2002 Supreme(SC) 1097

2002(8) Supreme 243
SUPREME COURT OF INDIA
(From Madras High Court)
S. Rajendra Babu & P. Venkatarama Reddi, JJ.
Shanmugam @ Kulandaivelu -Appellant
versus
State of Tamil Nadu -Respondent
Criminal Appeal No. 256 of 2002
Decided on 12-11-2002
Counsel for the Parties :
For the Appellant : A.T.M. Rangaramanujan, Sr. Advocate, R. Nedumaran, Advocates.
For the Respondent : S. Balakrishnan, Sr. Advocate, Mrs. Revathy Raghwan, Ahbay Kumar, R. Gopala Krishnan, Advocates.

IMPORTANT POINT
Dying declaration cannot be rejected on theoretical distinction of medical certificate of consciousness and fit state of mind. The offence, however, does not fall u/s 302 IPC but under Section 304 Part I on nature of injuries and other facts and circumstances of case.

Headnote:(i) Evidence Act, 1872-Section 32-Dying declaration-Indian Penal Code, 1860-Section 302-Accused-appellant killed his younger brother after picking up quarrel on a petty issue and eye witnesses including the wife of deceased have turned hostile-Two dying declarations-One to police constable without any doctor s certificate or presence-Another by Judicial Magistrate having endorsement of doctor that deceased was conscious but no endorsement that he was mentally fit-Sessions Court convicted appellant on the basis of both dying declarations but High Court rejected Magistrate s recorded dying declaration on non-examination of doctor but relied on police s recorded dying declaration-Appeal to Supreme Court-Contention that both dying declarations are unbelievable-Whether correct? (No)-Whether High Court was right in rejecting Magistrate s recorded dying declaration on theoretical medical distinction between consciousness and fit state of mind? (No)-Case law referred.

       Held : We find no good reason to discard the dying declaration (Ext. P. 16) recorded by the Judicial Magistrate within a few hours after the victim was admitted in the hospital. The Judicial Magistrate, who was examined as P.W.11, categorically stated that he satisfied himself that the victim was conscious and was in a position to make the statement when he made the statement. The Medical Officer of the hospital was present at the time when he recorded the statement and he also made an endorsement on Ext. P.16 about the consciousness of the patient. The mere fact that the doctor, in whose presence Ex.P.16 was recorded, was not examined does not affect the evidentiary value to be attached to the dying declaration. The proposition laid down in P. Rosamma vs. State of Andhra Pradesh [1999(7) SCC 695)] that "in the absence of medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the same subject to the satisfaction of a Magistrate" is no longer good law in view of the recent larger bench decision in Laxman vs. Staff of Maharashtra (J.T. 2002 (6) SC 313). Commenting that the said proposition does not reflect the correct enunciation of law, this Court observed thus:

       "It is indeed hyper-technical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind especially when the magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind....".

       Thus the theoretical distinction that was made in P. Rosamma s case between consciousness and state of mind was not accepted by the Five Judge bench. In this case too, the Magistrate before proceeding to record the statement throwing light on the actual incident had put some preliminary questions to satisfy himself that the injured was conscious enough to give the statement. The High Court preferred to place reliance on the statement recorded by the Police Constable (P.W.9), which is Ext. P.14. It is worthy of note that the doctor was not present while recording the said statement, yet the High Court chose to place reliance on Ext.P.14 while discarding Ext. P. 16 on a ground which no longer holds good in view of the recent decision of this Court. That the dying declaration can form the sole basis for conviction is too well settled by a catena of decisions. The dying declaration clearly implicates the accused. The dying declaration in Ex.P.16 contains the questions and relevant details of the incident. There are no suspicious features which affect the credibility of the dying declaration. There is no apparent reason why the deceased should think of wantonly roping in his brother in the murderous attack. The mere fact that the victim did not make any reference to the injuries received by the accused is not a ground that merits rejection of dying declaration vide: State of Maharashtra vs. Krishnamurti [A.I.R 1981 SC 617 Para 19] especially when in the present case the victim could not have had an opportunity to observe the lip injury, if any, received by the accused. (Para 8)

       (ii) Indian Penal Code, 1860-Sections 302 r/w 100-Right of private or self defence in case of murder-Appellant killed his younger brother after picking up quarrel on a petty matter-Appellant also suffered injury on his lip-Time of injury in doubt-No plea of private defence taken in trial-In appeal it was taken-Whether permissible? If so, whether can form basis to give benefit to appellant? (No).

