Kerala High Court
State Of Kerala vs Mani Alias Chandran on 12 July, 1991
Equivalent citations: 1992CRILJ1682
Author: K.T. Thomas
Bench: K.T. Thomas
JUDGMENT K.T. Thomas, J.
1. Mother-in-law of the appellant died due to drowning. Her dead-body was recovered from a stream flowing near her residence. Appellant is alleged to have pushed her into the stream to finish her off. As the trial Court exonerated him for want of evidence, State of Kerala has filed this appeal. Suo motu revisional proceedings have also been initiated by the High Court against the order of acquittal.
2. Story of the prosecution is this: The stream Mangattu Puzha (in Wayanad District) was on spate during monsoon in June, 1986 and water was flowing turbulently. Atmosphere in deceased's house was no less turbulent as the appellant was torturing his wife Ponnamma (P.W. 5) physically and mentally despite her pregnancy in advanced stage. Their's was not a negotiated marriage. Appellant was forced to marry her when she became pregnant through him. After marriage, the couple were staying with the parent of P.W. 5. Appellant used to come home in sozzled condition and flog his wife. On 20-6-86 appellant came by mid-night in his usual form and started showering assaults on Ponnamma. As her father (P.W. 3) could not stand this persecution, he interfered and begged of him to spare his pregnant daughter. Appellant then turned to him and necked him off. P.W. 3 took up a cane and beat him twice in retaliation. But the appellant wrested the cane and unleashed an all round attack on all the inmates of the house. They, in panic started fleeing away to escape from the berserk turned appellant. But appellant chased the deceased and intercepted her and pushed her into the stream and returned to the house in drenched cloths. Next morning, P.W. 3 went to the police station and filed Ext. P3 petition complaining of appellant's misdemeanours in the previous night.
3. Deadbody of the deceased was spotted out in Mangattu Pusha on 24-6-86. Local police took up the deadbody and held the inquest. As the appellant was absconding thereafter, police could nab him only on 10-7-86.
4. As the body was in advanced stage of decomposition, P.W. 8 doctor, who conducted the autopsy, could not give a definite opinion regarding cause of death. However, the doctor ruled out poisoning or bodily injury as the cause of death. (Dislocation of greater cornu of right hyoid bone was noticed, but that was not held to be the cause of death of the deceased). Learned Sessions Judge, therefore, could not arrive at a finding that death of the deceased was due to drowning.
5. Sessions Court has to decide on the cause of death of the deceased in a murder case not merely with the help of medical evidence. A doctor, who conducts autopsy, has only the dead body before him. Sometimes it may be difficult for the doctor to finally pronounce as to how the deceased died. If he expresses such inability, it does not mean that the court, on that score, becomes helpless. Cases have been reported in which either dead body was not traced out at all, or dead body had been cremated without conducting autopsy or skeleton alone was available for post-mortem examination. Sessions Courts were not helpless in such cases and in many such cases courts were able to conclude regarding cause of death in spite of absence of positive medical evidence. In Anant Lagu v. State of Bombay without positive medical evidence as to how the deceased died and even without a report of chemical analyst suggesting any symptom of poison in the system the Supreme Court concluded, from other circumstances, that the deceased in that case had died due to poisoning.
6. There is direct and unimpeachable evidence in this case to show that appellant came to the house in a befuddled state by mid-night and acted like a demented man. His wife, who was in the advanced stage of pregnancy, was woken up by him and was beaten up mercilessly. Evidence that he ran after his mother-in-law, who was fleeing from the house to escape from his wrath is equally unimpeachable. P.Ws. 3 to 5 have testified to those facts with consistency. P.W. 6, a house wife residing nearby, has given evidence that she heard the deceased crying "please don't beat me, don't tie my hands". P.W. 6 heard the sound from the road. The testimony of P.W. 6 gives the impression that it is entirely true. Nothing could be said against her.
7. Crucial evidence is extra-judicial confession which appellant made to P.W. 3, after he reached the house in dranched clothes, that he pushed her into the river. He also told them that P.W. 3 could save her if he wants. Learned Sessions Judge did not act on the said evidence for two reasons. First is that P.W. 3 did not mention about it in Ext. P3 which is the complaint lodged by him with the police and next is that since P.W. 3 admitted that he disliked the appellant bitterly, it is not safe to rely on his testimony.
8. Omission in Ext. P3 to mention about appellant's statement is hardly sufficient to doubt that P.W. 3 or his son (P.W.4) would have concocted such a story. It must be remembered that when P.W. 3 filed Ext. P3, he was not aware that his wife was already dead. In fact, P.W. 3 did not initially believe in the truth of what his son-in-law said. That apart, Ext. P3 complaint was not written by P.W. 3, as he was a totally illiterate person. Since he did not know how to put a signature, he affixed his finger impression in Ext. P3.
