STATE Vs. KOCHUPILLAI KUNJUKUNJU

JUDGEMENT

(1.) This criminal appeal (No. 197 of 1124) is preferred on behalf of the State from the decision of the learned Sessions Judge of Parur in S.C. No. 10 of 1124 on the file of his court. The charge against the accused was under S.301 & 326 of the Travancore Penal Code. The learned Sessions Judge acquitted the accused under S.301, convicted him under S.326 and sentenced him to two year's rigorous imprisonment and to a fine of Rs. 100 in respect of the death of Sankaran Pappu. It is from the order of acquittal that the present appeal is preferred, as already stated. In the judgment, the learned Judge has found that the serious injury which was found on the face of the victim was inflicted by the accused. According to the medical evidence, there was a deep wound inflicted on the left side of the head above the ear. This resulted in a fracture of the bone and there is also evidence to show that the brain was exposed at that point below the fractured bone. The weapon used, M.O.1., is a chopper. There is no doubt whatsoever that the injury was very serious. It was inflicted at or about 4 p.m. on 25.9.1123. At about 10.30 p.m., the first information was given to the police. At that time, the victim happened to be conscious because he had also made certain statements to the police. He was sent to the Thodupuzha dispensary which was the nearest place where medical relief was available and the evidence is that the doctor of that dispensary saw him at 11.30 p.m. Though the patient was in a delerious condition, the doctor rendered first aid. The dispensary did not have facilities for attending to a serious case like the victim's and therefore the doctor forthwith sent him to the Muvattupuzha Hospital where there were greater facilities. This was done early in the morning on the following day, namely, 26.9.1123. The evidence shows that the patient reached that hospital at 10 a.m. on that day. There again, the medical officer on duty found that the case being serious, it was not possible to render any effective treatment, since there wee no facilities in that hospital as well. It was a lady assistant surgeon who was on duty at the time the patient reached the hospital. She thereupon sent him to the Kottayam hospital where the patient arrived on the afternoon of that day. The evidence is that he was sent from Muvattupuzha hospital at 2 p.m. on that day. The patient was taken in a motor lorry from Thodupuzha to Muvattupuzha and from there to the Kottayam hospital. But he was taken to the police station and from the police station to the Thodupuzha dispensary in a cart. The patient survived for 18 days and died in the Kottayam hospital at 5.30 p.m. on 12.10.1123.

(2.) The Trial Court has appreciated the evidence of the prosecution witnesses correctly and has carried at the conclusion that the injury was inflicted by the accused. But by a process of reasoning which appears to us to be very curious, he has arrived at the conclusion that the death was caused not by the serious injury inflicted by the accused but by the negligence and carelessness of the medical officers who attended upon the patient. This reasoning seems to be directly opposed to the provisions of Explanation II to S.298 of the Travancore Penal Code according to which such a defence is not open to an accused person. The learned Judge seems to have been confused by the vigorous cross examination of some of the doctors who were attacked in such cross examination by suggestions made that they were acting in gross neglect and in some cases attributing ignorance and want of professional skill to those medical people. It is regretable that such a contention found favour with the court below in spite of the express provisions of Explanation II to S.298. It is not as if the injury was a slight one which developed into a major ailment as a result of negligence or carelessness on the part of the doctors who attended on the patient. To break open the side of the head of a person in such a manner as to expose the tissue of the brain in that region cannot be described as a minor injury which was inflicted without any intention to cause death and without the knowledge that death was likely to be caused as a consequence of that injury. It may be noticed in this connection that the victim was an old man who was 75 years of age. The post mortem certificate contains the opinion as to the cause of death which is recorded as follows:-

(3.) We accordingly allow the appeal preferred on behalf of the State and hold that the accused committed the offence of murder under S.301 of the Travancore Penal Code, convict him under that section and sentence him to rigorous imprisonment for life. The accused has also been convicted under S.326 for causing grievous hurt to PW 1 who is a son of the deceased. The two sentences shall run concurrently.