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2025 DIGILAW 620 (KER)

Manoharan S/o. Rajan v. State of Kerala

2025-03-18

RAJA VIJAYARAGHAVAN V, VIJU ABRAHAM

body2025
JUDGMENT Raja Vijayaraghavan, J. This appeal is preferred against the judgment dated 04.03.2021 in S.C.No. 245 of 2019 on the file of the Court of Session, Kozhikode. In the said case, the appellant was indicted for having committed an offence punishable under Section 302 of the Indian Penal Code . 2. By the impugned judgment, he was found guilty and sentenced to undergo imprisonment for life and to pay a fine of ?50,000/-, with a default clause, for the offence punishable under Section 302 of the IPC . 3. According to the prosecution, the appellant is a rag-picker by profession.He along with the deceased Muniyappan used to be engaged in collecting scrap materials in the city of Kozhikode. On 02.10.2018 at about 9:45 a.m., the first informant as well as PWs 1 and 2 are alleged to have seen the appellant and the deceased engaged in an altercation under the AKG Over Bridge situated at Nagaram Amsom Desom in Kozhikode. It is alleged that the appellant took a granite stone and after exhorting Muniyappan that he would be killed, hit him on his head. When the deceased fell down, the appellant is alleged to have sat on his body, held his head, and banged it on the road. The local people assembled at the spot and they intimated the police. The injured was shifted to the Government Medical College Hospital, Kozhikode. Urgent Craniotomy was done, and after undergoing treatment for some time, his family members took the deceased to the KAPV Govt. Medical College, Tamil Nadu and thereafter to the MGM Govt. Hospital, Trichy. His discharge from the Medical College Hospital, Kozhikode, was on 16.10.2018. While undergoing treatment in various hospitals at Trichy, as there was no improvement, the deceased was discharged from the hospital. While he was convalescing at home, on13.11.2018, at 5:00 p.m., he breathed his last. 4. The records before this Court reveal that the First Information Statement was furnished by one Vincent Elanhikkal before the Chemmangad Police Station at 2:18 p.m. on 02.10.2018. Based on the information so furnished, Crime No. 167 of 2018 was registered under Section 307 of the IPC . Thereafter, the investigation was taken over by PW15, the Sub Inspector of Police, Chemmangad Police Station. After taking over the investigation, she went to the hospital and found that the injured was unconscious. Based on the information so furnished, Crime No. 167 of 2018 was registered under Section 307 of the IPC . Thereafter, the investigation was taken over by PW15, the Sub Inspector of Police, Chemmangad Police Station. After taking over the investigation, she went to the hospital and found that the injured was unconscious. The Investigating Officer then went to the hospital on 12.10.2018 and recorded the statement of Dr. Soman, who had conducted surgery. The Officer realized that on 16.10.2018, the injured was discharged from the hospital and taken to his native place. She recorded the statement of the daughter of the deceased, who was informed that in case of any untoward development, she should inform PW15. On 14.11.2018, PW15 was informed by Ranjitha (PW4), the daughter of the deceased, that her father had passed away. The Investigating Officer asked her not to conduct funeral ceremonies, and immediately rushed to Tamil Nadu and reached Karur District at about 5:00 p.m. On reaching there, she realised that on 13.11.2018 at 11:00 p.m., Muniyappan had passed away and that he had already been cremated. Later, she recorded the statements of the family members of the deceased and obtained records from the hospital, where he was treated. She obtained the One and the Same Certificate from the Village Office since Muniyappan was called by some other name as well. The Death Certificate from the concerned Village Officer was also obtained. After returning back, she went to the place of occurrence and seized MO1, which is alleged to be the stone used by the accused for infliction of the injuries. MO1 stone was forwarded to the Forensic Science Lab. After completion of the investigation, the final report was laid before the jurisdictional court. 5. Committal proceedings were initiated by the learned Magistrate in accordance with the law, and the case was committed to the Court of Session. The case was finally made over to the Additional Sessions Judge for trial and disposal. After hearing the prosecution and the accused, the charge was framed under Section302 of the IPC . When the same was read over, the accused pleaded not guilty and prayed that he be tried in accordance with law. 6. In order to prove the case of the prosecution, as many as 16 witnesses were examined as PWs 1 to 16 and through them Exts. P1 to P19 were exhibited and marked. When the same was read over, the accused pleaded not guilty and prayed that he be tried in accordance with law. 6. In order to prove the case of the prosecution, as many as 16 witnesses were examined as PWs 1 to 16 and through them Exts. P1 to P19 were exhibited and marked. MO1 Granite stone was produced and identified. After the close of prosecution evidence, the accused was questioned under Section 313(1)(b) of the Cr.P.C. He denied all the incriminating circumstances and maintained that he was innocent. On the side of the defence, Exts. D1 and D2 were marked. 