MANU/KE/0076/1958

Equivalent Citation: AIR1958Ker207, 1958CriLJ1021

IN THE HIGH COURT OF KERALA

Criminal Appeal No. 250 of 1957 and R.T. No. 16 of 1957

Decided On: 05.02.1958

Appellants: Davasia Yohannan

Vs.

Respondent: State

Hon'ble Judges:

N. Varadaraja Iyengar and P.T. Raman Nayar, JJ.

Counsels:

For Appellant/Petitioner/Plaintiff: K.M. Joseph and A.P. Joseph, Advs.

For Respondents/Defendant: M.U. Isaac, Public Prosecutor

Subject: Criminal

Catch Words

Mentioned IN

Acts/Rules/Orders:

Criminal Procedure Code (CrPC), 1898 - Section 164; Evidence Act, 1872 - Sections 24 and 26;
Indian Penal Code, 1860 - Sections 299 and 300

Cases Referred:

Sarwan Singh Rattan Singh v. State of Punjab, (S) AIR 1957 SC 637; In Re: Doraswami Servai, ILR
(1944) Mad 437, AIR 1944 Mad 157; Brintons, Limited v. Turvey, (1905) AC 230

Citing Reference:
Sarwan Singh Rattan Singh v. State of

Punjab, (S) MANU/SC/0038/1957 Discussed

In Re: Doraswami Servai MANU/TN/0222/1943 Mentioned

Brintons, Limited v. Turvey Discussed

Disposition:

Appeal dismissed

Case Note:

Criminal – murder - Section 164 of Criminal Procedure Code, 1973, Sections 24 and 26 of Evidence
Act, 1872 and Sections 299 and 300 of Indian Penal Code, 1860 – appeal filed challenging conviction
of appellant for committing murder of his wife – in his confessional statement accused admitted that
as his wife declined to return home despite of his repeated demands he stabbed her – intention to
cause murder established – murder was cruel and deliberate – fact hat death caused after months of
suffering from day on which incident took place does not make any difference – held, accused guilty
of committing murder.

JUDGMENT

P.T. Raman Nayar, J.

1. The accused in this case, a man of 45, has been sentenced to death for the murder of his wife, Kotha
by name, a woman of 22. He has appealed, and the learned Sessions Judge has submitted the
proceedings for confirmation of the sentence.
2. The accused and the deceased were married about four months before the occurrence which took
place at about mid-night on the night of the 12th November, 1956. They lived together in the
accused's house for only two months and then the deceased ran away to the house of her parents, P-
Ws. 1 and 3, some distance away, and was Jiving there till the time of the occurrence. Whether she
did this as a result of ill-treatment as alleged by the prosecution or for no reason whatsoever as stated
by the accused is a matter of no consequence. But although it is supported by no other evidence, the
accused's statement in the confession, Ext. P-ll, he made before a Magistrate, that his repeated
demands that his wife should go back to him went unheeded, is relevant as disclosing the-motive.

3. On the night in question, P.Ws. 1 and 3 and two of their children were sleeping in the southern
room of their house which consists of two rooms, each opening into a verandah running alongside
them on the east, and with an opening between them. (The house is a very small house with walls only
about shoulder high, and the openings which serve as doorways have no doors). One of the children
was ailing and therefore they had kept a country lamp burning in the room. The deceased and ner two
younger sisters, P. W. 2 and another, were sleeping in the northern, room. At about mid-night, P.Ws.
1 and 3 who were only half asleep woke up on hearing dogs bark, and they saw a flash of light in the
northern room. They immediately got up and just then they heard a cry from the deceased. P.W. 3
went into the northern room through the doorway bet ween the two rooms, while P.W. 1 approached
the northern room through the verandah, taking the lamp with him. P.W. 2 also woke up on hearing
her sister's cries, and all three of them saw the accused stepping out of the northern room into the
verandah and the deceased lying with a bleeding stab wound in her back. The accused was carrying a
pen-knife and an electric torch. On seeing P.W. 1 in the verandah the accused pointed his knife at him
thug compelling him to retreat. The accused then ran away and made good his escape. P.W. 1 raised a
hue and cry to the effect that Yohannan (the accused) was running away after stabbing Kotha (the
deceased), and he called out to the nearest neighbour, P-W. 4, who lives hardly five yards away to
catch the accused. P.W. 4 heard the cries but he was afraid to come out and remained safely indoors.

