IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 26TH DAY OF AUGUST 2022 / 4TH BHADRA, 1944
CRL.A NO. 1390 OF 2006
AGAINST THE JUDGMENT IN SC NO. 344/2005 ON THE FILE OF ADDITIONAL
DISTRICT AND SESSIONS JUDGE FAST TRACK (ADHOC-I), KOZHIKODE
APPELLANT/ACCUSED :
RAJAN.K.
S/O.JANARDHANANMENON,
CHERUKUTTIPARAMBHA,
MEETHAL P.O.,
NELLIKODE, CALICUT.
BY ADV SRI.P.V.ANOOP
RESPONDENT/COMPLAINANT & STATE:
STATE OF KERALA
REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM.
BY ADV SMT. M.N.MAYA, SR. PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON
26.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2
Crl.Appeal No.1390 of 2006
C.S.SUDHA, J.
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Crl.Appeal No.1390 of 2006
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Dated this the 26th day of August, 2022
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C., the appellant, the accused in S.C.No.344/2005 on the file of the Sessions Court, Kozhikode, challenges the conviction entered and sentence passed against him for the offence punishable under Section 304 Part II IPC.
2. The prosecution case is that the accused with the intention of causing the death of one Harish, a physically challenged person and with the knowledge that his act would cause the death of the latter, on 06/03/2004 at 9 p.m., while Harish was sitting inside the autorickshaw of PW6, pulled him out of the vehicle as a result of which, Harish fell down on the road resulting in grievous injury to his spinal cord. While under treatment, the injury led to the onset of pneumonia which aggravated, resulting in his death on 21/04/2004 at 12.30 a.m. Hence the accused is alleged to have committed the offence punishable under Section 302 IPC.
3Crl.Appeal No.1390 of 2006
3. On the basis of Ext.P7 FIS of Harish recorded by PW12, the Head Constable of Panniyankara Police Station, registered Ext.P8 FIR, i.e., Crime No.45/2004 on 17/03/2004 at 18.15 hours alleging commission of the offences punishable under Sections 341 and 323 IPC. PW13, another Head Constable of Panniyankara Police Station who is stated to have conducted the preliminary investigation, found the offence under Section 325 IPC to have been committed. Hence, as per Ext.P9 report, the case was converted to one under Section 325 IPC. Thereafter on the death of Harish, PW14, the then S.I., Panniyankara Police Station, who is stated to have verified the investigation conducted by PW13, submitted Ext.P10 report adding Section 302 IPC. PW15, the then C.I., Kasba, is stated to have completed the investigation and submitted the final report alleging the offence punishable under Section 302 IPC.
4. On appearance of the accused before the court below, copies of all the prosecution records were served on him. On 27/08/2005 the court below framed a charge for the offences punishable under Sections 323 and 302 IPC, which was read over and explained to the accused to which he pleaded not guilty. The prosecution examined PWs.1 to 17 and got marked Exts.P1 to P14 in support of their case. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. with regard to the 4 Crl.Appeal No.1390 of 2006 incriminating circumstances appearing against him in the evidence of the prosecution. He denied those circumstances and maintained his innocence. He also submitted a statement in writing in which he contends that he is a sympathizer of CPI(M) and hence there is political rivalry with the Congress party. The person responsible for the death of Harish is one Rajan from Nallakath. However, the Congress party workers of Panniyankara, influenced the police and has succeeded in getting the false case registered against him.
5. As the court below did not find it a fit case to acquit the accused under Section 232 Cr.P.C., the accused was asked to enter on his defence and adduce evidence in support thereof. No oral evidence was adduced by the accused. Ext.D1 is the contradiction brought out in the testimony of PW16.
6. On a consideration of the oral and documentary evidence and after hearing both sides, the court below by the impugned judgment, convicted and sentenced the accused to rigorous imprisonment for seven years and to pay a fine of `10,000/- for the offence punishable under Section 304 Part II IPC and in default of payment of fine, to undergo rigorous imprisonment for one year. The accused has also been sentenced to pay a fine of `1,000/- for the offence punishable under Section 323 IPC and in default of payment of fine, to undergo rigorous imprisonment for two months. It has also been directed that if the fine 5 Crl.Appeal No.1390 of 2006 amount is realised, `10,000/- shall be given to the heirs of the deceased. The sentences have been directed to run concurrently. Set off has also been allowed.
