Narayanan Satheesan @ Baboo Vs. State of
Kerala [1977] INSC 183 (29 September 1977)
SINGH, JASWANT SINGH, JASWANT GOSWAMI, P.K.
SHINGAL, P.N.
CITATION: 1977 AIR 2308 1978 SCR (1) 577 1977
SCC (4) 301
ACT:
Murder charge-Conviction by High Court u/s.
302 Penal Code on appeal by State against acquittal under that section but
conviction u/s 326 I.P.C. by Session's- Non-production by the Prosecution or
non-summoning u/s. 311 Cr I.P.C., 1973 by Court, of the doctor who performed
the operation is not fatal when corroborated by dying declaration, autopsy
report and one of the eye- witnesses-Evidence Act (Act 1), 1872, ss. 32(1) and
s. 45.
HEADNOTE:
The appellant, though charged u/s. 302 of the
Indian Penal Code for intentionally causing the death of one K. G. Thomas alias
Thampi, a well built male of 32 years on the night of December 16, 1972, by
inflicting a stab 3X1 cm. over his left infra scapular area was, however, on a
consideration of the material adduced before him, acquitted of the said charge
and convicted u/s. 326 and sentenced to 7 years rigorous imprisonment by the
Sessions Judge. Both the appellant and the State appealed against the said
orders.
The High Court accepted the State's appeal,
set aside the conviction u/s. 326 and convicted him u/s 302 and sentenced him
to imprisonment for life. The High Court rested the conviction on the dying
declaration (Ex. p. 9) which received ample corroboration from the testimony
of; one of the three eye-witnesses, Pappan (P.W. 5).
Dismissing the appeal to this court u/s. 2(a)
of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) (Act 28
of 1970), 1970, the court,
HELD : (1) Non-production by the prosecution
of the doctor who performed the operation on the deceased is of no avail.
It is no doubt unfortunate that the
prosecution has not attempted to examine the doctor who performed the
operation, but this lapse is not sufficient to downgrade the enormity of the
offence committed by the accused. [583 C-D, H] Explanation (2) to s. 299 of the
Indian Penal Code which provides that where death is caused by an injury, the
person who causes it would be deemed to have caused the death although by
resorting to proper remedies and skilful treatment, the death might have been
prevented. [583 H, 584 A] (3)(a) In the instant case, taking into consideration
the deadly character of the weapon used, the dastardly assault made by the
accused and the vital organs of the body on which the injury was caused as also
the categorical statement of Dr. Jayapalan, P.W. 4, who conducted the autopsy
of the dead body of the deceased that the injury No.
1 was sufficient in the ordinary course to
cause death of the deceased, it is clear that the appellant deliberately caused
the fatal wound on the person of the deceased. The conviction u/s 302 of the
Indian Penal Code must be maintained. [584 B-C] (b)It is true that the
appellant inflicted only one stab wound on the deceased but the facts
established in the case, namely, that the appellant did not act under any
sudden impulse but pursued the deceased after arming himself with a dagger
which is a dangerous weapon in execution of a premeditated plan motivated by
ill feelings nurtured for a number of days and inflicted a severe stab injury
on the vital region of the body of the deceased which perforated not only his
left lung but also penetrated into and impaired the left centrically of his
heart clearly show that the appellant had the intention of causing the death of
the deceased and pursuant thereto acted in a manner which brings the offence
within the mischief of s. 302 of the Penal Code.
The offence committed by the accused squarely
falls within the purview of clause "thirdly" of s. 300 of the Indian
Penal Code according to which culpable homicide is murder if the act
13-930SCI/77 578 by which the death is caused is done with the intention of
causing bodily injury to any person and the bodily injury intended to be caused
is sufficient in the ordinary course of nature to cause death of the deceased.
[583 B-E] Gudar Dusadh v. State of Bihar, A.I.R. 1972 S.C. 952, followed.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 342 of 1974.
Appeal under Section 2(a) of the Supreme
Court Enlargement of Criminal Appellate Jurisdiction Act, 1970 from the
Judgment and Order dated 2-7-74 of the Kerala High Court in Criminal Appeal No.
338 of 1973 and 87/74.
T. C. Raghavan and N. Sudhakaran for the
Appellant.
