Murder Case; Unnikrishnan Vs. State [Kerala High Court, 28-06-2016]

Indian Penal Code, 1860 – Section 302 r/w. 34 – death was due to ‘Septicemia’ following the injuries sustained – whether there is evidence available to punish the appellants for offence under Section 307 IPC – Held, medical evidence on record would prove that the injuries inflicted by the appellants on the deceased was sufficient to cause death – the appellants inflicted such injuries with the knowledge that those injuries were likely to cause death of the deceased and the intention in this regard is explicitly clear – under such circumstances, there exists evidence proving ingredients of Section 307, for which the appellants are liable to be punished – altered the conviction and sentence imposed under Section 302 IPC to Section 307 IPC.


IN THE HIGH COURT OF KERALA AT ERNAKULAM

C.K. ABDUL REHIM, J. & B. SUDHEENDRA KUMAR, J.

Crl. Appeal No. 1278 OF 2013

DATED THIS THE 28th DAY OF JUNE, 2016

(AGAINST THE JUDGMENT DATED 11-01-2013 IN SC 518/2010 of 1st ADDL.DISTRICT COURT, ERNAKULAM )

APPELLANTS/ACCUSED 1 AND 2

UNNIKRISHNAN AND ANOTHER

BY ADVS.SRI.T.D.ROBIN SMT. V.SREEJA

RESPONDENT/COMPLAINANT

STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. JASMINE V.H.

J U D G M E N T

Abdul Rehim, J

The above Crl.Appeal arises out of the conviction and sentence imposed in Sessions Case No.518/2010 by the Ist Additional Sessions Court, Ernakulam, against accused No.1 and 2 therein, who are respectively the appellants 1 and 2 herein. The appellants were found guilty of offence under

# Section 302 read with 34 of the Indian Penal Code (IPC)

and were convicted and sentenced to undergo imprisonment for life and a fine of Rs.25,000/- each and in default to undergo rigorous imprisonment for 3 months each.

2. The prosecution case is that, on 25.01.2009 at about 3:30 p.m. in furtherance of their common intention to commit murder of one Sri.Baby, both the appellants have inflicted cut and stab injuries on the head, stomach and different other parts of the body of the deceased with MO2 chopper and with MO1 knife at a public road, namely Kaniyalippady-Thirumaradi Road and the deceased died on 10.04.2009 at about 5:30 a.m, while undergoing treatment at the Medical College Hospital, Kottayam.

3. Evidence adduced before the trial court on behalf of the prosecution consists of oral testimony of PW1 to PW21, Exhibits P1 to P18 documents marked and MO1 to MO6 material objects identified. A court witness was examined as CW1. D1 and D2 are the Exhibits marked on behalf of the appellants.

4. It is the case of the prosecution that, on the date of occurrence while the deceased was travelling in an Autorickshaw driven by PW1, the appellants came in a ‘Tata Sumo’ Car and stopped it in front of the Autorickshaw in a manner blocking the Autorickshaw and the Ist appellant pulled down the deceased from the Autorickshaw and inflicted repeated cut injuries on his head, face, abdomen and other parts of the body with MO2 chopper, and the 2nd appellant had inflicted stab injuries with MO1 knife on his right abdomen and on the leg. When the deceased attempted to ran away from the scene of occurrence the appellants followed him and again inflicted cut injuries upon him at places, in front of the house of PW2. The deceased was taken by PW1 in his Autorickshaw and got admitted at the Medical College Hospital, Kottayam, on the same day itself, at about 6 p.m. According to the prosecution the deceased succumbed to the injuries sustained while undergoing treatment in the said hospital at 5:30 a.m on 10.04.2009.