7. The learned Sessions Judge, after evaluation of the entire evidence, came to the conclusion that the versions of PWs 1 and 2, the ocular witnesses, who had seen the infliction of injuries on the deceased by the appellant were believable. Insofar as the injuries found on the body of the deceased are concerned, the Court concluded that although the inquest and postmortem certificate could not be carried out in view of the peculiar facts and circumstances, the evidence let in by the Doctor along with the testimony of the eyewitnesses, unmistakably showed that the appellant had assaulted the deceased with a stone and subsequently hit his head on the road, causing injuries that eventually led to his death. The Court held that the prosecution had established that a fight had erupted between the appellant and the deceased regarding the sale of scrap materials and that this was the motive for the commission of the offence. Relying on the above evidence, the finding of guilt was arrived at by the learned Sessions Judge. 8. Sri. I.V Pramod, the learned counsel appearing for the appellant, submitted that the judgment rendered by the learned Sessions Judge finding the appellant guilty cannot be sustained under law. According to the learned counsel, the version of eyewitnesses is totally at variance with the FI Statement. Even among the eyewitnesses, there was no consistency as to how the deceased had sustained the injuries which were found on his body. It is further submitted that neither an inquest nor an autopsy was conducted to determine the exact cause of death as the body had been cremated by then. Even among the eyewitnesses, there was no consistency as to how the deceased had sustained the injuries which were found on his body. It is further submitted that neither an inquest nor an autopsy was conducted to determine the exact cause of death as the body had been cremated by then. It is urged that even the initial medical records reveal that the deceased was under the influence of alcohol and the injuries found on his head could easily have been caused consequent to a fall. According to the learned counsel, under no circumstances could the finding of guilt be arrived at as against the appellant herein. 9. Smt. Neema K.V., the learned Public Prosecutor, submitted that the learned Sessions Judge has evaluated the evidence meticulously and has arrived at the finding of guilt. 10. We shall briefly allude to the evidence adduced by the prosecution. 11. PW1 is running a spare parts shop near Francis Road. According to him, he had occasion to witness the incident which took place on 02.10.2018. He stated that at about 9:45 p.m., he saw two people engaged in a wordy altercation under the Francis Road Bridge. He had prior acquaintance with the people who were fighting under the bridge. After that, he stated that he saw one of them exhorting “I will kill you” and started hitting his head against the road . He noted that the injured had fallen unconscious by then. By that time, somebody had informed the police and an ambulance came to the spot. He stated that he did not accompany the police to the hospital. He identified the appellant who was standing in the dock as the person who had pushed the other person down and assaulted him. In cross-examination, he stated that he had only seen the accused hitting the deceased on his face. He stated that he did not remember the accused inflicting injuries with a stone. 12. PW2 is another witness to the occurrence. He stated that he is an autorickshaw driver by profession. At 9:15 a.m. on 02.10.2018, while he was riding his autorickshaw, he saw two people under the Francis Road Bridge fighting with each other. He parked the autorickshaw and saw the aggressor exhorting “I will kill you” and then the aggressor was found sitting on the chest of the other man and using something to hit on his face. At 9:15 a.m. on 02.10.2018, while he was riding his autorickshaw, he saw two people under the Francis Road Bridge fighting with each other. He parked the autorickshaw and saw the aggressor exhorting “I will kill you” and then the aggressor was found sitting on the chest of the other man and using something to hit on his face. He also saw the aggressor holding the head of the injured and hitting his head against the road. The injured had lost consciousness by then. Later, the police and an ambulance arrived at the scene, and the injured was shifted to the hospital. He also identified the accused, who was standing in the dock. In cross-examination, he stated that he saw the aggressor pushing the other man down. However, he did not remember the clothes worn by the aggressor. He also stated that he was aware that the deceased used to engage in the sale of alcohol purchased from Mahe. 13. PW3 is the attestor to Ext.P1 Scene Mahazar. 