Thangappan vs State by Inspector of Police, Thuckkalay Police Station

N. Dhinakar, J.—The Appellant, who hereinafter will be referred to as "the accused", was tried before the learned Sessions Judge, Nagercoil at Kanyakumari in Sessions Case No. 81 of 1992, for an offence of murder, on the allegation that at 10.30 p.m. on 8.12.1990, he inflicted an injury on the head of Subbaiyan and as a result of the said injury, Subbaiyan died at 6.45 a.m. on 23.12.1990 at Palayamkottai Government Hospital, where he was undergoing treatment. He was also charged u/s 326 IPC. on the allegation that during the course of the same transaction, he caused grievous injury to P.W. 1, the wife of the deceased. The learned Sessions Judge, accepting the prosecution version, convicted and sentenced the accused to suffer imprisonment for life for the offence of murder and directed him to suffer rigorous imprisonment for a period of three years for the offence punishable u/s 326 IPC. The present appeal challenges the said conviction and sentence.

The facts necessary to dispose of the appeal can be briefly summarised as follows:

The deceased is the elder brother of the accused and P.W. 1 is the wife of the deceased. At about 2.00 p.m. on 8.12.1990, the daughters of the deceased went to collect tamarind fruits and a quarrel ensued between the daughters of the deceased and the daughters of the accused, who had also gone there to collect fruits. Words were exchanged between the girls and the information ultimately reached the respective parents. At about 10.30 p.m. on the same day, the deceased was sitting with his wife and son, Ravi, P.W. 2, in front of his house on a cot. The accused arrived at the spot, carrying a knife in his hand and questioned the deceased as to why the daughters of the deceased have abused his daughters in filthy language and so saying, inflicted a cut on the left side of the head. P.W. 1 intervened and asked the accused not to cut her husband and the accused inflicted a cut on her right elbow. On hearing the cries of P.Ws. 1 and 2, P.Ws. 3 and 4 rushed to the scene and the accused went away from the place. An auto was brought, in which, the deceased was placed and taken to the police station at Thackalay, where the deceased gave a statement to a Head Constable, P.W. 11. P.W. 11 recorded the statement given by the deceased and registered a case in Crime No. 1028 of 1990 against the accused u/s 324 IPC. Ex.P. 1 is the statement of the deceased and Ex.P. 8 is a copy of the printed first information report. The injured was sent to the hospital with a memo.

The injured, who was referred to the hospital, was taken and produced before P.W. 9, the Duty Doctor, at Government Hospital, Padmanabhapuram at 2.10 a.m. on 9.12.1990. The doctor, on examining Subbaiyan, found a cut injury on the left side of the head measuring 10x2x2 cms. The injured was sent to Kottar Government Hospital at Nagerocil Government Hospital at Nagercoil for further treatment. P.W. 1, who also suffered an injury, was examined by the Doctor and on her person, the Doctor found a cut injury on the elbow measuring 8x2x2 cms. exposing the bone. She was admitted at the Government Hospital, Padmanabhapuram, where X-ray was taken. Ex.P 4 is a copy of the wound certificate issued in respect of the injury noted on P.W. 1 by the Doctor, opining that the injury suffered by P.W. 1 is grievous in nature. Sub-baiyan, who was referred to Kottar Government Hospital at Nagercoil was later directed to be taken to the Government Hospital, Palayamkottai, where, while undergoing treatment, he died at 6.45 a.m. on 23.12.1990.

In the meantime, the crime, which was registered by P.W. 11, was taken up for investigation by him, who on reaching the scene of occurrence, prepared an observation mahazar, Ex.P. 9 and also drew a rough sketch, Ex.P. 10. Then he proceeded to Kottar Government Hospital, but could not record the statement of Subbaiyan, as he was found unconscious P.Ws. 1 and 2 were questioned and their statements were recorded. He questioned other witnesses in the case. Further investigation was taken up by the Sub Inspector of Police, P.W. 12 on 17.12.1990. He questioned the witnesses, who were already questioned by P.W. 11. The accused was arrested on 17.12.1990 near a church. The accused gave a statement and in pursuance of the admissible portion of the said statement, Ex.P. 12, the accused took the police party to a place from where M.O. 1 was produced, which was seized under a mahazar Ex.P. 11, attested by witnesses. The accused was brought to the police station and later sent to Court for remand. After the receipt of the death intimation, Ex.P.7, from the hospital authorities, the crime was altered to one u/s 302 IPC and investigation was taken up by P.W. 15, the Inspector of Police, Thackalay, P.W. 15 after taking up investigation, commenced inquest at 6.00 a.m. on 24.12.1990 and during the inquest, he examined the witnesses and recorded their statements. Ex.P. 6 is the inquest report. After the inquest, P.W. 15 handed over the dead body to a police constable, with a requisition for conducting autopsy.

