Balachandran s/o Sivaramman v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **& THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **WEDNESDAY, THE 2ND DAY OF NOVEMBER 2016 / 11TH KARTHIKA, 1938** ## **CRL.A.No. 1701 of 2010** **(AGAINST THE JUDGMENT DATED 27-07-2010 IN SC 791/2008 of SESSIONS COURT, TRIVANDRUM)** ## **APPELLANT/ACCUSED:** **BALACHANDRAN S/O. SIVARAMAN, SOUMYA BHAVAN, PULLIPRA, MUKKOLA, PANAYARA DESOM, KUDAPPANAKUNNU VILLAGE.** **BY ADVS.SRI.B.RAMAN PILLAI (SR.) SRI.SHAJIN S.HAMEED** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, VENJARAMOODU, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **R1 BY ADV. SRI. SURESH BABU THOMAS, ADDL. DGP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **AMG** ## **C.K. ABDUL REHIM, J. & B. SUDHEENDRA KUMAR, J.** ------------------------------------------------- ## **Crl. Appeal No. 1701 OF 2010** ------------------------------------------------DATED THIS THE 2[nd] DAY OF NOVEMBER, 2016 ## **J U D G M E N T** ## Abdul Rehim, J: The sole accused in SC No.791/2008 of the Additional Sessions Court-I, Thiruvananthapuram is in appeal against the conviction and sentence imposed against him under Section 302 of Indian Penal Code (IPC). The trial court sentenced him to undergo imprisonment for life and to pay fine of Rs.50,000/- and in default of payment to undergo simple imprisonment for a period of 2 years. 2. The prosecution case was that, the appellant with an intention of causing death of Thankachi, the deceased, by inflicting bodily injury on her by hitting with the KSRTC Bus driven by him, had taken the said Bus on the reverse direction while the deceased was walking towards her house after alighting from the Bus, at a place called Cheenivila in Mukkola at about 1.45 p.m. on 25-04-2006. **Crl. Appeal No.1701/2010** -2- Accusation was that, the appellant by said act had caused the Bus to hit over the body of the deceased thereby causing very serious injuries to which she succumbed at the spot of the occurrence itself; and thereby the appellant committed offence punishable under Section 302 IPC. Investigation of the case was set into motion based on of Ext.P1 statement (F.I. Statement) given by PW1, which was recorded by PW13, who in turn registered Ext.P1 (a) F.I.R. 3. The prosecution had examined PW1 to PW16 and marked Exts.P1 to P23 documents and also identified MO1 to MO3 series material objects. No witnesses were examined on behalf of the appellant, nor he marked any exhibits. The prosecution case in detail was that, while the appellant was the driver of the KSRTC Bus bearing TS No.39 (Registration No.KL-15 / 3136), it was his usual practice not to allow the deceased, who is a handicapped lady having infirmity on her legs, to travel in the said Bus from Cheenivila Bus Stop, which is near to her place of residence to the Government Ayurveda College,where she is ## **Crl. Appeal No.1701/2010** -3- working as an Attender. He used to take the Bus from Cheenivila Bus Stop ahead of the scheduled time of 7.10 a.m. It is alleged that, he used to take the Bus before 7.10 a.m. on seeing the deceased proceeding towards the Bus from her house. It is also alleged that, it was his usual practice not to permit the deceased to enter the Bus from the 'Ayurveda College Junction', after attending her work, by stopping the Bus at the next stop at the 'Overbridge Junction', without stopping the Bus at the Ayurveda College Junction. Due to the said practice, the deceased had untold sufferings, with respect to which she had lodged complaints against the appellant. In order to wreck vengeance against the deceased, on the fateful day, the appellant took the Bus on its reverse gear after the deceased had alighted from the Bus while she was walking towards her house and caused the Bus to hit on her with the intention of committing her murder. It is the prosecution case that, the left side back and front wheels run over her body by crushing her head and by pulverising her body; and the Bus proceeded further **Crl. Appeal No.1701/2010** -4- on the reverse side. Both appellant as well as the conductor of the Bus came down and ran away from the scene of occurrence. The deceased met with a sudden death since major parts of her body and head got crushed and pulverized. 4. PW1, who is the brother of the deceased, had deposed that, he came to the spot on coming to know about the accident and seen the body of the deceased lying on the road covered with a bed sheet, with a crushed head and the brain was seen crushed and scattered. He got information about the accident from a person named Balachandran, who was present at the scene of occurrence. He deposed that the scene of occurrence is near to the shop of PW3. According to him, he knows the appellant as the driver of the Bus in question and also identified him in the court. He had narrated about the practice of the appellant taking the Bus ahead of the scheduled time when he saw the deceased coming from her house. His testimony is that, the deceased had complained about this to the 'Transport Office' and as **Crl. Appeal No.1701/2010** -5- a consequence the appellant had the practice of not stopping of the Bus at the 'Ayurveda College Junction'. In the cross-examination he clarified that, he knows the appellant and his name even prior to the accident. 