Kerala High Court
Vazhakkat Babu Mathew vs State Of Kerala on 2 July, 2012
Author: Sasidharan Nambiar
Bench: M.Sasidharan Nambiar, P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
MONDAY, THE 2ND DAY OF JULY 2012/11TH ASHADHA 1934
CRL.A.No. 11 of 2009 ( )
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SC.535/2007 of SESSIONS COURT,THALASSERY
CP.167/2005 of J.M.F.C.,TALIPARAMBA
CRIME NO.60/05 OF PAYYAVOOR P.S
APPELLANT(S)/ACCUSED:
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VAZHAKKAT BABU MATHEW
PAYYAVOOR AMSOM, PADUVILANGU, TALIPARAMBA
TALUK, KANNUR DISTRICT.
BY ADVS.SRI.P.VIJAYA BHANU
SRI.M.REVIKRISHNAN
RESPONDENT(S)/COMPLAINANT:
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STATE OF KERALA
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY ADV. PUBLIC PROSECUTOR SRI.K.K.RAJEEV
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02-07-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.SASIDHARAN NAMBIAR & P.BHAVADASAN, JJ.
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CRL.A.NO.11 OF 2009
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Dated 2nd July, 2012
JUDGMENT
Sasidharan Nambiar,J.
Appellant was convicted and sentenced to imprisonment for life for the offence under Section 302 of Indian Penal Code by Sessions Judge, Thalassery in S.C.535/2007. The prosecution case is that on 16/7/2005 at about 9 p.m while the deceased Thomas @ Appachan was walking towards his house along Paisakkari- Pathittadi Parambu road, appellant with MO.1 iron road inflicted injuries with the intention to cause his death and thereby committed the murder of Thomas. PW1 Mary was waiting for her husband to return as deceased Thomas had gone to purchase toddy for his father on that evening. As the deceased did not return, PW1 CRA 1109 2 was waiting for his arrival. She heard a cry and thinking that it is her husband's sound PW1 went to the house of PW5 Alaxander and obtained a torch light. She proceeded along the road to find her husband. On the way PW1 found the appellant running along the road and through the rubber plantation, with an iron rod in his hand. PW1 reached the scene where her husband was found lying sustaining injuries on his arms and legs. When PW1 enquired the husband what happened, he disclosed her that appellant inflicted the injuries by hitting with an iron rod. By that time PW2 Pradeepan, PW3 Manoj PW7 Soju and his father Chandran reached there in a jeep and they found the injured Thomas lying on the road and PW1 standing near him. Requesting them to take her husband to the hospital, PW1 went to the house of PW5 Benny to inform him and returned back to the scene with CRA 1109 3 PW5. As there was some mechanical defect to the jeep, the injured could not be taken in that jeep. By that time, another jeep came there. The injured was taken in that jeep by PW6 Muneer and others to Medical College Pariyaram, when the injured was examined at Pariyaram Medical College, it was found that he had breathed his last. PW15 Sub Inspector of Police on getting information reached the house of PW1 and recorded Ext.P1 FI statement of PW1 at 2 a.m, on the early morning of 17/7/2005 and registered the crime for the offences under Section 302 of Indian Penal Code after preparing Ext.P1(a) FIR. PW16 Circle Inspector of Police took over the investigation. He went to the scene of occurrence and prepared Ext.P2 scene mahazar and proceeded to Pariyaram Medical College from where Ext.P8 inquest report was prepared. He gave necessary CRA 1109 4 requisitions for conducting autopsy. PW12 Dr.Gopalakrishna Pilla, Professor of Forensic Medicine, conducted autopsy and prepared Ext.P9 postmortem certificate, certifying that the deceased died due to bleeding from the multiple blunt injuries sustained. PW16 arrested the accused on 18/7/2005. On questioning the accused on the information furnished by him, PW16 recovered MO.1 iron rod and Mos.2 and 3 dresses of the appellant from his house and produced before the Court. All the materials produced before the Court were forwarded to Forensic Science Laboratory for examination and obtained Ext.P25 report. After completing investigation charge was laid before the learned Magistrate who committed the case to the Sessions Court.
