IMPORTANT POINTS
Certain statement on fact admissible under Section 6 of the Evidence Act must have been made contemporaneous with the acts which constitute the offence or atleast immediately thereafter- But, if there was an interval, however slight it may be, which was sufficient enough for fabrication, then the statement is not part of res gestae.
The appellant had no intention of causing the death of the deceased or causing any injury as is likely to cause death. He had inflicted the blow on the deceased with the chopper with the knowledge that his act was likely to cause death.
There was no premeditation. The appellant attacked the deceased in the midst of a sudden quarrel and in the heat of passion. He did not take any undue advantage. He did not act in a cruel or unusual manner- Exception 4 to Section 300 I.P.C. applies. The act of the appellant leading to the death of the deceased, having been done by him with the knowledge that it was likely to cause death, he deserves to be convicted for the offence punishable under Section 304 Part-II I.P.C.

JUDGMENT :

R. NARAYANA PISHARADI, J.

1. The appellant is the sole accused in the case S.C. No. 390/2002 of the Court of Session, Ernakulam. Conviction entered and sentence passed against him under Sections 326 and 324 and the first part of Section 304 of the Indian Penal Code are assailed in this appeal.

2. The prosecution case is as follows:

There was a case registered against the appellant alleging that on 01.06.1999 he had committed rape on the daughter of PW-1. On 19.08.1999, the appellant went to the house of PW-1 to have a talk of settlement of the aforesaid case. Boss, the son of the sister of PW-1, then reached the house. He was totally opposed to any compromise in the matter. A wordy altercation took place between him and the appellant. They went out of the house of PW-1 and reached the nearby pathway. Then, the appellant took out a chopper, which was concealed behind his body under the shirt, and he struck a blow with it on the neck of the deceased. He also assaulted PW-1 to PW-3 with the chopper and beat PW-1 and PW-4 with a stick and caused hurt to them. The deceased was taken to a hospital but he succumbed to the injury sustained on the neck. The incident took place at about 19.00 hours on 19.08.1999.

3. PW-21 Sub Inspector recorded Ext.P1 first information statement of PW-1 at 22.00 hours on 19.08.1999 at the hospital. On the basis of that statement, Ext.P21 first information report was registered as Crime No. 108/1999 of Oonnukal police station. PW-23 Circle Inspector conducted the investigation of the case. After completing the investigation, he filed charge sheet against the appellant for the offences punishable under Sections 302, 326 and 324 of the Indian Penal Code.

4. The trial court framed charge against the appellant for the offences mentioned above. The accused pleaded not guilty and claimed to be tried.

5. During the trial of the case, PW-1 to PW-23 were examined and Exts.P1 to P22 and MO1 to MO5 were marked on the side of the prosecution.

6. The appellant filed a statement after his examination under Section 313 Cr.P.C. In the aforesaid statement, he pleaded as follows: The rape case registered against him was false. At the instance of PW-1 and his relatives, he had gone to the house of PW-1 for having a talk of settlement of that case. Both sides agreed to settle the aforesaid case. When he came out of the house of PW-1 and reached the pathway, he was attacked by some persons and he sustained injuries on his body. He could obstruct some of the blows and somehow he escaped from there. There was a melee occurred in darkness. He was not armed with chopper or any other weapon. He is innocent.

7. On the side of the appellant, two witnesses were examined as DW-1 and DW-2 and Exts.D1 to D21 were marked. Ext.C1 document was also marked at his instance.

8. The learned Sessions Judge found that the prosecution was able to prove the alleged incident beyond reasonable doubt. Learned Sessions Judge rejected the plea of private defence raised by the appellant. However, the learned Sessions Judge found that there was grave and sudden provocation from the deceased which deprived the appellant of his power of self control and that the act of the appellant causing fatal injury to the deceased does not amount to an offence punishable under Section 302 I.P.C. but it only amounts to an offence punishable under the first part of Section 304 I.P.C. Learned Sessions Judge also found that the appellant committed the offences punishable under Sections 324 and 326 I.P.C. Thus the appellant was convicted of the offences punishable under Sections 324 and 326 and the first part of Section 304 I.P.C. He was sentenced to rigorous imprisonment for a period of ten years and to pay a fine of Rs. 50,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of two years for the offence punishable under Section 304 Part-I I.P.C. and to undergo rigorous imprisonment for different terms and also to pay fine for the offen