine.

Ground No.1

14. Smt.S.A Sherly, learned counsel appearing for the appellant, would argue that, the prosecution failed to prove the motive for the incident as PW2, who is said to have witnessed the previous altercation between the accused and the deceased, deposed in his cross examination that, he had no information about the earlier scuffle between the accused and the deceased.

15. The prosecution case is that, one year prior to the incident, there occurred an altercation and scuffle between the accused and the deceased Rathnakaran, and PW2 Noushad and one Mr.Ashraf dispersed them. PW1, the elder brother of the deceased, who gave Ext.P1 FI Statement before Police also has got a case that, an altercation had occurred between the accused and the deceased at Melakadu Thampuran Mukku, one year prior to this incident. According to PW1, that altercation occurred when the accused, in an inebriated mood, pulled the beard of the deceased. In chief examination, PW2 Noushad categorically stated before court that, earlier there occurred an altercation between the accused and the deceased, and himself and others dispersed them. But, during cross examination, he deposed that “നനരതത ഉണണയ പപടപവലപയതട കണരരര അറപയപല”. Learned counsel for the appellant would contend that, PW2 was not aware of the earlier scuffle between the accused and the deceased and if so, the prosecution case that on 22.05.2013 at 6.30 p.m, the accused attacked the deceased due to his previous enmity because of the earlier scuffle is given a go bye.

16. It is pertinent to note that, though PW2 deposed in his cross examination that, “നനരതത ഉണണയ പപടപവലപയതട കണരരര അറപയപല”, he was not confronted with his 161 statement or his testimony in chief examination that, there occurred an altercation between the accused and the deceased, and himself and others dispersed them, so as to impeach his testimony. Another way of interpreting that statement is that he was not aware of the reason for the scuffle between the accused and the deceased.

17. The fact that Sri.Rathnakaran, who is the brother of PW1, suffered head injury on 22.05.2013 at about 6.30 p.m and he succumbed to the injuries at 2.40 a.m on 23.05.2013 are not in dispute. PWs 2 and 3, the eye witnesses, spoke about the incident in which deceased Rathnakaran sustained head injury at the veranda of shop No.VII/388 of Ittiva Grama Panchayath, while he was sitting on the cement platform on the southern side of the veranda. PW2, who claims to be a friend of both the accused and the deceased, categorically stated before court that, while the deceased was sitting on the cement platform of the veranda talking with the accused, he took a wooden stick and hit on his head whereby he fell down on the floor. It was he who snatched away the wooden stick from the accused and pushed away the accused.

18. PW3, a Civil Police Officer who reached the nearby shop after 6 p.m on 22.05.2013, saw the accused with a wooden stick when he looked towards the place from where he heard a sound. Both PWs 2 and 3 identified the accused as well as the weapon used by him (M.O 1 stick) before court. The accused has no case that, he was a stranger to PWs 2 and 3. The accused did not challenge the statement of PW2 that, the accused as well as the deceased were his friends. So, regarding the incident occurred on 22.05.2013 at about 6.30 p.m in the veranda of shop No.VII/388 in which the deceased Rathnakaran suffered severe head injury at the hands of the accused, there is direct ocular evidence from PWs 2 and 3. Moreover, the incident occurred at 6.30 p.m on 22.05.2013. The appellant has no case that, it was dark at that time to see the incident or to identify the assailant or the weapon used by him. The data available in internet shows that, on 22.05.2013, the sunset was at 6.41.42 p.m. So, there might have been day light at 6.30 p.m which probabilises the case of PWs 2 and 3 that, they had witnessed the incident, and they had no case that, with the aid of electric light only, they could see the incident.

19. Even if we admit for the sake of argument that, the prosecution failed to prove the motive, it is trite law that, motive is only an aid in the assessment of criminality and where there is direct evidence worth relying upon, motive loses its significance. Motive has got great significance in a case involving circumstantial evidence, but where direct evidence is available, it fades into insignificance. In a case where there is direct evidence to prove the incident, absence of motive cannot be a ground to reject the case.

20. In State of U.P. vs. Kishanpal [(2008) 16 SCC 73] [LQ/SC/2008/1632] , the Apex Court held that ‘the motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction.’

21. In Nandu Singh vs. State of Madhya Pradesh (Now Chhattisgarh) [2022 (1) KLT OnLine 1247 (SC)], the Apex Court, following Kishanpal’s case cited (supra), observed that ‘In a case based on substantial evidence, motive assumes great significance. It is not as if motive alone becomes the crucial link in the case to be established by the prosecution, and in its absence, the case of Prosecution must be discarded. But, at the same time, complete absence of motive assumes a different complexion and such absence definitely weighs in favour of the accused’.

