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2018 DIGILAW 800 (KER)

RAJAN C. GEORGE, S/O GEORGE v. STATE OF KERALA

2018-10-09

A.M.SHAFFIQUE, P.SOMARAJAN

body2018
JUDGMENT : Shaffique, J. This appeal is filed by the accused in SC No.28/2012 of the Addl.Sessions Judge (Adhoc-II) Kottayam challenging judgment dated 12/3/2013 by which he was convicted and sentenced to undergo imprisonment for life for the offence u/s 302 of I.P.C. and to pay a fine of Rs.50,000/-in default of which to undergo imprisonment for a further period of five years, convicted and sentenced to undergo imprisonment for one year for the offence u/s 450 of I.P.C. and to pay a fine of Rs.5,000/-for the offence u/s 450 of I.P.C. 2. Prosecution case is that on 11/10/2010 at about 9.30 am, the accused with the intention of committing murder, trespassed into the house of Sheela (the deceased) with a bucket containing formic acid. He poured it over her head and she suffered grievous burn injuries. She was taken to Pampadi Taluk Hospital and thereafter to Medical College Hospital, Kottayam. She succumbed to the burn injuries on 25/10/2010 at 4.40pm at the Medical College Hospital, Kozhikode. The case was registered based on the first information statement given by the deceased before PW36, the Assistant Sub Inspector of Police, Pampady on 11/10/2010. On the same day, FIR was registered and the accused was arrested on 13/10/2010. Investigation was conducted by the Circle Inspector of Police, Pampady and final report was filed before the Judicial First Class Magistrate Court-I Kottayam on 1/6/2011. Thereafter the matter was committed to Sessions Court, Kottayam and made over to the Additional Sessions Judge (Adhoc)-II for trial and disposal. 3. The accused was charged u/s 450 and 302 of I.P.C.. To prove the prosecution case, PWs 1 to 43 were examined and they relied upon Exts.P1 to P36. MO1 to MO8 series were produced and identified. On the side of defence, Exts.D1 and D2 were marked. After completing the procedural formalities and after hearing the accused, he was convicted as stated above. 4. Learned counsel for the appellant argued that the evidence available in the case was not sufficient enough to prove the guilt of the accused beyond reasonable doubt. It is argued that the Court below was not justified in placing reliance on the FI statement of the deceased as enough evidence was available to indicate that she was on loggerheads with the accused. The statement of witnesses have not been properly appreciated by the Sessions Court. It is argued that the Court below was not justified in placing reliance on the FI statement of the deceased as enough evidence was available to indicate that she was on loggerheads with the accused. The statement of witnesses have not been properly appreciated by the Sessions Court. Various contradictions which were pointed out were completely ignored by the Trial Court and that apart, there is substantial lacuna in the prosecution case which were all unanswered and therefore, the accused is entitled for the benefit of doubt. 5. On the other hand, the learned Public Prosecutor while supporting the judgment of the trial Court justified the judgment by contending that substantial evidence has been adduced by the prosecution to prove the guilt against the accused. The dying declaration given by the victim immediately after the incident itself proves a case of culpable homicide amounting to murder. The contradictions alleged to have been brought out were not material to the facts of the case and therefore, this is a fit case in which the conviction and sentence is to be confirmed. 6. Before proceeding further, it would be useful to analyse the evidence once again. Though several witnesses had been arrayed, during trial, prosecution gave up some of them. 7. PW1 is the occurrence witness. He is the younger son of the deceased who was 4 years at the time of the incident. Court below recorded his statement at the time when he was 6 years old. It was found that he is a competent witness and capable of giving evidence with regard to the incident. He gave evidence clearly stating that he saw the accused pouring acid on his mother. Some of the drops of acid fell on him also. He was also taken to the hospital for treatment. He identified the accused as the person who had poured acid on his mother. He is acquainted with the accused as he was called 'Achayan'. He along with his mother and elder brother Abhilash were residing in a rented house. The incident happened in the hall of their house. After pouring acid on his mother's head, the accused ran away. He had come in a car and escaped in the said vehicle. He also identified the bucket MO1. 8. PW2 is a neighbour of the deceased. The incident happened in the hall of their house. After pouring acid on his mother's head, the accused ran away. He had come in a car and escaped in the said vehicle. He also identified the bucket MO1. 8. PW2 is a neighbour of the deceased. She deposed that on 11/10/2010, at about 9.30 am, the accused came to the courtyard of her house with a bucket. He came inside the house. PW2's son was also in the house. Accused told them that he is not the brother of Sheela as stated earlier and they were living as man and wife for a considerable period. She had conceived his child and later it was aborted. PW2 further deposed that earlier the accused and the deceased introduced themselves as brother and sister and deceased was living separately since she had matrimonial disputes with her husband. Accused told PW2 that Sheela was having some illicit relationship with an Advocate and that she is not attending his telephone calls. He had arranged money for purchasing 40 cents of land at Changanasserry for Sheela and she has paid only Rs.1,50,000/-. The accused thereafter left