Kerala High Court
Shibu vs State Of Kerala on 1 April, 2019
Bench: A.M.Shaffique, Ashok Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE ASHOK MENON
MONDAY, THE 01ST DAY OF APRIL 2019 / 11TH CHAITHRA, 1941
CRL.A.No. 478 of 2014
AGAINST THE ORDER/JUDGMENT IN SC 47/2011 of ADDITIONAL
SESSIONS COURT - IV, KOTTAYAM DATED 09-05-2014
CP 18/2010 of JUDICIAL MAGISTRATE OF FIRST CLASS,
ERATTUPETTA
CRIME NO. 249/2010 OF Erattupettah Police Station, Kottayam
APPELLANT/ACCUSED:
SHIBU
AGED 43 YEARS
S/O GOPALAN, VELIYAMKARAYIL HOUSE, VELLIKULAM
KARA, KURISUMALA, POONJAR NADUBHAGOM VILLAGE.
BY ADV. PADMALAYAN.P.P. (STATE BRIEF)
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM
BY ADVS.
SR.P.P-SRI. K.B.UDAYAKUMAR.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
15.03.2019, THE COURT ON 01.04.2019 DELIVERED THE FOLLOWING:
Crl.Appeal No.478/14
-:2:-
"C.R."
JUDGMENT
Shaffique, J.
This appeal has been preferred by the appellant challenging the judgment of conviction and order of sentence passed by the 4th Additional Sessions Judge, Kottayam in S.C. No. 47 of 2011 from C.P. No.18 0f 2010 arising out of Crime No. 249 of 2010 of Erattupetta Police Station by which he was found guilty for committing offence under Section 302 of the Indian Penal Code, 1860 (for short 'IPC') and was sentenced to suffer imprisonment for life and to pay a fine of `25,000/- (Rupees Twenty Five Thousand only) with a default stipulation of simple imprisonment for one year.
2. Prosecution case is that the appellant and his wife Sheeba @ Rajani along with their three children were residing in house no. VI/28 of Theekkoy Panchayath. On 13/03/2010 at 09.00 P.M., the appellant came to his house in a drunken state and due to his suspicion about the chastity of his wife Sheeba, forcibly pressed her face with both hands causing nail marks, fisted on her face and then using a firewood hit her all over the body Crl.Appeal No.478/14 -:3:- especially on the shoulder and thigh and caused her head to be hit on a concrete piece in the kitchen. Due to the injuries so sustained, she was found dead the next day morning. The appellant was charged with offence under Section 302 of I.P.C.
3. Learned counsel for the appellant Sri.P.P.Padmalayan submitted that the appellant herein is innocent. Prosecution failed to prove the case against the appellant beyond reasonable doubt. Motive is not proved by the prosecution. Absolutely no evidence is forthcoming to show that there was any intention on the part of the appellant. PW2 is the son of the deceased who was only 9 years of age at the time of incident and his evidence cannot be believed. The medical evidence did not support the prosecution case. There was no premeditation. It can also be seen that the appellant and the victim slept in the same room after the alleged attack. Counsel for the appellant pleaded for an acquittal extending benefit of doubt.
4. On the other hand, the learned counsel for the State Sri.K.B.Udayakumar argued that there is sufficient evidence to prove the involvement of the appellant and the Court below is justified in convicting the appellant. The appellant and the victim were husband and wife. Three children were born in the wedlock Crl.Appeal No.478/14 -:4:- and PW2 is the elder son. He categorically deposed that his mother was brutally assaulted by his father on the date of incident. His evidence is fully corroborated by medical and other scientific evidence. The appellant who is supposed to protect his wife turned to be her murderer. Altogether 28 injuries were noted on her body. It can be seen that after severe assault, she was not even taken to hospital by the appellant. It shows that he had no intention at all to save his wife. He argued for upholding the conviction passed by the trial Court.
5. Prosecution examined PW1 to PW10 as witnesses, marked documents Exts.P1 to P16 and identified material objects MO1 to MO19. Exts.D1 and D1(a) were marked by the defence. During 313 examination, he denied all incriminating circumstances and pleaded innocence. In his written submission under Section 313(5) of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.'), he stated that on 13/03/2010, after job, he returned to his house and his three children were sleeping at that time. He heard an unusual sound from kitchen. When he entered the kitchen, his wife and one Shaji were found inside the kitchen. There was a scuffle between himself and Shaji and the victim tried to intervene and she fell down and sustained the injuries. No Crl.Appeal No.478/14 -:5:- evidence was adduced from the side of the defence.
