Francis C.No.2067 , Central Prison, Trivandrum vs State Of Kerala

P.B.Suresh Kumar, J.

The sole accused in S.C.No.796 of 2015 on the files of the Additional Sessions Court-IV, Thiruvananthapuram is the appellant. He challenges in this appeal, the conviction entered and the sentence passed against him in the said case.

The case of the prosecution as disclosed in the final report is that on 26.08.2014, at about 7.30 a.m., while the accused and his mother Lilly were walking together through the by-lane near their house, the accused picked up a quarrel with Lilly for not having given him money for consuming alcohol and hit her successively using a granite stone. It was also the case of the prosecution that when Raymond, one of their neighbours intervened in the quarrel, the accused hit Raymond also using the granite stone and when Raymond warded off the hit, the stone fell on his leg causing injuries. It was the further case of the prosecution that the accused hit the granddaughter of Raymond also on her face. The mother of the accused died later on 29.08.2014 on account of the injuries sustained by her in the occurrence.

A case was registered on the date of occurrence by Poonthura Police based on the statement given by Raymond as Crime No.1182 of 2014 under Sections 324 and 308 of Indian Penal Code (IPC). Later, on the death of Lilly, the offence punishable under Section 302 IPC was also added in the case. After the investigation, final report has been filed against the accused alleging commission of offences punishable under Sections 324, 308 and 302 IPC.

On committing the accused for trial, the Court of Session framed charge and read over the same to the accused. The accused pleaded not guilty. The prosecution thereupon examined 14 witnesses as PW1 to PW14 and proved as many as 14 documents as Exts.P1 to P14. MO1 is the material object in the case.

Among the witnesses examined, PW1 is Raymond, who lodged Ext.P1 First Information Statement, PW2 and PW3 are persons cited by the prosecution as eye witnesses to the occurrence, PW4 is the doctor who examined PW1 and issued Ext.P2 wound certificate, PW5 is the doctor who examined the granddaughter of PW1 and issued Ext.P3 wound certificate, PW7 is the brother of the accused, PW11 is the Police Surgeon who conducted autopsy on the body of the deceased and issued Ext.P7 postmortem certificate and PWs 12 to 14 are the police officers who conducted the investigation in the case. The material object MO1 is the granite stone allegedly used by the accused for causing injury to the deceased and PW1.

After the prosecution tendered its evidence, the accused was questioned under Section 313 of the Code of Criminal Procedure (the Code) as regards the incriminating circumstances brought out by the prosecution against him. The accused denied the same and stated that he is innocent. Since the Court of Session did not find the case to be one fit for acquittal under Section 232 of the Code, the accused was called upon to enter on his defence. The accused, however chose not to adduce any evidence.

On an appraisal of the materials on record, the Court of Session found the accused guilty of the offences punishable under Sections 324, 308 and 302 IPC and sentenced him to undergo imprisonment for life and pay a fine of Rs.2,00,000/- for the offence punishable under Section 302 IPC, rigorous imprisonment for a period of two years and pay a fine of Rs.5,000/- for the offence punishable under Section 324 IPC and rigorous imprisonment for a period of five years and pay a fine of Rs.10,000/- for the offence punishable under Section 308 IPC. In default of payment of fine, the accused was also sentenced to undergo rigorous imprisonment for a period of three years for the offence punishable under Section 302 IPC, three months for the offence punishable under Section 324 IPC and six months for the offence under Section 308 IPC. The substantive sentences were ordered to run concurrently. It is aggrieved by the said decision of the Court of Session that this appeal is preferred by the accused.

Heard the learned counsel for the appellant as also the learned Special Public Prosecutor.

The learned counsel for the appellant contended that the seizure of MO1 granite stone has not been proved satisfactorily by the prosecution. Similarly, it was contended by the learned counsel that the eye witnesses to the occurrence are all interested and tutored witnesses and that there were serious contradictions in their depositions. It was also argued by the learned counsel that at any rate, the evidence let in by the prosecution does not indicate that the accused inflicted several blows on the deceased. It was also contended by the learned counsel that the injuries noted on the body of PW1 as recorded in the body note attached to the First Information Statement are not consistent with the evidence tendered by the occurrence witnesses. The essence of the submissions made by the learned counsel for the appellant was that the evidence let in by the prosecution is not sufficient to justify the conviction of the appellant for the offences alleged and at any rate, the appellant is entitled to the benefit of doubt. The learned Special Public Prosecutor refuted the arguments advanced by the learned counsel for the appellant by taking us elaborately through the oral and documentary evidence in the case.

The point that arises for consideration is whether the conviction entered and the sentence passed against the appellant by the Court of Session, are sustainable in law.

