Ganesan vs State

M. Karpagavinayagam, J.—The appellant was the accused in S.C. No. 45/87 on the file of the 11th Addl. Sessions Judge, Madras. He

was convicted for the offence u/s 302 IPC and sentenced to undergo life imprisonment. The case against the appellant is that, on 23-7-1986, at

about 8.30 p.m., at No. 23, Melpadi Muthu Naicken Street, Nungambakkam, Madras-34, the appellant threw acid on the face of one Ramani

Ammal, as a result of which she died on 6-8-1986 at 4.30 p.m. at Kilpauk Government Hospital. The brief facts are as follows:

(a) The deceased Ramani Ammal is the mother of PW-4 Ramesh Babu. She married one Ramadoss in the year 1964. She got divorce from her

husband in the year 1975 and shifted her residence from Purasawalkam to Nungambakkam. She stayed at No. 24, New Street, Nungambakkam

alongwith her son PW-4. She purchased the house along with the vacant site in the year 1975. PW-1 Janaki Ammal was the tenant under the

deceased for three years prior to the date of occurrence.

(b) The deceased wanted to construct a new building after demolishing the old house. So, she sold 1/2 portion of her land and approached PW-3

Parthasarathy who is a building contractor for the purpose of demolition of her old house and reconstruction. Out of the sale amount she also

discharged some loan indebted to PW-3. PW-3 by way of helping the deceased undertook the work of demolition and re-construction and

finished the construction of the ground floor and the 1st floor with the available amount with the deceased. From 1980, PW-3 Parthasarathy

developed illicit intimacy with the deceased. So, out of his own money he was constructing the second floor of the same building.

(c) PW-3 is already married and his wife Is one Prabavathi whose younger brother is the appellant Ganesan. On knowing the illicit intimacy

between PW-3 and the deceased Ramani Ammal, Prabavathi, the wife of PW-3 objected to the conduct of PW-3 and complained to her brother,

the appellant herein. Though he was questioned by his wife, PW-3 did not mend his ways and continue to have the illegal affairs with the deceased.

The appellant and PW-3''s wife, on hearing the news that PW-3 spent a lot of money for the construction of the building for the sake of the

deceased, the appellant got angry over this and took Prabavathi to PW-8 Radha who is the elder sister of PW-3. When both of them complained

to PW-8, PW-8 informed them that she would settle the problem after the construction work is over. She also requested the appellant not to have

any quarrel with PW-3 or the deceased till then. However appellant challenged that he would however finish the life of both PW-3 and the

deceased within 20 days. Then he left along with his sister Prabavathi. Thereafter, Prabavathi also left from the matrimonial home and joined with

her brother, the appellant herein.

(d) On 23-7-1986, at about 8.15 p.m., PW-4 Ramesh Babu and the deceased were inside the house. At that time, the appellant Ganesan came

there and informed the deceased that he was the person who was sent by PW-3 to fix the electricity meter inside the house. The deceased

suspected him since the electricity meter had already been fixed by another person. So, the deceased asked him to go away telling that the work of

fixing the meter was already over. However, on suspecting the appellant, she went to the house of PW-1 Janaki Ammal who is in the adjacent

road, for the purpose of phoning upto PW-3 for verification. PW-7 Natarajan was the mason employed by PW-3 for doing the construction work

in the house of deceased. At that time, PW-7 was about to leave the place after finishing his work at about 8.15 p.m. After conveying this to PW-

4 and PW-7, the deceased went to the house of PW-1 for phoning up to PW-3.

(e) PW-1''s husband is doing wholesale textile business. She would also help her husband by selling the textiles on installment basis to the women

whoever come for purchase in her house. She is having a telephone in her house. Since for some time earlier PW-1 was tenant under the

deceased, she would allow the deceased to use her telephone whenever she required. On 23-7-1986 at about 8.15 p.m., the deceased entered

into the house of PW-1 and was ringing up to PW-3. PW-1 at that time came out and was talking with one Bhanumathiammal, her customer. After

sending her off, at about 8.30 p.m. she was about to enter into the house. At that time, she heard a cry from the deceased shouting and she also

found that the victim deceased came out of the house emitting smoke from her saree. On hearing the noise, PW-4 and PW-7 also rushed to the

scene. Both of them found the accused running from the place. PW-2 one Subramani is having a tinkering shop which is situated opposite to the

house of P.W. 1. When P.W. 2 and others who were inside the shop on hearing the sound rushed to the house of PW-1 alongwith others.

