BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01/02/2013 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN AND THE HONOURABLE MR.JUSTICE S.NAGAMUTHU CRIMINAL APPEAL (MD).No.172 of 2006 N.Chellaiah ... Appellant Vs. State by the Inspector of Police, Murappanadu Police Station, Crime No.65 of 2000. ... Respondent PRAYER Appeal is filed under Section 374(2) of the Code of Criminal Procedure to call for the records in S.C.No.369 of 2001, on the file of the learned Additional Sessions Judge, [Fast Track Court No.I], Tuticorin, dated 07.10.2003 and set aside the same. !For Appellant ... Mr.R.Ramasamy ^For Respondent ... Mr.A.Ramar Additional Public Prosecutor - - - - - :JUDGMENT
************* [Judgment of the Court was delivered by S.NAGAMUTHU, J.] The appellant is the sole accused in S.C.No.369 of 2001, on the file of the learned Additional Sessions Judge, [Fast Track Court No.I], Tuticorin. He stood charged for offences under Sections 341, 302, 326 and 506(ii) of the Indian Penal Code. By Judgment dated 07.10.2003, the Trial Court has convicted him under all the charges. For the offence under Section 341 of the Indian Penal Code, the Trial Court has sentenced him to undergo rigorous imprisonment for one month and to pay a fine of Rs.100/-, in default to undergo imprisonment for one week, for the offence under Section 302 of the Indian Penal Code, to undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default to undergo imprisonment for six months, for the offence under Section 326 of the Indian Penal Code, to undergo rigorous imprisonment for three years and to pay a fine of Rs.500/- in default to undergo imprisonment for six months and for the offence under Section 506(ii) of the Indian Penal Code, to undergo rigorous imprisonment for one year and to pay a fine of Rs.500/- in default to undergo imprisonment for one month. Challenging the said conviction and sentence, the appellant has come up with this Criminal Appeal.
2. The case of the prosecution, in brief, is as follows:- The deceased, in this case, was one Mr.S.Shanmugavel. PW-1 is his wife and PW-2 is the son of the deceased. PW-3 is the father-in-law of PW-2. Two years prior to the occurrence, there arose a dispute between the deceased and the accused in respect of cutting of acacia trees. This resulted in a criminal case against the deceased, PW-2, one Marimuthu and few others. This is projected as the motive for the occurrence.
2.1. On 29.03.2000, at about 10.00 AM, PW-1 and the deceased were proceeding through the land of one Annamalai Thevar. At that time, the accused came there with a sickle in his hand. He shouted at the deceased saying that he would not leave the deceased without wrecking vengeance. So saying, the accused cut the deceased with sickle. The deceased warded off the said attack by his hands. The blow fell on the right forehand. Then, the accused cut him on the right side of the abdomen of the deceased. The injury was so deep and the intestine protruded out. PW-1 attempted to rescue the deceased. Immediately, the accused cut PW-1 on her right hand, left hand, right shoulder and right upper hand, repeatedly with sickle. PW-2 and PW-3 were then working in a nearby field. On hearing the alarm raised, they rushed towards the place of occurrence and witnessed the entire occurrence. On seeing them, the accused criminally intimidated them by brandishing sickle against them. Then, the accused fled away from the scene of occurrence with the weapon.
2.2. PW-2 and PW-3, forthwith, took PW-1 and the deceased to the Government Medical College Hospital at Palayamkottai, Tirunelveli District. PW- 12, Dr.S.Rajan, examined the deceased at 11.05 AM, on 29.03.2000. The deceased told him that on 29.03.2000, at 10.00 AM, in a field at Agaram, he was attacked by a known person with sickle. The deceased was, at that time, fully conscious. He noticed two injuries on his body as follows:-
“(i) A cut injury measuring 15 x 3 cm-traverse- on the right side of the abdomen.
(ii) A cut injury on the right upper arm measuring 15 x 4 x 3 cm exposing the bone.”
According to P.W.12, from out of the X-ray taken and on his own assessment, both the injuries were grievous in nature.
2.3. On the same day, at 11.10 AM, he examined PW-1, who told that at 10.00 AM, on 29.03.2000, in a field at Agaram, she was attacked by a known person with sickle. PW-12 noticed the following injuries:- “1. A cut injury on the right arm above elbow measuring 2 X + cm.
2. A cut injury measuring 5 cm X + X + cm at the right shoulder.
3. A cut injury measuring 2 X 1 cm on the left arm.
4. A swelling on the middle of left arm.”
2.4. X-ray was taken on PW-1, which revealed that the injuries 1 and 2 were grievous in nature. PW-1 and the deceased were admitted in the hospital as inpatients. P.W.12 opined that the injuries on the deceased as well as on PW- 1 would have been caused by a weapon, like sickle. He gave an intimation to the police as well as to the learned Judicial Magistrate in respect of the same.
2.5. PW-17 was the then Judicial Magistrate No.6 at Tirunelveli. On receipt of the intimation from the Hospital Authorities, he proceeded to the hospital at 12.05 PM. One Dr.Ramakrishnan was attending on the deceased. Dr.Ramakrishnan opined that the deceased was conscious and was in a fit state of mind to make dying declaration. On his own assessment and also based on the opinion of Dr.Ramakrishnan, PW-17 was satisfied that the deceased was in a fit state of mind to make dying declaration. Accordingly, he recorded the dying declaration given by the deceased, [vide EX-P26]. In the said dying declaration, the deceased told that due to previous enmity, the accused cut him with sickle. [Dr.Ramakrishnan was not examined before the Trial Court, as he had gone abroad]. PW-15 was a Head Constable, attached to the Murappanadu Police Station. PW-16 was the then Sub – Inspector of Police, attached to the said Police Station. On receipt of intimation from the Hospital Authorities, PW-15 and PW-16 proceeded to the hospital at 12.25 PM, on 29.03.2000. The deceased gave oral complaint to PW-16. Since PW-16 could not write, as he had met with an accident, PW-15 reduced the same into writing. EX-P1 is the statement. On returning to the Police Station, PW-16 registered a case in Crime No.65 of 2000 under Sections 341, 302, 326 and 506(ii) of the Indian Penal Code. PW-16 forwarded the statement, EX-P1 and the First Information Report, EX-P24 to the jurisdictional Magistrate. Then, he handed over the case diary to the Inspector of Police for investigation.
