Raju vs State of kerala

M.M. Pareed Pillay, J.—Sole accused who has been convicted u/s 302 of the I.P.C. and sentenced to undergo imprisonment for life by the II Additional Sessions Court, Ernakulam is the Appellant.

The prosecution case is that the accused who is the eldest son of P.W. 4 who was conducting a mobile cafeteria stationed on the northern side of the Church Landing Road, Ernakulam hit Mohanan (deceased) with an iron rod (M.O. 1) and caused him fatal injury. The incident is stated to have happened on 3rd February 1987 at 11 p.m. The investigation was conducted by P.W. 14 and he laid the charge before the Court. The learned II Additional Sessions Judge held that the prosecution has succeeded in establishing the guilt of the accused beyond reasonable doubt and convicted the accused u/s 302 of the I.P.C.

Prosecution examined P.Ws. 1 to 3 as eye witnesses. P.Ws. 2 and 3 turned hostile to the prosecution. The resultant position is that the only evidence supporting the prosecution is that of P.W. 1.

P.W. 1 is an autorikshaw driver. His evidence is to the effect that on 3rd February 1987 at about 11 p.m. he came to the shop of P.W. 4 along with Mohanan (deceased) for taking tea. Mohanan after taking tea, gave Rs. 10 to P.W. 4. P.W. 4''s worker Mani told P.W. 4 to appropriate the amount which Mohanan owed to him and return only the balance. Mohanan was not aggreeable to it. P.W. 4 thereupon returned the amount. There ensued a quarrel between Mani and Mohanan. P.W. 1 intervened. He asked Mohanan not to quarrel and took him away to an autorickshaw stand south of P.W. 4''s shop. P.W. 1 saw Aji and Ravi (P.W. 4''s sons) going towards south. After some time, accused came running armed with M.O. 1 iron rod. Accused chastised Mohanan for having caused a scene in the shop of his father. He assaulted Mohanan with M.O. 1 on his head. Mohanan sustained injuries. He ran towards north and fell on the cemented ground in front of Kamala Stores and twirled out of pain. P.W. 1 in an autorikshaw of P.W. 7 removed the injured to the Government Hospital, Ernakulam. P.W. 13 examined Mohanan and issued Ext. P-12 wound certificate. On the intimation sent by P.W. 5 doctor, P.W. 10 Head Constable, proceeded to the hospital. P.W. 10 registered Ext. P-7 first information report u/s 324 of the I.P.C. On getting information of the death of Mohanan on 4th February 1987 Ext. P-10 report was sent to the Court for altering the section to Section 302 of the I.P.C.

Learned Counsel for the accused contended that the learned Additional Sessions Judge ought not to have relied on the solitary evidence of P.W. 1 especially when the other eye witnesses (P.Ws. 2 and 3) turned hostile to the prosecution. It is also contended by him that the failure to examine Aji and Ravi (brothers of the accused) and Mani who were helping P.W. 4 in conducting the shop is really fatal to the prosecution and the only conclusion possible is that the prosecution has not placed all its cards before the Court. It is further contended that D.W. 1''s evidence should have been given due consideration by the trial Court. Still Anr. contention is that the prosecution could not establish any immediate motive for the crime. Finally it is urged that at best the offence would come only u/s 304 Part II of the I.P.C. and not u/s 302. The learned Public Prosecutor pointed out that the trial Court was justified in accepting the testimony of P.W. 1 as there is absolutely nothing in that evidence to discredit it. He also submitted that the evidence in the case strongly establishes the fact that the accused came armed with iron rod (M.O. 1) and dealt a violent blow on the head of Mohanan (deceased) and this resulted in fatal injury and it can never be held that the offence would not come u/s 302.