7. The point that arises for consideration in this appeal is, whether the conviction entered and sentence passed against the accused by the court below are sustainable or not ?
8. Heard Sri.P.V.Anoop, the learned counsel for the appellant and Ms.M.N.Maya, the learned Public Prosecutor.
9. As referred to earlier, as per the final report and the court charge, the accused is alleged to have committed the offence punishable under Section 302 IPC. The court below found the accused guilty of culpable homicide not amounting to murder falling under the third limb of Section 299 IPC, i.e., causing death by doing an act with the knowledge that he is likely by such act to cause death. Hence the accused has been convicted and sentenced under Section 304 Part II IPC. According to the learned counsel for the accused, the offence punishable under Section 304 Part II IPC will not also stand against the accused. According to him, the evidence on record is insufficient to prove any offence against the accused. If at all any offence is made out, it can only be an offence punishable under Section 323 IPC, contends the appellant-accused.
10. The principal question that arose for consideration before the trial 6 Crl.Appeal No.1390 of 2006 court was, whether the offence disclosed by the facts and circumstances established by the prosecution against the accused, is 'murder' or 'culpable homicide not amounting to murder.' According to the learned trial judge, the offence made out is 'culpable homicide not amounting to murder' falling under Section 299 (c) of the Penal Code. Let us examine whether this conclusion of the court below is right.
11. The points of distinction between the two offences have been succinctly explained by the Apex court in State of Andhra Pradesh v. Rayavarapu Punnayya, AIR1977 SC 45. It has been held that in the scheme of the Penal Code, 'culpable homicide' is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice versa. Speaking generally 'culpable homicide' sans 'special characteristics of murder' is 'culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, 'culpable homicide of the first degree.' This is the gravest form of culpable homicide, which is defined in S.300 as 'murder'. The second may be termed as 'culpable homicide of the second degree.' This is punishable under the 1st part of S.304. Then, there is 'culpable homicide of the third degree.' This is the lowest type of culpable 7 Crl.Appeal No.1390 of 2006 homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second Part of S.304. In appreciating the points of distinction between the two offences, the following comparative table has been given-
Section 299 Section 300
Subject to certain exceptions culpable
A person commits culpable homicide if the
homicide is murder if the act by which the
act by which the death is caused is done-
death caused is done-
INTENTION
(1) with the intention of causing death;
(a) with the intention of causing death; or
or
(2) with the intention of causing such
(b) with the intention of causing such bodily injury as the offender knows to be
bodily injury as is likely to cause death; or likely to cause the death of the person to
whom the harm is caused; or
(3) with the intention of causing bodily
injury to any person and the bodily injury
intended to be inflicted is sufficient in the
ordinary course of nature to cause death;
or
KNOWLEDGE
(c) with the knowledge that the act is likely (4) with the knowledge that the act is so
to cause death. imminently dangerous that it must in all
probability cause death or such bodily
injury as is likely to cause death, and
without any excuse for incurring the risk
of causing death or such injury as is
8
Crl.Appeal No.1390 of 2006
mentioned above.
11.1. Clause (b) of S.299 corresponds with clauses (2) and (3) of S.300. The distinguishing feature of the mensrea requisite under Clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the intentional harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the 'intention to cause death' is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by Illustration (b) appended to S.300.
11.2. Clause (b) of S.299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under Clause (2) of S.300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result 9 Crl.Appeal No.1390 of 2006 of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given.
11.3. In Clause (3) of S.300, instead of the words 'likely to cause death' occurring in the corresponding clause (b) of S.299, the words "sufficient in the ordinary course of nature" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of S.299 and clause (3) of S.300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word "likely" in clause (b) of S.299 conveys the sense of 'probable' as distinguished from a mere possibility. The words 'bodily injury.... sufficient in the ordinary course of nature to cause death' mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature.
10Crl.Appeal No.1390 of 2006 11.4. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature.
11.5. Clause (c) of S.299 and clause (4) of S.300 both require knowledge of the probability of the act causing death. Clause (4), of S.300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.