6. As already stated, Court below, based on the evidence available on record, has arrived at a conclusion that the appellant herein caused the injuries on the victim with intent to commit murder and punished him. Serious challenges were posed by the learned counsel for the appellant on the said findings of the trial Court based on various grounds including circumstances. We have to consider whether the Court below was justified in finding the appellant guilty for murder and in sentencing him.
7. Evidence adduced by the prosecution, in short, are as follows:
PW1 is a ward member who gave Ext.P1 FIS to PW8 S.I. of Police on 14/03/2010. PW2 is the elder son of the appellant and the deceased who is cited as an eyewitness. PW3 is a neighbour and a friend of the appellant. On seeing the victim dead, he contacted PW1 and informed the matter. PW4 is the daughter of PW3. She has a case that PW2 disclosed the reason for the death of Sheeba as assault done by the appellant. PW5 is the Doctor who conducted autopsy of the victim and issued Ext.P2 post- mortem certificate. 28 ante-mortem injuries were noted by him. Cause of death of the victim is multiple injuries sustained to head Crl.Appeal No.478/14 -:6:- and thighs. PW6 is an attestor to Ext.P3 inquest report. PW7 is the Village Officer who prepared Ext.P4 scene plan. PW8 is the Sub Inspector of Police who recorded Ext.P1 FIS given by PW1 on 14/03/2010. Ext.P5 is the FIR registered on the basis of Ext.P1. PW9 is the C. I. of Police who conducted the major part of the investigation. He prepared Ext.P3 inquest report, seized MO1 to MO10. No scene mahazar was prepared as there was a detailed description of scene of occurrence in Ext.P3. He arrested the appellant and questioned the witnesses. Material objects were sent for chemical analysis and Ext.P16 is the FSL report. PW10 is the C.I. of Police who completed the investigation and laid the charge-sheet.
8. Three questions are to be addressed to assess the correctness of the finding of the learned Sessions Judge.
(i) Whether the death of Sheeba was a homicide?
(ii) Whether the appellant herein is the one who caused the injuries found on the corpse of the victim which resulted in her death?
(iii) Whether the appellant had the mens rea to commit murder of his wife?
9. Coming to the first question, apart from oral versions, Crl.Appeal No.478/14 -:7:- Ext.P3 inquest report shows that the deceased was found dead in the house of the appellant and there were injuries on her head, thighs and other parts of the body. There was profuse bleeding from the head. PW5 conducted the autopsy of the deceased and he issued Ext.P2 post-mortem certificate. He deposed that altogether 28 ante-mortem injuries were noted on the body of the deceased. Cause of death of the victim was multiple injuries sustained to the head and thighs. These evidence shows that the victim died of the said injuries and her death was a homicide.
10. The second and third questions require careful analysis of the deposition of witnesses especially that of PW2, who is the sole eyewitness to the alleged incident. Learned counsel for the appellant argued that evidence of PW2 cannot be believed as he is a child witness. His evidence is not believable. He slept along with other children at the alleged time of occurrence. He is a tutored witness. It is pertinent to note that he did not have a case that he atleast had cried, seeing the incident. It is brought in evidence that the deceased was lying on a cot with her children. It is inconsistent with other aspects that PW2 stated in evidence. He strongly argued that PW2 should not be believed.
11. First of all, let's look into the evidence of PW2. The Crl.Appeal No.478/14 -:8:- evidence of PW2 in its entirety is as under:
PW2 is the elder son of the appellant and the deceased. He was only 9 years of age at the time of incident. Being found competent to depose, the Court below allowed him to adduce evidence. He deposed that his mother died on 13/03/2010. His mother was also called Rajani. At that time, he was studying in 3 rd standard. To a question as to how his mother died, he replied that due to the beating of his father. He identified his father in Court. According to him, himself, his younger brother, younger sister and his deceased mother were there in the house. His brother and sister fell asleep. He and his mother were watching T.V. By 08.45 P.M., he asked his mother to give him dinner. Mother told him that they can have food after father's arrival. Again PW2 asked for food. Then his mother went to the kitchen to bring food for him. As food was served for him, his father (the appellant herein) came into the house from outside in anger. He went to the kitchen. He hit the deceased many times using a firewood. He had hit at his mother's right hand and head. There was bleeding.