22. The decisions Darbara Singh vs. State of Punjab [2012 (3) KLT Suppl. 81 (SC)], Dasan and others vs. State of Kerala [1986 KLT 598], State of Haryana vs. Sher Singh and others [(1981) 2 SCC 300] [LQ/SC/1981/109] , Pedda Narayana and others vs. State of Andhra Pradesh [(1975) 4 SCC 153] [LQ/SC/1975/151] , etc. fortify the legal position that, motive is not an integral part of the crime or an ingredient of it, just like mens rea or actus reus. Absence of motive will not make an act which is otherwise an offence not an offence. It is only an aid in the assessment of criminality. When the direct legal testimony is so clear, cogent and convincing as to satisfy the judicial conscience of the court in fixing up criminality, motive is absolutely irrelevant in the sense that, even in the absence of any proof of motive, conviction could be hacked.

23. In the case on hand, the prosecution has got a case that, the accused and the deceased had an altercation and scuffle almost one year prior to the incident, and the accused was keeping enmity towards the deceased. PWs 1 and 2 gave testimony before court regarding the scuffle and altercation which had occurred between the accused and deceased one year prior to the incident. Learned counsel for the appellant, relying on a single sentence of PW2 in his cross examination, is contending that, the prosecution failed to prove the motive for the accused to commit the offence. From the foregoing discussion and juridical pronouncements, we have seen that, if at all there was no motive from the part of the accused, that is irrelevant, as there is direct evidence from the part of PWs 2 and 3, that they have witnessed the incident, in which the accused inflicted a blow on the head of the deceased using M.O 1 stick. So, the contention of the learned counsel for the appellant that the prosecution failed to prove the motive from the part of the accused, and absence of motive makes the prosecution case doubtful etc., are liable to be rejected.

Ground No.2

24. Smt.S.A.Sherly, the learned counsel for the appellant, contended that, PW3, who is a Civil Police Officer, is not a reliable witness, as his presence in the scene of crime is doubtful. The testimony of PW3 is to the effect that, he is residing 4 kms away from the place of incident. He had stopped his car in front of the shop where the incident occurred, while he was coming back, after dropping his friend. He went to the shop to have a lime juice and he had seen the accused and the deceased in the veranda of that shop at that time. On hearing a sound, he looked towards that direction and saw the accused aiming a stick, and he saw a scar on the forehead of the deceased. According to him, one person snatched away the stick from the accused. PW3 also helped to lift up the deceased, for taking him to hospital in a Nano Car.

25. Learned counsel for the appellant would suggest that, if PW3, who was a Civil Police Officer, was present at the scene of crime, he could have apprehended the accused or taken the injured to the hospital or at least he could have informed the matter to the nearest Police Station. But, there is nothing to show that, PW3 was aware of the seriousness of the single blow inflicted by the accused so as to think that it was likely to result in his death. There were no open wounds on the body of the deceased as seen from the testimony of PW7 Doctor, and so much so, there might not have been any bleeding injuries. The deceased was taken to hospital by PW2 and his friend Mr.Anil in a Nano Car. Learned Prosecutor would suggest that PW3 might not have accompanied them to the hospital, for those reasons. We cannot predict the reactions or responses of different persons when they happen to witness a crime.

26. Different persons react differently in a given situation and even though PW3 was a Civil Police Officer, we cannot expect that he could have acted with all promptitude to arrest the accused at the scene of crime itself or to take the injured to the hospital or to inform the Police Station immediately. It all depends upon his nature and attitude and we cannot blame him, even if he had opted to go back to his house without attending the injured or the accused. But, that itself is not sufficient to disbelieve his testimony that, at the time of incident, he happened to be in the veranda of the shop where the incident occurred and on hearing a sound, he looked towards that direction and saw the accused standing with a stick and the deceased lying down with a mark on his forehead. There is nothing unrealistic in the testimony of PW3 that, on his way back to home after dropping a friend, he stopped his car near the shop to have a lime juice and then saw the incident. It is pertinent to note that, he has not stated that, he saw the accused beating on the head of the deceased and what he had seen is only the accused standing with a stick and the deceased lying on the floor. Only on hearing the sound, his attention was drawn to that place, and by that time, the actual incident of beating might have been over, as seen from his testimony. So, the contentions of the appellant that the testimony of PW3 is not believable and his presence at the scene of crime is doubtful etc. are not tenable.

Ground No.3

27. Learned counsel for the appellant, Smt.S.A.Sherly, would contend that, the name of the assailant was not stated to the Doctor by the deceased, though he was stated to be conscious at the time of examination by PW12, the Doctor attached to St. Joseph Mission Hospital, Anchal. Learned counsel for the appellant drew our attention towards the testimony of PW2 to the effect that, it was he, who told the history of injury to PW12 Doctor. He had deposed that, the history of injury was stated to the Doctor as an accident, so as to ensure treatment for the injured, since he believed that the injured might not have obtained necessary treatment from that hospital, if the original history of assault was divulged. But, PW12 Doctor categorically stated that, the patient was conscious and stable and he himself gave the information noted in Column Nos.9 and 10 of Ext.P17 Certificate as to the cause of injury and the time and place of the alleged incident. The Doctor further stated that, the patient was not vomiting at the time of examination. Even then, since there was head injury with nasal bleeding, the patient was referred to a higher centre.

