2007 Supreme(SC) 1447

2007(7) Supreme 623
Supreme Court of india
(From Bombay High Court)
Dr. Arijit Pasayat & P. Sathasivam, JJ.
Antram — Appellant
versus
State of Maharashtra — Respondent
Appeal (crl.) 1529 of 2007
(Arising out of SLP (Crl.) No. 376 of 2007)
Decided on : 12-11-2007

Important Point
Exception2 to Section 299 IPC, lays down that where death is caused by bodily injury, person who causes such bodily injury shall be deemed to have caused death, although by resorting to proper remedies and skilful treatment the death might have been prevented.

Headnote:Indian Penal Code, 1860 – Section 302 – Prosecution of appellant for causing death of his wife by brutally assaulted her with an axe – No eyewitness to incident – Case based on circumstantial evidence – Accused and deceased were in house at time of incident – A quarrel took place took place between couple during which accused brutally assaulted deceased – Conviction by Trial Court on basis of dying decelerations – Appeal against conviction – Dismissed by High Court – Appeal there against on plea that dying declarations were not reliable - There were four dying declarations recorded two were oral and two were recorded - Apart from oral narration to PW-5 daughter of deceased, PW2 cousin brother’s statement was recorded as dying declarations by PW.4 Dr. who initially examined injured and recorded her statement. - PW-6 Doctor while admitting deceased gave intimation to Police station - High Court found that dying declarations were reliable and there was not much variation in versions - However, dying declaration as contained in Exh. 36 was kept out of consideration, and dying declarations before doctor and cousin brother were accepted - So far as dying declarations were concerned as rightly observed by High Court even if Exhibit 36 was kept out of consideration, dying declarations both oral and written were sufficient to fasten guilt of accused - High Court elaborately dealt with authenticity of dying declarations and rightly came to conclusion that they did not suffer from any infirmity- Appeal having no merit, dismissed. (Paras 7,10)

       Indian Penal Code, 1860 – Section 302 – Applicability of – Prosecution of appellant for causing death of his wife by brutally assaulting her with an axe – Conviction by Trial Court – Appeal against conviction – Dismissed by High Court – Appeal there against on plea that case was not covered u\s 302 – Contention that death being caused due to medical negligence, accused could not have been convicted u\s 302 IPC – Stand of accused that death was due to Septicaemia and hence, it was not referable to cause of death in ordinary course of nature due to ante mortem injuries and that with proper medical care deceased could have survived and therefore Section 302 IPC had no application - High Court noted that throwing out vomit by deceased was not a natural course but it was a result of two injuries i.e. injuries Nos. 3 & 4 - High Court found that presence of mucus and food particles in trachea and bronchi could not be totally delinked from the injuries inflicted by the accused – Held Plea of accused clearly overlooked Exception 2 to Section 299 IPC, which lays down that where death is caused by bodily injury, person who causes such bodily injury shall be deemed to have caused death, although by resorting to proper remedies and skilful treatment the death might have been prevented. (Paras 11 to 15)

       AIR 1996 Sc 2962, AIR 1974 SC 2328, relied upon.

       Facts of the Case :

       Appellant was prosecuted herein in the instant case for causing death of his wife by brutally assaulted her with an axe. There was no eyewitness to incident. Case was based on circumstantial evidence. Accused and deceased were in house at time of incident. A quarrel took place took place between couple during which accused brutally assaulted deceased. Trial Court convicted appellant on basis of dying decelerations. Appeal against conviction was dismissed by High Court.

       Present appeal has been filed against said order of High Court.

       Findings of the Court:

       The Court held that there were four dying declarations recorded two were oral and two were recorded. Apart from oral narration to PW-5 daughter of deceased, PW2 cousin brother’s statement was recorded as dying declarations by PW.4 Dr. who initially examined injured and recorded her statement. PW-6 Doctor while admitting deceased gave intimation to Police station. High Court found that dying declarations were reliable and there was not much variation in versions. However, dying declaration as contained in Exh. 36 was kept out of consideration, and dying declarations before doctor and cousin brother were accepted. So far as dying declarations were concerned as rightly observed by High Court even if Exhibit 36 was kept out of consideration, dying declarations both oral and written were sufficient to fasten guilt of accused. High Court elaborately dealt with authenticity of dying declarations and rightly came to conclusion that they did not suffer from any infirmity. Appeal having no merit, was dismissed.

       Result : Appeal dismissed.