Madras High Court

N.Chellaiah vs State By The Inspector Of Police on 1 February, 2013

Author:
M.Jaichandren

Bench:
M.Jaichandren

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 01/02/2013

CORAM
THE HONOURABLE MR.JUSTICE M.JAICHANDREN
AND
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU

CRIMINAL APPEAL (MD).No.172 of 2006

N.Chellaiah ... Appellant

Vs.

State by the Inspector of Police,
Murappanadu Police Station,
Crime No.65 of 2000. ... Respondent

PRAYER

Appeal is filed under
Section 374(2)
of the Code of Criminal Procedure
to call for the records in S.C.No.369 of 2001, on the file of the learned
Additional Sessions Judge, [Fast Track Court No.I], Tuticorin, dated 07.10.2003
and set aside the same.

!For Appellant ... Mr.R.Ramasamy
^For Respondent ... Mr.A.Ramar
Additional Public Prosecutor
- - - - -

:JUDGMENT

*************
[Judgment of the Court was delivered by S.NAGAMUTHU, J.]
The appellant is the sole accused in S.C.No.369 of 2001, on the file
of the learned Additional Sessions Judge, [Fast Track Court No.I], Tuticorin. He
stood charged for offences under
Sections 341
,
,
and
506(ii)
of the
Indian Penal Code. By Judgment dated 07.10.2003, the Trial Court has convicted
him under all the charges. For the offence under
Section 341
of the Indian Penal
Code, the Trial Court has sentenced him to undergo rigorous imprisonment for
one month and to pay a fine of Rs.100/-, in default to undergo imprisonment for
one week, for the offence under
Section 302
of the Indian Penal Code, to undergo
imprisonment for life and to pay a fine of Rs.1,000/-, in default to undergo
imprisonment for six months, for the offence under
Section 326
of the Indian
Penal Code, to undergo rigorous imprisonment for three years and to pay a fine
of Rs.500/- in default to undergo imprisonment for six months and for the
offence under
Section 506(ii)
of the Indian Penal Code, to undergo rigorous
imprisonment for one year and to pay a fine of Rs.500/- in default to undergo
imprisonment for one month. Challenging the said conviction and sentence, the
appellant has come up with this Criminal Appeal.

2. The case of the prosecution, in brief, is as follows:-

The deceased, in this case, was one Mr.S.Shanmugavel. PW-1 is his
wife and PW-2 is the son of the deceased. PW-3 is the father-in-law of PW-2. Two
years prior to the occurrence, there arose a dispute between the deceased and
the accused in respect of cutting of acacia trees. This resulted in a criminal
case against the deceased, PW-2, one Marimuthu and few others. This is projected
as the motive for the occurrence.

2.1. On 29.03.2000, at about 10.00 AM, PW-1 and the deceased were
proceeding through the land of one Annamalai Thevar. At that time, the accused
came there with a sickle in his hand. He shouted at the deceased saying that he
would not leave the deceased without wrecking vengeance. So saying, the accused
cut the deceased with sickle. The deceased warded off the said attack by his
hands. The blow fell on the right forehand. Then, the accused cut him on the
right side of the abdomen of the deceased. The injury was so deep and the
intestine protruded out. PW-1 attempted to rescue the deceased. Immediately, the
accused cut PW-1 on her right hand, left hand, right shoulder and right upper
hand, repeatedly with sickle. PW-2 and PW-3 were then working in a nearby field.

On hearing the alarm raised, they rushed towards the place of occurrence and
witnessed the entire occurrence. On seeing them, the accused criminally
intimidated them by brandishing sickle against them. Then, the accused fled away
from the scene of occurrence with the weapon.

2.2. PW-2 and PW-3, forthwith, took PW-1 and the deceased to the
Government Medical College Hospital at Palayamkottai, Tirunelveli District. PW-
12, Dr.S.Rajan, examined the deceased at 11.05 AM, on 29.03.2000. The deceased
told him that on 29.03.2000, at 10.00 AM, in a field at Agaram, he was attacked
by a known person with sickle. The deceased was, at that time, fully conscious.
He noticed two injuries on his body as follows:-

"(i) A cut injury measuring 15 x 3 cm-traverse- on the right side of the
abdomen.

(ii) A cut injury on the right upper arm measuring 15 x 4 x 3 cm exposing
the bone."

According to P.W.12, from out of the X-ray taken and on his own assessment, both
the injuries were grievous in nature.

2.3. On the same day, at 11.10 AM, he examined PW-1, who told that
at 10.00 AM, on 29.03.2000, in a field at Agaram, she was attacked by a known
person with sickle. PW-12 noticed the following injuries:-

"1. A cut injury on the right arm above elbow measuring 2 X + cm.

2. A cut injury measuring 5 cm X + X + cm at the right shoulder.

3. A cut injury measuring 2 X 1 cm on the left arm.

4. A swelling on the middle of left arm."

2.4. X-ray was taken on PW-1, which revealed that the injuries 1 and
2 were grievous in nature. PW-1 and the deceased were admitted in the hospital
as inpatients. P.W.12 opined that the injuries on the deceased as well as on PW-
1 would have been caused by a weapon, like sickle. He gave an intimation to the
police as well as to the learned Judicial Magistrate in respect of the same.

2.5. PW-17 was the then Judicial Magistrate No.6 at Tirunelveli. On
receipt of the intimation from the Hospital Authorities, he proceeded to the
hospital at 12.05 PM. One Dr.Ramakrishnan was attending on the deceased.
Dr.Ramakrishnan opined that the deceased was conscious and was in a fit state of
mind to make dying declaration. On his own assessment and also based on the
opinion of Dr.Ramakrishnan, PW-17 was satisfied that the deceased was in a fit
state of mind to make dying declaration. Accordingly, he recorded the dying
declaration given by the deceased, [vide EX-P26]. In the said dying declaration,
the deceased told that due to previous enmity, the accused cut him with sickle.
[Dr.Ramakrishnan was not examined before the Trial Court, as he had gone
abroad]. PW-15 was a Head Constable, attached to the Murappanadu Police Station.
PW-16 was the then Sub - Inspector of Police, attached to the said Police
Station. On receipt of intimation from the Hospital Authorities, PW-15 and PW-16
proceeded to the hospital at 12.25 PM, on 29.03.2000. The deceased gave oral
complaint to PW-16. Since PW-16 could not write, as he had met with an accident,
PW-15 reduced the same into writing. EX-P1 is the statement. On returning to the
Police Station, PW-16 registered a case in Crime No.65 of 2000 under
Sections
,
,
and
506(ii)
of the Indian Penal Code. PW-16 forwarded the
statement, EX-P1 and the First Information Report, EX-P24 to the jurisdictional
Magistrate. Then, he handed over the case diary to the Inspector of Police for
investigation.