On receipt of the requisition, Ex.P. 5, P.W. 10, the Assitant Professor of Pathology, Tirunelveli Medical College, Tirunelveli, conducted autopsy on the dead body of Subbaiyan at 11.20 a.m. on 24.12.1990 and found the following:

Left side of face swollen with ecchymosis of left eye noted. One sutured wound (15 cm) seen on the left side of the scalp. On'' removing the sutures, it is found to be an incised wound. It is infected and foul smelling. The entire scalp showed diffuse contusion and is more marked in the occipital regions of the scalp.

On further exploration, the brain was found protruding through the long defect on the left parietal bone (10 x 5 cm). Crack fracture of the frontal bone in the midline to a length of 7 cms noted.

Brain: - Oedema of the brain noted. Extensive laceration of the left temporal lobe, left occipital lobe and left portion of the cerebellum noted. Both occipital lobes showed diffuse haematoma.

Base of Skull- Defect on the left parietal bone noted in the middle cranial fossa.

Heart: All the chambers empty.

Lungs: Cut section congested.

Hyoid Bone: Intact

Stomach: contained 100 ml of chocolate colour fluid.

Mucosa: Pale.

Liver, Spleen, and Kidneys: Cut section congested.

Urinary Bladder: Empty.

He issued Ex.P. 6, the post-mortem certificate, with his opinion that the deceased died on account of the head injuries sustained by him.

In the meantime, P.W. 15 questioned the doctor, P.W. 10 and recorded his statement. He verified the investigation already conducted by P.Ws. 11 and 12. He also issued a requisition to the Magistrate to record the statements of P.Ws. 3 and 4 u/s 164 Code of Criminal Procedure. The material objects were sent to Court with a request to forward them for analysis. After, completing the investigation, final report was filed against the accused on 11.5.1991.

When the accused was questioned u/s 313 of the Code of Criminal Procedure on the incriminating circumstances appearing against him, he denied all the circumstances and stated that he fell down from a Palmyra tree about 13 years prior to the date of occurrence and both his legs were deformed and that he could be pushed down even by a small child. He has stated that the deceased is a magician and was eking out his livelihood by practising black magic and on certain occasions, he and P.W. 1 were also beaten by the public.

The prosecution before the trial Court examined P.W. 10, the Doctor, who conducted autopsy on the dead body of Subbaiyan, to show that the deceased died on account of the injury suffered by him. He deposed that on conducting autopsy, he found an injury on the head and that the deceased died on account of the said injury. The accused also does not dispute that the deceased suffered an head injury. Therefore, the prosecution has succeeded in establishing that the deceased suffered an injury on the head, on 8.12.1990 at 10.30 p.m. and died on 23.12.1990 at about 6.45 a.m.

The prosecution before the trial Court examined P.Ws. 1 to 4 as eye witnesses and of them, P.W. 1 is the wife and P.W. 2 is the son of the deceased. P.Ws. 3 and 4, who are neighbours, turned hostile. The evidence of the wife and the son of the deceased show that at about 10.30 p.m. on the date of incident, when they were sitting in front of the house and talking with the deceased, the accused went there and inflicted a blow on the head of the deceased with a knife, after questioning the deceased regarding the conduct of the deceased''s daughters in abusing his daughters. It is the further case of the witnesses that after the incident, the deceased was removed to the police station, where he gave a complaint to P.W. 11 which was reduced into writing and that the said complaint is Ex.P. 1.