5. PW2 is the husband of the deceased. He deposed of witnessing the incident while he was repairing his Scooter, at the relevant point of time. He also testified about the practice of the appellant in taking the Bus ahead of the scheduled time in the morning, without permitting the deceased to get into Bus and also about the nonstopping of the Bus at the 'Ayurveda College Junction' inorder to prevent her from getting into the Bus after her duty. He admits in the cross-examination that, he was not present at the scene when the police came and that he was not present at the time of conducting the inquest. According to him, he had gone to the house after the incident as advised by the people of the locality, who gathered at this spot. **Crl. Appeal No.1701/2010** -6- 6. PW3 is the owner of a shop situated near to the Bus Stop. He deposed that, after alighting from the Bus the deceased was walking towards her house, which is situated about 40 meters away. At that time the appellant moved the bus suddenly on the reverse direction and on seeing the same he shouted. But the Bus ran over the body of the deceased and stopped at about 10 - 14 feet behind. The appellant got down from the Bus and ran away. PW3 is a person who retired from KSRTC itself and he knows the appellant. He denied the specific allegation that the Bus was taken on the reverse direction when somebody called out that there is somebody beneath the Bus. 7. PW4 is the conductor of the Bus. He identified the appellant as the driver of the Bus on the relevant date of the occurrence. According to him, there were only 3 passengers when the Bus reached the spot in question. He deposed that the deceased lady who was having disability on both her legs got down from the Bus at the 'Cheenivila junction' and proceeded towards her house through the back by touching **Crl. Appeal No.1701/2010** -7- the Bus. According to PW4, before he knocked the bell giving signal to take the Bus forward, the appellant moved the Bus speedily towards the reverse direction. Then he stood up and viewed through the glass towards front and back. But he could not see any obstacles. At that time the passengers standing in the front of the shop shouted loudly and he realized that somebody had fallen beneath the Bus. The appellant stopped the Bus at about 5 meters towards back and he saw the appellant getting down from the Bus and running away. When PW4 got down and went to the side he saw the deceased lying in a pool of blood. Before people gathered there, he went away from the scene and informed about the incident to the Depot. PW4 had given a specific answer to the question put by the court that, there was no occasion or necessity at the relevant time for the Bus to be taken on the reverse direction. During crossexamination, PW4 had denied of having any knowledge about the allegations with respect to the practice of the appellant in not taking the deceased in the Bus or from **Crl. Appeal No.1701/2010** -8- preventing her to get into the bus from the 'Ayurveda College Junction'. He also denied of having any knowledge with respect to any complaint lodged by the deceased with respect to the above said allegations. 8. PW5 is the 'Nursing Assistant' working at the 'Ayurveda College', where the deceased was working as a “Mess Attender”. According to him, the deceased used to come late in the office and when asked she complained about the practice of the appellant in not taking her in the Bus at the morning and also about the non-stopping of the Bus at the Ayurveda College Bus Stop. He testified that, he advised the deceased to lodge a complaint to the higher authorities. He specifically deposed that, before her death, the deceased had told him that the appellant had intimidated her on several occasions due to his vengeance because of the complaint lodged. According to him, when he heard about the incident at about 3 p.m., he felt that the same may be a murder. **Crl. Appeal No.1701/2010** -9- 9. PW15 is the Doctor who conducted autopsy on the body of the deceased and issued Ext.P22 Post Mortem Certificate. The ante-mortem injuries noted on the body of the deceased are described as follows; “1. Crushed irregular lacerated wound 14 x 15 cm entering the skull cavity, obliquely placed on the face and scalp, the front inner end 1 cm outer to midline and 3 cm above the tip of nose. 2. Graze abrasion 15 x 7 cm on the right side of face, including the right half of lower lip, the lower inner end 0.8 cm outer to midline in the under chin. 3. Lacerated wound 2 x 1cm involving the upper part front of right ear lobe 2 cm outer to tragus, ear cartilage beneath showed crushing. 4. Lacerated wound 1 x 1 cm bone deep on the bridge nose, 2cm below root. 5. Lacerated wound 6 x 0.5 cm bone deep, vertically placed on the left side of forehead, the lower end at the inner end of eyebrow. 