Back
2002 Supreme(Ker) 388
Judges : M.R.HARIHARAN NAIR
Kunnathura Thomman - Appellant
Versus
State of Kerala - Respondent
Case No : Crl. A No. 926 of 1998
Decided On : 07/03/2002
Advocates Appeared :
For Petitioner: O.V. Maniprasad, Advocate For Respondent: L. Aloysius Thomas (Public Prosecutor)
Headnote:
Indian Penal Code 1860 – Sections 304 and 326 – Death – Knowledge of – Held, No doubt at all that this, when used as a weapon of offence, is likely to cause death – Ingredients of S. 326 no doubt, are clearly established in the present case. – But the additional factor to be taken note of is that the victim succumbed to the injuries soon after sustaining it. – A person wielding weapon like MO1 aimed at the chest with such force that it completely cut the axillary artery and vein, has to be fixed with atleast the knowledge that such injury was likely to cause death. – Since death resulted from the attack and knowledge is evident as above the case goes beyond the purview of S. 326 and falls within S. 304. – Nature of injuries inflicted and the utterances made by the accused at the time show that it was intentional infliction of injury. – Medical evidence shows that death of Siby took place in consequence of the injury sustained and that the injury was also likely to cause death of the victim. – Court do not think that there is scope for scaling down the offence from Part II of S. 304 to S. 326. – The ingredients of S. 304 Part II are thus complete. – Fatal injuries were suffered at the scene of occurrence itself and from the depth of the injury, the way in which the weapon was wielded and the injuries suffered etc. the intention of the assailant can be deduced. – The accused must have known that the stab injuries inflicted by him were likely to cause death.
M.R.Hariharan Nair, J.
Appellant, Thomman @ Thomas is the accused in S.C. No. 138 of 1996 of the Sessions Court, Tellicherry. The challenge is with regard to the conviction entered against him for the offence under Sec. 304 Part II with regard to the earth of one Siby and for the offence punishable under Sec. 324 of the I.P.C. with regard to the injury suffered by PW1 – Raveedran Chettiar and the sentence of R.I. for six years and fine of 10,000/- (in default R.I. for six months); and R.I. for two years and fine of Rs. 2500/- (in default R.I. of one month) respectively for the said two offences.
2. Detailed facts of the case are available in paragraph 2 of the impugned judgment and it is unnecessary for me to narrate the entire details all over again. Suffice it to say that the prosecution had alleged that following an incident of insult from Siby, the deceased, at about 9.30 p.m. on 25.8.1995 when Siby and PW1, who were walking southwards from the shop ‘Tasty Food’ which is sandwiched between Toddy shop No. 58 and Arrack shop No, 80 at Karthikapuram bazaar and when they reached in front of the Cinema Theatre by name ‘Udaya Talkies’, the accused, who was walking behind them, asked Siby whether he would insult him and also warned him that he should not pose tall. When Siby retorted that the accused also need not pose tall, the accused suddenly took out MO1 knife and after removing its paper wrapper, inflicted a stab in jury, which struck near the eyebrow of Siby. PW1 then rushed to the aid of Siby and then stating that “you too could get” the accused stabbed at the stomach of PW1. On suffering the stab PW1 ran back to ‘Tasty Food’ shouting that the accused had stabbed him. After the wound suffered by PW1 was dressed with a towel, both the injured were removed to the government Hospital, Taliparamba. By that time Siby had succumbed to the in juries. PW1 was taken to the District Hospital, Kannur and from there to the Medical College Hospital, Kozhikode. His life, however, could be saved.
5. On the arguments advanced in the case the points that arise for decision are:
1. Whether there is reliable evidence to conclude that the accused was the person responsible for the fatal injuries suffered by Siby?
2. Whether there is reliable evidence to show that the accused inflicted the injuries suffered by PW1?
3. Whether the recovery of MO1 weapon spoken to by the investigating Officer is a proper link connecting the accused with the crime?
4. Whether the offence committed by the accused resulting in the death of Siby comes within Part II of Sec. 304 or only falls under Sec. 326 of the I.P.C.? and
5. Reliefs.
6. Points Nos. 1 and 2 :- these are considered together for the sake of convenience. Ext. P6 wound certificate shows that at 11.15 p.m. on 25-8-1995 the body of Siby reached the Government Hospital, Taliparamba in dead condition and that stab injuries were found on his body. Ext. P4 postmortem certificate proved by PW1 gives the details of the injuries found on the body of Siby as follows:
“External Injuries:-
1. Incised wound of about 4cm x .5 cm below (R) eye.
2. Stab wound on (r) upper arm about 5cm below anterior axillary fold of about 5 ½ cms. Length, 3cm width and 6.5 cms deep, directing upwards, backwards and Inwards. The wound extended upwards with the result that the axillary artery and vein were completely cut, just before the posterior circumflex branch arises.
Internal Examination:
Lungs - Place & congested.
Heart - Chambers empty
Liver, spleen, kidneys - pale and congested
Stomach contained whitish brown viscous fluid (food material)
Skull - No fracture
Brain - Congested.”
The cause pf death stated by the doctor is “shock due to haemorrhage.” He also deposed that external injury No.2 aforementioned is fatal in nature and that both the external injuries found on Siby could be caused by stabbing with a weapon like MO1.
7. PW11 also proved Ext P7, which is the wound certificate in respect of PW1. The said certificate in respect of