The learned Counsel appearing for the Petitioner submits that since only the thumb impression is seen affixed in Ex.P. 1, it has to be held that the deceased should have been unconscious and that the police officer after taking the thumb impression in blank paper must have written the contents thereafter and the deceased must have become unconscious as he has suffered a head injury. It is his submission that the said complaint, Ex.P. 1, therefore, cannot be accepted and acted upon by this Court to give a finding that the said injury was inflicted by the accused. We are unable to accept the said argument. If it is the case of the accused that the deceased was a literate and therefore knew how to sign, then it is for them to probabilise the said fact or atleast to put that as a suggestion to the witnesses, when they were in the box No suggestion was put to any of the witnesses that the deceased was a literate and that he could sign. In this background, the evidence of the doctor, P.W. 9, in cross-examination, assumes importance. In the cross-examination, P.W. 9, had stated that the deceased would not have lost his conscious after receipt of the injury. This evidence of the doctor, P.W. 9, supports the evidence given by P.Ws. 1, 2 and 11 that the deceased was very much conscious and gave a statement to the police authorities. Though several questions were put to P.Ws. 1 and 2, nothing was elicited in their cross-examination to show that the deceased could not have been in a position to give a statement at the time when he gave Ex.P. 1. But on the contrary, they have reiterated their stand that the deceased gave a statement to the Investigating Officer and P.W. 1 stated that when her husband gave a statement to the police officer, he was very much conscious. In view of the positive evidence of the doctor, P.W. 9, the contention of the counsel that since the signature was not obtained in Ex.P. 1, it cannot be acted upon, is to be rejected though we may have to leave out Ex.P. 1 from consideration for arriving at a finding as to the guilt of the accused, for another reason which will be shortly adverted by us.

The contention of the counsel that the evidence of P.Ws. 1 and 2 cannot be accepted, as the other two independent witnesses turned hostile, is also to be rejected, since P.Ws. 1 and 2 being the wife and the son of the deceased and the occurrence having taken place in front of the house of the deceased, they are natural witnesses. It is not the case of the defence that they were not present in the village on that day. The occurrence also took place at 10.30 p.m and therefore both the witnesses must have been present at the scene of occurrence as claimed by them. We, therefore, accept their evidence, in the absence of any material elicited by the defence to hold otherwise. Once we accept the evidence of P.Ws. 1 and 2, there can be no doubt in our mind that the injury found on the deceased was inflicted by the accused. We also, therefore, hold that the deceased suffered injury at 10.30 p.m. on 8.12.1990 and that the said injury was inflicted by the accused.

The question that is to be decided by us is the nature of offence committed by the accused. The learned Counsel appearing for the Appellant/accused strenuously contends that the prosecution miserably failed to establish the cause of death. In support of his plea, he drew out attention to the fact that the deceased though sustained the injury on 8.12.1990, died only on 23.12.1990 and that the prosecution did not examine the Doctor, who treated him at Kottar Government Hospital, Nagercoil, as well as the other Doctor, who treated him at the Government Hospital, Palayamkottai. It is his further submission, that, though the prosecution examined P.W. 9 to say that he treated the deceased Subbaiyan for the injuries noted by him at 2.10 p.m. on 9.12.1990, no wound certificate or a copy of the accident register was marked. The contention of the counsel, is that, the deceased, who according to the prosecution was found in a fit condition to give a statement inspite of the fact that injury was on the head, died on 23.12.1990 and in the absence of the nature of treatment given by the Doctors, it will not be safe to convict the accused for an offence of murder on the ground that the injury inflicted by him caused his death. He also drew our attention to certain findings, which were noted by P.W. 10, the post-mortem Doctor, in Ex.P.6, the post-mortem certificate. A perusal of Ex.P. 6, the post-mortem certificate, shows that when the Doctor removed the sutures at the time of post-mortem, he found that the injury was infected and foul smell was emanating from the said injury. He also noticed oedema of the brain. Counsel submits that though the Doctor has stated that the deceased died on account of the injury, the prosecution did not elicit any answer, when he was in the box, that the formation of pus and the foul smell was on account of the injury and not on account of any supervening cause. We find some force in the contention. P.W. 9 though was examined in Court, did not mark any wound certificate in respect of the injuries noted by him on the deceased though the prosecution thought fit to mark Ex.P.4, the wound certificate, issued by him in respect of the injury noted by him on P.W. 1. The prosecution had no explanation to offer, as to why the wound certificate, issued by the said Doctor for the injuries noted on the deceased was not marked. The prosecution also did not examine the Doctor, who treated the deceased at the Kottar Government Hospital, Nagercoil. The nature of treatment received by the deceased at Kottar Government Hospital at Nagercoil as well as at Palayamkottai Government Hospital remain a mystery to the Court. The prosecution neither examined the Doctors, who treated the deceased, nor did they produce any document to show the nature of treatment received by him. They did not even mark the case sheet, which would have shown the nature of treatment given by the Doctors to the deceased. The prosecution, it looks, remained satisfied by examining P.W. 9, the Doctor, who initially gave the first aid and the Doctor, P.W. 10, who conducted the postmortem and they did not think it necessary to examine other Doctors, or mark any document to show as to the nature of treatment given to the deceased before the death, after he was given first aid, while he was in the two Government Hospitals. The foul smell from the wound, noticed by the post-mortem Doctor, and oedema, which is a condition characterised by excess of watery fluid collecting in the cavities or tissues of the body, as defined by the New Oxford Dictionary, show that the deceased after sustaining the injury and during the period he was in the hospital, developed certain other complications. In the above background, it is for the prosecution to establish that the complications noticed by the Doctor on the dead body were on account of the injury. In the absence of any evidence from the side of the prosecution that the said complications were on account of the injury, this Court has only to presume that those complications were on account of some other supervening cause and not on account of the injury. Once we hold that there is a doubt as to the cause of the complications viz., whether they were due to the injury or whether they were due to some other supervening cause, then, this Court cannot give a finding that the deceased died on account the complications arising directly out of the wound. Therefore it cannot be said that the deceased died on account of the injury. Once this finding is arrived at, it becomes difficult for this Court to accept Ex.P. 1, the statement given by the deceased, since Ex.P. 1, can be made admissible only if it relates to the cause of death or as to any of the circumstances of the transaction which resulted in his death. We have held earlier that the cause of death was not established by the prosecution, as there are materials to show that the complications were on account of the circumstances of the transaction, resulting in his death. Therefore, application of Section 32 of the Evidence Act becomes difficult. Out view is also fortified by the judgment of a Division Bench of this Court in Kalimuthu v. State ( 1989 L.W.(Crl.)295 ). The Division Bench concurring with the judgment of the Mysore High Court in Mallappa Sivalingappa Ghanagai v. State of Mysore (1962 M.L.J. (Crl) 25), held that the dying declarations will become relevant and admissible only if they relate to the circumstances of the transaction which result in his death. The Judicial Committee in Pakala Narayanaswamy-v. Emperor (1939) 1 M.L.J. 756 while dealing with the expression "any of the circumstances of the transaction which resulted in his death", observed that the "circumstances" must be circumstances of the transaction: general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible. But statements made by the deceased that he was proceeding to the spot where he was in fact killed or as to his reasons for so proceeding, or that he was going to meet a particular person or that he had been invited by such person to meet him would each of them be circumstances of the transaction and would be so whether the person was unknown, or was not the person accused. Such a statement might indeed be exculpatory of the person accused. ''Circumstances of the transaction'' is a phrase no doubt that conveys some limitations and it is not as broad as the analogous used in ''circumstantial evidence'' which includes evidence of all relevant facts. It is on the other hand narrower than ''res gestae''. Circumstances must have some proximate relation to the actual occurrence.