6. Lacerated wound 6 x 2 cm bone deep, obliquely placed on the left side of head, upper inner end 8.5 cm outer to midline and 6 cm above eyebrow. 7. Lacerated wound 9 x 6.5cm, irregular separating a flap of skin 9.5 x 7 cm, oblique on the left side of head, the inner end 4 cm outer to midline and 6 cm above eyebrow. Skull and facial bones were found crushed and fragmented, pieces were found missing from the top **Crl. Appeal No.1701/2010** -10- dura torn irregularly, brain matter pulverised and softened. 8. Three oblique wavy contusions (tyre tread marks) 12, 17 and 14cm long, each limb measuring 2 x 0.5 cm, 3.5 cm, 5.3 cm and 7.8 cm apart over an area of 27 x 14 cm on the right side of back, the upper inner end of the shorter inner one was 4 cm outer to midline and 2.7 cm below the root of neck. 9. Three oblique abrasions 12 x 0.7 to 2cm, 9.5 x 0.5 cm, 3.5 x 0.5 cm placed 1.5cm apart on the left side of back, the larger one crossing to the right side, the upper outer end of the larger one was 5 cm to the right of midline and 30cm above natal cleft (suggestive of tyre mark). 10. Two wavy contusions to of length 12cm and 14 cms with each wavy portions measuring 1.5 x 0.5 to 3 x 0.5 cmm and were placed at a distance of 3 to 4.5 cm (tyre tread mark) on the right side of abdomen, the upper outer end of the upper one was 36 cm below the back fold of armpit. 11. Two wavy contusions 14 x 0.5 cm and 13 x 0.5 cm (tyre tread mark) placed 3 to 5.5 cm a part, obliquely placed on the outer aspect of right side of chest, the upper back end 20 cm outer to midline and 30 cm below the top of shoulder. 12. Multiple oblique graze abrasions and small abrasions over an area of 25 x 18 cms on the right side of chest and adjoining part of front fold of armpit and arm, the inner end 3cm outer to midline and 2 cm below collarbone. 13. Graze abrasion 8 x 3 cm, on the right side of back, 21 cm outer to midline and 12 cm below the top of shoulder and extending downwards as faint abrasion 8 x 1 cm, from the lower margin. -11- **Crl. Appeal No.1701/2010** 14. Graze abrasion 28 x 8 cm, horizontally placed on the right side of back the inner end 3 cm outer to midline and 27 cm above natal cleft. 15. Multiple graze abrasions over an area of 10 x 10 cm, on the outer aspect of right side of chest 16 cm outer to midline and 29 cm below collarbone. 16. Multiple graze abrasions over an area of 14 x 4.5 cm, on the right side of lower part of chest and adjoining part of abdomen, the inner end 6 cm below stomach pit. 17. Multiple small abrasions over an area of 24 x 11 cm, on the right side of abdomen the inner end 3 cm outer to midline and 5 cm above umbilicus. 18. Multiple contusions over an area of 12 x 9 cm, on the left side of front of chest 4 cm outer to midline and just below collarbone. Whole of skin and subcutaneous tissue on the right side of chest 10cm below collarbone and abdomen were found crushed and separated from the underlying muscles. Muscles were also found crushed. 850 ml of blood mixed with crushed fat was found in the space. Sternum was fractured and separated between first and second piece of body exposing the chest cavity. Xiphoid separated from the lower part of the body of sternum. Collarbone on the right side fractured between the junction of outer and middle third. Fracture of 1 to VIII ribs on the right side of multiple sites. IX and X at the costochondral Junction. Right lung was found separated from the hilum. Upper lobe lacerated at the back aspect. Separation of cervical vertebrae between 4[th] and 5[th] piece of body. Fracture between bodies of 3[rd] and 4[th] thoracic vertebrae. Right chest cavity contained clotted blood. Fracture of 6[th] rib on the left side at the angle. Fracture of IV and V rib on the left side at the costochondral junction. Laceration of diaphram in the **Crl. Appeal No.1701/2010** -12- midline. 19. Contusion 13 x 0.5 cm wavy (tyre tread mark) obliquely placed on the inner aspect of right arm, the lower front end at the inner aspect of elbow, with a graze abrasion of 12 x 2.5 cm outer to it. 20. Multiple graze abrasions over an area 14 x 5.5cm on the outer aspect of right arm elbow and forearm, the lower end 10cm above wrist. 21. Multiple abrasions over an area of 4 x 3.4cm on the inner back aspect of right hand 8 cm below wrist. 22. Abrasion 5.5 x 3 cm, on the front of right leg 20 cm, above ankle, with an extension of 4 x 0.8 cm downwards from the outer margin 25 cm above heel.” 10. PW15 Doctor had expressed the opinion that the death occurred due to injuries sustained to the head and chest of deceased. According to him, all the injuries noted could have sustained if a Bus run over her body. He further testified that, the injury Nos.1 to 18, which are related to the head and back of the body can be caused by single impact and the injury Nos.9 to 11, 18 and 19 can be caused by a separate impact. 