2.6. PW-18, the then Inspector of Police, attached to the
Murappanadu Police Station, took up the case for investigation at 03.00 PM, on
29.03.2000. He proceeded to the place of occurrence and prepared an Observation
Mahazer, EX-P3 and a Rough Sketch, EX-P27, showing the place of occurrence in
the presence of PW-4 and another witness. Then, he recovered bloodstained earth
and sample earth from the place of occurrence under a mahazer in the presence of
the same witnesses. Then, he examined PW-2 to PW-4 and recorded their
statements. At 07.30 PM, he examined the deceased at the hospital and recorded
his statement. [The said statement, though a dying declaration, falling within
the sweep of
Section 32
of the Indian Evidence Act, 1872, has not been proved in
evidence by the prosecution]. Then, he examined PW-1. He recovered the dress
materials of PW-1 and the deceased.

2.7. On 31.03.2000, the accused surrendered before the learned
Judicial Magistrate No.V, Tirunelveli. On the orders of the learned Judicial
Magistrate, on 10.04.2000, PW-18 took the accused into his custody. On the same
day, at 06.30 PM, while in the Police Station, the accused gave a voluntary
confession in the presence of PW-6 and another witness. In the said confession,
he had disclosed that he had hidden the sickle in his house. In pursuance of the
said statement, he took PW-18 and the witnesses to his house and produced the
sickle, [MO-1]. Then, he forwarded the accused to the Court for judicial remand
and also produced the Material Objects before the Court.

2.8. While so, at 06.00 AM, on 22.04.2000, the deceased died in the
hospital. PW-19 was the then Inspector of Police, attached to the Murappanadu
Police Station. On receipt of the death intimation from the Hospital
Authorities, he altered the case into one under
Section 302
of the Indian Penal
Code. Then, he proceeded to the hospital and conducted inquest on the body of
the deceased between 10.00 AM and 12.30 PM. EX-P28 is the Inquest Report. During
inquest, he again examined PW-1, PW-2 and few more witnesses and recorded their
statements. Then, he forwarded the dead body for postmortem. PW-13,
Dr.K.Selvaraj, was an Assistant Professor, Forensic Medicine, Tirunelveli
Medical College Hospital, Tirunelveli. He conducted autopsy on the body of the
deceased between 12.50 PM and 1.50 PM, on 24.04.2000. He found the following
injuries:-

"1.Partly healed vertically oblique cut injury with evidence of suturing
on the right lateral abdomen, 16 X 5 CM entering into the abdominal cavity.

2. Sutured vertically oblique cut injury on the back, outer aspect of and
front of right forearm, 15 cm below the right elbow, measuring 15 cm X 5 cm X
bone deep.

On dissection: fracture of right radius with surrounding infection.

3. Sutured incised wound in the front of abdomen in the middle with
proline sutures. 18 cm X 1 cm entering peritoneal cavity, through the lower part
of the wound a loop of intestine seen protruding out. [end to end anastomosis of
the intestine has been done] [surgical procedure].

4. Durainage wounds on the right and left flanks of abdomen with
corrugated rubber drainage tubes in situ [surgical procedure]."

2.9. He opined that the deceased would appear to have died of cut
injuries - abdomen and its complications. PW-19 collected the Postmortem
Certificate and examined the doctor. Then, he made a request to the Court to
forward the Material Objects for chemical examination. EX-P16 is the Chemical
Analyst Report and EX-P17 is the Serology Report. As per EX-P16, there was
bloodstain found on the sickle [MO-1].

2.10. Finally, on completing the investigation, PW-19 laid charge
sheet against the accused. The Trial Court framed charges under
Sections 341
,
,
and
506(ii)
of the Indian Penal Code. The accused pleaded innocence,
and therefore, he was put on trial. During trial, on the side of the
prosecution, as many as nineteen witnesses were examined and twenty eight
documents were exhibited, besides, five Material Objects.

3. Out of the said witnesses, PW-1 is the injured eye witness and
PW-2 and PW-3 are the eye witnesses to the occurrence. They have vividly spoken
to about the entire occurrence. PW-6 has spoken to about the recovery of MO-1,
sickle on the disclosure statement made by the accused. PW-12 has spoken to the
fact that he admitted PW-1 and the deceased as inpatients in the hospital. PW-13
has spoken to about the postmortem conducted by him and the cause of death. PW-
15 and PW-16 have spoken to about the complaint made by the deceased and the
registration of the case. PW-17 has spoken to the fact that he recorded the
dying declaration of the deceased. The others are the official witnesses.

4. When the above incriminating materials were put to the accused
under
Section 313
of the Code of Criminal Procedure, he denied the same as
false. However, he did not choose to examine any witness on his side nor to
exhibit any document in his defence. Having considered all the above materials,
the Trial Court found him guilty under all the charges, and accordingly,
punished him. That is how, the appellant is now before this Court with this
Criminal Appeal.

5. We have heard the learned counsel for the appellant and the
learned Additional Public Prosecutor for the State and also perused the records
carefully.

6. As we have already pointed out, PW-1 is an injured eye witness.
Due to the attack made by the accused with sickle, she had suffered two
fractures. According to the medical evidence, the said injuries were grievous in
nature. There is no controversy before this Court that PW-1 and the deceased
sustained injuries in the very same transaction. Therefore, the presence of PW-
1, at the time of occurrence, cannot be doubted at all.

