# Jf NARAYANAN SA THEESAN @ BABOO v. STATE OF KERALA

- **Citation:** [1978] 1 S.C.R. 577
- **Court:** Supreme Court of India
- **Decided:** 1977-09-29
- **Case number:** Criminal Appeal No. 338 of 1973
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jf-narayanan-sa-theesan-baboo-v-state-of-kerala-7296
- **Pages:** 8

## Headnote

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Jf
NARAYANAN SA THEESAN @ BABOO
v.
STATE OF KERALA
September 29, 1977
JP. K. GOSWAMI, P. N. SHINGHAL AND JASWANT SINGH, JJ.]
577
Murder charge-Conviction by High Court u/s. 302 Penal Code on appeal
by State against acqliittal under that section but conviction u/s 3261 l.P.C. by
Sessions-Non-production by the Prosecution or
non-summoning
u/.i:.
311
Crf.P.C., 1973 by Court, of the doctor' who performed the operation is not fatal
1-1:~cn corroborated by dying declaration, autopsy report and one of 1lze
cyeWlfnesses-Evidence Act (Act I), 1872, ss. 32(1) ands. 45.
B
The appellant, though charged u/s. 302 of the Indian Penal Code for intenC
tionally causing the death of one K. G. Thomas alias Thampi, a well built male
of 32 years on the night of December 16, 1972, by inflicting a stab injury of
3X 1 cm. over his Jeft infrascapular area was, however, on a consideration of
the material adduced before him, acquitted of the said charge and convicted u/s.
326 and sentenced to 7 years rigorous imprisonment by the Sessions Judge. Both
the appel1ant and the State appealed against the said orders. The High Court
accepted the State's appeal, set aside the conviction u/s. 326 and convicted him
u/s 302 and sentenced him to imprisonment for life. The High Court reseed
the conviction on the dying declaration (Ex. p. 9) which received ample corroD
boration from the testimony of one of the three eye-witnesses, Pappan (P.W. 5).
Dismissing the appeal to this court u/s. 2(a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) (Act 28 of 1970), 1970, the court,
HELD : (I) Non-production by the prosecution of the doctor who performed
1.he operation on the deceased is of no avail.
It is no doubt unfortunate that the
prosecution has not attempted to examine the doctor who performed the operation, but this lapse is not sufficient to- downgrade the enormity of
th~ offence
committed by the accused.
[583 C-D, H]
(2) The High Court has correctly held that the case is clearly covered by
Explanation (2) to s. 299 of the Indian Penal Code which provides that where
death is caused by an injury, the person who causes it would be deemed to have
caused the death although by resorting to proper remedies and skilful treatment,
the death might have been prevented.
[583 H, 584 Al
(3) (a) In the instant case, taking into consideration the deadly character
of the weapon used, the dastardly assault made by the accused and the
•1i1al
organs of the body on which the injury was caused as also the categorical statement of Dr. Jayapalan, P.W. 4, who conducted the autopsy of the dead body of
the deceased that the injury No. 1 was sufficient in. the ordinary course t:J cauc;;e
<leath of the deceased, it is clear that. the appellant deliberately caused the fatal
wound on the person of the deceased. The conviction u/s 302 of the Indian
Penal Code must be maintained. [584 B·Cl
(b) It is true that the appellant inflicted only one stab wound oil the deceased but the facts established in the case, namely, that the appellant did not act
under any sudden impulse but pursued the deceased after arming himself \Vith a
dagg~r which is a dangerous weapon in execution of a premeditated p!an molivated by ill feelings nurtured for a ntimber of days and inflicted a severe st1b
injury on the vital region of the body of the deceac;;ed which perforated not only
his left lung but also penetrated into and impaired the left ventrical of his heart
clearly show that the appellant had the intention of causing the death of the
<leceased and pursuant thereto acted in a manner which brings the offence within the mischief of c:. 302 of the Penal Code. The offence committPd
bv
the
accusPd squarely falls within the ·purview of clause uthirdly" of s. 300 of the
Indian PPnal Code according to which culpable homicide is murder if the act
13-9JOSCI/77
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578
SUPREME COURT REPORTS
[1978] 1 S.C.R.
