Research › Browse › Judgment

Kerala High Court · body

1995 DIGILAW 376 (KER)

Chandran v. State

1995-11-04

B.M.THULASIDAS, P.V.NARAYANAN NAMBIAR

body1995
Judgment :- Narayanan Nambiar, J. Chandran, son of Sanku who was tried in Sessions Case No. 4 of 1992 by the Court of Session, Palakkad Division for an offence punishable under Section 302 I.P.C. was convicted under Section 323 I.P.C. and sentenced to undergo rigorous imprisonment for a period of 3 months. The conviction and sentence are challenged by the accused in Criminal Appeal No. 589 of 1992. The State preferred Criminal Appeal No. 419 of 1993 and sought conviction of the accused under Section 302 I.P.C. At the time of admission of Criminal Appeal No. 589 of 1992, Crl.R.C. No. 81 of 1992 was ordered to be registered and notice was issued to the accused to show cause why he should not be convicted as charged and why the sentence imposed on him should not be enhanced. All the three cases are heard by us together. 2. According to the prosecution, the accused Chandran obtained Rs. 200/-from deceased Muralikrishnan on the basis of a promissory note. As the amount was not repaid, Muralikrishnan instituted a suit in the Munsiff's Court, Chittur as S.C.No. 8 of 1988. The case was posted to 1.12.1989 on which day Muralikrishnan, PW.1 (the scribe who prepared the promissory note) and PW.2 (one of his friends) had gone to the Munsiff's Court, Chittur in connection with the said suit. Evidence and arguments in the case were over on that day and they returned by bus. The accused was also travelling in the bus. The deceased, PWs.1 and 2 alighted from the bus at the bus stop situated in front of Chanthappetta at Koduvayur. The accused also got down and he caught hold of the deceased by his shirt and mundu and kicked him on his abdomen and chest. The deceased fell down. Again the accused kicked him. PWs.I and 2 took deceased Muralikrishnan to Dr.C.S.Gopinathan, PW.7, who examined the deceased and advised him to be taken to the nearest primary health centre. Accordingly, he was taken to the Primary Health Centre where he was examined by PW.8 who found him dead. 3. First Information Statement, Ext. P1, was given by PW.1 to PW 19. On the basis of the statement, Crime No.285 of 1989 under Section 302 I.P.C. was registered and Ext. P1(a) is the First Information Report. PW.19 visited the spot and prepared Ext. P6 scene mahazar. 3. First Information Statement, Ext. P1, was given by PW.1 to PW 19. On the basis of the statement, Crime No.285 of 1989 under Section 302 I.P.C. was registered and Ext. P1(a) is the First Information Report. PW.19 visited the spot and prepared Ext. P6 scene mahazar. At the time of preparing the scene mahazar, MOS.1 and 2 were recovered. PW.20, Sub Inspector of Police, conducted the inquest. Ext.P4 is the inquest report which was attested by PW.10 MOs. 3 to 6 were recovered at the time of inquest. PW.15, Assistant Professor of Forensic Medicines conducted autopsy on the body of the deceased. Ext. P5 is the post mortem certificate. After completing investigation, PW.22 laid the charge sheet. 4.23 witnesses were examined on the side of the prosecution, Exts. P1 to P14 were marked and Mos.1 to 6 were produced and identified. DW.1, Dr.K.Balakrishnan, gave evidence on behalf of the defence. Exts.D1, D1 (a) and D2 which are portions of the C.D. statement were also marked on the side of the defence. 5. The accused denied his involvement in the crime. He pleaded innocence while he was questioned under Section 313 Cr.P.C. 6.The prosecution relied on the evidence of PWs.1 to 3 who are alleged to be eye-witnesses to prove the case. From the deposition of PW.1, it is clear that himself, PW.2 and the deceased had been to the Munsiff's Court, Chittur in connection with the suit filed by deceased Muralikrishnan against the accused for recovery of the amount covered by the promissory note and they returned by bus. The accused was also travelling in the same bus. The deceased, PWs.1 and 2 and the accused alighted from the bus. Then the accused caught hold of the deceased. A scuffle followed and in the course of the scuffle, the accused kicked the deceased on the stomach. The deceased fell down and then the accused kicked him on the chest and abdomen. PWs.1 and 2 interfered and rescued the deceased who was taken to the verandah of the nearby shop owned by PW.4. Later, he was taken to the nearest hospital. Accordingly, the deceased was taken to the Primary Health Centre, Koduvayur where he was examined by PW.8 who found him dead. 7. The evidence of PW-1 is corroborated in all material particulars by the testimony of PWs.2 and 3. Later, he was taken to the nearest hospital. Accordingly, the deceased was taken to the Primary Health Centre, Koduvayur where he was examined by PW.8 who found him dead. 7. The evidence of PW-1 is corroborated in all material particulars by the testimony of PWs.2 and 3. We are not extracting the evidence of PWs.2 and 3 here. It suffices to say that their evidence is exactly on similar lines with that of PW.1. The proprietor of the shop to where the deceased was removed immediately after the incident is PW.4 who testified that the deceased was brought to the verandah of his shop and he was given soda. PWs.7 and 8 are medical officers from whose testimony it is clear that the deceased was taken to them and they had examined the deceased on the evening of 1.12.1989. From the evidence of the above mentioned witnesses, it is abundantly clear that it is the accused who is responsible inflicting the injury on the body of the deceased on 1.12.1989, as alleged by the prosecution. The court below has also concluded the same accepting the evidence of Pws.1 to 4, 7 and 8. We find no circumstances to hold otherwise. 