Palanidwarai S/o Pandithevar and Santhakumar v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **FRIDAY, THE 30[TH] DAY OF SEPTEMBER 2022 / 8TH ASWINA, 1944** **CRL.A NO. 336 OF 2005** **AGAINST THE JUDGMENT IN SC 296/2001 OF ADDITIONAL SESSIONS COURT,** ## **THODUPUZHA** ## **APPELLANT/ACCUSED:** 1 PALANIDWARAI S/O PANDITHEVAR, 7 MURILAYAM, NETTIKUDY, GUDARVILA ESTATE, K.D.H. VILLAGE. 2 SANTHAKUMAR, S/O. SANTHOSAM 7 MURILAYAM, NETTIKUDY, GUDARVILA ESTATE, K.D.H. VILLAGE. BY ADVS. SRI.N.A.MURALEEDHARAN SMT.SAIRA SOURAJ P. ## **RESPONDENTS/COMPLAINANT:** STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SRI.VIPIN NARAYAN.A, SR.PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 02.09.2022, THE COURT ON 30.09.2022 DELIVERED THE FOLLOWING: Crl.Appeal No.336 of 2005 2 ## **C.S.SUDHA, J.** **-----------------------------------------Crl.Appeal No. 336 of 2005 ----------------------------------------------------Dated this the 30[th] day of September, 2022** ## **J U D G M E N T** In this appeal filed under Section 374(2) Cr.P.C the appellants, two in number, who are the accused in S.C.No.296/2001 on the file of the Sessions Court, Thodupuzha, challenge the conviction entered and sentence passed against them for the offences punishable under Sections 452, 341 and 304 Part II IPC. 2. It is reported that the first appellant/the first accused is no more. The death certificate produced shows that he died on 08/12/2011. The present appeal is from a composite order of sentence combining substantive imprisonment with fine. By virtue of Sub-section (2) to Section 394 Cr.P.C., the appeal as far as the first appellant is concerned, stands abated so far as the sentence of imprisonment is concerned. However, as far as his appeal against sentence of fine is concerned, the same does not abate. No legal representatives of the first appellant has come forward seeking permission to prosecute the appeal as far as the sentence of fine is concerned. Hence this Court proceeds to consider the same on merits in the light of the dictum in **Bani Singh v. State of U.P, 1996 (2) KLT 424** and **Ramesan v. State of Kerala, (2020) 3 SCC 45** . Therefore in this appeal, this Court will be considering the correctness of the finding of conviction and sentence of imprisonment and fine as far Crl.Appeal No.336 of 2005 3 as the second accused is concerned and the sentence of fine passed against the first accused by the trial court. 3. The prosecution case as revealed from the final report is that the accused, two in number, due to their enmity towards Anthappan and with the intention of causing his death, on 17/12/1996 at 10 p.m, trespassed into the room in which Anthappan was staying; the second accused wrongfully restrained him and the first accused with a knife stabbed Anthappan resulting in grievous injuries to him. Anthappan, while under treatment, succumbed to his injuries on 24/12/1996 at 04:15 p.m. Hence the accused are alleged to have committed the offences punishable under Section 452, 341, 302 read with Section 34 IPC. 4. Ext.P8 FIR, that is, crime no.48/1996 of Devikulam police station was registered on 18/12/1996 at 09:05 a.m by CW13, the then ASI Devikulam on the basis of Ext.P7 FIS of Anthappan, the deceased. PW5, the then Circle Inspector Devikulam, is stated to have verified the investigation and submitted the charge sheet before the court alleging the offences punishable under Sections 452, 341, 302 read with section 34 IPC, which was read over and explained to the accused to which they pleaded not guilty. 5. On appearance of the accused before the court below, a charge was framed on 18/11/2003 for the offences punishable under Sections 452, 341, 302 read with 34 IPC, which was read over and explained to the accused to which they pleaded not guilty. 6. The prosecution examined PWs.1 to 9 and marked Exts.P1 to P13 series Crl.Appeal No.336 of 2005 4 and MO1 to MO3 series. 7. After the close of the prosecution evidence, the accused were questioned under Section 313(1)(b) Cr.P.C with regard to the incriminating circumstances appearing against them in the evidence of the prosecution. They denied those circumstances and maintained their innocence. 8. As the court below did not find it a fit case to acquit the accused under Section 232 Cr.P.C, the accused were asked to enter on their defence and adduce evidence in support thereof. No oral evidence has been adduced by the accused. Exts.D1 and D2 are stated to be contradictions in the statement of PW7. 