Criminal Appeal No 342 of 1974
Appeal under Section 2a of the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act 1970 from the Judgment and Order dated 2 7 74 of the Kerala High Court in Criminal Appeal No 338 of 1973 and 8774
T C Raghavan and N Sudhakaran for the Appellant
K R Nambiar for the Respondent
The Judgment of the Court was delivered by JASWANT SINGH J
Narayanan Satheesan alias Baboo the appellant herein was tried by the Additional Sessions Judge Mavelikara under section 302 of the Indian Penal Code for intentionally causing the death of one K G Thomas alias Thampi a well built male aged about 32 years who was an inhabitant of Eruvallipra Muri in Thiruvala Village by inflicting an injury with a dagger MO 1 on the back of his chest at 730 PM on December 16 1972 at a sandy place situate on the Western side of the village road which goes to Veliyam Kadavu Ghat Ferry from Thirumoola on the eastern extremity of Purayidom known as Kaval Purayidom belonging to Arya Community within the jurisdiction of Thiruvalla Police Station
On a consideration of the material adduced before him the learned Judge acquitted the appellant of the charge under section 302 of the Indian Penal Code but convicted him under section 326 of the Code and sentenced him to rigorous imprisonment for a term of seven years with the finding that he had by means of a dangerous weapon like MO 1
caused grievous hurt on the person of the deceased which had endangered his life
Aggrieved by this judgment and order both the State as well as the appellant appealed to the High Court of Kerala at Ernakulam
The High Court set aside the conviction of the appellant under section 326 of the Indian Penal Code and instead convicted him under section 302 of the Code and sentenced him to imprisonment for life
Dissatisfied with this judgment the appellant has come up in appeal to this Court under section 2a of the Act 28 of 1970
The case as put forth by the prosecution is that a couple of weeks before the date of occurrence there was an altercation between the appellant and the deceased over the refusal by the latter to relinquish possession of the Purayidom before the expiry of the term of one year of the lease granted in his favour by the father of the accused on a pattom of Rs 550 which entitled him to the usufruct of the coconut trees standing on the Puravidom that during the course of the aforesaid alternation the appellant threatened to kill the deceased if he 579 did not hand back possession of the property peaceably that irked at the refusal of the deceased to surrender possession of the Purayidom the appellant armed himself with a dagger and followed the deceased on the evening of December 16 1972 While the latter was passing along the above mentioned road and after thrusting the dagger in the back of the chest of the deceasedtook to his heels without even taking out the weapon from the situs of the wound that the deceased pulled out the weapon from his back and threw it on the ground hereafter blood gushed out of the wound and he fell down that on seeing this incident Gopala Kurup PW1 who was going to have his bath at Veliyam Kadavu and Thommi Mathai PW2 who was on his way to Thirumoola which is about five furlongs from his house to buy some provisions rushed to the scene of occurrence that Thommi Mathai PW 2 and Gopala Kurup PW 1 removed the deceased about 6 or 7 feet towards the East whereafter Gopala Kurup PW 1 bandaged the wound of the deceased which was bleeding profusely with his thorough bath towel that while the wound was being bandaged by Gopal Kurup Pappan PW 5 the Ferryman employed by the Municipality at Veliyath for ferrying people across Manimala river also hastened to the scene of occurrence saw the appellant running away and heard the deceased saying Mathaichacha
Babu stabbed me than after bandaging the wound as aforesaid Gopal Kurup PW 1 Thommi Mathai PW 2 and Pappan PW 5 removed the deceased to the middle of the road laid him on the level surface and started raising an alarm on hearing which the brothers of the deceased including Geevarghese George PW II  and some other persons arrived at the scene of occurrence that in reply to the query made by his elder brother Geevarghese George PW 1 1 the deceased said Achaya Babu stabbed me that the deceased was thereafter removed by his brothers in a taxi car to the Thiruvalla Hospital where PW 6 Dr G K Pai examined his person and found a stab injury over his left infrascapular area 3 XI cm horizontal in position both edges sharp penetrating into the pleural cavity left side Direction of the wound obliquely forward and to the right side Anenumothorax on the left side that the doctor made an entry of the injury noticed by him in the relevant register of the Hospital and rendered first aid to the deceased that while the first aid was being given to him the deceased told the doctor that the injury was caused to him by stabbing at 800 PM that in view of the serious nature of the wound the doctor advised the relatives of the deceased to take him to the Medical College Hospital Kottayam for expert medical attention and treatment that thereafter the doctor gave intimation of the incident on telephone and by means of a letter Ext
p 4 to the Thiruvalla Police Station whereupon PW 15 viz Madhavan Pillai Head Constable attached to the said Police Station proceeded to the Hospital but on learning on arrival at that place that the injured had already been sent to the Medical College Hospital Kottayam he at once returned to the Police Station and forthwith contacted Arpookara Police Station on telephone and informed the person in charge thereof that since the statement of the injured person by name KG Thomas who had been brought to Thiruvalla Hospital with serious injuries could not be taken as he had been removed to the Medical College Hospital