A
by which the death is caused is done with the intention of causing bodily injury
to any person

## Text

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Jf
NARAYANAN SA THEESAN @ BABOO
v.
STATE OF KERALA
September 29, 1977
JP. K. GOSWAMI, P. N. SHINGHAL AND JASWANT SINGH, JJ.]
577
Murder charge-Conviction by High Court u/s. 302 Penal Code on appeal
by State against acqliittal under that section but conviction u/s 3261 l.P.C. by
Sessions-Non-production by the Prosecution or
non-summoning
u/.i:.
311
Crf.P.C., 1973 by Court, of the doctor' who performed the operation is not fatal
1-1:~cn corroborated by dying declaration, autopsy report and one of 1lze
cyeWlfnesses-Evidence Act (Act I), 1872, ss. 32(1) ands. 45.
B
The appellant, though charged u/s. 302 of the Indian Penal Code for intenC
tionally causing the death of one K. G. Thomas alias Thampi, a well built male
of 32 years on the night of December 16, 1972, by inflicting a stab injury of
3X 1 cm. over his Jeft infrascapular area was, however, on a consideration of
the material adduced before him, acquitted of the said charge and convicted u/s.
326 and sentenced to 7 years rigorous imprisonment by the Sessions Judge. Both
the appel1ant and the State appealed against the said orders. The High Court
accepted the State's appeal, set aside the conviction u/s. 326 and convicted him
u/s 302 and sentenced him to imprisonment for life. The High Court reseed
the conviction on the dying declaration (Ex. p. 9) which received ample corroD
boration from the testimony of one of the three eye-witnesses, Pappan (P.W. 5).
Dismissing the appeal to this court u/s. 2(a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) (Act 28 of 1970), 1970, the court,
HELD : (I) Non-production by the prosecution of the doctor who performed
1.he operation on the deceased is of no avail.
It is no doubt unfortunate that the
prosecution has not attempted to examine the doctor who performed the operation, but this lapse is not sufficient to- downgrade the enormity of
th~ offence
committed by the accused.
[583 C-D, H]
(2) The High Court has correctly held that the case is clearly covered by
Explanation (2) to s. 299 of the Indian Penal Code which provides that where
death is caused by an injury, the person who causes it would be deemed to have
caused the death although by resorting to proper remedies and skilful treatment,
the death might have been prevented.
[583 H, 584 Al
(3) (a) In the instant case, taking into consideration the deadly character
of the weapon used, the dastardly assault made by the accused and the
•1i1al
organs of the body on which the injury was caused as also the categorical statement of Dr. Jayapalan, P.W. 4, who conducted the autopsy of the dead body of
the deceased that the injury No. 1 was sufficient in. the ordinary course t:J cauc;;e
<leath of the deceased, it is clear that. the appellant deliberately caused the fatal
wound on the person of the deceased. The conviction u/s 302 of the Indian
Penal Code must be maintained. [584 B·Cl
(b) It is true that the appellant inflicted only one stab wound oil the deceased but the facts established in the case, namely, that the appellant did not act
under any sudden impulse but pursued the deceased after arming himself \Vith a
dagg~r which is a dangerous weapon in execution of a premeditated p!an molivated by ill feelings nurtured for a ntimber of days and inflicted a severe st1b
injury on the vital region of the body of the deceac;;ed which perforated not only
his left lung but also penetrated into and impaired the left ventrical of his heart
clearly show that the appellant had the intention of causing the death of the
<leceased and pursuant thereto acted in a manner which brings the offence within the mischief of c:. 302 of the Penal Code. The offence committPd
bv
the
accusPd squarely falls within the ·purview of clause uthirdly" of s. 300 of the
Indian PPnal Code according to which culpable homicide is murder if the act
13-9JOSCI/77
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578
SUPREME COURT REPORTS
[1978] 1 S.C.R.