Immediately there-after, PW-2 and PW-4 took the victim In an auto and admitted her in the Kilpauk Medical College Hospital.

(f) PW-5 Doctor Abdul Rahim attached to the Kilpauk Medical College Hospital examined the victim at about 8.40 p.m. When she was

questioned the victim told him that one unknown person caused injury on her by throwing acid bottle. He found burn injuries on her face, right

shoulder, on both hands, chest and abdomen portion and thighs. Then she was sent to the Emergency Ward. Ex. P1 is the Accident Register. PW-

6 Dr. Sudhakar Prasad was in the Emergency Ward on 23-7-1986 and at about 8.45 p.m. he examined the victim and gave treatment. The victim

told him also that on 23-7-1986, at about 7.45 p.m. while she was talking in telephone, an unknown person threw acid bottle and caused the burn

injuries all over her body. Ex.P2 is the case sheet which was prepared by Dr. Manohar who was also assisting PW-6.

(g) PW-14 Head Constable attached to the Nungam-bakkam Police Station received the intimation from the Kilpauk Medical College Hospital at

10.00 p.m. informing that the victim Ramahi was admitted in the hospital with burn injuries. He went to the hospital and examined her. She gave a

statement which was reduced to writing by PW-14 and thumb impression was obtained thereon. Ex. P15 is the complaint. He, then came to the

police station and registered a case in Crime No. 1136/86 for the offences under Secs. 448 and 307 I.P.C. Ex. P16 Is the printed F.I.R. He

despatched the documents to the court as well as to the senior officials. PW-15 Inspector of Police, on receipt of message at 10.30 p.m. came to

the police station and took up the investigation. He went to the Hospital and recorded a statement from the victim which is Ex. P17. He also

recovered M.Os. 2 to 4 the clothes worn by the deceased in the presence of PW-9 under Ex. P4 mahazar.

(h) In the meantime PW-15 examined PWs-3, 4 and 5. He also sent a requisition to the Magistrate requesting him. to record dying declaration

from the victim. Thereafter, he went to the spot and prepared Ex. P5 observation mahazar and recovered broken bottle (M.O. 5) with glass pieces

under Ex. P6. He also drew the rough sketch Ex. P18. Then he examined PW-1 Janaki, PW-2 Subramaniam and one Kuppusamy.

(i) In the meantime PW-10 Magistrate received the requisition at about 1.05 a.m. on 24-7-1986 and came to the Kilpauk Medical College

Hospital and there he recorded statement from the victim between 1.30 a.m. and 2.00 a.m. After reading over the same to her, he obtained her

thumb impression, on her admitting that the contents therein are true. PW-10 also obtained a certificate from Doctor Manohar who was present

then. The said statement and the certificate is Ex. P8. On 24-7-1986 at about 9.00 a.m., PW-3 Parthasarathi came to the Police Station and gave

the photograph of the appellant, since he is the suspect involved in the crime. He showed the same to PW-4, son of the deceased. On seeing the

photo, PW-4 said that he was the person who came to the house of the deceased on the pretext of fixing the electric meter in the house. On 25-7-

1986, PW-15 went to the Kilpauk Medical College Hospital and showed the photograph of the appellant to the victim/deceased who identified

that the person in the photograph was the culprit. He also recorded a statement from the deceased which is Ex. P19.

