Stephan vs State

S. Nagamuthu, J.—The appellant is the sole accused in S.C. No. 55 of 1995 on the file of the learned Principal Sessions Judge,

Kanyakumari Division. He stood charged for the offence u/s 302 IPC. By judgment dated 14.12.2001, the trial Court convicted him u/s 302 IPC

and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs. 1,000/-, in default, to undergo six months simple

imprisonment. Challenging the said conviction and sentence, the appellant is before this Court with this appeal. The case of the prosecution is as

follows:

(i) The deceased in this case was one Francis. P.W. 1 is his sister. On 11.9.1992 at 7.30 p.m., the deceased was in his house. At that time, the

accused came to the house of the deceased and questioned him as to why he was spreading rumours as though he had misbehaved with the sister

of the deceased. The deceased warned him not to develop any further quarrel. Immediately, the accused took out a knife and cut him five times.

P.W.2 is the wife of the deceased and P.W.3 is the niece of the deceased. P.W.2 and P.W.3 witnessed the occurrence. The accused fled away

from the scene of occurrence. The deceased was lying in a pool of blood.

(ii) P.W. 1, thereafter, took the deceased in a car to the Police Station. One Head Constable No. 273, attached to Arumanai Police Station was

on duty. The deceased gave a oral statement and the same was reduced into writing by the Head Constable. Exhibit P-1 is the said complaint.

Based on the same, he registered a case in Crime No. 722 of 1992 u/s 324 IPC. He forwarded the FIR (Exhibit P-12) and the complaint (Exhibit

P-1) to the Court and handed over the case diary to P.W. 12 for investigation.

(iii) P.W. 12 was the Inspector of Police, attached to Arumanai Police Station, during the relevant period. Taking up the case for investigation, he

proceeded to the spot and prepared an Observation Mahazar as well as a rough sketch in the presence of the witnesses. Then, he examined the

deceased and recorded his statement u/s 161 Cr.P.C. (vide Exhibit P-13). On 14.9.1992, he arrested the accused and then forwarded him to the

learned Judicial Magistrate No. 1, Kuzhithurai, for judicial remand. On 22.9.1992, the deceased died. Therefore, P.W. 12 altered the case into

one u/s 302 IPC. Exhibit P-15 is the report. Then, he handed over the case diary to P.W. 13 for further investigation. Taking up the case for

further investigation, P.W. 13 examined the very same witnesses earlier examined by P.W.12 but he did not recorded any further statements. He

conducted inquest on the body of the deceased from 8.30 a.m., to 11.30 a.m., on 23.9.1992 and prepared Exhibit P-16 Inquest Report. Then, he

forwarded the body for post-mortem.

(iv) P.W. 10, Dr. Kanda Pillai conducted autopsy on the body of the deceased on 23.9.1992 between 12. noon and 1.00 p.m. He found the

following injuries:

1) A lacerated wound which is partially healed with slough size of 6 x 4 x 1 cms over the right shoulder.

2) A completely healed wound size of 4 x 1 cm over the back of neck.

3) A healed wound of 2 x 1/2 cm over right wrist.

4) A healed wound 7 x 1 cm over lateral aspect of right elbow.

5) A healed wound of 4 x 1 cm over the lower aspect of right arm.

Exhibit P-9 is the Post-Mortem Certificate. Exhibit P-10 is the Histopathology Report and Exhibit P-11 is the final opinion. According to his

opinion, the deceased would have died of tetanus according to clinical features and according to the treatment taken inside hospital and also with

added Post Mortem findings.

(v) P.W. 13 made a request to the Court to forward the Material Objects for chemical observation. He collected the medical reports, examined

the doctor and recorded statements. Finally, he laid a charge sheet on 10.12.1992.

Based on the above materials, the lower Court framed charge u/s 302 IPC. The accused pleaded innocence and therefore, he was put on trial.

On the side of the prosecution, as many as 13 witnesses were examined and 23 documents were exhibited besides 2 Material Objects.

Out of the said witnesses, P.Ws. 1 to 3 are the eye-witnesses who have vividly spoken about the participation of the accused and their overt-

acts. P.W. 12 has spoken to about the recording of the statement Exhibit P-1 by the Head Constable from the deceased. Since the Head

Constable is no more, he could not be examined. P.W. 12 recorded the statement of the deceased u/s 161 Cr.P.C., which has been marked as

Exhibit P-13 as Dying Declaration. P.Ws.6 to 9 have spoken to about the treatment given to the deceased. P.W. 10 has said about the autopsy

conducted by him and gave his final opinion regarding the cause of death. Others are official witnesses.

