STATE OF KERALAversusSASI

A                             STATE OF KERALA
                                         v.
                                       SAS!

                               OCTOBER 31, 1996

B                 [DR. A.S. ANAND AND K.T. THOMAS, JJ.]

          Penal Code, 1860 :

          Sections 302, 326-Murder bycausinggrievous injuries-Trial Court
C convicting the accused/or murder and sentencing him to life imprisonment-
  High Court convicting the accused only for causing grievous injuries and
  sentencing him to 5 years RI-On appeal by State held, in view of the
  medical opinion that the injuries were sufficient in the ordinary course of
  nature to cause death which is directly attributable to the injuries, respondent
   is guilty of an offense punishable under S.302-Hence the trial court
D judgment restored-Respondent to undergo imprisonment for life.

         CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
    397 of 1996.

          From the Judgment and Order dated 6.4.95 of the Kerala High Court
E   in Crl.A. No. 123 of I 992.

          M.T. George for the Appellant.

          V.B. Saharya for the Respondent.
F
          The following Order of the Court was delivered :

            On 2.1 l.1990 at about 4.15 p.m., the respondent gave blows to the
    deceased Kunhuvareed on his head with a bamboo stick. Those blows
G   resulted in fracture of the skull and multiple lacerated wounds on the head
    with resultant damage to the brain. The deceased died in the hospital on
    13.I I.1990 at about 3.25 a.m. Case was registered and investigation taken
    in hand. After completion of the investigation, the respondent was
    committed to stand trial to the Court of Sessions for an offence under
    Section 302 !PC. The prosecution examined 20 witnesses including PWs
H   I 5, I 6 & I 7-the three medical witnesses, and Pws. I, 2 and 3 as the eye-
                                         304
                     STATE OF KERALA v. SAS!                            305


witnesses. At the trial, however, PW! and PW2 turned hostile, after             A
admitting the occurrence to have taken place on the date and at the time
alleged by the prosecution. The learned Trial Court, after appreciation of
evidence and considering the defence documents and the statement of the
respondent, found the respondent guilty of an offence under Section 302
!PC and convicted him accordingly. He was sentenced to undergo
impisonment for life vide judgment dated 15.11.1991. The respondent's           B
appeal to the High Court partly succeeded and while accepting the genesis
of the prosecution case, the High Court altered the conviction from under
Section 302 !PC to the one under Section 326 JPC and sentenced the
respondent to undergo five years RI vide judgment dated 6.4.1995. The
State has filed this appeal against the acquittal of the respondent for an
offence under Section 302 JPC by special leave.                                 C
      We have heard learned counsel for the parties.

      The respondent has not questioned his conviction. He has not filed
any S.L.P. A perusal of the evidence on the record clearly establishes that
the occurrence took place in the manner suggested by the prosecution and        D
that on 2.11.1990 at about 4.15. p.m. at the Toddy shop in the village, the
respondent gave blows to the deceased on his head with the bamboo stick.
The evidence also reveals that the deceased was removed ·to the hospital in
seriously injured condition and he remained in coma till he breathed his
last on 13.11.1990. The prosecution has, thus, successfully established         E
that it was the respondent who had caused injuries at the head of the
deceased on the fateful night. The only question, however, is about the
nature of offence.

      The trial court while dealing with the nature of offence observed:
                                                                                F
             "The next question to be considered is as to what is the offence
             committed by the accused. If a man deliberately strikes
             another on the head with a heavy log of wood or an iron rod
             or even a lathi so as to cause a fracture of the skull he must,
             in the absence of any circumstance negativing the                  G
             presumption be deemed to have intended to cause the death
             of the victim of such bodily injury as is sufficient to cause
             death. Since the accused gave 3 blows by using MO l on the
             head of deceased Kunhuvareed as a result of which the
             deceased fell down on sustaining fatal injuries on the head
             and the circumstances indicate that the assault was                H
    306                     SUPREMECOURTREPORTS [1996] SUPP. 8 S.C.R.