2.6. PW-18, the then Inspector of Police, attached to the Murappanadu Police Station, took up the case for investigation at 03.00 PM, on 29.03.2000. He proceeded to the place of occurrence and prepared an Observation Mahazer, EX-P3 and a Rough Sketch, EX-P27, showing the place of occurrence in the presence of PW-4 and another witness. Then, he recovered bloodstained earth and sample earth from the place of occurrence under a mahazer in the presence of the same witnesses. Then, he examined PW-2 to PW-4 and recorded their statements. At 07.30 PM, he examined the deceased at the hospital and recorded his statement. [The said statement, though a dying declaration, falling within the sweep of Section 32 of the Indian Evidence Act, 1872, has not been proved in evidence by the prosecution]. Then, he examined PW-1. He recovered the dress materials of PW-1 and the deceased.
2.7. On 31.03.2000, the accused surrendered before the learned Judicial Magistrate No.V, Tirunelveli. On the orders of the learned Judicial Magistrate, on 10.04.2000, PW-18 took the accused into his custody. On the same day, at 06.30 PM, while in the Police Station, the accused gave a voluntary confession in the presence of PW-6 and another witness. In the said confession, he had disclosed that he had hidden the sickle in his house. In pursuance of the said statement, he took PW-18 and the witnesses to his house and produced the sickle, [MO-1]. Then, he forwarded the accused to the Court for judicial remand and also produced the Material Objects before the Court.
2.8. While so, at 06.00 AM, on 22.04.2000, the deceased died in the hospital. PW-19 was the then Inspector of Police, attached to the Murappanadu Police Station. On receipt of the death intimation from the Hospital Authorities, he altered the case into one under Section 302 of the Indian Penal Code. Then, he proceeded to the hospital and conducted inquest on the body of the deceased between 10.00 AM and 12.30 PM. EX-P28 is the Inquest Report. During inquest, he again examined PW-1, PW-2 and few more witnesses and recorded their statements. Then, he forwarded the dead body for postmortem. PW-13, Dr.K.Selvaraj, was an Assistant Professor, Forensic Medicine, Tirunelveli Medical College Hospital, Tirunelveli. He conducted autopsy on the body of the deceased between 12.50 PM and 1.50 PM, on 24.04.2000. He found the following injuries:-
“1.Partly healed vertically oblique cut injury with evidence of suturing on the right lateral abdomen, 16 X 5 CM entering into the abdominal cavity.
2. Sutured vertically oblique cut injury on the back, outer aspect of and front of right forearm, 15 cm below the right elbow, measuring 15 cm X 5 cm X bone deep.
On dissection: fracture of right radius with surrounding infection.
3. Sutured incised wound in the front of abdomen in the middle with proline sutures. 18 cm X 1 cm entering peritoneal cavity, through the lower part of the wound a loop of intestine seen protruding out. [end to end anastomosis of the intestine has been done] [surgical procedure].
4. Durainage wounds on the right and left flanks of abdomen with corrugated rubber drainage tubes in situ [surgical procedure].”
2.9. He opined that the deceased would appear to have died of cut injuries – abdomen and its complications. PW-19 collected the Postmortem Certificate and examined the doctor. Then, he made a request to the Court to forward the Material Objects for chemical examination. EX-P16 is the Chemical Analyst Report and EX-P17 is the Serology Report. As per EX-P16, there was bloodstain found on the sickle [MO-1].
2.10. Finally, on completing the investigation, PW-19 laid charge sheet against the accused. The Trial Court framed charges under Sections 341, 302, 326 and 506(ii) of the Indian Penal Code. The accused pleaded innocence, and therefore, he was put on trial. During trial, on the side of the prosecution, as many as nineteen witnesses were examined and twenty eight documents were exhibited, besides, five Material Objects.
3. Out of the said witnesses, PW-1 is the injured eye witness and PW-2 and PW-3 are the eye witnesses to the occurrence. They have vividly spoken to about the entire occurrence. PW-6 has spoken to about the recovery of MO-1, sickle on the disclosure statement made by the accused. PW-12 has spoken to the fact that he admitted PW-1 and the deceased as inpatients in the hospital. PW-13 has spoken to about the postmortem conducted by him and the cause of death. PW- 15 and PW-16 have spoken to about the complaint made by the deceased and the registration of the case. PW-17 has spoken to the fact that he recorded the dying declaration of the deceased. The others are the official witnesses.
4. When the above incriminating materials were put to the accused under Section 313 of the Code of Criminal Procedure, he denied the same as false. However, he did not choose to examine any witness on his side nor to exhibit any document in his defence. Having considered all the above materials, the Trial Court found him guilty under all the charges, and accordingly, punished him. That is how, the appellant is now before this Court with this Criminal Appeal.
5. We have heard the learned counsel for the appellant and the learned Additional Public Prosecutor for the State and also perused the records carefully.
6. As we have already pointed out, PW-1 is an injured eye witness. Due to the attack made by the accused with sickle, she had suffered two fractures. According to the medical evidence, the said injuries were grievous in nature. There is no controversy before this Court that PW-1 and the deceased sustained injuries in the very same transaction. Therefore, the presence of PW- 1, at the time of occurrence, cannot be doubted at all.