(j) PW-16 Murugavel, the successor of PW-15, took up charge as Inspector of Police of Nungambakkam Police Station on 1-8-1986 and

continued the investigation in this case. On 6-8-1986, inspite of the treatment given by the doctors, the deceased died. So from the hospital, death

intimation was sent to the concerned police, which is marked as Ex. P 3. On receipt of this intimation P.W. 16, altered the case into Sec. 302

I.P.C. and sent express report Ex. P20 to the Court. as well as to the senior officials. He went to the Kilpauk Medical College Hospital and held

inquest over the dead body of the deceased on 7-3-1986 between 9.00 a.m. and 11.15 a.m. He conducted inquest in the presence of the

panchayatdars and examined P.W. 3, P.W. 4. P.W. 8 and others. He prepared Ex. P21 inquest report. He sent requisition Ex. P9 to the Doctor

P.W. 12 for postmortem. P.W. 12 doctor Ankayarkanni, on receipt of the requisition commenced the post-mortem on 7-8-1996 at about 12.30

p.m. and found the following injuries:

Infected deep acid burns over the face, neck, anterior half of the scalp, anterior aspect of both the upper limbs, upper medial quadrant of the

right breast, upper half of the left breast, an area of 4 cms. in breadth, to a length of 6 cms. over the centre of the abdomen anterior aspect of the

middle third of the right thigh, lateral aspect of the middle 3rd of left thigh and centre of the back of gluteal region amounting to 30% of surface area

of the body. In some of the areas the margins of the burnt areas appeared black and leathery in consistency. She also found her chambers empty,

stomach empty and all other internal organs were found congested. She was of the opinion that the deceased would appear to have died of shock

due to delayed complications of acid burns.

(k) On 20-8-1986, at about 4.30 p.m., PW-16 Inspector of Police arrested the accused. He found some burn injuries on his hand. On

interrogation, he gave a statement that he sustained injuries on 23-7-1986 and that on the next day 24-7-1986 he went and took treatment from

doctor PW-11. He also took PW-16 to the St. John Hospital at Teachers Colony in Erukkancheri and identified PW-11 doctor. PW-11 Doctor

Bhushan Rajgave a statement to PW-16 that on 24-7-1986 at about 7.30 p.m., the appellant came to him and took treatment for the injuries

sustained on the hands due to acid. He also produced the registers to the police officer to show that the appellant came to the hospital and took

treatment for the said injury, where his patient number is noted as 8302 in page No. 521. Thereafter, PW-16 arranged to send the accused for

further examination through another doctor PW-12.

(l) PW-12 Doctor Angayarkanni, examined the accused and found the burn injuries on the right hand. He gave certificate Ex. P11. Thereafter he

arranged to send the M.Os. alongwith the requisition P12 to the court for causing them to be examined in the Forensic Laboratory. PW-13 Court

Clerk sent these M.Os. with the covering letter of the Magistrate which is marked as Ex. P13 for their chemical analysis. Ex. P14 is the Chemical

Analyst''s report received by the Court. After completing the investigation on 26-11-1986, PW-16 filed charge sheet against the appellant u/s 302

IPC.

On committal, the trial court framed charges based on record and questioned the accused. The accused pleaded not guilty and wanted to face

the trial.

In order to prove the charges, the prosecution examined PW-1 to PW-16 and filed Exs. P 1 to P21 and produced M.Os. 1 to 5.

After the evidence was over, the accused was questioned with reference to the incriminating materials found in the evidence brought on record.

The appellant chose to deny his complicity in the commission of crime and would however be admit that he was treated by PW-12 for the burn

injuries sustained on his hands. But he denied having gone to PW-11 for taking treatment. He further stated that on 23-7-1986 at about 8.15 p.m.,

he was in the house of PW-3 alongwith him, that at that time on receiving some telephonic call, PW-3 called him to accompany him since Ramani

Ammal is in danger and they went to the Kilpauk Medical College Hospital and saw the injured with burn injuries, that her son Ramesh was also

there and that the next day PW-3 came to his house and informed him that police had suspected him and so he applied some medicine on his body

stating that if any trouble comes to him from police, he would save him from the case and that then he made arrangement to book him in this case

through the Inspector of Police. However, no evidence was adduced on the side of the accused.

On appraisal and appreciation of the evidence let in by the prosecution and the statement given by the appellant u/s 313 Cr.P.C., the trial Court

found the appellant guilty for the offence u/s 302 IPC and dealt with him as referred to earlier. Learned counsel for the appellant took us through

the entire evidence and contended that there is no eye-witness and the circumstantial evidence let in by the prosecution also would not clinchingly

connect the accused with the commission of the crime and therefore, he contended that the prosecution has failed to prove its case as there are

many missing links and so the appellant has to be acquitted by giving the benefit of doubt. Per contra, the Addl. Public Prosecutor pointed out

several portions of the evidence which are incriminating and submitted that the verdict given by the trial Court was correct and proper reasonings

have been given for the conviction imposed upon the accused.