He also hit at the thighs. His father hit his mother using a wooden log (മുളകകക്കോൽ). While in the kitchen, his father had pushed his Crl.Appeal No.478/14 -:9:- mother down. She fell into the heap of firewood. Thereafter, his father dragged his mother to the bedroom. His mother asked PW2 for water. PW2 brought water in a mug and gave it to his mother. Thereafter, she lied on the cot. His father spread a mat on the floor and slept over it. He found blood flowing from his mother's head. PW2 and his two siblings slept on the cot. In the morning, he awoke hearing the voice of neighbours. His father went out and brought Gopalakrishnan (PW3), who is a friend of his father to the house. All the three children were taken to mother's house. He identified MO1 as the wooden log used by his father to beat his mother. The stone grinder in their home was at the kitchen and it was placed over a concrete platform. He identified that concrete piece also which was marked as MO2. He also stated that he had given statement before learned Magistrate, Pala.
12. During cross-examination, he deposed that his father used to come home after mason job by 09.30 - 10.00 P.M. Even if he goes to far away places, he comes home everyday. They were in the habit of sleeping by 07.30 P.M. MO2 was broken and it fell in the house. The grinding stone is still there. Presently, he is under the protection of his mother's father. For two years, they are staying at Kaduthuruthy. His mother earlier used to go for Crl.Appeal No.478/14 -:10:- work with one Mary. The caretaker of that place was one Shaji. He has a jeep. He did not come home on the date of incident. But Shaji had come to their house earlier. There was a neighbour named Omana. He stated that he had not gone to kitchen from the T.V. room. Kitchen was two rooms apart from the room in which T.V. was placed. He stated that police had questioned him and he told to police that his father had pushed down his mother in the kitchen. He further stated that his father was not bringing his mother by taking hold of her, but was dragging from the kitchen. His mother did not go to take water. He brought water to her. He reiterated that on the date of incident, his father came home by 09.00 P.M. The deposition that he had seen his father subsequently hitting his mother using a wooden log (മുഴകകക്കോൽ) and that rice was served for him by his mother were brought out as omissions. He denied the suggestion that he is giving evidence in Court as per the directions of his mother's father. He also stated that his mother's father married his father's mother.
13. PW1 is the local Panchayath member. It is her version that on 14/03/2010 at 09.00 A.M., she received a telephone call from a neighbour (PW3) and she went to the house of the Crl.Appeal No.478/14 -:11:- appellant. She could see Sheeba dead. She immediately went to Erattupetta Police Station and gave Ext.P1 FIS. It is her version that she had asked the appellant as to what had happened, for which the appellant did not say anything. But PW2 told her that his father attacked mother in the previous night. During cross- examination, nothing is asked regarding the alleged disclosure made by PW2 to PW1 as to the occurrence in the previous night in their house.
14. PW3 is a neighbour and friend of the appellant. It is his version that on 14/03/2010 at about 07.15 A.M., the appellant came to his house and told that his wife is ill and he sought for help to take her to hospital. Immediately, he along with PW4 came to the house of the appellant and they tried to wake up Sheeba. They found her dead. They had taken the three children to their house.
15. PW4 is the daughter of PW3. It is her deposition that she went to the house of the deceased along with PW3 and found that Sheeba is no more. She immediately took the children to her house. According to her, she asked PW2 as to how the incident happened. To that query, PW2 replied that there was a quarrel between his father and mother and his father had beaten his Crl.Appeal No.478/14 -:12:- mother. The said statement is left untouched by the defence.
16. As far as the evidence of PW2 is concerned, it is essential to make sure that his evidence is genuine and he is not subjected to any tutoring. He was only 9 years old at the time of incident. It is also seen that he was found competent by the learned Sessions Judge to depose before Court. It is also in evidence that he had given a 164 statement before the learned Magistrate, Pala soon after the incident in tune with what he had deposed in Sessions Court. The said aspect is not challenged. Police questioned him. Admittedly, the appellant himself went to the house of PW3 and PW4 and sought their help to take the victim to hospital. It is also admitted that PW3 and PW4 had come to the house of the appellant on such request. PW3 and PW4 deposed before Court that they asked PW2 as to what had happened to his mother. PW2 told both of them that there was a quarrel between his father and mother and that his father had beaten his mother. The said version of PW3 is unchallenged. An attempt was made to challenge the evidence of PW4 by bringing Exts.D1 and D2 contradictions. Even if the evidence of PW4 is discarded, the evidence of PW3 is a guarantee that PW2 had such a case from the very beginning as what he deposed before Crl.Appeal No.478/14 -:13:- Court. Minor discrepancies were brought out in PW2's evidence. But his presence and version as to the acts of the appellant remain unshaken. It is also in evidence that the father of PW2's mother is married to the mother of the appellant. In spite of that, PW2 deposed against the appellant who is his father. We find no reason to disbelieve PW2 who deposed against his own father for the death of his beloved mother.