As noted, the gist of the prosecution case is that on 26.08.2014, at about 7.30 a.m., while the accused and his mother Lilly were moving together through the by-lane near their house, the accused picked up a quarrel with Lilly for not having given him money for consuming alcohol and hit her successively using a granite stone, and she died on account of the injuries sustained by her on 29.08.2014. The first and foremost question to be considered, therefore, is whether the death of Lilly is a homicide.

The doctor who conducted autopsy on the body of the deceased was not examined in the case. Instead, another doctor who was working with the doctor who conducted the autopsy and who was conversant with the signature of the doctor who conducted the autopsy was examined in the case as PW11. Ext.P7 is the certificate issued by the doctor who conducted the autopsy. The following are the ante-mortem injuries found by the doctor who conducted the autopsy as recorded by her in Ext.P7 certificate:

INJURIES (ANTE MORTEM)

Contusion 11x5x0.5cm on right side and back of head just behind ear.

Contusion 3x2x0.3cm on right side of head overlying frontal eminence.

Contusion 2x2x0.2cm on left side of head overlying frontal eminence. Brain showed diffuse bilateral subarachnoid bleed, interhemispherical bleed, contusion 2x2x0.2cm on inner aspect of middle of left parietal lobe and signs of raised intra cranial tension. Left side of anterior cranial fossa fractured and fragmented.

Contusion involving whole thickness of front half and left border of tongue.

Abrasion, 2.5x2cm on right side of face 1 cm in front of ear.

Multiple spotted abrasions over an area 1.5x1cm on right side of face 2cm outer to eyebrow.

Abrasion 1x1cm on outer aspect of right elbow.

Multiple small abrasions over an area 2x1cm on the front of right knee.

Abrasion 2x1cm on inner aspect of root of right big toe.

Contusion 4x3x2.5cm on right side of front of chest overlying middle of right collar bone

Fracture of V to VIII ribs on right side of chest at their ankles.

The cause of death of the deceased certified in Ext.P7 certificate is “death was due to head injury”. When PW11 was questioned after showing her MO1 granite stone, she deposed that injury Nos.1 to 3 could be caused using MO1. In cross-examination, the attempt of the learned counsel for the appellant was to establish that the injuries noted on the body of the deceased were sustained on account of a fall over a pile of rubbles. In re-examination, on a question put to PW11 as to whether injury No.3 is independently sufficient to cause death, she answered in the affirmative. PW11 also answered in the affirmative on the question put to her in re-examination as to whether the death was due to the combined effect of injury Nos.1 to 3. In the nature of the injuries sustained by the deceased and the evidence tendered by PW11, we agree with the finding rendered by the Court of Session that the case on hand is a case of homicide.

The next question is whether the prosecution has established beyond reasonable doubt that it was the appellant who caused the death of the victim. In order to consider the said question, it is necessary to refer to the evidence let in by the prosecution to prove the occurrence and motive for the same. The evidence let in by the prosecution in this regard consists of the evidence of Pws. 1 to 3 and 7.

PW1 deposed that on 26.08.2014, at about 7.30 a.m., when he was going to the nearby shop along with his granddaughter, he found on the street the accused hitting on the head of his mother with a stone. PW1 deposed that when he attempted to prevent the accused from hitting his mother, the accused attempted to hit PW1 also with the very same stone and when PW1 warded off the said attempt, the stone fell on the body of PW1 and thereby caused injury to his leg. PW1 deposed that had he not warded off the attempt of the accused, he would have died on account of the injury attempted to be inflicted on him by the accused. PW1 deposed that the accused assaulted his granddaughter also on her face and leg. PW1 deposed that he found by that time, the deceased lying in a pool of blood on the road. PW1 affirmed that it is he who gave Ext.P1 First Information Statement. PW1 also identified MO1 as the stone used by the accused for hitting the deceased.

PW2 deposed that he knows the accused, and on 26.08.2014, at about 7.30 a.m., he saw the accused hitting his mother on her face and head using a stone. He also deposed that when PW1 attempted to prevent the accused from hitting his mother, the accused hit on the head of PW1 also using the stone and as PW1 could ward off the said hit, the stone fell on his leg. PW2 also identified MO1 as the stone used by the accused to hit the deceased. PW3 also deposed almost on similar lines with the evidence tendered by PW1. PW3 also identified MO1 as the stone used by the accused to hit the deceased. PW7 who is the brother of the accused is not an eye witness to the occurrence. He was examined by the prosecution to prove the motive of the accused. PW7, however, turned hostile.