7. PW-2 is the son of the deceased and PW-3 is the father-in-law of
PW-2. Of course, they are inimical towards the accused. It is on this ground,
the learned counsel for the appellant would contend that these two witnesses
cannot be believed at all, and their presence, at the time of occurrence, cannot
be true. But, we do not find any force in the said argument advanced by the
learned counsel for the appellant. PW-2 and PW-3 have stated that they were
working in a nearby field at Aharam and on hearing the alarm raised, they rushed
to the place of occurrence and witnessed the entire occurrence. Simply because
PW-2 and PW-3 are closely related to the deceased and enimical towards the
accused, their evidence cannot be rejected. In our considered view, the
evidences of PW-2 and PW-3 deserve to be accepted.

8. Immediately, after the occurrence, PW-2 and PW-3 took PW-1 and
the deceased to the hospital. On 29.03.2000, at 11.05 AM, when PW-12 examined
PW-1, she told that she was attacked by a known person at 10.00 AM, on
29.03.2000 with sickle. The said statement duly corroborates the evidence of PW-

2. The deceased also told PW-12 that he was attacked by a known person with
sickle at 10.00 AM, on 29.03.2000. This statement falls within the sweep of

Section 32(1)
of the Indian Evidence Act, 1872, as a dying declaration.

9. Nextly, PW-17, the learned Judicial Magistrate, recorded the
dying declaration of the deceased at 12.15 PM. One Dr.Ramakrishnan, who was
attending on the deceased, certified that the deceased was in a fit state of
mind to make dying declaration. It is the contention of the learned counsel for
the appellant that in the absence of the examination of Dr.Ramakrishnan, it
cannot be held that the deceased was in a fit state of mind to make dying
declaration. The said argument of the learned counsel, in our considered
opinion, deserves only to be rejected, for the reason that PW-17 has stated that
not only on the basis of the opinion offered by Dr.Ramakrishnan, but on his own
assessment, from the answers given by the deceased to the questions put by him,
he was satisfied that the deceased was in a fit state of mind to make dying
declaration. At this juncture, we may point out that the opinion of the doctor
is only a guiding factor to a Magistrate to arrive at a satisfaction regarding
the mental fitness of an injured person. Ultimately it is only the subjective
satisfaction of the Magistrate about the mental fitness of the declarant that
matters.

10. In this case, PW-17 has categorically stated that from the
opinion of the doctor and out of his own assessment, he was satisfied that the
deceased was in a fit state of mind to make dying declaration. In respect of the
non - examination of Dr.Ramakrishnan, there is explanation offered by the
prosecution that the said Dr.Ramakrishnan had gone abroad, and therefore, his
presence could not be secured. Thus, we hold that EX-P26, dying declaration,
recorded by PW-17 does not carry any infirmity with it. In the said dying
declaration, the deceased had stated that he was cut by the accused with sickle,
at 10.00 AM, on 29.03.2000. There is no reason to reject the said judicial dying
declaration recorded by PW-17.

11. Next comes the complaint given by the deceased to PW-15 and PW-
16, at 12.25 PM. The deceased gave a statement orally to PW-16 and the same was
reduced into writing by PW-15, [vide EX-P1]. This statement is yet another dying
declaration. In the said dying declaration also, the deceased had stated that he
was cut by the accused with sickle. There is no reason to doubt this dying
declaration as well.

12. During the course of investigation, PW-18 recorded the statement
of the deceased under
Section 161
of the Code of Criminal Procedure. In the
said statement also, we find that the deceased said about the circumstances
leading to his cause of death. The said statement, therefore, is a dying
declaration falling within the ambit of
Section 32
of the Indian Evidence Act,
1872. But, unfortunately, the prosecution has not proved the same in evidence.
We apprehend that the prosecution was under the mistaken impression that the
said statement recorded under
Section 161
of the Code of Criminal Procedure is
not admissible in evidence, in view of the bar contained in
Section 162
of the
Code of Criminal Procedure. For a moment, the prosecution had failed to notice
the proviso to
Section 162
of the Code of Criminal Procedure, which makes it
clear that a statement, falling within the ambit of
Section 32
of the Indian
Evidence Act, 1872, as a dying declaration, is admissible in evidence and the
bar contained in
Section 162
of the Code of Criminal Procedure is not applicable
to such a dying declaration. In the instant case, unfortunately, the prosecution
has failed to make use of the said dying declaration.

13. In respect of the recovery of the Material Object, [MO-1], on
the disclosure statement made by the accused, we are not prepared to attach much
importance on the same, as there was no bloodstain found on the said weapon, as
opined by the analyst.

14. From the above said eye - witness account of PW-1 to PW-3 and
the two dying declarations, referred to above, we hold that the prosecution has
succeeded in proving that it was this accused, who had caused injuries on the
deceased as well as on PW-1. We further hold that the accused had criminally
intimidated PW-2 and PW-3, when they rushed to the place of occurrence.

15. Yet another contention of the learned counsel for the appellant
is that the cause of death, in this case, was not directly attributable to the
act of the accused, and therefore, according to the learned counsel, it is
doubtful as to whether the death of the deceased is a homicide. In order to
appreciate the said contention, let us have a cursory look into the Postmortem
Certificate and the evidence of PW-12 as well as the evidence of PW-13. At the
time when the deceased was admitted by PW-12, he noticed a cut injury on the
abdomen, measuring 15 X 3 cms. From 29.03.2000 onwards, the deceased was
undergoing treatment in the hospital and he died at 06.00 AM, on 22.04.2000.
Thus, he was in the hospital for 24 days as an inpatient, undergoing treatment.
PW-13, who conducted autopsy on the body of the deceased, noticed as many as
four external injuries.

16. Two of those injuries were surgical wounds. The injury found on
the abdomen was partly healed and the other injury found on the forearm was also
partly healed. But, almost all the internal organs were infected and there was
puss found profusely in the internal organs. According to the doctor, the death
was due to the cut injury to the abdomen and its complications. In other words,
according to him, the death was due to infection and the injury to the abdomen.