A
by which the death is caused is done with the intention of causing bodily injury
to any person and the bodily injury intended to be caused is sufficient
in
the
ordinary course of nature to cause death of the deceased. [583 B-E]
B
Gudar Dusadh v. State of Bihm·, A.I.R. 1972 S.C. 952, followed.
CRIMINAL APPELLATE JURISDICTlON : Criminal Appeal No. 342
of 1974.
Appeal under Section 2(a) of the Supreme Court Enlargement of
Criminal Appellate Jurisdiction Act, 1970 from the Judgment
and
Order dated 2-7-74 of the Kerala High Court in Criminal
Appeal
No. 338 of 1973 and 87 /74.
T. C. Raghavan and N. Sudhakaran for the Appellant.
C
K. R. Nambiar for the Respondent.
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The Judgment of the Court was delivered by
JASWANT SINGH, J.-Narayanan Satheesan alias Baboo, the appellant herein, was tried by the Additional Sessions Judge, Mavelikara,
under section 302 of the Indian Penal Code for intentionally causing
the death of one K. G. Thomas alias Thampi, a well built male, aged
about 32 years, who was an inhabitant of Eruvallipra Muri in Thiruvala Village, by inflicting an injury with a dagger (M.O. 1) on the
back of his chest at 7.30 P.M. on December 16, 1972 at a sandy
place situate on the Western side of the village road which go~s to
Veliyam Kadavu (Ghat Ferry) from· Thirumoola on the
eastern
extremity of Purayidom known as Kava! Purayidom belonging to
Arya Community within the jurisdiction of Thiruvalla Police Station.
On a consideration of the material adduced before him, the learned
Jndge acquitted the appellant of the charge under section 302 of the
Indian Penal Code but convicted him under section 326 of the Code
and sentenced him to rigorous imprisonment for a term of seven years
with the finding that he had, by means of a dangerous weapon like
M.O. 1, caused grievous hurt on the person of the deceased which
had endangered h's life.
Aggrieved by this
judgment and
order,
both the S'ate as well as the appellant appealed to the High Conrt
of Kerala at Ernakulam.
The High Court set aside the conviction of
tile appellant under section 326 of the Indian Penal Code and instead
convicted him under section 302 of the Code and sentenced him to
imprisonment for life.
Dissatisfied wi•h this judgment, the appellant
has come up '!l appeal to this Court under section 2( a) of the Supreme
Court (.Enlargement of Criminal Appellate Jurisdiction) Act. 1970
(Act 28 of 1970).
The case as put forth by the prosecution is that a couple of weeks
before the date of occurrence, there was an altercation between •he
appellant and the deceased over •he refu<al bv the latter to relinquisl:
possession of the Purayidom before the exp'ry of the term of one year
of the lease granted in his favour by the father of the accused on o
pattom of Rs. 550/- which entitled him to the usufruct of the coconut
trees standing on the Puravidom; that during the course of •he aforesaid al•ercation, the appellant threatened to kill the deceased if he
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·NARAYANAN''· KEAALA (Jaswa11t Singh, J.)
579
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did not har,J t-acl.'. possession of the property peaceably;· that irked al
the refusi..: ot the deceased to surrender possession of the Purayidom,
the appellant armed himself with a dagger and followed the de7caseJ on
the evening of December 16, 1972, while the latter was passmg along
the above mentioned road and after thrustiog the dagger in the back
of the chest of the deceased, took to his heels w.:thout even taking
out the weapon from the situs of the wound; that th.e deceased pulled
out the weapon from his back and threw it on the ground whereafter
blood gushed out of the wound and he fell down; that on seeing this
incident Gopala Kurup (P.W.l), who was goiog to have his bath
at Veliyam Kadavu and Thommi Mathai (PW.2) who was on his
way to Thirumoola ·which is· about five furlongs from his house to
buy some provis'ons rushed to the scene of occurrence; that Thommi
Mathai (P.W. 2) and Gopala Kurup (P.W. 1) removed the deceased
about 6 or 7 feet towards the East whereafter Gopala Kurup (P.W .. 1).
