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
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