17. Even assuming that PW2's version is doubtful, the appellant has to explain the circumstances under which his wife died, in terms with Section 106 of the Indian Evidence Act, 1872 (for short 'Evidence Act'). It is in evidence that the appellant and the deceased were the only people in that house apart from the three children including PW2. PW2 and his mother were watching T.V. His mother was healthy. Then the appellant came and both the appellant and the deceased were found together by PW2 in the kitchen. Nobody else was there. Thereafter, the victim was found with serious injuries. Here is the relevance of the explanation of the appellant. The appellant virtually admitted his presence in 313 explanation. He has a definite case that there was a scuffle between himself and Shaji who is the alleged paramour of the victim. The deceased intervened and she fell Crl.Appeal No.478/14 -:14:- down. This is the explanation of the appellant regarding the incident which happened inside his dwelling house in which his own wife who is the mother of three children suffered as many as 28 ante-mortem injuries due to which she died. Obviously, the said explanation is like a fairy tale as we are to believe that in a single fall, 28 injuries would be caused to the victim. PW2 completely denied the presence of Shaji as alleged by the appellant. It is also in evidence that the appellant came into the house in anger and went to the kitchen and started inflicting injuries on the victim using MO1. Interestingly, not even a single injury is noted on the appellant. This further falsifies his story of scuffle with Shaji and also negates the possibility of any resistance from the helpless victim. She was brutally assaulted, the motivation of which is known to the appellant alone.
18. Scene mahazar is not prepared separately in this case as in Ext.P3 inquest report, a vivid description of the place of occurrence is given. PW9 prepared Ext.P3. He deposed that the dead body was found in the bedroom in a cot and there was profuse bleeding from the injury found on the head. There was blood inside the kitchen also. MO2 was seized from the kitchen which was also blood-stained. During the time of inquest, a piece Crl.Appeal No.478/14 -:15:- of firewood was found in the inner wear of the deceased and it was seized. It makes probable the prosecution version of beating by MO1 firewood. PW9 further deposed that there was signs of dragging the body from kitchen to bed room. That aspect is not subjected to cross-examination. It corroborates the version of PW2 that his mother was dragged by his father from kitchen to the bedroom. Ext.P16 is the FSL report proved through PW10. All items except item nos.13 and 14 contain human blood belonging to group 'O' which is the blood group of the deceased. MO2 which was recovered from the kitchen also contains 'O' group blood. All these are indication of the incident happened in the kitchen and they corroborate PW2's evidence.
19. Learned counsel for the appellant pointed out that the following aspects are also brought forth from available evidence:
1. Motive for the crime is not proved by the prosecution to the satisfaction of the Court.
2. Even according to the prosecution, no sharp cutting weapon is used by the appellant to commit the offence.
3. He did not abscond from the place soon after the alleged assault.
4. After the assault, the appellant who was drunk had slept on Crl.Appeal No.478/14 -:16:- the floor of the room in which the deceased and her children were sleeping.
5. Next day, in the morning at around 07.15, he went to the house of PW3 and told them that the victim is not well and that she need to be taken to hospital.
6. There is nothing on record to show that there was any prior incident of assault or that the appellant was in the habit of assaulting his wife.
7. There is no evidence to prove that the appellant had any premeditation to commit the offence.
20. Learned counsel for the appellant vehemently argued that all the above circumstances clearly show that the appellant was not having any intention to kill his wife, if at all this Court is inclined to find against him as far as the overt acts are concerned. Learned counsel strongly argued that the appellant had no intention to commit murder of the victim. He specifically pointed out the subsequent conduct of the appellant which are detailed earlier. According to him, those acts show that he had neither pre-meditation nor intention to commit the offence of murder.