bandagecl the wound of the deceased which was bleeding profusely
with his thorthu (bath towel); that . while the wound
was
being
bandaged by Gopal Ktirup, Pappan (P.W. 5), the Ferryman employed by the Municipality at Veliyath for ferrying people across the
Manimala river, also hastened to the scene of occurrence, saw the
appellant runniog away and heard the deceased saying "Matbaichacha.
Babu stabbed me"; than after bandaging the wound as aforesaid,
Gopal Kurup (P.W. 1) Thommi Mathai (P.W. 2) and Pappan (P.W.
5) removed the deceased to the middle of the road, laid hilll on the
level surface and started raising an alarm, on hearing which the
brothers of the deceased iocluding Geevarghese ·George (P.W. 11)
A
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and some other persons arrived at the scene of occurrence, that io
reply to the query made by his elder brother, Geevarghese George
(P.W. 11), the deceased said "Achaya, Babu stabbed me"; that the
deceased was thereafter removed by his brothers in a taxi car to the
E
TI1iruvalla Hosp"tal where P.W. 6, Dr. G. K. Pai, examined his person
and found a stab iojury over his left iofrascapular area, 3X 1 c.m.,
horizontal io position, both edges sharp penetrating into the pleural
cavity (left side)-Dd-ection of the wound obliquely forward and to
the right side(?) Anenumothorax on the left side; that the doctor
made an entry of the iojury noticed by h;m in the relevant register
of the Hospital and rendered first aid to the deceased; that while the
first aid was being given to him, the deceased told the doctor that the
iojury was caused to him by stabbing at 8.00 P.M.; that in view of the
serious nature of the wound, the doctor advised the relatives of the
deceased to take him to the Medical College Hospital, Kottayam for
expert medical attention and treatment; that thereafter the doctor ii;ave
intimation of the iocident on telephonei and by means of a letter (Ext.
p-4) to the Thiruvalla Police Station whereupan P.W. 15 viz. Madhavan Pilla~ Head Constable a•tached to the said Police Station proceeded to the Hosoital but on learuin~ on arrival at that olace that the
injured had already been sent to the Medical College Hospital, Kottayam, he at once returned to the Police Station and forthwith con-
~cted .Arpockara Police Station on telephone and ioformed the person
mcharge t~ereof that since •he statement of the jnjured person. by
name K. c,_ Thomas who h"d heen brou•ht to Thiruvalla Hospital with
serious injuries could not he taken as he "bad been removed to the
Medical College Hospital, Kottayam for expert medical treatment, bis
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580
SUPREME COURT REPORTS
[ l 978] I S.C.R.
stato,ment might be taken and the needful be done in the matter; that
on being thus informed by Madhavan Pillai (P.W.15), Govinda Pillai
(P.W. 13), Head Constable Incharge of the Police Station, Kottayam
proceeded to the College Hospital and after taking the permission of
Dr. K. M. R. Mathew, who was examining the deceased in the casualty
room, recorded his statement (Exb. p-9) at 9.30 P.M. which was to
the following effect :- ·
·
"I know that it is a Head Constable who is talking to me
now.
I am called Thampi.
Babu, son of Ezharapra Narayanan stabbed me with a dagger. It was on my back that he
stabbed me from behind. It was at Veliyamkadavu (ferry)
that he stabbed me.
It was I myself who pulled out the
dagger with which I was stabbed and threw it there. Ferryman Pappan and others have seen him stabbing me.
It was
today at 7.30 p.m. that the incident took place. It was in
order to kill me on account of prior enmity that he stabbed
me.