9. On a consideration of the oral and the documentary evidence and after hearing both sides, the court below by the impugned judgment, convicted and sentenced both the accused to undergo rigorous imprisonment for 3 years and to pay a fine of `5,000/- and in default of payment of fine, to undergo simple imprisonment for 2 months for the offence punishable under Section 452 IPC; to a fine of ` 500/and in default of payment of fine to undergo simple imprisonment for one week for the offence punishable under Section 341 IPC and to undergo rigorous imprisonment for 7 years for the offence punishable under Section 304 Part II IPC. The sentences have been directed to run concurrently. It is this judgment which is assailed in this appeal by the appellant/accused. 10. The only point that arises for consideration in this appeal is as to whether the conviction entered and sentence passed against the accused by the court below are Crl.Appeal No.336 of 2005 5 sustainable or not. 11. Heard Sri. N.A.Muraleedharan, the learned counsel for the appellants and Sri.Vipin Narayan.A, the learned Senior Public Prosecutor. 12. Apart from the offences under Section 452 and 341 IPC, the accused have been charged for the offences under Section 302 read with Section 34 IPC. As far as the offence punishable under Section 302 read with Section 34 IPC is concerned, the trial court has found them guilty for the offence of culpable homicide not amounting to murder and hence have been convicted under Section 304 Part II of the Penal Code. The present appeal is one under Section 374(2) Cr.P.C by the convicted accused. The State has not preferred any appeal against the sentence on the ground of its inadequacy under Section 377(1) contending that the conviction ought to have been under Section 302 IPC and that the court below went wrong in finding the accused guilty under Section 304 Part II IPC only. Therefore, I need only consider whether the trial court was right in concluding that what has been made out from the evidence adduced by the prosecution is only culpable homicide not amounting to murder punishable under Section 304 Part-II IPC. 13. Section 304 IPC does not create an offence but provides punishment for culpable homicide not amounting to murder. ( **Harendra Nath Mandal v. State of Bihar, 1993 KHC 902)** . Section 299 of the Penal Code which defines culpable homicide says that, whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause Crl.Appeal No.336 of 2005 6 death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. In view of S.300 of the Penal Code, except in cases covered by the five exceptions mentioned therein, culpable homicide is murder. If death is caused and the case is covered by any one of the five exceptions of S.300, then such culpable homicide will not amount to murder. Whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder' on the facts of a case, it would be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in S.299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of S.300, Penal Code, is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of 'murder' contained in S.300. If the answer to this question is in the negative, the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of S.304, depending, respectively, on whether the second or the third Clause of S.299 is applicable. If this question is found in the positive, but the case comes within any of the Exceptions enumerated in S.300, the offence would still be 'culpable homicide not amounting to murder', punishable Crl.Appeal No.336 of 2005 7 under the First Part of S.304, Penal Code ( **State of Andra Pradesh v Rayavarapu Punnayya, AIR 1977 SC 45** ). 14. The incident in the case on hand is alleged to have taken place inside a room in building no.I/65 KDH Village, Munnar Panchayath owned by Gudarvila Estate, Nettikudy Lower Division, in which PW8 Murukan was running a canteen. I refer to the evidence relied on by the prosecution to prove the case. PW7, stated to be the eye witness when examined before the court below deposed thus - he is an employee in the tea shop of Murukan, his uncle, (PW8). He knows Anthappan (the deceased) who was stabbed to death. The incident took place on 17/12/1996 at 10 p.m. inside the canteen. He along with Vadivel (CW3), Krishnan (CW4) and Anthappan sleeps in the canteen. On the said day at about 10:00 p.m, they heard a knock on the door. Anthappan opened the door. Both the accused persons entered the canteen. The accused closed the door after sending Vadivel(CW3) and Krishnan (CW4) out of the canteen. Santhakumar (A2) held Anthappan by his neck. Palani Durai (A1), with a knife stabbed Anthappan on his left hand. Anthappan pushed the accused away and ran inside. Both the accused pursued/followed him. Palani Durai (A1) then stabbed Anthappan on his stomach/abdomen. Anthappan cried out loudly. PW7 says he then intervened and so he was sent out of the canteen and the door closed. He went to inform his uncle(PW8), the owner of the canteen. When he came back along with his uncle, the door was open. They found Anthappan lying in a pool of blood. PW7 