Sukumaran vs State of Kerala

K.A. Abdul Gafoor, J.—The sole accused in S.C. No. 73/99 on the file of the Additional Sessions Judge, Fast Track Court-I, Palakkad, is the appellant herein. He was charged for the offence punishable u/s 302 of the Indian Penal Code for having committed the murder of one Sathyabhama by pouring acid on her. He was found guilty, convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 10,000/-, in default of which, to undergo simple imprisonment for two months.

The prosecution case is as follows: The appellant/accused Sukumaran (hereinafter referred to as the accused") and the deceased Sathyabhama (hereinafter referred to as "the deceased"), wife of PW.8 Vasu, had a long standing enmity between them as disclosed by various letters produced before the Court below. As a result of that enmity, the accused, at about 7.30 A.M. on 9.7.1998, while Sathyabhama was returning after drawing water from a nearby tap, poured acid on her body. Sathyabhama ran towards the house of a neighbour, wherefrom she had been taken to the nearby hospital. Later she was referred to the Medical College Hospital, Thrissur, where she succumbed to the injuries on 15.8.1998, after about 37 days of the incident.

Initially, a crime was registered against the accused u/s 307 IPC by the Kasaba Police Station, Palakkad. Later, on the death of Sathyabhama, Ext. P20 report was filed by the police before the court to alter the charge to one u/s 302 IPC,

Altogether, 30 witnesses were examined and 30 documents marked on the side of the prosecution, apart from identification of 6 material objects.

There were no eye witnesses to the incident. On the basis of the evidence on record and the circumstances pointed out, stated to be towards the guilt of the accused, the court below found the accused guilty, convicted and sentenced him as mentioned above. The conviction and sentence are challenged by the accused in this appeal.

It is contended by the accused that there was nothing to infer any intention on the part of the accused to cause the death of the deceased. It is submitted that PWs. 2 to 4 and 6, the neighbours, who were examined by the prosecution to prove the hostility between the two became hostile to the prosecution. PW.7, another neighbour, also turned hostile, apart from PW10, who had been cited to prove the mediation held to appease the hostility between the two. Therefore, the hostility between the two was not proved. The motive was thus not established. There was no eye witness and there is no clinching evidence to conclude that the accused had poured acid, it is contended. Therefore, the accused cannot be found to be guilty of any offence, he submits.

Alternatively, it is submitted that even if the incident is proved, it will not amount to the offence punishable u/s 302 IPC. Death occurred after 37 days of the incident. PW24, the doctor who conducted the post mortem examination did not reveal in his evidence that the injury sustained by the deceased was sufficient in the ordinary course of nature to cause the death. It is in evidence from his deposition that there was infection on the wounds of the deceased. According to him, as is revealed by the case sheet in the hospital, she died out of burn injury. With regard to the infection, he has stated that it could be caused due to several reasons. PW23 the doctor who examined the deceased immediately after sustaining the injury and who issued Ext. P16 wound certificate, did not specify about the degree of the injuries, nor did he depose about the degree of burn injuries sustained. He also did not depose before the court below that the injuries were sufficient in the ordinary course of nature to cause death. Therefore, there arises no question of convicting and sentencing the accused u/s 302 IPC, the appellant contends.

Regarding the first limb of argument, we need not labour much because of the dying declarations, Exts. P24 and P28 and the evidence of PW1, the son of the deceased that he had told him that the accused had poured a liquid on her. Ext. P24 has been recorded by PW. 28, Judicial Magistrate of the First Class-II, Thrissur, after obtaining Ext. P25 medical certificate from the Medical Practitioner about the mental status of the injured. It is clear from Ext. P24 that she had stated to PW28 that the accused had poured a liquid on her. There is another dying decision, Ext. P28, recorded by the doctor, PW30, which also discloses conclusively that she had stated that the accused had poured a liquid on her. Thus, there are three dying declarations in this case, each of them is convincing. All of them are in same line without contradictions. So those cannot, but be believed.

The liquid is nothing other than the acid purchased as per Exts. P11 and P12 bills taken into custody as per Ext. P6 search list. This has been corroborated by the evidence of PW17, shop employee, who attested Ext. P13 mahazar whereby the bill books concerned has been seized from the shops and PWs. 18 and 21 the partners of the shop wherefrom the acid and a jug to store it had been purchased. Therefore, there cannot have much dispute with respect to the fact that the accused had poured acid on the deceased. It stands conclusively proved beyond doubt. Proof of motive is immaterial in such situation. -

Then comes the second limb of argument that even if the accused had poured acid, he cannot be convicted for the offence punishable u/s 302 IPC. It is submitted that there was no evidence on record to show that the injury sustained as result of pouring acid was sufficient in the ordinary course of nature to cause death. There is no evidence in this regard either from PW.23 or from PW24, the doctors examined in this case.

It is further submitted that though death had occurred in this case, it was after 37 days. It may be due to the infection on the injuries. Whether the injuries were sufficient in the ordinary course of nature has to be examined not with reference to the date of death, but with reference to the date on which it was inflicted. There may be other intervening factors to accelerate the death. In the absence of production of details regarding the treatment given to the deceased, it cannot be concluded that the death was not due to other intervening factors. In this regard, the decisions in Harish Kumar Vs. State (Delhi Administration), , Kishore Singh and Another Vs. The State of Madhya Pradesh, Jayaraj Vs. State of Tamil Nadu, , Kishan Chand and another Vs. State of Punjab, and Sarabjeet Singh and Others Vs. State of Uttar Pradesh, , are relied on.