The place of incident is within the limits of Thiruvalla
Station.
Jt is 40 kms. south from here."
The prosecution case further proceeds that it was
not before
2 O'clock at night intervening between 16th and 17th December, 1972
that Govinda Pillai (P.W. 13) could return to his Police Station as
he had to record statements in four or five other cases intimation regarding which was received by him while he was at the Hospital;
that on his return to the Police Station, Govinda Pillai (P.W. 12)
prepared the First Information Report (Exh. P-10) on the basis of
Exhibit P-9 and sent the same to the
Munsiff-Magistrate's Court
Ettnmanoor; that an hour after his return to the Police Station,
Govinda Pillai got intimation from the Hospital vide Exhibit P-11 that
the injured person, whose statement (Exh. P-9) he had recorded had
died at 3.00 A.M.; that about 8 O'clock in the morning, Govinda
Pillai went to the Medical College Hospital and prepared the Inquest
Report ( Exh. P-8) whereafter he sent the dead body of the deceased
to the Police Surgeon for post mortem examination; that P.W. 4, Dr.
\'. K. Jayapalan, Professor of Forensic Medicine and Police Surgeon,
Medical College, Kottayam conducted the autopsy of the body of the
deceased on December 17, 1972 at 2.00 P.M. and noticed the following appearances :-
"General-Body was that of a well built
adult male.
Ril(or mortis fully established and retained all over.
Dried
blood stains were seen on the front of right fore·arrn and
front of chest. Injuries (antemortem) :
(1) Sutured incised penetrating wound horizontalJy placed
on the back of chest 3 cm. to the left of middle and
24 cm. below the top of shoulder. The wound was
found entering chest cavity cutting through the 9th
intercoastal space, perforated the lower lobe of left
lung and penetrated the left ventricle of the heart.
The wounds on the lung and heart measured 2.8 cm.
in length and were found sutured.
The wound was
directed forwards upwards and to the right.
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NARAYANAN v. KERALA (Jaswant Singh, J.)
(2) Sutured surgical thorocotomy wound 26 cm. in length
on the outer aspect and back of left chest 17 cm.
below the arm pit.
(3) Surgical wound 1.3 X .5 cm. obliquely placed on the
back of chest 3 cm. below injury No. 1.
(4) Multiple small abrasions over an area 3.5 x 2 cm.
on the outer aspect of right shoulder.
Other findings are; Left lung was collapsed.
Left chest cavity
contained 75 cc. of blood clots.
Pericardia] cavity
contained 50 cc. of blood clots.
Stomach was empty
and mucous was normal."
5 81
A
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The doctor opined that injury No. 1 which could have been caused
c
with a weapon like M.O. 1 was sufficient in the ordinary course to
cause death.
The doctor further opined that the cause of death of
the deceased was bleeding and shock following stab injury sustained
by him on the back.
P.W. 17, V. Rajasekharan Nair, Circle Inspector of Police, Kayamkulam, took over investigation of the crime on receipt of the express
intimation regarding the registration of the case under section 302
of the Indian Penal Code on December 17, 1972.
He repaired to
the scene of occurrence without any loss of time, prepared the scene
mahazar, seized the blood stained earth and questioned the witnesses
and prepared notes of their statements on the same evening. He also
seized the dagger (M.O. 1) which was produced before him
by
Geevarghese George (P.W. ll)on December 30, 1972. It was not,
however, before January I, 1973 that the Police could arrest the appellant at Nedumbram.
After completion of the investigation, the appellant was proceeded
against in the Court of Sub-Magistrate, Thinivalla, who committed him
to the Court of Sessions to stand his trial under section 30'2 of the
Indian Penal Code .with the result as stated above.