2. When the learned Sessions Judge framed charge for the offence under Section 302 CRA 1109 5 of Indian Penal Code, appellant pleaded not guilty. The prosecution examined 16 witnesses and marked 26 exhibits and identified 14 material objects. When the prosecution witnesses were cross examined Exts.D1 to D3 portions of statements of PW5, PW10 and PW15 recorded by PW16 under Section 161 of Code of Criminal Procedure were marked. When the appellant was questioned under Section 313 of Code of Criminal Procedure his case was that he did not inflict any injury on the deceased and he was falsely implicated. According to the appellant the deceased Thomas sustained injuries when a jeep hit him and as PW3 and others are members of CPI(M) party and appellant is a Congress party worker, the case was foisted against him. When called upon to adduce evidence appellant examined DW1 and DW2 and got marked Exts.D4 and D5. On the evidence CRA 1109 6 learned Sessions Judge found the appellant guilty. He was convicted and sentenced to imprisonment for life and fine of Rs.25,000/- and in default simple imprisonment for two months, for the offence under Section 302 of Indian Penal Code. On realisation of the fine, it was directed to be paid to PW1 as compensation under Section 357(1) of Code of Criminal Procedure. The conviction and sentence are challenged in the appeal.
2. Learned Senior counsel appearing for the appellant and learned Public Prosecutor were heard.
3. Argument of the learned Senior counsel is that Ext.P1 FI statement was not recorded at 2 a.m on the early morning of 17/7/2005 as seen in Ext.P1 and claimed by Pws.1 and 15 and instead it was prepared much later after 7 a.m. Learned counsel pointed out CRA 1109 7 that evidence of PW5 establish that PW1 was in her house on that night and he has no case that her statement was recorded on that night and even the factum of death of Thomas was not disclosed to her on that night and it was disclosed only on the next day morning and hence PW1 could not have furnished Ext.P1 FI statement at 2 a.m on 17/7/2005, disclosing the death of her husband, and it is clear that Ext.P1 was later created and therefore, the very prosecution case is unreliable. Learned Senior counsel argued that as the prosecution case is that deceased and PW5 had gone for work on 16/7/2005 and returned in the evening, if PW1 had heard the cry of her deceased husband and she had gone to the house of PW5, requesting for a torch light, PW5 in all human probability would either go immediately with her or would accompany PW1 and fact that he did CRA 1109 8 not go to the scene of occurrence immediately establish that PW5 was not aware of the incident at all. It is pointed out that PW5 is not only the paternal nephew of the deceased but the brother of son-in-law of the deceased and in such circumstances, the case and PW5 did not accompany PW1 could only be for the reason that PW1 was not aware of the incident on that night at all and she came to know about the death only on the next day morning. Learned counsel pointed out that the evidence would probablise the defence case that the deceased did not sustain any injury from the hands of the appellant, and instead sustained the injuries when a jeep hit on him and evidence of PW15 Sub Inspector shows that fact that the injured was lying on the road was informed to the police station on that night itself and an entry is made to that effect in the station CRA 1109 9 General Diary, evidenced by Ext.P12 extract of the GD and evidence of PW15 with the GD entry shows that PW15 had gone to the scene of occurrence on getting that information and therefore, the statement of PW1 in cross examination that she had given a statement to the police on the next day morning is to be accepted and her clarification in cross examination that her statement was recorded within one hour of getting information of the death of her husband and she got information of death at about 1 a.m in the early morning cannot be true. Learned counsel argued that though Pws.3 to 5 deposed that the deceased had disclosed that he had sustained injuries when the appellant hit him with an iron rod, cannot be believed as they have no such case when their statements were recorded under Section 161 of Code of Criminal Procedure, as proved by CRA 1109 10 the evidence of PW16. It was also pointed out that evidence