Kottayam for expert medical treatment his 580 statement might be taken and the needful be done in the matter that on being thus informed by Madhavan Pillai PW15 Govinda Pillai PW 13 Head Constable In charge of the Police Station Kottayam proceeded to the College Hospital and after taking the permission of Dr K M R Mathew who was examining the deceased in the casualty room recorded his statement Exh p 9 at 930 PM which was to the following effect  I know that it is a Head Constable who is talking to me now
I am called Thampi
Babu son of Ezharapra Narayanan stabbed me with a dagger
It was on my back that he stabbed me from behind
It was at Veliyamkadavu ferry that he stabbed me
It was I myself who pulled out the dagger with which I was stabbed and threw it there
Ferryman Pappan and others have seen him stabbing me
It was today at 730 pm that the incident took place
It was in order to kill me on account of prior enmity that he stabbed me
The place of incident is within the limits of Thiruvalla Station
It is 40 kms
south from here
 The prosecution case further proceeds that it was not before 2 O clock at night intervening between 16th and 17th December 1972 that Govinda Pillai PW 13 could return to his Police Station as he had to record statements in four or five other cases intimation regarding which was received by him while he was at the Hospital that on his return to the Police Station Govinda Pillai PW 12 prepared the First Information Report Exh
P 10 on the basis of Exbibit P 9 and sent the same to the Munsiff Magistrates Court Ettumanoor that an hour after his return to the Police Station Govinda Pillai got intimation from the Hospital vide Exhibit P 1 1 that the injured person whose statement Exh
P 9 he had recorded had died at 300 AM that about 8 O clock in the morning Govinda Pillai went to the Medical College Hospital and prepared the Inquest Report Exh
P 8 whereafter he sent the dead body of the deceased to the Police Surgeon for post mortem examination that PW 4 Dr vs K Jayapalan Professor of Forensic Medicine and Police Surgeon Medical College Kottayam conducted the autopsy of the body of the deceased on December 17 1972 at 200 PM and noticed the following appearances  General Body was that of a well built adult male
Rigor mortis fully established and retained all over
Dried blood stains were seen on the front of right fore arm and front of chest
Injuries antemortem 1 Sutured incised penetrating wound horizontally placed on the back of chest 3 cm
to the left of middle and 24 cm
below the top of shoulder
The wound was found entering chest cavity cutting through the 9th intercostal space perforated the lower lobe of left lung and penetrated the left ventricle of the heart
The wounds on the lung and heart measured 28 cm
in length and were found sutured
The wound was directed forwards upwards and to the right
581 2 Sutured surgical thorocotomy wound 26 cm
in length on the outer aspect and back of left chest 17 cm
below the arm pit
3 Surgical wound 13 X 5 cm
obliquely placed on the back of chest 3 cm
below injury No 1
4 Multiple small abrasions over an area 35 x 2 cm
on the outer aspect of right shoulder
Other findings are Left lung was collapsed
Left chest cavity contained 75 cc
of blood clots
Pericardial cavity contained 50 cc
of blood clots
Stomach was empty and mucous was normal
 The doctor opined that injury No 1 which could have been caused with a weapon like MO 1 was sufficient in the ordinary course to cause death
The doctor further opined that the cause of death of the deceased was bleeding and shock following stab injury sustained by him on the back
PW 17 V Rajasekharan Nair Circle Inspector of Police Kayamkulam took over investigation of the crime on receipt of the express intimation regarding the registration of the case under section 302 of the Indian Penal Code on December 17 1972
He repaired to the scene of occurrence without any loss of time prepared the scene mahazar seized the blood stained earth and questioned the witnesses and prepared notes of their statements on the same evening
He also seized the dagger MO 1 which was produced before him by Geevarghese George PW 11 on December 30 1972
It was not however before January 1 1973 that the Police could arrest the appellant at Nedumbram
After completion of the investigation the appellant was proceeded against in the Court of Sub Magistrate Thiruvalla who committed him to the Court of Sessions to stand his trial under section 302 of the Indian Penal Code with the result as stated above
Although in addition to the other witnesses the prosecution examined Gopal Kurup PW 1 Thommi Mathai PW 2 and Pappan PW 5 who claimed to be the eye witnesses of the incident both the Additional Sessions Judge and the High Court while holding that their arrival on the spot was proved discarded the evidence of Gopal Kurup PW 1 and Thommi Mathai PW 2 on the ground that their testimony was not trustworthy and rested the conviction of the appellant on the dying declaration Exh
P 9 which according to them
received ample corroboration from the testimony of Pappan PW 5
Appearing in support of the appeal Mr Raghavan has urged that the conviction of the appellant cannot be sustained firstly because the evidence on the record is not sufficient to bring home the offence to the appellant