says he along with his uncle, Vadivel(CW3) and Krishnan (CW4) Crl.Appeal No.336 of 2005 8 took Anthappan to the estate hospital. However, the doctor was not available. Hence they took Anthappan in a jeep to the Tata hospital at Munnar. Anthappan at that time was not conscious and he did not say anything or talk. Anthappan regained consciousness after the operation. PW7 further deposed that his uncle had asked Anthappan, the reason for the incident. Anthappan is stated to have told his uncle that the 1[st] accused had demanded the former to work in his shop, if not, Anthappan was to return home. PW7 identified the knife used to stab Anthappan. The same has been marked as MO1. MO2 is the lungi worn by Anthappan at the time of the incident and MO3 series are his chappals. He had identified MO1 knife before the police. He had also shown the place of occurrence to the police. There was electric light inside the canteen at the time of the incident. 14.1. In the cross examination, PW7 deposed that the incident occurred about 20 days after he had joined the shop of his uncle. He takes food from his uncle's house, but sleeps inside the canteen. The second accused standing behind Anthappan had held the latter with both his hands. The first accused stabbed Anthappan from the front. The stab on the hand of Anthappan was made by the first accused by standing to the side of Anthappan and the remaining stabs were made standing in front of him. The first accused stabbed Anthappan twice, one on his hand and one on his stomach/abdomen. According to PW7, on seeing the attack, he had intervened and tried to prevent the first accused by catching hold of his hand. Then the second accused pushed him outside the canteen. Crl.Appeal No.336 of 2005 9 15. It is submitted by the learned counsel for the accused that PW7 is a planted witness and hence his sole testimony cannot be relied on to conclude that the prosecution case has been established. According to the counsel, testimony of PW7 is not credible and in support of the argument pointed out that, PW7 who claims to be present at the time of the incident is completely ignorant of the details of Anthappan, the deceased. In the cross examination when PW7 was asked about the details, like the place from where Anthappan hails, his address etc, the former was unable to answer. Therefore, the argument is that it is improbable and unbelievable that PW7 who claims to be working in the shop of Murukan(PW8), where Anthappan is also a worker and who is also supposed to spend nights in the canteen, not to know the details of Anthappan. 16. I do not think this argument is right. PW7 deposed that it was just 20 days before the incident he had joined the shop of his uncle, PW8. According to PW7 he works on payment in the provision shop of his uncle. Near the said shop there is also a ration shop. He deposed that his uncle was also running a medical shop nearby and that he used to work in all the shops of his uncle. PW7 deposed that he takes food from his uncle's house, but sleeps in the canteen, which canteen also belongs to his uncle. There is nothing unnatural or unbelievable or improbability in this arrangement spoken to by PW7. The accused never has a case that PW7 was never an employee in the shop of PW8 or that the latter did not own the shops referred to in the deposition of PW7. The accused also do not challenge the Crl.Appeal No.336 of 2005 10 prosecution story that PW7, Anthappan and the other witnesses referred to by PW7 in his deposition spends their night in the canteen. Apart from the aforesaid improbability pointed out, no other aspect has been pointed out to substantiate the argument that PW7 is a planted witness. It is true that Exts.D1 and D2 contradictions have been brought out in the testimony of PW7. However, the contradictions brought out are immaterial and irrelevant and has not affected the prosecution case in any manner. 17. It is true that PW7 speaks of the presence of two more witnesses in the canteen, namely, CW3 and CW4, when the accused are stated to have arrived at the spot. It is also true that CWs. 3 and 4 have been given up by the prosecution. But the prosecution has no case that CWs. 3 and 4 had seen the incident. According to PW7, after the accused arrived at the scene and entered the canteen, they sent CWs.3 and 4 out of the canteen before proceeding to assault Anthappan. CWs.3 and 4 have not witnessed the incident and therefore, it is immaterial that they have not been examined. Now even if the said witnesses had been examined, they could have only spoken about the arrival of the accused at the scene of occurrence. The said fact is not disputed. The main argument advanced on behalf of the second accused is only that he has no role in the act of the first accused stabbing Anthappan with a knife and hence Section 34 IPC cannot be invoked. Therefore, the arrival of the accused at the scene of occurrence and entry inside the canteen is not disputed. In the said circumstances, the non-examination of CWs.3 and 4 is all the more immaterial or Crl.Appeal No.336 of 2005 11 insignificant. On going through the testimony of PW7, I find no reasons to disbelieve or discard his testimony. No reason(s) have also been shown as to why PW7 should depose falsehood. 