14. PW4 is the daughter of the deceased. She stated that there were differences of opinion between her father and mother, and they were residing separately. She stated that she was aware of the fact that her father had left Tamil Nadu and relocated to Kozhikode in 2017. She was aware that her father was living under the bridge. On 03.10.2018, she went to Kozhikode and found that her father was admitted to Kozhikode Medical College after sustaining a head injury. She stated that her father was in the coma stage. He remained in the hospital for about 12 days, and on 16.10.2018, she obtained a voluntary discharge and took him with her. This is because she was able to converse only in Tamil and she found it difficult to stay in Kerala. She stated that her father was taken to MGM Govt. Hospital, Trichy, where he was admitted for about ten days. Thereafter, he was discharged and taken home, where he passed away. She stated that police from the State of Kerala had come, met her, and recorded her statement. She did not speak anything about the incident as she had only come to collect her father and take him back to Tamil Nadu. 15. PW5 is Dr. Nazeera Koya, who was working as a Senior Resident at Calicut Medical College. She stated that police from the State of Kerala had come, met her, and recorded her statement. She did not speak anything about the incident as she had only come to collect her father and take him back to Tamil Nadu. 15. PW5 is Dr. Nazeera Koya, who was working as a Senior Resident at Calicut Medical College. She stated that on 02.10.2018, at about 10:35 a.m., an unknown patient was brought to the casualty with an alleged history of assault. She found that the patient was unconscious, with a Glasgow Coma Scale score of 5/15. She also noted that he had an alcoholic smell on his breath and some abrasions were noted on his chin and left elbow. He was found to have anisocoria. CT scan and X-rays were taken, and it was found that he had suffered a subdural haemorrhage with a midline shift. The Neurosurgery Department was informed. Through her, Ext.P2 Discharge Certificate was exhibited and marked. According to her, the CT scan revealed a fracture on the squamous part of the right temporal bone, subdural haemorrhage, and subarachnoid haemorrhage. She stated that the injured man was discharged at request on 16.10.2018. 16. PW6 is the Civil Police Officer, Chemmangad Police Station. He stated that he received information that two people were fighting under the AKG Overbridge, and he went to the spot. He found that one person was lying injured on the road. According to him, the injured was shifted to the hospital and reached the Medical College Hospital, Kozhikode, at 10:35 a.m. He stated that immediately thereafter, he went back to the Police Station. In cross-examination, it was brought out that he reached the Police Station at about 11:45 a.m. to 12:00 noon. 17. PW7 is the ambulance driver who shifted the injured to the hospital. 18. PW8 is the Special Village Officer who prepared Ext.P4 sketch of the scene. 19. PW9 is Muhammed Rafi, the Sub-Inspector of Police at Chemmangad Police Station. He stated that based on the information received from the aforesaid Vincent Elanhikkal, Ext.P6 FIR was registered. Since Vincent had passed away by then, the witness could not be examined. 20. PW10 is Dr. Mahalakshmi Asok Kumar, who was working as the Assistant Professor of General Surgery at Mahatma Gandhi Memorial General Hospital, attached to KAP Viswanathan Medical College. He stated that based on the information received from the aforesaid Vincent Elanhikkal, Ext.P6 FIR was registered. Since Vincent had passed away by then, the witness could not be examined. 20. PW10 is Dr. Mahalakshmi Asok Kumar, who was working as the Assistant Professor of General Surgery at Mahatma Gandhi Memorial General Hospital, attached to KAP Viswanathan Medical College. She was examined to prove that on 17.10.2018, the deceased was admitted as a case of assault with post-craniotomy status. She has furnished the treatment details. According to her, the injured was routinely being seen by the Neurosurgeon, and an opinion was obtained. As the condition of the patient was stable, the Neurosurgeon advised discharge, as the patient needed physiotherapy and supportive care, which could easily be provided at home by the relatives. She stated that Muniyappan was discharged on 05.11.2018. Ext.P7 Discharge Summary was marked through the said witness. 21. PW11 is the Village Officer from Plaviduti Village Office, who issued Ext.P8 Death Certificate as well as Ext.P9 One and the Same certificate in respect of the deceased. 22. PW12 is Jayanthi, the wife of the deceased. She stated that she received information that her husband was admitted to the Medical College Hospital, and she along with her daughter came to Kerala. She also stated that since they were not in a position to provide him with treatment, they got the discharge and took him to Trichy. She stated that about 8 days after his discharge from the hospital in Trichy, her husband passed away. 23. PW13 is Dr. Soman, a Professor of Surgery at Calicut Medical College Hospital. He was the Specialist who conducted craniotomy on the deceased. He stated that the deceased was operated on in the casualty and then transferred to the Ward on 02.10.2018. Referring to Ext.P10 reference card and Ext.X1 case sheet, he stated that the deceased had sustained serious head injuries in the form of subdural haemorrhage and subarachnoid haemorrhage. 24. PW15 is the Investigating Officer. 25. PW16 is the Station House Officer, Chemmangad Police Station, who laid the final report before the Court. 26. We have considered the submissions advanced and perused the entire records. 27. PWs 1 and 2 were the witnesses examined by the prosecution to prove the incident which took place under the AKG Over Bridge on 2.10.2018 at about 9.45 hours. 25. PW16 is the Station House Officer, Chemmangad Police Station, who laid the final report before the Court. 26. We have considered the submissions advanced and perused the entire records. 