her house with the bucket and had gone to the house of the deceased through the rear side of her house. After some time, he came back and asked for a tool for opening a tin. She gave him a knife. After sometime, the accused returned the knife stating that it was not suitable for opening the tin and hence she gave a scissors. She also identified MO2, the scissors. She also identified the can which is marked as MO3. After sometime, PW2 heard a screaming sound from the house of deceased and when she opened the window, she saw the accused running out of the house of the deceased and proceeding towards the main road. PW2 saw the deceased coming out of her house screaming and covering her left side of face. She was telling that the accused had poured acid on her. PW2 also asked a mason and his workers who were in the nearby compound to chase the accused, but in the meantime, accused ran away and got into his Omni van and escaped. PW2 and the neighbours had taken the deceased to the hospital. 9. PW3 was a friend of the deceased. They had met at church. PW2 also asked a mason and his workers who were in the nearby compound to chase the accused, but in the meantime, accused ran away and got into his Omni van and escaped. PW2 and the neighbours had taken the deceased to the hospital. 9. PW3 was a friend of the deceased. They had met at church. Deceased had requested her to come to her house for packing the household articles as she intended to shift her house. When PW3 reached near the gate of the house, she saw the accused coming from the house of deceased and the deceased was seen following him screaming that he had poured acid on her. Workers in the nearby building tried to chase the accused, but he had escaped in a car. 10. PW4 is another neighbour who arranged an autorickshaw, by which the deceased was taken to Pampady Taluk Hospital. PW3 also accompanied the deceased to the hospital. He heard the deceased contacting a few persons over mobile phone and informed them about the incident. The house coat which the deceased was wearing at the relevant time was changed at Pampady Hospital, which PW3 identifies as MO4. After giving first aid, the deceased was shifted to Medical College Hospital, Kottayam. 11. PW5 is another neighbour who also saw the deceased running out of her house on 11/10/2010. when she saw the deceased, she was covered with some liquid with a pungent smell. People who gathered poured water on her and thereafter she was taken to hospital. 12. PW6 is a mason who was working in a nearby building with his workers. He along with his workers tried to chase the accused who was seen running through the pathway as instructed by PW2. Though they chased him, he escaped in an Omni van which was parked on the side of main road. PW6 also identified the accused. 13. PW7 deposed that on 11/10/2010 at about 8.30-8.45 am the accused had come to their shop and purchased 2 litre can of formic acid for an amount of Rs.205/-. He deposed that he knew the accused for the last 30 years. He identified MO3, the can. 14. PW8 is the owner of P.S.Trading Company, Karukachal where PW7 was working. He had provided a computer print out of the bill dated 11/10/2010 for sale of formic acid of 2 litres. Ext.P1 is the bill. 15. He deposed that he knew the accused for the last 30 years. He identified MO3, the can. 14. PW8 is the owner of P.S.Trading Company, Karukachal where PW7 was working. He had provided a computer print out of the bill dated 11/10/2010 for sale of formic acid of 2 litres. Ext.P1 is the bill. 15. PW9 identifies MO1 bucket. According to him, the accused had purchased Henko washing power from his super market for which, under a scheme, they gave a bucket free of cost. He knew the accused for quite a long time and the accused was his neighbour. 16. PW11 is the brother of the deceased. He deposed that when he visited his sister at the hospital, he was told that the accused had poured acid on her. He also stated that he had taken the deceased to the Medical College Hospital, Kozhikode for further treatment on 12/10/2010 and that on 25/10/2010 she succumbed to the burn injuries. 17. PW13 is the husband of the deceased. He deposed that he was having matrimonial issues with the deceased and they were living separately. He further deposed that, on the date of incident, deceased contacted him over phone and told him that the accused had poured acid on her. He proceeded to Medical College Hospital, Kottayam. PW13 stated that the accused was having illicit relationship with his wife and that was also a reason for the strained relationship between them. A joint petition for divorce was pending before the Family Court. 18. PW14 is the local committee member of CPI(M) and a neighbour of the deceased while she was residing at Mammoodu. He deposed that he had interfered in certain financial dealings of the deceased on the request of his friend. The accused had visited him once and informed him that the deceased was having intimacy with Adv.Jayachandran and that he will not allow the same and further that he would make the deceased bath in acid. He also deposed that Sheela also complained against the accused stating that he used to intimidate her. Deceased had also contacted him through telephone on the day when she suffered the acid burn. 19. PW15 is an Advocate. PW15 also deposed that on the way to hospital, deceased informed him that the accused had poured acid on her. 20. He also deposed that Sheela also complained against the accused stating that he used to intimidate her. Deceased had also contacted him through telephone on the day when she suffered the acid burn. 19. PW15 is an Advocate. PW15 also deposed that on the way to hospital, deceased informed him that the accused had poured acid on her. 20. PW16 who is a friend of accused had sold a bottle of soap liquid to the accused on the said day. He also stated about the enmity between the accused and deceased during the relevant time. 21. PW18 is a staff nurse of Chaithanya Hospital, Kuruvilangad. She deposed that on 11/10/2010, in the afternoon, the accused came to the hospital. He was examined by a physician. He was admitted in the hospital in the name of Thomas George, Bethel, Kottayam as IP No.6240. At about 5.30 p.m, he absconded. Ext.P17 is the case sheet pertaining to the accused and Ext.P18 series are the bills. 