of PW1 shows that her deceased husband had fallen unconscious after he allegedly disclosed how he had sustained injuries to her and as Pws.3 to 5 reached there only later, there was no opportunity for the deceased, lying unconscious to make a disclosure as to how he sustained the injuries and therefore, the only evidence as to how the deceased sustained injuries is that of PW1 and if it is to be found that PW1 did not reach the scene of occurrence on that night, there is no evidence to prove that appellant inflicted the injuries. Learned counsel also argued that recovery of Mos.1 to 3 should not have been relied on by the learned Sessions Judge, as even according to PW16 no search was conducted in the house of the appellant, even though police was aware that the appellant inflicted CRA 1109 11 injuries on the deceased with an iron rod. It was finally argued that even if the prosecution case that the injuries on the deceased were inflicted by the appellant is to be accepted, an offence under Section 302 of Indian Penal Code is not attracted. Learned Senior counsel relying on the decision of the Apex Court in Laxman Kalu Nikalje v. The State of Maharashtra, (AIR 1968 SC 1390), Harjinder Singh v. Delhi Administration(AIR 1968 SC 867), Rattan Singh & others v. State of Punjab (1988 (supp) SCC 456), Hardeep Singh and others v.State of Haryana (2008 (12) SCC 39) and Pappu @ Hari om v. State of Madhya Pradesh 2009 (11) SCC 472) argued that as appellant has no intention to cause the death of deceased, and as the injuries were either on the arms or the legs, those injuries could not have been inflicted with the intention to cause the death. It was also argued that even if CRA 1109 12 evidence of PW16 that the third injury recorded in Ext.P9 postmortem certificate is sufficient in the ordinary course of nature to cause death, clause thirdly to Section 300 of Indian Penal Code is not attracted, as it cannot be said that appellant had intended to inflict that particular injury and in such circumstances, if at all, he could be convicted only for the offence under Section 326 of Indian Penal Code or at the worst for the offence under Section 304 part II of Indian Penal Code, and the conviction is therefore, not sustainable.
5. Learned Public Prosecutor submitted that there is no reason to suspect the genuineness of Ext.P1 FI statement or Ext.P1(a) FIR and Ext.P1 FI statement was recorded at 2 a.m within one hour of the death of Thomas and at that point of time, PW1 had no necessity to CRA 1109 13 foist a false case against the appellant. It was pointed out that there is no reason to disbelieve the evidence of PW1 that she heard a cry and she went to the house of PW5 and obtained a torch light and walked towards the place where she heard the sound and on reaching the scene of occurrence, she found her husband lying on the road sustaining injuries and when she enquired the deceased as to the cause of injuries, it was disclosed to her that the injuries were inflicted by the appellant. Learned Public Prosecutor also pointed out that evidence of PW1 establishes that on the way to the scene of occurrence, she found the appellant walking holding MO.1 iron rod and Ext.P25 report of chemical analysis establish that MO.1 iron road showed traces of blood of the same blood group of the deceased and it was recovered from the house of the appellant and CRA 1109 14 that too on the information furnished by the appellant and hence it is clear that appellant inflicted the injuries on the deceased and caused his death. It was argued that the description of the injuries inflicted establish the force with which the injuries were inflicted, as fragmented fractures were caused and the fact that the injuries were inflicted with a dangerous weapon like MO.1 establish that the appellant intended to cause the death of Thomas. Learned Public Prosecutor therefore, argued that the conviction of the appellant under Section 302 of Indian Penal is perfectly legal and correct and warrants no interference.
6. Fact that Thomas, husband of PW1 sustained the injuries, recorded by PW12 in Ext.P9 postmortem certificate, on the night of 16/7/2005 was not disputed at the time when the evidence was recorded. The evidence of PW12 CRA 1109 15 with Ext.P9 prove the following antemortem injuries were found on the deceased, when autopsy was conducted by PW12 on 17/7/2005.