28. It is true that, PW3 had deposed before the trial court that, the deceased Rathnakaran lost his consciousness when he fell down receiving the blow and according to PW2, the deceased had vomited after the incident. But, the Doctor was categoric in his statement that, when he examined the patient, he was stable and he was not vomiting and the history of injury and the date and time of the incident were spoken to by the patient himself, and we find no reason to disbelieve the testimony of the Doctor.

29. According to PW12 Doctor, the injured himself stated to him that, he was assaulted by an identifiable person with a stick, on 22.05.2013 at 6.30 p.m. at a place called Melakadu. Learned counsel for the appellant would submit that, if the accused was the real culprit, the deceased might have stated his name to the Doctor, as he was stable and conscious, as stated by PW12 Doctor. The name of the accused might have been known to the deceased as both of them belong to same place, and moreover there occurred an altercation and scuffle between the two even according to the prosecution case. Even if the deceased was familiar with the name of the assailant, he need not have stated the same to the Doctor, or even if the injured stated the name of the assailant to the Doctor, the Doctor need not have recorded the same, because the sole object of preparing a Medico Legal Certificate (MLC) is to ascertain the nature of the injuries suffered by the victim and not to divulge the names of the accused persons. It is not an instrument for the purpose of making assumptions regarding the person responsible for the offence, but for the purpose of ascertaining the medical status of the victim. The circumstances, in which an injured implicating a wrong person as the assailant, also cannot be ruled out. There may be political or other kinds of personal rivalries, which may tempt a person to falsely implicate his enemy, or opponent. Sometimes the injured person, on a misunderstanding of facts or on mistaken identity of persons or even in a dilemmatic situation, may state the names of wrong persons as assailants. So, the chances of implicating innocent persons as assailants could not be ruled out, and the Doctor who is preparing the MLC to ascertain the nature of injuries suffered and the medical status of the victim, need not get into those controversial aspects, which may create unwanted confusions or may even misdirect the Investigating Officer. So, the fact that the name of the assailant was not stated by the injured, or if at all it was stated, it was not recorded by the Doctor, will not in any way affect the prosecution case.

30. In the case on hand, there are two ocular witnesses PWs 1 and 2, who witnessed the incident, and they identified the accused as well as M.O 1 weapon used by him. Ext.P17 wound certificate also substantiates the case of PW2 that, it was he who accompanied the injured to the hospital. The testimony of PW2 is cogent enough to find that, he witnessed the accused beating on the head of the deceased with M.O 1 stick, and it was he who snatched away the stick from the accused and pushed him away from the scene, and thereafter he took the injured to the hospital.

31. The First Information Statement was lodged by PW1, the brother of the deceased, at 8.10 am on 23.05.2013, just after five hours of the death of the deceased. In Ext.P17 Wound Certificate, the history of injury is stated as, ‘one identifiable person inflicted a blow with an wooden stick’. There was no mention that the assailants were more than one, negativing the case of the appellant that a group of persons attacked the deceased. In the FIR prepared on the next day morning, just five hours after the death of the deceased, the name and address of the assailant are clearly stated. Though the FIR reached court only on next day at 2.45 p.m, there is nothing to prove any sort of manipulations or false implications. Moreover, no reason whatsoever is pleaded or proved by the accused, so as to implicate him falsely. The appellant is not challenging the presence of PW2 at the scene of crime at the time of incident. Moreover, the appellant has no case that, PWs 1 to 3 are in any way enmical towards him so as to implicate him falsely.

32. In Sachin @ Ajay Kumar vs. State (MANU/DE/2352/ 2012), the High Court of Delhi observed that ‘moving on to the issue of absence of the name of the appellant in DD entry and MLC, it must be noted that the purpose of DD entry is to notify the police of any incident that takes place and not for the purpose of disclosing the name of any accused or suspect in the case or the details of the incident. Its sole purpose is to notify the police officials regarding any incident that requires attention and there is absolutely no provision of mentioning name of accused persons or even the details of the incident. Similarly, the sole objective of preparing an MLC is to ascertain the nature of injuries suffered by the victim and not to divulge the names of the accused persons. It is not an instrument for the purpose of making assumptions regarding the person responsible for the offence, but for the purpose of ascertaining the medical status of the victim. Hence, the name of the appellant could not possibly be present in any of the two documents and consequently, the contention of the counsel for the appellant stands rejected’.