The following are the various piece of materials quoted by the prosecution in order to prove the guilt of the appellant:

(1) 20 days prior to the occurrence, the appellant alongwith the wife of PW-3 went and challenged to PW-8, sister of PW-3 that he would kill

both the victim Ramani Ammal and PW-3 who was helping the victim in the work of construction since he de- (sic)

(2) PW-4 son of the (sic) and PW-7 mason saw the accused near the place of occurrence at or about the time of the incident.

(3) Ex. P15 the complaint given by the victim/deceased to PW-14 Constable, Ex.P17 the statement recorded from the victim by PW-15 Inspector

of Police, Ex. P19 the statement of the deceased given to PW-15 pointing out the identity of the culprit by showing the photo.

(4) Ex. P8 dying declaration recorded by PW-10 Magistrate.

(5) The evidence of PW-11 to the effect that he gave treatment to the accused for the burn injuries which was on his hands on the next day of the

occurrence, i.e., on 24-7-1986, and

(6) The evidence of PW-12 doctor who examined the accused after arrest on 21-8-1986 gave opinion in Ex. P11 that the injuries would have

been occurred two weeks prior to the date of examination.

The motive in this case as put forward by the prosecution case is that PW-3 had illicit intimacy with the deceased from 1980 to 1986, and the

intimacy had gone to the extent of PW-3 helping the deceased by spending his huge money for constructing the second floor of her house. That

was objected to by the wife of PW-3. Even then, PW-3 did not stop his connection with the deceased. Therefore, both the and his sister, i.e. the

wife of PW-3 went and complained to PW-8. PW-8 sister of PW-3 instead of solving the problem then and there, pacified the appellant stating

that she would try to settle this problem after the construction was over. Therefore, the appellant challenged that he would kill both the victim and

PW-3 within 20 days. This aspect of evidence is spoken to by PW-3 and PW-8.

Regarding the occurrence, as pointed out by the learned counsel for the appellant, there is no eye witness. the Apex Court in the decision

reported in Gambhir Vs. State of Maharashtra, , held as follows:

The law regarding circumstantial evidence is well settled. When a case rests upon the circumstantial evidence, such evidence must satisfy three

tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances

should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so

complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The

circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of

the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

In the light of the legal position as referred to above, about the circumstantial evidence, we have to endeavour to analyse the materials available

in this case'' whether the circumstantial evidence in the instant case satisfies the requirements of law. It is submitted by the learned counsel for the

appellant that PW-4 could not have seen the accused near the place of occurrence on that particular date. According to PW-4, he already knew

the accused since he happened to see him previously along with PW-3. If he had actually seen him, he would have mentioned this to PW-3 or to

the deceased about the said fact. In that event, even in the FIR itself this particulars about the accused should have been given by the deceased.

The evidence of PW-3 would make it clear that till next day morning, they were not able to find out the identity of the real culprit and only after

identifying the photo of accused by the deceased, they came to know that this appellant alone had committed this offence. So in such

circumstances, as pointed out by the counsel for the appellant, we are unable to place any reliance on the evidence of PW-4. But, however, there

are other available materials which are in our view, are sufficient to impose conviction. As already referred, the motive aspect has been established

through the evidence of PW-3 and PW-8. The dying declaration given by the deceased on the very same night to the Magistrate and to the Head

Constable in P. 15 and the Ex. P 19 statement given to PW-16 Inspector of Police would as well show the consistency about the manner of

occurrence which had taken place inside the house of PW-1. The more important incriminating circumstance is the statement of the deceased Ex.