21. Of course, some of the circumstances raised above by Crl.Appeal No.478/14 -:17:- the learned defence counsel finds a place on record. Whether they affect the prosecution case and the finding of the trial judge is the crucial question. It is well known that intention is the immediate drive behind the act of every person. Intention behind a criminal act can be inferred from the words uttered or gestures shown in the transaction, weapon used, body part where injury is intended to be inflicted or actually inflicted, nature of injuries sustained or manner in which the injury is caused, to list a few. Of course, prior or subsequent conduct like the ones mentioned above has some relevance to infer the culpable mental state. For example, deeds like a person planning or preparing to kill a person, waiting with a weapon for the victim and inflicting injuries on the vital parts are prior conduct showing the heart behind the acts. Similarly, after inflicting fatal injuries on a person using a weapon, if the aggressor is preventing others from taking the injured to medical attention, that conduct speaks much on his intention to kill the person. But in every case, while inferring intention in a criminal act, what is to be considered by the Courts mainly is the intention revealed from the available evidence at the time when the overt act is committed. What counts primarily is the mental state of the aggressor at the time of doing the act Crl.Appeal No.478/14 -:18:- and not his subsequent conduct. His actual or probable change of mind after the overt acts being committed will not bring down or lessen the gravity of the crime. No subsequent stage show can erase the offence committed prior in point of time. In the case on hand, the hapless woman who is the wife of the appellant and mother of three children was mercilessly attacked. PW5 deposed that at least five injuries are independently sufficient in the ordinary course of nature to cause death of the woman. It is also seen that the appellant did not make any attempt to take the injured wife to hospital. She was left in the room with those grave injuries. His contention that he was not having intention to kill his wife is further weakened by this particular conduct. His later attempt in the next day morning of informing PW3 about the situation of the victim and the seeking of assistance to take her to hospital is of no help for him as it is the only option for him to do other than absconding. Instead of absconding, he resorted to the former option. It did not reveal any bona fide of the appellant in the facts and circumstances of this case. His subsequent acts is of no consequence as far as overt acts which were already committed are concerned. Ordinary prudence compels us to infer only one thing and that is the guilty intent of the appellant to do Crl.Appeal No.478/14 -:19:- away with his wife. The appellant does not have a case that he was subjected to involuntary intoxication. That being so, the contention that he did all under the influence of alcohol is totally unacceptable.
22. In criminal matters, it is well settled that each case has to be decided on its own facts. Of course, motive is not proved by the prosecution to the satisfaction of this Court. Intention of the appellant is to be inferred from the attending circumstances of each case and it varies from case to case. In this case, MO1 firewood is used by the appellant to inflict injuries on the victim. No sharp cutting weapon is used. Here is the relevance of medical evidence available in this case. The nature of injuries speaks loudly the intent behind each acts. The appellant virtually admitted his presence in 313 explanation. He has a definite case that there was a scuffle between himself and Shaji who is the alleged paramour of the victim. The deceased intervened and she fell down. This is the explanation of the appellant regarding the incident, which happened inside his dwelling house in which his own wife, who is the mother of three children suffered as many as 28 ante-mortem injuries due to which she died. Keeping in mind the above aspects, let us peruse Crl.Appeal No.478/14 -:20:- the medical evidence available in the case. PW5 Dr. Tommy Mappilakkayil issued Ext.P2 post-mortem certificate after autopsy.
23. He deposed that out of the 28 ante-mortem injuries noted, injury nos. 5, 7, 8, 22 and 23 are independently sufficient in the ordinary course of nature to cause death. Injury no.23 is the injury to the head. It is a lacerated wound on top of head 7x2 c.m. bone deep, transverse 14.5 c.m. above the root of nose on midline, scalp contusion underneath over an area of 6x6 c.m. The brain showed subdural and subarachnoid haemorrhages with moderate flattening of gyri. It is his further opinion that injury nos. 1 to 5, 7, 8, 10 to 16, 18 to 21 and 26 to 28 could be caused by beating with a weapon like MO1. Injury nos. 17 and 24 could be caused by forcible pressing of finger nails. Injury no. 5 is a contusion on the back of both buttocks and thighs 31x24 c.m. vertical and it had a depth of 5.5 c.m. Injury no. 7 is a contusion on front of both thighs 37x35 c.m. vertical with a depth of 6 c.m. Injury no. 8 is abraded contusion with epithelium crushed on front of left thigh 3x1 c.m., transverse 7 c.m. above the knee. Injury no. 22 is lacerated wound on left mastoid region 3x2 c.m. vertical bone deep.