17. From the said opinion of the doctor, PW-13, it is crystal clear
that the death would not have occurred but for the injuries caused on the
deceased. The injuries developed certain complications, like infection and
eventually, it resulted in death. Therefore, it cannot be said that the death of
the deceased is not attributable to the act of the accused. In our considered
opinion, the death was caused only by the act of the accused, and therefore, it
is a homicide.

18. The next question, which needs to be resolved, is as to whether
the said homicide is a culpable homicide in terms of
Section 299
of the Indian
Penal Code. It is needless to point out that in order to take the shape of a
culpable homicide, the act of the accused should fall under any one of the limbs
of
Section 299
of the Indian Penal Code. The first limb of
Section 299
of the
Indian Penal Code speaks of the intention of causing death. Here, in the instant
case, from the materials available on record, we are satisfied that the deceased
had intention to cause the death. Intention is always a matter of inference.
Such inference should be reasoned and well founded. Motive, words uttered at
the time of occurrence, weapon used, number of injuries, location of injuries,
opportunity to complete the task of killing are some of the factors which would
weigh in the judicial mind of the Court while deciding whether the accused had
intention to kill. In this case, having considered all the above relevant
facts, we hold that the accused had definite intention to kill and therefore,
the act of the accused would fall under the first limb of Section 299 I.P.C. and
so under the first limb of Section 300 I.P.C. It does not fall under any of the
special exceptions appended to Section 300 I.P.C.

19. The learned counsel for the appellant contended that the death
of the deceased was only due to septicaemia. In other words, according to him,
but for the infection, he would not have died. Thus, his contention is that it
is not a murder.
In this regard, the learned counsel relies on a Judgment of
the Hon'ble Supreme Court in
B.N.Kavatakar Vs. State of Karnataka
reported in
1994 SCC (Crl) 579. In the said case, the deceased was attacked by the accused
with lethal weapons causing several injuries. The deceased died in the hospital
after five days. According to the Medical Officer, who conducted autopsy on the
body of the deceased therein, the death was as a result of septicemia secondary
to injuries and peritonitis. In the said case, the Hon'ble Supreme Court took
the view that the offence committed by the accused therein would fall under
Section 326 r/w
Section 34
of the Indian Penal Code and not under
Section 302
of
the Indian Penal Code. In Paragraph No.9 of the said Judgment, the Hon'ble
Supreme Court has held as follows:-

"9. The next question that comes up for our consideration is what is the
nature of the offence that the appellants have committed. The Medical Officer
who conducted autopsy on the dead body of the deceased has opined that the death
was as a result of septicaemia secondary to injuries and peritonitis. As we have
indicated above, the deceased died after five days of the occurrence in the
hospital. On an overall scrutiny of the facts and circumstances of the case
coupled with the opinion of the Medical Officer, we are of the view that the
offence would be one punishable under Section 326 read with
Section 34
IPC."

20. Placing reliance heavily on the said Judgment, the learned
counsel would contend that in the instant case also, since the death was due to
infection, the offence committed by the accused would fall under
Section 326
of
the Indian Penal Code. In this regard, we would like to examine the issue in a
detailed manner by making reference to various Judgments of the Hon'ble Supreme
Court and this Court.

21. During the pre-constitutional era, a Division Bench of this
Court, while considering a referred trial matter, in
Doraisamy Servai Vs.
Emperor
, reported in 1943 M.W.N. Cr. 185, held that in a case of this nature,
the real test is "whether the cause of death is directly associated with the
act of the accused ?" That was a case where there were two accused. Out of
whom the first accused cut the deceased on the back of the neck with a
vettaruval and the second accused was standing by his side holding a stick.
When a witness in the case intervened, the second accused cried out "Will you go
away or shall I cut you also?" then the first accused cut the witness with
aruval on his neck. The deceased was removed to the hospital. He underwent
treatment as in-patient. The deceased died after 16 days. According to the
Doctors who conducted postmortem, the death was due to septicaemia and pyaemia
resulting from the multiple injuries; none of the injuries could each by itself
have caused the death, but cumulatively the injuries should prove necessarily
fatal in the case of a normal man. The deceased appeared to have had a physique
above the normal; he was well built; so in his case, the injuries need not have
been necessarily fatal; but they were sufficient in the ordinary course of
nature to cause death. Relying on the above medical opinion, it was argued
before the Division Bench that since the death was due to septicaemia, the
offence would fall either under
Section 326
of I.P.C. or
Section 304
of I.P.C.
While deciding the said question, the Division Bench formulated that the test is
whether the cause of death is to be directly associated with the act of the
accused. After having referred to various English cases as well as Indian
cases, Justice Mockett (O.C.J), speaking for the Bench, held as follows:

"It would be a strange position if a man who inflicts a wound causing
almost immediate death should be guilty of murder, whilst a man who inflicts a
very similar wound from which pneumonia supervenes should not. On the facts of
this case it is clear to me that the deceased man, in spite of his physique
which is said to have been exceptionally robust, died as a direct result of the
injuries inflicted upon him by the appellant; and that the appellant intended
his death is evident from the facts. The result was not as immediate as he
intended and not perhaps quite in the manner that he intended. But in the
processes of nature, in spite of medical attention one of the well-known perils
from a wound supervened, namely, blood poisoning, and the deceased died. The
chain of causation is in my view direct." (Emphasis added)
On such view, the Division Bench held the accused guilty under
Section 302

I.P.C. The Division Bench observed that a person who inflicts such injuries,
especially upon a feeble old man, must be presumed to know that he is likely to
cause death and thus he intended his death. So holding, the Division Bench held
the accused guilty under
Section 302
of I.P.C. and accordingly punished him.

22.
In
State of Haryana Vs. Pala and others
reported in (1996) 8 SCC
51, the Hon'ble Supreme Court had an occasion to find a fine difference between
the primary effect of the injuries and the secondary effect of the injuries.
That was a case where the deceased was hit on his head three times and when the
deceased had fallen, the other accused had beaten him thrice on his chest and
abdomen. The deceased was taken to the hospital. The deceased died several
days later, while in the hospital. The doctor's opinion in respect of the cause
of death was as follows:

"Cause of the death was due to septicaemia, which resulted as a result of
the head injury and was sufficient to cause death in ordinary course of nature."