On an evaluation of the evidence aforesaid, we find that the evidence tendered by PWs 1 to 3 that the accused hit on the head and face of the deceased using MO1 granite stone and also that he hit PW1 and his granddaughter, has not been discredited in any manner whatsoever by the accused in cross-examination. Even though the prosecution could not establish the motive of the accused in causing injury to the deceased, we are in agreement with the finding rendered by the Court of Session that the prosecution has established beyond doubt that on 26.08.2014, at about 7.30 a.m., while the accused and his mother Lilly were moving together through the by-lane near their house, the accused hit on the head and face of Lilly using MO1 granite stone and that when PW1 attempted to prevent the accused from the said act, the accused hit him also with the granite stone which when warded off by PW1, fell on his body causing injury to him. We are also in agreement with the finding rendered by the Court of Session that the prosecution has established beyond doubt that the accused assaulted the granddaughter of PW1 also in the course of the occurrence.

No doubt, from the evidence tendered by Pws.1 to 3, it can be inferred that the accused has committed the offences punishable under Sections 324 and 308 of the IPC. A doubt however arose as to whether on the proved facts, the Court of Session was justified in holding the appellant guilty of the offence punishable under Section 302 IPC. When the learned Special Public Prosecutor was required to address arguments on this aspect namely, whether the facts disclosed would make out a case of “culpable homicide not amounting to murder” punishable under Section 304 IPC or “murder” punishable under Section 302 IPC, the learned Special Public Prosecutor argued persuasively, after referring to the proved facts, that the prosecution has made out a case of murder punishable under Section 302 IPC. The argument advanced by the learned Special Public Prosecutor in this aspect was that having regard to the places on the head of the deceased where injury Nos.1 to 3 were inflicted by the accused, an intention on the part of the accused to cause the death of the deceased could certainly be inferred and if that be so, the case would fall under clause (1) of Section 300 IPC. Alternatively, it was also argued by the learned Special Public Prosecutor that if an intention on the part of the accused to cause the death of the deceased cannot be inferred from the facts of the case, at any rate, it is a case where an intention on the part of the accused to cause bodily injuries on her, sufficient in the ordinary course of nature, to cause death can be inferred and if that be so, the case would still fall under clause (3) of Section 300. To bring home the point that the intended injuries are sufficient in the ordinary course of nature to cause death, the learned Special Public Prosecutor relied on the evidence tendered by PW11 that injury No.3 is independently sufficient to cause death.

We have examined the arguments advanced by the learned Special Public Prosecutor in this context. As noted, the case of the prosecution is that while the accused and his mother Lilly were moving together through the by-lane near their house, the accused picked up a quarrel with Lilly for not having given him money for consuming alcohol and hit her successively on the head and face using a granite stone. There is no case for the prosecution that MO1 was a stone carried by the accused to be used as a weapon, nor is there any evidence to that effect. In other words, the granite stone used by the accused to inflict injuries on the deceased was one picked by him from the street through which they were walking. From the very allegation that the accused inflicted injuries on the deceased in the midst of a quarrel using a granite stone picked by him from the street, it could be inferred that the acts committed by the accused were not premeditated, but caused in the heat of passion upon a quarrel between the son and mother. In other words, the contention that the accused had the intention, namely the mens rea to cause the death of the deceased is too far-fetched and therefore, cannot be accepted. It is all the more so since the allegation by the prosecution is that the accused did the acts aforesaid as the deceased refused to pay money to the accused for consuming liquor. If that be so, clause (1) of Section 300 cannot have any application.

But from the conduct of the accused, it could certainly be inferred that the accused committed the objectionable acts with the intention of causing bodily injury to the deceased, especially since he used a granite stone to inflict the injuries. If so, the case would fall under clause (3) of Section 300 IPC and the accused can be convicted for murder under Section 302 IPC, if the injuries intended to be inflicted by the accused on his mother are sufficient in the ordinary course of nature to cause death. On the other hand, if the injuries intended to be inflicted are only injuries as are likely to cause death, the offence would fall only under clause (2) of Section 299 IPC and the accused can be convicted only for culpable homicide not amounting to murder under Part I of Section 304 IPC. It is now settled that the distinction between a bodily injury “likely to cause death” and a bodily injury “sufficient in the ordinary course of nature to cause death” is real and the difference between clause (2) of Section 299 and clause (3) of Section 300 is one of degree of probability of death resulting from the intended bodily injury. The words “likely to cause death” in clause (2) of Section 299 convey the sense of probable as distinguished from a mere possibility and the words “sufficient in the ordinary course of nature to cause death” mean that death will be the “most probable” result of the injury, having regard to the ordinary course of nature [See Augustine Saldanha v. State of Karnataka, (2003) 10 SCC 472]. It is also settled that the question whether the injury intended to be inflicted by the accused on the deceased is sufficient to cause death in the ordinary course of nature, is purely inferential which has nothing to do with the intention of the offender and has to be decided objectively having regard to the degree of probability of death [See Virsa Singh v. State of Punjab, 1958 SCR 1495]. In Reg. v. Govinda, 1876 SCC OnLine Bom 2, the view taken by the Bombay High Court was that the question whether the injury intended to be inflicted is one which is “likely to cause death” or one which is “sufficient in the ordinary course of nature to cause death” can be generally resolved having regard to the nature of the weapon used.