22. PW21 is the security guard of MUM Hospital, Monippally. He produced Ext.P7 register which was maintained for entering the details of vehicles parked in the compound of hospital. Exts.P7(a) and P7(b) would show that vehicle No.KL-33/4232, an Omni van belonging to the accused, was parked in the compound of the said hospital on 11/10/2010 and 12/10/2010. After the FIS was recorded by PW36, ASI of Police, on 11/10/2010 at 12 noon, the investigating officer requested the Judicial First Class Magistrate-II Kottayam to record the dying declaration of the deceased. PW34 is the Magistrate who recorded Ext.P21 statement of the deceased. In Ext.P21, she stated that she had sustained burn injuries when the accused had poured acid over her head. Her signature was obtained in Ext.P21. The Duty Doctor had certified that the injured was capable of giving such a statement. Initially the case was registered by PW39 u/ss 452 and 307 of I.P.C. on the basis of Ext.P23 FIS. Ext.P25 is the FIR prepared by PW39. After the death of Sheela, by Ext.P33 report dated 27/10/2010, offences under sections 450 and 302 of I.P.C. were incorporated. 23. PW32 conducted post-mortem examination on the body of the deceased and Ext.P19 is the certificate. PW32 deposed that death was due to complications of infected corrosive burns involving 60% of the total body surface area. 24. After the death of Sheela, by Ext.P33 report dated 27/10/2010, offences under sections 450 and 302 of I.P.C. were incorporated. 23. PW32 conducted post-mortem examination on the body of the deceased and Ext.P19 is the certificate. PW32 deposed that death was due to complications of infected corrosive burns involving 60% of the total body surface area. 24. PW43 is the Professor of Surgery at Medical College Hospital, Kozhikode who had treated the deceased. He deposed that she was admitted on 13/10/2010. Ext.P36 is the case sheet. According to him, the immediate cause of death was septicemia and aspiration phenomena. He deposed that aspiration was high in a case of pouring of acid on a person. 25. PW29 is the Doctor attached to Pampady Taluk Hospital where the deceased was taken immediately after the incident. Ext.P14 is the wound certificate. As per the wound certificate, deceased suffered 60% burns on the body and the cause of injury spoken to by the injured was pouring of acid by Rajan George on 11/10/2010 at 9.30 am at her house at Chennampally. Deceased was given first aid and referred to Medical College Hospital, Kottayam. She further deposed that on 11/10/10 itself at 11.10 am she had examined PW1 and issued Ext.P15 wound certificate. He suffered burn injury on the left hand and on the right hand as well. In Ext.P15, the cause of injury is noted as pouring of acid by Rajan George at Chennampally House. 26. PW30 is the Superintendent of Taluk Hospital, Pampady who had examined the accused. Ext.P16 is the certificate. The accused was examined on 13/10/2010 and he had noted scalds and charred lesions over left upper arm extensor aspect and right forearm close to the wrist joint of the accused. He had also noted dislocation of knee joint and tenderness. PW30 deposed that the burn injuries were sustained on account of contact with acid. 27. The main contention urged by the learned counsel for the appellant is that the evidence of a child witness, who is the sole occurrence witness, cannot be the basis of a conviction as the evidence itself is lacking in various particulars. He placed reliance upon the following judgments:- (i) Kesavan v. State of Kerala ( 1993 (1) KLJ 359 ). The main contention urged by the learned counsel for the appellant is that the evidence of a child witness, who is the sole occurrence witness, cannot be the basis of a conviction as the evidence itself is lacking in various particulars. He placed reliance upon the following judgments:- (i) Kesavan v. State of Kerala ( 1993 (1) KLJ 359 ). In this case, one of the issues that had arisen was whether there is any illegality in relying upon the testimony of a child witness. It was held that evidence of a child witness must be corroborated in some material particulars implicating the accused. It is observed that Courts in India are cautioned from earlier times that it is only a sound rule in practice not to act on the uncorroborated evidence of a child witness. Division Bench also referred to a judgment of the Apex Court in Bhikha Valu and others v. State of Gujarat ( AIR 1971 SC 1064 ) wherein it was observed that the aforesaid caution must be adopted as a rule of prudence when the court has to consider the evidence given by a child witness. (ii) In Caetano Piedade Fernandes v. Union Territory of Goa, Daman and Diu, Panaji [ (1977) 1 SCC 707 ], a three Judge bench of the Apex Court held that in a case where child witness was only six years of age at the time when he gave evidence, the same has to be approached with great caution. If it suffers from serious infirmities and contradictions, the testimony cannot be accepted. (iii) Chhagan Dame v. State of Gujarat ( AIR 1994 SC 454 ) In this case also, the Apex Court found that if the child witness was tutored and was made to give evidence in accordance with the earlier evidence recorded u/s 162, it is quite unsafe to place reliance on the said