The contention before the Hon'ble Supreme Court was that the offence committed
by the accused would not fall under any of the limbs of
Section 300
I.P.C. This
question was considered in the light of further information given by the doctors
which is as follows:

"Septicasemie is the direct result of the head- injury. This is not a
disease. In other words, head injury is the cause of death."

The Trial Court convicted the accused, applying clause 3 of
Section 300
I.P.C.,
under
Section 302
I.P.C. On appeal, the High Court applied Exception 4 to

Section 300
I.P.C. and converted the offence of murder into culpable homicide
not amounting to murder and convicted the accused under Section 304 Part II of

I.P.C
. In the further appeal to the Hon'ble Supreme Court, in paragraph 3 of
the judgment, the Hon'ble Supreme Court has held as follows:

"3......On the other hand he contended that when death was due to
septicasemie, it cannot be referable to the cause of the death in the ordinary
course of nature due to anti mortom injuries and that, therefore, the offence of
murder has not been made out. In support thereof, he sought to place reliance on
Lyon's Medical Jurisprudence for India (Tenth Edition) at page 222. It is stated
therein that "Danger to life depends, primarily, on the amount of hemorrhage, on
the organ wounded, and on the extent of shock; secondarily, on secondary
hemorrhage, on the occurrence of septicaemia, erysipelas, tetanus, or other
complications. In answering the question whether a wound is dangerous to life,
the danger must be assessed on the probable primary effects of the injury : Such
possibilities as the occurrence of tetanus or septicaemia, later on, are not to
be taken into consideration." Though the learned counsel had not read the later
part of the opinion, the medical evidence on record do clearly establish that
Septicaemia is not the primary cause and the death was due to injuries caused to
the deceased and they are sufficient to cause death in the ordinary course of
nature. Septicaemia would, therefore, not be taken into account." (Emphasis
added)
From the above judgement, it is crystal clear that it is not as though in every
case where the death is due to Septicaemia resulting on account of the
injuries, the offence would fall outside the scope of
Section 300
I.P.C. On the
contrary, the distinction lies as to whether the death was due to the primary
effects of the injury or due to the secondary effects of the injury. If the
injury caused on the deceased itself is either sufficient to cause death or
likely to cause death, then depending upon the other circumstances, the offence
would fall directly either under the third limb or the fourth limb of Section
300 I.P.C.

23. Similarly, in
Jagtar Singh Vs. State of Punjab
reported in
(1999) 2 SCC 174, the Hon'ble Supreme Court had to decide as to whether the
offence would fall within the scope of
Section 302
I.P.C. when the death was due
to Septicaemia. One of the pleas taken
in that case
was that Septicaemia had
occurred because of improper treatment given. It was further contended that had
there been proper treatment, the deceased would not have died. This contention
was negatived by the Hon'ble Supreme Court by referring to Explanation-2 to

Section 299
of I.P.C. which reads as follows:

"Explanation 2 to Section 299:- 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 skillful treatment the death
might have been prevented."

In paragraph 7 of the Judgment, the Hon'ble Supreme Court held as follows:

"7.Having given our anxious consideration to the first contention of Mr.
Gujral we do not find any substance in it. It is true that Naib Singh died 17
days after the incident due to septecemia, but Dr. M.P.Singh (P.W.1), who held
the post-mortem examination, categorically stated that the septicemia was
due to the head injury sustained by Naib Singh and that the injury was
sufficient in the ordinary course of nature to cause death. From the impugned
judgment we find that the above contention was raised on behalf of the
appellants and in rejecting the same the High Court observed :-

"It is well settled that culpable homicide is not murder when the
case is brought within the five exceptions to
section 300
Indian Penal Code.
But even though none of the said five exceptions is pleaded or prima facie
established on the evidence on record, the prosecution must still be
required under the law to bring the case under any of the four clauses,
firstly to fourthly, of
Section 300
, Indian Penal Code, to sustain the charge
of murder. Injury No. 1 was the fatal injury. When this injury is judged
objectively from the nature of it and other evidence including the medical
opinion of Dr. M.P.Singh (P.W.1), we are of the considered view that injury was
intended to be caused with the intention of causing such a bodily injury by
Harbans Singh appellant on the person of Naib Singh which was sufficient in
the ordinary course of nature to cause death................"

On perusal of the evidence of P.W.1 in the light of explanation 2 to

Section 299
I.P.C . We are in complete agreement with the above quoted
observations of the High Court." (Emphasis supplied)
Here it needs to be noted that the death occurred after 16 days of the
occurrence due to septicaemia. The injury was on the head. The medical opinion
was that the injury itself is sufficient to cause the death of the deceased.
Therefore, the Hon'ble Supreme Court did not take into account the secondary
effect viz., septicaemia.

24. Then we have yet another judgment of the Hon'ble Supreme Court
in
Antram Vs. State of Maharashtra
reported in (2007) 13 SCC 356.

The Hon'ble
Supreme Court while approving the view taken in
Pala
case, cited supra, has held
in paragraphs 14 to 17 as follows:

"14.
In
State of Haryana v. Pala and Ors.
(AIR 1996 SC 2962) it was noted
as follows :

"In answering the question whether a wound is dangerous to life, the
danger must be assessed on the probable primary effects of the injury. Such
possibilities as the occurrence of tetanus or septicaemia, later on, are not to
be taken into consideration."

15.
In
Sudershan Kumar v. State of Delhi
(AIR 1974 SC 2328) it was noted
as follows:

"The fact that the deceased lingered for about 12 days would not show that
the death was not the direct result of the act of the accused in throwing acid
on her. So also the fact that the deceased developed symptoms of malaena and
respiratory failure and they also contributed to her death could not in any way
affect the conclusion that the injuries caused by the acid burns were the direct
cause of her death."