33. The mere fact that the name of the accused is not mentioned in the medical certificate, is not sufficient to discard the prosecution case that, it was the accused who inflicted a blow on the head of the deceased with M.O 1 stick which resulted in his death, when there is direct legal testimony clear and cogent, satisfying the judicial conscience of the court. So, the contention of the learned counsel for the appellant in that regard is liable to be rejected.

Ground Nos.4 & 6

34. Going by the prosecution case, the accused inflicted a single blow on the head of the deceased with M.O 1 stick. Ext.P5 postmortem certificate shows the following antemortem injuries on the body of the deceased:

“1. Multiple small abrasions over an area 10x6cm on forehead across midline 1.5cm above root of nose with area of contusion 12x7x0.5cm underneath and around.

2. Abrasion 3x1cm on left side of top of head 10cm above top of left ear.

3. Contusion 16x10x0.5cm on left side and back of head across midline with contusion of full thickness of temporalis muscle. Its front extent was 3cm infront and just above the level of top of left ear. Skull showed fissured fracture 14cm long obliquely placed on left temporal and parietal bones extending to left side of middle cranial fossa.

4. Contusion 1.5x1.2x0.3cm on right side of head 4cm above top of right ear.

Brain showed contusion 2.5x2x0.5cm on outer aspect of left temporal lobe. Brainstem showed multiple small haemorrhages bilaterally. Subdural and subarachnoid haemorrhages present bilaterally more on left hemisphere. Sulci narrowed and gyri flattened.

5. Abrasion 0.5x0.3cm on inner aspect of left foot 4cm behind root of big toe”.

35. Learned counsel for the appellant submitted that, the injuries noted in Ext.P5 postmortem certificate were not possible in a single blow, and it makes the prosecution case doubtful and probabilises the defence case that the deceased was attacked by a group of persons. PW7 Dr.R.Saritha, who conducted the postmortem examination of the deceased, gave testimony to the effect that, there is chance of more than one blow for causing injury Nos.1 to 5. But, she admitted that, on turning the head, while inflicting the blow, it may hit on the other side. Moreover, some injuries are possible by fall after hitting. The doctor opined that, injury No.4 can be due to injury No.2 also, which is diametrically on opposite sides. Regarding injury No.4, it was a contusion on the right side of head 4cm above top of right ear, but the brain showed contusion on the outer aspect of the left temporal lobe.

36. It is the case of the prosecution that, on receiving a blow on the head with M.O 1 stick, the deceased fell down on the floor hitting his head. PWs 2 and 3 also gave testimony to the effect that, the blow using M.O 1 stick hit on the head of the deceased while he was sitting in a cement platform having 4 feet height and he fell down from the platform hitting the head, and so, in all probability, the other injuries on the head or forehead might have been caused in the fall and the brain injury (injury No.4), as opined by PW7 doctor, can be the result of injury No.2 though it is on diametrically opposite positions.

37. The Book ‘Principles and Practice of Forensic Medicine’ by Dr.B Umadethan, Second Edition, Page No.197, speaks about the coup and contrecoup lesions of the brain due to an impact on the skull. Injuries to the brain substance are found either directly under the site of application of force, or on the surface of brain diagonally opposite to the site of impact. The former are called “coup” lesions and the latter are called “contrecoup”. So, obviously, impact of the head on one side can cause contrecoup lesions of the brain on the opposite side.

38. The testimony of ocular witnesses and the statement of the deceased himself to the doctor in Ext.P17 wound certificate immediately after the incident, are sufficient to show that, there was only one assailant, and only a single blow was inflicted by him on the head of the deceased. The opinion of PW7 doctor that, if head is tilted while inflicting the blow, it may hit on the other side also, and some injuries are possible in the fall after receiving the blow, and the possibility of coup and contrecoup lesion when head receives an impact etc. are sufficient to probabilise the prosecution case that, though five antemortem injuries were noted on the body of the deceased, it all occurred when the accused inflicted a blow on the head of the deceased, and consequential fall and therefore, that need not be disbelieved.

39. The appellant utterly failed to probabilise his case even remotely that, a group of persons attacked the deceased resulting in his death. So, even if it is admitted that, injuries No.1 to 5 noted in Ext.P5 postmortem certificate were not possible in a single blow, the attending circumstances suggest that, the fall after receiving the blow from a platform having height of 4 feet hitting the head, the chances of coup and contrecoup injuries stated by PW7 doctor etc. probabilise the prosecution case that, the deceased suffered injuries No.1 to 5 mentioned in Ext.P5 in the alleged incident, though the accused inflicted only a single blow on his head.