11.6. It has been held that, from the above conspectus, what emerges is that whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder' on the facts of a case, it would be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has 11 Crl.Appeal No.1390 of 2006 done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in S.299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of S.300, Penal Code, is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of 'murder' contained in S.300. If the answer to this question is in the negative, the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of S.304, depending, respectively, on whether the second or the third Clause of S.299 is applicable. If this question is found in the positive, but the case comes within any of the Exceptions enumerated in S.300, the offence would still be 'culpable homicide not amounting to murder', punishable under the First Part of S.304, Penal Code.
12. Now I will consider the problem before me in the light of the above enunciation. The first question is, has the accused done an act by which he has caused the death of Harish? It is only on proof of such causal connection between the act of the accused and the death, that would lead to the second 12 Crl.Appeal No.1390 of 2006 stage of considering whether the act amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 Penal Code is reached. For establishing this, the prosecution relies on the testimony of PW1 and PW2, the alleged occurrence witnesses and the medical evidence, namely, the testimony of PW8 to PW10 and PW17 as well as Ext.P4 wound certificate, Ext.P5 treatment certificate, Ext.P6 postmortem certificate and Ext.P14 series case sheet.
13. PW1, stated to be an occurrence witness, deposed that on 06/03/2004 at about 9 p.m., he was on his way home from work. While he was waiting for the bus at the bus stop at Meenchanda, bypass, he saw Harish sitting inside an autorickshaw. The accused approached Harish, asked him to get out of the autorickshaw and then pulled the latter by his hand out of the vehicle. Harish fell down on the ground. Harish continued to be on the ground for about 10 minutes by which time, people nearby gathered. They helped Harish up and made him sit on the footpath. Harish was then holding the nape of his neck and crying. He was taken in an autorickshaw to the hospital. PW1 further deposed that he has no prior acquaintance with the accused, but has seen him before and after the incident. In the cross examination he deposed that he was 13 Crl.Appeal No.1390 of 2006 unaware of the name and address of the accused at the time of the incident and that he came to know about the same around 10 days after the incident. He admitted that he had never identified the accused before the police.
14. PW2, stated to be another occurrence witness, deposed that he does not remember the date of the incident. On the day of the incident, at about 9 p.m., he was waiting for the bus at the bus stop situated near the road leading to the bypass. There is an autorickshaw stand near the bus stop. He saw Harish, sitting inside an autorickshaw. The accused who was standing outside the autorickshaw, was seen quarreling with Harish. Thereafter the accused pulled Harish by his hand and dragged him out of the autorickshaw. Harish then fell down on his back on the road. Harish was on the ground for about 10 to 20 minutes. People of the locality gathered. Harish was taken to the hospital in another autorickshaw. According to PW2, after the fall Harish was holding his neck and crying. He further deposed that he heard Harish saying that the latter was unable to move. PW2 deposed that there are several shops on either side of the place of occurrence. He also deposed that he did not see any external injuries caused to Harish due to the fall.
15. It was submitted on behalf of the accused that PW1 and PW2 can never be believed as they are planted witnesses. The incident occurred near a 14 Crl.Appeal No.1390 of 2006 bus stand where there several shops are situated. However, none of the said shop owners have been examined. The prosecution has examined only PWs.1 and 2, who are friends and closely associated with the family of Harish, the deceased. These witnesses were never present at the scene which is clear from the testimony of PW13. Relying on the decision in Jang Singh v. State of Rajasthan, 2001 KHC 1525, it was submitted that when independent witnesses were very much available, the prosecution instead of examining them, has examined only PWs.1 and 2 who are planted and interested witnesses, and hence the prosecution story cannot be believed.
16. It is true that PWs.1 and 2 seem to be known to the family of the deceased, which is evident from the testimony of PW11, the father of the deceased. But that alone is no ground to disbelieve their testimony. An eye witness version cannot be discarded by the court merely on the ground that such eye witness happened to be a relation or friend of the deceased. The concept of interested witness essentially must carry with it the element of unfairness and undue intention to falsely implicate the accused. It is only when these elements are present, and statement of the witness is unworthy of credence that the court would examine the possibility of discarding such statements. However, where the presence of the eye witnesses is proved to be natural and their statements are 15 Crl.Appeal No.1390 of 2006 nothing but truthful disclosure of actual facts leading to the occurrence and the occurrence itself, it would not be permissible for the court to discard the statements of such related or friendly witness (Dayal Singh v. State of Uttaranchal, 2012 KHC 4416). Therefore, the question is can the testimony of PWs 1 and 2 be relied and whether their testimony is trustworthy.