27. PWs 1 and 2 were the witnesses examined by the prosecution to prove the incident which took place under the AKG Over Bridge on 2.10.2018 at about 9.45 hours. PW1 stated that he saw the aggressor pushing the man to the ground and then banging his head onto the road. The injured became unconscious and immediately the police reached the spot. He reiterated in cross-examination that the appellant had only used his hands. PW2 is an autorickshaw driver, who stated that he saw the aggressor pushing the man down and then assaulting him with his hands while sitting on his chest. He stated that he did not notice what the assailant had in his hands. In other words, though there is no need to doubt the version of the witnesses as to what had transpired between the appellant and the deceased, there is a paucity of evidence to conclude that the appellant was armed with a stone with which injuries were inflicted. We also note the medical evidence as well as the statement of the witnesses that the deceased had consumed alcohol. 28. The next question is whether the prosecution has let in evidence to establish that the death of Muniappan is homicidal. It needs to be noted at this juncture that the alleged incident took place on 02.10.2018 at 9.45 a.m. The injured was admitted to the Medical College Hospital, Kozhikode on 02.10.2018. At the time of admission, the injuries noted on the body were some abrasions on the chin and left elbow. The CT Scan which was taken revealed that the injured had a subdural haemorrhage left with midline shift. He underwent treatment in the hospital till 16.10.2018 on which day, he was discharged at request. The reason offered by the daughter is that she had no relatives in the State of Kerala and had language issues. However, the evidence tendered by PW5 reveals that a blood clot had been removed and the injured had suffered a brain injury. After discharge, the injured was admitted to the Mahatma Gandhi Memorial General Hospital on 17.10.2018. The reason offered by the daughter is that she had no relatives in the State of Kerala and had language issues. However, the evidence tendered by PW5 reveals that a blood clot had been removed and the injured had suffered a brain injury. After discharge, the injured was admitted to the Mahatma Gandhi Memorial General Hospital on 17.10.2018. The Doctor stated that when they received the patient on 17.10.2018, he was not conscious and there was a surgical scar on the left side of the scalp and he was given supportive care and physiotherapy. The patient was in the surgical ICU for 5 days and then he was shifted to the general ward as the condition of the patient was stable. From Ext.P7 discharge summary, it is evident that the Doctor suggested that the patient only needs supportive care and physiotherapy. PW4, the daughter of the deceased, stated that her father was then shifted to their home and he passed away on 13.11.2018 at about 6.30 p.m. PW15, the Investigating Officer had stated in her evidence that on the discharge of the patient from the Medical College Hospital, Kozhikode, the daughter was told to inform the investigating officer if anything untoward happens. She added that it was only on 14.11.2018 that the officer was informed by PW4 that her father had passed away and that he had been cremated.Thus, the exact cause of death of Muniyappan has not been ascertained. 29. The Apex Court in Lakshmi and Ors. v. State of U.P. , [[ (2002) 7 SCC 198 ]] , had observed that the identification of the body, cause of death and recovery of weapon with which the injury may have been inflicted on the deceased are some of the important factors to be established by the prosecution in an ordinary given case to bring home the charge of offence under Section 302 of the IPC . This, however, is not an inflexible rule. It cannot be held as a general and broad proposition of law that where these aspects are not established, it would be fatal to the case of the prosecution and in all cases and eventualities, it ought to result in the acquittal of those who may be charged with the offence of murder. It would depend on the facts and circumstances of each case. It would depend on the facts and circumstances of each case. A charge of murder may stand established against an accused even in the absence of identification of the body and cause of the death. 30. The question is whether, in the facts and circumstances, this Court can hold without any manner of doubt that the death of the deceased was the proximate cause of the injuries inflicted by the appellant on 2.10.2018. 31. In State of Kerala v. Narayanankutty , [ 1980 KLT 908 ], this Court had made some pertinent observations relating to cases wherein death is caused not directly by the injury itself but due to a complication or development or in a case where death is not instantaneous but is delayed. Paragraphs 13 and 14 of the judgement are instructive. "13. An act is said to cause death when death results from the act itself or from some consequences necessarily or naturally flowing from the act, and reasonably contemplated as its result. Where without the intervention of any considerable change of circumstances death is connected with the act of violence by a chain of causes and effects, death must be regarded as the proximate and not too remote a consequence of the act. The cause must not only be the causa sine qua non, but it must also be a cause reasonably proximate; but the doctrineof criminal causation has reasonable limits. 