40. With respect to the injuries, learned counsel for the appellant has taken up another contention that, the single blow inflicted by the accused, if at all admitted to be correct, was not sufficient to cause the death of the deceased so as to attract an offence punishable under Section 302 of IPC. PW7 Doctor gave evidence to the effect that, the death of the deceased was due to head injury, and M.O 1 could have caused such injury suffered by the deceased. As we have seen, though only one blow was inflicted by the accused on the head of the deceased, the other injuries might have occurred due to fall on the floor from a height, hitting the head which also can be attributed to the accused, as the deceased, who was sitting on the cement platform, fell down only because of the heavy blow he received on his head from the accused. PW7 Doctor deposed that, injury No.1 to 4 were serious, injury No.2 along with its effect was fatal, and injury No.4 might have been the result of injury No.2 also. The Doctor further opined that, injury No.3 may occur due to single impact or more than one. Injury No.3 was on the left side and back of head across midline 16x10x0.5cm with contusion of full thickness of temporalis muscle. The skull showed fissured fracture 14cm long, obliquely placed on left temporal and parietal bones extending to left side of middle cranial fossa. The nature of that injury suggest that, the said injury might have been caused by the heavy blow inflicted by the accused and it might have been sufficient to cause death independently. Even otherwise in the absence of evidence to the contra, the accused alone was the assailant and the deceased who was sitting on the cement platform in the veranda of a shop, was hit on his head with an wooden stick, and he fell down hitting his head and sustained the injuries the mentioned in Ext.P5. So, the contentions of the learned counsel for the appellant with regard to the improbability of the injuries noted in Ext.P5 in a single blow inflicted by the accused, and the injury sustained in that blow was not sufficient in the ordinary course of nature to cause the death etc. are out of place. So grounds 4 to 6 are also not tenable in the eye of law.

Ground No.5

41. The appellant is assailing the impugned judgment on the ground that, M.O 1 stick was not sent for scientific examination to trace out any bloodstains, and so, the prosecution could not scientifically prove that M.O 1 stick was used by the accused to inflict the injury on the head of the deceased. None of the witnesses have got a case that the deceased suffered any bleeding injury, due to the impact on his head with M.O 1 stick. PW12 Doctor who examined the injured immediately after the incident at St.Joseph Mission Hospital, Anjal noted nasal bleeding and not any bleeding injury on his body. PW7 Doctor who conducted the autopsy on the body of the deceased, stated in clear terms that all the injuries found on the body of the deceased were blunt and closed injuries. It was PW2 who snatched away M.O 1 stick from the hands of the accused immediately after the incident. He also has no case that the deceased was having any bleeding injuries or M.O 1 stick was stained with blood. PW2 himself pointed out M.O 1 stick to PW9 Investigating Officer when he reached the place of occurrence for preparing Ext.P2 scene mahazar. M.O. 1 stick was seized as per Ext.P2 scene mahazar and it was sent to court as per Ext.P8 property list. The mahazar or Ext.P8 property list will not show that, M.O 1 stick was having any bloodstains. Since the prosecution has no case that the deceased suffered any bleeding injury with M.O 1 stick, there was no meaning in sending M.O 1 stick for chemical analysis, to find out whether it contained bloodstains. So, that argument also is not tenable.

Ground No.7

42. Learned counsel for the appellant, drawing our attention to the prosecution case, pointed out that the act of the accused will not amount to culpable homicide amounting to murder, if at all it is admitted that, he inflicted a blow on the head of the accused using a stick, as he had no intention or premeditation to cause the death of the deceased. Moreover, there are umpteen circumstances to suggest that the incident occurred on a sudden quarrel and on a heat of passion. So, learned counsel for the appellant would argue that, an offence of murder will not be attracted as the act by which the death was caused will come within the parameters of Exception 4 to Section 300 of IPC.