P.W. 1''s presence at the place of occurrence is spoken to by P.W. 4 father of the accused as well. P.W. 4 though turned hostile to the prosecution admitted that P.W. 1 and Mohanan had been to his shop for taking tea on the crucial day. It is also admitted by him that Mohanan used to take tea from his shop and had regular dealings with him and on the date of incident Mohanan gave Rs. 10 and that his worker Mani told him to appropriate the amount as Mohanan owed him on account of previous dealings. P.W. 4 stated that there ensued a quarrel between Mani and Mohanan and P.W. 1 intervened and asked Mohanan not to quarrel. Mohanan being taken away by P.W. 1 is also deposed by P.W. 4. It is also stated by P.W. 4 that his sons Aji and Ravi went towards Kamala Stores. It is true that P.W. 4 did not support the prosecution case that accused inflicted deadly blow on the head of Mohanan. But his evidence lends assurance to the testimony of P.W. 1 with regard to the incident. Merely because Aji and Ravi (sons of P.W. 4 and brothers of the accused) were not examined no adverse inference can be drawn against the prosecution. So long as the evidence of P.W. 1 is found to be credible, there is no necessity on the part of the prosecution to multiply evidence by examining other witnesses. That apart, prosecution has no case that Aji and Ravi were present at the time when accused hit Mohanan with the iron rod. So also the failure to examine Mani who is none other than the worker of P.W. 4 also cannot be taken as a circumstance to disbelieve the prosecution case.

The contention of the accused that Mohanan died during a quarrel between him and P.W. 1 and when he fell down he sustained the injury is too fragile to be believed. The post-mortem certificate Ext. P-6 rules out the possibility of Mohanan''s death by accidental fall. That apart, the enthusiasm shown by P.W. 1 to take Mohanan from the spot to the hospital would completely rule out the defence contention that it was P.W. 1 who was responsible for the death of Mohanan. The wound certificate Ext. P-12 shows that it was P.W. 1 who took the injured Mohanan to the hospital. If really the quarrel was between P.W. 1 and Mohanan, it is not at all likely that P.W. 1 would have taken immediate steps to save him by taking him to the hospital without loss of time. P.W. 9 doctor who conducted autopsy has ruled out the defence suggestion of Mohanan sustaining injury as a result of fall. His evidence along with Ext. P-6 post-mortem certificate would clearly show that Mohanan died as a result of head injury. P.W. 1''s evidence gets ample support from the medical evidence in the case.

D.W. 1''s evidence has been rightly rejected by the trial Court. D.W. 1 stated that P.W. 1 and deceased who were intoxicated quarrelled and that P.W. 1 pushed the deceased. As already pointed out, in view of the categoric medical evidence in the case and also in view of the acceptable testimony of P.W. 1, the evidence of D.W. 1 is only to be discarded. The Circle Inspector (P.W. 14) questioned several witnesses. To the Circle Inspector no question was put on the side of the accused to show that D.W. 1 was present at the place of occurrence and that he intentionally withheld D.W. 1''s evidence from the court. The hostile witnesses P.Ws. 2 and 3 also did not say anything about the presence of D.W. 1 at the place of occurrence. P.W. 4, father of the accused also did not say anything about D.W. 1. All these circumstances would indicate that D.W. 1''s evidence is only a cock and bull story.

Defence contention that the offence would not come u/s 302 of the I.P.C. remains to be considered by us. Learned Counsel for the accused pointed out that it is not possible to hold that the accused had any intention of causing the injury on Mohanan resulting in his death and that knowledge also cannot be imputed to him that he was aware that it would cause death. Counsel relied on Harish Kumar Vs. State (Delhi Administration), submitted that the offence at best would only come u/s 304 Part II of the I.P.C. We cannot agree. In the cited case the Supreme Court closely scrutinised the evidence and held that the evidence cannot conclusively show that offence can be brought within clause thirdly of Section 300 of the I.P.C. That is not the position in the case in hand. P.W. 9 doctor who conducted autopsy opined that Mohanan died as a result of head injury. He stated that injury No. 7 in post-mortem certificate was sufficient to cause death in the ordinary course of nature. It is also stated by him that this injury can be caused by a weapon similar to M.O. 1. Injury No. 7 shows that it is a lacerated wound vertically placed on the posterior part of the right frontal area of the head and the skull showed a transverse linear fracture. The linear fracture started from the right parietal bone and after passing through the right frontal and temporal bones ended in the middle of the right middle crenial fossa. Diffuse subdural haemorrhage was seen on both parietal areas. Subarachnoid haemorrhage was seen on both parietal, left temporal and left frontal areas. Thus, it can be seen that the injured died as a result of the violent blow on the head. Defence contention that the accused did not intend to cause such an injury is indeed difficult to be believed.

