Parthasarathy R vs State Of Kerala

Gopinath P., J

This is an application for anticipatory bail.

Petitioner is the sole accused in Crime No.10/2022 of Kuzhalmannam police station, Palakkad district, which was originally registered alleging commission of offences under Sections 448, 341, 323 and 294(b) of the Indian Penal Code (IPC). Following the death of the husband of the de facto complainant, the commission of an offence punishable under Section 304 IPC is also alleged.

Allegation against the petitioner is that on 30.12.2021, at about 09.00 pm, the petitioner trespassed into the property of the de facto complainant, uttered obscene words and attacked the de facto complainant’s husband with his hands. In the scuffle, the de facto complainant’s husband fell down, causing an injury to his forehead. The enmity between the two allegedly arose on account of the fact that the de facto complainant’s husband had uttered obscene words to the mother of the petitioner earlier on the same day.

Sri. Vivek Venugopal, learned counsel appearing for the petitioner submits that the husband of the de facto complainant died about 19 days after the incident and the petitioner is now alleged to have committed an offence under Section 304 of the Indian Penal Code. It is submitted that by no stretch of imagination can it can be said that an offence under Section 304 of the Indian Penal Code has been committed by the petitioner, as the death of the husband of the de facto complainant was not proximate to the alleged attack by the petitioner. It is submitted that injuries suffered by the husband of the de facto complainant owing to the alleged attack by the petitioner were minor and he was treated for the same after the incident and was discharged on the same day. It is submitted that the attack by the petitioner if at all true, cannot be the reason for the death of the husband of the de facto complainant almost 19 days later on 18.01.2022. The learned counsel has placed reliance on the judgments of this Court in John Varghese V. Central Bureau of Investigation; 2009 (1) KHC 702; Raju P.M. V. State of Kerala and Others; 2021(1) KLD 811; Ramakrishna Panicker & anr v. State of Kerala, 1959 KLJ 150 & Thomas v. State of Kerala, 1991 KHC 392 to contend that the offence under Section 304 of the Indian Penal Code is not attracted. The decision of the Madhya Pradesh High Court in Nand Kishore v. State of M.P, 2019 Crl.L.J 5054 is relied on for the same purpose.

Sri. M.C Ashi, the Learned Public Prosecutor opposes the grant of bail. The facts and circumstances of the case are pointed out from the record. He has made available to me the postmortem certificate of the husband of the de facto complainant. Specific attention is drawn to the third antemortem injury noted in the postmortem certificate and the opinion as to the cause of death. The third antemortem injury on the body of the deceased is noted as under: -

‘’3. Fracture and anterior dislocation between the 3rd, 4th cervical vertebrae with callus formation. Spinal cord was partially liquefied at the IInd and IIIrd level of cervical vertebrae.’’

The opinion as to the cause of death is recorded by the doctor who conducted the postmortem as under:-

‘’DEATH WAS DUE TO THE BLUNT INJURY SUSTAINED TO NECK (INJURY NO.3)’’

Learned Public Prosecutor submits that going by the contents of the postmortem certificate, the injury sustained by the husband of the de facto complainant is on account of the attack by the petitioner and that was the only reason or the cause of his death. It is submitted that the mere fact that the deceased had died only 19 days after the incident is no reason to hold that the petitioner is not guilty of the offence under Section 304 of the Indian Penal Code. It is submitted that considering the facts and circumstances of the case, the petitioner is not entitled to anticipatory bail.

I have considered the contentions raised. Section 299 which defines ‘Culpable Homicide’ essentially in 3 parts. The first part deals with cases where death is caused by doing an act with the intention of causing death, the second with cases where death is caused on account of bodily harm which is likely to cause death and the third with cases where an act is done with the knowledge that he (the accused) is likely by his act to cause death. The decisions of this Court in Ramakrishna Panicker (supra), Thomas (supra) & John Varghese (surpa) essentially deal with the aspect of ‘knowledge’ for the 3rd part of Section 299 I.P.C. A reading of those judgments indicate that unless the accused had the knowledge that his actions might cause death, he cannot be prosecuted under the 3rd part (as explained above) of Section 299. The decision of the Madhya Pradesh High Court in Nand Kishore (sura) also takes the same view. In the facts of the present case, the petitioner had attacked the deceased. It appears that the deceased had fallen down and had suffered injuries to his spinal cord which, ultimately caused his death. In my opinion, the case may well fall within the 2nd part of Section 299 (as explained above). Therefore the decisions relied on may not really come to the aid of the petitioner.

The judgment of this Court in Raju (supra) has explained the essence of the offence punishable under Section 304 of the Indian Penal Code. This Court held that in order to drive home a conviction under Section 304 Part II IPC, the prosecution has to prove (i) that the act was done by the accused, (ii) that the said act caused death and (iii) that the act was done with the knowledge that it is likely to cause death. It was held that the act of a boat driver overloading his boat with the knowledge that the boat may sink (if overloaded) does not constitute knowledge for the purpose of Part II of Section 304. I am afraid that the said decision also does not come to the aid of the petitioner for I have already found that the case may well fall within the 2nd part of Section 299 (as explained above), in which case the punishment is under Part I of Section 304. In the facts of the present case, the petitioner had gone to the house of the deceased with the intention to attack him. He had entered into an altercation with the deceased. The deceased had fallen down and sustained injuries to his spinal cord. That injury, though not evident initially, led to the death of the husband of the de facto complainant. This cannot be compared with the fact situation in Raju (supra).

I am therefore clear in my mind that the petitioner is not entitled to anticipatory bail. This bail application will stand dismissed. However, I make it clear that none of the observations made above shall be treated as findings by this Court on the issues raised. They shall be treated only as observations for the purpose of considering the entitlement of the petitioner for anticipatory bail.