16. As noted above it was emphasized by learned counsel for the appellant
that with proper medical care the deceased could have survived and therefore

Section 302
IPC has no application. The plea clearly overlooks Exception 2 to

Section 299
IPC, which reads as follows:

"Explanation 2.--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 skillful treatment the death might have been
prevented."

17. When the background facts are examined on the touchstone of the
principles of law highlighted, the inevitable result is that the appeal is
without merit, deserves dismissal, which we direct."

25.
In
Veerla Satyanarayana Vs. State of Andhra Pradesh
reported in
(2009) 16 SCC 316, the Hon'ble Supreme Court was invited to decide a similar
question where death was due to septicaemia on account of 60% burn injuries
caused by acid. In paragraphs 4 and 5 the Hon'ble Supreme Court has held as
follows:

"4. In our view, this submission is not tenable because of the burn
injuries. By throwing of the acid on the deceased who was sleeping, septicemia
was caused and he died. PW15 (doctor) has made it clear that even in the cases
of proper treatment also there is possibility of septicemia. 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 was 35% burn injuries by pouring of acid which according to doctor's
evidence was due to toxaemia and septicemia 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.

5. In the present case, the prosecution has established beyond reasonable
doubt the motive of the accused of causing this injury. It is also established
that the act of the appellant in pouring acid on the body of the deceased was
pre-planned one; he selected night time when the deceased as well as PW1 were
sleeping; he poured the acid which caused 60% burn injuries and as the injuries
caused by the appellant were sufficient in ordinary course of nature to cause
death, the appellant is rightly held to be guilty of offence punishable under

Section 302
of IPC."

26. Likewise in
Munnawar and others Vs. State of Uttar Pradesh and
others
reported in (2010) 5 SCC 451, there were as many as seven injuries caused
on the deceased. The deceased died in the hospital after five days. The
medical opinion was that the death was due to septicaemia on account of the
infection caused by the injuries. The doctors had further opined that had the
deceased been given proper treatment, he might have survived. It is on the
basis of this medical opinion, it was contended before the Hon'ble Supreme Court
that the offence would not fall within the ambit of
Section 302
I.P.C. While
negativing the plea, the Hon'ble Supreme Court, in paragraph 24, held as
follows:

"24. We see from the injuries that they had been caused from a very close
range as tattooing was present. Dr. Anil Kapoor also pointed that injury Nos.1,
3, 6 and 7 were grievous and were fatal to life and all the injuries were
sufficient to cause death as they were on sensitive parts of the body and that
the injured was under severe shock, and had been given three units of blood at
the time of his admission to hospital. In the light of this evidence, we are
unable to comprehend as to how the trial court could have concluded that it was
the negligence on the part of Dr.Anil Kapoor which had led to septicemia and
finally to the death of the patient."

27. Very recently in
State of Rajasthan Vs. Arjun Singh and others

reported in (2011) 9 SCC 115, the Hon'ble Supreme Court had to deal with a
similar situation where the death occurred after 35 days due to septicaemia on
account of gun shot injuries. Speaking for the Bench Hon'ble Mr. Justice
P.Sathasivam in paragraph 31 has held as follows:

"31. Finally, learned senior counsel for the accused pointed out that
inasmuch as Himmat Raj Singh died after 35 days due to septicemia, the Courts
below are not justified in convicting the accused persons for an offence under

Section 302
IPC for his death. Considering the medical evidence that Himmat Raj
Singh sustained 7 gun shot injuries which were sufficient to cause death in the
ordinary course, we are satisfied that the death of Himmat Raj Singh undoubtedly
falls within the ambit of 302
IPC
. " (Emphasis supplied)

28. The judgments, thus far, we have referred to are all cases where
the Hon'ble Supreme Court found the accused guilty under
Section 302
I.P.C.,
though the death was due to septicaemia on account of the injuries.

29. Now let us have a look into some of the decisions of the Hon'ble
Supreme Court where the Hon'ble Supreme Court has convicted the accused under

Section 304
I.P.C. where also death was due to septicaemia on account of the
injuries.
In
Jharmal and others Vs. State of Haryana
reported in 1994 SCC
(Crl.) 593 the deceased sustained injuries on the head due to single blow with
an iron pipe. He died after 17 days due to septicaemia. The Court below
convicted the accused under
Section 302
I.P.C. but the Hon'ble Supreme Court
reversed the same and convicted the accused under Section 304 part II of
I.P.C
.
In paragraph 6 of the judgement the Hon'ble Supreme Court has held as follows:

"6.We find considerable force in this submission. As stated above the
occurrence took place on November 18, 1988 and the deceased died 18 days later
on December 5, 1988 due to septicaemia and other complications. The Doctor found
only one injury on the head and that was due to single blow inflicted with an
iron pipe not with any sharp-edged weapon. Having regard to the circumstances of
the case, it is difficult to hold that the appellant intended to cause death nor
it can be said that he intended to cause that particular injury. In any event
the medical evidence shows that the injured deceased was operated but
unfortunately some complications set in and ultimately he died because of
cardiac failure etc. Under these circumstances, we set aside the conviction of
the appellant under
Section 302
IPC and the sentence of imprisonment for life
awarded thereunder. Instead we convict him under Section 304 Part II
IPC
and
sentence him to undergo six years' RI. The sentence of fine of Rs 2000 along
with default clause is confirmed. Accordingly the appeal is partly allowed."

30.
In
Maniben Vs. State of Gujarat
reported in (2009) 8 SCC 796 the
deceased died after 8 days of the incident in which the deceased had sustained
burn injuries. The accused had thrown a burning wick made of rags on the
deceased and thereby set fire to the terylene clothes put on by the deceased.
In paragraph 20 of the judgment it was held as follows:-

"20. There is also evidence on record to prove and establish that the
action of the appellant to throw the burning tonsil was preceded by a quarrel
between the deceased and the appellant. From the aforesaid evidence on record it
cannot be said that the appellant had the intention that such action on her part
would cause the death or such bodily injury to the deceased, which was
sufficient in the ordinary course of nature to cause the death of the deceased.
Therefore, in our considered opinion, the case cannot be said to be covered
under clause (4) of
Section 300
of IPC. We are, however, of the considered
opinion that the case of the appellant is covered under Section 304 Part II of

IPC
."