17. It is true that it is the prerogative of the prosecution to decide which witnesses are to be examined in support of their case. Here I refer to the testimony of PW13, the Head Constable who is alleged to have conducted the initial investigation in this case. PW13 deposed that on 18/03/2004 the investigation of this case had been entrusted to him. On the said day, he proceeded to the scene of occurrence and in the presence of witnesses, prepared Ext.P2 scene mahazar. According to him, he had questioned CWs.1 to 5, i.e., Pws.1, PW2, CW3, PW5 and PW6 respectively. (PW1 and PW2 are alleged to be the occurrence witnesses; CW3 a witness cited to speak of the incident and who had identified the scene of occurrence to the police; PW5 is stated to be the auto driver who took Harish to the hospital in his autorikshaw and PW6, the auto driver from whose autorikshaw, the accused is alleged to have pulled out Harish). On 18/03/2004 he had also recorded the statement of the deceased, which statement tallied with Ext.P7 FIS. PW13 deposed that though on the said 16 Crl.Appeal No.1390 of 2006 day he had questioned PWs1 and 2 also, he had not recorded their statements. On 30/03/2004 he had questioned PW4 and CW7(an attestor to the scene mahazar). In the cross-examination, PW13 admitted that during the course of investigation, it is necessary to record the statements of the occurrence witnesses. He admitted that there are no reasons for not recording the statements of PWs1 and 2. He also admitted that the CD in the case would not reveal that he had questioned these two witnesses or recorded their statements.
18. As per the prosecution story, PWs1 and 2 are the main occurrence witnesses. However, PW13 who is supposed to have conducted the initial investigation never thought it necessary to record their statements, for which no plausible reason or any reason for that matter has been given, though the said witnesses were very much available. PW13 chose to take the statements of only those witnesses who admittedly had not seen the incident. Additional statements of PWs 1 and 2 stated to have been recorded by PW15, the investigating officer are seen in the file. However, the statements do not contain the date on which it was recorded. It only says that it was recorded in May 2004. Therefore, in all probability as submitted on behalf of the accused, PWs 1 and 2 appear to be planted witnesses and hence their sole testimony cannot be relied on to conclude that the prosecution case has been established. 17 Crl.Appeal No.1390 of 2006
19. Further, the incident in this case is alleged to have taken place on 06/03/2004. But Ext.P7 FIS is seen recorded only on 17/03/2004. I refer to Ext.P7 FIS, the statement of Harish. In Ext.P7, Harish says that he is a lottery ticket seller. On 06/03/2004 after he finished the sale of tickets, by about 09:00 p.m on his way home, he got down from the bus at the place by name Meenchanda. As he is physically challenged, in order to go home, he got into the autorikshaw of PW6, Boban. At that time, Rajan, the accused, a friend of PW6 pulled him out from the autorikshaw and put him down. He fell down on the road, due to which an injury was caused to his head. Immediately after the incident, PW6 and the accused left the scene of occurrence. Thereafter he was taken in another autorikshaw to the Beach Hospital. The doctor who examined him refered him to the Medical College hospital. He was admitted in the ICU. On 15/03/2004, he was moved to the ward from the ICU. (Initially the date seen recorded in Ext.P7 is 12/03/2004, that is, the date on which Harish was moved to the ward from the ICU. Subsequently, it is seen corrected as 15/03/2004.) A reading of Ext.P7 shows that Harish was very much conscious at the time the FIS was recorded.
20. PW11 is the father of the deceased. PW11 when examined deposed that his son, Harish, had been admitted in the Medical College, 18 Crl.Appeal No.1390 of 2006 Kozhikode for 46 days and on the 46th day, he passed away. For 24 days his son was in the ICU. When Harish was moved to the ward, the police had recorded his statement. In the cross-examination, PW11 deposed that he was told by his son that it was the accused who had pulled him out of the autorikshaw. According to PW11, for about 20 days after the incident, his son was in the ward at the Medical College Hospital and it was thereafter he had been moved to the ICU. His son died while he was in the ICU. PW11 also deposed that on the 3rd day after the incident, he had given a statement to the Sub Inspector of Police, Panniyankara Police Station, who in turn had reduced his statement into writing, in which he had affixed his signature. He also deposed that it was about 20 days after his statement had been recorded, the police had come to the hospital and recorded the statement of his son, which was after the police had arrested the accused.
