Sivan vs State of Kerala

K. Sreedharan, J.—First accused in S.C. 71 of 1989 on the file of the Sessions Court, Thrissur is the Appellant. He, along with another, was charged with offences punishable under Sections 302 and 307 read with Section 34 of the Penal Code. After trial, learned Sessions Judge found first accused guilty of offence under Sections 302 and 324 of the Penal Code and convicted him thereunder. He was sentenced to undergo rigorous imprisonment for life u/s 302 of I.P.C. He was again sentenced to pay a fine of Rs. 2,000 and in default, to undergo rigorous imprisonment for one year u/s 324 of I.P.C. It was also ordered in case the fine is realised, Rs. 1,000 should be paid to the injured Conviction and sentence passed against him are under challenge.

The prosecution version of the incident in a nutshell, is as follows- At about 11.30 p.m. on 9th July 1988, accused, Appellant herein and the second accused before the trial Court, reached the hand cart shop of P.W. 4, which was at that time at the side of the road in front of S.N. Theature at Kodungallur. P.Ws. 1 to 3 were near that shop. P.W. 1 was helping P.W. 4 in conducting the sales. Appellant demanded a packet of beedi. P.W. 1 gave one packet. Stating that the beedi is duplicate, Appellant threw it away. He demanded betel for chewing. They took betel for chewing and gave the money. Thereafter Appellant and second accused moved towards east. Then Appellant told deceased told they are intending to beat someone there. Deceased asked Appellant and the second accused to go home without picking up quarrel. Then Appellant pushed the deceased. Consequently the deceased fell down. When he got up, second accused caught hold of him from behind. Appellant took out a knife from his waist and inflicted a stab on left chest of the deceased. P.W. 1 then pushed the Appellant. Then he turned towards P.W. 1 to stab him. P.W. 1 took position behind P.W. 2, son of the deceased. Appellant then inflicted stab injuries on the shoulder and chest of P.W. 2. Thereafter Appellant and second accused ran towards south.

Ramakrishnan and P.W. 2 who sustained injuries were immediately taken in an autorikshaw to Government Hospital at Kodungallur. Doctor, on examination, found Ramakrishnan dead. P.W. 2 was referred to Medical College Hospital, Thrissur.

To prove the prosecution version of the incident, P.Ws. 1 to 16 were examined and Exhibits P-1 to P-11 were proved. M.Os. 1 to 9 were also marked. No evidence, either oral or documentary, was let in on the side of the defence. P.Ws. 1 to 6 were examined as eye witnesses to the incident P.W. 1 gave the First Information Statement at 12-30 a.m. on 10th July 1988, i.e., on the same night. 10th July 1988 was a Sunday and F.I.R. reached the Magistrate on 11th July 1988 Appellant was arrested on 11th July 1988. On the basis of the information given by him, M.O. 1 blade and M.O. 1(a) handle of the knife, alleged to have been used for inflicting the stab injuries, were recovered under Exhibit P-5 reocvery mahazar. Attestor to that mahazar was examined in the case as P.W. 10.

P.Ws. 1 to 4 speak to the entire prosecution story. P.W. 2, the injured, and P.W. 3 are the sons of deceased Ramakrishnan. It has come in evidence that P.Ws. 1 to 3 were helping P.W. 4 in conducting business in his mobile bunk shop. It has also come in evidence that the business of P.W. 4 will continue till about 10''cloek in the night. Appellant has not disputed the fact that deceased Ramakrishnan and P.W. 2 sustained injuries. According to him, the injuries were inflicted in exercise of the right of private defence. He would contend that wordy altercation took place between him and Ramakrishnan. Seeing the presence of P.Ws. 2 and 3 at the scene, it is said that Ramakrishnan became aggressive. He whipped out a knife and tried to stab the Appellant. The stab was warded off and there was a scuffle for the knife. In the course of the scuffle, Ramakrishnan and P.W. 2 sustained injuries. It is his further case that P.Ws. 1 and 3 were inimically disposed towards him because of an incident which took place six months back. On account of that, P.Ws. 1 to 3 and deceased Ramakrishnan were trying to wreak vengeance against him and they made use of the first occasion when saw the Appellant at the time of the incident P.Ws. 1 to 3 are thus interested and inimical witnesses. P.W. 4, who was getting the help of P.Ws. 1 to 3 in the conduct of the business and who was getting milk from the deceased, was also interested in the prosecution. So, their version, according to the Appellant, should not be accepted. P.Ws. 5 and 6, who are stated to be independent witnesses, have not, it is alleged, spoken to the genesis of the incident. They gave evidence regarding the latter portion of the incident only. So, it was argued that the Court is left with the evidence of interested and partisan witnesses, P.Ws. 1 to 4. Since their evidence do not reveal the entire transaction, conviction entered by the Court below has to be set at naught.