11. From the ocular and medical evidence adduced by the prosecution, it is clearly established that the deceased died due to the injuries sustained to her at the spot of the **Crl. Appeal No.1701/2010** -13- occurrence, by running over of the Bus on her body. The prosecution could establish through clear evidence that the appellant was the driver of the Bus in question, which caused the incident. Testimony of PW2, PW3 and PW4 had clearly established that the Bus in question ran over the body of the deceased when the appellant moved the Bus in the reverse direction from Cheenivila Bus Stop, after the deceased got alighted from the Bus and while she was walking towards her house through the back side of the Bus. Testimony of PW1, PW3 and PW4 would clearly indicate that the road at the spot of occurrence is remaining at a slope towards the front direction of the Bus. In Ext.P3 Scene Mahazar it is specifically described that the road in question is lying on east - west direction with a slope towards west. Evidence is to the effect that, the Bus was proceeding from east to west at the time of the occurrence. Therefore, the prosecution were successful in proving that the incident occurred when the appellant took the Bus suddenly on the reverse direction, after stopping the Bus at **Crl. Appeal No.1701/2010** -14- Cheenivila Bus stop and after the deceased had alighted from the Bus and when she reached on the back side of the Bus. There is also evidence to the effect that, the Bus in question had ran over the body of the deceased. From Ext.P3 it is clear that the Bus was stopped at a place only about 5.25 Mtrs behind the spot of the accident, which is the place where the body of the deceased was seen lying. The Bus was removed from the spot after the incident by PW6 driver attached to KSRTC, at the of the Investigating Officer. PW6 had categorically deposed that, at the time when he got into the Bus, the Bus was seen parked by putting the reverse gear. 12. The appellant contended that, in the F.I. Statement of PW1 there is no mention that either PW2 or PW3 had witnesses the incident. It is pointed out that the investigating agency had failed to site two persons who were stated to have witnessed the incident. But it is pertinent to note that, while questioned under Section 313 Cr.P.C., the appellant gave a specific answer that he moved **Crl. Appeal No.1701/2010** -15- the Bus on the reverse direction only under the impression that a girl who was running towards the Bus from the front direction had fallen beneath the Bus and when he heard a cry from outside. But there is absolutely no evidence to establish that any such person had fallen down in front of the Bus at the time of the occurrence. In this regard, the court questions put to PW4 assumes importance. PW4, who was the conductor of the Bus at the relevant time, specifically deposed that, there was no occasion or necessity for the appellant to take the Bus on the reverse direction at the relevant time. Further, it is pertinent to note that, evidence adduced by the prosecution had clearly established that the Bus had stopped at a distance of about 5.25 Mtrs, after the Bus had ran over the body of the deceased. Therefore, the appellant could not succeed in establishing the defence put forth by him. 13. Learned counsel appearing for the appellant raised a contention that, there is no clear cut and specific evidence to the extent that both the back wheel and the **Crl. Appeal No.1701/2010** -16- front wheel had ran over the body of the deceased. But, as already observed, the body was seen lying at a distance of 5.25 mtrs on the front side of the Bus. In Ext.P3 Mahazar the distance from the front left wheel of the Bus to the spot of the accident is specifically marked as 5.25 Mtrs. PW15 Doctor, who conducted the autopsy had categorically deposed that, the crush injuries sustained at the head and chest portion of the body was through distinct impacts and it may be caused by running over the Bus on the body of the deceased. These factors would clearly corroborate the prosecution case that, both the back and front wheel of the Bus had ran over the body and that the Bus was stopped at a further distance of 5.25 Mtrs on the reverse direction. 14. The main thrust of argument advanced by the appellant is that, the prosecution had not succeeded in proving the motive for the alleged murder. It is vehemently contended that, despite the oral testimony of PW1, PW2, PW3 and PW5, the prosecution had not adduced any substantial evidence to prove that the deceased had lodged **Crl. Appeal No.1701/2010** -17- any complaint either before her superior officers or before any authority in the K.S.R.T.C. It is further pointed out that PW4, who is the conductor of the Bus working on a regular basis with the appellant, had denied of having any knowledge about such complaints. It is contended that PW4 is not a witness declared as hostile and cross examined by the prosecution. Therefore the evidence of PW4 to the extent it categorically denied the allegation of non-stopping of the Bus at 'Ayurveda College Bus Stop' or taking of the Bus ahead of the schedule time from 'Cheenivila Bus Stop', should be accepted only as an admissible evidence. In this regard, learned senior counsel appearing for the appellant had placed reliance on a decision of the honourable Supreme