21. PW16 when examined deposed that he is a friend of the deceased. On 06/03/2004 during night, he was at the place by name Panniyankara. On that day Harish had been brought injured in an autorikshaw to the said place. On enquiry he was told about the incident by Harish. According to PW16, when he saw Harish the latter was holding the back of his head as though he had sustained an injury there. He accompanied Harish to the Beach hospital. The 19 Crl.Appeal No.1390 of 2006 doctor referred Harish to the Medical College Hospital. In the cross- examination, he deposed that when the autorikshaw with Harish reached Panniyankara, there was only Harish apart from the driver in the vehicle. It was at the place by name Panniyankara, he as well as one Iyyub had got into the autorikshaw and accompanied Harish to the hospital. In the cross-examination he deposed that he had felt it necessary to inform the police about the incident and so on the next day he and his friend Iyyub had gone to the police station, Panniyankara and informed the police. The police had recorded his statement, which was also read over to him. The statement that was read over to him had been correctly recorded and so he put his signature in the same. PW16 further deposed that after Harish had been taken to the Medical College Hospital, the latter till his death was not in a position to speak. As Harish was his friend, he used to visit him on and off while the former was in the hospital. PW16 also deposed that during the first 10 to 20 days, Harish was in the ICU.
22. A reading of the deposition of the aforesaid witnesses would show that there is no consistent case for the prosecution. PW13 the Head Constable who recorded Ext.P7 FIS of Harish has no case that he had spoken to or consulted the doctor, treating Harish to ascertain whether Harish was in a position or capable of giving the statement. PW17, the Professor and Head of 20 Crl.Appeal No.1390 of 2006 the Department Neurology, Medical College, Calicut, who had examined Harish deposed that the patient had been referred to her by the Department of Orthopedics. While she examined him, he was conscious and alert. According to her, from 08/04/2004 till his death, Harish was in her Department. She had not been questioned by the police or her opinion sought. PW17 further deposed that in case the police wants to question a patient admitted in her ward, they usually seek her permission. In this case the police had never sought her permission. According to PW17, the police had never come to the ward or questioned the patient.
23. PW11 gives a different version from the one given by his son in Ext.P7 FIS referring the period the latter was in the ICU. As per Ext.P7 FIS, the doctor at Beach Hospital had referred Harish to the Medical College Hospital, in which hospital he was admitted in the ICU. On 15/03/2004 he was moved to the Ward. However, according to PW11, for about 20 days after the incident, his son was in the ordinary ward and it was thereafter he had been moved to the ICU. His son was brought out of the ICU only on his death. Further, if PW16 is to be believed, Harish was unable to even speak after he was admitted in the hospital till his death. If so, the question that arises is whose statement is Ext.P7, which on the death of Harish has been treated as a dying declaration 21 Crl.Appeal No.1390 of 2006 under Section 32(1) of the Evidence Act?
24. Further, the inordinate delay in recording Ext.P7 FIS and registering the crime has also not been explained. As stated earlier, the incident took place on 06/03/2004 at 09:00 p.m. However, Ext.P7 FIS is seen recorded on 17/03/2004 at 18:15hours. PW12, the Head Constable who registered the crime deposed that he had received intimation from the hospital only on 17/03/2004. PWs.13, 14 and 15 are the officers who are supposed to have conducted the investigation thereafter. PW13, a Head Constable of Panniyankara Police Station deposed that on 18/03/2004 the investigation had been entrusted to him. His investigation revealed the commission of the offence under Section 325 IPC and therefore he submitted Ext.P9 report to the court. PW14, the then Sub Inspector, Panniyankara Police Station when examined deposed that on 05/04/2004, the investigation conducted by PW13 had been verified by him. On 21/04/2004, Harish died and therefore he converted the case into one under Section 302 IPC and submitted Ext.P10 report to the court. The case records were handed over to the Circle Inspector, Kasaba Police Station, who conducted the further investigation in this case. The Circle Inspector, Kasaba Police Station when examined as PW15 deposed that on 21/04/2004, when the case records were handed over to him, he took over the 22 Crl.Appeal No.1390 of 2006 investigation. He had conducted the inquest and prepared Ext.P11 inquest report. Thereafter he had proceeded to the scene of occurrence and in the presence of witnesses prepared Ext.P2(a) scene mahazar. On 22/04/2004, he seized the autorikshaw of PW6 as per Ext.P3 seizure mahazar. On the same day at 10 a.m. he had arrested the accused at the place by name Manakkadavu. He then prepared Exts.P12 and P13 arrest memo and inspection memo respectively. Thereafter, he had questioned the witnesses, recorded their statements, completed the investigation and submitted the charge sheet before the court. In the cross examination he deposed that PWs.1 and 2 were questioned in May 2004. He feigned ignorance when he was asked as to how he understood or came to know that these witnesses had seen the incident. He admitted that when the inquest is prepared, it is necessary to inquire as to whether there are any eye witnesses. According to him, at that time there were no eye witnesses. PW15 further deposed that the witnesses had not identified the accused before the police.