8. Having come to the conclusion that it is the accused who is responsible for inflicting the injury on the body of the deceased, it must now be considered whether the accused is guilty for an offence punishable under Section 302 I.P.C., as alleged by the prosecution or under Section 323 I.P.C., as held by the court below. 9. The prosecution wants us to believe and it was very vehemently contended too that the accused knew at the time of occurrence that deceased was suffering from serious ailments connected with his heart and so he is liable to be punished under Section 302 I.P.C. as he has committed an offence of murder. The testimony of PWs.2, 11 and 23 is relied on for this purpose. In the course of deposition, PW.2 stated that the deceased was suffering from heart ailment. PW.11 is the brother-in law of the deceased. According to him, he and the decreased had been to Madras and the deceased was examined by Dr.Muthuswamy who gave Ext.P5 prescription which will show the ailment and treatment of the deceased. In the course of deposition, PW.2 stated that the deceased was suffering from heart ailment. PW.11 is the brother-in law of the deceased. According to him, he and the decreased had been to Madras and the deceased was examined by Dr.Muthuswamy who gave Ext.P5 prescription which will show the ailment and treatment of the deceased. His deposition also will show that the deceased was suffering from heart disease and the same was known to all persons in the locality. Evidence of PW.23 is pressed into service to prove that the accused was aware of the illness of the deceased on the basis of the information conveyed by him to the accused. The court below has not placed reliance on the evidence of PW.23. We have also gone through his evidence and we find it extremely difficult to hold that the accused was told by the witnesses that the deceased was suffering from heart ailments. The evidence of PW.2 also will not be helpful to the prosecution to prove that the accused was aware of the illness of the deceased. 10. It is not a case where there was no motive at all for the accused to inflict injury on the deceased. There was a civil dispute between the parties and the deceased had even filed a-suit for recovery of the amount covered by the promissory note alleged to have been executed by the accused. It was on 1.12.1989. Witnesses were examined and arguments were heard in the case. This probably agitated the accused and the incident happened on the same evening while all of them were returning from the court. 11. The postmortem examination of the deceased was conducted by PW.15 who issued Ext.P8 certificate. The following ante-mortem injuries were noted by him: "(1) Two skin deep Lacerate wounds 1.3 x 0.3 cm and 0.8 x 0.3cm horizontally placed on the front of chest; the former being 9 cm above the right nipple in the 11 o'clock position and the latter 10 cm above the right nipple in the 1 o'clock position and they were 4cm apart. (2) Abration 0.5 x 0.2 cm over the back of right elbow (3) Abrasion 0.5 x 0.3cm. over the back of left elbow. (4) Abrasion 0.5 x 0.3 cm over the front of left leg 11 cm above the ankle. (2) Abration 0.5 x 0.2 cm over the back of right elbow (3) Abrasion 0.5 x 0.3cm. over the back of left elbow. (4) Abrasion 0.5 x 0.3 cm over the front of left leg 11 cm above the ankle. (5) Abrasion 0.5 x 0.1 cm obliquely placed over the forehead 2.5 cm to the left of midline and 2 cm above the inner one third of eye-brow. (6) Contusion 1.8 x 1.5 cm x 0.5 cm over the front of right ventricle 2cm above the apex of heart and close to interventricular septum." PW.15 gave evidence regarding the cause of death as shown hereunder: "1. There is evidence of both recent and old signs of ischaemic heart disease due to coronary occlusive heart disease. 2.The deceased died of combined effects of injury sustained to the heart and coronary occlusive heart disease." In the course of his evidence PW.15 stated that injury No.6 in Ext. P5 certificate is sufficient in the ordinary course of nature to cause death and it could be caused by forceful kick on the chest. He also deposed that injury No.6 is an internal injury corresponding to injury No.1 and the same cannot be caused by a fall. 12. from the evidence of the medical officer, PW.15, who conducted the autopsy, it is clear that the deceased died due top the combined effects of injury sustained to the heart and coronary occlusive heart disease. It is also clear that injury No. 6 sustained by the deceased is sufficient in the ordinary course of nature to cause death. 