Court in **Kunju Muhammed alias Khumani and another v. State of Kerala** [2004 SCC (Crl.) 1425]. The dictum contained is that, when the witness has not been treated as hostile by the prosecution and when the evidence of such witness helps the defence, the benefit of such evidence should go to the accused and not to the **Crl. Appeal No.1701/2010** -18- prosecution. But as far as the evidence of PW4 in the case at hand, it is to be noted that, he had only pretended ignorance about the allegations and also about the lodging of the complaint. In other words, he had not categorically denied that there was no such allegations at all or that the deceased had not at all lodged any complaint. The categoric deposition of PW1, PW2, PW3 and PW5 assumes importance in this respect. All of them had corroborated the version that the appellant used to deny the opportunity to the deceased to travel in the Bus from 'Cheenivila' in the morning and from 'Ayurveda College Bus Stop' in the evening. In this respect the testimony of PW5 assumes importance. PW5 is a superior official of the deceased at the Government Ayurveda College. He testified that the deceased reached late in the office on many occasions and she had raised allegations that the appellant used to take the Bus in the morning from the place of her residence ahead of the schedule timing. He further testified about the complaint made by the deceased about non-stopping of the **Crl. Appeal No.1701/2010** -19- Bus at the 'Ayurveda College Junction'. It is the testimony of PW5 that he had advised the deceased to lodge complaints to the higher authorities. Testimony of PW5 is to the effect that the deceased had talked about the intimidation caused by the appellant on several occasions, due to the vengeance which he had with her because of lodging of complaints against him. 15. Learned Additional Director General of Prosecution (ADGP) appearing for the respondent contended that, the testimony of PW5 regarding the statement of the deceased to him, is an acceptable piece of evidence coming within the purview of Section 32(1) of the Indian Evidence Act, 1872. It is an oral statement made by the person who is dead with respect to the circumstances of the transaction which resulted in her death, is the contention. It is contended that, such a statement is an acceptable evidence under Section 32(1) despite the fact whether the person who made it at the time when such statement was made was not under an expectation of death **Crl. Appeal No.1701/2010** -20- and whatever be the nature of the proceeding in which the death had occurred. He placed heavy reliance on a ruling of the Honourable Supreme court in **Sharad Birdhichand Sardar v. State of Maharashtra [1984 (4) SCC 116]** . The proposition settled therein is that, Section 32 is an exception to the rule of hearsay and it makes the statement of a person who dies admissible, whether the death is a homicide or a suicide, provided the statement relates to the cause of death or it exhibits the circumstance situation leading to the death. The honourable apex court observed that, in this regard the legislature had widened the scope through Section 32 of the Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people. It further held that, the test of proximity of the statement cannot be too literally construed and practically reduced to a cut and dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstance of each case. The court illustrated that, for **Crl. Appeal No.1701/2010** -21- instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible, because the entire statement would have to be read as an organic whole and not torn from the context. Some times, statements relevant to or furnishing an immediate motive may also be admissible as being part of the transaction of the death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time or the distance of time is not spread over more than 3 - 4 months, the statement may be admissible under Section 32 of the Evidence Act. 16. But, learned senior counsel appearing for the appellant has pointed out that, the relevant portion of the above said judgment, upon which the prosecution placed reliance, is only the views of one of the Judges who **Crl. Appeal No.1701/2010** -22- rendered the judgment in the 3 Judges' Bench of the honourable Supreme Court. It is pointed out that, each of the 3 Judges constituting the Bench had delivered separate judgments, the leading judgment being that of his lordship Justice Fasal Ali, with whom both their lordships Justice Varadarajan and Sabyasachi Mukharji had concurred the views, but for the certain reservations expressed by their lordships in their respective judgments, both on the questions of law and on facts. Learned senior counsel had drawn our attention to certain paragraphs in the judgment rendered by his lordship Justice Sabyasachi Mukharji. His lordship while dealing with the test of proximity observed that; “I would, however, like to state here that this approach should be taken with a great deal of caution and care and though I respectfully agree with Fazal Ali, J. that