31 October 1996
Supreme Court
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STATE OF KERALA Vs SASI

Bench: A.S. ANAND,K.T. THOMAS
Case number: Crl.A. No.-000397-000397 / 1996
Diary number: 16997 / 1995
Advocates: Vs V. B. SAHARYA


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PETITIONER: STATE OF KERALA

       Vs.

RESPONDENT: SASI

DATE OF JUDGMENT:       31/10/1996

BENCH: A.S. ANAND, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      On 2.11.1990  at about  4.15 p.m.,  the respondent gave blows to  the deceased Kunhuvareed on his head with a bamboo stick. Those  blows resulted  in fracture  of the  skull and multiple lacerated  wounds on the head with resultant damage to  the   brain.  The  deceased  died  in  the  hospital  on 13.11.1990 at  about  3.25  a.m.  Case  was  registered  and investigation  taken   in  hand.  After  completion  of  the investigation, the  respondent was  committed to stand trial to the  Court of  Sessions for  an offence under Section 302 IPC. The prosecution examined 20 witnesses including PWs 15, 16 &  17 -the  three medical witnesses, and PWs. 1, 2 & 3 as the eye-witnesses.  At the  trial, however, PW1 & PW2 turned hostile,    after     admitting    the     occurrence     to have taken  place on the date and at the time alleged by the prosecution. The  learned Trial Court, after appreciation of evidence and  considering  the  defence  documents  and  the statement of  the respondent, found the respondent guilty of an  offence   under  Section   302  IPC  and  convicted  him accordingly. He  was sentenced  to undergo  impisonment  for life vide judgment dated 15.11.1991. The respondent’s appeal to the  High Court  partly succeeded and while accepting the genesis of  the prosecution case, the High Court altered the conviction from  under Section  302 IPC  to  the  one  under Section 326 IPC and sentenced the respondent to undergo five years RI  vide judgment  dated 6.4.1995. The State has filed this appeal  against the  acquittal of the respondent for an offence under Section 302 IPC by special leave.      We have heard learned counsel for the parties.      The respondent  has not  questioned his  conviction. He has not  filed any  S.L.P. A  perusal of the evidence on the record clearly  establishes that the occurence took place in the  manner   suggested  by  the  prosecution  and  that  on 2.11.1990 at  about 4.15  p.m. at  the  Toddy  shop  in  the village, the  respondent gave  blows to  the deceased on his heat with  the bamboo  stick. The evidence also reveals that the deceased  was  removed  to  the  hospital  in  seriously injured condition  and he  remained in coma till he breathed his  last   on  13.11.1990.   The  prosecution   has,  thus, successfully established  that it was the respondent who had

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caused injuries  at the  head of the deceased on the fateful night. The  only   question, however, is about the nature of offence.      The trial  court while  dealing with  the  nature    of offence observed :      "The next question to be considered      is  as   to  what  is  the  offence      committed by  the accused. If a man      deliberately strikes another on the      head with a heavy log of wood or an      iron rod  or even  a lathi so as to      cause a  fracture of  the skull  he      must,  in   the  absence   of   any      circumstance     negativing     the      presumpation  be   deemed  to  have      intended to  cause the death of the      victim of  such bodily  injry as is      sufficient tocause death. Since the      accused gave  3 blows  by using MO1      on the head of deceased Kunhuvareed      as a  result of  which the deceased      fell  down   on  sustaining   fatal      injuries  on   the  head   and  the      circumstances  indicate   that  the      assault was  premeditated  and  the      three blows on the head of deceased      were   not   accidental   and   the      injuries  were  sufficient  in  the      ordinary course  of nature to cause      death, the case would squarely fell      within the  ambit of clause thirdly      of Section  300 IPC and the accused      murder punishable under Section 302      of the Indian Penal Code.      The High  Court, as  already noticed,  did not disagree with the  prosecution case  regarding the  complicity of the respondent with  the crime,  however, on the question of the offence, the High Court opined:      "On the evidence, there is no doubt      the  accused  had  caused  grievous      injuries upon  the  deceased,  with      MO1.  Death  of  the  injured  took      place nearly  two weeks  after  the      incident   while   he   was   under      treatment. In  our view,  it is not      possible to  hold on  the materials      that   the   accused   had   either      committed   murder    or   culpable      homicide not  amounting to  murder,      but only  caused grievous  injuries      on the  deceased  punishable  under      Section 326 IPC."      We find  it difficult  to subscribe  to the view of the High Court. To say the least, the approach of the High Court appears to  be totally  mistaken and not tenable in law. The evidence led  by the  prosecution through  the statements of PW15 Dr.  Sarala Devi,  PW17 Dr. Mohanlal, the Neuro Surgeon and Dr.  Joseph T.  John, PW16,  who had  performed the post mortem examination  on the deceased, un-mistakably shows the seriousness of  the injuries  inflicted on  the deceased.  A reference in this connection to injury, recorded as No.22 in the post mortem report, would be relevant. That injury reads thus :      "Underneath and  around injuries  9      to  14,   the  scalp  was  contused

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    reddish brown involving whole front      quadrants. The  frontal bones  were      comminutedly  fractured  and  along      with left  parietal bone  showed  a      defect of missing bone 10 x 7.0 cm,      transversely with lower back corner      at  the   level  of   top  of  ear,      exposing  intact   dura  underneath      covered by  dark brown  blood  clot      0.1-0.3 cm thick. The dura over the      frontal lobe of brain was lacerated      into a  defect 5 x 3.0 cm, exposing      the brain underneath. Brain had its      frontal  and  left  temporal  poles      semisolid for  a depth  of  0.5  cm      covered by 0.1-0.2 cm thick reddish      brown blood  clot. Greenish  yellow      thin layer  of pus  over  duramater      and arachanoid  matter. Brain (1260      g) was  oedematous and the multiple      punctate bleeding  in white matter.      The floor  of front  cranial fossae      were    comminutedly     fractured.      Reddish   brown   infiltration   of      clotted   blood   around   fracture      sites."      According to the medical opinion, the injuries suffered by the  deceased were  sufficient in  the ordinary course of nature to  cause death.  The  evidence  on  the  record  has established that the respondent gave three blows on the head of the  deceased and  those blows  were intentional  and not accidental. The  attack was  premeditated on a vital part of the body. Keeping in view the damage which it caused and the medical  opinion  to  the  effect  that  the  injuries  were sufficient in  the ordinary  course of nature to cause death and that the death was attributable directly to the injuries received by  the deceased  at the hands of the respondent on 2.11.1990, the  case of  the respondent  would squarely fall within the  ambit of  Clause 3rdly  of Section  300 IPC. The High Court, in our opinion, fell in error in holding, in the face of the evidence on the record that the respondent could be attributed intention to cause grievous injuries only. The opinion expressed  by the trial court was undoubtedly sound. Since, the offence is covered by Clause 3rdly of Section 300 IPC, the  respondent was liable to be punished under Section 302 IPC.  We, therefore,  set aside the findings of the High Court as regards the nature of the offence and hold that the respondent is  guilty of  an offence  of  murder  punishable under Section  302 IPC and consequently allowing this appeal we restore  the judgment  of the  trial court in that behalf and sentence  the respondent  to  undergo  imprisonment  for life.      The bail  of the  respondent are cancelled. He shall be taken into  custody to  undergo the  remaining part  of  the sentence.