25. It is true that defects in investigation cannot always enure to the benefit of the accused. It is also settled law that minor defect(s) in the investigation will not result in throwing out the entire prosecution case. But here is a case in which there is a long and inordinate delay in recording the FIS 23 Crl.Appeal No.1390 of 2006 which has not been explained. PW15, who is supposed to be the Investigating Officer, seems to have conducted no investigation whatsoever. No investigation has been conducted as to why no intimation had been given from the hospital to the police, when the case according to the prosecution was apparently a medico legal case. The Investigating officer has not even attempted to explain the delay.
26. Further, it is doubtful whether Ext.P5 FIS is the first statement to the police. As referred to earlier, PW16 in the cross examination deposed that the day after the incident, he along with one Iyyub had gone to the Police Station and reported the matter. He has also a case that the police had recorded his statement in writing which was read over to him and on being convinced the contents, he had affixed his signature in the same. Likewise PW11, the father of the deceased, has also a case that the police had been informed about the incident much before the FIS was recorded. PW11 in his cross examination deposed that on the third day after the incident, he had informed the Sub Inspector of police, Panniyankara, about the incident. The said officer is stated to have reduced the same into writing, in which he had affixed his signature. He also deposed that it was 20 days thereafter that the police had come to the hospital and recorded his son's statement. Neither PW11 nor PW16 is hostile to 24 Crl.Appeal No.1390 of 2006 the prosecution case. They are loyal prosecution witnesses. On these points deposed by PW11 and PW16, no clarification has been attempted to be made. If PW11 and PW16 are to be believed, on the second day as well as on the third day of the incident, the police had been informed of the matter. However, no action is seen taken for which no reasons whatsoever have been furnished by the prosecution. Therefore, this appears to be a case of suppression of the first information statement given by PW16 in this case. As held in the decision in Marudanal Augusti v. State of Kerala, AIR 1980 SC 638, the entire fabric of the prosecution case would collapse if the F.I.R. is found to be fabricated or brought into existence long after the occurrence after due deliberations and consultation. That seems to be the case in the case on hand also, which is yet another reason to doubt the prosecution story.
27. Now coming to the medical evidence let in by the prosecution to prove the case. PW8 when examined deposed that while she was working as Assistant Surgeon, Government District Hospital, Calicut, on 06/03/2004 at 11.05 p.m., she had examined Harish who had been brought to the hospital by one Iyyub with a history of assault on the same day at 10 p.m., at the bus stop at Meenchanda. On examination she found the patient to be conscious and oriented. The patient himself had narrated the history of the incident. She did 25 Crl.Appeal No.1390 of 2006 not see any external injuries on the person. To rule out any head injury, she referred the patient to the Medical College Hospital, Kozhikode. The wound certificate issued by her has been marked as Ext.P4. In Ext.P4 wound certificate also, no external injuries are seen recorded.
28. PW9 when examined deposed that while working as Lecturer in the Department of Surgery, Medical College Hospital, Calicut, he had issued Ext.P5 treatment certificate of Harish, who had been admitted in the hospital on 07/03/2004 and who died on 21/04/2004 at 12.30 a.m. According to PW9, the cause of death is atlanto axial dislocation and brain stem failure due to the alleged assault. In the cross examination, he deposed that he is not sure whether he had treated the patient. The patient had been treated by the neuro surgery wing and the diagnosis was also of the said wing. PW9 deposed that the contents in Ext.P5 treatment certificate had been copied by him from the case sheet of the patient available in the Medical College Hospital. According to PW9, the patient would be in a unconscious state in the event of brain stem failure. He also deposed that if a person falls on a hard surface, by hitting his head, there is possibility of external injuries being caused.