the test of proximity cannot and should not be too literally construed and be reduced practically to a cut and dried formula of universal application, it must be emphasised that whenever it is extended beyond the immediate, it should be the exception and must be done with very great caution and care. As a general proposition, it cannot be laid down for all purposes that, for instance where a death takes place within a short time of marriage and the distance of **Crl. Appeal No.1701/2010** -23- time is not spread over three or four months, the statement would be admissible under S.32 of the Evidence Act. This is always not so and cannot be so. In very exceptional circumstance like the circumstance in the present case, such statements may be admissible and that too not for proving the positive fact, namely raising some doubt about the guilt of the accused as in this case.” 17. While appreciating arguments on either side, we are of the opinion that the dictum laid in the above cited case is only that, the test of proximity should not be reduced into a cut and dried formula which cannot be liberally construed of having any universal application. Whenever the statement in question is extended beyond an immediate period, the circumstances of each and every case should be evaluated to decide whether such statement should be admissible under Section 32 of the Evidence Act. The court should evaluate the circumstance as well as the proximity of the statement to decide the admissibility of any such statement under Section 32 of the Evidence Act in order to arrive at a conclusion whether such statement is proving the positive fact of guilt of the accused or not. Therefore, admissibility of such statement in evidence **Crl. Appeal No.1701/2010** -24- under Section 32(1) of the Evidence Act would depend upon the circumstance of each case. In the case at hand, we take note of the fact, PW5 is an independent witness who cannot be attributed with any motive to falsely implicate the appellant in the crime. He had mentioned about what he heard from the deceased, during the recent past, prior to her death. The crucial testimony is that, the deceased made a statement to him that the appellant had intimidated her because of the enmity due to lodging of the complaint. The exact wording of the statement and its meaning which is reproduced by PW5 in the vernacular is that, the appellant had intimidated the deceased by saying that “he would see to her”. 18. Learned senior counsel contended that, even assuming that the testimony of PW5 about the statement alleged to have been made by the deceased has got admissibility beyond hearsay, it does not indicate in any manner that the appellant had any idea to commit her murder. It is to be accepted that the said statement, even if **Crl. Appeal No.1701/2010** -25- considered as acceptable under Section 32(1) of the Evidence Act, it does not clearly indicate about any intention or plan of the appellant to commit her murder. But, despite the fact that the evidence of PW5 with respect to the statement of the deceased cannot be accepted as one pointing out about the circumstance which resulted in her death, the remaining part of evidence adduced by PW5, which has got corroboration from the testimony of PW1 to PW4 would clearly establish about the enmity of the appellant with the deceased due to the complaints made by the deceased. The above fact coupled with the evidence that the appellant moved the Bus suddenly on the reverse direction in a location where the road is in a slope towards the front, shortly after the deceased had alighted from the Bus and when she was walking towards her house through the back side of the Bus, would clearly indicate that the appellant had done such an act with a calculated intention. This aspect is more emphasised through the answer given by PW4 to the specific question put by the court that there **Crl. Appeal No.1701/2010** -26- was no occasion or necessity or reason for the appellant to move the Bus suddenly on the reverse direction. 19. It is pertinent to note that, this court cannot in any manner accept the explanation offered by the appellant in the statement under Section 313 Cr.P.C. that he moved the Bus on the reverse direction when somebody had fallen in front of the Bus and when people made a cry. Therefore, on an analysis of the entire evidence on record, we are persuaded to conclude that the appellant had intentionally moved the Bus in the reverse direction and caused the Bus to hit and over the body of the deceased and thereby caused her death. 20. Learned senior counsel contended that, even assuming that the appellant had moved the Bus in the reverse direction suddenly, which had resulted in the Bus hitting and running over the body of the deceased and caused her death, there is no acceptable evidence to prove that the appellant had any intention to cause death of the deceased by running over the Bus on the body of the **Crl. Appeal No.1701/2010** -27- deceased. It is contended that, a conviction under Section 302 I.P.C. cannot be sustained under such circumstances. When no intention to commit the murder was proved, but at the same time when the evidence will lead to the conclusion that the accused acted with knowledge that it is likely to cause death, the act committed is only culpable homicide not amounting to murder punishable under part (ii) Section 304 I.P.C. is the contention raised. 