Kerala High Court
Sabu vs State Of Kerala on 29 August, 2003
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
THURSDAY, THE 8TH DAY OF FEBRUARY 2018 / 19TH MAGHA, 1939
CRL.A.No. 1504 of 2003
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JUDGMENT IN SC 323/2001 of ADDL.SESSIONS COURT, PATHANAMTHITTA
DATED 29-08-2003
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APPELLANT(S)/ACCUSED No.1, 2 AND 4 :-
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1. SABU, S/O.HASSAN BAVA RAWTHER,
PARACHARUVIL VEEDU, EZHAMKULAM MURI,
EZHAMKULAM VILLAGE.
2. SAVAD, S/O.JALALUDEEN,
KOLLAMPARAMBIL VEEDU, MANGADU MURI,
ENADIMANGALAM VILLAGE.
3. LATHEEFA, D/O.HAJDA UMMA,
PARACHARUVIL VEEDU, EZHAMKULAM MURI,
EZHAMKULAM VILLAGE.
BY ADVS.SRI.T.B.HOOD
SMT.M.ISHA
SRI.AMAL KASHA
SRI.K.GOPALAKRISHNA KURUP (SR.)
RESPONDENT(S)/COMPLAINANT :-
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STATE OF KERALA, REPRESENTED BY
C.I. OF POLICE, ADOOR BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY SR.PUBLIC PROSECUTOR SRI.B.JAYASURYA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27.11.2017, THE
COURT ON 08-02-2018, DELIVERED THE FOLLOWING:
P.UBAID, J.
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Crl.A. No.1504 of 2003
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Dated this the 8th day of February 2018
JUDGMENT
The appellants herein are the accused Nos.1, 2 and 4 in S.C. No.323/2001 of the Court of Session, Pathanamthitta. The 1st accused is the son of the 4 th accused, and the 2nd accused is their relative. The third one mentioned in the final report was a juvenile at the relevant time, and so, the case against him was filed before the Juvenile Justice Board. The appellants faced prosecution in the court below under Section 302 I.P.C on the allegation that at about 3 p.m on 14.12.1997, near the Panavila junction, they inflicted serious and fatal injuries on the body of one Ibrahim, due to which Ibrahim died at the hospital at 1.30 p.m on 16.12.1997. The crime was registered by the Police, on the complaint preferred by the brother of the deceased at about 10.30 a.m on 16.12.1997, under Sections 143, 147, 148, 323 and 324 read with Section 149 IPC, against these appellants and three others, including the juvenile. Only a case of assault by six Crl.A. No.1504 of 2003 -: 2 :- persons was reported at the Police Station initially. The case took a turn when the victim died after the F.I.R, at 1.30 p.m on 16.12.1997. On investigation, the Police found that the murder of Ibrahim was committed by these appellants and the juvenile, and accordingly, a final report was brought by the Police under Section 302 read with Section 34 I.P.C. A separate final report was filed as against the juvenile before the Juvenile Justice Board, Pathanamthitta. After compliance of the procedural formalities, the learned Judicial First Class Magistrate, Adoor committed the case to the Court of Session, from where, it was made over to the learned Additional Sessions Judge, Pathanamthitta for trial and disposal. The accused (appellants) appeared before the learned trial Judge, and pleaded not guilty to the charge framed against them under Section 302 read with Section 34 I.P.C.
2. The prosecution examined 17 witnesses and proved Exts.P1 to P16 documents in the trial court. The MO1 to MO6 properties were also identified during trial, including the weapons of offence. Ext.X1 case sheet was also proved at the instance of the prosecution. When examined under Section 313 Crl.A. No.1504 of 2003 -: 3 :- Cr.P.C, all the accused denied the incriminating circumstances and projected a defence that Ibrahim died due to some other reason, and that it was not due to any injury inflicted by them, as the prosecution would allege. The accused did not adduce any oral evidence in defence, but Exts.D1 and D2 were marked on their side.
3. On an appreciation of the evidence, the learned trial Judge found that this is not in fact a case of culpable homicide amounting to murder, but only a case of culpable homicide punishable under the first part of Section 304 I.P.C. Accordingly, the three accused were found guilty under the first part of Section 304 I.P.C with the aid of Section 34 I.P.C. On conviction, they were sentenced to undergo rigorous imprisonment for ten years each, and to pay a fine of b95,000/- each by judgment dated 29.8.2003. Aggrieved by the judgment of conviction, the three accused have come up in appeal.