5. The investigation was initiated based on Ext.P12 statement of the deceased recorded by PW17 at the Medical College Hospital, on the date of the incident at 8.00 p.m, based on which Ext.P13 FIR was registered. PW19 took over the investigation and taken into custody, the Ist appellant on 26.01.2009 at 3:30 a.m and the 2nd appellant on the same day at 5:30 a.m. He conducted inspection at the scene on the next day and prepared Ext.P3 Scene Mahazer. Arrest of the appellants were recorded at 12:00 noon on the said date vide: Ext.P15 memo. Based on Ext.P4 (a) disclosure statement given by the 1st appellant, MO2 chopper was recovered from a place as led by the 1st appellant. Likewise MO1 knife was recovered based on Ext.P5 (a) disclosure statement of the 2nd appellant from the place where the 2nd appellant, had led the Investigating Officer. Ext.P8 is the ‘Accident Register cum Wound Certificate’ with respect to the admission of the deceased at the Medical College Hospital, Kottayam on 25.01.2009, which is marked through PW12 Doctor who examined him at the Hospital. The deceased died at the Medical College Hospital on 10.04.2009 at 5:30 a.m. Ext.P9 (a) is the Certificate of Death contained in the ‘Case Sheet’ which is proved through PW16 Doctor examined. Photocopy of the ‘Case Sheet’ is produced through PW13 Superintendent of the Medical College Hospital and the same is marked as Ext.P9. Autopsy on the dead body was conducted by PW14 Doctor who had issued Ext.P10 Post Mortem Certificate. PW21 is the Doctor who conducted surgery on the deceased. The original of the Case Sheets, Ext.P17 and P18 were marked through him.

6. In Ext.P8 Wound Certificate the history and alleged cause of the injuries is noted as, “alleged assault with sharp object by known people at Koothattukulam at 3:00 p.m.” The injuries noted therein are (1) lacerated wound 10 x 5 c.m on the right corner of the mouth to the right ankle of mandible and (2) lacerated wound 1 x 0.5 c.m on the chin. In Ext.P9 copy of the ‘Case Sheet’ it is noted that the patient was brought at 5:30 p.m. with history of assault at 3:00 p.m. on 25.01.2009 and there were multiple wounds over the body. Ext.P9 as well as Ext.P17 contains a narration about details of the injuries noted, both external and internal. PW21 Doctor while examined deposed that, he conducted surgery on the deceased at 6:00 p.m. on the date of his admission itself and noticed incised wound on the right lob of liver and injury on the duodenum and stomach, along with lacerated wound on the left shoulder, lacerated wound on the right shoulder and lacerated wound on the left gluted region. It is evident from the ‘IP Case Sheets’ produced as Exts.P9, P17 and P18 that the deceased was discharged on 02.03.2009. But he was again admitted on 09.03.2009. It is also revealed that on 27.03.2009 he had undergone a further surgery for repair of ‘Enterocutaneous Fistula’. But he died on 10.04.2009. Ext.P10 Postmortem certificate revealed that the deceased had the following ante mortem injuries.

“(1) Scar (1) 3 cm long oblique on the right side of forehead extending to head the lower, inner end 1.5 cm above eyebrow and 5.5cm outer to midline.

(2) 2.5 cm sagittal, oblique on the right side of head, the lower back end 2 cm. above ear.

(3) 8 cm. long oblique on the right side of face the upper inner end at the right angle of mouth. The lower end showed a curving around the angle of jawbone.

(4) 7.5 cm long oblique on the right side of back of head, the lower back end 4.5 cm above occiput. Hairs around shaven. Right parietal bone was found cut for a length of 7 cm. The upper end 3 cm outer to midline and 9 cm below the coronal suture. Dura beneath was found cut for a length of 3.5 cm. Sulci of brain narrowed and gyri flattened. Edges of bone showed a smoothened appearance.

(5) 2.5×1.5 cm long on the right side of neck, 6 cm below the lobule of ear.

(6) 9 cm long on the outer aspect of right arm 3 cm below the top of shoulder.

(7) 6cm long oblique convexity facing downwards and was 14 cm above elbow.

(8) 4×3 cm on the front fold of armpit centre showed basely adherent brown scab.

(9) 2 cm long on the outer aspect of right forearm, 9 cm below elbow.

(10) 3.5 cm long on the back of right forearm 3 cm above wrist.

(11) 3×1 cm on the right side of chest 9 cm outer to midline and 1.5 cm below collar bone.

(12) Multiple over an area of 6×3 cm on the outer aspect of right side of chest. 10 cm above and 4 cm outer to anterior superior iliac spine.

(13) Healing wound with prolene and vicryl suture over an area of 3×2 cm on the right side of abdomen oblique its lower inner end. 4.5 cm outer to midline and 14 cm below stomach pit with hypopigmented area with spotty pigmentation 2.5 cm broad around.

(14) Healing wound 1.4×1.4 cm on the right side of lower part of chest and abdomen. 9 cm above top of hip bone.