18. Another reason pointed out to doubt the prosecution story is the delay in Anthappan reaching the hospital. It is submitted that the incident took place at 10:00 p.m. However, Anthappan was examined by PW3 at 11:30 p.m only. Therefore, it is pointed out that the delay of about 1 ½ hours to reach the hospital, which is situated inside the estate itself and near the place of incident has not been explained by the prosecution. In addition, it was also pointed out that CW13 who is stated to have recorded Ext.P9 FIS of Anthappan had never consulted the doctor or sought his opinion before recording the FIS to ascertain whether Anthappan was in a fit state of mind to give the statement. It was also pointed out that the deceased is a tamilian. However, the FIS is seen recorded in malayalam. The FIS consists of a detailed version of the incident running into three full pages. It does not contain the signature of Anthappan but only his thumb impression, which according to the defence is also an indication to the effect that Anthappan was not in a position to give a statement and that he was unconscious. 19. Ext.P9 FIS is stated to have been recorded by CW13, the then ASI Devikulam. CW13 was reported to be no more and hence the FIS has been marked through PW9, the then Circle Inspector Munnar, who is stated to have conducted the investigation in this case. PW9 deposed that in the absence of the Circle Inspector, Crl.Appeal No.336 of 2005 12 Devikulam, he had conducted the investigation. CW13, who recorded the FIS and registered the FIR is no more. According to PW9, he is acquainted with the signature of CW13. PW9 identified the signature of CW13, hence, the FIS and FIR have been marked as Exts.P9 and P8 respectively. PW9 further deposed that Ext.P1 scene mahazar had also been prepared by CW13 and that it was as per Ext.P1, MOs.2 and 3 had been seized. The inquest was conducted and Ext.P2 inquest report prepared by CW14, the then Sub Inspector, Devikulam, who according to PW9 is completely bed ridden. CW13 had also submitted Ext.P10 report for adding Section 302 IPC in the place of Section 324 IPC. PW9 further deposed that on 03/01/1997 at 09:20 a.m, he had arrested the first accused. On questioning the first accused and on the basis of the statement given by him and as led by him, MO1 knife was recovered from the place pointed out by the first accused. According to PW9, Ext.P7 is the seizure mahazar prepared when MO1 was seized and that Ext.P7(a) is the relevant portion of the statement of the first accused which led to the recovery of the knife, that is, the weapon of assault in this case. Ext.P11 is the report giving the details of the first accused. PW7 on being showed MO1 identified the same. Ext.P12 is the copy of the requisition given for sending the material objects for chemical examination. The property list in this case has been marked as Ext.P13 series. According to PW9, it was PW5 who had completed the investigation and submitted the final report before the court. PW9 denied the suggestion put to him that CW13 had recorded Ext.P9 FIS, when Anthappan was not in a fit state of mind to give the statement. He also Crl.Appeal No.336 of 2005 13 denied the suggestion put to him that the second accused was not present at the spot and that the latter had arrived at the scene hearing the commotion. 20. Here I refer to Ext.P9 FIS, seen recorded on 18/12/1996 at 09:30 a.m. In Ext.P9, the FIS of Anthappan, which on his death has been considered as a dying declaration reads thus – on 17/12/1996 at 10:00 p.m, he along with Krishnan(CW4), Vadivel (CW3) and Arulmani (PW7) were cooking rice gruel. Palani Durai(A1) running a canteen at lower division Nettikkudy Estate and Santhakumar(A2) knocked on the door of the canteen. He opened the door. Both Palani Durai(A1) and Santhakumar(A2) entered the canteen. They sent Vadivel (CW3) and Krishnan(CW4) outside and Palani Durai(A1) closed the door of the canteen. He questioned this act. Then Santhakumar(A2) held him by his neck. Palani Durai(A1) with a knife stabbed him, which he warded off with his left hand. He sustained an injury on his left hand. Palani Durai(A1) then stabbed him on his stomach/abdomen injuring him. Seeing this Arulmani(PW7) intervened. Palani Durai(A1) opened the door, sent Arulmani(PW7) also outside the canteen, came