4. On receiving the injury the deceased lost the use of her lower limbs, and P.Ws. 1 to 3 nursed her as
best as they could until the morning when PW. 1 went to Etturnanoor two miles away and fetched a
taxi in which the deceased was taken to the Ettumanoor Police Station by about 8 A.M. There, the
Sub-Inspector, P-W. 12, questioned her and recorded from her the statement, Ext. P-l, on which he
registered a case under Ss. 452 and 307, I.P.C. against the accused. The deceased was then taken to
the District Hospital, Kottayam where the doctor, P.W. 9, who examiner her at about 9-30 A.M. found
that she had suffered a transverse incised penetrating wound tax 1/4" at the level of the 6th thoracic
spine, and was suffering from complete paralysis of both the lower extremities as a consequence of
the injury. 'The injury was about 10 hours old and must have been caused by a stab with a sharp
pointed weapon like a pen-knife.

5. The deceased died in the hospital on 1-6-1957, more than six months later, after the completion of
the preliminary enquiry at which she was examined as a witness. The post-mortem examination done
by P.W. 9 revealed that the stab injury in the back had pierced the spinal column between the 6th and
7th thoracic vertebrae and had damaged the spinal cord.
6. Meanwhile, at about 11-30 A.M. on 13-11- 1956 when the investigating officer, P.W. 12, was on
his way from the police station to the scene of offence he met the accused coming to the po- life
station. The accused surrendered and was arrested. The accused produced the torch light, M.O. 4, and
the pen-knife, M.O. 5, which were seized by P.W. 12, (Chemical examination was however able to
detect no blood on the pen-knife -- the torch light, it would appear, was not sent for examination),

7. At the instance of the accused, he wag taken before the Magistrate, P.W. 10 in public Court, at 1-30
P.M. the same day, and the Magistrate after sending away all police officers in and about the Court
premises, and giving the accused the prescribed warnings and some time to reflect and taking all
precautions to ensure that the statement which the accused expressed a desire to make, wag a
voluntary statement, and satisfying himself that that was so, recorded from the accused the confession,
Ext. P-ll soon after 4 P.M. In that confession the accused said that because his wife had made trouble
and left him and had declined to return despite repeated demands, he had gone to her house and, after
locating her with the aid of his torch light, had stabbed her in the back and run away.

8. At the preliminary enquiry the accused was not questioned in the manner required by Section 342,
Cri. P. C. but was only asked whether he had anything to say about the evidence for the prosecution.
To that he replied that he had done nothing and that everything that the prosecution. witnesses had
said was false. At the trial he repeated this denial and said that he had not gone to the house of P.W. 1
at all, that he had not produced M.Os. 4 and 5 before the police and that Ext. P-11 was a confession
not voluntarily made but one which the police by torture and by threat of death had tutored him to
make. The accused examined no witnesses in his defence.

9. By the time the trial commenced the deceased was dead and the charge framed at the trial was one
under Section 302, I.P.C. in place of that under Section 307, I.P.C. framed by the committing
Magistrate. The deceased's deposition at the preliminary enquiry was received in evidence under
Section 33 of the Evidence Act and was marked as Ext. P-7. In it she has repeated what she said in the
first information, Ext. P-l, namely, that she woke up on hearing the dogs bark and was immediately
stabbed in the back. She opened her eyes and saw the accused, who was flashing a torch light,
withdraw the knife from her wound and run out into the verandah.