4. When this appeal came up for hearing, the learned senior counsel appearing for the appellants submitted that there is no legal and satisfactory evidence in this case to prove Crl.A. No.1504 of 2003 -: 4 :- the case beyond reasonable doubt, and that if at all the evidence on facts is acceptable to any extent, the conviction under Section 304 Part-I I.P.C, cannot be sustained because the actual cause of death in this case was not the injuries inflicted by the accused. The learned senior counsel submitted that the deceased in fact died due to cardiac failure, and so, the accused cannot be made liable for the death.
5. Of the 17 witnesses examined in the trial court, PW1 is the first informant. He is the brother of the deceased. He gave the Ext.P1 first information statement on the basis of the information received by him from others. PW2 to PW5 are the material witnesses, who witnessed the incident, PW6 is the mother of the deceased who partly witnessed the incident, and PW7 is another relative, who partly witnessed the incident. PW4 turned hostile during trial. The evidence of PW6 contains res gestae evidence under Section 6 of the Evidence Act, against the accused. She partly witnessed the incident, but the whole incident was narrated to her by the deceased immediately after the incident. She is the mother of the deceased. PW8 is an attestor to the Ext.P3 scene mahazar, Crl.A. No.1504 of 2003 -: 5 :- PW4 is an attestor to the Ext.P4 mahazar, as per which the purse and the dress materials of the deceased were seized by the Police during investigation, PW10 is an attestor to the Ext.P5 mahazar, as per which the MO1 weapon of offence was seized, and also to the Ext.P6 mahazar as per which the MO2 weapon of offence was recovered by the Police, PW11 is the Doctor who first examined the deceased at the Government Hospital, Adoor and issued the Ext.P7 wound certificate, PW12 is the Village Officer who prepared the Ext.P8 scene plan, PW13 is the Assistant Sub Inspector of Police, who recorded the Ext.P1 statement of PW1 and registered the Ext.P9 F.I.R, PW14 is only a witness to the inquest, PW15 is the Doctor who conducted postmortem examination on the dead body, PW16 is another Doctor examined to prove the Ext.X1 case sheet containing the details of the injuries and the treatment given, and PW17 is the Circle Inspector of Police who investigated the case and submitted final report. On factual aspects, the main evidence is that of PW2, PW3, PW5 and PW6. The recovery of the weapons of offence is well proved by the evidence of PW10, who attested the recovery mahazar.
Crl.A. No.1504 of 2003-: 6 :-
6. Though the learned senior counsel for the appellants made arguments on various aspects including factual aspects, his main stress was on the legal aspects of Section 304 I.P.C, and he submitted that if at all the evidence on facts is acceptable, what is at the best proved is only an instance of simple assault, and infliction of simple injuries with weapons, punishable under Section 324 I.P.C.
7. Now let me examine the evidence in this case on factual aspects, and also the legal aspects raised by the defence. First, let me examine the legal issue raised by the defence, that this cannot at all be treated as a case of culpable homicide not amounting to murder, punishable under Section 304 I.P.C. The deceased was first taken to the Government Hospital, Adoor, where he was examined by PW11. Ext.P7 is the wound certificate issued by PW11. The deceased was immediately referred to the Medical College Hospital, Thiruvananthapuram, where he underwent treatment for two days. The Ext.X1 case sheet contains the details of the injuries noted there, and also the details of the treatment given. In the Ext.P1 wound certificate, only some injuries were noted by Crl.A. No.1504 of 2003 -: 7 :- PW11. The postmortem certificate issued by PW15 shows that there were 40 ante-mortem injuries on the body of the deceased. As regards the fact of death, the defence has no dispute. That Ibrahim sustained injuries in an instance of assault on 14.12.1997, and that he died at the Medical College Hospital, Thiruvananthapuram on 16.12.1997 at about 1.30 p.m is not disputed by the defence. Those aspects are well proved by evidence also.