24. Argument was further advanced by the appellant that Crl.Appeal No.478/14 -:21:- instantaneous death would be the result if injury no.23 found on the head is caused to a person. But nothing is brought in evidence to that effect. Injury no.23 as deposed to by PW5 is a lacerated wound on top of head 7x2 c.m. bone deep transverse. It is 14.5 c.m. above the root of nose on midline and there was a scalp contusion underneath over an area of 6x6 c.m. But the skull was intact. PW5 deposed that brain showed subdural as well as subarachnoid haemorrhage with moderate flattening of gyri. Though cross-examined at length, nothing is elicited from PW5 to indicate that the head injury noted on the victim would result in instantaneous death. On the other hand, PW5 deposed that injury no.23 is independently sufficient to cause death in the ordinary course of nature. Injury nos. 5, 7, and 8 were also stated to be fatal. They are not simple contusions. Injury no. 5 is found with a depth of 5.5 c.m. Injury no.7 is having a depth of 6 c.m. Injury no. 8 is a contusion with epithelium crushed in front of left thigh. PW5 is of the opinion that the above injuries are causative of internal bleeding and would lead to death of the victim because of accumulation of blood in that region. As already seen, all these injuries are caused by the appellant herein on the victim.
25. Yet another contention raised by the learned counsel Crl.Appeal No.478/14 -:22:- for the appellant is that the death had not taken place instantaneously and hence it is not possible to infer that death was the direct result of the injuries sustained. The same aspect is highlighted to show that there is no intention on the part of the appellant to commit murder of his wife as alleged by the prosecution.
26. The time gap between the infliction of injuries and the actual death may vary from person to person and from case to case. If it is shown that intention is there and death was the direct result of the injury inflicted or its indirect consequence, it can be concluded that the death was caused by the person who inflicted the injuries on the victim. This Court in Devassia Yohannan v. State (1958 KLT 273) where death was caused 7 months after the infliction of injuries held thus:
16. Pw. 9 has said that the injury had affected the spinal cord, and it is apparent both from the post-
mortem findings and from the fact that complete paralysis of both the lower extremities was the immediate result of the injury, that the stab given by the accused had pierced the spie between the 6th and 7th vertebrae and cut the spinal cord. As Pw. 9's evidence stands, it would appear that the several sequelae described by her are so directly connected with each other as cause and effect as to make the Crl.Appeal No.478/14 -:23:- death attributable to the injury. There is no indication of any unexpected intervention, and as observed by Mayne at page 469 of his Criminal Law of India, 4th Edn., "any act is said to cause death, within the meaning of S. 299, when the death results either from the act itself, or from some consequences necessarily or naturally flowing from that act, & reasonably contemplated as its result". Where without the intervention of any conderable change of circumstances the death is connected with the act of violence by a chain of causes and effects, the death must be regarded as a proximate and not too remote a consequence of the act of violence.
17. In discussing death from injury we find the following observation at page 238 of Vo. I of Taylor's Medical Jurisprudence (11th Edn.) under the heading, "Wounds indirectly fatal".
"Certain kinds of injuries are not immediately followed by serious consequences; but an injured person may die after a long or shorter period, and his death may be as much a consequence of the injury as if it had taken place on the spot. An aggressor is as responsible as if the deceased had been directly killed by his violence - provided the fatal result can be traced to the probable consequences of the injury."
This we consider to be a correct statement of the law. And with particular reference to the injury in this case we might refer to the statement at page 239 of the same book that wounds of the head and spine are particularly liable to cause death insidiously and that in injuries affecting the spinal cord or column, death is not an immediate consequence, unless the wound Crl.Appeal No.478/14 -:24:- is above the origin of the phrenic nerves and that injuries affecting the lower portion of the spinal column do not commonly prove fatal for several months, death ensuing later from septic cystitis, bed- sores and toxaemia. Although for the purposes of his classification, Taylor has called such wounds indirectly fatal, in law it does not matter that death is from a secondary cause so long as that secondary cause is a natural consequence of the injury.