10. Exts. P-l and P-7 (which we may point out are relevant also under Section 32(1) of the Evidence
Act) taken along with the evidence of P.Ws. 1 to 3 can leave no room for doubt that it was the accused
that inflicted the injury on the deceased. The evidence is consistent and natural; and nothing has been
brought to our notice which casts the least suspicion on it. It is true that P-Ws. 1 to 3 did not see the
actual stabbing and that the deceased herself spoke only to the withdrawing of the knife by the
accused. But if their evidence is to be accepted and we see no reason why it should not be accepted,
there can be no doubt whatsoever that it was the accused and nobody else that stabbed the deceased.
In the circumstances that have already been mentioned, the deceased and P.Ws. 1 to 3 must have been
in a position to observe the facts to which they have spoken, and the suggestion put forward on behalf
of the accused that the deceased and her sisters were women of loose character and that the deceased
must have been stabbed in the dark by some nocturnal visitor whom nobody was able to make out,
seems to us a random suggestion which has no basis whatsoever in the evidence.
We do not think that the fact that P.W. 1 did not forthwith set about rousing all the neighbours and
sending word to his two sons who live some distance away (and who it would appear were not on
visiting terms with him) but waited until the morning before taking any action in the matter lends any
support to the suggestion. The deceased was taken to the police station and from thence to the hospital
with the least practicable delay, and we see no ground for suspecting that the lew hours that elapsed
between the event and the giving of the first information were utlised by P. Ws. 1 to 3 and the
deceased for concocting a case against the accused.

11. There is the evidence of the neighbour, P. W. 4, that at dead of night he heard P. W. 1's cries to the
effect that the accused had stabbed the deceased and was running away. There is also the accused's
conduct in surrendering before the police with the penknife and the torch, and there is, of course, his
confession Ext. P-11, which is quite in keeping with the evidence of P.Ws. 1 to 5 and, the deceased
and which we are not prepared to reject merely because, before making it, the accused was given only
21/2 hours' time to reflect. The observation in Sarwan Singh Rattan Singh v. State of Punjab, (S)
MANU/SC/0038/1957 : AIR 1957 SC 637 (A) that in ordinary circumstances an interval of 24 hours
may be regarded as reasonable time for reflection, is into to be taken as an absolute rule and as laying
down that, whatever the circumstances, a confession recorded without allowing this interval for
reflection is to be rejected as a confession that is not voluntary. And we might here mention that, in
the area from which this case comes, it is not practicable for a magistrate to give an accused person
time to reflect free from the influence of the police except by detaining him in his own court hall since,
both from the point of location and of control the judicial lock-up is no different from the police lock-
up.

This is a state of affairs that must be remedied without delay by the provision of independent sub-jails
at suitable centres, or the result might well be the failure of cases depending largely on judicial
confessions. In this case, however, the matter is of little consequence, for even if the confession were
to be wholly eschewed, the evidence of PWs. 1 to 3 and the deceased is, as we have already observed,
sufficient to prove beyond doubt that it was the accused that inflicted the injury on the deceased.

12. The only question then is whether the accused is guilty of murder; in other words, whether it was
the injury inflicted by him that was the cause of the death, and whether he had the requisite mens rea.
The second part of the question can readily be answered in the affirmative. The accused goes at dead
of night to the house of his wife who has left him, and then, after locating her with the aid of his torch
light, deliberately stabs her in the middle of the back with such force as to penetrate the spinal cavity
and cause damage to the cord. The intention could only have been to kill.

13. On the second question, the comparatively long interval of seven months between the in jury and
the death might at first sight induce an element of doubt as to whether their relation as cause and
effect is not too remote. For, all causing of death by injury is but the hastening of an inevitable event,
and, when that event is so long delayed, the mind is tempted to ask whether the cause of the death is
not really to be found in something other than the injury.

This is doubtless the basis of the rough and ready rule of the English Common law (so rough and
ready that it has not found acceptance in Scotland) that a death which occurs more than a year from
the date when the injury was inflicted must be attributed to causes other than the injury and cannot
form the basis of a charge off manslaughter or murder. In the present case however we are satisfied
that there is no room for any doubt that both factually and legally the injury was the cause of the death.
And, although the English rule has no application, we might observe that the death in this case is
within the time laid down by that rule.

14. The question is one to be decided primarily on the medical evidence in the case. And we might set
out in full the evidence of the doctor, P.W. 9, in so far as it bears on this question.