7. PW-2 is the son of the deceased and PW-3 is the father-in-law of PW-2. Of course, they are inimical towards the accused. It is on this ground, the learned counsel for the appellant would contend that these two witnesses cannot be believed at all, and their presence, at the time of occurrence, cannot be true. But, we do not find any force in the said argument advanced by the learned counsel for the appellant. PW-2 and PW-3 have stated that they were working in a nearby field at Aharam and on hearing the alarm raised, they rushed to the place of occurrence and witnessed the entire occurrence. Simply because PW-2 and PW-3 are closely related to the deceased and enimical towards the accused, their evidence cannot be rejected. In our considered view, the evidences of PW-2 and PW-3 deserve to be accepted.
8. Immediately, after the occurrence, PW-2 and PW-3 took PW-1 and the deceased to the hospital. On 29.03.2000, at 11.05 AM, when PW-12 examined PW-1, she told that she was attacked by a known person at 10.00 AM, on 29.03.2000 with sickle. The said statement duly corroborates the evidence of PW-
2. The deceased also told PW-12 that he was attacked by a known person with sickle at 10.00 AM, on 29.03.2000. This statement falls within the sweep of Section 32(1) of the Indian Evidence Act, 1872, as a dying declaration.
9. Nextly, PW-17, the learned Judicial Magistrate, recorded the dying declaration of the deceased at 12.15 PM. One Dr.Ramakrishnan, who was attending on the deceased, certified that the deceased was in a fit state of mind to make dying declaration. It is the contention of the learned counsel for the appellant that in the absence of the examination of Dr.Ramakrishnan, it cannot be held that the deceased was in a fit state of mind to make dying declaration. The said argument of the learned counsel, in our considered opinion, deserves only to be rejected, for the reason that PW-17 has stated that not only on the basis of the opinion offered by Dr.Ramakrishnan, but on his own assessment, from the answers given by the deceased to the questions put by him, he was satisfied that the deceased was in a fit state of mind to make dying declaration. At this juncture, we may point out that the opinion of the doctor is only a guiding factor to a Magistrate to arrive at a satisfaction regarding the mental fitness of an injured person. Ultimately it is only the subjective satisfaction of the Magistrate about the mental fitness of the declarant that matters.
10. In this case, PW-17 has categorically stated that from the opinion of the doctor and out of his own assessment, he was satisfied that the deceased was in a fit state of mind to make dying declaration. In respect of the non – examination of Dr.Ramakrishnan, there is explanation offered by the prosecution that the said Dr.Ramakrishnan had gone abroad, and therefore, his presence could not be secured. Thus, we hold that EX-P26, dying declaration, recorded by PW-17 does not carry any infirmity with it. In the said dying declaration, the deceased had stated that he was cut by the accused with sickle, at 10.00 AM, on 29.03.2000. There is no reason to reject the said judicial dying declaration recorded by PW-17.
11. Next comes the complaint given by the deceased to PW-15 and PW- 16, at 12.25 PM. The deceased gave a statement orally to PW-16 and the same was reduced into writing by PW-15, [vide EX-P1]. This statement is yet another dying declaration. In the said dying declaration also, the deceased had stated that he was cut by the accused with sickle. There is no reason to doubt this dying declaration as well.
12. During the course of investigation, PW-18 recorded the statement of the deceased under Section 161 of the Code of Criminal Procedure. In the said statement also, we find that the deceased said about the circumstances leading to his cause of death. The said statement, therefore, is a dying declaration falling within the ambit of Section 32 of the Indian Evidence Act, 1872. But, unfortunately, the prosecution has not proved the same in evidence. We apprehend that the prosecution was under the mistaken impression that the said statement recorded under Section 161 of the Code of Criminal Procedure is not admissible in evidence, in view of the bar contained in Section 162 of the Code of Criminal Procedure. For a moment, the prosecution had failed to notice the proviso to Section 162 of the Code of Criminal Procedure, which makes it clear that a statement, falling within the ambit of Section 32 of the Indian Evidence Act, 1872, as a dying declaration, is admissible in evidence and the bar contained in Section 162 of the Code of Criminal Procedure is not applicable to such a dying declaration. In the instant case, unfortunately, the prosecution has failed to make use of the said dying declaration.
13. In respect of the recovery of the Material Object, [MO-1], on the disclosure statement made by the accused, we are not prepared to attach much importance on the same, as there was no bloodstain found on the said weapon, as opined by the analyst.
14. From the above said eye – witness account of PW-1 to PW-3 and the two dying declarations, referred to above, we hold that the prosecution has succeeded in proving that it was this accused, who had caused injuries on the deceased as well as on PW-1. We further hold that the accused had criminally intimidated PW-2 and PW-3, when they rushed to the place of occurrence.
15. Yet another contention of the learned counsel for the appellant is that the cause of death, in this case, was not directly attributable to the act of the accused, and therefore, according to the learned counsel, it is doubtful as to whether the death of the deceased is a homicide. In order to appreciate the said contention, let us have a cursory look into the Postmortem Certificate and the evidence of PW-12 as well as the evidence of PW-13. At the time when the deceased was admitted by PW-12, he noticed a cut injury on the abdomen, measuring 15 X 3 cms. From 29.03.2000 onwards, the deceased was undergoing treatment in the hospital and he died at 06.00 AM, on 22.04.2000. Thus, he was in the hospital for 24 days as an inpatient, undergoing treatment. PW-13, who conducted autopsy on the body of the deceased, noticed as many as four external injuries.
16. Two of those injuries were surgical wounds. The injury found on the abdomen was partly healed and the other injury found on the forearm was also partly healed. But, almost all the internal organs were infected and there was puss found profusely in the internal organs. According to the doctor, the death was due to the cut injury to the abdomen and its complications. In other words, according to him, the death was due to infection and the injury to the abdomen.