evidence. (iv) Jasbir Kaur v. State of Punjab [1993 Supp (2) SCC 654]. This was also a case in which the Apex Court did not place reliance on the evidence of a child witness as he had come with the said version only after two or three days. (v) Arbind Singh v. State of Bihar [1995 Supp (4) SCC 416]. (iv) Jasbir Kaur v. State of Punjab [1993 Supp (2) SCC 654]. This was also a case in which the Apex Court did not place reliance on the evidence of a child witness as he had come with the said version only after two or three days. (v) Arbind Singh v. State of Bihar [1995 Supp (4) SCC 416]. This was also a case where the Apex Court held that there cannot be a conviction based only on the basis of evidence of the child aged five years. The evidence was taken after four years and when traces of tutoring on certain aspects of the case is evident, the said evidence need not be relied upon. 28. At the time when PW1 was examined, he was only four years. But his presence in the house at the time of incident is rather proved by the fact that he also suffered injury, i.e., acid burns. This is evident from the fact that he was also taken to the hospital by the police immediately after the injured was taken and he was treated in Taluk Hospital, Pampady. PW30, the Superintendent of Taluk Hospital, Pampady has issued Ext.P15 wound certificate and burn injuries were noted. Therefore, his presence cannot be doubted and he had seen the incident also. Otherwise, there is no reason why the child would suffer any such burn injury on account of the acid. Of course, while being cross examined, he stated that he was asked to state about the incident. He also stated that he knew the accused and he used to call him Achayan. A question was asked as “xxx xxx”. This statement is pointed out to indicate that the child witness was tutored. It is settled law that the evidence of a child witness has to be considered with great caution as there is always a tendency to tutor him. But, in this case, as already stated, he is also injured due to acid burns. Therefore, his presence in the house at the relevant time cannot be disputed. Therefore, what has to be considered is only whether his evidence is corroborated by other facts. 29. From the evidence placed on record, the following facts are proved:- (I) The accused purchased a bottle of soap liquid from PW16. (II)The accused purchased Henko washing powder with a free bucket (MO1)from the shop of PW9. Therefore, what has to be considered is only whether his evidence is corroborated by other facts. 29. From the evidence placed on record, the following facts are proved:- (I) The accused purchased a bottle of soap liquid from PW16. (II)The accused purchased Henko washing powder with a free bucket (MO1)from the shop of PW9. (III) The accused purchased formic acid in a two litre can from the shop of PW8. PW7 is the salesman who sold it to him. MO3 is the can identified by PW7. Ext.P1 is the duplicate copy of the bill given by PW8. Eventhough Ext.P1 is not admissible in evidence as stated by the Court below, still the oral evidence of PW7 proves the fact that the accused had purchased formic acid on 11/10/2010. Of course, the accused has a case that in the bill, the quantity is stated in kilograms and not in litres. Despite the said disparity, we are of the view that the oral testimony of PW7 can be believed. (IV) The accused went to the house of PW2 and he had a bucket with him. He asked for a tool to open a tin. She gave a knife. He said it was not enough, so she gave a scissors (MO2). After the accused left the house of PW2, she heard the deceased screaming and saw the accused running away from the house of deceased. She also saw deceased following the accused, screaming and saying that the accused had poured acid on her. (V) PW6 and certain workers chased the accused. But he left in an Omni van parked on the main road. (VI) The accused got admitted in Chaithanya Trust Hospital, Kuravilangad on 11/10/2010 by giving a false name. PW31 attended him and prescribed medicine. Ext.P17 is the case sheet. PW31 further disposed that the accused who is before Court was brought to the hospital and he had identified the accused as the patient he treated as per IP No.6240. He deposed that at 5.30 p.m, he was reported to be absconding from the hospital. (VII) PW30, Superintendent of Taluk Hospital, Pampady had examined the accused on 13/10/2010 and he had issued Ext.P16 certificate which indicates that he had scalds and charred lesions over left upper arm extensor aspect and right forearm close to the wrist joint. He deposed that at 5.30 p.m, he was reported to be absconding from the hospital. (VII) PW30, Superintendent of Taluk Hospital, Pampady had examined the accused on 13/10/2010 and he had issued Ext.P16 certificate which indicates that he had scalds and charred lesions over left upper arm extensor aspect and right forearm close to the wrist joint. He also deposed that the patient told him that the injuries were due to acid burn on 11/10/2010. (VIII) The accused was arrested on 13/10/2010 by PW41. On his body search, a key was recovered. On the information supplied by him, he was taken to the shop from where he purchased the acid. Ext.P20(a) is the statement. He was taken to M.U.M Hospital, Koothattukulam where the Maruthi Omni car was parked. A T-shirt, pants and other dresses were recovered from the van. An ointment was also recovered from MO6 pants by name “Burn heal”. Ext.P32 is an ID card issued from Chaithanya Trust Hospital wherein the name given was Thomas George, Bethel, Kottayam and the date therein was 11/10/2010. The omni van was recovered on the basis of Ext.P9(a) statement given by the accused. Ext.P35 is the RC particulars of the Omni van bearing Regn. No.KL-33/4232. It was found to be in the name of the accused. (IX) The deceased had given FIS in which she has clearly stated that the acid was poured by the accused. She had mentioned about the incident to PW3, PW13 and PW15. That apart, she had given a dying declaration to the Magistrate which is proved by PW34. Ext.P21 is the statement. In all the statements of witnesses, her version is very categoric. She had clearly stated about the fact that the accused had poured acid on her. This fact had been informed to the Doctor who had treated her at Pampady Taluk Hospital which is recorded in Ext.P14. 