"It (the injury) was a fatal injury. ....... I conducted the post-mortem at 4 P. M. 3-6-
1957 .........Externally I found a transverse scar l"x 1/4" at the level of the 6th thoracic spine. On
dissection I found hard scar tissue up to the 6th thoracic vertebra. The intervertebrai disc between the
6th and the 7th vertebra was congested. The spinal cord between the 6th and 7th thoracis vertebrae
was seen joined with fibrous, tissue... .Death was due to syncope due to asthenia from cystitis and
trophic changes which were caused by the injury to the spinal cord "Cross Ex. The wound had
affected the spinal cord. There is no surgical method for curing it when spinal cord is cut. The time or
period taken for death to ensue depends upon the depth of the injury on the spinal cord."

15. No doubt this evidence is not as full or as explanatory as one would wish. One would have liked
to know -- and this is a matter that is invariably elicited from the medical witness in all cases of
homicide -- what exactly was the character of the, injury, whether it was one necessarily fatal, or one
sufficient in the ordinary course of nature to cause death, or one likely to cause death, or one that was
not even likely to have that result.

For, although it is only the nature of the injury within the contemplation of the offender, whether of
his intention or his knowledge, that directly enters into the definition of homicide in Ss. 299 and 300
of the I. P. C. and hot the nature of the injury actually inflicted by him, the latter furnishes a valuable,
and often the only, guide to the mental element, and also helps to answer the question whether the
injury was the direct cause of the death.

In particular, with reference to the present case, one would have liked to know how far the syncope
which is said to have caused the death was the natural and probable consequence of the asthenia; how
far the asthenia, in turn, was the natural and probable consequence of the cystitis and trophic changes;
and how far the cystitis and trophic changes were the natural and probable consequences of the injury
to the spinal cord inflicted by the accused. Or, to put it somewhat differently, whether any of these
sequelae, if indeed they are independent causal factors, could be regarded as an unexpected
complication breaking the chain of causation. These are matters which ought to have been clarified by
the counsel, and, failing counsel, by the court. But, the failure notwithstanding, we are, as we have
already said, satisfied that the death in this case is legally attributable to the injury.

16. PW. 9 has said that the injury had affected the spinal cord, and it is apparent both from the post-
mortem findings and from the fact that complete paralysis of both the lower extremities was the
immediate result of the injury, that the stab given by the accused had pierced the spine between the
6th and 7th vertebrae and cut the spinal cord. As PW. 9's evidence stands, it would appear that the
several sequelae described by her are so directly connected with each other as cause and effect as to
make the death attributable to the injury.

There is no indication of any unexpected intervention, and as observed by Mayne at p. 469 of his
Criminal Law of India, 4th Edn., "any act is said to cause death within the meaning of Section 299,
when the death results either from the act itself or from some consequences necessarily or naturally
flowing from that act, and reasonably contemplated as its result." Where without the intervention of
any considerable change of circumstances the death is connected with the act of violence by a chain of
causes and effects, the death must be regarded as a proximate and not too remote a consequence of the
act of violence.

17. In discussing death from injury we find the following observations at p. 238 of Vol. I of Taylor's
Medical Jurisprudence (11th Edn.) under the heading, "Wounds indirectly fatal."

"Certain kinds of injuries are not immediately followed by serious consequences; but an injured
person may the after a long or shorter period, and his death may be as much a consequence of the
injury as if it had taken place on the spot. An aggressor is as responsible as if the deceased had been
directly killed by his violence -- provided the fatal result can be traced to the probable consequences
of the injury."

This we consider to be a correct statement of the law. And with particular reference to the injury in
this case we might refer to the statement at p. 239 of the same book that wounds of the head and spine
are particularly liable to cause death insidiously and that in injuries affecting the spina] cord or
column, death is not an immediate consequence, unless the wound is above the origin of the phrenic
nerves and that injuries affecting the lower portion of the spinal column do not commonly prove fatal
for several months, death ensuing later from septic cystitis, bed-sores and toxaemia. Although for the
purposes of his classification, Taylor has called such wounds indirectly fatal, in law it does not matter
that death is from a secondary cause so long as that secondary cause is a natural consequence of the
Injury.