(15) Healing wound 3.5×2 cm on the outer aspect of right hip. 36 cm above knee.

(16) Healing wound with suture mark 19 cm long on the left side of abdomen with upper end just outer to midline and 6 cm below stomach pit. Loop of intestine were dark found adherent together gastrojejunostomy and duodenojejunostomy were found done 12 cm distal to fixed loop. Sutured wound 2 cm long at duodenum near spleen. Small intestine was found adherent to ascending colon.

(17) Multiple healing wounds over an area of 3.5×3 cm on the outer aspect of left side of chest. 19 cm below the front fold of armpit.

(18) Healing wound 2.5×1 cm on the left side of chest 5 cm outer to midline and 3.5 cm above costal margin.

(19) Hypo pigmented area with spotty pigmentation 2×1 cm on the front of left knee.

(20) Scar 5 cm long on the outer aspect of left arm 3 cm below the top of shoulder. Osteoma was seen around the humerus underneath.

(21) Scar 7 cm long on the outer aspect of left arm 6 cm below the top of shoulder.

(22) Scar 6 cm long on the outer aspect of left arm. 1 cm below the lower end of injury No.21.

(23) Scar 1.5 cm long on the outer aspect of left arm 8.5 cm below the lower end of injury No.22.

(24) Scar 6 cm long on the left palm, the upper end at the first web space.

(25) Scar 2.5 cm long on the left palm 2.5 cm above the root of index finger.

(26) Scar 17 cm long on the outer aspect of left hip and thigh, extending from a point 4 cm outer to anterior superior iliac spine and 14 cm below the top of hipbone. Hip bone showed fracture fragmentation with collection of pus. Ostioma was seen at the neck of femur and a pocket with collection of pus and blood around.

(27) Hypopigmented area with spotty pigmentation over an area of 3×2 cm on the back of trunk in the midline and 8cm below root of neck.

(28) Hypopigmented area with spotty pigmentation on the back of trunk in the midline and 2.5 cm below injury No.29.

(29) Healing wound 1.5×1 cm on the outer aspect of right forearm 12 cm above wrist.

All the scars showed suture marks and were pale red in colour.

Air passages congested and contained pus. Lungs congested and oedematous and showed small areas of consolidation. Coronary arteries calcified and thickened, lumen pinhole sized. Aorta showed fatty streaks and atheromatous plaques. Liver showed cirrhosis. Spleen friable. Kidneys were pale with distinct cortico-medullary demarcation and cortical bleeding. Bilateral adrenal bleeding present. Stomach contained bile stained fluid, having no unusual smell, mucosa congested, submucosal bleeding present. Urinary bladder empty, mucosa was normal. All other internal organs were congested, otherwise normal. Sample of blood preserved and sent for chemical analysis.”

The opinion as to cause of death noted in the certificate is that the death was due to ‘Septicemia’ following the injuries sustained. PW14 Doctor who conducted the Autopsy while examined before the court opined that, death was due to ‘Septicemia’ following the injuries sustained. Evidence of PW12, the Doctor who admitted the deceased in the Medical College Hospital is that, the injuries on the deceased could be caused with MO2 weapon. PW16 who is the Doctor in charge of the Department of surgery at the Medical College on the relevant date deposed that, the operations on the deceased was conducted by Dr.Santhosh Kumar, during the admission on both the spells. Dr.Santhosh Kumar was examined as PW21. He opined that the injuries found at the time of the first admission itself were grievous and in the ordinary course those injuries should have caused death. He further clarified that the stab injuries over the abdomen could be caused with MO1 and the lacerated wounds on shoulder and gluted regions could be caused with MO2. In cross examination PW21 had conceded that the Investigating Officer has not questioned him. He admitted that on 02.03.2009, when the deceased was discharged, he was fit for discharge and that was why he was discharged. To a specific suggestion put to him that on 02.03.2009 there was no infection, the Doctor answered that he cannot say it surely. To a further question as to whether infection was noted in the Discharge Summary noted on 02.03.2009, he answered on the negative.