20. No decided case of death following an injury to the spinal cord, or one after such an interval, has been brought to our notice But the position is really analogous to cases of death operating from secondary causes resulting from the injury such as pneumonia, septicaemia, pyaemia and tetanus. No doubt when death is so caused, by what the medical books often call remote or indirect causes, it might be difficult to establish the mens rea necessary for the offence of murder since the more remote the cause the less possible it would be to show that the accused intended or realised the result. But where, as in the present case, the intention to cause death is clearly made out, it seems to us that it does not matter that death was caused not, in the language of the medical books, directly, but by a chain of consequences, each following upon the other in the processes of nature and not being an unexpected complication causing a new mischief. There seems to be a dearth of Indian authority on the matter but we might refer to the decision in In re Doraswami Servai, I. L. R. 1944 Mad. 437, where, after quoting from an Irish case and the well-known observations of Halsbury, L. C. in Brintons, Crl.Appeal No.478/14 -:25:- Limited v. Turvey, (1905) A. C 230 to the effect that, when an injury to the head sets up septic pneumonia which results in death, the person who inflicted the blow on the head cannot he absolved from the consequences of his crime by saying that his victim died of pneumonia and not of the blow on the head, and that by calling the consequences of an injury a disease one does not alter the nature of the consequential results of the injury, Mockett, O. C. J. proceeded to make the following observations which we think are apposite to the present case:
"In my view the test is whether the cause of death is to be directly associated with the act. Whether it be deliberate act in criminal cases or an accident in cases of workmen's compensation, it is, I think, well known that the ultimate cause of death in a large number of cases is pneumonia. 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 Crl.Appeal No.478/14 -:26:- direct".
That in this case the peril that supervened as a consequence of the injury was cystitis and not poisoning, and that death occurred after nearly seven months instead of after a fortnight as in that case, makes no difference. The chain of causation is in our view direct, and, the intention to cause death being established, the accused is guilty of nothing short of murder.
21. The murder was a cruel and deliberate murder and the fact that death was not as immediate as was probably intended but was after months of suffering is no extenuation."
27. In State of Kerala v. Narayanankutty (1980 KLT
908), this Court dealt with a case where death was caused 11 days after the occurrence while the victim was under treatment. Court observed thus:
13. An act is said to cause death when death results from the act itself or from some consequences necessarily or naturally flowing from the act, and reasonably contemplated as its result. Where without the intervention of any considerable change of circumstances death is connected with the act of violence by a chain of causes and effects, death must be regarded as the proximate and not too remote a consequence of the act. The cause must not only be the causa sine qua non, but it must also be a cause reasonably proximate; but the doctrine of criminal causation has reasonable limits.
14. An injury may lead to death. Death may be Crl.Appeal No.478/14 -:27:- instantaneous or may be delayed. The injury may lead to shock, excessive bleeding, coma, syncope etc. and cause death; in such a case injury and death have a clearly perceptible and direct nexus and there will be no difficulty in finding that death is the direct result of injury. The decision may not be so easy in a case where death is caused not directly by the injury itself but due to a complication or development or in a case where death is not instantaneous but is delayed. Where death is delayed or due to a later complication or development, court has to consider the nature of the injury, complication or development and attendant circumstances. If the complication or development is the natural or probable or necessary consequence of the injury and if it is reasonably contemplated as its result, the injury can be said to have caused death. If, on the other hand, the chain of consequences is broken or if there is unexpected complication causing new mischief, the relation of cause and effect is not established or the causal connection is too remote and the injury cannot be said to have caused death. If the original injury itself is of a fatal nature, it makes no difference that death is actually caused by a complication naturally flowing from the injury and not the injury itself, since causal connection is proximate."
28. In the case at hand, the nature of injuries are already discussed in detail and some of them are found to be fatal. As per evidence, death occurred between 09.00 P.M on 13/03/2010 and 07.15 A.M on 14/03/2010 i.e., within 10 hours of alleged assault. In the light of the above settled positions, we have no hesitation Crl.Appeal No.478/14 -:28:- to reject the contention of the learned counsel for the appellant that the death of the victim was not the result of the injuries sustained. Once intention is proved, whether the death took place instantaneously or with some delay assumes not much relevance. The offender is liable for culpable homicide of the first degree.
29. In the light of the above discussion, we hold that the appellant had the intention to cause the death of his wife and he did the over acts coupled with that intent. The nature of injuries inflicted are proof of his intention. Offence under Section 302 of I.P.C. is clearly established. A wife aged 28 years with three children is proved to be murdered by her own husband. Court below is justified in its conclusion. No interference is warranted.
In the result, the appeal is dismissed.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
ASHOK MENON
Rp //True Copy// JUDGE
PS to Judge