secondly because the dying declaration Exh P 9 which 582 has been heavily relied upon by the trial court and the High Court could not have been made by the deceased who was in a critical condition and clearly appears to have been fabricated after the death of the deceased and thirdly because the testimony of Pappan PW 5 and Geevarghese George PW 11 from which corroboration has been mainly derived is not cogent and convincing
We have carefully gone through the entire evidence on the record
While we do not consider it safe to place reliance on the eye witness account of the occurrence given by Gopal Kurup PW 1 and Thommi Mathai PW 2 which has been rejected as untrustworthy by the trial court and the High Court or on the statement of Geevarghese George PW II in view of his queen and unnatural conduct in wiping away the blood from the weapon of offence and not producing the same before the Police for nearly 14 days we think that the statements of  Govinda Pillai PW 13 and Pappan PW 5 cannot easily be brushed aside
Pappan PW 5 who belongs to the community of the appellant and has no animus against him and whose testimony is natural and consistent and whose credit has remained unshaken despite the lengthy cross examination to which he was subjected has unequivocally stated that at about 730 on the evening of December 16 1972 while he was sitting in his boat which he had rowed to the Northern ferry as there were no passengers to take across the river he heard the cry Heigho heigho from the shore that on ascending five or six steps be saw the deceased standing in a bent position on the western side of the road with a dagger stuck on his back and the accused whom he knew from his childhood running westwards from near the deceased that the deceased himself pulled out the dagger and threw it in the Purayidom that it was after Gopal Kurup PW 1 and Thommi Mathai PW 2 had come running lo the spot from the North that the deceased fell down on the right side that Gopal Kurup PW 1 bandaged the wound of the deceased with his bath towel and while his wound was being bandaged the deceased was saying Mathaicha abut stabbed me
The evidence of Govinda Pillai Head Constable PW 13 has also remained unshaken in cross examination
From his statement which receives corroboration from the statements of not only Dr V K Jayapalan PW 4 and Dr G K Pai PW 6 who were examined by the prosecution but also from the statement of Dr Mathew Varghese PW 5 who was examined by the appellant it is crystal clear that the deceased whose central nervous system remained normal and who neither lost his consciousness nor his power of speech gave a coherent account of the circumstances leading to his injury which be faithfully and accurately recorded in Exhibit P 9 and forthwith asked the deceased to append his signatures thereon which he did with a steady hand
We are therefore absolutely convinced that the incident took place in the manner disclosed by the prosecution
This does not however conclude the matter
The important question as to the nature of the offence committed by the accused still remains to be determined by us
adopting the reasoning of the trial court it is emphasized by learned counsel for the appellant that since the appellant inflicted only one stab injury on the person of the 583 deceased and the deceased died during the performance of operation on his lung and heart and the prosecution has not tried to establish either that the doctor who performed the delicate operation was at specialist or a competent and skilful surgeon and took all reasonable care and caution or that the death was the inevitable result of the stab injury the appellant can at the utmost be held guilty of the offence under section 326 of the Indian Penal Code
We find it difficult to accede to this contention
It is true that the appellant inflicted only ones stab wound on the deceased but the facts established in the case viz that the appellant did not act under any sudden impulse but pursued the deceased after arming himself with a dagger which is a dangerous weapon in execution of a premeditated plan motivated by ill feelings nurtured for a number of days and inflicted a servere stab injury on the vital region of the body of the deceased which perforated not only his left lung but also penetrated into and impaired the left ventrical of his heart clearly show that the appellant had the intention of causing the death of the deceased and pursuant thereto acted in a manner which brings his offence within the mischief of section 302 of the Penal Code
It is no doubt unfortunate that the prosecution has not attempted to examine the doctor who performed the operation but this lapse is in our opinion not sufficient to downgrade the enormity of the offence committed by the accused
It cannot be overlooked that Dr V K Jayapalan PW 4 who conducted the autopsy has categorically stated that stab injury No 1 was sufficient in the ordinary course to cause death  and that the cause of death of the deceased was bleeding and shock following the said injury
In Gudar Dusadh vs State of Bihar1 where the accused made a pre meditated assault and inflicted an injury with a lathi on the head of the deceased which was sufficient in the ordinary course of nature to cause death and actually resulted in the death of the latter it was held that the mere fact that the accused gave only one blow on the head would not mitigate the offence of the accused and make him guilty of the offence of culpable homicide not amounting to murder