The Supreme Court, in Harish Kumar''s case, where the doctor had spoken that the injury was sufficient in the ordinary course of nature to cause death (see para 6), held as follows:

"We have seen the natureof the injuries and also the time gap between the time of infliction of the injury till the date of death which was two days after the injury was inflicted. We have no sufficient material as to the nature of the treatment given to the deceased during those two days".

The Supreme Court in that case further held that:

"Under these circumstances, though the injury had resulted in the death of the deceased, we cannot conclusively say that it was sufficient to cause his death. Accordingly, the offence would be one falling u/s 304 Part II of IPC".

Situation there was almost similar to the one on hand. Moreover, here the death was after 37 days. Here the doctors have not stated that the injuries inflicted would, in the ordinary course of nature cause death. Therefore, this is a case where the dictum in the said case can easily be applied.

In Kishore Singh''s case, the Supreme Court held as follows:

"The Court will have to judge objectively from the nature of the injuries and other evidence, including the medical opinion, as to whether the injuries intentionally inflicted by the appellants on the deceased were sufficient in the ordinary course of nature to cause death. In judging whether the injuries inflicted are sufficient in the ordinary course of nature to cause death, the possibility that skilful and efficient medical treatment might prevent the fatal result is wholly irrelevant.

Having regard to the entire evidence the circumstances of the case and in view of the somewhat hesitant medical opinion with regard to the cause of death given by the three doctors and the further fact that the deceased died a month after the occurrence, we think that Clause 3rdly of Section 300 IPC has not been established beyond reasonable doubt in this case. The evidence fulfils one of the ingredients of Section 299, namely, that the appellants caused the death by doing an act with the intention of causing such bodily injury as is likely to cause death as deposed to by the surgeon (PW12).

The distinction between the expression "likely to cause death" and "sufficient in the ordinary course of nature to cause death" is significant, although rather fine, and sometimes deceptive. At any rate in view of the somewhat discrepant medical opinion the appellants are entitled to the benefit and we hold that it is a fit case where the conviction of the appellants should be u/s 304 (Part I) I.P.C.".

Here also, the evidence given by two doctors, PWs. 23 and 24 and Exts. P16 wound certificate and Ext. P17 post mortem certificate do not indicate that injuries inflicted were sufficient in the ordinary course of nature to cause death. The medical opinion is of a "hesitant or discrepant" tone. The death also occurred almost after 37 days. Therefore, the aforesaid dictum in Kishore Singh has to be applied in this case.

In Jayaraj''s case, the Supreme Court held that:

"As a matter of fact, it was incumbent on the prosecution to question the medical witness specifically as to whether all or any of the injuries found on the deceased was sufficient to cause death in the ordinary course of nature. But it was not done".

There also, the situation was the same. So, borrowing the words of the Supreme Court in the said case, we have to hold in this case that,

"There is therefore no escape from the conclusion that the prosecution had failed to provide beyond all manner of doubt that this injury......... of the deceased was sufficient to cause death in the ordinary course of nature. The act of the appellant did not amount to murder, the nature of the offence committed would be culpable homicide not amounting to murder".

In Kishan Chand''s case, an intervening circumstance has been examined. There, the death took place two weeks after the incident. The Supreme Court noticed that:

"The doctor who conducted the post mortem found puss all over the injury".

In this case, PW.24 doctor has mentioned clearly that there was infection. The death was also 37 days later than the incident. So as held in Kishan Chand''s case by the Supreme Court, in this case also,

"It is, therefore, difficult to say that the death was direct result of the injury. ....The injured died after two weeks and may be due to an intervening cause. Thus the offence committed by him would not amount to murder but would be one culpable homicide not amounting to murder punishable u/s 304, Part II, IPC".

In this regard, it is worthwhile to quote from Sarabjeet Singh''s case.

"Primarily in any action taken by the criminal, by state of mind is very relevant. The stage of mind may either disclose intention or knowledge and that is a very relevant factor."

Thus, the correlation between the injury and its outcome has not been established, in this case through the evidence of the doctors, PWs. 23 and 24. The death also took place far later, after 37 days. There was intervening circumstance of infection as well.

It is true, as pointed out by the Public Prosecutor that it has been established that a bodily injury has been caused by the accused on the deceased and the nature of the injury is also proved. But these are purely objective infestations. It must further be proved that there was intention to inflict that particular injury. That also is proved here, as rightly contended by the Public Prosecutor, as the accused intended burn injury by pouring acid on the deceased. Even that also is not sufficient to result conviction for murder. Apart from those three elements it must further be proved that:

"The injury of the type which is described made up of three elements set out above was sufficient to cause death in the ordinary course of nature".

This proof is totally absent in this case. The evidence of PWs. 23 and 24, the doctors, is not sufficient to indicate so, especially in the absence of hospital case records for 37 days before death. Causing of bodily injury by pouring acid in such situation cannot be said to be with the intention to cause death. Therefore, in the absence of such proof, the conviction of the accused for the offence punishable u/s 302 cannot be upheld. As the bodily injury inflicted by the accused was one likely to cause death, it will fall only under Part II of Section 304 of the Indian Penal Code.

Accordingly, we set aside the conviction and sentence passed on the appellant/ accused for the offence u/s 302 IPC by the Court below and find him guilty of the offence punishable under Part II of Section 304 IPC. We sentence him to undergo rigorous imprisonment for 7 years. He will be entitled to set off, the period of imprisonment already undergone by him, u/s 428 Cr.P.C. 1973.