29. PW17 when examined deposed that, while she was working as Professor and Head of the Department, Neurology, Medical College Hospital, 26 Crl.Appeal No.1390 of 2006 Calicut, on 08/03/2004 she had examined Harish who had been referred from the Orthopedic department. On examination, he had quadriparesis, which is weakness of all four limbs, with more weakness on the right side. The patient had pyramidal signs, which was more on the right side. The patient was conscious and alert. His MRI showed evidence of possible congenital atlanto axial. The patient was on skull traction for about a month. His condition had deteriorated and therefore he was transferred to I.C.U. in the neuro wing as he needed ventilatory support. Later, the patient died on 21/04/2004. According to her, Ext.P14 series is the case sheet of the patient. PW17 further deposed that the injury shown in the case sheet may have been caused due to a fall resulting in injury to the spinal cord. On examination, she did not find any external injuries on the body of the patient. PW17 further deposed that anomaly in the body, may cause the patient to fall down. According to PW17, in case of brain stem failure, the patient would become unconscious. She further deposed that tracheostomy had been given to the patient till his death. From 31/03/2004 onwards, the patient had breathing difficulty. She also deposed that there is a possibility that pneumonia was caused due to tracheostomy and infection.
30. As noticed above, Ext.P5 is the treatment certificate issued by PW10. PW10 is seen to have prepared and signed Ext.P5 and given it to the 27 Crl.Appeal No.1390 of 2006 Investigating officer. The same can only be treated as the statement of PW10 given to the Investigating officer under Section 161 Cr.P.C., although signed. Ext.P5 is therefore hit by Section 162 Cr.P.C. and is not admissible in evidence. It is liable to be discarded. (Sasi v. State of Kerala, 2019 KHC 465).
31. PW10 when examined deposed that while he was working as Assistant Professor and Deputy Police Surgeon, Medical College Hospital, Calicut, he had conducted the postmortem examination on the body of Harish. The postmortem certificate has been marked as Ext.P6. According to PW10, the deceased died due to pneumonia following the injuries sustained to the cervical spine. According to PW10, injury no.8 in Ext.P6 is the injury sustained to the cervical spine. Injuries 5 to 7 are simple injuries. In the cross examination he deposed that a person may develop pneumonia due to various reasons. Pneumonia may result in the patient becoming unconscious. He further deposed that pneumonia may have been caused due to injury no.6 or due to the unconscious state of the patient or due to a combination of the two. According to him, there was blood infiltration around the first and third cervical vertebrae, which was due to the fracture in that area. In the re-examination, he deposed that the more probability or possibility is the injury no.8 had caused pneumonia. In the further cross examination, PW10 deposed that injury no.8 might have led 28 Crl.Appeal No.1390 of 2006 to the patient becoming unconscious and that "unconsciousness may aggravate due to pneumonia". PW10 further deposed that a mere fracture would not directly lead to pneumonia.
32. Ext.P6 postmortem certificate refers to 8 antemortem injuries. The injuries in Ext.P6 are -
"B. INJURIES (ANTEMOR TEM) :
1. Healing incised wound 1.5x1 on both sides of head 3.5 om above ear, bone deep (surgical).
2. Healing tracheostomy wound 4 cm front of neck 3.5 om above sternal notch (surgical).
3. Healing incised wound 2x0.1 cm right side of cheat 3 cm outer to neck (surgical).
4. Healing incised wound 2x1 cm right side of neck just below angle of jaw (surgical).
5. Brownish black scab formed abrasion 3x4 cm right knee front and inner aspect.
6. Healing scab formed abrasion 17x8 cm back of chest left side 5 cm below top of chest 1 cm outer to midline.
7. Healing abrasion 7x1.0 cm left buttocks 5 cm outer to midline 3 cm below iliac crest.
8. Fracture dislocation of odontoid process of 2nd cervical vertebra obstructing the lumen of foramen magnum and compressing the spinal cord. The area of spinal cord compression was soft and showed lytic changes. Resolving blood infiltration seen around the 1st to 3rd cervical vertebrae.