7. Foremost contention raised by counsel for the appellants is that, there is no evidence on record to establish that death of the deceased was due to injuries sustained in the incident and that no offence under Section 302 will be attracted. In support of said contention it is pointed out that, medical evidence adduced is only to the effect that death occurred due to ‘Septicemia’. Learned Public Prosecutor opposed the contention pointing out that, the opinion as to cause of death noted in Ext.P10 is, “Death was due to Septicemia following injuries sustained”. She placed reliance on the testimony of PW14 Doctor who conducted Autopsy, in support of the above said version. It is further contended that, evidence of PW21 Doctor who conducted the surgeries is to the effect that, the injuries found at the time of the first admission itself were grievous and in the ordinary course those injuries should have caused death. But, on an elaborate consideration of the evidence on record this court is of the opinion that the prosecution was not successful in proving that ‘Septicemia’ developed only because of the injuries sustained by the deceased in the incident. This is especially because the circumstances brought out in evidence would reveal that, an emergent surgical procedure was conducted on the deceased immediately after the admission at the hospital and he recovered out of those injuries and he was discharged on 02.03.2009. Evidence of PW21 Doctor is to the effect that, the deceased was fit for discharge at that time. It is brought out in evidence that the deceased was re-admitted on 09.03.2009. The endorsement in Ext.P9(a) ‘IP Case Sheet’ would reveal that on the admission of the deceased on 09.03.2009 he was diagnosed with ‘jejunal fistula’ and ‘duodenal fistula’. A surgical procedure termed as “exploratory laparotomy” for closure of duodenal and gastric leaks was done. The said surgical procedure was done on 27.03.2009. Evidence is that, the deceased died on the early morning of 10.04.2009, while he was continuing treatment as inpatient after about 14 days of the second surgery undergone at the hospital, after the re- admission. There is no conclusive proof adduced by the prosecution that ‘Septicemia’ developed solely due to the injuries sustained in the incident. There is absolutely no evidence that the infection (Septicemia) developed from the cite of any of the wounds sustained. This coupled with the fact that PW21 Doctor had opined that the deceased was fit for discharge on 02.03.2009, would improbabilise the version that ‘Septicemia’ developed due to the injuries sustained. In other words, prosecution could not establish beyond reasonable doubt that the death was caused due to the injuries sustained.

8. Learned Public Prosecutor contended that ‘Enterocutaneous Fistula’ is a complication which usually develops after a surgery, on the small or large bowel, as a post operative complication. She placed reliance on some medical opinions that ‘Enterocutaneous Fistula’ are common presentations in general surgical wards and is responsible for a significant mortality. But in the case at hand, even if it is assumed that, the ‘Enterocutaneous Fistula’ diagnosed on 27.03.2009, could be an after effect of the surgical procedure undergone by the deceased on 25.01.2009, there is evidence that the death occurred not due to the ‘Enterocutaneous Fistula’, but due to ‘Septicemia’. What was the cause of the infection is not brought out in evidence and the prosecution was not successful in establishing that the infection was due to the injuries sustained in the incident or it developed due to the infection from those injuries.

9. The Prosecutor had placed reliance on a decision of the Hon’ble Supreme Court in

# Jagtar Singh and Another v. State of Punjab, (1999) 2 SCC 174 : 1999 KHC 973

In the said case the victim died due to the head injuries sustained. Evidence of the Doctor who conducted the Post Mortem would clearly indicate that death was caused by ‘Septicemia’. But the court observed that the Doctor who conducted the Post Mortem examination had categorically deposed that Septicemia was due to the head injuries sustained by the victim and that the said injury was sufficient in the ordinary course of the nature to cause death. There the hon’ble apex court observed that, the High Court had already found that the head injury was fatal in nature and the medical evidence coupled with that had revealed that the Septicemia was due to the injuries sustained. But the factual situation is different in the case at hand, where there is no evidence adduced to prove that the ‘Septicemia’ was developed due to the injuries sustained. 10. As already observed, evidence on the record has not in any manner establishes the case of the prosecution that the deceased Baby died on 10.04.2009 as an immediate or direct cause of the injuries inflicted by the appellants on 25.01.2009. Hence this court is of the opinion that the prosecution was not successful in establishing all the necessary ingredients to prove the guilt of the appellants under Section 302 IPC.