17. From the said opinion of the doctor, PW-13, it is crystal clear that the death would not have occurred but for the injuries caused on the deceased. The injuries developed certain complications, like infection and eventually, it resulted in death. Therefore, it cannot be said that the death of the deceased is not attributable to the act of the accused. In our considered opinion, the death was caused only by the act of the accused, and therefore, it is a homicide.
18. The next question, which needs to be resolved, is as to whether the said homicide is a culpable homicide in terms of Section 299 of the Indian Penal Code. It is needless to point out that in order to take the shape of a culpable homicide, the act of the accused should fall under any one of the limbs of Section 299 of the Indian Penal Code. The first limb of Section 299 of the Indian Penal Code speaks of the intention of causing death. Here, in the instant case, from the materials available on record, we are satisfied that the deceased had intention to cause the death. Intention is always a matter of inference. Such inference should be reasoned and well founded. Motive, words uttered at the time of occurrence, weapon used, number of injuries, location of injuries, opportunity to complete the task of killing are some of the factors which would weigh in the judicial mind of the Court while deciding whether the accused had intention to kill. In this case, having considered all the above relevant facts, we hold that the accused had definite intention to kill and therefore, the act of the accused would fall under the first limb of Section 299 I.P.C. and so under the first limb of Section 300 I.P.C. It does not fall under any of the special exceptions appended to Section 300 I.P.C.
19. The learned counsel for the appellant contended that the death of the deceased was only due to septicaemia. In other words, according to him, but for the infection, he would not have died. Thus, his contention is that it is not a murder. In this regard, the learned counsel relies on a Judgment of the Hon’ble Supreme Court in B.N.Kavatakar Vs. State of Karnataka reported in 1994 SCC (Crl) 579. In the said case, the deceased was attacked by the accused with lethal weapons causing several injuries. The deceased died in the hospital after five days. According to the Medical Officer, who conducted autopsy on the body of the deceased therein, the death was as a result of septicemia secondary to injuries and peritonitis. In the said case, the Hon’ble Supreme Court took the view that the offence committed by the accused therein would fall under Section 326 r/w Section 34 of the Indian Penal Code and not under Section 302 of the Indian Penal Code. In Paragraph No.9 of the said Judgment, the Hon’ble Supreme Court has held as follows:-
“9. The next question that comes up for our consideration is what is the nature of the offence that the appellants have committed. The Medical Officer who conducted autopsy on the dead body of the deceased has opined that the death was as a result of septicaemia secondary to injuries and peritonitis. As we have indicated above, the deceased died after five days of the occurrence in the hospital. On an overall scrutiny of the facts and circumstances of the case coupled with the opinion of the Medical Officer, we are of the view that the offence would be one punishable under Section 326 read with Section 34 IPC.”
20. Placing reliance heavily on the said Judgment, the learned counsel would contend that in the instant case also, since the death was due to infection, the offence committed by the accused would fall under Section 326 of the Indian Penal Code. In this regard, we would like to examine the issue in a detailed manner by making reference to various Judgments of the Hon’ble Supreme Court and this Court.
21. During the pre-constitutional era, a Division Bench of this Court, while considering a referred trial matter, in Doraisamy Servai Vs. Emperor, reported in 1943 M.W.N. Cr. 185, held that in a case of this nature, the real test is “whether the cause of death is directly associated with the act of the accused ?” That was a case where there were two accused. Out of whom the first accused cut the deceased on the back of the neck with a vettaruval and the second accused was standing by his side holding a stick. When a witness in the case intervened, the second accused cried out “Will you go away or shall I cut you also?” then the first accused cut the witness with aruval on his neck. The deceased was removed to the hospital. He underwent treatment as in-patient. The deceased died after 16 days. According to the Doctors who conducted postmortem, the death was due to septicaemia and pyaemia resulting from the multiple injuries; none of the injuries could each by itself have caused the death, but cumulatively the injuries should prove necessarily fatal in the case of a normal man. The deceased appeared to have had a physique above the normal; he was well built; so in his case, the injuries need not have been necessarily fatal; but they were sufficient in the ordinary course of nature to cause death. Relying on the above medical opinion, it was argued before the Division Bench that since the death was due to septicaemia, the offence would fall either under Section 326 of I.P.C. or Section 304 of I.P.C. While deciding the said question, the Division Bench formulated that the test is whether the cause of death is to be directly associated with the act of the accused. After having referred to various English cases as well as Indian cases, Justice Mockett (O.C.J), speaking for the Bench, held as follows: “It would be a strange position if a man who inflicts a wound causing almost immediate death should be guilty of murder, whilst a man who inflicts a very similar wound from which pneumonia supervenes should not. On the facts of this case it is clear to me that the deceased man, in spite of his physique which is said to have been exceptionally robust, died as a direct result of the injuries inflicted upon him by the appellant; and that the appellant intended his death is evident from the facts. The result was not as immediate as he intended and not perhaps quite in the manner that he intended. But in the processes of nature, in spite of medical attention one of the well-known perils from a wound supervened, namely, blood poisoning, and the deceased died. The chain of causation is in my view direct.” (Emphasis added) On such view, the Division Bench held the accused guilty under Section 302 I.P.C. The Division Bench observed that a person who inflicts such injuries, especially upon a feeble old man, must be presumed to know that he is likely to cause death and thus he intended his death. So holding, the Division Bench held the accused guilty under Section 302 of I.P.C. and accordingly punished him.