A                premeditated and the three blows on the head <'f deceased
                 were not accidental and the injuries were sufficient in the
                 ordinary course of nature to cause death, the case would
                 squarely fall within the ambit of clause thirdly of Section
                 300 !PC and the accused is guilty of the offence of murder
                 punishable under Section 302 of the Indian Pana! Code."
B
         The High Court, as already noticed, did not disagree with the
    prosecution case regarding the complicity of the respondent with the crime,
    however, on the question of the offence, the High Court opined:

                 "On the evidence, there is no doubt the accused had caused
c                grievous injuries upon the deceased, with MO 1. Death of the
                 injured took place nearly two weeks after the incident while
                 he was under treatment. In our view, it is not possible to
                 hold on the materials that the accused had either committed
                 murder or culpable homicide not amounting to murder, but
                 only caused grievous injuries on the deceased punishable
D                under Section 326 !PC."

          We find it difficult to subscribe to the view of the High Court. To
    say the least, the approach of the High Court appears to be totally mistaken
    and not tenable in law. The evidence led by the prosecution through the
E   statement of PW15 Dr. Sarala Devi, PW17 Dr. Mohanlal, the Neuro
    Surgeon and Dr. Joseph T. John, PW16, who had performed the post
    mortem examination on the deceased, un-mistakably shows the seriousness
    of the injuries inflicted on the deceased. A reference in this connection to
    injury, recorded as No. 22 in the post mortem report, would be relevant.
    That injury reads thus :
F
                  "Underneath and around injuries 9 to 14, the scalp was
                  contused reddish brown involving whole front quadrants. The
                  frontal bones were comminutedly fractured and along with
                  left parietal bone showed a defect of missing bone 10 x 7 .0
G                 cm, transversely with lower back comer at the level of top
                  of ear, exposing intact dura underneath covered by dark brown
                  blood clot 0.1-0.3 cm thick. The dura over the frontal lobe
                  of brain was lacerated into a defect 5 x 3.0 cm, exposing the
                  brain underneath. Brain had its frontal and left temporal poles
                  semisolid for a depth of 0.5 cm covered by 0.1-0.2 cm thick
H                 reddish brown blood clot. Greenish yellow thin layer of pus
                      STATE OF KERALA v. SAS!                           307


             over duramater and ar.achanoid matter. Brain (1260 g) was          A
             oedematous and the multiple punctate bleeding in white
             matter. The floor of front cranial fossae were comminutedly
             fractured. Reddish brown infiltration of clotted blood around
             fracture sites."

      According to the medical opinion, the injuries suffered by the            B
deceased were sufficient in the ordinary course of nature to cause death.
The evidence on the record has established that the respondent gave three
blows on the head of the deceased and those blows were intentional and
not accidental. The attack was premeditated on a vital part of the body.
Keeping in view the damage which it caused and the medical opinion to
the effect that the injuries were sufficient in the ordinary course of nature   C
to cause death and that the death was attributable directly to the injuries
received by the deceased at the hands of the respondent on 2.11.1990, the
case of the respondent would squarely fall within the ambit of Clause
3rdly of Section 300 !PC. The High Court, in our opinion, fell in error in
holding, in the face of the evidence on the record that the respondent
could be attributed intention to cause grievous injuries only. The opinion      D
expressed by the trial court was undoubtedly sound. Since, the offence is
covered by Clause 3rdly of Section 300 !PC, the respondent was liable to
be punished under Section 302 !PC. We, therefore, set aside the findings
of the High .Court as regards the nature of the offence and hold that the
respondent is guilty of an offence of murder punishable under Section
302 !PC and consequently allowing this appeal we restore the judgment of        E
the trial court in that behalf and sentence the respondent to undergo
imprisonment for life.

      The bail bonds of the respondent are cancelled. He shall be taken
into custody to undergo the remaining part of the sentence.                     ·F

·o.N.                                                      Appeal allowed.
 I'