43. We have already observed that motive need not necessarily be proved, in a case like this, where there is clear evidence that the deceased has died due to the injuries suffered on account of the act of the accused in hitting on his head with a stick. However, there is no credible and believable version of the prosecution as to the immediate origin of the incidents that happened on the fateful day, except the weak case that accused due to previous quarrel and scuffle that happened some time ago, had straight away come and hit the deceased on his head with a stick on the fateful day. The case projected by the prosecution in the evidence before the Court as if, merely on account of a previous incident of scuffle between the parties that had taken place sometime back, the accused had straight away come and hit on the head of the deceased with a stick on the above day, as a pre-meditated act, is bereft of credibility. The crucial aspects regarding the immediate commencement of the incidents on the above day have been suppressed by the prosecution and the evidence in that regard have not been brought before the Court and so, the truth of those crucial aspects have not been placed before the Court. So, we are constrained to hold that the immediate commencement and origin of the incidents on that day could have happened, not in the manner projected by the prosecution before the Court, but in some other manner. But that does not mean that the accused could be absolved of the conviction and sentence that he legally deserves for the consequences of his actus reus. As pointed out by the learned counsel for the appellant, it is the prosecution case from its admitted materials like the inquest proceedings, wherein the close relatives of the deceased have stated within 3 hours after the registration of FIR that on the day of incident, the accused tried to put his hands on the shoulder of the deceased, as an act of extending a friendly gesture to the deceased to patch up the strained relationship with the deceased. This was done when the deceased was sitting on veranda of CW-5's shop. That the deceased not liking this gesture had warded off the accused and this could have led to the pushing down of the accused, who then would have, out of grave and sudden provocation of the act of the deceased in reacting in a hostile manner even to the friendly gesture of the accused, has pulled out a stick from the Veranda of the shop and inflicted blow on the head of the accused. There are no materials or circumstances to overrule and credibly reject this strong inference flowing out from the above prosecution materials. This aspect is also corroborated by certain other admitted prosecution materials, which has been brought to our notice. We are constrained to hold so, since the prosecution has not proffered any credible evidence on the commencement of the above incidents. So, the immediate origin of the incident on the day could have happened in this manner, going by the admitted prosecution materials and not in the manner subsequently projected by the prosecution. This is all the more so, as it is well settled that the Investigation Agency has a statutory obligation to conduct investigation in a fair and efficacious manner, so that the unvarnished truth of the matter is ferreted out. So, if a fair and proper investigation had been conducted on the abovesaid crucial aspects, credibly borne out from the above admitted prosecution materials, then the above truth of the matter would have been placed before the Court.

Learned counsel for the appellant would submit that, the abovesaid case of the prosecution is sufficient to show that, there was no premeditation for the accused, and just because of the sudden fight, in the heat of passion, the accused inflicted a single blow on his head and he never intended the death of the deceased. According to her, the weapon used was only a stick and it was taken from the scene of crime and it shows that there was no premeditation or preparation from the part of the accused to commit the offence. Moreover, the prosecution has no case that the accused brought the weapon with him to attack the deceased, and even according to their case, the weapon was picked up from the spot. Since there is ample evidence to show that the act was done in the course of a sudden fight, in a heat of passion, and only a single blow was inflicted that too with a stick, the act of the accused will attract Exception 4 to Section 300 of IPC. Moreover, there is no evidence to show that the accused had taken undue advantage or acted in a cruel and unusual manner, as the allegation itself is that he inflicted a single blow using a wooden stick picked up from the scene of crime and no other overt acts were alleged or proved against the accused to say that, he had acted in a cruel and unusual manner.

44. In State of Andhra Pradesh vs. Rayavarapu Punnayya and another [(1976) 4 SCC 382] [LQ/SC/1976/335] , the Apex Court has clearly drawn the distinction between culpable homicide which amounts to murder and culpable homicide which are not amounting to murder. Paragraphs 12 and 13 of that judgment read as follows:

“12. In the scheme of the Penal Code, “culpable homicide” is genus and “murder” its specie. All “murder” is “culpable homicide” but not vice-versa. Speaking generally, “culpable homicide” sans “special characteristics of murder”, is “culpable homicide not amounting to murder”. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, “culpable homicide of the first degree”. This is the greatest form of culpable homicide, which is defined in Section 300 as “murder”. The second may be termed as “culpable homicide of the second degree”. This is punishable under the first part of Section 304. Then, there is “culpable homicide of the third degree”. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.

13. The academic distinction between “murder” and “culpable homicide not amounting to murder” has vexed the courts for more than a century. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minutae abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300”.

45. The consideration that should be weighed by the court in determining whether an act is punishable as murder or culpable homicide not amounting to murder are vividly explained by the Hon’ble Supreme Court in Pulicherla Nagaraju vs. State of Andhra Pradesh [(2006) 11 SCC 444] [LQ/SC/2006/723] , in paragraph 29, which reads as follows:

“29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters — plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances:

(i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention….”.

46. The Apex Court in Mohd. Rafiq @ Kallu vs. State of Madhya Pradesh [(2021) 10 SCC 706] [LQ/SC/2021/3022 ;] followed the dictum laid down in the decisions Pulicherla Nagaraju and Rayavarapu Punnayya cited supra to draw the distinction as to when a homicide becomes murder punishable under Section 302 of IPC or it becomes a culpable homicide not amounting to murder punishable under Section 304 of IPC.

47. In the case on hand, the case of the prosecution itself is that, on 22.05.2013, while the deceased was sitting on the cement platform on the southern side of the veranda of the shop of Sri.Sivaprasad, the accused came there and he tried to put his hand around the shoulders of the deceased, and then the deceased warded it off. The prosecution has no case that, the accused put his hand on the shoulders of the deceased in an angry mood or to attack him. So, it seems that he put his hand on the shoulders of the deceased only as a friendly gesture, to patch up the earlier quarrel and scuffle which had occurred between them about one year back as deposed by PW2. The deceased might not have been happy with the friendly gesture made by the accused, and so he might have warded off his hand. That might have provoked the accused, and in that provocation and sudden heat of passion, he might have picked up M.O 1 stick, which was readily available in the veranda of the shop, to inflict a blow on his head. Since there is evidence to show that, the deceased was sitting on the cement platform and the accused was standing near him in the veranda, in all probability, the blow might have hit on his head.

