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PETITIONER: NARAYANAN SATHEESAN @ BABOO

       Vs.

RESPONDENT: STATE OF KERALA

DATE OF JUDGMENT29/09/1977

BENCH: SINGH, JASWANT BENCH: SINGH, JASWANT GOSWAMI, P.K. SHINGAL, P.N.

CITATION:  1977 AIR 2308            1978 SCR  (1) 577  1977 SCC  (4) 301

ACT: Murder  charge-Conviction by High Court u/s. 302 Penal  Code on appeal by State against acquittal under that section  but conviction  u/s 326 I.P.C. by Session’s-  Non-production  by the Prosecution or non-summoning u/s. 311 Cr I.P.C., 1973 by Court,  of  the doctor who performed the  operation  is  not fatal when corroborated by dying declaration, autopsy report and  one of the eye- witnesses-Evidence Act (Act  1),  1872, ss. 32(1) and s. 45.

HEADNOTE: The  appellant, though charged u/s. 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  u/s. 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 u/s. 326 and convicted him u/s 302 and  sentenced him  to  imprisonment for life.  The High Court  rested  the conviction  on  the  dying  declaration  (Ex.  p.  9)  which received  ample corroboration from the testimony of; one  of the three eye-witnesses, Pappan (P.W. 5). Dismissing the appeal to this court u/s. 2(a) 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 s. 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]

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(3)(a) 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, P.W.  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  u/s  302  of  the  Indian  Penal  Code  must  be maintained. [584 B-C] (b)It  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 s. 302 of the Penal Code. The  offence committed by the accused squarely falls  within the  purview  of clause "thirdly" of s. 300  of  the  Indian Penal Code according to which culpable homicide is murder if the act 13-930SCI/77 578 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  v.  State of Bihar,  A.I.R.  1972  S.C.  952, followed.

JUDGMENT: CRIMINAL    APPELLATE    JURISDICTION:    Criminal    Appeal No. 342 of 1974. Appeal  under Section 2(a) 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 87/74. 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 (M.O. 1) on the  back of  his chest at 7.30 P.M. 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

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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 M.O. 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 2(a) of the Supreme Court  (Enlargement of  Criminal  Appellate Jurisdiction) Act, 1970 (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 deceased,took 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 (P.W.1), who was  going  to have his bath at Veliyam  Kadavu  and  Thommi Mathai  (PW.2)  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  (P.W. 2) and Gopala Kurup (P.W. 1) removed the deceased about 6 or 7  feet  towards the East whereafter Gopala Kurup  (P.W.  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  (P.W.  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 (P.W. 1) Thommi Mathai (P.W. 2) and Pappan (P.W. 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 (P.W.  II ) and some other persons arrived at the  scene  of occurrence,  that  in reply to the query made by  his  elder brother,  Geevarghese George (P.W. 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 P.W. 6, Dr. G. K. Pai, examined  his  person and found a stab injury over his left infrascapular area,  3 XI   c.m.,   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

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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 8.00 P.M.; 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  P.W.  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  K.G. 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 (P.W.15), Govinda Pillai (P.W. 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 9.30 P.M. 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  7.30 p.m. 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 (P.W. 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 (P.W. 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  3.00  A.M.;  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 P.W. 4,  Dr. v. 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

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2.00 P.M. 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  2.8 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 1.3 X .5  cm.  obliquely               placed on the back of chest 3 cm. below injury               No. 1.               (4)   Multiple  small abrasions over  an  area               3.5  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 M.O. 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. P.W.  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 (M.O. 1) which was  produced  before him  by Geevarghese George (P.W. 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 (P.W. 1), Thommi Mathai (P.W.  2)  and Pappan (P.W. 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 (P.W. 1)  and Thommi  Mathai (P.W. 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 (P.W. 5). Appearing  in support of the appeal, Mr. Raghavan has  urged

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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 (P.W. 5)  and  Geevarghese George  (P.W. 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  (P.W.  1) and Thommi Mathai (P.W. 2) which  has  been rejected  as untrustworthy by the trial court and  the  High Court or on the statement of Geevarghese George (P.W. 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 (P.W. 13) and Pappan (P.W.  5) cannot easily be brushed aside.  Pappan (P.W: 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 7.30 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  (P.W. 1) and Thommi Mathai (P.W. 2)  had  come running  lo the spot from the North that the  deceased  fell down  on the right side; that Gopal Kurup (P.W. 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 (P.W. 13) has also remained  unshaken in  cross-examination.   From his statement  which  receives corroboration  from  the statements of not only  Dr.  V.  K. Jayapalan  (P.W.  4)  and Dr. G. K. Pai (P.W.  6)  who  were examined  by the prosecution but also from the statement  of Dr.  Mathew  Varghese  (P.W.  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

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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  (P.W.  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 v. State of Bihar(1) 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 (1)A.I. R. 1972 S.C. 952. 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),

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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. S.R. Appeal dismissed.                             585