C. OTHER FINDINGS:29
Crl.Appeal No.1390 of 2006 Skull intact. Brain congested. Lungs (rt. 250 gm. lt. 750 gm) left lung was covered with fibrinous excedal lower half and shoved pneumonic consolidations. Right lung was congested. Heart walls, valves and chambers normal. Coronaries patent. Liver 1200 gm., spleen 120 gm. and kidneys 100 gms. ench - all were congested. Stomach 350 gm. contained brownish yellow digested food particle without any unusual smell. Mucosa normal. Urinary bladder empty. Genital organs normal except for the circumcision.
Case sheet with IP. No. 13066 of Medical College Hospital, Kozhikode was available for perusal at the time of autopsy.
OPINION AS TO CAUSE OF DEATH:
THE DECEASED DIED DUE TO PNEUMONIA FOLLOWING INJURY SUSTAINED TO CERVICAL SPINE."
The injuries recorded in Ext.P6 have not been spoken to by PW10 in the box. Ext.P6 is not a substantive piece of evidence. It can only corroborate the testimony of PW10 in the box, which testimony is substantive evidence. The trial court has failed to record the antemortem injuries sustained by the deceased. Ext.P6 postmortem certificate has been marked without recording the contents therein. In Joseph Mathai @ Jose v. State of Kerala, 2019 KHC 934, a Division Bench of this Court has held that this is not the correct procedure to be followed. Medical evidence of an expert is evidence of opinion, not of fact (Nagindra Bala Mitra v. Sunil Chandra Roy, AIR 1960 SC 706). In view of the decision in Nagindra Bala Mitra (Supra) it has been 30 Crl.Appeal No.1390 of 2006 held in Joseph Mathai (Supra) that trial courts are bound to record the contents of the postmortem certificate pertaining to offences against human body, when a medical witness is examined before the court. This has not been done by the trial court.
33. I also refer to Ext.P14 series, case sheet of the deceased. In page 9 of Ext.P14 series, the history of illness reads - "Numbness (R) side of body ; weakness (R) side. No features of head injury." In page 41, the endorsement reads - "This pt admitted c/o weakness, numbness (R) side of body following fall (?) Pt had ortho consultation from casuality and suspect spinal injury ? .... (not legible). Pt. has no surgical problem at present. .........." However, just below, the endorsement seen reads - "..... Symptoms of the patient started 1½ years ago, as increasing weakness upper and lower limbs. No h/o fall/alleged assault reported by the pt/bystanders." But again in the next page of Ext.P14 series, it is recorded that the patient has been admitted with a history of fall. Therefore, different versions are seen given in the case sheet as to whether there was a history of fall or not. Further, on 10/03/2004 it is recorded that the patient suffered respiratory failure. On 04/04/2004 tracheostomy is seen done.
34. As stated earlier, PW17 deposed that pneumonia might have been caused due to tracheostomy and infection. PW10 has stated that mere fracture 31 Crl.Appeal No.1390 of 2006 would not lead to pneumonia or infection. Therefore, whether the fall had resulted in an injury and whether that injury had led to pneumonia or infection, leading to the death of Harish has not been established by the prosecution. Therefore, the first limb itself has not been proved, that is, an act of the accused had caused the death of Harish. What was required to be proved by the prosecution is that the act of the accused had caused the death of Harish. Even assuming for a moment that the alleged act of the accused of pulling the deceased out of the vehicle, had caused the deceased to fell on his back resulting in an injury to the spinal cord, there is no satisfactory evidence that the same caused infection or pneumonia leading to death. On the other hand, the testimony of PW17 shows that tracheostomy carried out on the patient might probably have caused pneumonia or infection. In these circumstances it can only be held that the prosecution has been unable to establish that an act of the accused had led to the death of Harish. Hence, the reasons given by the court below for concluding that the prosecution has succeeded in establishing the case beyond reasonable doubt are obviously incorrect.
In the result, the Criminal Appeal is allowed. The conviction and sentence of the accused for the offences punishable under Sections 323 and 304 Part(II) IPC by the court below is set aside. The appellant/accused is acquitted under 32 Crl.Appeal No.1390 of 2006 Section 235(1) Cr.PC. His bail bond shall stand cancelled and he shall be set at liberty forthwith.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA JUDGE ami/