30. From the aforesaid evidence, which includes the dying declaration of the deceased, there cannot be any doubt regarding the involvement of the accused to the aforesaid crime. All the material objects which were used for the crime had been recovered by the police and had been identified by the witnesses. Therefore, the Court below was justified in finding that the accused was guilty of pouring acid on the deceased. 31. All the material objects which were used for the crime had been recovered by the police and had been identified by the witnesses. Therefore, the Court below was justified in finding that the accused was guilty of pouring acid on the deceased. 31. In the light of the aforesaid evidence, there is no reason to discard the testimony of PW1 in its entirety. Even assuming that the evidence of PW1 is to be ignored, still, there is enough evidence as stated above to prove the involvement of the accused to the crime. PW1's evidence is substantially corroborated by the other supporting evidence and the facts which are proved before the Court as stated above. 32. Yet another contention urged by the learned counsel for appellant is that it cannot be a case of culpable homicide amounting to murder and at best, the offence may only come u/s 304 Part II of I.P.C. Learned counsel relied upon the following judgments:- (i) Jagriti Devi v. State of Himachal Pradesh [ (2009) 14 SCC 771 ]. This was an instance where the Apex Court had considered a case in which accused assaulted the deceased with a khukri. A number of blows were inflicted on her head and one on her neck. After a few hours, she died. The issue considered was whether it was a case of murder or a homicide punishable u/s 304. During evidence, it was found that there was an altercation preceding the incident of murder in which the accused was insulted by the deceased. The accused got provoked by the deceased. The accused snatched the khukri from the hands of the deceased and inflicted the injuries. After considering the case law on the point, including Virsa Singh v. State of Punjab ( AIR 1958 SC 465 ), it was observed that, it was the deceased who provoked the accused and the deceased took out the khukri, which was snatched by the accused. There was a grappling for the khukri and the accused also suffered injuries which was not explained by the prosecution. It was therefore held that the case would come u/s 304 Part II of I.P.C. as the accused had no intention to cause death or to cause such bodily injury as is likely to cause death. There was a grappling for the khukri and the accused also suffered injuries which was not explained by the prosecution. It was therefore held that the case would come u/s 304 Part II of I.P.C. as the accused had no intention to cause death or to cause such bodily injury as is likely to cause death. This case cannot be made applicable to the present facts of the case as each case will depend upon its own facts. (ii) Gurumukh Singh v. State of Haryana [ (2009) 15 SCC 635 ]. This was a case in which there was only a single lathi blow on the spur of a moment which resulted in the death of the deceased. It was held that there was no intention or premeditation in the mind to inflict such injuries and therefore accused could be convicted only u/s 304 Part II of I.P.C. (iii) Budhi Singh v. State of Himachal Pradesh [(2012) 13 SCC 663]. This was also a case where there was an altercation between the accused and the deceased. It was not a premeditated crime since there was no animosity, pre-meditation or intention to kill and the single blow became fatal. After referring to the case law on the point, it was held that the accused could be punished u/s 304 Part I of I.P.C. (iv) Gudu Ram v. State of Himachal Pradesh [ (2013) 11 SCC 546 ] This was also a case in which Apex Court was considering an instance where there was a minor brawl between the accused and another person. The accused appeared from behind and hit one person on his head with a thapi and pushed him into the bushes. He hit another person also with a thapi and he was also pushed into the bushes. The second person succumbed to his injuries. The first person survived. The High Court had convicted him for offence u/s 304 I.P.C. The Apex Court observed that the appellant had no intention to kill the deceased though the injuries and their location were fatal, he had no knowledge that his actions were likely to cause death. Therefore, he is guilty of culpable homicide not amounting to murder coming u/s 304 Part II of I.P.C. 33. There is no doubt about the propositions laid down by the Apex Court in the aforesaid cases. But each case depends upon its own facts. 34. Therefore, he is guilty of culpable homicide not amounting to murder coming u/s 304 Part II of I.P.C. 33. There is no doubt about the propositions laid down by the Apex Court in the aforesaid cases. But each case depends upon its own facts. 