21. In this regard reliance was placed on a decision of the honourable Supreme Court in **Prabhakaran v. State of Kerala (AIR 2007 SC 2376)** . But that is a case where the accused had driven the Bus in a rash and negligent manner at a high speed, despite the passengers cautioned him to stop the vehicle and even when they cried out on seeing the school children crossing the road. The driver of the Bus could not stop the bus and it had ran over the head of the deceased student. The apex court, while altering the conviction from Section 304 Part II to that of Section 304-A observed that, there was absolutely lack of proof **Crl. Appeal No.1701/2010** -28- regarding the intention. The facts of the case at hand is entirely different, because the intention of the appellant is established when he took the Bus suddenly on the reverse direction, shortly after the deceased alighted from the Bus and when she was walking through the backside of the Bus. In this regard, the question to be considered is as to whether culpable homicide proved to have been committed by the appellant would amount to murder as provided under Section 300 of the Indian Penal Code. Section 300 provides that the act of culpable homicide would become murder if it is done with the intention of causing death or under any of the conditions stipulated under clause 'secondly', 'thirdly' and 'fourthly' of the said Section, except in the cases specifically provided as exemptions under the said provision. Clause “Thirdly” of Section 300 provides that, if the act is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death then the culpable homicide is murder. ## **Crl. Appeal No.1701/2010** -29- 22. In a three Judges' Bench decision of the Hon'ble Supreme Court in the celebrated judgment on the point, in **Virsa Singh v. State of Punjab (AIR 1958 SC 465)** it is held that, in order to bring a case under Clause “thirdly” of Section 300, at first, it must establish quite objectively that the bodily injury is present. Secondly the nature of injury must be proved. Thirdly it must be proved that there was an intention to inflict that particular bodily injury, and it was not accidental or unintentional or that some other kind of injury was intended. Once those three elements are proved, the enquiry proceeds further that it must be proved that the injury is sufficient to cause death in the ordinary course of nature. Once the prosecution establishes the above said four elements, the offence would fall under Clause “Thirdly” to Section 300. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature. It does not even matter that **Crl. Appeal No.1701/2010** -30- there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury is actually found to be present or proved, the rest of the enquiry is purely objective and the only question is whether as a matter of pure objective inference, whether the injury is sufficient in the ordinary course of nature to cause death. The proven facts of the case at hand when analysed based on the dictum mentioned as above, it is evident that the injury, which caused death of the deceased was inflicted by the appellant with an intention to cause the injury on the deceased by hitting with the Bus. It is proved that the injury inflicted was sufficient in the ordinary course of nature to cause the death. It cannot be permitted to putforth a contention that the appellant was intended to cause some other kind of injury and that the running over of the tyres of the Bus on the body of the deceased was accidental or unintentional. 23. On the aspect of having necessity of the 'knowledge', learned Senior Counsel further relied on a **Crl. Appeal No.1701/2010** -31- decision of the apex court in **Alister Anthony Pareira v. State of Maharashtra [(2012) 2 SCC 648].** The Hon'ble Supreme Court observed therein that, if the act is done with the knowledge of the dangerous consequences which are likely to follow and if death is caused, then not only that the punishment is for the act, but also for the resulting homicide and the case may fall within Section 299 or Section 300 depending upon the mental state of the accused viz. as to whether the act was done with one kind of knowledge or the other; or with the intention. Knowledge is the awareness on the part of the person concerned about the consequences of his act or omission or commission indicating in his state of mind. There may be knowledge of likely consequences without any intention. Criminal culpability is determined by referring to what a person with reasonable prudence would have known. The Court further observed that, each case obviously has to be decided on its own facts. In a case where negligence or rashness is the cause of death and nothing more, Section **Crl. Appeal No.1701/2010** -32- 304-A may be attracted. But where the rash or negligent act is preceded with the knowledge that such act is likely to cause death, Section 304 Part II IPC may be attracted; and if such a rash and negligent act is preceded by the real intention on the part of the wrongdoer to cause death, offence may be punishable under Section 302 IPC. In the case at hand, as already observed, the rash and negligent act, even if it is assumed (as it was) had preceded by an intention on the part of the wrongdoer to cause bodily injury on the deceased and such bodily injury intended was sufficient in the ordinary course of nature to cause death. Hence the offence of Section 302 is attracted. 