13. Counsel for the accused wanted us to hold that the deceased had a natural death and his death was not due to the injury sustained by him. The evidence of DW.1, a retired Professor of Surgery of the Medical College Hospital, Coimbatore was pressed into service. His deposition shows that from the nature of injuries described in Ext.PS, injury No.l is very minor which cannot normally cause death of the victim. He also deposed that injury No.6 cannot be an ante-mortem injury. According to him, the deceased died of natural cause only since he was having 99 per cent occlusion. But the witness had to admit in cross-examination that the person who conducted post mortem is more competent to describe the injuries noticed by him. He also deposed that injury No.6 cannot be an ante-mortem injury. According to him, the deceased died of natural cause only since he was having 99 per cent occlusion. But the witness had to admit in cross-examination that the person who conducted post mortem is more competent to describe the injuries noticed by him. Though an attempt was made by DW.1 to show that a kick above the nipple cannot cause injury to the heart, he had to admit that a kick will have the effect over the entire area covered by the foot on the affected part. His evidence also shows that injuries to the heart need not necessarily be associated with contusion of chest and there need not necessarily be a contusion on the soft tissues over the chest. The evidence of DW.1 cannot be accepted in preference to that of PW.15, who is the medical officer who has examined the deceased and seen the injury. DW.1 did not have such an occasion. He was giving opinion by looking into Ext.PS. A person who has seen the injury and who had conducted post mortem on the body of the deceased is more competent to give evidence than DW.1 who did not have such a privilege. So, we are inclined to accept the evidence of PW.15 in preference to that of DW.1 and hold that the prosecution has succeeded in establishing that the deceased died of the combined effect of the injury sustained on his heart and coronary occlusive heart disease. We also accept the evidence of PW.15 that injury No.6 in Ext. P5 is sufficient in the ordinary course of nature to cause death. 14. Now we will consider the offence committed by the accused. IS. The offence of culpable homicide is defined under Section 299 I.P.C. "Culpable homicide - Whoever cause death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide." The Section has the following essentials: 1 Causing of death of a human being. 2.Such death must have been caused by doing an act, i. with the intention of causing death; or ii. with the intention of causing such bodily injury as is likely to cause death; or iii. 2.Such death must have been caused by doing an act, i. with the intention of causing death; or ii. with the intention of causing such bodily injury as is likely to cause death; or iii. with the knowledge that the doer is likely by such act to cause death." It is clear from the Section that to attract an offence of culpable homicide, there need not be an intention of causing such bodily injury as is likely to cause death, but it is enough that the act complained of is done with the knowledge that he is likely by such act to cause death. To put in other words, if the wrong doer knows that his act is likely to cause death of the victim, he commits an offence of culpable homicide. A person who voluntarily inflicts injury such as to endanger life must always, except in most extraordinary and exceptional circumstances, be taken to know that his act is likely to cause death. If the victim is actually killed, conviction in such cases ought ordinarily be for the offence of culpable homicide. Once it is established that the act was a deliberate act and was not the result of an accident, rashness or negligence, it is obvious that the offence would be culpable homicide. 16. though it cannot be held that the accused intended to cause the death of the deceased, he had sufficient knowledge that the act which he did is likely to cause death of the deceased. A person kicking another on the abdomen and chest 3 or 4 times in quick succession can be presumed to have knowledge that it is likely to result in the death of the victim. Every man must be presumed to know the consequence of his act. Vital organs of the body are situated in the chest and abdomen and forceful kick on a person who fell down on the ground is likely to result in his death. The injury, as opined by PW. 15. and is revealed in Ext.PS certificate is caused by the accused which is sufficient in the ordinary course of nature to cause death. So, we are inclined to hold that the accused has committed an offence of culpable homicide, as defined under Section 299 I.P.C. 16. The injury, as opined by PW. 15. and is revealed in Ext.PS certificate is caused by the accused which is sufficient in the ordinary course of nature to cause death. So, we are inclined to hold that the accused has committed an offence of culpable homicide, as defined under Section 299 I.P.C. 16. The punishment for an offence under Section 299 I.P.C. is prescribed under Section 304 I.P.C. As we have already held the accused had no intention to kill the deceased, the 1st part of Section 304 is not attracted. But, as the accused had the knowledge that his act is likely to "cause bodily injury as is likely to cause death", he is liable for punishment under the latter part of Section 304 I.P.C. Accordingly, we allow Criminal Appeal No.419 of 1993 and dismiss Criminal Appeal No. 589 of 1992. The accused is convicted under the latter part of Section 304 I.P.C. and sentenced to undergo rigorous imprisonment for 5 years. In view of the above finding. Crl.R.C.No.81/1992 is closed.