11. The next question to be considered is as to whether the appellants are guilty of any other offence and as to whether a conviction can be sustained against them for any other offence punishable under IPC. Sri. T.D.Robin, learned counsel for the appellants, raised vehement contentions that there is no acceptable and corroborative evidence to prove that the appellants have inflicted cut and stab injuries on the deceased. In this regard it is contended that, Ext.P12 statement of the deceased recorded by PW17 can be considered only as a statement under Section 161 of Cr.P.C. and it cannot be considered as a ‘dying declaration’ under Section 32(1) of the Indian Evidence Act. Primarily it is contended that there is no possibility of the deceased giving such a statement at 8:00 p.m on the date of the occurrence, because it is the specific testimony of PW1 that the deceased was admitted in the casualty at that time. But that by itself will not improbabilise the case of the prosecution that PW17 had recorded statement of the deceased at the hospital. Another contention raised is that, the deceased had not given any such statement under a sense of impending death or under the expectation of death. But law on this point remains settled through a decision of the hon’ble apex court in

# Sharad Biridhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622

Distinguishing English Law from Section 32 of the Indian Evidence Act, it was held that, there is no necessity that the declaration need to be made under any expectation of death.

12. But question remains as to whether Ext.P12 statement fulfills all the requisite criteria to accept it as a dying declaration, coming within the purview of Section 32 (1) of the Indian Evidence Act. The requirement under the provision is clear that the statement should have been made with respect to the cause of death of the person making it or with respect to any of the circumstances of the transaction which resulted in his death. Therefore, a direct link need to be established between the statement given and the cause of death or as to the circumstances of the transaction which resulted in the death. It is our considered opinion that, when the prosecution could not succeed in proving that death was the direct impact of the injuries sustained, the statement made will not assume characteristics of a dying declaration. In the case at hand, as already found by this court, the prosecution was not successful in establishing that the injuries sustained during the incident was the direct cause of the death.

13. In a decision of the Hon’ble Supreme Court in

# Moti Singh and another v. The State of U.P., AIR 1964 SC 900

it is held that, a statement of the person who died is relevant only when that statement is made by the person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which cause of that person’s death comes into question. When there is no proof that the deceased died as a direct result of the injuries received by him in the incident, where the deceased was alleged to have been killed, his statement relating to that incident cannot be said to be the statement as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death.

14. Confronting the above proposition, learned Public Prosecutor had cited another decision of the Supreme Court in

# Babulal and Others v. State of M.P., AIR 2004 SC 846 : 2003 KHC 1875

It was held that the general principle on which the species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced and the mind is induced by the most powerful consideration to speak truth. Referring to the land mark judgment in

# Munnu Raja v. State of M.P., (1976) 3 SCC 104

it is quoted that, when a person is facing imminent death, with even a shadow of continuing in this world practically non existent, every motive of falsehood is obliterated. The mind gets altered by the most powerful ethical reasons to speak only truth. Great solemnity and sanctity is attached to the words of a dying person because a person, on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person. The maxims, ” a man will not meet his Maker with a lie in his mouth” and “truth sits on the lips of a dying man” are observed as the guiding principle. But on the facts of the above quoted case, the dispute with respect to acceptance of the statement of the deceased was only on the ground that it was not properly recorded and only a thumb impression was affixed on the statement. The apex court in the said case observed that, recording of the evidence was clearly established through eye witness and it is proved in evidence that the declarant was in a condition to make such a statement.

15. Learned Public Prosecutor had cited another decision of the Honourable Supreme Court in

# Chirra Shivraj v. State of Andhra Pradesh, AIR 2011 SC 604 : 2010 KHC 4931

That is a case where a statement of the deceased who suffered burn injuries and died due to Septicemia was recorded on 21.04.1999, the date on which the occurrence had taken place. Subsequently, the victim expired on 01.08.1999. In that case, point which arose for consideration was as to whether registration of a second FIR incorporating offence under Section 302 was sustainable or not. However, even if it is contended that the statement in the said case was accepted as a dying declaration, the situation in the case at hand is entirely different. There the evidence is evaluated on the basis that the Septicemia developed due to the severe burn injuries and the deceased died within 10 days. There the statement is made with respect to the direct cause of the death. But in the case at hand the statement (Ext.P12) is made only with respect to the cause of the injuries which was not proved as the direct cause of the death. Hence the ingredients of Section 32 (1) of Indian Evidence Act stands not fulfilled to consider it as a dying declaration. The crucial aspect which need to be considered is as to whether the statement given by the victim is in relation to the cause of his death or with respect to any of the circumstances of the incident which resulted in his death. Since the cause of death is not established as one because of the injuries sustained in the occurrence, Ext.P12 statement cannot be attributed with evidentiary value of a dying declaration as contemplated under Section 32(1) of the Evidence Act.