48. Now the question posed before us is, whether in the facts and circumstances of the case, can it be said that the accused committed murder of the deceased, as defined under Section 300 of IPC or whether he had committed culpable homicide not amounting to murder punishable under Section 304 of IPC. We think it will be appropriate to quote Section 300 of IPC for answering the question.

Sec. 300. Murder:

Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or

Secondly—If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or

Thirdly—If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or

Fourthly—If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

Exception 1 :—When culpable homicide is not murder

Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

The above exception is subject to the following provisos:—

First—That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly—That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

Thirdly—That the provocation is not given by anything done in the lawful exercise of the right of private defence.

Explanation : Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

Exception 2 : Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.

Exception 3 : Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.

Exception 4 : Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner.

Explanation : It is immaterial in such cases which party offers the provocation or commits the first assault.

Exception 5 : Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent”.

49. Section 300 of IPC has two parts. The first part deals with culpable homicide which amounts to murder and the second part is the exception when the culpable homicide will not become murder. As per clause 3 to Section 300 IPC, if the act is done with the intention of causing bodily injury to any person and the bodily injury intended is sufficient in the ordinary course of nature to cause death, he is guilty of murder. Clause 4 of Section 300 IPC says that, if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid, also is guilty of murder. However, as per Exception 4 to Section 300, culpable homicide is not murder if it is committed without premeditation in a sudden fight, in a heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. The explanation to exception 4 says that, it is immaterial in such cases which party offers the provocation or commits the first assault.

50. In Surinder Kumar vs. Union Territory, Chandigarh [(1989) 2 SCC 217] [LQ/SC/1989/142] , the Apex Court detailed the ingredients of Exception 4 to Section 300. Paragraph 7 of that judgment reads as follows:

“7. To invoke this exception, four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly”.

51. In Budhi Singh vs. State of Himachal Pradesh [(2012) 13 SCC 663] [LQ/SC/2012/1126] , the Apex Court explained what will amount to sudden and grave provocation. Paragraph 18 of that judgment reads as follows:

“18. The doctrine of sudden and grave provocation is incapable of rigid construction leading to or stating any principle of universal application. This will always have to depend on the facts of a given case. While applying this principle, the primary obligation of the court is to examine from the point of view of a person of reasonable prudence if there was such grave and sudden provocation so as to reasonably conclude that it was possible to commit the offence of culpable homicide, and as per the facts, was not a culpable homicide amounting to murder. An offence resulting from grave and sudden provocation would normally mean that a person placed in such circumstances could lose self-control but only temporarily and that too, in proximity to the time of provocation. The provocation could be an act or series of acts done by the deceased to the accused resulting in inflicting of injury”.

52. In Sukhlal Sarkar vs. Union of India and Others [(2012) 5 SCC 703] [LQ/SC/2012/399] also, the Apex Court explained the meaning of the expressions ‘grave’ and ‘sudden’ provocation. Paragraph 9 of that judgment reads as follows:

“9. The meaning of the expressions “grave” and “sudden” provocation has come up for consideration before this Court in several cases and it is unnecessary to refer to the judgments in those cases. The expression “grave” indicate that provocation be of such a nature so as to give cause for alarm to the appellant. “Sudden” means an action which must be quick and unexpected so far as to provoke the appellant. The question whether provocation was grave and sudden is a question of fact and not one of law. Each case is to be considered according to its own facts”.

53. Coming to the facts of the present case, on 22.05.2013 at 6.30 p.m, as already discussed in para 43 hereinabove, while the deceased was sitting on the cement platform on the veranda of a shop, the accused reached there and tried to put his hand around his shoulder, as an act of friendly gesture of the accused to patch up the strained relationship with the deceased. Then the deceased, had disliked it and warded off his hand, and then ensued a sudden quarrel and in the heat of that passion, the accused picked up a stick, which was lying on the veranda of that shop, and hit on the head of the deceased. The available facts and circumstances are sufficient to show that, there was no premediation or preparation for the accused to attack the deceased and the facts revealed are sufficient to show that, there was no intention from his part to commit his murder. The fact that only a single blow was inflicted with a stick will also substantiate the case of the appellant that, he never intended to cause the death of the deceased.