back and stabbed him twice on his stomach. He fell down. Palani Durai(A1) then stabbed him several times while he was on the ground. He does not remember where all Palani Durai(A1) had stabbed. He was taken to Nettikudi Lower Division Estate Hospital by Murukan (PW8), Vadivel (CW3), Krishnan (CW4) and Ramar. The doctor was not available in the Hospital. Hence he was taken to the Government Hospital, Munnar. He came to know this in the morning of 18.12.1996. He has been working in the canteen of Crl.Appeal No.336 of 2005 14 Murukan(PW8) for the past two years. Palani Durai (A1) had asked him several times to join the former's canteen, if not, he was to leave the job in the shop of Murukan (PW8) and return home. He had not acceded to this demand of Palani Durai (A1). Hence, the assault. Krishnan (CW4) and Vadivel (CW3) had seen Palani Durai (A1) and Santhakumar (A2) in the canteen. Arulmani (PW7) has witnessed the incident. Murukan (PW8) was informed by Krishnan (CW4), Vadivel (CW3) and Arulmani (PW7) of the incident. The place of occurance is 13 kilometers away from the Hospital. 21. As stated earlier, CW13, the ASI, who had recorded Ext.P9 FIS is no more. Hence, the provisions of Section 32 read with Sections 47 and 67 of the Evidence Act are seen resorted to and the FIS and FIR marked through PW9. PW9, the investigating officer when examined was never asked anything relating to the statement in Ext.P9 FIS that the hospital is 13 kilometers away from the scene of occurrence. Further, in Ext.P9 FIS as well as in the testimony of PW7, it is stated that the deceased had initially been taken to Lower Division Estate Hospital, Nettikudy, where the doctor was not available. Thereafter, he was taken to the Government Hospital, which as per Ext.P9 is 13 kilometers away from the scene of occurrence. This explains why the deceased reached the hospital only at 11.30 pm though the incident took place at 10.00 pm. This aspect of the evidence that is borne out from the records has not been discredited in any way. 22. Ext.P9 FIS of Anthappan, on his death has been treated as a dying Crl.Appeal No.336 of 2005 15 declaration under Section 32(1) of the Evidence Act. It is pointed out that no evidence has been let in by the prosecution to prove that Anthappan was in a fit state of mind to give the statement. On the other hand, the indications from the materials on record is that he was not concious and hence Ext.P9 has not been properly proved, contends the accused. 23. PW3, when examined deposed that while he was working in the Tata Tea Hospital, he had examined one Antho on 7/12/1996 at 11.30 pm and had noted the following injuries - (i) Multiple stab wound over the abdomen ; (ii) Stab wound on left arm and (iii) Stab wound on pubic region. Exhibit.P3 is the wound certificate prepared by him. In the cross-examination he deposed that the patient was in bad shape. His blood pressure was very low due to loss of blood. PW3 is seen recalled and when further examined he deposed that all the injuries noted in Ext.P3 can be caused by MO1. In the further cross-examination he deposed that the patient was in his hospital for 4 days. On receiving the patient, he had resuscitated the patient and handed him over to the surgeon who managed the patient. Column 10 of Ext.P3 wound certificate reads- - _“ 10. Details of injuries/clinical features: Pt conscious. BP 80/systalic._ **==> picture [36 x 122] intentionally omitted <==** _Multiple stab injuries:_ _1. Two over anterior chest wall 2. Two over abdominal wall 3. one in pubic region. 4. Two stab wounds left arm. 5. One stab wound (Rt) thigh.”_ Crl.Appeal No.336 of 2005 16 24. The accused has no case that Anthappan had not been taken to the hospital or that PW3 had not attended on him. Ext.P3 wound certificate is only a previous statement of PW3, which can be used for any purposes under Section 145, 155, 157 and 159 of the Evidence Act. What the doctor had observed at the time of examination of the injured is direct evidence. The deposition of PW3 is substantive evidence and Ext.P3 wound certificate corroborates his testimony. The wound certificate has been marked as Ext.P4 only after PW3 deposed the contents thereof. Therefore, it has been properly proved. **(Munshi Prasad and others v. State of Bihar, AIR 2001 SC 3031; State of UP v. Mohd.Iqram, AIR 2011 SC 2296** and **Krishnankutty v. State of Kerala, 2015(2) KHC 322)** . In Ext.P3 wound certificate it is seen recorded that the patient was conscious. This is not seen challenged even when PW3 was recalled and reexamined. It is true that PW3 admitted in the further cross-examination that he has not recorded in Ext.P3 that he had received the patient and later had handed him over to the surgeon. But he deposed that he had noted the same in the case sheet which he