16. Learned counsel for the appellant contended that the oral evidence of PW1 to PW3, who were examined as witnesses to prove the occurrence is highly contradictory with the version contained in Ext.P12, and therefore the oral testimonies of those witnesses cannot be relied on as proof of the incident to connect the appellants. He had specifically pointed out that the testimony of PW1 materially differs from Ext.P12 statement, to the extent that the deceased had not mentioned in Ext.P2 that he had gone to the courtyard of the house of the PW2 and PW3 and that the appellants followed him and inflicted injuries from there also. So also it is pointed out that, PW2 and PW3 had not supported the prosecution. While evaluating such contentions, it is to be noted that Ext.P12 was the statement made by the deceased immediately after the incident at the hospital where he was admitted in a critical condition. Hence it could not be expected that it should contain every minute narrations of the incidents and overtacts. It remains well settled that an FI statement under Section 154 Cr.P.C cannot be considered as an encyclopedia of the entire incident with all minute details. Further, we take note of the fact that the contents of Ext.P12 are not proved as its maker could not be examined. We have already found that Ext.P12 would not come within the purview of a dying declaration under Section 32(1) of the Evidence Act. Therefore, Ext.P12 cannot be considered as a substantive peace of evidence. Hence its contents cannot be said to have been proved, without examining its maker. With respect to evidence of PW1 it is established that the deceased was attacked at a time when he was travelling in the Autorickshaw driven by PW1. Evidence of PW2 and PW3, eventhough they did not support the prosecution, would corroborate with respect to the presence of PW1 and the fact that PW1 had taken the deceased to the Hospital in his Autorickshaw. Therefore, it remains proved that PW1 is a person who was present at the scene of occurrence. The chance of he witnessing the incident cannot be doubted. Case put forth by the appellants, while questioned under Section 313 Cr.P.C, was that PW1 had attempted to inflict stab injury on the appellants. Therefore, the presence of PW1 at the scene of occurrence is even admitted as per the version of the appellants. Apart from the oral testimony of PW1, there is evidence to the effect that MO2 and MO1 weapons were recovered by PW19, the Investigating Officer, based on Ext.P4(a) and P5(a) disclosure statements made by the Ist and 2nd appellants, respectively. The evidence of PW19 regarding recovery of MO1 and MO2 weapons stands corroborated by oral testimony of PW6 and PW7. The evidence of PW19 with respect to the recovery of MO1 and MO2, on the basis of the disclosure statements made by the appellants and as led by the appellants, is admissible under Section 27 of the Indian Evidence Act, 1872. Therefore, on an overall appreciation of the evidence on record, this court is convinced that the appellants 1 and 2 had inflicted injuries on the deceased, which were sufficient in the ordinary course of nature to cause death.

17. Learned counsel for the appellants contended that, evidence available on record in the case could not be taken as sufficient to sustain a conviction for any offence under Section 307 IPC. When it is proved that the victim died during course of the treatment undergone, no offence which is in the nature of ‘attempt to commit murder’ will be attracted, is the contention. According to him, at the most a conviction can be sustained only under Section 324 IPC, as the nature of any of the injuries would not fall within the ambit of grievous hurt enumerated in Section 321 IPC to sustain a conviction under Section 326 IPC. In this regard learned counsel for the appellant had drawn our attention to Ext.P8 Wound Certificate. It is pointed out that, only one lacerated wound on the right corner of the mouth extending to the right corner of the mandible and a small lacerated wound on the chin alone are mentioned in the said certificate, those injuries cannot be considered as an injury sufficient to cause death of the victim. But as already observed, Exts.P9, P17 and P18, the ‘In-Patient Case Sheets’ of the deceased would clearly indicate that the deceased had sustained a penetrating injury in the abdominal region which had cut the liver, duodenum and abdomen. In this regard the opinion of PW21 Doctor assumes importance. He opined that the injuries found at the time of the first admission itself were grievous and in the ordinary course those injuries should have caused death. Learned counsel for the appellants argued that the words “should have caused death” will not indicate that the injuries were sufficient to cause death. But we are of the considered opinion that what is meant by such a statement is that those injuries should have caused death, but for the medical intervention. When it is proved that the appellants have committed an act with an intention to cause such bodily injury as they knew to be likely to cause death of the deceased, they have committed the offence falling squarely within clause ‘secondly’ of Section 300 IPC. But since there is no evidence to establish that death in this case occurred as a direct cause of the injuries sustained, the offence under Section 307 IPC will be attracted, because the attempt to commit the offence described under Section 300 IPC stands established.