P19 which has been given to PW-15 by showing the identity of the person from the photo. The another vital piece of circumstance is the accused

went to PW-11 doctor on the next day of the date of occurrence and got treatment for the burn injuries sustained by him on his hand. Of course,

he was arrested by PW-16 only on 21-8-1986, however we cannot forget the fact that PW-11 doctor was traced only at the instance of the

accused who identified PW-11 also. PW-16 Inspector of Police obtained a statement from PW-11 to the effect that he treated the accused for

burn injuries on the next day to the date of occurrence. Again, at the request of PW-16 Inspector of Police, PW-12 another doctor also examined

the injuries on the accused which also would corroborate the evidence of PW-11. No doubt it is true that it is only for the prosecution to establish

the case of the prosecution by standing on its own legs and it cannot take ad-vantage of the inconsistent defence taken by the accused at various

stages. But, in the case of circumstantial evidence, the statement of the accused also plays an important role in the appreciation of the totality of the

circumstance. In this case, the accused/appellant u/s 313 Cr.P.C. statement admitted that he was taken to PW-12 doctor by PW-16 Inspector of

Police and treatment was given to him. But, he denied having gone to PW-11 for taking treatment on the next day of the occurrence. The another

important factor is that he gave a statement u/s 313 Cr.P.C. that PW-3 applied some medicine on his hand and gave assurance that if he was

booked in the case he would save him by his influence. Such statement is not only artificial but also reflects the falsity of the defence in view of the

overwhelming materials available in the form of various piece of circumstances as referred to above, which would go to show that the appellant and

the appellant alone is the cause for the death of the deceased by throwing acid on the body of the person. So we are of the definite view that the

materials collected and produced before the court, even if the evidence of PW-4 is eschewed would reveal that these materials are consistent to

point out the guilt of the accused and inconsistent for his innocence. So, we have no hesitation In holding that the prosecution had established its

case beyond doubt with reference to the manner of occurrence and the participation of the appellant in the commission of the crime.

Regarding the nature of the offence, learned counsel for the appellant argued that as per the opinion of the doctor the death was not the direct

result of said injuries and due to some other complications and that therefore, the offence would fall only u/s 304 Part-II and not u/s 302 IPC. In

order to substantiate his submission, he relied on the decision reported in Ganga Dass alias Godha Vs. State of Haryana, wherein it has been held

as follows:

Learned counsel for the appellant submits that even if the entire prosecution case is to be accepted, an offence punishable u/s 302, is not made out.

We find considerable force in this submission. As stated above the occurrence took place on 18-11-1988 and the deceased died 18 days later on

5-12-1988 due to septicaemia and other complications........................... Under these circumstances, we set aside the conviction of the appellant

u/s 302 IPC and the sentence of imprisonment for life awarded thereunder. Instead we convict him u/s 304 Part II IPC and sentence him to

undergo six years R.I. Accordingly the appeal is partly allowed.

Per contra, learned Addl. Public Prosecutor brought to our notice the decision reported in the case of State of Haryana Vs. Pala and Others, ,

in which It was held that even in spite of the fact that there is septicaemia there cannot be ground for bringing the offence u/s 304 Part II of IPC.

This judgment will not be applicable to the present case for the following observation in the citation, which is as follows:

Though the learned counsel had not read the later part of the opinion, the medical evidence on record clearly establish that septicaemia is not the

primary cause and the death was due to injuries caused to the deceased and they are sufficient to cause death in the ordinary course of nature.

Septicaemia would, therefore, not be taken into account...................... In this case, the supervening event of septicaemia is not of any

consequences as pointed by the doctor as the death was only on account of head injuries and other injuries caused to the deceased.

But, in the instant case, the evidence of Doctor PW-12 who conducted the post mortem is to the effect that death was due to septicaemia. The

relevant portion of the evidence is as follows:

(Matter in other language)

So, when there Is direct evidence with reference to the cause of death, from PW-12, it cannot be said that the burn injuries had directly resulted in

the death, whereas the supervening circumstances in this case only septicaemia. So, in view of the above discussion, we are of the view that the

offence would come under 304 Part II IPC in view of the decision referred to above in Ganga Dass alias Godha Vs. State of Haryana, .

Therefore, we set aside the conviction u/s 302 IPC and instead we convict the appellant/accused for the offence u/s 304 Part II IPC and

sentenced him to un dergo 5 years R.I. With this modification this appeal is allowed partly. It is brought to our notice that the appellant is on ball.

So the appellant is directed to surrender before the Judicial authority to undergo the remaining period of sentence. Bail bond if executed, is

cancelled.