Mens rea has to be gathered from facts and circumstances of each case. P.W. 1''s evidence which we find no reason to disbelieve clearly shows that accused came running armed with M.O. 1 iron rod and inflicted a blow on the head of the deceased. In such circumstances, it is futile to contend that the accused did not intend to cause the injury which resulted in the death. The evidence in the case does not establish any circumstance to show that the accused is entitled to claim any of the exceptions u/s 300 of the I.P.C. In a case where an assailant inflicts a blow on the victim''s head and if as a result of it the latter died and if it is found that the injury was sufficient in the ordinary course of nature to cause death, the offence would definitely fall under Clause thirdly of Section 300 and the accused would certainly be guilty of the offence of murder if no exceptions are attracted. As the accused had caused the serious injury on the head of Mohanan by hitting with a formidable weapon like M.O. 1 and as there is no mitigating circumstance to take it out fiom an offence of culpable homicide not amounting to murder, defence contention that only a lesser offence has been made out is untenable. It is useful in this context to refer to Gudar Dusadh Vs. State of Bihar, where the Supreme Court held thus:

Where the accused gave a lathi blow on the head of the deceased as a result of which the deceased fell down and died instantaneously and the circumstances indicate thnt the assault was premeditated and the blow on the head of the deceased was not accidental ahd that the injury was sufficient in the ordinary course of the nature to cause death then the case would fall squarely within the ambit of Clause 3rdly of Section 300 and the accused would be guilty of the offence of murder. That it was the intention of the accused to cause the precise injury found on the head of the deceased would be clear from the fact that the accused aimed a blow on the head of the deceased with a lathi. The mere fact that the accused gave only one blow on the head would not mitigate the offence of the accused and make him guilty of the offence of culpable homicide not amounting to murder.

There is no evidence in the case to hold that deceased caused any provocation to the accused to invite the act on his part in dealing a violent blow on the head of the deceased. As already stated, accused could not establish that he would be entitled to any of the Exceptions u/s 300 of the I.P.C. The intention or knowledge can be imputed to the accused in view of the nature of the formidable weapon used by him and the force with which the weapon was used on a vital part of the body of the deceased. As a person is presumed 1o intend all the normal and reasonable consequences of his act, it has only to be held that the accused is presumed to knew the reasonable and normal consequences of his acts. As held in Virsa Singh Vs. The State of Punjab, the question whether the intention is there or not is one of fact and not one of law. If the totality of the circumstances justify an inference that the accused intended to inflict a serious injury on a vital part of the injured, it can really be presumed that he was aware of the consequences. In Dibia Vs. State, the Allahabad High Court held that the serious injury on vital part with dangerous weapon must necessarily lead to the inference that the accused intended to kill the deceased. In Jaiprakash v. State (Delhi Administration) 1991 S.C.C. 299 Supreme Court had occasion to consider a case of the infliction of single blow causing death. In that case, the Supreme Court held that the injury having been found to be sufficient in the ordinary course of nature to cause death clause thirdly to Section 300 is attracted. In Chahat Khan Vs. The State of Haryana, the Supreme Court held that when a person is causing an injury on such a vital part the intention to kill can certainly be attributed to him. As the evidence in the case clearly establishes that the accused inflicted the fatal injury on the head of the deceased, defence contention that the offence would not come u/s 302 but at best only come u/s 304 Part II of the I.P.C. can never be accepted.

In a case where there is direct evidence, motive assumes only of academic importance. In view of the ocular testimony of P.W. 1, defence contention that prosecution could not establish any strong motive for the perpetration of the crime and so the prosecution case fails is devoid of merit. As there is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand and as P.W. 1''s evidence has withstood the cross-examination and as there is nothing to disbelieve him, we hold that the learned Additional Sessions Judge was justified in accepting his testimony.

On going through the entire evidence, we hold that the learned Additional Sessions Judge was justified in convicting the accused u/s 302 of the I.P.C. Conviction and sentence entered against the accused are hereby confirmed. Criminal Appeal stands dismissed.