14. An injury may lead to death. Death may be instantaneous or may be delayed. The injury may lead to shock, excessive bleeding, coma, syncope etc. and cause death; in such a case injury and death have a clearly perceptible and direct nexus and there will be no difficulty in finding that death is the direct result of injury. The decision may not be so easy in a case where death is caused not directly by the injury itself but due to a complication or development or in a case where death is not instantaneous but is delayed. Where death is delayed or due to a later complication or development, court has to consider the nature of the injury, complication or development and attendant circumstances. If the complication or development is the natural or probable or necessary consequence of the injury and if it is reasonably contemplated as its result, the injury can be said to have caused death. If the complication or development is the natural or probable or necessary consequence of the injury and if it is reasonably contemplated as its result, the injury can be said to have caused death. If, on the other hand, the chain of consequences is broken or if there is unexpected complication causing new mischief, the relation of cause and effect is not established or the causal connection is too remote and the injury cannot be said to have caused death. If the original injury itself is of a fatal nature, it makes no difference that death is actually caused by a complication naturally flowing from the injury and not the injury itself, since causal connection is proximate. 32. As held above, where death is delayed or due to a later complication or development, the court has to consider the nature of the injury, complication or development and attendant circumstances. If the complication or development is the natural or probable or necessary consequence of the injury and if it is reasonably contemplated as its result, the injury can be said to have caused death. If, on the other hand, the chain of consequences is broken or if there is an unexpected complication causing new mischief, the relation of cause and effect is not established or the causal connection is too remote and the injury cannot be said to have caused death. 33. In the instant case, the injured was discharged from MGM Hospital on 22.10.2018, just five days after his admission on 17.10.2018, with instructions to provide supportive care and physiotherapy. This, according to us, disrupts the chain of causation. There is no case for PW4 that her father required admission after discharge. His prolonged stay at home until 13.11.2018, without any apparent medical distress requiring hospitalization, further weakens the direct nexus between the injury and the eventual death. The above break in the chain of consequences is further aggravated by the fact that, despite specific instructions from PW15 to inform the Kerala Police, the deceased was cremated without a postmortem examination. The failure to conduct an autopsy has resulted in a critical evidentiary gap, making it impossible to ascertain the exact medical cause of death or rule out the possibility of an unexpected complication or an independent intervening event. The failure to conduct an autopsy has resulted in a critical evidentiary gap, making it impossible to ascertain the exact medical cause of death or rule out the possibility of an unexpected complication or an independent intervening event. In that view of the matter, we are unable to draw an unbroken causal link between the injury sustained on 02.10.2018 and the eventual death of the deceased. Furthermore, the absence of conclusive medical evidence leaves room for reasonable doubt, and as such, we hold that the cause-and-effect relationship is not firmly established. Consequently, it cannot be conclusively stated that the injury sustained on 02.10.2018 was the direct cause of Muniyappan’s death. 34. In view of the foregoing discussion, we are of the view that the prosecution has not established that the accused has caused the death of the deceased 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 attracting the offence under Section 302 of the IPC . 35. We, however, note that there is no reason to doubt the version of PWs 1 and 2 with regard to the altercation and fight that took place between the appellant and Muniyappan. We have held that the prosecution has failed to establish that any injury was inflicted by MO1 stone due to the lack of external injuries. However, Muniyappan had become unconscious due to the banging of the head by the appellant on the tarmac. We hold that the appellant is to be attributed with the intention to cause grievous hurt and hence he can be convicted only under Section 325 of the IPC . In that view of the matter, we set aside the conviction under Section 302 of the IPC and convict the appellant under Section 325 of the IPC and sentence him to five years of Rigorous Imprisonment in respect of the offence committed on the deceased Muniyappan. 36. We set aside the finding of guilt under Section 302 of the IPC , instead, find him guilty of the offence under Section 325 of the IPC and sentence him to undergo Rigorous Imprisonment for five years and to pay a fine of Rs.25,000/- (Rupees Twenty Five Thousand only). 36. We set aside the finding of guilt under Section 302 of the IPC , instead, find him guilty of the offence under Section 325 of the IPC and sentence him to undergo Rigorous Imprisonment for five years and to pay a fine of Rs.25,000/- (Rupees Twenty Five Thousand only). In default of payment of fine, he shall undergo Simple Imprisonment for three months. This Appeal is partly allowed.