34. The learned Prosecutor placed reliance upon the judgment in Sudershan Kumar v. Sate of Delhi [ (1975) 3 SCC 831 ] wherein it was held that act of the accused in pouring acid on the body of a person was a pre-planned one and he intended to cause the injury which he actually caused and as the injuries were sufficient in the ordinary course of nature to cause death, the accused was found guilty for offence punishable u/s 302 of IPC. She had also placed before us a judgment of a Division Bench in which one of us was a party ie judgment dated 13/3/2018 in Crl.Appeal No.1964/2010 (Biju v. State of Kerala). That was also a case in which the Division Bench considered the case of death due to acid burn wherein we held that, when a patient is brought with 40% corrosive burn caused due to pouring of nitric acid and the medical evidence indicates that such injury is likely to cause death, it can be concluded that while pouring acid on the face of a victim, the assailant knew very well that it is likely to cause death. That was also a case in which the Division Bench relied upon the dying declaration of the deceased for confirming the conviction and sentence u/s 302 I.P.C. 35. Veerla Satyanaraya v. State of A.P [ (2009) 16 SCC 316 ] was also a case where the victim suffered 60% burn injuries due to pouring of acid. It was held that causing septicemia was sufficient in the ordinary course of nature to cause death. Even in cases where proper treatment is given, there is every possibility of septicemia. When the prosecution has proved beyond reasonable doubt the motive of causing the injury and there is evidence to prove that the act of pouring acid on the body of deceased was a pre-planned one, the conviction u/s 302 was upheld. 36. Even in cases where proper treatment is given, there is every possibility of septicemia. When the prosecution has proved beyond reasonable doubt the motive of causing the injury and there is evidence to prove that the act of pouring acid on the body of deceased was a pre-planned one, the conviction u/s 302 was upheld. 36. In order to emphasise the fact that the burn injuries suffered by the deceased was not fatal, the learned counsel pointed out that though she was taken to the hospital on 11/10/2010, she died only on 25/10/2010 at the Medical College Hospital, Kozhikode. Ext.P36 is the case record of Medical College Hospital Kozhikode with reference to the deceased. She was admitted on 13/10/2010 and the Doctor estimated the burn injuries as 50% involving eye and face. The nature of treatment given was also recorded. It could be seen from the case record that one side of her body was completely burnt by acid. The nature of treatment given to the patient had been explained by PW43, the Doctor. He deposed that all available treatment was given to the patient and the immediate cause of death was septicemia and aspiration phenomena. Aspiration phenomena was caused due to inhalation of acid. Aspiration was high due to pouring of acid on her face and eyes. He further stated about the nature of treatment that was given and the tests that were conducted on the patient. He also testified that acute respiratory distress syndrome is the complication of aspiratory phenomena. During cross examination a question was asked whether the healing process was in progress on a day to day basis till the 12th day, his answer was that he cannot say so as “she was developing septicemia”. When the Doctor was cross examined based on the record made in Ext.P36, that the injuries were healing, his answer was that “that might be written by some junior Doctors”. He was again cross examined based on the fact that the patient was shifted from Kottayam to Kozhikode. The question was whether during the said travel, she could contact any other infection enroute. Doctor stated that it is possible if precautions are not taken. When a specific question was asked whether she was improving in her initial days of treatment and her condition got reversed only due to bacterial infections, his answer was in the negative. The question was whether during the said travel, she could contact any other infection enroute. Doctor stated that it is possible if precautions are not taken. When a specific question was asked whether she was improving in her initial days of treatment and her condition got reversed only due to bacterial infections, his answer was in the negative. He stated that bacterial infection starts from the beginning and it is not a sudden thing. Despite the contention urged by the learned counsel for the appellant, when the medical evidence clearly indicates that the death was on account of the complication developed due to burn injuries, we do not think that in the absence of any other evidence, a different view could be taken. 37. Learned counsel relied upon the judgment in Sanjay v. State of UP [ (2016) 3 SCC 62 ]. That was a case where the victim suffered a head injury. He survived for 62 days. When his condition was stable, he was discharged from hospital. It was held that Court cannot draw an inference that the intended injury caused was sufficient in the ordinary course of nature to attract Section 300 thirdly. That was a case in which no evidence was adduced to prove that the blow suffered by the victim was sufficient in the ordinary course of nature to cause death. A learned Single Judge of Madhya Pradesh High Court, had occasion to decide a case in Shyam Nanhe Ahirwal v. State of Madhya Pradesh [2013 Crl Law Journal 4312]. In that case, the victim was undergoing treatment after suffering the injuries and he died after one week. In the postmortem report it was stated that he died on account of toxemia shock and infection. The High Court of Madhya Pradesh altered the conviction u/s 304 Part I to one u/s 326. 