Although in addition to the other witnesses, the prosecution examined Gopal Kurup (P.W. 1 ), Thommi Mathai (P.W. 2) and Pappan
(P.W. 5), who claimed to be the eye witnesses of the incident, both
the Additional Sessions Judge and the High Court while holding that
their arrival on the spot was proved, discarded the evidence of Gopal
Kurup (P.W. 1) and Thommi Mathai (P.W. 2) on the ?round that
their testimony was not trustworthy and rested the conviction of the ·
appellant on the dying declaration (Exh. P-9) which, according
to
them, received ample corroboration from the testimony of
Pappan
(P.W. 5).
ApJl".ar!ng in support of the appeal, Mr. Ragbavan has urged that
the conv1ct1on of the appellant cannot be sustained firstly because the
evidence on the record is not sufficient to bring home the offence to
the appellant secondly because the dying. declaration fExh.J'-9) which
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582
SUPREME COURT REPORTS
[1978) l s.c.R.
has been ilc~vily relied upon by the trial court and the High Court
could not have been made by the deceased who was in a critical condition and clearly appears to have been fabricated after the death of
the deceased and thirdly because the testimony of Pappan (P.W. 5)
and Gecvarghese George (P.W. 11) from which corroboration has
been mainly derived is not cogent and convincing.
We have carefully gone through the entire evidence on the record.
While we do not consider it safe to place reliance on the eye witness
account of the occurrence given by Gopal Kurup
(P.W .. 1)
and
Thommi Mathai (P.W. 2) which has been rejected as untrustworthy
by the trial court and the High Court or on the statement of Geevarghese George (P.W. 11) in view of his queen and unnatural conduct.
in wiping away the blood from the weapon of offence and not producing the same before the Police for nearly 14 days, we think that the
statements of Govinda Pillai (P.W. 13) and Pappan (P.W. 5) cannot
easily be brushed aside.
Pappan (P.W. 5) who belongs to
the
community of the appellant and has no animus against him and whose
testimony is natural and consistent and whose credit has remained unshaken despite the lengthy cross-examination to which he-was subjected
has unequivocally stated that at about 7.30 on the evening o< December 16, 1972 while he was sitting in his boat which he had rowed to
the Northern ferry as there were no passengers to take across
the
river, he heard the cry "Heigho", "heigho" from the shore; that on
ascending five or six steps, he saw the deceased standing in a bent
position on the western side of the road with a dagger stuck on his
back and the accused whom he knew from his childhood running westwards from near the deceased; that the deceased himself pulled out
the da)IJI<r and threw it in the Purayidom; that it was after Gopal
Kurup (P.W. J) and Thommi Mathai (P.W. 2) had come running
'o the spot from the North that the deceased fell down on the right
side; that Gopal Kurup (P.W. l) bandaged the wound of the deceased
with his Lnth towel and while his wound was being bandaged, the
deceased was saying "Mathaicha, abu stabbed me".
The evidence of
Govinda Pillai, Head Constable (P .W. 13) has also remained unshaken
in cross-examination.
From his statement which .receives corroboration from the statements of not only Dr. V. K. Jayapalan (P.W. 4)
and Dr. G. K. Pai (P.W. 6) who were examined by the prosecution
but also from the statement of Dr. Mathew Varghese (P.W. 5) who
was examined by the appellant, it is crystal clear that the deceased
(whose central nervous system remained normal and who neither lost
his consciousness nor his power of speech) gave a coherent account of
the circumstances leading to his injury which he faithfully and accu-
. rately recorded in Exhibit P-9 and forthwith asked the deceased to
append his signatures thereon which he did with a steady hand.
We
are, therefore. absolutely convinced that the incident took place in
the manner disclosed by the prosec.ution.
This docs not, however, conclude the matter.
The
important
question as to the nature of the offence committed by the accused still
remains to be determined by us.
adopting the reasonin~ of the trial
court, it is emphasized by learned counsel for the appellant that since
the appellaflt inflicted only one stab injury on the person of
the
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NARAYA~AN v. ~E~LA (laswant Singlz, J.)