24. Learned counsel further contended that, in order to attract Section 302 it should be proved that the bodily injury must be an intentional one and not an accidental one and that the court must be satisfied that it must be sufficient in the ordinary course of nature to cause death. In this regard, he had placed reliance on the decision of the Hon'ble Supreme Court in **Laxman Kalu Nikalje v. The** **Crl. Appeal No.1701/2010** -33- **State of Maharashtra (AIR 1968 SC 1390),** wherein it is held that, the intention must be to cause the precise injury likely to cause and that also such injury was likely to cause death of the victim. But on facts, the said case was that of the accused inflicted a stab injury on the shoulder of the deceased and ran away from the scene and there was lack of evidence to prove that a bodily injury which was sufficient in the ordinary course of nature to cause death was intended to be inflicted. The learned counsel further placed reliance on **Harjinder Singh v. Delhi Administration (AIR 1968 SC 867).** In the said decision, the Hon'ble Supreme Court placed reliance on the three Judges' Bench decision in **Virsa Singh (cited supra)** and observed that, the question, so far as the intention is concerned is not whether the accused has intended to kill or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed, unless the evidence or the **Crl. Appeal No.1701/2010** -34- circumstances warrant an opposite conclusion. Again on facts, the case of **Harjinder Singh** (supra) is totally different. It is a case where the accused had inflicted a stab injury on the left thigh, upper and below the inguinal ligament, but the injury had cut the artery and the death occurred due to shock and hemorrhage. There also the accused was acquitted of the offence under Section 302 on analysing about the intention. Considering the factual situation, there was no definite evidence to the effect that the appellant aimed the blow on the particular part of the thigh knowing that it would cut the artery. The facts those cases had no comparison with the facts of the case at hand, with respect to the element of intention. 25. From the side of the appellant, reliance was placed on the decision in **Jayaraj v. The State of Tamil Nadu (AIR 1976 SC 1519)** to canvass a distinction between the element of injury 'likely to cause death' and injury which is 'sufficient to cause death in the ordinary course of nature'. On the facts in the above said case, the **Crl. Appeal No.1701/2010** -35- doctor who conducted autopsy on the dead body while cross-examined before the trial Court stated that, the abdominal injury found on the deceased was only likely to cause death. The prosecution had failed to question him in re-examination to bring out that the injuries found on the deceased was sufficient to cause death in the ordinary course of nature. Therefore it was held that, Clause “thirdly” of Section 300 would not apply in that case and consequently the conviction was altered to Section 304. But the factual scenario in the case at hand is entirely different and the injury caused by running over the Bus was totally fatal and the deceased succumbed to death on the spot itself. 26. Lastly, the learned Senior counsel made on appeal to take a lenient view, on the premise that, there was no effective cross-examination of any of the witnesses by the defence counsel who conducted the case. It is pleaded that for the inexperience or omission on the part of the counsel, the appellant may not be put to prejudice. But we take note **Crl. Appeal No.1701/2010** -36- of the fact that the appellant had engaged a lawyer having sufficient experience in conducting criminal trials, before the court below. Further it has come out that the lawyer who defended the case had experience as Special Prosecutor in Narcotic Cases. Therefore, we do not find any reason existing to take a liberal or lenient attitude. Result of the above discussions would only lead to the conclusion that the prosecution in this case was fully successful in proving the guilt of the accused with respect to offence punishable under Section 302 of IPC. Hence, we do not find any merit in the appeal for interference with the conviction or sentence imposed. Consequently, the appeal fails and the same is hereby dismissed. ## Sd/- ## **C.K. ABDUL REHIM, JUDGE** . Sd/- ## **B. SUDHEENDRA KUMAR, JUDGE** . **AMG/DL/Ani** True copy P.A. to Judge