22. In State of Haryana Vs. Pala and others reported in (1996) 8 SCC 51, the Hon’ble Supreme Court had an occasion to find a fine difference between the primary effect of the injuries and the secondary effect of the injuries. That was a case where the deceased was hit on his head three times and when the deceased had fallen, the other accused had beaten him thrice on his chest and abdomen. The deceased was taken to the hospital. The deceased died several days later, while in the hospital. The doctor’s opinion in respect of the cause of death was as follows:
“Cause of the death was due to septicaemia, which resulted as a result of the head injury and was sufficient to cause death in ordinary course of nature.” The contention before the Hon’ble Supreme Court was that the offence committed by the accused would not fall under any of the limbs of Section 300 I.P.C. This question was considered in the light of further information given by the doctors which is as follows:
“Septicasemie is the direct result of the head- injury. This is not a disease. In other words, head injury is the cause of death.” The Trial Court convicted the accused, applying clause 3 of Section 300 I.P.C., under Section 302 I.P.C. On appeal, the High Court applied Exception 4 to Section 300 I.P.C. and converted the offence of murder into culpable homicide not amounting to murder and convicted the accused under Section 304 Part II of I.P.C. In the further appeal to the Hon’ble Supreme Court, in paragraph 3 of the judgment, the Hon’ble Supreme Court has held as follows: “3……On the other hand he contended that when death was due to septicasemie, it cannot be referable to the cause of the death in the ordinary course of nature due to anti mortom injuries and that, therefore, the offence of murder has not been made out. In support thereof, he sought to place reliance on Lyon’s Medical Jurisprudence for India (Tenth Edition) at page 222. It is stated therein that “Danger to life depends, primarily, on the amount of hemorrhage, on the organ wounded, and on the extent of shock; secondarily, on secondary hemorrhage, on the occurrence of septicaemia, erysipelas, tetanus, or other complications. In answering the question whether a wound is dangerous to life, the danger must be assessed on the probable primary effects of the injury : Such possibilities as the occurrence of tetanus or septicaemia, later on, are not to be taken into consideration.” Though the learned counsel had not read the later part of the opinion, the medical evidence on record do 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.” (Emphasis added) From the above judgement, it is crystal clear that it is not as though in every case where the death is due to Septicaemia resulting on account of the injuries, the offence would fall outside the scope of Section 300 I.P.C. On the contrary, the distinction lies as to whether the death was due to the primary effects of the injury or due to the secondary effects of the injury. If the injury caused on the deceased itself is either sufficient to cause death or likely to cause death, then depending upon the other circumstances, the offence would fall directly either under the third limb or the fourth limb of Section 300 I.P.C.
23. Similarly, in Jagtar Singh Vs. State of Punjab reported in (1999) 2 SCC 174, the Hon’ble Supreme Court had to decide as to whether the offence would fall within the scope of Section 302 I.P.C. when the death was due to Septicaemia. One of the pleas taken in that case was that Septicaemia had occurred because of improper treatment given. It was further contended that had there been proper treatment, the deceased would not have died. This contention was negatived by the Hon’ble Supreme Court by referring to Explanation-2 to Section 299 of I.P.C. which reads as follows:
“Explanation 2 to Section 299:- Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skillful treatment the death might have been prevented.”
In paragraph 7 of the Judgment, the Hon’ble Supreme Court held as follows: “7.Having given our anxious consideration to the first contention of Mr. Gujral we do not find any substance in it. It is true that Naib Singh died 17 days after the incident due to septecemia, but Dr. M.P.Singh (P.W.1), who held the post-mortem examination, categorically stated that the septicemia was due to the head injury sustained by Naib Singh and that the injury was sufficient in the ordinary course of nature to cause death. From the impugned judgment we find that the above contention was raised on behalf of the appellants and in rejecting the same the High Court observed :- “It is well settled that culpable homicide is not murder when the case is brought within the five exceptions to section 300 Indian Penal Code. But even though none of the said five exceptions is pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses, firstly to fourthly, of Section 300, Indian Penal Code, to sustain the charge of murder. Injury No. 1 was the fatal injury. When this injury is judged objectively from the nature of it and other evidence including the medical opinion of Dr. M.P.Singh (P.W.1), we are of the considered view that injury was intended to be caused with the intention of causing such a bodily injury by Harbans Singh appellant on the person of Naib Singh which was sufficient in the ordinary course of nature to cause death…………….” On perusal of the evidence of P.W.1 in the light of explanation 2 to Section 299 I.P.C . We are in complete agreement with the above quoted observations of the High Court.” (Emphasis supplied) Here it needs to be noted that the death occurred after 16 days of the occurrence due to septicaemia. The injury was on the head. The medical opinion was that the injury itself is sufficient to cause the death of the deceased. Therefore, the Hon’ble Supreme Court did not take into account the secondary effect viz., septicaemia.
24. Then we have yet another judgment of the Hon’ble Supreme Court in Antram Vs. State of Maharashtra reported in (2007) 13 SCC 356. The Hon’ble Supreme Court while approving the view taken in Pala case, cited supra, has held in paragraphs 14 to 17 as follows:
“14. In State of Haryana v. Pala and Ors. (AIR 1996 SC 2962) it was noted as follows :
“In answering the question whether a wound is dangerous to life, the danger must be assessed on the probable primary effects of the injury. Such possibilities as the occurrence of tetanus or septicaemia, later on, are not to be taken into consideration.”
15. In Sudershan Kumar v. State of Delhi (AIR 1974 SC 2328) it was noted as follows:
“The fact that the deceased lingered for about 12 days would not show that the death was not the direct result of the act of the accused in throwing acid on her. So also the fact that the deceased developed symptoms of malaena and respiratory failure and they also contributed to her death could not in any way affect the conclusion that the injuries caused by the acid burns were the direct cause of her death.”
16. As noted above it was emphasized by learned counsel for the appellant that with proper medical care the deceased could have survived and therefore Section 302 IPC has no application. The plea clearly overlooks Exception 2 to Section 299 IPC, which reads as follows:
“Explanation 2.–Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skillful treatment the death might have been prevented.”
17. When the background facts are examined on the touchstone of the principles of law highlighted, the inevitable result is that the appeal is without merit, deserves dismissal, which we direct.”