1. Lacerated wound 1 x 0.5 cm on the back of right forearm, 4 cm below the elbow. Underneath, the upper end of ulna was fractured and fragmented.
2. Abrasion 1 x 0.3 c, on the back of right forearm, at its middle. Underneath, both bones were fractured. All the muscles of the forearm were infiltrated with blood.
3. Punctured lacerated wound 2 x 1.5 x 3 cm on the inner aspect of the right leg, 4 cm above the ankle. Underneath the tibia was fractured and fragmented.
Posterior tibial vessels were found ruptured.
4. lacerated wound 2.5 x 0.5 cm on the outer aspect of left leg, 5 cm above the ankle.
CRA 1109 16 Underneath both bones of the leg were fractured. Lower half of the fibula was found fragmented. There was collection of fluid blood among the muscles of leg.
5. Two lacerations, 1.5 cm each, and 2.5 cm apart on the back of left arm, just above the elbow. Underneath the humerus was fractured and dislocated.
6. Abrasion 2 x 1.5 cm on the back of left forearm at its middle.
7. Two small abrasions on the forearm, 2.5 cm above injury No.6.
8. Lacerated wound 1.5 x 1 cm on the front of left forearm towards the inner margin, 5 cm above the wrist. Underneath, both bones were fractured.
9. Multiple small lacerations (maximum size being 1.5 x 1 cm) and linear abrasions on the centre of fore head over an CRA 1109 17 area 6.5 x 5 cm. Linear abrasions were seen on the bridge of nose also. There was a superficial laceration 1.5 x 1 cm on the upper lip, close to the nasal septum.
10. Fracture of last four ribs on the left side, nearer to their vertebral ends.
Underneath, the spleen showed a laceration (4.5 x 1 cm) at its back aspect. A handful of blood was seen around it.
11. Contusion of the lowermost part of the right and left lungs (5 x 4 cm and 5 x 2.5 cm respectively).
12. Fracture of the spine at C6 level. Dissection of the neck did not show any infiltration of muscles at the back.
Evidence of PW12 that the third injury is sufficient in the ordinary course of nature to cause the death, was not seen challenged in his CRA 1109 18 cross examination. Description of the said injury establish that the lacerated wound on the inner aspect of the right leg resulted in rupture of posterior tibial vessels apart from causing the fracture and fragmentation of tibia. From the very nature of the said injury and the evidence of PW12 learned Sessions Judge rightly found that death of Thomas was caused due to bleeding from the multiple blunt injuries sustained and the lacerated wound on the inner aspect of right leg, which resulted in rupture of posterior tibial vessels is sufficient in the ordinary course of nature to cause the death.