18. In his Medical Jurisorudence (11th Edn., page 260) Modi states as follows :-

"When the dorsal (thoracic) vertebrae are Injured, the patient becomes bedridden on account of
oaralysis of the lower limbs. He also suffers from paralysis of the bladder and rectum, and is always
in danger of getting bed-sores and septic infection of the bladder and kidneys, which generally hasten
death. Thus, death may occur after two or three weeks, if the upper dorsol vertebrae have been injured;
while life may be prolonged for years with partial paralysis of the limbs, if the lower dorsal or the
lumbar vertebrae have been fractured".

19. In Price's Medicine it is observed (at page 1542 of the 9th Edition) with reference to injuries of the
spinal cord that with lesions at lower levels death is liable to take place Within a few weeks or months
from bed-sores or infection of the urinary tract. It would thus appear that paralysis of the lower limbs
and of the bladder followed by cystitis and bed-sores and, in turn, by death are natural consequences
of an injury to the spinal cord at its lower levels. And in this connection we notice that the post-
mortem certificate, Ext. P-10, speaks of three large ulcers on the body. These are obviously bed-sores,
and so it would appear that the after-effects in this case were just those which, according to the text
books, cause death as a result of an injury to the spinal cord in the thoracic region. Death from cystitis
and bed-sores is the direct result of the paralysis caused by the injury and it would appear that there
are not so many links in the chain of causation as the medical evidence by its reference to syncope,
asthenia and trophic changes would suggest.

20. No decided case of death following art injury to the spinal cord, or one after such an interval, has
been brought to our notice. But the position is really analogous to cases of death operating from
secondary causes resulting from, the injury such as pneumonia, septicaemia, pyaemia and tetanus. No
doubt when death is so caused, by what the medical books often call remote or indirect causes, it
might be difficult to establish the mens rca necessary for the offence of murder, since the more remote
the cause the less possible it would be to show that the accused intended or realised the result. But
where, as in the present case, the intention to cause death is clearly made out, it seems to us that it
does not matter that death was caused, not in the language of the medical books, directly but by a
chain of consequences, each following upon the other in the processes of nature and not being an
unexpected complication causing a new mischief. There seems to be a dearth of Indian authority on
the matter but we might refer to the decision in In re Doraswami Servai : (MANU/TN/0222/1943 :
AIR 1944 Mad 157 : ILR (1944) Mad 437) (B), where, after quoting from an Irish case and the Well-
known observations of Halsbury, L. C. in Brintons, Limited v. Turvey (1905) AC 230 (C) to the effect
that, when an injury to the head sets up septic pneumonia which results in death-the person wbo
inflicted the blow on the head cannot be absolved from the consequences of his crime by saying that
his victim died of pneumonia and not of the blow on the head, and that by calling the consequences of
an injury a disease one does not alter the nature of the consequential results of, the injury, Mockett, O.
C. J. proceeded to make the following observations which we think arc apposite to the present case:

"In my view, the test is whether the cause of death is to be directly associated with the act. Whether it
be deliberate act in criminal cases or an accident in cases of workmen's compensation, it is. I think,
well known that the ultimata cause of death in a large number of cases is pneu monla. It would be a
strange position if a man who Inflicts a wound causing almost immediate death should be guilty of
murder, whilst a man who inflicts a very similar wound from which pneumonia supervenes should not.
On the facts of this case it is dear to me that the deceased man in spite of his physique which, is said
to have been exceptionally robust died as a direct result of the injuries inflicted upon him by the
appellant; and that the appellant intended his death is evident from the facts. The result was not as
immediate as he intended and not perhaps quite in the manner that he intended. But in the processes of
nature, in spite of medical attention, one of the well known perils from, a wound supervened, namely,
blood poisoning, and the deceased died. The chain of causation is in my view direct".

That in this case the peril that supervened as a consequence of the injury was cystitis and not blood
poisoning, and that death occurred after nearly seven months instead of after a fortnight as in that case,
makes no difference. The chain of causation is in our view direct, and, the intention to cause death
being established, the accused is guilty of nothing short of murder.
21. The murder was a cruel and deliberate murder and the fact that death was not as immediate as was
probably intended but was after months of suffering is no extenuation.

22. The accused has been rightly convicted under Section 302, I.P.C. and, in the circumstances, the
sentence of death awarded to him is the proper sentence.

23. We confirm the conviction and sentence recorded against the accused and dismiss his appeal.