25. In Veerla Satyanarayana Vs. State of Andhra Pradesh reported in (2009) 16 SCC 316, the Hon’ble Supreme Court was invited to decide a similar question where death was due to septicaemia on account of 60% burn injuries caused by acid. In paragraphs 4 and 5 the Hon’ble Supreme Court has held as follows:
“4. In our view, this submission is not tenable because of the burn injuries. By throwing of the acid on the deceased who was sleeping, septicemia was caused and he died. PW15 (doctor) has made it clear that even in the cases of proper treatment also there is possibility of septicemia. For this purpose, the High Court has rightly referred to and relied upon the decision of this Court in Sudershan Kumar v. State of Delhi . In the said case, the court confirmed the conviction under Section 302 IPC by considering the fact that there was 35% burn injuries by pouring of acid which according to doctor’s evidence was due to toxaemia and septicemia from absorption of toxins. The Court also considered the relevant explanation (2) to Section 299, which provides that
-where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented.
5. In the present case, the prosecution has established beyond reasonable doubt the motive of the accused of causing this injury. It is also established that the act of the appellant in pouring acid on the body of the deceased was pre-planned one; he selected night time when the deceased as well as PW1 were sleeping; he poured the acid which caused 60% burn injuries and as the injuries caused by the appellant were sufficient in ordinary course of nature to cause death, the appellant is rightly held to be guilty of offence punishable under Section 302 of IPC.”
26. Likewise in Munnawar and others Vs. State of Uttar Pradesh and others reported in (2010) 5 SCC 451, there were as many as seven injuries caused on the deceased. The deceased died in the hospital after five days. The medical opinion was that the death was due to septicaemia on account of the infection caused by the injuries. The doctors had further opined that had the deceased been given proper treatment, he might have survived. It is on the basis of this medical opinion, it was contended before the Hon’ble Supreme Court that the offence would not fall within the ambit of Section 302 I.P.C. While negativing the plea, the Hon’ble Supreme Court, in paragraph 24, held as follows:
“24. We see from the injuries that they had been caused from a very close range as tattooing was present. Dr. Anil Kapoor also pointed that injury Nos.1, 3, 6 and 7 were grievous and were fatal to life and all the injuries were sufficient to cause death as they were on sensitive parts of the body and that the injured was under severe shock, and had been given three units of blood at the time of his admission to hospital. In the light of this evidence, we are unable to comprehend as to how the trial court could have concluded that it was the negligence on the part of Dr.Anil Kapoor which had led to septicemia and finally to the death of the patient.”
27. Very recently in State of Rajasthan Vs. Arjun Singh and others reported in (2011) 9 SCC 115, the Hon’ble Supreme Court had to deal with a similar situation where the death occurred after 35 days due to septicaemia on account of gun shot injuries. Speaking for the Bench Hon’ble Mr. Justice P.Sathasivam in paragraph 31 has held as follows:
“31. Finally, learned senior counsel for the accused pointed out that inasmuch as Himmat Raj Singh died after 35 days due to septicemia, the Courts below are not justified in convicting the accused persons for an offence under Section 302 IPC for his death. Considering the medical evidence that Himmat Raj Singh sustained 7 gun shot injuries which were sufficient to cause death in the ordinary course, we are satisfied that the death of Himmat Raj Singh undoubtedly falls within the ambit of 302 IPC. ” (Emphasis supplied)
28. The judgments, thus far, we have referred to are all cases where the Hon’ble Supreme Court found the accused guilty under Section 302 I.P.C., though the death was due to septicaemia on account of the injuries.
29. Now let us have a look into some of the decisions of the Hon’ble Supreme Court where the Hon’ble Supreme Court has convicted the accused under Section 304 I.P.C. where also death was due to septicaemia on account of the injuries. In Jharmal and others Vs. State of Haryana reported in 1994 SCC (Crl.) 593 the deceased sustained injuries on the head due to single blow with an iron pipe. He died after 17 days due to septicaemia. The Court below convicted the accused under Section 302 I.P.C. but the Hon’ble Supreme Court reversed the same and convicted the accused under Section 304 part II of I.P.C. In paragraph 6 of the judgement the Hon’ble Supreme Court has held as follows: “6.We find considerable force in this submission. As stated above the occurrence took place on November 18, 1988 and the deceased died 18 days later on December 5, 1988 due to septicaemia and other complications. The Doctor found only one injury on the head and that was due to single blow inflicted with an iron pipe not with any sharp-edged weapon. Having regard to the circumstances of the case, it is difficult to hold that the appellant intended to cause death nor it can be said that he intended to cause that particular injury. In any event the medical evidence shows that the injured deceased was operated but unfortunately some complications set in and ultimately he died because of cardiac failure etc. Under these circumstances, we set aside the conviction of the appellant under Section 302 IPC and the sentence of imprisonment for life awarded thereunder. Instead we convict him under Section 304 Part II IPC and sentence him to undergo six years’ RI. The sentence of fine of Rs 2000 along with default clause is confirmed. Accordingly the appeal is partly allowed.”
30. In Maniben Vs. State of Gujarat reported in (2009) 8 SCC 796 the deceased died after 8 days of the incident in which the deceased had sustained burn injuries. The accused had thrown a burning wick made of rags on the deceased and thereby set fire to the terylene clothes put on by the deceased. In paragraph 20 of the judgment it was held as follows:-
“20. There is also evidence on record to prove and establish that the action of the appellant to throw the burning tonsil was preceded by a quarrel between the deceased and the appellant. From the aforesaid evidence on record it cannot be said that the appellant had the intention that such action on her part would cause the death or such bodily injury to the deceased, which was sufficient in the ordinary course of nature to cause the death of the deceased. Therefore, in our considered opinion, the case cannot be said to be covered under clause (4) of Section 300 of IPC. We are, however, of the considered opinion that the case of the appellant is covered under Section 304 Part II of IPC.”