When we apply the above principles of law and consider the views of the learned Judges in the above judgments, cited supra, we are unable to accept Ex.P. 1, the statement given by the accused, as statement relevant u/s 32 of the Evidence Act and admissible as dying declaration of the deceased. We, therefore, do not place any reliance upon Ex.P. 1.

Though we have rejected Ex.P. 1 as inadmissible, we still have the evidence of P. Ws. 1 and 2, who were witnesses to the incident and who, as we have already held, are the natural witnesses. We accept their evidence and on the basis of the oral evidence of P.W. 1 and P.W. 2, we hold that the accused inflicted the injury on the head of the deceased. But the prosecution did not establish that the injury caused the death of the deceased. Therefore, We, cannot but acquit the accused u/s 302 IPC; but the nature of injury noticed on the deceased, by P.W. 9, the Doctor, indicates that it is a grievous injury. The Doctor, P.W. 9, also stated in his evidence that it is a grievous injury. On the discussion made above, though the accused is to be acquitted of the charge of murder, he is to be convicted u/s 326 IPC, for causing grievous injury to Subbaiyan, the deceased, and accordingly he is convicted. He is sentenced to five years rigorous imprisonment for the said conviction. The evidence of P.W. 1 coupled with the medical evidence as brought out through P.W. 9 shows that P.W. 1 also suffered grievous injury at his hands and therefore, we confirm his conviction and sentence u/s 326 IPC.

In the result, the conviction of the Appellant u/s 302 IPC. is set aside and instead, he is convicted u/s 326 IPC, and for the said conviction, he is sentenced to suffer rigorous imprisonment for five years. The conviction and sentence imposed on the Appellant u/s 326 for causing grievous injury to P.W. 1 are confirmed with a direction that the sentences of imprisonment will run concurrently. The accused will be entitled for set off. The learned Sessions Judge will take steps to commit the accused to jail to undergo the remaining period of sentence. With the above modification, the appeal is disposed of.