38. The main issue to be considered in a case of homicide is whether the injury has resulted in the death of the deceased. In a case of burn injuries, the victim normally dies due to septicemia. The Apex Court has also held so in Veerla Satyanarayana (supra). Even in that case, the Doctor had made it clear that even if proper treatment is given, there is possibility of septicemia. In a case of burn injuries, the victim normally dies due to septicemia. The Apex Court has also held so in Veerla Satyanarayana (supra). Even in that case, the Doctor had made it clear that even if proper treatment is given, there is possibility of septicemia. Even in instances where proper medical remedies are provided and skillful treatment is given, if death is caused by the bodily injury, the person who causes such bodily injury shall be deemed to have caused death. Explanation 2 to S.299 clearly provides for it. 39. In Paraman v. State of Kerala ( 2004 (1) KLJ 697 ), a Division Bench of this Court had occasion to consider a case where accused had been charged for offences punishable u/s 498A and 302 of I.P.C. That was a case in which on 15/3/1996, the accused poured kerosene on his wife and set fire on her. She succumbed to the injuries on 22/3/1996. The Doctor who conducted autopsy opined that the burn injury sustained by the victim were complicated by pyemia. It was observed that no evidence was available to prove the complication element. Contention urged was that in the absence of such proof, it cannot be taken that death was due to burn injuries. This Court held that though the Doctor who conducted postmortem had deposed that the injury caused on the victim was sufficient in the ordinary course of nature to cause death, his opinion as to the cause of death was burn injuries sustained by the deceased, complicated by pyemia. What is pyemia was not explained and medical dictionary discloses that pyemia may be either due to blood poisoning or septicemia. Septicemia is a result of the formation of pyemia and abscess. How the victim died was not explained. A doubt was expressed by this Court that whether it was due to the intervening causes between the date of injury and date of death. Therefore it was held that merely because the Doctor had opined that the injury caused is sufficient in the ordinary course of nature to cause death, it will not be proper to fasten guilt u/s 302 IPC. Therefore, it was held that the medical opinion was not clear as to the intervening causes between the date of injury and date of death. Therefore, it was held that the medical opinion was not clear as to the intervening causes between the date of injury and date of death. Reference was also made to the judgment of the Apex Court in Kishore Singh v. State of M.P. ( AIR 1977 SC 2267 ). That was a case in which the victim had died after a month where he suffered an injury to scalp and chest. In that case, Apex Court observed that the medical opinion was not clear as to the intervening causes between the date of incident and date of death. The Division Bench also referred to another judgment of the Apex Court in Jagtar Singh v. State of Punjab (1999 SCC Cri.120) and it was observed that in that case there was sufficient evidence to disclose that septicemia was the result of the injury caused on the victim and injury was inflicted by the accused himself. 40. We need not reiterate the fact that each case will have to depend upon its own facts. In this case, she suffered 60% burn injuries. In Sudershan Kumar (supra), Apex Court held at paragraphs 12 to 15 as under:- “12. As already stated, the evidence of Dr.Jain and Dr.Raj Kumar is also to the effect that the injuries caused on Maya Devi were sufficient in the ordinary course of nature to cause death. The fact that Maya Devi developed symptoms of malaena and respiratory failure and they also contributed to her death cannot in any way affect our conclusion that the injuries caused by the acid burns were the direct cause of her death. “Since Curling first drew attention to the occurrence of duodenal ulcers after burns numerous cases have been recorded both in vivo and post-mortem after burns. Petechiae of the stomach and duodenum, often with erosions, occasionally acute ulcers, is a more common post-mortem finding: the condition is due to anoxia from hypotension and stasis. The large bowel may also be involved.” Modi, in his Medical Jurisprudence, has stated that burns would cause: “Inflammation of serous membranes and internal organs, such as meningitis, peritonitis, oedema glottidis, pleurisy, bronchitis, broncho-pneumonia, pneumonia, enteritis and perforating ulcer of the duodenum.” 13. Nor is there any substance in the argument that Maya Devi was not given proper treatment and that her death was due to negligence of the doctors who treated her. Nor is there any substance in the argument that Maya Devi was not given proper treatment and that her death was due to negligence of the doctors who treated her. The evidence shows that immediately after she received the injuries, she was taken to the City Clinic and there Dr.Jain treated her. As her condition did not improve, she was removed to the Burns Unit of Safdarjang Hospital. There is no evidence that it was because she did not receive proper treatment that she developed toxaemia and septicaemia. Explanation 2 to Section 299 is relevant in this context: “Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented.” 14. The argument of counsel that the accused only intended to disfigure Maya Devi and not to cause her death overlooks the evidence of Raj Kumari that the appellant threatened Maya Devi that if she did not marry him, she will have a lingering death and also the evidence furnished by the dying declaration of Maya Devi that the appellant threatened to kill or disfigure her with acid. 15. The act of the appellant in pouring acid on the body was a pre-planned one and he intended to cause the injury which he actually caused. As the injuries caused by the appellant were sufficient in the ordinary course of nature to cause death, the appellant is guilty of an offence punishable under Section 302 of the Indian Penal Code”. 