K. R. Nambiar for the Respondent.
The Judgment of the Court was delivered by
JASWANT SINGH, J.-Narayanan Satheesan alias Baboo, the appellant herein, was
tried by the Additional Sessions Judge, Mavelikara, under section 302 of the
Indian Penal Code for intentionally causing the death of one K. G. Thomas alias
Thampi, a well built male, aged about 32 years, who was an inhabitant of
Eruvallipra Muri in Thiruvala Village, by inflicting an injury with a dagger
(M.O. 1) on the back of his chest at 7.30 P.M. on December 16, 1972 at a sandy
place situate on the Western side of the village road which goes to Veliyam
Kadavu (Ghat Ferry) from Thirumoola on the eastern extremity of Purayidom known
as Kaval Purayidom belonging to Arya Community within the jurisdiction of
Thiruvalla Police Station. On a consideration of the material adduced before
him, the learned Judge acquitted the appellant of the charge under section 302
of the Indian Penal Code but convicted him under section 326 of the Code and
sentenced him to rigorous imprisonment for a term of seven years with the
finding that he had, by means of a dangerous weapon like M.O. 1. caused
grievous hurt on the person of the deceased which had endangered his life.
Aggrieved by this judgment and order, both
the State as well as the appellant appealed to the High Court of Kerala at
Ernakulam. The High Court set aside the conviction of the appellant under section
326 of the Indian Penal Code and instead convicted him under section 302 of the
Code and sentenced him to imprisonment for life. Dissatisfied with this
judgment, the appellant has come up in appeal to this Court under section 2(a)
of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970
(Act 28 of 1970).
The case as put forth by the prosecution is
that a couple of weeks before the date of occurrence, there was an altercation
between the appellant and the deceased over the refusal by the latter to
relinquish possession of the Purayidom before the expiry of the term of one
year of the lease granted in his favour by the father of the accused on a
pattom of Rs. 550/- which entitled him to the usufruct of the coconut trees
standing on the Puravidom that during the course of the aforesaid alternation
the appellant threatened to kill the deceased if he 579 did not hand back
possession of the property peaceably; that irked at the refusal of the deceased
to surrender possession of the Purayidom, the appellant armed himself with a
dagger and followed the deceased on the evening of December 16, 1972, While the
latter was passing along the above mentioned road and after thrusting the
dagger in the back of the chest of the deceased, took to his heels without even
taking out the weapon from the situs of the wound; that the deceased pulled out
the weapon from his back and threw it on the ground hereafter blood gushed out
of the wound and he fell down; that on seeing this incident Gopala Kurup (P.W.1),
who was going to have his bath at Veliyam Kadavu and Thommi Mathai (PW.2) who
was on his way to Thirumoola which is about five furlongs from his house to buy
some provisions rushed to the scene of occurrence; that Thommi Mathai (P.W.
2) and Gopala Kurup (P.W. 1) removed the
deceased about 6 or 7 feet towards the East whereafter Gopala Kurup (P.W. 1)
bandaged the wound of the deceased which was bleeding profusely with his
thorough (bath towel); that while the wound was being bandaged by Gopal Kurup, Pappan
(P.W. 5), the Ferryman employed by the Municipality at Veliyath for ferrying
people across Manimala river, also hastened to the scene of occurrence, saw the
appellant running away and heard the deceased saying "Mathaichacha. Babu
stabbed me";
than after bandaging the wound as aforesaid,
Gopal Kurup (P.W. 1) Thommi Mathai (P.W. 2) and Pappan (P.W. 5) removed the
deceased to the middle of the road, laid him on the level surface and started
raising an alarm, on hearing which the brothers of the deceased including
Geevarghese George (P.W. II ) and some other persons arrived at the scene of
occurrence, that in reply to the query made by his elder brother, Geevarghese
George (P.W. 1 1), the deceased said "Achaya, Babu stabbed me"; that
the deceased was thereafter removed by his brothers in a taxi car to the
Thiruvalla Hospital where P.W. 6, Dr. G. K. Pai, examined his person and found
a stab injury over his left infrascapular area, 3 XI c.m., horizontal in
position, both edges sharp penetrating into the pleural cavity (left
side)-Direction of the wound obliquely forward and to the right side(?)