When the above materials were put to the accused, he denied them as false. He has neither chosen to examine any witness nor to mark any

document on his side. Having considered the above materials, the trial Court found the accused guilty u/s 302 IPC and accordingly, punished him.

This is how the accused is before this Court with this appeal.

In this appeal, originally, one Mr. M. Dhamodharan, the learned counsel, was on record, for the accused. Though the case was listed for hearing

on several occasions, there was no representation for the appellant. The case has been pending from the year 2002. Therefore, this Court issued

warrant for the arrest of the appellant. On 4.10.2012, this Court directed the police to take effective steps to execute the warrant and to produce

the accused before this Court. Even, thereafter, he could not be secured. In those circumstances, this Court thought it fit to appoint a Legal Aid

counsel. Accordingly, Mr. AR. Jeya Rhuthran, advocate with a good standing in the Bar was appointed to argue the appeal on behalf of the

accused/appellant. Having gone through the materials, the learned counsel advanced his arguments today.

We have heard the learned counsel appearing on behalf of the appellant as well as the learned Additional Public Prosecutor appearing on behalf

of the State and we have perused the records carefully.

The learned counsel for the appellant would submit that the evidences of P.Ws. 1 to 3 cannot be believed as they are interested witnesses. We

have carefully gone through the evidences of P.Ws.1 to 3, of course, P.W.1 is the sister; P.W.2 is the wife and P.W.3 is the niece of the deceased.

But, their presence at the place of the occurrence cannot be doubted because they are the inmates of the house of the deceased. Admittedly, there

was no independent witnesses present. Since the occurrence had taken place at the house of the deceased, we do not find any difficulty to believe

the presence of P.Ws.1 to 3. These witnesses have been extensively cross-examined but nothing has been brought on record to create any doubt

about the veracity of their evidence. Apart from that, they have very clearly spoken about the overt-acts of the accused. The medical evidence also

fully corroborates the evidence of P.Ws. 1 to 3. Thus, we hold that the prosecution has clearly proved that the injuries found on the deceased were

caused by the accused.

Now, coming to the cause of the death, admittedly, the occurrence was on 11.9.1992. The deceased was under constant treatment in the

Hospital. Initially, he was taken to Kuzhithurai Government Hospital on 11.9.1992 from where he was referred to the Government Hospital at

Nagercoil. In the said hospital, he died on 22.9.1992.

Now, the question is as to whether the death of the deceased was due to the direct cause of the injuries caused by the accused?

In this regard, we may refer to the evidence of P.W.10. has opined that the death was due to ""tetanus"". During cross-examination, he has

stated that the said tetanus might have been due to any old injuries sustained prior to this occurrence. He has also opined that equally the tetanus

might have been due to the injuries caused in this occurrence as well. Thus, the prosecution has not proved that the tetanus, which is the cause for

the death of the deceased was exclusively due to the injuries sustained in this occurrence. The possibility of the tetanus having been developed due

to any old injuries has not been ruled out. Thus, the prosecution has failed to prove that the death of the deceased was caused due to the injuries

caused by the accused. Thus, the death of the deceased cannot be conclusively held as a homicide. Therefore, the act of the accused is punishable

only u/s 324 IPC. It has to be mentioned that there is no medical opinion that the injuries are grievous in nature.

Now, turning to the quantum of punishment, the accused was released on bail by the order of this Court dated 3.3.2003. He had been in jail

from 14.12.2001 i.e. from the date of judgment of the trial Court. Having regard to the nature of the injuries, the mitigating circumstances like the

motive for the occurrence, the age of the accused and all attendant circumstances, we are of the view that appropriate sentence to be imposed on

him would be equal to the period of sentence already undergone by him. In the result, the Criminal Appeal is partly allowed, the conviction and

sentence imposed on the appellant u/s 302 IPC is set aside, instead, he is convicted u/s 324 IPC and the period of sentence of imprisonment

already undergone is imposed. Fine amount, if any paid, shall be refunded to the appellant. Bail bonds executed shall stand cancelled.