7. Question is whether the injuries were inflicted by the appellant and if he inflicted those injuries, whether he had the intention to cause the death of Thomas or to inflict those particular injuries. CRA 1109 19
8. PW1 is the widow of the appellant. It was PW1 who furnished Ext.P1 FI statement based on which Ext.P1(a) FIR was prepared by PW15 the Sub Inspector and the crime was registered. Ext.P1 statement was recorded at 2 a.m on the early morning of 17/7/2005. The fact that the injured Thomas was taken from the scene of occurrence to Pariyaram Medical College on that night and when he reached the hospital, on examination, the doctor declared him dead was also not disputed. The evidence of PW1 is that the deceased had gone to the toddy shop on that evening after returning from days work, to purchase toddy for his father, who is also living with them. According to PW1 as her husband did not return, she was waiting for him, and by about 8 p.m she heard a cry and she felt that it is the sound of her husband. Believing that it is her husband, PW1 proceeded CRA 1109 20 to the house of PW5, which is near to her house, and obtained a torch light. PW1 thereafter proceeded along the road and reached the scene of occurrence and found her husband lying, sustaining injuries. According to PW1 she asked him how he sustained the injuries and her husband disclosed her that appellant inflicted the injuries by beating him with an iron rod. This evidence of PW1 is fully corroborated by her version in Ext.P1 FI statement. Though learned Senior counsel relying on the evidence of PW5 as well as the evidence of PW1 in cross examination that her statement was recorded by the police on the morning of the next day, argued that Ext.P1 FI statement could not have been recorded at 2 a.m, on scrutiny of the evidence, we find no reason to doubt the genuineness of recording of Ext.P1 statement at 2 a.m, as proved by the CRA 1109 21 evidence of PW15. Though PW1 in cross examination stated that her statement was recorded in the morning by the police, in cross examination itself it was clarified that the police had reached her house within one hour of getting information that her husband died from Pariyaram Medical College Hospital and she had furnished Ext.P1 statement to the Sub Inspector at that time. Therefore, based on mistaken answer in cross examination, it is not possible to hold that Ext.P1 statement was not recorded at 2 a.m as seen in Ext.P1 or to doubt its genuineness. True, in the normal course, one would expect a close relative like PW5 to accompany PW1, if PW1 informed him that she heard the sound of cry of her husband. But evidence of PW5 is that he was not feeling well and therefore, he was lying, and hence he did not follow her. In such circumstances, we CRA 1109 22 find no reason to doubt either the evidence of PW1 that she had gone to the house of PW5 and obtained a torch light and proceeded to the scene of occurrence or the evidence of PW5 that PW1 had been to his house for a torch light and he had given her a torch light. So also, though it was argued that as PW1 deposed that it was raining, and as the house of PW1 was not shown in Ext.P2 scene mahazar or Ext.P11 scene plan, PW1 could not have heard the cry of her husband from the scene of occurrence and therefore, the very edifice of the prosecution case that PW1 reached the scene of occurrence, has to collapse. We find that when PW1 deposed that she heard the cry and proceeded towards the scene of occurrence, it was not even suggested that a cry from the scene of occurrence will not be heard from the house of PW1. Normally, when the husband of PW1 had gone out and did CRA 1109 23 not return by 8 p.m and PW1 was eagerly waiting for him, she would definitely hear the cry, from the scene of occurrence. In such circumstances, we find no reason to disbelieve the evidence of PW1 that she heard the cry and felt that it is her husband's sound and therefore, after obtaining a torch light from the house of PW5, she reached the scene of occurrence.
9. Evidence of PW1 establish that finding her injured husband, she asked him how he sustained the injuries and he disclosed to her that those injuries were inflicted by the appellant with an iron rod. Though it was argued that the injured could not have disclosed the cause of the injuries to PW1, evidence of PW12 shows that as no head injury was sustained by the deceased, he was capable of speaking. Relying on the evidence of PW12 in CRA 1109 24 cross examination that he cannot positively say that deceased on sustaining the injuries was able to disclose the cause of injuries to PW1, it was argued that deceased could not have disclosed the alleged cause of injuries to PW1. In the light of the evidence of PW12 and the fact that the injuries sustained by the deceased were only on the arms and the legs, we find no reason to disbelieve the evidence of PW1 that the deceased was capable of speaking when she saw him and he disclosed to her that the injuries were inflicted by the appellant with an iron rod.
10. Similarly, evidence of PW1 shows that she had seen the appellant walking from the scene of occurrence towards the rubber plantation. Though it was argued that as she was walking with a torch light, there is no possibility for PW1 to see the appellant, much CRA 1109 25 less identify his dresses and the weapon, on analysis of her evidence, we find no reason to disbelieve her evidence. As house of the appellant is towards south of the scene of occurrence and PW1 was proceeding from her house towards the north, if the appellant was walking from north to south, PW1 had sufficient opportunity to see and identify him. In the light of the evidence, we find no reason to disbelieve the evidence of PW1 that she had seen the appellant walking from near the scene of occurrence, at about the time the deceased sustained injury and PW1 reached there.