31.
In
Shanmugam @ Kulandaivelu Vs. State of Tamil Nadu
reported in
(2002) 10 SCC 4, the doctor who attended the deceased in the hospital stated
that the immediate cause of death was infection and also on account of oozing of
excreta from the colon and wounds that got infected and became septic. But his
evidence did not lead to a definite conclusion that the death could be caused in
the ordinary course of nature. The evidence of the doctor who conducted the
post mortem also was not categorical so as to form a definite opinion that the
injuries inflicted on the deceased were sufficient in the ordinary course of
nature to cause death. According to the doctor, the death occurred as a result
of onset of septicemia because of puss and infection. He further opined that
the wounds on the gall bladder were capable of causing death. But during the
cross examination, the doctor stated that it cannot be stated with certainty
that the wounds on the gall bladder would result in death. In those
circumstances, the Hon'ble Supreme Court held as follows:

"At the same time, the nature of injuries and the medical opinion
unmistakably point to the fact that the bodily injuries inflicted on the
deceased were of such nature that they were likely to cause death. There can be
no doubt that the accused intended to cause and did cause the injuries. We are,
therefore, of the view that the appellant is liable to be punished under the
first Part of
Section 304
IPC." (Emphasis supplied)

32. From these judgments one can easily perceive the difference. In
these cases, the Court held there was no intention to cause death. The medical
opinion was not certain as to whether the injuries, caused with intention, would
have been sufficient to cause the death in the ordinary course of nature or not.
But, the medical opinion was to the effect that the injury is likely to cause
death. It was because of these reasons, the Hon'ble Supreme Court held that the
offence would fall only under Section 304 I.P.C.

33. There are few more cases which need to be looked into, wherein,
the Courts have held that the offence would fall under
Section 326
I.P.C. where
death was due to septicaemia on account of the injuries.

34.
In
B.N.Kavatakar
case (cited supra), upon which much reliance
has been placed by the learned counsel for the appellant, the death occurred in
the hospital after five days due to septicaemia . But a reading of the judgment
would go to show that it does not reflect the nature of the injury and whether
the cause of death was primarily due to the injury or due to the secondary
cause, like infection. Therefore
,
the said judgment
cannot be taken to have
laid down any guidance on this aspect.

35. A Division Bench of this Court in
Balu @ Balusamy Vs. State

reported in 1996 (1) MWN (Cr.)

238 considered the scope of
B.N.Kavatakar
case
(cited supra). In the case before the Division Bench, there were as many as
four injuries on the body of the deceased, all were caused by knife. There were
also blood stains on the body of the deceased. The doctor who conducted the
autopsy opined as follows:

"The deceased would appear to have died of septicaemia and shock due to
multiple injuries sustained."

In that case, except injury No.5, the other injuries were all surgical wounds.
The doctor further opined that the cumulative effect of all the injuries and
post-operation shock and septicaemia, resulted in the death of the deceased. In
paragraph No. 15 and 16 the Division Bench has held as follows:

"15. Medical evidence afforded by P.W.5 and P.W.6 corroborates the ocular
testimony of P.Ws. 1 to 3 about infliction of stabs by the appellant on the
deceased, P.W.1 and P.W.2. If P.W.1 was not in the nearness of the deceased he
would not have been in a position to prevent the appellant, when he was
attacking his wife and that is one more reason, which highlights that the
deceased and P.W.1 were together or in the vicinity of the other, when the
appellant had arrived at his residence. As rightly pointed out by
Mr.T.Sudanthiram, the deceased had died five days later and the cause of death,
in the words of P.W.6, is the cumulative effect of all the injuries and post-
operation shock and septicaemia. When he has stated "all the injuries", we have
to take it, to include, the surgical injuries as well. If those injuries had
also caused shock and septicaemia, ultimately leading to the death of the
deceased, it will be unfair and odd to hold that the accused had the mens rea to
murder.

16. On auditing of the totality of facts available, we are satisfied that
the appellant could be held to have had knowledge that by his act, he was likely
to cause the death of the deceased. We have said enough and more about the
circumstances under which the appellant had inflicted, for all practical
purpose, a single stab. The appellant, therefore cannot be held to be guilty of
murder. IN 1994 SCC (Crl.) 579, on the fact perspective before it, the Supreme
Court held that when the Medical Officer who conducted autopsy had opined that
the death was the result of septicaemia secondary to injuries to peritonitis,
the offence committed by the accused therein would be punishable under Section
326 read with
Section 34
, I.P.C. In the present prosecution, we have from Exs.P-
12 and P-15, the statement of the deceased herself, which, we are prepared to
accept, that the appellant had exclaimed that she was cheating him for a long
time and he would not leave her. This fact will make all the difference and we
satisfied, that properly, in the instant case, the appellant can be convicted
under Section 304 Part II,
I.P.C
. and not under
Section 326
, I.P.C. peculiar
facts available in each case would have to dictate the nature of offence that
could be held to have been committed by the accused."

36. In yet another judgment in Chinnathambi @ Kakkayan Vs. State
reported in 1990 (1) MWN (Cr.) 204, the accused had caused stab injuries on the
deceased with a knife. The deceased died after four days in the hospital. The
doctor opined that the death was caused by septicaemia due to peritonitis. But
the Doctor would not come forward to say that the single injury found on the
body of the deceased was by itself sufficient in the ordinary course of nature
to cause death. While considering the said medical opinion, the Division Bench
in paragraph 6 of the judgment has held as follows:

"6..... Therefore, there is no sufficient evidence on record to show that
the accused has caused the death of Ramu. However, there is overwhelming
evidence to show that the stab injury was inflicted by the accused on the
deceased Ramu on 22.03.1983. In fact, the learned counsel for the accused would
no longer dispute that fact. Therefore, the accused would be only guilty of the
offence under
Section 326
I.P.C...." (Emphasis supplied)
In this case, the Division Bench did not accept the opinion of the doctors that
the death was due to the injuries. Thus holding that the death was not caused
by the accused, the Division Bench convicted the accused under Section 326 of
I.P.C.

