KESAVA PILLAI KUNJAN PILLAI Vs. STATE

JUDGEMENT

(1.) The first accused is the appellant before this court. He and his two sons were charged with the offence of murder and they were tried in the Additional Sessions Court at Trivandrum in Sessions Case No. 5 of 1125. The learned Judge reached the conclusion that the charge has not been proved against the first accused under S. 301, but under S. 326 of the Travancore Penal Code, for stabbing the deceased with a knife which has been produced as M.O. III. He also found that no case has been made out against the two sons of the first accused, who were accused 2 and 3 in the court below, and he has acquitted them. The first accused was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 50/- and in default of payment of the fine, to undergo simple imprisonment for one month more.

(2.) The incident took place on 15.4.1123 when the deceased was passing along a public road at 8 P.M. He and the appellant accosted each other, and a quarrel ensued as a result of certain offensive words used by each other. It culminated in a hand-to-hand fight between the two. At the time the quarrel began they were on the public road on the side of which there is what is described as a channel, (more correctly a brook), running along a side of the road, but on a lower level. There was very little water in the brook at the time of the occurrence. According to the evidence for the prosecution, it was a fairly dark night, and the witnesses who have spoken to the incident state that in the course of the hand-to-hand fight the deceased jumped to the side of the road, what is described by the learned Public Prosecutor as the slope of the road. Some other witnesses say that the deceased jumped to the bed of the brook or channel. At that stage, the accused seems to have used a pen-knife for stabbing the deceased. The stabbing was not too severe or dangerous. There was one stab wound inflicted on the chest which must have penetrated the lung on the left side of the body. The deceased was taken to the Police Station by 2.45 A.M. on 16.4.1123. There he made a statement which has been incorporated as part of the First Information Report. At 10-30 A.M. on the same day, when he was in the Government Hospital at Chirayinkil, a dying declaration was recorded by a competent Magistrate. From there he seems to have been moved to the General Hospital at Trivandrum where he was received as an in-patient. He survived for 4 1/2 months after the stabbing, and ultimately died on 1.9.1123 during the period he was an in-patient in the General Hospital at Trivandrum. It was stated that from the hospital he was allowed to go home at his own request, but that was only for a temporary period, and he was brought back again to the hospital. The medical evidence of the Doctor who gave the wound certificate and the doctor who performed the post mortem examination, discloses that the stab wound in the chest had healed by the time death took place. But a perforation had to be made in the vicinity of that wound for allowing puss which had accumulated in that region to be drained out, and this offensive matter in the body seems to have produced a toxic infection which culminated i the death of the victim.

(3.) The learned Counsel appearing for the appellant in the first place commented very strongly on this aspect of the case and he contends that the death was not the result of the stab wound. He also wants to argue that the dying declaration should not have been admitted in the evidence in this case in view of the fact that the statement recorded by the Magistrate has no reference to the cause of death. On this question of law, which in the first argument addressed on behalf of the appellant, two decisions have been cited by the learned counsel. Those are the cases reported in Abdul Gani Bandkuchi v. Emperor, ( AIR 1943 Cal. 465 ) and Imperatrix v. Rudra, 1901 ILR 25 Bom. 45 . In both these cases, the facts, seem to be substantially different from the facts of the present case. In the case reported in Abdul Gani v. Emperor the victim of the attack was injured on the 9th of January. He was sent to a hospital on the same day and his dying declaration was recorded on the same day. He was discharged from the hospital on the 30th January. Six or seven days after he was discharged from the hospital, he contracted fever and died as the result of the attack. In the case reported in Imperatrix v. Rudra the deceased did not die as a result of the stab wound inflicted on him by the accused, but he died of phneumonia. An attempt was made to show that phneumonia was aggravated by the stab, but that was not established. The finding was that there was no evidence to show that the death was caused or accelerated by the wounds received as a result of the attack made by the accused in that case. It will thus be seen that in both the above cases there was a distinct finding that the cause of the death was something entirely different from the attack made on the victim by the accused. In the present case however, it is not possible to assert that the death was not the result of the stab wound inflicted on the chest of the victim. No doubt the man survived for a period of 4 1/2 months after he was admitted as an in-patient in a hospital. But the death was the result of a complication that arose as a result of the stab.