11. Though learned Sessions Judge relied on the evidence of Pws.2 to 5, that the deceased disclosed to them also that the injuries were inflicted by the appellant, we find it difficult to accept or rely on that evidence. If those witnesses had heard the deceased CRA 1109 26 disclosing the cause of the injuries sustained by him, when their statement were recorded by PW16 Circle Inspector, under Section 161 of Code of Criminal Procedure, they would have definitely disclosed it. Evidence of PW16 establishes that the witnesses did not disclose that the deceased had revealed how he sustained the injuries, much less appellant inflicted the injuries. Therefore, though Pws.2 to 5 deposed that deceased disclosed that appellant inflicted injuries, we find it not to safe to rely on their evidence, on that aspect. But their evidence corroborate the evidence of PW1 that when they reached the scene of occurrence in the jeep, PW1 was found near the injured and she went to the house of PW5 and returned thereafter and PW3 and others had taken the injured in another jeep to the Medical College Hospital.
CRA 1109 27
12. Added to this, evidence of PW16 with Ext.P3 recovery mahazar and Ext.P16 portions of the statement of the appellant which lead to recovery of Mos.1 to 3, establish that after the arrest of the appellant, Mos.1 to 3 were recovered on the information furnished by the appellant, from his house under Ext.P3 mahazar. Ext.P25 certificate of chemical analysis establish that human blood was detected in Mos.2 and 3, the dresses of the deceased as well as MO.1 iron rod. Therefore, on the evidence, we find no reason to interfere with the finding of the learned Sessions Judge that the injuries sustained by the deceased, were inflicted by the appellant on the night of 16/7/2005 at the scene of occurrence, with MO.1 weapon.
13. Then the question is whether appellant had an intention to cause the death CRA 1109 28 of deceased Thomas. If appellant had an intention to cause the death and inflicted the injuries to cause his death, clause firstly to Section 300 of Indian Penal Code would apply. Learned Sessions Judge, though found that appellant had the intention to cause his death, found the appellant guilty for the offence punishable under Section 302, on the ground that clause thirdly applies. Clause firstly and clause thirdly operate in two different spheres. If accused had an intention to cause the death and inflicted the injuries on the deceased and caused death by inflicting those injuries, clause firstly would apply and the offence would come under Section 300 and punishable under Section 302 of Indian Penal Code. If there was no intention to cause the death, but it is proved that the death was caused by a particular injury, which is proved CRA 1109 29 to be sufficient in the ordinary course of nature to cause death, even if the accused had no intention to cause the death, Section 300 would apply, if the accused had the intention to inflict that particular injury which is sufficient in the ordinary course of nature to cause death and that injury was not inflicted accidentally or unintentionally. In such a case, clause thirdly of Section 300 would apply. The position has been elaborately explained in the celebrated decision in Virsa Singh vs. State of Punjab (AIR 1958 SC 465) as follows.
"12. To put it shortly, the prosecution must prove the following facts before it can bring a case under S. 300 "thirdly";
First, it must establish, quite objectively, that a bodily CRA 1109 30 injury is present;
Secondly, the nature of the injury must be proved; These are purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature.
This part of the enquiry is purely objective and inferential and has nothing to CRA 1109 31 do with the intention of the offender.
13. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under S. 300 "thirdly". It does not matter that there was no intention to cause death. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury CRA 1109 32 actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional."
We do not find that it is necessary to reiterate the position further.