In the instant case the prosecution having succeeded in establishing that the stab injury inflicted on the person of the deceased was sufficient in the ordinary course of nature to cause the death the offence committed by the accused squarely falls within the purview of clause thirdly  of section 300 of the Indian Penal Code according to which culpable homicide is murder if the act by which the death is caused is done with the intention of causing bodily injury to any person and the bodily injury intended to be caused is sufficient in the ordinary course of nature to cause death of the deceased
Again the non production by the prosecution of the doctor who performed the operation on the deceased is of no avail to the appellant
As rightly held by the High Court the case is clearly covered by Explanation 2 to Section 299 of the Indian Penal Code which provides that where death is caused by an injury the person who 1AI R 584 causes it would be deemed to have caused the death although by resorting to proper remedies and skilful treatment the death might have been prevented
It appears that the attention of the Additional Sessions Judge was not drawn to this aspect of the matter and while quoting a passage from Modi s Medical Jurisprudence and Texicology 1963 Edition he not only glossed over the last sentence thereof where it is succinctly stated that it should be noted that the liability of the offender is in no way lessened even though life might have been preserved by resorting to proper remedies and skilful treatment but also tried to highlight something which did not possess any significance
Taking into consideration the deadly character of the weapon used the dastardly assault made by the accused and the vital organs of the body on which the injury was caused as also the categorical
statement of Dr V K Jayapalan Professor of Forensic Medicine who conducted the autopsy of the dead body of the deceased that the injury No 1 was sufficient in the ordinary course to cause death of the deceased we have no hesitation in holding that the appellant deliberately caused the fatal wound on the person of the deceased and in maintaining the conviction under section 302 of the Indian Penal Code
For the foregoing reasons we find no merit in this appeal which is dismissed
SR Appeal dismissed


Summary:
The appellant though charged section 302 of the Indian Penal Code for intentionally causing the death of one K G Thomas alias Thampi a well built male of 32 years on the night of December 16 1972 by inflicting a stab 3X1 cm
over his left infrascapular area was however on a consideration of the material adduced before him acquitted of the said charge and convicted section 326 and sentenced to 7 years rigorous imprisonment by the Sessions Judge
Both the appellant and the State appealed against the said orders
The High Court accepted the State s appeal set aside the conviction section 326 and convicted him us 302 and sentenced him to imprisonment for life
The High Court rested the conviction on the dying declaration exhibit p 9 which received ample corroboration from the testimony of one of the three eye witnesses Pappan PW 5
Dismissing the appeal to this court section 2a of the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act 28 of 1970 1970 the court HELD  1 Non production by the prosecution of the doctor who performed the operation on the deceased is of no avail
It is no doubt unfortunate that the prosecution has not attempted to examine the doctor who performed the operation but this lapse is not sufficient to downgrade the enormity of the offence committed by the accused
583 C D H Explanation 2 to section 299 of the Indian Penal Code which provides that where death is caused by an injury the person who causes it would be deemed to have caused the death although by resorting to proper remedies and skilful treatment the death might have been prevented
583 H 584 A 3a In the instant case taking into consideration the deadly character of theweapon used the dastardly assault made by the accused and the vital organsof the body on which the injury was caused as also the categorical statement of Dr Jayapalan PW 4 who conducted the autopsy of the dead body of the deceased that the injury No 1 was sufficient in the ordinary course to cause death of the deceased it is clear that the appellant deliberately caused the fatal wound on the person of the deceased
The conviction us 302 of the Indian Penal Code must be maintained
584 B C bIt is true that the appellant inflicted only one stab wound on the deceased but the facts established in the case namely that the appellant did not act under any sudden impulse but pursued the deceased after arming himself with a dagger which is a dangerous weapon in execution of a premeditated plan motivated by ill feelings nurtured for a number of days and inflicted a severe stab injury on the vital region of the body of the deceased which perforated not only his left lung but also penetrated into and impaired the left centrical of his heart clearly show that the appellant had the intention of causing the death of the deceased and pursuant thereto acted in a manner which brings the offence within the mischief of section 302 of the Penal Code
The offence committed by the accused squarely falls within the purview of clause thirdly of section 300 of the Indian Penal Code according to which culpable homicide is murder if the act 13 930SCI77 578 by which the death is caused is done with the intention of causing bodily injury to any person and the bodily injury intended to be caused is sufficient in the ordinary course of nature to cause death of the deceased
583 B E Gudar Dusadh vs State of Bihar AIR 1972 SC 952 followed