Kerala High Court
Rajan.K vs State Of Kerala on 26 August, 2022
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.
Crl.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
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
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
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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
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
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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
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.
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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
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
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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
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
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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
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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
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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.
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,
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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
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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
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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
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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
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
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
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
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,
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
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
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:
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
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
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
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/