54. In Rampal Singh vs. State of Uttar Pradesh [(2012) 8 SCC 289] [LQ/SC/2012/600] , the Apex Court discussed the commonality and speciality of Sections 302 and 304 of IPC so as to distinguish when a culpable homicide will be punishable under Section 302 of IPC or when can it be treated as a culpable homicide not amounting to murder punishable under Section 304 of IPC. Paragraph 21 of that judgment reads as follows:

“21. Sections 302 and 304 of the Code are primarily the punitive provisions. They declare what punishment a person would be liable to be awarded, if he commits either of the offences. An analysis of these two sections must be done having regard to what is common to the offences and what is special to each one of them. The offence of culpable homicide is thus an offence which may or may not be murder. If it is murder, then it is culpable homicide amounting to murder, for which punishment is prescribed in Section 302 of the Code. Section 304 deals with cases not covered by Section 302 and it divides the offence into two distinct classes, that is, (a) those in which the death is intentionally caused; and (b) those in which the death is caused unintentionally but knowingly. In the former case the sentence of imprisonment is compulsory and the maximum sentence admissible is imprisonment for life. In the latter case, imprisonment is only optional, and the maximum sentence only extends to imprisonment for 10 years. The first clause of Section 304 includes only those cases in which offence is really “murder”, but mitigated by the presence of circumstances recognised in the Exceptions to Section 300 of the Code, the second clause deals only with the cases in which the accused has no intention of injuring anyone in particular. In this regard, we may also refer to the judgment of this Court in Fatta v. Emperor [AIR 1931 Lah 63] , 1151. C. 476 (Refer: Penal Law of India by Dr Hari Singh Gour, Vol. 3, 2009.)”

55. In Ajit Singh vs. State of Punjab [(2011) 9 SCC 462], the Apex Court warned the courts to be extremely cautious in finding out whether an offence would fall under Section 302 of IPC and Section 304 Part I of IPC. Paragraph 20 of that judgment reads as follows:

“20. In order to hold whether an offence would fall under Section 302, or Section 304 Part I IPC, the courts have to be extremely cautious in examining whether the same falls under Section 300 IPC which states whether a culpable homicide is murder, or would it fall under its five Exceptions which lay down when culpable homicide is not murder….”.

56. There is no doubt with respect to the fact that M.O 1 stick is a dangerous weapon. It is true that the accused inflicted the blow with M.O 1 stick on the head of the deceased which is a vital part of the body. So, normally, his act might have come within the ambit of clause 4 of Section 300 of IPC. But, the prosecution case unfurled through the testimony of the witnesses is sufficient to bring it under Exception 4 to Section 300 of IPC. The fact that there was no premeditation or preparation and the weapon used was only a stick taken from the scene of crime, in pursuance to a sudden quarrel, and only a single blow was inflicted in the heat of passion etc. will justify the argument of the learned counsel for the appellant that the act of the accused will come within the ambit of Exception 4 of Section 300 of IPC, which is punishable under Section 304 of IPC.

57. It is worth extracting Section 304 of IPC for ready reference.

“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”.

58. In the case on hand, as there is evidence to show that, the accused inflicted a heavy blow on the head of the deceased which is a vital part of the body, and as an ordinary prudent man, he might have been aware of the fact that it was able to cause such bodily injury as is likely to cause death, though actually he had not intended his death. So, the accused had committed culpable homicide not amounting to murder which is punishable under Section 304 Part I of IPC. So, his conviction and sentence under Section 302 of IPC are liable to be set aside.

59. Taking all these facts into consideration, the conviction and sentence of the appellant under Section 302 of IPC are set aside, and he is liable to be punished under Section 304 Part I of IPC.

60. The accused is a first time offender and no criminal antecedents are reported against him. We are in receipt of a report from the Superintendent of Open Prison and Correctional Home, Nettukaltheri dated 11.01.2023 stating that, the appellant Suresh Babu, S/o. Raveendran, who was convicted and sentenced to undergo rigorous imprisonment for life and fine of Rs.10,000/- (IDRI for six months) under Section 302 of IPC in SC No.862 of 2014, had already undergone actual imprisonment of 7 years and 6 days as on 10.01.2023 and he has earned total remission of 1 year and 26 days as on 10.01.2023. Nothing adverse is reported against him from the jail also. So, he deserves to be dealt with leniently.

61. In the result, this Crl.Appeal is partly allowed. The conviction and sentence of the appellant for the offence under Section 302 of IPC are set aside. The appellant is convicted for the offence under Section 304 Part I of IPC and he is sentenced to undergo rigorous imprisonment for seven years and fine of Rs.5,000/- (Rupees Five Thousand only) in default to undergo RI for three months.

62. If the appellant has already completed the period of imprisonment now imposed by us, including the set off, remission etc. and also taking into account the period of parole, leave etc., he shall be released from prison forthwith, if his further detention is not needed in connection with any other case. The impugned judgment of the Sessions Court will thus stand modified as above.

63. With these observations and directions, the above Criminal Appeal stands finally disposed.