As stated earlier, P.Ws. 1 to 4 spoke to the entire incident. P.W. 1 gave the First Information Statement within one hour of the incident. His version in chief examination regarding the entire transaction is corroborated by P.Ws. 2 to 4. We see no reason to doubt the correctness of the evidence given by these witnesses. P.W. 1, in cross-examination, has stated that he was in the police station till the next morning and that he signed the statement in the morning. According to P.W. 4, police came to the scene about half an hour after the incident and took his statement. If such a statement was recorded, according to counsel appearing for the Appellant, it should be treated as the First Information Statement and the one given by P.W. 1, which was signed by him later, cannot be treated as the First Information Statement. Since the actual First Information Statement has not been placed before Court, according to counsel, the entire prosecution must fail. We are not in a position to accept this submission. P.W. 1 reached the police station immediately after the incident just after midnignt. He left the police station only in the morning. During this time, the police party nad gone to the scene and questioned P.W. 4. That cannot in any way affect the veracity of Exhibit P-1 F.I. Statement.

P.W. 4 is in no way related to the deceased. The fact that deceased was supplying milk for his business and that his children, P.Ws. 2 and 3, were helping him in the conduct of the business cannot be taken as a ground to brand him as a partisan witness or an interested witness. He has in unmistakable terms spoken to the prosecution version of the incident. He categorically denied the alleged wordy altercation or scuffle between the deceased and the Appellant. We see nothing in his evidence to disbelieve this version. Incidents, which took place upto the infliction of the stab on Ramakrishnan by the Appellant, has been vividly described by this witness. His version is in complete agreement with those of P.Ws. 1 to 3. P.Ws. 5 and 6 narrate the incident that followed after Ramakrishnan was stabbed by the Appellant. So, we believe the testimony of P.Ws. 1 to 6 regarding the incident, since it has a ring of truth. The prosecution is not to demolish all suggestive defences put forward by the accused when the Court finds that the evidence gven by eye witnesses is trustworthy.

Exhibit P-8 certificate issued by Doctor, P.W. 13, who conducted autopsy on the body of Ramakrishnan, is in the following terms:

Body of a middle aged man lying on the table with both legs extended, left hand flexed both eyes opened. Rigor mortis present on all 4 limbs penetrating curved incised injury on left 3rd intercostal space 3X2X5 cms. directing medially, C shaped convex surface on medial side. Muscle on the 3rd inter costal space injured 3 cms. transversely, on opening the thorax, left thorasic cavity contains 300 cc of blood. On left lung, there is an injury 3 cm. length, 2 cm. from apex and 1/2 cm. from medial border. Lungs pale cut surface pale.

Heart: All chambers empty.

There is an incised injury 1/2 cm. diameter on infero lateral aspect of pulmonary vein 1/2" from left atrium. Lungs pale. Cut surface also pale. Abdomen, stomach-contains partially digested food. Liver, spleen, kidney-pale. Cut surface is also pale. Urinary bladder-empty. Skull-Bones-intact. Meninges and brain pale. Opinion as to the cause of death: Due to injury to pulmonary vessel and haemorrhage.

She was asked whether the injury found on the deceased could be caused during the course of a scuffle. She answered that it was an impossibility. Medical evidence given by the expert fully supports the ocular evidence given by P.Ws. 1 to 6. Thus, we have no hesitation in overruling the story of a scuffle preceding the stab.

Learned Counsel representing the Appellant argued that P.W. 13 had not spoken to the nature of the injury. Since she did not state that the injury was sufficient in the ordinary course of nature to cause death, Appellant cannot be made liable u/s 302 I.P.C. On the basis of the evidence given by eye witnesses, we have come to the conclusion that Appellant inflicted the injury found on the body of deceased Ramakrishnan. That was not caused accidentally. Appellant intended to inflict that particular bodily injury. He was the author of that injury. So, it must be presumed to be the consequence of his act. In such a situation, the enquiry should be as to whether the injury is sufficient to cause death in the ordinary course of nature. That part of the enquiry is objective and inferential. As stated by the Supreme Court in Virsa Singh v. State of Punjab AIR 1958 S.C. 485, this part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. In the decision in Rajwant Singh v. State of Kerala AIR 1966 S.C. 1874, it was held:

Where the victim is either helpless or rendered helpless and the offender does some act which leads to death in the ordinary tourse and death takes place from the act of the offender and jothing else, it is hardly necessary to prove more than the acts hemselves and the casual connection between the acts and the end result.... The sufficiency of the injury was objectively established by the nature and quality of the acts taken with the consequence which was intimately related to the acts. There was no need to establish more than this in the case.

The stab injury caused by the Appellant resulted in severing pulmonary vein from left atrium. On sustaining the injury, Ramakrishnan succumbed to it within few minutes. This shows that the injury sustained by him was safficient in the ordinary course of nature to cause death.