8. One contention raised by the defence is that the deceased probably sustained so many injuries, otherwise than by assault, during transit from the local hospital to the Medical College Hospital, because the Ext.P7 wound certificate shows that when brought at the hospital, Ibrahim had only a few injuries on his body. But on this aspect, PW11 has given a clarification that he was busy with duty in the out-patient department, and so, he had noted only the major injuries seen on the body of Ibrahim. Finding that the condition of Ibrahim was critical, he immediately referred him to the Medical College Hospital, Thiruvananthapuram. In the Ext.X1 case sheet also, what is recorded is multiple injuries, and the 40 Crl.A. No.1504 of 2003 -: 8 :- injuries one by one are not seen recorded in the case sheet also. It has come out in evidence that from the local hospital, the deceased was taken to the Medical College Hospital, without any delay and without sparing even a moment. The Ext.X1 case sheet would show that the deceased was brought at the Medical College Hospital at about 12.15 a.m. The alleged incident of assault happened at about 3 p.m on 14.12.1997. He was given the necessary preliminary care and treatment at the local hospital, Adoor and he was taken to the Medical College Hospital for expert management. It is not known how, during transit, Ibrahim would sustain so many injuries. There is nothing to show that there was any instance of assault on the way. There is no possibility of Ibrahim sustaining so many injuries on his body during his transit from the Government Hospital, Adoor to the Medical College Hospital, Thiruvananthapuram within a few hours. Of course, it has come out in evidence that alcohol was detected in the blood of the deceased at the Medical College Hospital. This cannot by itself draw the court to an inference or finding that the deceased had probably consumed alcohol on the way. Even if Crl.A. No.1504 of 2003 -: 9 :- he had consumed alcohol, the material question is how he happened to sustain so many injuries amounting to 40 in number, as noted by the Doctor who conducted postmortem examination. It is here the evidence of PW11 assumes importance that due to heavy rush at the hospital and the casualty, he could note down only the major injuries, and he referred the patient due to his critical condition.
9. PW15 was the Associate Professor of Forensic Medicine at the Medical College Hospital, Thiruvananthapuram when she conducted postmortem examination on the body of the deceased. Ext.P11 is the postmortem certificate issued by her. She has given evidence regarding the 40 ante-mortem injuries found on the body of the deceased on postmortem examination, and her evidence is that the injuries noted by her would correspond to the injuries noted in the Ext.P7 wound certificate. As regards the cause of death, her evidence is that the death was due to the multiple injuries sustained by the deceased. When cross-examined by the defence, she explained that none of the simple injuries noted by her independently is sufficient to cause death, but collectively the injuries are Crl.A. No.1504 of 2003 -: 10 :- sufficient to cause death, and the deceased died due to the collective effect of the multiple injuries sustained by him. When the defence put a suggestion during cross-examination that the death was not due to the multiple injuries, but due to some other secondary reasons, the Doctor affirmed that the death of Ibrahim was due to the multiple injuries sustained by him. Even while stating that one or the other injury independently may not be sufficient to cause death, she affirmed that the 40 ante mortem injuries taken together as a whole were sufficient to cause death, and Ibrahim in fact died due to the multiple injuries. The learned senior counsel submitted that the death of Ibrahim in fact occurred due to the cardiac arrest developed at the hospital. Of course, it is true that the Ext.X1 case sheet contains an entry regarding the cardiac arrest developed at the hospital, and the case sheet also shows that this cardiac arrest led to death at about 1.30 p.m on 16.12.1997.
10. Now let me see what is the evidence given by PW16 who proved the Ext.X1 case sheet. His evidence is that during treatment, the injured developed secondary infection, and some Crl.A. No.1504 of 2003 -: 11 :- head injury was doubted. The injured had multiple injuries and contusions on the trunk and other extremities, and the patient was given utmost care in view of his critical condition. When cross-examined by the defence, the Doctor stated that at about noon on 16.12.1997, the patient developed bradycardia, and he explained that it is a condition where the blood pressure cannot be recorded, and it would come down.
11. It is pertinent to note that no suggestion was put by the defence to PW15 that the actual cause of death was cardiac arrest and that the multiple injuries sustained by the deceased had not in any manner resulted in cardiac arrest. PW16 has given evidence that the patient died at the hospital at about 1.35 p.m on 16.12.1997 after he developed bradycardia. Of course, in the case sheet it is seen recorded that the patient had developed cardiac arrest. The question is whether the death of Ibrahim was solely due to cardiac arrest, or whether this cardiac arrest was in fact caused by the injuries inflicted by the accused. It is here the evidence of PW15 assumes importance that the death was in fact due to the multiple injuries sustained by the deceased. When the evidence of PW15 Crl.A. No.1504 of 2003 -: 12 :- and PW16 is read together, the only finding possible is that the deceased developed bradycardia, and his blood pressure came down heavily making it impossible to be recorded, only due to the multiple injuries sustained by him in the incident of assault. No suggestion was put to PW16 also that the actual cause of death was cardiac arrest, and not the injuries sustained by the victim two days back. When the defence projects a contention that the actual cause of death was cardiac arrest and not the injuries sustained by the victim, the defence is expected to put such a suggestion to the Doctor appropriately. The evidence of PW16 would not show that the sole cause of death was cardiac arrest, and PW15 is definite and firm in her evidence that the actual cause of death was the multiple injuries sustained by the victim. These two versions will have to be read and appreciated together to find out what exactly was the cause of death. It is quite definite that the bradycardia developed by the victim did not in fact independently cause death, and it was only the result of the serious multiples injuries sustained by the victim two days back. It is well proved by evidence that these injuries were voluntarily inflicted on his body by the assailants with the Crl.A. No.1504 of 2003 -: 13 :- full knowledge of consequence, though not with the intention to cause death.