14. If appellant had an intention to CRA 1109 33 cause the death of Thomas as argued by the learned Public Prosecutor and as found by the learned Sessions Judge, for the reason that appellant had chosen a lonely place and also an appropriate time when others will not be available to witness it, and was armed with an iron road and used the iron rod with such force causing fragmented fracture on the arms and legs, when even according to the prosecution the deceased was walking along the road with a lighted candle in one hand and other articles including a bottle of toddy in the other hand and accused was armed with MO.1 iron rod, he would not have inflicted the injuries on the legs and arms, especially, when there is no case that there was any other light available at the scene. If the intention was to cause death, when one injury was inflicted, the lighted candle would fall and if so, there CRA 1109 34 would not have been light thereafter. Hence if the intention of the appellant was to cause death, appellant would have inflicted injuries on the head or at least on the chest which would have caused his death. The fact that he had chosen the arms and legs to inflict the injuries establish that appellant had no intention to cause the death. Therefore, clause firstly of Section 300 of Indian Penal Code is not attracted.
15. As stated earlier evidence establish that death was caused due to bleeding from the multiple blunt injuries sustained and the third injury recorded in Ext.P9, is sufficient in the ordinary course of nature to cause death. That injury is not on any vital part of the body. Instead it was on the inner aspect of the right leg. True, it resulted in fragmented fracture of tibia and rupture of CRA 1109 35 posterior tibial vessels. The question is whether appellant intended to inflict that particular injury, which is proved to be sufficient in the ordinary course of nature to cause death. As stated earlier, there is no evidence as to which of the injury was inflicted first. If first two injuries on the right fore arm was inflicted first, necessarily there would not have been light for the appellant to find out where exactly was the right leg, where the third injury was inflicted. In such circumstances, when there is no evidence to prove that the third injury was inflicted first, on the evidence it cannot be found that, that injury was inflicted by the appellant, with the intention to inflict that injury on that particular part of the body. It may not be possible for the appellant to see the injured, if after the first injury on the CRA 1109 36 forearm was inflicted, there was no light, when the third injury was inflicted. If that be so, it is not possible to hold that appellant had an intention to inflict that particular injury on the inner aspect of the right leg, which is proved to be sufficient in the ordinary course of nature to cause death. Hence clause thirdly of Section 300 as found by the learned Sessions Judge is not attracted. If that be so, the offence will not come under Section 300 of Indian Penal Code and punishable under Section 302 of Indian Penal Code.
16. But when it is clear that appellant inflicted the injuries, with that much force, on the deceased with a weapon like MO.1 causing fragmented fracture of the forearm and the right leg, and that too when there was no sufficient light, it is to be found that appellant did not inflict those injuries, with CRA 1109 37 the intention to cause death. But it is clear that appellant inflicted those injuries with the intention to cause such bodily injury as is likely to cause death and thereby caused the death of Thomas. Hence it is proved that appellant committed the offence under Section 299 and punishable under Section 304 part I of Indian Penal Code.
17. Learned Senior counsel submitted that though appellant was a student of sixth semester of MCA, at the time of the commission of the offence and while in prison, he had already obtained MBA degree and in such circumstances, maximum leniency be shown. Considering the entire facts of the case including the fact that appellant was a student at the time of committing the offence and while in prison, he continued studies, we find that rigorous imprisonment for seven years would CRA 1109 38 meet the interest of justice, in addition to fine of Rs.25,000/- and in default simple imprisonment for one year. The fine when realised shall be paid as compensation under Section 357(1) of Code of Criminal Procedure as directed by the learned Sessions Judge.
Appeal is allowed in part. Conviction of the appellant for the offence under Section 302 of Indian Penal Code is set aside. Appellant is found not guilty of the said offence. Appellant is found guilty of the offence under Section 299 punishable under part I of Section 304 of Indian Penal Code. Appellant is convicted and sentenced to rigorous imprisonment for seven years and a fine of Rs.25,000/- (Rupees Twentyfive thousand only) and in default simple imprisonment for one year for the offence under Section 304 part I of Indian Penal Code. He is entitled to set off for CRA 1109 39 period which he has been in custody as provided under Section 428 of Indian Penal Code.
M.SASIDHARAN NAMBIAR, (Judge).
P.BHAVADASAN, (Judge).
uj.