583
deceased arn.: tk. d;ceased died during the perform--,;;;-ce · ~f operation
on. his Jung a;1d lloert and the prosecution has not tried to establish
either that the doctor who performed the delicate operation was
a
specialist or a competent and skilful surge<in and ·took all reasonable
care and caution or that the death was the inevitable result of the
stab injury, the appellant can at the utmost be held guilty of the offence
Wider section 326 of the Indian Penal Code. We find it difficult to
accede to this contention. It is true that the appellant inflicted only one
stab wound on the deceased but the facts established in the case viz.
that the appellant did not act under any sudden impulse but pursued
the deceased after arming himself with a dagger which is a dangerous
weapon· in execution 'of a premeditated plan motivated by ill feelings
nurtured for a number of days and inflicted a servere stab injury on
the vital region of the body of the deceased which perforated not
only his left lung but also penetrated into and impaired the left ventrical o~ his heart clearly show that the appellant had the intention of
causing the death of the deceased and pursuant thereto acted in a
manner which brings his offence within the. mischief of section 302
of the Penal Code. It is no doubt unfortunak that· the prosecution
has not attempted to examine the doctor who performed the opera-··
tion but this lapse is, in our opinion, . not sufficient to downgrade the
enormity of the offence committed by the accused. · It cannot be
overlooked that Dr. V. K. Jayapalan (P.W. 4) who conducted the
autopsy has categorically stated that stab injury No. l was 'sufficient
m the ordinary course to cause death' and that the cause of death of
the deceased was bleeding and shock following the said injury.
In Gudar Dusadh v. State of ·Bihar(') where the accused made a
pre-meditated assault and inflicted an injury with a lathi on the head
of the deceased which was sufficient in the ordinary course of ·nature
to cause death and actually resulted in the death of the latter, it was
held that the mere fact that the accused gave only one blow on the
head would not mitigate the offence of the accused and make him
guilty of the offence of culpable homicide not amounting to murder.
In the instant case, the prosecution having succeeded in establishing that the stab injury inflicted on the person of the deceased was
sullicient in the ordinary course of nature to cause the death,
the
offence committed by the accused squarely falls within the purview of
clause 'thirdly' of section 300 of the Indian Penal Code according to
which culpable homicide is murder. if the act by which the death is
caused is done with the intention of causing bodily injury to any person
and the bodily injury intended to be caused is sufficient in
the
ordinary course of nature to cause death of the deceased.
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Again the non-production by the prosecution of the doctor who
•
performed the operation on the deceased is of no avail to the appellant.
As rightly held by the High Court, the case is clearly covered
by Explanation 2 to Section 299 of the Indian Penal Code which
H
provides that where death is caused by an injury the person who -
(l) A.I.R.1972 S.C. 952 .
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SUPREME COURT REPORTS
[1978] I S.C.R.
causes it would be deemed to have caused the
death
although by
resorting to ·proper remedies and skilful treatment the death might
have been prevented. It appears that the attention of the Additional
Sessions Judge was not drawn to this aspect of the matter and while
quoting a passage from Modi's Medical Jurisprudence and Texicology
(1963 Edition), he not only glossed over the last sentence thereof
where it is succinctly stated that "it should be noted that the liability
of the offender is in no way lessened even though life might have
been preserved by resorting to proper remedies and skilful treatment"
but also tried to highlight something which did not possess any significance.
Taking into consideyation the deadly character of
the
weapon used, the dastardly assault made by the accused and 'the
vital organs of the body on which the injury was caused as also the
categorical statement of Dr. V. K. Jayapalan, Professor of Forensic
Medicine, who conducted the autopsy of the dead body of the deceased that the injury No. 1 was sufficient in the ordinary course to cause
death of the deceased, we have no hesitation in holding that
.the
appellant deliberately -caused the fatal wound on the person of the
deceased and in maintaining the conviction under section 302 of the
Indian Penal Code.
For the foregoing reasons, we find no merit in this appeal which
is dismissed.
S.R.
Appeal dismissed.
' i_