Anenumothorax on the left side; that the doctor made an entry of the injury
noticed by him in the relevant register of the Hospital and rendered first aid
to the deceased; that while the first aid was being given to him, the deceased
told the doctor that the injury was caused to him by stabbing at 8.00 P.M.;
that in view of the serious nature of the wound, the doctor advised the
relatives of the deceased to take him to the Medical College Hospital, Kottayam
for expert medical attention and treatment; that thereafter the doctor gave
intimation of the incident on telephone and by means of a letter (Ext. p-4) to
the Thiruvalla Police Station whereupon P.W. 15 viz. Madhavan Pillai Head
Constable attached to the said Police Station proceeded to the Hospital but on
learning on arrival at that place that the injured had already been sent to the
Medical College Hospital, Kottayam, he at once returned to the Police Station
and forthwith contacted Arpookara Police Station on telephone and informed the
person in charge thereof that since the statement of the injured person by name
K.G. Thomas who had been brought to Thiruvalla Hospital with serious injuries
could not be, taken as he had been removed to the Medical College Hospital.
Kottayam for expert medical treatment, his 580 statement might be taken and the
needful be done in the matter; that on being thus informed by Madhavan Pillai
(P.W.15), Govinda Pillai (P.W. 13), Head Constable In charge of the Police
Station, Kottayam proceeded to the College Hospital and after taking the
permission of Dr. K. M. R. Mathew, who was examining the deceased in the
casualty room, recorded his statement (Exh. p-9) at 9.30 P.M. which was to, the
following effect :- "I know that it is a Head Constable who is talking to
me now. I am called Thampi. Babu, son of Ezharapra Narayanan stabbed, me with a
dagger. It was on my back that he stabbed me from behind. It was at
Veliyamkadavu (ferry) that he stabbed me. It was I myself who pulled out the
dagger with which I was stabbed and threw it there. Ferryman Pappan and others
have seen him stabbing me. It was today at 7.30 p.m. that the incident took
place. It was in order to kill me on account of prior enmity that he stabbed
me. The place of incident is within the limits of Thiruvalla Station. It is 40
kms. south from here." The prosecution case further proceeds that it was
not before 2 O'clock at night intervening between 16th and 17th December, 1972
that Govinda Pillai (P.W. 13) could return to his Police Station as he had to
record statements in four or five other cases intimation regarding which was
received by him while he was at the Hospital; that on his return to the Police
Station, Govinda Pillai (P.W. 12) prepared the First Information Report (Exh.
P-10) on the basis of Exbibit P-9 and sent the same to the Munsiff-Magistrates
Court Ettumanoor; that an hour after his return to the Police Station, Govinda
Pillai got intimation from the Hospital vide Exhibit P-1 1 that the injured
person, whose statement (Exh. P-9) he had recorded had died at 3.00 A.M.; that
about 8 O'clock in the morning, Govinda Pillai went to the Medical College
Hospital and prepared the Inquest Report (Exh. P-8) whereafter he sent the dead
body of the deceased to the Police Surgeon for post mortem examination; that
P.W.
4, Dr. v. K. Jayapalan, Professor of Forensic
Medicine and Police Surgeon, Medical College, Kottayam conducted the autopsy of
the body of the deceased on December 17, 1972 at 2.00 P.M. and noticed the
following appearances :- "General-Body was that of a well built adult
male. Rigor mortis fully established and retained all over. Dried blood stains
were seen on the front of right fore-arm and front of chest. Injuries (antemortem)
(1) Sutured incised penetrating wound horizontally placed on the back of chest
3 cm.
to the left of middle and 24 cm. below the
top of shoulder. The wound was found entering chest cavity cutting through the
9th intercostal space, perforated the lower lobe of left lung and penetrated
the left ventricle of the heart. The wounds on the lung and heart measured 2.8
cm. in length and were found sutured. The wound was directed forwards upwards
and to the right.
581 (2) Sutured surgical thorocotomy wound 26
cm. in length on the outer aspect and back of left chest 17 cm. below the arm
pit.
(3) Surgical wound 1.3 X .5 cm. obliquely
placed on the back of chest 3 cm. below injury No. 1.
(4) Multiple small abrasions over an area
3.5 x 2 cm. on the outer aspect of right
shoulder. Other findings are; Left lung was collapsed. Left chest cavity
contained 75 cc.
of blood clots. Pericardial cavity contained
50 cc. of blood clots. Stomach was empty and mucous was normal." The
doctor opined that injury No. 1 which could have been caused with a weapon like
M.O. 1 was sufficient in the ordinary course to cause death. The doctor further
opined that the cause of death of the deceased was bleeding and shock following
stab injury sustained by him on the back.