       Held : The next contention that on the facts emerging from the evidence, a reasonable inference of exercise of the right of self defence could be drawn, does not appeal to us. It is not possible to countenance the theory of self defence on the basis of the evidence on record apart from the fact that the appellant did not say a word about it. The facts brought out in the dying declaration and the nature of injuries inflicted on the deceased would rule out the theory of self defence. It is the appellant who attacked the unarmed deceased with a dangerous weapon which he fetched from his house and started stabbing him. The appellant is aggressor and there are no circumstances which suggest that he could have entertained a reasonable apprehension of danger to his own life from the side of the deceased. The learned counsel for the appellant sought to buttress his argument of self defence mainly from the factum of injuries found on the person of the appellant soon after his arrest two days later. The notable injury is the injury on the lip. P.W. 13, the I.O., sent the accused to the hospital soon after he was arrested. P.W.12 is the doctor who examined the accused. He found a sutured wound on the right side of the lower lip and chin 4 cms. in length with scap formation. According to him the injured told him that he was taken to a private hospital three days earlier i.e. on the date of occurrence and he was treated for the injury. He made a note on the accident register to the same effect. P.W. 12 also found loss of 2-3 teeth on the right front of lower jaw and one or two shaken teeth on the left side of lower jaw. He was not in a position to say whether the teeth were lost two days earlier or sometime before the date of incident. "I cannot definitely say since when they are missing", he says. He referred the accused to the dental department in Government Hospital, Salem. There is no evidence of his further examination in that hospital. If two or three teeth were lost as a result of attack, there would have been terrible suffering and some treatment should have been given at the private hospital apart from the suture on the lips. Moreover, fresh injuries could have been patent. But, we do not find anything in the evidence of P.W.12 that there were signs of treatment for dental injuries or that he noticed any fresh injury. On the other hand, a suggestion put by the counsel for the accused to P.W.12 (I.O.) was that the accused told him that the police had hit him on the mouth resulting in the loss of teeth. According to this suggestion, the loss of teeth was not in the course of altercation . Therefore, the lip injury caused to the accused does not give rise to a reasonable inference or even probability that the deceased violently attacked the accused. On the other hand, the probability is that there would have been some resistance on the part of the deceased and in that process the accused would have fallen on the hard substance as deposed to by the doctor and got injured thereby. The injury on the lip (assuming that it had occurred in the course of the incident) can only form a very slender basis for building up the plea of private defence. (Para 9)

       (iii) Indian Penal Code, 1860-Sections 302 or 304-Nature of offence-Appellant killed his younger brother after picking up quarrel on a petty matter-Injuries caused on chest, thigh, stomach and nose-Doctor opining none was sufficient in ordinary course to cause death-Death caused 7 days after injuries by septicaemia-Whether it is a cause of murder as culpable homicide not amounting to murder-(Later)-Result-Conviction and sentence under Section 302 IPC-Whether needs modification under Section 304 IPC? (Yes)-Appeal allowed in part.

