Kesava Pillai Kunjan Pillai v. State — 1950 DIGILAW 35 (KER)

Judgment :- 1. The first accused is the appellant before this court. He and his two sons were charged with the offence of murder and they were tried in the Additional Sessions Court at Trivandrum in Sessions Case No. 5 of 1125. The learned judge reached the conclusion that the charge has not been proved against the first accused under S. 301, but under S. 326 of the Travancore Penal Code, for stabbing the deceased with a knife which has been produced as M.O. III. He also found that no case has been made out against the two sons of the first accused, who were accused 2 and 3 in the court below, and he has acquitted them. The first accused was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 50/-and in default of payment of the fine, to undergo simple imprisonment for one month more. 2. The incident took place on 15.4.1123 when the deceased was passing along a public road at 8 P.M. He and the appellant accosted each other, and a quarrel ensued as a result of certain offensive words used by each other. It culminated in a hand-to-hand fight between the two. At the time the quarrel began they were on the public road on the side of which there is what is described as a channel, (more correctly a brook), running along a side of the road, but on a lower level. There was very little water in the brook at the time of the occurrence. According to the evidence for the prosecution, it was a fairly dark night, and the witnesses who have spoken to the incident state that in the course of the hand-to-hand fight the deceased jumped to the side of the road, what is described by the learned Public Prosecutor as the slope of the road. Some other witnesses say that the deceased jumped to the bed of the brook or channel. At that stage, the accused seems to have used a pen-knife for stabbing the deceased. The stabbing was not too severe or dangerous. There was one stab wound inflicted on the chest which must have penetrated the lung on the left side of the body. The deceased was taken to the Police Station by 2.45 A.M. on 16.4.1123. At that stage, the accused seems to have used a pen-knife for stabbing the deceased. The stabbing was not too severe or dangerous. There was one stab wound inflicted on the chest which must have penetrated the lung on the left side of the body. The deceased was taken to the Police Station by 2.45 A.M. on 16.4.1123. There he made a statement which has been incorporated as part of the First Information Report. At 10-30 A.M. on the same day, when he was in the Government Hospital at Chirayinkil, a dying declaration was recorded by a competent Magistrate. From there he seems to have been moved to the General Hospital at Trivandrum where he was received as an in-patient. He survived for 41/2 months after the stabbing, and ultimately died on 1.9.1123 during the period he was an in-patient in the General Hospital at Trivandrum. It was stated that from the hospital he was allowed to go home at his own request, but that was only for a temporary period, and he was brought back again to the hospital. The medical evidence of the Doctor who gave the wound certificate and the doctor who performed the postmortem examination, discloses that the stab wound in the chest had healed by the time death took place. But a perforation had to be made in the vicinity of that wound for allowing puss which had accumulated in that region to be drained out, and this offensive matter in the body seems to have produced a toxic infection which culminated i the death of the victim. 3. The learned Counsel appearing for the appellant in the first place commented very strongly on this aspect of the case and he contends that the death was not the result of the stab wound. He also wants to argue that the dying declaration should not have been admitted in the evidence in this case in view of the fact that the statement recorded by the Magistrate has no reference to the cause of death. On this question of law, which in the first argument addressed on behalf of the appellant, two decisions have been cited by the learned counsel. Those are the cases reported in Abdul Gani Bandkuchi v. Emperor, (A.I.R. 1943 Cal. 465) and Imperatrix v. Rudra,1901 I.L.R. 25 Born. 45. On this question of law, which in the first argument addressed on behalf of the appellant, two decisions have been cited by the learned counsel. Those are the cases reported in Abdul Gani Bandkuchi v. Emperor, (A.I.R. 1943 Cal. 465) and Imperatrix v. Rudra,1901 I.L.R. 25 Born. 45. In both these cases, the facts, seem to be substantially different from the facts of the present case. In the case reported in Abdul Gani v. Emperor the victim of the attack was injured on the 9th of January. He was sent to a hospital on the same day and his dying declaration was recorded on the same day. He was discharged from the hospital on the 30th January. Six or seven days after he was discharged from the hospital, he contracted fever and died as the result of the attack. In the case reported in Imperatrix v. Rudra the deceased did not die as a result of the stab wound inflicted on him by the accused, but he died of phneumonia. An attempt was made to show that phneumonia was aggravated by the stab, but that was not established. The finding was that there was no evidence to show that the death was caused or accelerated by the wounds received as a result of the attack made by the accused in that case. It will thus be seen that in both the above cases there was a distinct finding that the cause of the death was something entirely different from the attack made on the victim by the accused. In the present case however, it is not possible to assert that the death was not the result of the stab wound inflicted on the chest of the victim. No doubt the man survived for a period of 4 1/2 months after he was admitted as an in-patient in a hospital. But the death was the result of a complication that arose as a result of the stab. 4. The learned counsel for the appellant wants to rely upon the wording of S. 32 of the Travancore Evidence Act which corresponds to S. 32 of the Indian Evidence Act. The