37. From the three sets of judgments which we have dealt with herein
above, the point of difference is easily decipherable, which is thin but fine.
In all these cases referred to above, one common feature is that the death was
due to septicaemia on account of the injuries. In this context we would like to
mention that there is a general tendency to contend in such cases, that if once
it is found that the death is due to septicaemia, the offence would fall either
under
Section 304
of I.P.C. or under
Section 326
I.P.C. and not under
Section
of I.P.C. We have seen in our experience, in many judgments of the Trial
Courts, there is a slight lack of clarity on this subject. That is the reason
why, we have undertaken the exercise to refer to all the three sets of
judgments. From the above judgments and the discussions we have made supra, we
may state that the point of difference is this: "whether the death was primarily
due to the injuries or due to the secondary cause namely supervening cause like
septicaemia, tetanus etc.,?"

38. If it is proved that the injury is fatal and the intention was
to cause the death, though the death occurred after several days after
septicaemia had supervened, it is undoubtedly a murder as it falls within the
first limb of Section 300 I.P.C.

39. If it is proved that the injuries by themselves are sufficient
to cause death in the ordinary course of nature and if it is established that
those injuries were the intended injuries, though the death occurred after
septicaemia had supervened, the act of the accused would squarely fall under the
third limb of Section 300 I.P.C. and the accused is therefore liable to be
punished under Section 302 of I.P.C.

40. If it is proved that the injuries are imminently dangerous to
life, though the death had occurred after septicaemia had supervened, then the
act of the accused would squarely fall under the fourth limb of
Section 300

I.P.C., provided the other requirements like knowledge on the part of the
accused etc., are satisfied and so the accused will be liable to be punished
under
Section 302
of I.P.C. Here also, the primary cause of the death is the
injuries and septicaemia, tetanus etc., are only the secondary cause.

41. On the contrary, if it is clear that the injury is neither fatal
nor likely to cause death nor sufficient to cause death or that the injury has
nothing to do with the death, then, the offence would fall neither under
Section
I.P.C. nor under
Section 304
I.P.C. Let us illustrate the point of
difference as follows:

Illustration - A:-

With a small iron pipe, the accused causes an injury on the tip of
the right hand little finger of the deceased. There is an open wound on the tip
of the finger and the bone is exposed. The deceased does not take treatment at
all and the injury results in infection and septicaemia. The deceased dies of
the same after thirty days of the occurrence.

Illustration - B:-

The accused causes an injury with formidable weapon like sickle on
the neck. There is huge loss of blood. The deceased is taken to the hospital,
where skilled doctors give treatment in a higher medical institute having all
latest equipments. Life saving drugs are given. The injured survives for
thirty days and dies due to septicaemia due to injury.

Illustration - C:-

The accused cut the deceased on his hand with a sickle and severs
the hand, resulting in huge loss of blood. The deceased is taken to the
hospital and treated by skilled doctors. Notwithstanding the same, he develops
septicaemia due to the injuries and dies after thirty days due to septicaemia.

42. In these three illustrations, though death occurred due to
septicaemia after thirty days, these cases cannot be equated to each
other. There is a world of difference which we may explain thus:-

(a) So far as illustration 'A' is concerned, it cannot be said at
any stretch of imagination that a small injury caused on the little finger
fracturing a bone is either likely to cause or sufficient to cause death in the
ordinary course of nature. Similarly it cannot be stated that the said injury
is so imminently dangerous that it must, in all probability, cause death. The
primary cause of death is not the injury. Thus, the act of the accused would
not fall either under Section 299 I.P.C. or under Section 300 of I.P.C.

Therefore, in Illustration - A, the accused will be convicted only for an
offence punishable under Section 326 of I.P.C.

(b) In the Illustration - B, the injury is on a vital organ viz.,
neck. There is huge loss of blood. Here, the medical opinion is that the said
injury is primarily sufficient to cause death in the ordinary course of nature.
Here, though there is septicaemia, the primary cause is the injury and
septicaemia is only a secondary cause and so the offence would squarely fall
under the third limb of Section 300 I.P.C. unless the same falls under any of
the special exceptions appended to Section 300 of I.P.C. Here, the accused is
liable to be punished under Section 302 of I.P.C.

(c) In illustration - C, the medical opinion is that severance of
hand by cutting is likely to cause death. Here also the primary cause is the
injury though there was secondary cause viz., septicaemia. But, the said injury
is not sufficient to cause the death in the ordinary course of nature. Here,
the offence would not fall under any of the limbs of Section 300 I.P.C. But it
would fall under the third limb of Section 299 I.P.C. So the accused is liable
to be punished under Section 304 of I.P.C.

43. Now turning to the facts of the case, the injury was caused on
the abdomen and such injury was undoubtedly the intended injury. If no
treatment was given, the death would have been imminent. The death was
postponed by 24 days because of the medical intervention. In illustration-A,
the death occurred after 30 days because there was no treatment given. But here
in this case, the death did not occur immediately and it was postponed by 24
days because of the treatment. Thus, in our considered view, the act of the
accused would squarely fall under the first limb of Section 300 I.P.C. and
therefore he is liable to be punished under Section 302 of I.P.C.

44. Now turning to the quantum of sentence, the Trial Court has
imposed only the minimum punishment which does not call for any interference at
the hands of this Court. So far as the conviction and sentence for the offences
under
Sections 326
and
506(ii)
of I.P.C. are concerned, we do not find any
reason to interfere.

45. In the result, the conviction and sentence dated 07.10.2003 made
in S.C.No.369 of 2001, imposed on the appellant by the learned Additional
Sessions Judge, [Fast Track Court No.I], Tuticorin, is hereby confirmed and the
Criminal Appeal is dismissed.

NB

To

1.The Additional Sessions Judge, [Fast Track Court No.I],
Tuticorin.

2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.

3.The Inspector of Police,
Murappanadu Police Station,
Tirunelveli District.