41. In Veerla Satyanarayana (supra), the Apex Court had held at paragraph 4 as under: “4. In our view, this submission is not tenable as because of the burn injuries by throwing of the acid on the deceased, who was sleeping, septicaemia was caused and he died. PW 15 (doctor) has made it clear that even in the cases of proper treatment also there is possibility of septicaemia. For this purpose, the High Court has rightly referred to and relied upon the decision of this Court in Sudershan Kumar v. State of Delhi. In the said case, the Court confirmed the conviction under Section 302 IPC, by considering the fact that there were 35% burn injuries by pouring of acid which according to the doctor’s evidence was due to toxaemia and septicaemia from absorption of toxins. In the said case, the Court confirmed the conviction under Section 302 IPC, by considering the fact that there were 35% burn injuries by pouring of acid which according to the doctor’s evidence was due to toxaemia and septicaemia from absorption of toxins. The Court also considered the relevant Explanation 2 to Section 299, which provides that where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented”. 42. There is overwhelming evidence in the case that the victim was given proper treatment by shifting her to Medical College Hospital, Kottayam initially and thereafter to Medical College Hospital, Kozhikode. The entire treatment particulars have been mentioned in the case records and evidence was given by PW43. In all cases where burn injuries are caused, the injured dies due to infection. In this case, since acid was poured through her head, it affected the respiratory organs as well. 43. Therefore, when sufficient materials are available in the case to arrive at a conclusion that the death of the victim was due to septicemia which has developed on account of the burn injuries, it is idle for the accused to contend that the case will not fall u/s 302 of I.P.C. In Virsa Singh (supra), it was held at paragraph 12 as under:- “12. To put it shortly, the prosecution must prove the following facts before it can bring a case under S. 300 "thirdly"; First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved; These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender”. 44. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender”. 44. This is a case in which the accused himself admits in his S.313 statement that he was having an affair with the deceased. She became pregnant and he doubted that she was having relationship with another person. His explanation in the 313 statement is that he had a fight with the deceased on account of this issue. She therefore threatened him that she will commit suicide and she will see that he is implicated. She therefore took the formic acid and poured it through her head. He tried to pour water and thereafter she was taken to the hospital. The theory of suicide cannot be believed. Evidence of PW13, PW15 and the admission made by the accused in his 313 statement proves that there was clear difference of opinion between the accused and deceased. There was business deal with them, they have purchased joint properties and the accused doubted that PW15 was having a relationship with the deceased. The fact that he had pre-planned and pre-meditated to pour acid on her is evident from the fact that he purchased the formic acid that day morning, he purchased a Henko washing powder along with a free bucket and he also purchased liquid soap. He carries everything to the house of PW2, who is the neighbour of deceased. He tells PW2 that they were not brother and sister as mentioned earlier. She has an Advocate to help her and she does not pick up phone. The deceased had purchased 40 cents of land in Changanaserry. She had spent only Rs.1.5 lakhs and the balance amount was spent by him. They were living as husband and wife and though she got pregnant, it was aborted. Now she does not require him. God will ask her. Thereafter, he took the bucket which was kept in the veranda and proceeded to the house of deceased. The evidence of PW2 further indicates that he had pre-planned to pour acid on the deceased. Therefore, this is a case in which the prosecution could prove that there was clear motive for the accused to commit the crime. He had evolved a plan to cause injury to her and his idea was to pour acid on her, for which he purchased formic acid. Therefore, this is a case in which the prosecution could prove that there was clear motive for the accused to commit the crime. He had evolved a plan to cause injury to her and his idea was to pour acid on her, for which he purchased formic acid. He poured formic acid on her head, which caused 60% burn injuries and despite the treatment given to her, she succumbed to the injuries. We are of the view that this is not a case in which there was no pre-meditation to commit murder. The case clearly falls within the definition of culpable homicide amounting to murder and does not come under any of the exceptions u/s 300, nor can it come under Section 304 of IPC. In the said circumstances, we do not find any ground to interfere with the conviction and sentence of the accused u/s 302 I.P.C. 45. In so far as offence u/s 450 of I.P.C. is concerned, the building had been taken on rent by the deceased and she was living with her children and the accused had no right to enter the building without permission. Probably, they were having a relationship. But offence of criminal trespass arises if a person enters into or unlawfully remains in the property in the possession of another with an intention to commit an offence. The building is not one which he usually frequents. He is not residing there. Hence the offence u/s 450 of I.P.C. is also proved and sustained. Conviction and sentence thereof is justified. In the result, the appeal is dismissed.