relevant clause of the section in Cl. (1) which refers to a statement made by a person as to the cause of his death. But that is not the only case contemplated by Cl. (1). The second part of Cl. The relevant clause of the section in Cl. (1) which refers to a statement made by a person as to the cause of his death. But that is not the only case contemplated by Cl. (1). The second part of Cl. (1) goes on to refer to "any of the circumstances of the transaction which resulted in his death". Therefore when a statement is made by a person as to any of the circumstances of the transaction which resulted in his death, that statement is admissible in evidence in a case in which the cause of the death is a point in issue. In the present case we are satisfied that the facts fully warrant the assumption that the dying declaration, which refers to what took place at the time of the incident between the accused and the deceased, contains a statement which will come within the second part of Cl. (1) of S. 32. Although it may not come under the first part of Cl. (1), which pointedly refers to the cause of death, it will come under the category of a statement made by a person who dies subsequently as to any of the circumstances of the transaction which resulted in his death, within the meaning of S. 32 Cl. (1) of the Evidence Act. The first objection raised on behalf of the appellant must therefore be overruled. 5. It is next argued on behalf of the appellant that the court below has taken the First Information Report given by the deceased to the Police Officer on 16.4.1123 and which has been marked as Ext. A (2), substantive evidence in this case and that this also is an illegality. The learned counsel argues that it can only be regarded as a First Information Report which may be used as corroboration of a statement subsequently made by a person who made it and that it was wrong on the part of the court below to have relied upon it as substantive evidence. Here again, the learned Public Prosecutor contends that he would rely upon the provisions of S. 32 Cl. (1) of the Evidence Act. The statement will come under the second part of Cl. (1) of S. 32 in the same manner in which the dying declaration can be brought under the provision of law. This legal objection also is therefore not sustainable. 6. (1) of the Evidence Act. The statement will come under the second part of Cl. (1) of S. 32 in the same manner in which the dying declaration can be brought under the provision of law. This legal objection also is therefore not sustainable. 6. The next argument of the appellant's learned counsel relates to the oral evidence at the trial. It is contended by him that there are material discrepancies in the evidence of the various witnesses examined at the trial. The learned Sessions Judge has conceded in his judgment that there are discrepancies, but he has taken the view that they are not material discrepancies and we see no reason to disagree. One of the points stressed on behalf of the appellant is the fact that P.W. 2, who, according to the learned Sessions judge, was a dependable witness, had stated in his evidence that it was a dark night and that he was able to witness the incident because P.W. 9, the first accused's wife, had come there with a torch and he was consequently able to see what was happening with the help of the torch light. P.W. 9, when she was asked about it, denied that she had come there. This is quite natural on the part of the wife of the first accused, who would not like to be a party to a criminal case being proved against her husband. There is nothing to prevent the learned Sessions Judge from believing the version of P.W. 2 and disbelieving the version given by P.W. 9. There are discrepancies that are commented upon; for instance, P.W. 4 spoke about chimney lamps being brought by somebody in the vicinity, but not a torch light as spoken to by some other witnesses. P.W. 6 has been disbelieved by the trial court. According to him, he brought a light. There are also certain other minor discrepancies regarding the exact spot at which the struggle between the two persons took place. According to some of the witnesses, the struggle took place at the edge of the road. The learned Public Prosecutor states that the version given by the witnesses who have been believed by the trial court, is that the struggle took place on the slope of the road, and not in the channel itself. According to some of the witnesses, the struggle took place at the edge of the road. The learned Public Prosecutor states that the version given by the witnesses who have been believed by the trial court, is that the struggle took place on the slope of the road, and not in the channel itself. It is possible to expect such discrepancies when the attack took place when it was fairly dark, and it may not have been possible for the persons who have noticed the incident to concentrate on the exact spot at which the attack took place. They would be more interested in their seeing what was happening in the course of the struggle between the two contesting parties. P.W. 14 is alleged to have produced the knife which has been recognised in the judgment of the court below as the weapon that was used in stabbing the deceased. P.W. 14 is a son of the accused. He denies that he produced the knife. Here again, the same reasons which can be urged against the evidence of P.W. 9 will apply. He will not be interested in seeing that his father is punished for such a serious crime. 7. On perusing the judgment of the trial court and the relevant portion of the evidences read to us by the learned counsel appearing for the appellant and by the learned Public Prosecutor on behalf of the State, we are not prepared to say that the conclusion reached by the learned trial judge is incorrect or that it calls for interference in appeal. The trial court seems to have arrived at a conclusion that is substantially correct on the entire evidence placed before it at the trial. We therefore see no reason to interfere with the conviction and sentence passed on the first accused and dismiss the Criminal Appeal. Appeal dismissed.