had brought to the court at the time of his examination before the court. This part of his testimony is not seen challenged and no objection is seen raised by the defence before the trial court when the case sheet was referred to by PW3 while in the box. Not even a suggestion is seen put to PW3 that the patient was not conscious or not in a fit case of mind to give a statement. It is true that the burden is always on the prosecution to prove the case. At the time when Ext.P9 was recorded, the police did not have a case that it was a dying declaration Crl.Appeal No.336 of 2005 17 that was being recorded. The injuries caused were not on any of the vital organs. Death was caused due to infection, to which evidence I will refer to shortly. Therefore, Ext.P9 FIS does not seem to have been given in anticipation of death and that seems to be the reason why the procedure followed for recording dying declaration was not resorted to. It is true that PW7 in the cross-examination initially deposed that Anthappan regained consciousness on the 3rd day which he corrected as 2nd day. In the re-examination this was clarified and he deposed that after the operation, Anthappan had been moved to the ward and thereafter he had regained consciousness. This aspect of his testimony has not been challenged. 25. I also refer to the testimony of PW12, the doctor through whom the post mortem certificate has been marked. In the impugned judgment it is stated that CW12 (the Deputy Police Surgeon, Medical College hospital, Kottayam) was not available and hence PW6 was examined to prove the post mortem certificate. PW6 deposed that he was an Associate Professor in Forensic Medicine, Medical College Hospital, Kottayam. He had worked with Dr. E.U. Raja (CW12) and that he is familiar with the signature of the latter. He identified the signature of CW12 in the post mortem certificate. According to PW6 the injuries noted in the post mortem certificate are _-_ _“_ _1. Sutured wound 4 cm in length muscle deep on the front of upper part of right side of chest and 4 cm below the level of middle of right collar bone._ Crl.Appeal No.336 of 2005 18 _2. Sutured wound 5 cm in length, oblique muscle deep on the front of left side of chest and 11 cm below the level of left nipple._ _3. Sutured wound 6 cm in length, muscle deep, oblique on the right side of front of abdomen and 15 cm to right of midline._ _4. Sutured wound 4 cm in length, muscle deep, oblique 8 cm below injury no.3._ _5. Incised sutured wound 13 cm in length vertical on the front of middle of right side of abdomen and 3 cm to right of midline. On dissection the peritoneal cavity contained above 400 ml of chocolate colour thin foul smelling blood stained pus. The intestine were lustreless, grey in colour and glued together, Liver, spleen and other abdominal organs were covered with flakes of pus._ _6. Sutured wound 13 cm in length, horizontal, on the front of middle of lower part of abdomen and 13 cm below the umbilicus on dissection the muscles, soft tissues and blood vessels were found severed._ **==> picture [36 x 35] intentionally omitted <==** _7. Sutured wound 5 cm in length, oblique on the right side of lower part of abdomen and 3 cm above the right iliac fossa._ _8. Incised wound 13 x 5 cm in length vertical on the inner aspect of middle of left leg. (not sutured)_ _9. Incised wound 9 x 3.5 cm vertical on the outer aspect of upper part of left leg.”_ The post mortem certificate has been marked as Ext.P6. The opinion as to the cause of death is stated thus:- " _died of peritonitis following the injuries involving the abdomen._ " PW6 when asked whether the injuries could be caused by the weapon shown to him, replied that they can be caused by any sharp edged weapon. 26. In the cross-examination PW6 deposed that infection of peritonium is peritonitis and that the symptoms of peritonia were seen. On further questioning on Crl.Appeal No.336 of 2005 19 behalf of the accused, PW6 deposed that a person who sustain injuries as noted in Ext.P6 would be able to give a lengthy statement. He also deposed that peritonium is below the abdomen wall and that it can be treated and cured if there is no infection. Therefore, not only has the statement in Ext.P3 wound certificate that the patient was conscious has not been challenged or discredited, but it has been brought in through the testimony of PW6 that a person who sustained the aforesaid injuries would be capable of giving a lengthy statement. Hence, the prosecution has brought on record materials to show that Anthappan was in a fit state of mind to give a statement. 