P.W. 17, V. Rajasekharan Nair, Circle
Inspector of Police, Kayamkulam, took over investigation of the crime on
receipt of the express intimation regarding the registration of the case under
section 302 of the Indian Penal Code on December 17, 1972. He repaired to the
scene of occurrence without any loss of time, prepared the, scene mahazar,
seized the blood stained earth and questioned the witnesses and prepared notes
of their statements on the same evening. He also seized the dagger (M.O. 1)
which was produced before him by Geevarghese George (P.W. 11) on December 30,
1972.
It was not, however, before January 1, 1973
that the Police could arrest the appellant at Nedumbram.
After completion of the investigation, the
appellant was proceeded against in the Court of Sub-Magistrate, Thiruvalla, who
committed him to the Court of Sessions to stand his trial under section 302 of,
the Indian Penal Code with the result as stated above.
Although in addition to the other witnesses,
the prosecution examined Gopal Kurup (P.W. 1), Thommi Mathai (P.W. 2) and
Pappan (P.W. 5), who claimed to be the eye witnesses of the incident, both the
Additional Sessions Judge and the High Court while holding that their arrival
on the spot was proved, discarded the evidence of Gopal Kurup (P.W. 1) and
Thommi Mathai (P.W. 2) on the )ground that their testimony was not trustworthy
and rested the conviction of the appellant on the dying declaration (Exh. P-9)
which, according to them. received ample corroboration from the testimony of
Pappan (P.W. 5).
Appearing in support of the appeal, Mr.
Raghavan has urged that the conviction of the appellant cannot be sustained
firstly because the evidence on the record is not sufficient to bring home the
offence to the appellant. secondly because the dying declaration (Exh. P-9)
which 582 has been heavily relied upon by the trial court and the High Court
could not have been made by the deceased who was in a critical condition and
clearly appears to have been fabricated after the death of the deceased and
thirdly because the testimony of Pappan (P.W. 5) and Geevarghese George (P.W.
11) from which corroboration has been mainly derived is not cogent and
convincing.
We have carefully gone through the entire
evidence on the record. While we do not consider it safe to place reliance on
the eye witness account of the occurrence given by Gopal Kurup (P.W. 1) and
Thommi Mathai (P.W. 2) which has been rejected as untrustworthy by the trial
court and the High Court or on the statement of Geevarghese George (P.W. II) in
view of his queen and unnatural conduct in wiping away the blood from the
weapon of offence and not producing the same before the Police for nearly 14
days, we think that the statements of' Govinda Pillai (P.W. 13) and Pappan
(P.W. 5) cannot easily be brushed aside. Pappan (P.W: 5) who belongs to the
community of the appellant and has no animus against him and whose testimony is
natural and consistent and whose credit has remained unshaken despite the
lengthy cross- examination to which he was subjected has unequivocally stated
that at about 7.30 on the evening of December 16, 1972 while he was sitting in
his boat which he had rowed to the Northern ferry as there were no passengers
to take across the river, he heard the cry "Heigho",
"heigho" from the shore; that on ascending five or six steps, be saw
the deceased standing in a bent position on the western side of the road with a
dagger stuck on his back and the accused whom he knew from his childhood
running westwards from near the deceased; that the deceased himself pulled out
the dagger and threw it in the Purayidom; that it was after Gopal Kurup (P.W.
1) and Thommi Mathai (P.W. 2) had come running lo the spot from the North that
the deceased fell down on the right side; that Gopal Kurup (P.W. 1) bandaged
the wound of the deceased with his bath towel and while his wound was being
bandaged, the deceased was saying "Mathaicha, abut stabbed me". The
evidence of Govinda Pillai, Head Constable (P.W. 13) has also remained unshaken
in cross-examination. From his statement which receives corroboration from the
statements of not only Dr. V. K. Jayapalan (P.W. 4) and Dr. G. K. Pai (P.W. 6)
who were examined by the prosecution but also from the statement of Dr. Mathew
Varghese (P.W. 5) who was examined by the appellant, it is crystal clear that
the deceased (whose central nervous system remained normal and who neither lost
his consciousness nor his power of speech) gave a coherent account of the
circumstances leading to his injury which be faithfully and accurately recorded
in Exhibit P-9 and forthwith asked the deceased to append his signatures
thereon which he did with a steady hand. We are, therefore, absolutely
convinced that the incident took place in the manner disclosed by the
prosecution.