12. I could not find any material inconsistency in between the Ext.P7 wound certificate and the nature of the injuries noted in the postmortem certificate by PW15. There is absolutely nothing to suggest that the deceased had sustained any sort of injury in transit from the local hospital to the Medical College Hospital.
13. On an appreciation of the evidence given by PW15 and PW17, I find that Ibrahim in fact died due to the bradycardia caused by the multiple injuries sustained by him in the alleged incident, or that cardiac arrest was not the independent cause of his death.
14. PW16 has explained that bradycardia is a condition where the blood pressure would come down heavily, making it impossible to record it, and the evidence of PW15 shows that what in fact resulted in bradycardia is the multiple injuries sustained by the victim. It is quite definite from the evidence that these multiple injuries were inflicted on the various parts of his body by the assailants with weapons like iron rod and Crl.A. No.1504 of 2003 -: 14 :- wooden stick. The material witnesses have given evidence that Ibrahim was beaten up like a dog or like a snake. These versions of the material witnesses will expose the nature of the assault made on his body by the assailants, and also the severity and the number of the injuries sustained by the victim in the incident. I find that this cannot be simply called an instance of assault punishable under Section 324 I.P.C. A clear case of culpable homicide not amounting to murder, punishable under Section 304 I.P.C is well made out in this case by the prosecution evidence, specifically the evidence of PW15 and PW16 read along with the details in the postmortem certificate and also the Ext.X1 case sheet. It is very important that a suggestion was not put to PW15 or PW16 that cardiac arrest was the sole and independent cause of death. PW15 affirmed in evidence that what actually led to death is the multiple injuries, and nothing was asked to her by the defence as regards the bradycardia or the cardiac arrest developed by the victim just prior to his death. I am not inclined to accept the defence projected by the appellants that this cannot be treated as a case Crl.A. No.1504 of 2003 -: 15 :- of culpable homicide not amounting to murder, punishable under the first part of Section 304 I.P.C.
15. Now, let me examine the evidence of the material witnesses on facts, and see whether the injuries that led to the death of Ibrahim were in fact inflicted by these appellants. PW2, PW3 and PW5 are the witnesses, who actually witnessed the whole incident. PW4 turned hostile during trial. PW1 has nothing to say about the incident because he had not seen it, and he only gave the F.I.Statement on the basis of the information received by him. It appears that delay in the F.I.R was projected as a ground before the trial court by the defence. The incident happened at about 3 p.m. on 14.12.1997, and the Ext.P1 statement was given by PW1 at about 10.30 a.m. On 16.12.1997. This became a case of culpable homicide only at about 1.30 p.m. on 16.12.1997 when the victim died at the Medical College Hospital during treatment. The deceased was immediately taken to the Government Hospital Adoor, and after initial treatment there, he was referred to the Medical College Hospital. The victim was brought there at about 12.15 a.m., and he underwent effective treatment there. PW1 has Crl.A. No.1504 of 2003 -: 16 :- explained in evidence that on getting information about the incident, he rushed to the hospital, and he had been with the victim at the hospital till he gave the F.I.Statement on 16.12.1997. The police could not have in fact recorded any statement at the Adoor Hospital because the victim was, without delay, taken to the Medical College Hospital from there. I do not think that there was any delay in F.I.R. in this case.
16. PW2, PW3 and PW5 are definite and consistent that when they rushed to the scene of incident on hearing the cry of the deceased, they saw these accused and another person assaulting Ibrahim severely and inflicting injuries on his body with weapons like iron rod and wooden stick. The 1 st accused had an iron rod in his hand, and the 2 nd accused had a wooden stick, and they inflicted severe injuries with these weapons. The witnesses identified the MO1 iron rod used by the 1 st accused, and the MO2 stick used by the 2 nd accused to inflict so many injuries on the body of Ibrahim. The role and complicity of the 4th accused was also explained by PW3 and PW5, that to facilitate assault by the others, the 4th accused sprinkled chilly Crl.A. No.1504 of 2003 -: 17 :- powder on the face of the deceased. The report of chemical analysis shows that chilly powder was detected on the dress materials worn by the deceased at the time of the incident. The witnesses also stated that when the victim cried aloud, the 4 th accused gagged his mouth with a b