31. In Shanmugam @ Kulandaivelu Vs. State of Tamil Nadu reported in (2002) 10 SCC 4, the doctor who attended the deceased in the hospital stated that the immediate cause of death was infection and also on account of oozing of excreta from the colon and wounds that got infected and became septic. But his evidence did not lead to a definite conclusion that the death could be caused in the ordinary course of nature. The evidence of the doctor who conducted the post mortem also was not categorical so as to form a definite opinion that the injuries inflicted on the deceased were sufficient in the ordinary course of nature to cause death. According to the doctor, the death occurred as a result of onset of septicemia because of puss and infection. He further opined that the wounds on the gall bladder were capable of causing death. But during the cross examination, the doctor stated that it cannot be stated with certainty that the wounds on the gall bladder would result in death. In those circumstances, the Hon’ble Supreme Court held as follows:
“At the same time, the nature of injuries and the medical opinion unmistakably point to the fact that the bodily injuries inflicted on the deceased were of such nature that they were likely to cause death. There can be no doubt that the accused intended to cause and did cause the injuries. We are, therefore, of the view that the appellant is liable to be punished under the first Part of Section 304 IPC.” (Emphasis supplied)
32. From these judgments one can easily perceive the difference. In these cases, the Court held there was no intention to cause death. The medical opinion was not certain as to whether the injuries, caused with intention, would have been sufficient to cause the death in the ordinary course of nature or not. But, the medical opinion was to the effect that the injury is likely to cause death. It was because of these reasons, the Hon’ble Supreme Court held that the offence would fall only under Section 304 I.P.C.
33. There are few more cases which need to be looked into, wherein, the Courts have held that the offence would fall under Section 326 I.P.C. where death was due to septicaemia on account of the injuries.
34. In B.N.Kavatakar case (cited supra), upon which much reliance has been placed by the learned counsel for the appellant, the death occurred in the hospital after five days due to septicaemia . But a reading of the judgment would go to show that it does not reflect the nature of the injury and whether the cause of death was primarily due to the injury or due to the secondary cause, like infection. Therefore, the said judgment cannot be taken to have laid down any guidance on this aspect.
35. A Division Bench of this Court in Balu @ Balusamy Vs. State reported in 1996 (1) MWN (Cr.) 238 considered the scope of B.N.Kavatakar case (cited supra). In the case before the Division Bench, there were as many as four injuries on the body of the deceased, all were caused by knife. There were also blood stains on the body of the deceased. The doctor who conducted the autopsy opined as follows:
“The deceased would appear to have died of septicaemia and shock due to multiple injuries sustained.”
In that case, except injury No.5, the other injuries were all surgical wounds. The doctor further opined that the cumulative effect of all the injuries and post-operation shock and septicaemia, resulted in the death of the deceased. In paragraph No. 15 and 16 the Division Bench has held as follows: “15. Medical evidence afforded by P.W.5 and P.W.6 corroborates the ocular testimony of P.Ws. 1 to 3 about infliction of stabs by the appellant on the deceased, P.W.1 and P.W.2. If P.W.1 was not in the nearness of the deceased he would not have been in a position to prevent the appellant, when he was attacking his wife and that is one more reason, which highlights that the deceased and P.W.1 were together or in the vicinity of the other, when the appellant had arrived at his residence. As rightly pointed out by Mr.T.Sudanthiram, the deceased had died five days later and the cause of death, in the words of P.W.6, is the cumulative effect of all the injuries and post- operation shock and septicaemia. When he has stated “all the injuries”, we have to take it, to include, the surgical injuries as well. If those injuries had also caused shock and septicaemia, ultimately leading to the death of the deceased, it will be unfair and odd to hold that the accused had the mens rea to murder.
16. On auditing of the totality of facts available, we are satisfied that the appellant could be held to have had knowledge that by his act, he was likely to cause the death of the deceased. We have said enough and more about the circumstances under which the appellant had inflicted, for all practical purpose, a single stab. The appellant, therefore cannot be held to be guilty of murder. IN 1994 SCC (Crl.) 579, on the fact perspective before it, the Supreme Court held that when the Medical Officer who conducted autopsy had opined that the death was the result of septicaemia secondary to injuries to peritonitis, the offence committed by the accused therein would be punishable under Section 326 read with Section 34, I.P.C. In the present prosecution, we have from Exs.P- 12 and P-15, the statement of the deceased herself, which, we are prepared to accept, that the appellant had exclaimed that she was cheating him for a long time and he would not leave her. This fact will make all the difference and we satisfied, that properly, in the instant case, the appellant can be convicted under Section 304 Part II, I.P.C. and not under Section 326, I.P.C. peculiar facts available in each case would have to dictate the nature of offence that could be held to have been committed by the accused.”
36. In yet another judgment in Chinnathambi @ Kakkayan Vs. State reported in 1990 (1) MWN (Cr.) 204, the accused had caused stab injuries on the deceased with a knife. The deceased died after four days in the hospital. The doctor opined that the death was caused by septicaemia due to peritonitis. But the Doctor would not come forward to say that the single injury found on the body of the deceased was by itself sufficient in the ordinary course of nature to cause death. While considering the said medical opinion, the Division Bench in paragraph 6 of the judgment has held as follows:
“6….. Therefore, there is no sufficient evidence on record to show that the accused has caused the death of Ramu. However, there is overwhelming evidence to show that the stab injury was inflicted by the accused on the deceased Ramu on 22.03.1983. In fact, the learned counsel for the accused would no longer dispute that fact. Therefore, the accused would be only guilty of the offence under Section 326 I.P.C….” (Emphasis supplied) In this case, the Division Bench did not accept the opinion of the doctors that the death was due to the injuries. Thus holding that the death was not caused by the accused, the Division Bench convicted the accused under Section 326 of I.P.C.