This does not, however, conclude the matter.
The important question as to the nature of the offence committed by the accused
still remains to be determined by us. adopting the reasoning of the trial
court, it is emphasized by learned counsel for the appellant that since the
appellant inflicted only one stab injury on the person of the 583 deceased and
the deceased died during the performance of operation on his lung and heart and
the prosecution has not tried to establish either that the doctor who performed
the delicate operation was at specialist or a competent and skilful surgeon and
took all reasonable; care and caution or that the death was the inevitable
result of the stab injury, the appellant can at the utmost be held guilty of
the offence, under section 326 of the Indian Penal Code. We find it difficult
to accede to this contention. It is true that the appellant inflicted only ones
stab wound on the deceased but the facts established in the case viz. that the
appellant did not act under any sudden impulse but pursued the deceased after
arming himself with a dagger which is a dangerous weapon in execution of a
premeditated plan motivated by ill feelings nurtured for a number of days and
inflicted a servere stab injury on the vital region of the body of the deceased
which perforated not only his left lung but also penetrated into and impaired
the left ventrical of his heart clearly show that the appellant had the
intention of causing the death of the deceased and pursuant thereto acted in a
manner which brings his offence within the mischief of section 302 of the Penal
Code. It is no doubt unfortunate that the prosecution has not attempted to
examine the doctor who performed the operation but this lapse is, in our
opinion, not sufficient to downgrade the enormity of the offence committed by
the accused. It cannot be overlooked that Dr. V. K. Jayapalan (P.W. 4) who
conducted the autopsy has categorically stated that stab injury No. 1 was
'sufficient in the ordinary course to cause death' and that the cause of death
of the deceased was bleeding and shock following the said injury.
In Gudar Dusadh v. State of Bihar(1) where
the accused made a pre-meditated assault and inflicted an injury with a lathi
on the head of the deceased which was sufficient in the ordinary course of
nature, to cause death and actually resulted in the death of the latter, it was
held that the mere fact that the accused gave only one blow on the head would
not mitigate the offence of the accused and make him guilty of the offence of
culpable homicide not amounting to murder.
In the instant case, the prosecution having
succeeded in establishing that the stab injury inflicted on the person of the
deceased was sufficient in the ordinary course of nature to cause the death,
the offence committed by the accused squarely falls within the purview of
clause 'thirdly' of section 300 of the Indian Penal Code according to which
culpable homicide is murder if the act by which the death is caused is done
with the intention of causing bodily injury to any person and the bodily injury
intended to be caused is sufficient in the ordinary course of nature to cause
death of the deceased.
Again the non-production by the prosecution
of the doctor who performed the operation on the deceased is of no avail to the
appellant. As rightly held by the High Court, the case is clearly covered by
Explanation 2 to Section 299 of the Indian Penal Code which provides that where
death is caused by an injury the person who (1)A.I. R. 1972 S.C. 952.
584 causes it would be deemed to have caused
the death although by resorting to proper remedies and skilful treatment the
death might have been prevented. It appears that the attention of the
Additional Sessions Judge was not drawn to this aspect of the matter and while
quoting a passage from Modi's Medical Jurisprudence and Texicology (1963
Edition), he not only glossed over the last sentence thereof where it is
succinctly stated that "it should be, noted that the liability of the
offender is in no way lessened even though life might have been preserved by resorting
to proper remedies and skilful treatment" but also tried to highlight
something which did not possess any significance. Taking into consideration the
deadly character of the weapon used, the dastardly assault made by the accused
and the vital organs of the body on which the injury was caused as also the
categorical. statement of Dr. V. K. Jayapalan, Professor of Forensic Medicine,
who conducted the autopsy of the dead body of the deceased that the injury No.
1 was sufficient in the ordinary course to cause death of the deceased, we have
no hesitation in holding that the appellant deliberately caused the fatal wound
on the person of the deceased and in maintaining the conviction under section
302 of the Indian Penal Code.
For the foregoing reasons, we find no merit
in this appeal which is dismissed.
S.R.
Appeal dismissed.
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