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2004 (2) Crimes 29
Kerala High Court (DB)
K.A. Abdul Gafoor and J.M. James, JJ.
Sukumaran—Appellant
versus
State of Kerala—Respondent
Crl.A. No. 995 of 2002
Decided on 10-11-2003
For the Appellant :P. Vijaya Bhanu and P.M. Rafiq, Advocates.
For Respondent: P.M. Habeeb, Public Prosecutor
Important Point
Where accused poured acid on deceased and death was after 37 days and injuries were opined not sufficient in ordinary course of nature to cause death and there was intervening circumstance of infection, offence would not fall u/s. 302 IPC but would fall u/s. 304 Part II IPC.
Headnote:(i) Indian Penal Code, 1860 — Section 302 — Appellant poured acid on body of deceased because of past enmity — No eyewitness of incident — Three dying declaration by deceased and each was convincing and in same line without contradiction — Prosecution case was rightly believed that appellant had poured acid on deceased. (Paras 8 to 9)
(ii) Indian Penal Code, 1860 — Section 302 — Appellant poured acid on deceased — Deceased died after 37 days of incident — Nature of offence — Doctor had not stated that injuries would in ordinary course of nature cause death and mentioned that there was infection — Conviction u/s. 302 IPC could not be upheld but would fall u/s. 304 Part II IPC — Sentence of 7 years imprisonment awarded. (Paras 18 to 20)
Result : Appeal allowed partly.
JUDGMENT
K.A. Abdul Gafoor, J.— The sole accused in S.C. No. 73/99 on the file of the Additional Sessions Judge, Fast Track Court-I, Palakkad, is the appellant herein. He was charged for the offence punishable under S. 302 of the Indian Penal Code for having committed the murder of one Sathyabhama by pouring acid on her. He was found guilty, convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 10,000/-, in default of which, to undergo simple imprisonment for two months.
2. The prosecution case is as follows: The appellant/accused Suku-maran (hereinafter referred to as the accused) and the deceased Sathyabhama (hereinafter referred to as “the de-ceased”), wife of PW.8 Vasu, had a long standing enmity between them as disclosed by various letters produced before the Court below. As a result of that enmity, the accused, at about 7.30 A.M. on 9.7.1998, while Sathyabhama was returning after drawing water from a nearby tap, poured acid on her body. Sathyabhama ran towards the house of a neighbour, wherefrom she had been taken to the nearby hospital. Later she was referred to the Medical College Hospital, Thrissur, where she succumbed to the injuries on 15.8.1998, after about 37 days of the incident.
3. Initially, a crime was registered against the accused under S. 307 IPC by the Kasaba Police Station, Palakkad. Later, on the death of Sathyabhama, Ext. P 20 report was filed by the police before the court to alter the charge to one under S. 302 IPC.
4. Altogether, 30 witnesses were examined and 30 documents marked on the side of the prosecution, apart from identification of 6 material objects.
5. There were no eyewitnesses to the incident. On the basis of the evidence on record and the circumstances pointed out, stated to be towards the guilt of the accused, the court below found the accused guilty, convicted and sentenced him as mentioned above. The conviction and sentence are challenged by the accused in this appeal.
6. It is contended by the accused that there was nothing to infer any intention on the part of the accused to cause the death of the deceased. It is submitted that PWs. 2 to 4 and 6, the neighbours, who were examined by the prosecution to prove the hostility between the two became hostile to the prosecu-tion. PW.7, another neighbour, also turned hostile, apart from PW10, who had been cited to prove the mediation held to appease the hostility between the two. Therefore, the hostility between the two was not proved. The motive was thus not established. There was no eyewitness and there is no clinching evidence to conclude that the accused had poured acid, it is contended. Therefore, the accused cannot be found to be guilty of any offence, he submits.
7. Alternatively, it is submitted that even if the incident is proved, it will not amount to the offence punishable under S. 302 IPC. Death occurred after 37 days of the incident. PW24, the doctor who conducted the post-mortem examina-tion did not reveal in his evidence that the injury sustained by the deceased was sufficient in the ordinary course of nature to cause the death. It is in evidence from his deposition that there was infection on the wounds of the deceased. According to him, as is revealed by the case sheet in the hospital, she died out of burn injury. With regard to the infection, he has stated that it could be caused due to several reasons. PW23 the doctor who examined the deceased immediately after sustaining the injury and who issued Ext. P16 wound certificate, did not specify about the degree of the injuries, nor did he depose about the degree of burn injuries sustained. He also did not depose before the court below that the injuries were sufficient in the ordinary course of nature to cause death. There-fore, there arises no question of convic-ting and sentencing the accused under S. 302 IPC, the appellant contends.
8. Regarding the first limb of argument, we need not labour much because of the dying declarations, Ex