9. P.W. 3 cannot be disbelieved for exhibiting straightforwardness in admitting that he disliked his son-in-law. We do not think that any average person could jettison normal human reaction towards the one who did so much harm to his wife and daughter. If P.W. 3 could not develop sentiments of affection to his son-in-law, who inflicted enormous pain to him and his kith and kin, both physically and mentally, it is hardly a ground to depict P.W. 3 as an untrustworthy witness. His son P.W. 4 also heard what the appellant said. He has deposed to it in court. His daughter (P.W. 5) deposed that on the next day her father told her that appellant revealed to him that he pushed the deceased into the river. During inquest, both P.Ws. 3 and 4 divulged that the appellant told them what he did to the deceased, the evidence of extra-judicial confession has to be appreciated in the light of all these broad aspects.
10. It is contended that extra-judicial confession being a weak piece of evidence reliance cannot be placed thereon. We do not think that it would be a sound principle of law that extra-judicial confession must stand ignored because of its inherent susceptibility to infirmities. The Supreme Court has, time and again, indicated that though extra-judicial confession by its very nature may possess some weaknesses, the court can act on it if the court believes the testimony of the person who speaks to it vide Darshan Lal v. State of J & K and Baldev Raj v. State of Haryana .
11. Extra-judicial confession does not stand in isolation in this case. Evidence that appellant chased the deceased evidence that the deceased was heard crying aloud "don't beat me etc.,", evidence that appellant returned alone in dranched clothes after half an hour of chasing the deceased and the abrupt disappearance of the appellant from the locality when deadbody was recovered from the river, are inculpative circumstances surrounding the hub of extra-judicial confession. The cumulative effect of all such circumstances leads us to the irresistible conclusion that the appellant had pushed the deceased into the river Lower Court was not at all justified in sidelining such circumstances.
12. Next question is, what is the offence committed by the appellant. Learned Public Prosecutor contended that the act of pushing the deceased into the turbulent river would fall within the "Fourthly" clause in Section 300 of the Indian Penal Code. The said clause reads like this:
If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
To attract the aforesaid clause, proximity to danger must be so imminent that "in all probability" the act must cause death or cause such bodily injury as is likely to cause death. A straight jacket principle cannot be evolved as to when an act would be so imminently dangerous that it would, in all probability, cause death. Degree of imminence to danger varies from facts to facts or cases to cases. If a person is pushed into a burning pyre or furnace or before a running train or into the den of carnivorous animals, the proximity of danger is so imminent that in all probabilities the person would die. Similarly by setting fire to the clothes of a person one knows that he was running the risk of causing death of the victim or such bodily injury as is likely to cause death (vide State of M.P. v. Ram Prasad AIR 1960 SC 881 : 1968 Cri LJ 1025). But that cannot be said of a case where a person is pushed into deep water, since the possibility of his survival need not necessarily depend upon any miracle. Such an act can, therefore, be brought within the third limb of Section 299 of the Indian Penal Code, namely, an act "with the knowledge that he is likely by such act to cause death".
13. Murder is an aggravated form of culpable homicide. Even without bringing into the radius of the Exceptions enumerated in Section 300 of the Indian Penal Code an offence may still be culpable homicide if it does not possess the attributes of murder. Of course, Clause (4) of Section 300 of the I.P.C. vis-a-vis the limb of Section 299 of the I.P.C. has presented considerable difficulty to courts in its practicable application to concrete cases. The range of probability in the two clauses relates to causing of death, but in one it is comparatively not so strong as in the other. Although one may know that the act or illegal omission is so dangerous that it is likely to cause death, still it is not murder, even if death was caused thereby, if the doer had no knowledge that in all probabilities it would cause death. (W. Slaney v. State of M.P. . A learned single Judge of this Court (Padmanabhan, J.) considered a similar case where the accused forcibly threw the deceased into a river from a bridge when the river was in spate. (Of course, the evidence in that case was that the accused were enjoying by jumping into the river from the bridge and were used to find pleasure by forcibly putting their unwilling friends also into the river to join them). One person, who did not know how to swim, died due to drowning. Learned single Judge found that the offence committed is culpable homicide not amounting to murder and the accused were convicted for the offence under Section 304, Part II of the I.P.C. (vide Benny v. State of Kerala (1991) 1 Ker LT 695 : 1991 Cri LJ 2411). Aforesaid view of the learned single Judge, according to us, is in accord with the right approach to law.
In the result, we allow the appeal and set aside the order of acquittal and convict the appellant for the offence under Section 304, Part II of the I.P.C. We sentence him to undergo rigorous imprisonment for five years. Cri. R.C. is also disposed of.