27. Further, when examination of a doctor is impossible for any reason stated in Section 32 of the Evidence Act, the certificate can be proved by proving his handwriting or/and signature as in the case of any document by resorting to Section 47 and 67 of the Evidence Act, which has been done in this case. The same is certainly the correct procedure adopted by the court below **(Kochu v. State, 1978 KHC 321** and **Kurian v. State, 2019 KHC 741).** 28. It is true that Anthappan, the deceased was a Tamilian. But Ext.P9 FIS is seen recorded in Malayalam. Here I refer to the decision in **Sidhartha Vashisht @ Manu Sharma v. State (N.C.T of Delhi), AIR 2010 SC 2352,** wherein it has been held that, it is not necessary that a statement under Section 161 Cr.P.C should be recorded in the language of the witness or in the language known to the witness. In the said case the statement given by the witness in Hindi had been recorded in English. It has been held that in the absence of challenge, it is to be presumed that it Crl.Appeal No.336 of 2005 20 has been recorded correctly. True, FIS is not a Section 161 statement. But both are recorded by the police. PW9, the investigating officer was never asked about this aspect. On the other hand in Ext.P9 FIS, Anthappan has stated that he had been working in the canteen of PW8 for the past two years. Therefore, language does not seem to have been a problem for him, which aspect has also not been challenged by the accused. Therefore, the argument regarding language is also liable to be rejected. 29. It was further argued that PW8, Murukan is the real man behind the incident. However, nothing has been brought out to substantiate this argument. On the other hand PW7, whose testimony I find no reason(s) to disbelieve, has deposed the overtacts of the accused resulting in injuries to Anthappan. The presence of PW7 is referred to in Ext.P9 FIS also. Therefore, I find no reasons to reject the testimony of PW7. 30. The fact that pursuant to the incident, death has been caused is established through the testimony of PW3, PW6, PW7 and Exts.P3 and P6. The court below found that the accused has committed the offence of culpable homicide not amounting to murder and hence convicted and sentenced the accused under Section 304 Part II IPC. The evidence on record does not show an intention to kill and so Section 299 (a) or firstly of 300 IPC is not attracted. Section 299(b) or the intention of causing such bodily injury as is likely to cause death corresponding to clauses secondly and thirdly of Section 300 IPC as well as clause fourthly of Section 300 IPC are also not attracted in this case. It is only clause (c) of Section 299, that is, Crl.Appeal No.336 of 2005 21 the knowledge that he is likely by such act to cause death that is attracted. The evidence shows that the first accused stabbed Anthappan several times with MO1 knife. No injury has been caused to the vital organs. But the injuries led to infection, resulting in the death of Anthappan. When Anthappan was stabbed with MO1 knife, the accused must certainly have had the knowledge that it is likely to cause death. 31. It was further argued by the learned defence counsel that the second accused has no role and therefore, Section 34 IPC is not applicable. According to him, no evidence has been brought on record to show that the second accused had knowledge that the first accused was in possession of a knife. The argument is that if at all any offence is made out against the second accused it can only be the offence punishable under Section 341 and Section 324 IPC. The second accused never pursued or followed the deceased into the canteen and that it was only the first accused who pursued and stabbed him, goes the argument. I disagree with the argument advanced. The evidence clearly refers to the role of the second accused also. The testimony of PW7 shows that it was the second accused who had wrongfully restrained Anthappan and then the first accused had stabbed him. The argument that the second accused had not pursued or followed the deceased into the canteen is incorrect. PW7 clearly refers to the presence of the second accused as also his overt act of wrongfully restraining the deceased enabling the first accused to stab him. He also said that it was the second accused who had pushed him out of the canteen. Common intention can be developed at the spot also. The evidence on record Crl.Appeal No.336 of 2005 22 is sufficient to bring in the provisions of Section 34 IPC also. Therefore, I do not find any infirmity in the findings of the court below. The appeal of the second appellant/second accused is found to be without any merits and hence the appeal is dismissed. The appeal as against the sentence of imprisonment against the first appellant/first accused stands abated. The appeal of the first appellant/first accused as against the sentence of fine is dismissed. Interlocutory applications, if any pending, shall stand closed. **Sd/C.S.SUDHA JUDGE** jms/29.08