18. Sri. T.D. Robin, learned counsel for the appellants raised a contention that, once this court finds that the offence under Section 302 IPC is not sustainable, it is not legal and proper to impose a conviction and sentence under Section 307 IPC, because Section 307 is not considered as a minor offence of Section 302 IPC. In support of such contention, he placed reliance on a decision of the hon’ble Supreme Court in

# Pashora Singh and another v. State of Punjab, 1993 Crl. LJ 1053

There the case was one tried for the offence punishable under Sections 307, 323, 324, 326 and 447 read with Section 34 IPC. The hon’ble Supreme Court altered the conviction to one under Section 326 read with Section 34 IPC. On the facts, the court found that the injuries inflicted in that case were found to be simple in nature, which would clearly establish that the accused had no intention of causing death. The court further found that any of the injuries found on the victim was stated to be sufficient in the ordinary course to cause death. Therefore the court found that the element of intention to cause death or to cause any injury which was sufficient to cause death, was not established. The case at hand is clearly distinguishable on facts.

19. Another decision of the hon’ble Supreme Court relied on is,

# Mohinder Singh V. State (Delhi Administration), 1985 Crl. LJ 1903

It is a case where the trial court convicted the accused for offence under Section 302 and 449. But the High Court altered the conviction under Section 302 to Section 304 Part II. On a re-appreciation of the evidence on record, the hon’ble Supreme Court found that the ingredients of Section 304 Part II was not fully established and hence the conviction was altered to one under Section 325 IPC.

20. The question to be considered here is as to whether there is evidence available to punish the appellants for offence under Section Section 307 IPC. As already found, the medical evidence on record would prove that the injuries inflicted by the appellants on the deceased was sufficient to cause death. Therefore it is proved that the appellants had committed the act with an intention to cause such bodily injury as they knew to be likely to cause death of the deceased. Such an inference can be drawn because it is brought out in evidence that A1 had inflicted several cut injuries on the deceased with a deadly weapon of M.O.2 chopper and that the 2nd appellant had caused a deep stab injury in the abdominal part of the deceased with M.O.1 knife. It is clear that the appellants inflicted such injuries with the knowledge that those injuries were likely to cause death of the deceased and the intention in this regard is explicitly clear. Under such circumstances, there exists evidence proving ingredients of Section 307, for which the appellants are liable to be punished.

21. We notice that in a good number of cases the hon’ble Supreme Court in such occasions had altered the conviction and sentence imposed under Section 302 IPC to Section 307 IPC.

# State of U.P V. Rohan Singh and another, 1996 Crl. LJ 2884

# Jarnail Singh V. State of Punjab, AIR 1996 SC 755

and

# Ahmed Shah and another V. State of Rajasthan, (2015) 3 SCC 93

are some of the precedents wherein the hon’ble apex court had altered the conviction to Section 307 IPC. Therefore we are of the considered view that the conviction and sentence in the case at hand can be altered to Section 307 IPC.

22. Under the above mentioned circumstances, the above Criminal Appeal is allowed in part. The conviction and sentence imposed against the appellants under Section 302 read with Section 34 IPC stand altered to conviction under Section 307 read with Section 34 IPC. As regards the sentence, learned counsel for the appellants made an appeal to take a lenient view, pointing out that the 2nd appellant is aged 74 years at present. It is also pointed out that the 1st appellant, who is now aged 34 years, is unmarried and that he lost his mother during his younger age and he was brought up by his step mother. There is also no previous conviction against the appellants. The appellants were also not involved in any other heinous crime. Considering the facts and circumstances of the case, including submission of the learned counsel, this court is of the opinion that the appellants can be sentenced to imprisonment for the period of detention already undergone by them in connection with this case and a fine of Rs.25,000/- each, and in default to undergo rigorous imprisonment for 3 months each, under Section 307 read with Section 34 IPC. We order accordingly.

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