       Held : The question then is whether the offence falls under Section 300 IPC or the appellant can be convicted for a lesser offence - a point which has not been discussed by the High Court. It raises the question whether the appellant had an intention to cause the death or such bodily injury as was sufficient in the ordinary course of nature to cause death. It seems to us that on the facts disclosed in evidence, it is not safe to infer an intention to cause death. No doubt in the second dying declaration (P 16) it was stated that the land dispute between him and the accused was the cause of the occurrence. But, such bald and vague statement cannot be taken note of. The wife of the deceased, namely, PW 1 who was treated as hostile witness denied having made any statement to the police that the accused became envious after her husband purchased land for Rs. 10,000/- from one Thoangan alias Palaniyappan. No other evidence is available to establish the motive. The genesis of the incident as brought out by the prosecution is traceable to a petty quarrel which would have been sparked off by the admonition given by the deceased for his alleged misbehaviour in whistling. All of a sudden, he entered his house, picked up the weapon and attacked and inflicted injuries on the deceased. Though he was in a position to cause instantaneous death of the victim by dealing fatal blows, he left the spot after being persuaded by his wife who rushed to the scene of offence on hearing the cries. He even allowed the weapon to be taken out of his hands by his wife. He stopped at that point. On a consideration of the totality of the circumstances, it is difficult to impute to the accused the intention to put an end to the life of the deceased. Nevertheless, intention to cause severe bodily injuries has to be necessarily imputed to the appellant. But then, the objective test -whether the injuries were sufficient in the ordinary course of nature to cause death, has to be satisfied to bring home the guilt of the accused under Clause thirdly of Section 300 IPC. It is here that the medical evidence assumes much importance. We have already referred to the substance of the evidence given by the two Doctors - PWs 5 and 6, the former who attended on him while in hospital and the latter who conducted post-mortem of the body. Though PW 5 broadly stated that injuries 1, 2 and 6 were "serious enough" to cause death, in cross examination, he made it clear that he was not aware of any internal injuries in the body of the patient. He noticed fatty covering of the stomach protruding outside. He proceeded to say that if there was no injury inside the stomach, there was no possibility of death. So also, with regard to injuries 2 and 6 he stated that if there was no damage of internal organs, death would not occur on account of those external injuries. He further stated that there was no wound in the lungs. He then stated that the immediate cause of death was the infection on account of oozing of excreta from the colon and the wounds becoming septic thereby. His evidence, viewed as a whole, does not lead to a definite conclusion as to the sufficiency of injuries causing death in the ordinary course. The evidence of doctor (PW6) who did post-mortem is also not categorical so as to form a definite opinion that the injuries inflicted on the deceased were sufficient in the ordinary course of nature to cause death. While reiterating the opinion of PW 5 that death occurred by reason of onset of septicimia because of puss and infection, he deposed that the wounds on the gall bladder of the deceased were capable of causing death. At the same time, he stated in the cross-examination that it cannot be said with certainty that the wounds on the gall bladder would result in death. It may be noticed that the nature of wounds on the gall bladder was two tears . If the gall bladder was wounded on account of stabbing, normally one would find an incised wound there. That is why what he further said in the cross-examination assumes importance. He stated that gall bladder injury could occur "if a person fell or got hit in the stomach with force and kicked by leg". The possibility of such contingency cannot be ruled out in the instant case. Moreover, PW 6 did not notice much loss of blood on account of gall bladder injury. In these circumstances, a reasonable doubt arises whether the tear wounds on the gall bladder, which according to PW 6 were capable of causing death, were sufficient in the ordinary course of nature to cause death. At the same time, the nature of injuries and the medical opinion unmistakably point to the fact that the bodily injuries inflicted on the deceased were of such nature that they were likely to cause death. There can be no doubt that the accused intended to cause and did cause the injuries. We are, therefore, of the view that the appellant is liable to be punished under the first Part of Section 304 IPC. He is, therefore, convicted under Section 304 Part I. In the facts and circumstances of the case, we are of the view that the sentence of 7 years RI and a fine of Rs. 1,000/- will be appropriate. In default of payment of fine, he shall suffer further imprisonment for a period of four months. Accordingly, the appeal is partly allowed and the conviction and sentence stand modified. The period of imprisonment already undergone shall of course be set off against the sentence of imprisonment now imposed. (Paras 12 and 13)