Reverting to the facts, as noted, PW11 has deposed in re-examination that injury No.3 noted on the body of the deceased at the time of autopsy is independently sufficient to cause death. In the same breath, PW11 has also deposed that the death of the victim was due to the combined effect of injury Nos.1 to 3. In other words, the stand taken by PW11 can be understood as injury Nos.1 to 3 together are sufficient to cause death. Inasmuch as death occurred, PW11 was justified in taking such a stand. But the question before us is whether injury Nos.1 to 3 are sufficient, in the ordinary course of nature, to cause death. As indicated in the decisions referred to in the preceding paragraph, an answer to the said question is to be inferred from the facts and circumstances of the case, objectively.

We have extracted in paragraph 12 above, the ante-mortem injuries noted on the body of the deceased by the doctor who conducted the autopsy. The cross-examination of PW11 by the learned counsel for the appellant indicates that the attempt made by the learned counsel was to establish that the injuries found on the body of the deceased at the time of autopsy were those sustained by the deceased on account of a fall on a pile of rubbles. The learned counsel for the appellant, however, failed in that attempt as PW11 denied the suggestion put to her in that regard with a clarification that it is not possible to sustain all the injuries suffered by the deceased in a fall as suggested. Inasmuch as there were altogether 11 injuries on several parts of the body of the deceased including three injuries on the head, one on the face and “fracture of (v) to (viii) ribs on right side of chest at their ankles”, in the absence of any material to indicate that all these injuries could be caused by a mere fall on a pile of rubbles, we agree with the opinion given by PW11 doctor. It is all the more so since, there is nothing on record to indicate that there was a pile of rubbles at the place of occurrence. Once the above possibility is ruled out, the irresistible conclusion that could be arrived at is that the injuries found on the body of the deceased are injuries sustained by her in the occurrence. Of course, since the deceased fell down on the by-lane of the street after the attack, some of the injuries might have been caused on account of the fall as well. As noted, injury Nos. 1 to 3 are injuries sustained by the deceased on different parts of her head, one on the right side and back of the head just behind her ear, one on the right side of the head overlying frontal eminence and another on the left side of the head overlying frontal eminence. Injury No.4 is an injury sustained by the deceased on her tongue, which could only be an injury caused on account of a blow on the face. Injury No.11 is an injury on the upper body of the deceased. Having regard to the nature of the said injuries, it cannot be said that those are injuries suffered by the deceased on account of a fall. In other words, those are to be taken as injuries caused by the accused. At this point, it is necessary to mention that even though it has come out in evidence that MO1 is the granite stone which could be held by a person in his/her hand, not being a weapon of offence normally used, it is an object, if used as a weapon of offence to hit a person with sufficient force on a vital part of the body, serious injury would be the result. As noted, it is on account of the impact of injury Nos.1 to 3, the death occurred due to internal bleeding. In other words, having regard to the depth of injury Nos.1 to 3 and its impact resulting in internal bleeding, it can certainly be inferred that the blows given by the accused on the head of the deceased were with sufficient force. It is thus clear from the discussion aforesaid that the accused gave several blows on the head, face and body of the deceased who was aged 60, with a granite stone, which could be held in his palm, with sufficient force. According to us, if one causes such injuries on a person aged about 60 years, possibility of death is more than the possibility of survival. If that be so, it can be concluded that the injuries intended to be inflicted by the accused on the deceased are sufficient in the ordinary course of nature to cause death and the case would fall under clause (3) of Section 300 punishable under Section 302 IPC.

In the light of the findings rendered by us in the preceding paragraphs, we are of the view that the defect, if any, in proving the seizure of MO1 granite stone is not a ground which would vitiate the investigation and trial of the case. When there is ample unimpeachable oral evidence to prove the occurrence and when the said evidence has been corroborated by medical evidence, even if this were to be a case where the granite stone used by the accused for inflicting injuries on the deceased could not be recovered, the same is not fatal to the prosecution case [See Mritunjoy Biswas v. Pranab, (2013) 12 SCC 796]. Similarly, minor discrepancies in the evidence tendered by the eye witnesses to the occurrence are not sufficient to set at naught the impugned decision. Similarly, having regard to the nature of the occurrence, the injuries noted on the body of PW1 at the time when he gave the First Information Statement, cannot be said to be inconsistent in any manner with the prosecution case.

In the light of the discussion aforesaid, we do not find any merit in the appeal and the same is, accordingly, dismissed.