37. From the three sets of judgments which we have dealt with herein above, the point of difference is easily decipherable, which is thin but fine. In all these cases referred to above, one common feature is that the death was due to septicaemia on account of the injuries. In this context we would like to mention that there is a general tendency to contend in such cases, that if once it is found that the death is due to septicaemia, the offence would fall either under Section 304 of I.P.C. or under Section 326 I.P.C. and not under Section 302 of I.P.C. We have seen in our experience, in many judgments of the Trial Courts, there is a slight lack of clarity on this subject. That is the reason why, we have undertaken the exercise to refer to all the three sets of judgments. From the above judgments and the discussions we have made supra, we may state that the point of difference is this: “whether the death was primarily due to the injuries or due to the secondary cause namely supervening cause like septicaemia, tetanus etc.,?”
38. If it is proved that the injury is fatal and the intention was to cause the death, though the death occurred after several days after septicaemia had supervened, it is undoubtedly a murder as it falls within the first limb of Section 300 I.P.C.
39. If it is proved that the injuries by themselves are sufficient to cause death in the ordinary course of nature and if it is established that those injuries were the intended injuries, though the death occurred after septicaemia had supervened, the act of the accused would squarely fall under the third limb of Section 300 I.P.C. and the accused is therefore liable to be punished under Section 302 of I.P.C.
40. If it is proved that the injuries are imminently dangerous to life, though the death had occurred after septicaemia had supervened, then the act of the accused would squarely fall under the fourth limb of Section 300 I.P.C., provided the other requirements like knowledge on the part of the accused etc., are satisfied and so the accused will be liable to be punished under Section 302 of I.P.C. Here also, the primary cause of the death is the injuries and septicaemia, tetanus etc., are only the secondary cause.
41. On the contrary, if it is clear that the injury is neither fatal nor likely to cause death nor sufficient to cause death or that the injury has nothing to do with the death, then, the offence would fall neither under Section 302 I.P.C. nor under Section 304 I.P.C. Let us illustrate the point of difference as follows:
Illustration – A:-
With a small iron pipe, the accused causes an injury on the tip of the right hand little finger of the deceased. There is an open wound on the tip of the finger and the bone is exposed. The deceased does not take treatment at all and the injury results in infection and septicaemia. The deceased dies of the same after thirty days of the occurrence.
Illustration – B:-
The accused causes an injury with formidable weapon like sickle on the neck. There is huge loss of blood. The deceased is taken to the hospital, where skilled doctors give treatment in a higher medical institute having all latest equipments. Life saving drugs are given. The injured survives for thirty days and dies due to septicaemia due to injury.
Illustration – C:-
The accused cut the deceased on his hand with a sickle and severs the hand, resulting in huge loss of blood. The deceased is taken to the hospital and treated by skilled doctors. Notwithstanding the same, he develops septicaemia due to the injuries and dies after thirty days due to septicaemia.
42. In these three illustrations, though death occurred due to septicaemia after thirty days, these cases cannot be equated to each other. There is a world of difference which we may explain thus:-
(a) So far as illustration ‘A’ is concerned, it cannot be said at any stretch of imagination that a small injury caused on the little finger fracturing a bone is either likely to cause or sufficient to cause death in the ordinary course of nature. Similarly it cannot be stated that the said injury is so imminently dangerous that it must, in all probability, cause death. The primary cause of death is not the injury. Thus, the act of the accused would not fall either under Section 299 I.P.C. or under Section 300 of I.P.C. Therefore, in Illustration – A, the accused will be convicted only for an offence punishable under Section 326 of I.P.C.
(b) In the Illustration – B, the injury is on a vital organ viz., neck. There is huge loss of blood. Here, the medical opinion is that the said injury is primarily sufficient to cause death in the ordinary course of nature. Here, though there is septicaemia, the primary cause is the injury and septicaemia is only a secondary cause and so the offence would squarely fall under the third limb of Section 300 I.P.C. unless the same falls under any of the special exceptions appended to Section 300 of I.P.C. Here, the accused is liable to be punished under Section 302 of I.P.C.
(c) In illustration – C, the medical opinion is that severance of hand by cutting is likely to cause death. Here also the primary cause is the injury though there was secondary cause viz., septicaemia. But, the said injury is not sufficient to cause the death in the ordinary course of nature. Here, the offence would not fall under any of the limbs of Section 300 I.P.C. But it would fall under the third limb of Section 299 I.P.C. So the accused is liable to be punished under Section 304 of I.P.C.
43. Now turning to the facts of the case, the injury was caused on the abdomen and such injury was undoubtedly the intended injury. If no treatment was given, the death would have been imminent. The death was postponed by 24 days because of the medical intervention. In illustration-A, the death occurred after 30 days because there was no treatment given. But here in this case, the death did not occur immediately and it was postponed by 24 days because of the treatment. Thus, in our considered view, the act of the accused would squarely fall under the first limb of Section 300 I.P.C. and therefore he is liable to be punished under Section 302 of I.P.C.
44. Now turning to the quantum of sentence, the Trial Court has imposed only the minimum punishment which does not call for any interference at the hands of this Court. So far as the conviction and sentence for the offences under Sections 326 and 506(ii) of I.P.C. are concerned, we do not find any reason to interfere.
45. In the result, the conviction and sentence dated 07.10.2003 made in S.C.No.369 of 2001, imposed on the appellant by the learned Additional Sessions Judge, [Fast Track Court No.I], Tuticorin, is hereby confirmed and the Criminal Appeal is dismissed.
NB To
1.The Additional Sessions Judge, [Fast Track Court No.I], Tuticorin.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
3.The Inspector of Police, Murappanadu Police Station, Tirunelveli District.