P.W. 16, Circle Inspector of Police, who conducted the investigation, stated before Court that Appellant was treated at the Government Hospital, Chalakudy for some injury as an out-patient. He further stated that no wound certificate was prepared by the Doctor of that hospital regarding the injuries on the Appellant as it was not connected with any medico-legal case. According to him, the injuries were minor as stated by the Doctor. This evidence was relied on by counsel to over throw the entire prosecution story. According to learned Counsel, when the investigating officer came to know that Appellant sustained injury, it was his bounden duty to produce the wound certificate and to explain the same before Court. The investigating officer has no authority to ignore that aspect by stating that the injuries were minor. Since the prosecution has failed to explain the injuries on Appellant, this Court, it is alleged, must take the view that prosecution has suppressed material facts. We are not impressed with this argument either. Appellant had no case before the Court below that he sustained any injury during the course of transaction. No question was put to any witness examined in the case regarding any injury alleged to have been sustamed by him Nor has he got such a case when he was questioned u/s 313 of the Code of Criminal Procedure. P.Ws. 1 and 1 have stated before Court that Appellant, fell down while he was runing as away from the scene. Appellant might haw gone to the Government Hospital, Chalakudy to treat the injury sustained then. This we say becausa he had not put any qustion to any witness examined in the case regarding any injury all ged to have been sustained by him. Further, it is not the duty of the prosecution to explain all injuries seen on the body of the accused. In the instant case, the evidence given by the prosecution witnesses has been found to be convincing and trustworthy. In such a situation, the non-explanation of the injuries, for which Appellant got medical assistance from Government Hospital, Chalakudy, is not at all fatal to the prosecution. In Hare Krishna Singh and Others Vs. State of Bihar, Their Lordships observed:

All the decisions of this Court which have been referred to and discussed above, show that when the Court has believed the prosecution witnesses as convincing and trustworthy, the Court overruled the contention of the accused that as the prosecution had failed to explain the injuries sustained by the accused in the same occurrence, the prosecution case should be disbelieved and the accused should be acquitted. Thus, it is not the law or invariable rule that whenever the accused sustains an injury in the same occurrence, the prosecution has to explain the injuries failure of which will mean that the prosecution has suppressed the truth and also the origin and genesis of the occurrence.

This observation applies on all fours to the facts before us. So, the non-explanation of injuries on body of the Appellant, spoken to by the investigating officer, is not at all fatal to the prosecution. If Appellant had sustained injuries in the course of this transaction, a criminal complaint could have been filed. In such a circumstance, he could have deployed the counter version. In the absence of these, the alleged injuries sustained by the Appellant cannot lead to discredit the eye witnesses.

Yet another argument that was advanced by the learned Counsel was against recovery of M.0. 1 blade and M.O. 1(a) handle of the knife used in the incident. M.Os. 1 and 1(a) were recovered on the basis of the information given by the Appellant. He led the police to the place where they were put while he was making his escape from the scene. After making a search, he took out them and handed it over to the police. Since they were recovered from an open place, according to counsel, the recovery cannot be treated as one coming within the purview of Section 27 of the Evidence Act. We are not impressed with this argument. The evidence that Appellant led the investigating officer and pointed out the place where the weapon which was used in the commission of the offence was put would be admissible as his conduct u/s 8 of the Evidence Act. In Prakash Chand Vs. State (Delhi Administration), it was observed:

What is excluded by Section 162 Code of Criminal Procedure is the statement made to a Police Officer in the course of investigation and not the evidence relating to the conduct of an accused person (not amounting to a statement) when confronted or questioned by a Police Officer during the course of an investigation. For example, the evidence of the circumstance, simpiiciter, that an accused person led a Police Officer and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence were found hidden, would be admissible as conduct, u/s 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act.

In the above circumstances, we hold that the weapon used in the commission of the offence was recovered on the information given by the Appellant. That was identified by P.Ws. 1 to 4 as well. Further, P.W. 1 stated that he had seen it in the mobile shop of second accused. Thus it has been successfully established by the prosecution that the Appellant used M.Os. 1 and 1(a) as the weapon of offence.

The above discussion leads to the conclusiqn that Appellant inflicted injury seen in Exhibit P-8 certificate intending to cause the same and that injury was one sufficient in the ordinary course of nature to cause death. As a result of that injury, Ramakrishnan died within a few minutes. Consequently, Appellant is guilty of the offence of murder punishable u/s 302 of the Penal Code. The conviction entered by the Court below for the said offence is confirmed.

P.W. 2 sustained injuries noted in Exhibits P-6 and P-7 wound certificates. Exhibit P-6 wound certificate was issued by P.W. 11, the Doctor attached to the Government Hospital, Kodungallur. P.W. 11 referred P.W. 2 to the Medical College Hospiial, Thrissur. P.W. 12, Tutor in Surgery, examined P.W. 2 and issued Exhibit P-7 wound certificate. Injuries noted in these certificates were inflicted by the Appellant. He has been convicted u/s 324 of the Penal Code and he was sentenced to pay a fine of Rs. 2,000. This conviction is based on legal, acceptable and trustworthy evidence.

In the light of the above discussion, we come to the conclusion that conviction and sentence passed by the Court below on the Appellant for offences under Sections 302 and 324 of the Penal Code are only to be confirmed. We do so. Consequently this appeal is dismissed.