Dismissed

Chandran @ Chandra Swami v. State of Kerala

Kerala HC29 Sept 2016CRL.A/808/2009

Case brief

AI extract

What is this about?

Trial court convicted appellant under Section 304 Part II IPC for causing death by aspiration via forced leaf paste administration. Appellant appealed alleging heart failure cause and innocent act. High Court upheld conviction, finding death resulted from culpable homicide not amounting to murder, and rejected appeal.

What did the court decide?

Criminal Appeal dismissed; conviction and sentence under Section 304 Part II IPC upheld.

Chandran @ Chandra Swami Vs State of Kerala — Murder and Culpable Homicide | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

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THURSDAY, THE 29TH DAY OF SEPTEMBER 2016/7TH ASWINA, 1938

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CRL.A.No. 808 of 2009 (A)

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AGAINST THE ORDER/JUDGMENT IN SC 882/2006 of ADDL.DISTRICT COURT (ADHOC)-IV, TRIVANDRUM DATED 18-04-2009

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APPELLANT(S)/1^st ACCUSED:

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CHANDRAN @ CHANDRA SWAMI S/O. NANU, MARANGAD NIRAPIL PUTHEN, VEEDU, CHITTUVEETTUMURI, UZHALMALAKKAL, VILLAGE, THIRUVANANTHAPURAM DIST.

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BY ADVS.SRI.SUJITH MATHEW JOSE SRI.R.RAJESH (K)

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RESPONDENT(S):

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STATE OF KERALA BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, (FOR THE CI OF POLICE ARYANADU).

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BY SENIOR PUBLIC PROSECUTOR SRI. C.S. HRITWIK.

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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B. KEMAL PASHA, J.

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Crl. Appeal No. 808 of 2009

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............................................................... Dated this the 29^th day of September, 2016

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J U D G M E N T

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The appellant stands convicted by the Additional Sessions Judge (Adhoc-IV), Thiruvananthapuram under Section 304 Part II of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and to pay a fine of ₹5,000/-, in default, to undergo rigorous imprisonment for six more months.

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The factual matrix of the prosecution case can be summed up as follows: Deceased Raveendranasary was residing with his wife PW2 and daughter PW3 at Cherappally Anakkara Thadatharikathu Veedu in Aryanadu Village. The second accused was the tapping worker employed by Raveendranasary. PW2 had been frequently suffering from chest pain and she wanted to get a recovery

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from it. A2 introduced the appellant to Raveendranasary and PW2 and represented that the appellant was having

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some special skill and know-how in curing incurable diseases. The appellant undertook the responsibility to treat PW2 and Raveendranasary and family by stating that they were suffering from various illness on account of evilness which happened to be administered to them by somebody.

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As directed by the appellant, the deceased along with PW2 and PW3 reached the house of the appellant in Uzhamalakkal Village by about 6 a.m. on 25.10.2002. Thereafter, the appellant administered a leafy paste to PW2 at about 10 a.m. by representing that it was a medicine. The same material was administered to the deceased also. On consumption of the said leafy paste, PW2 as well as the deceased developed utter discomfort. There occurred severe vomiting and diarrhoea to PW2, and consequently she became very weak and fell down. The deceased did not vomit, but he also suffered severe diarrhoea. By the evening the appellant along with the 2^nd accused took PW2 and PW3 to their house by a car. The appellant detained

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the deceased at his house by representing that the deceased did not vomit and he should vomit in order to get rid of the evilness from his body, for which further administration of the very same material earlier administered was required, and that he would do during night.

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The prosecution case is that during that night the appellant forcibly administered the very same leafy paste to the deceased, whereby it entered the respiratory track of the deceased and also on account of the aspiration of stomach contents, the deceased died around 4 a.m. on 26.10.2002. The appellant took the deceased to the Taluk Hospital, Nedumangad at 4 a.m. on 26.10.2002 and it was revealed that he was brought dead at the hospital.

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The crime was registered on the basis of Ext.P1 First Information Statement furnished by PW1 before PW18, the then Sub Inspector of Police, Aryanad. On the basis of Ext.P1, PW18 registered the crime through Ext.P1(a) FIR. PW20, Circle Inspector of Police, Aryanad, took over the

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investigation. Since an offence under Section 302 IPC was revealed, he placed the appellant under arrest at 10 a.m. on 31.10.2002 and the 2^nd accused at 10.30 a.m. on 31.10.2002 through Exts.P15 and P15(a) arrest memos respectively.

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On the basis of Ext.P7(a) information allegedly furnished by the appellant, PW20 seized MO26 steel tumbler from the kitchen of the house of the appellant through Ext.P7 mahazar. On the basis of Ext.P7(a) information itself, and as led by the appellant, PW20 reached the paddy field at Valikonam and plucked and seized the plant concerned from which the leafy paste was allegedly prepared, through Ext.P8 mahazar. The said plant was sent to pharmacognosy Unit, Poojappura for examination and he obtained Ext.P19 report. MOs.1 to 25 clothes and other belongings of the deceased which were recovered and seized by PW18 from the house of the appellant were seized by PW20 through Ext.P9 mahazar.

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PW19, who was the successor in office to PW20, continued the investigation, completed it, and filed the final report.

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On the side of the prosecution, PWs.1 to 20 were

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examined, Exts.P1 to P20 were marked and MOs.1 to 26 were identified. The appellant and the 2^nd accused were examined under Section 313 Cr.P.C.

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In the statement under Section 313 Cr.P.C., the appellant contended as follows:-

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“A person named Vikraman is his neighbour. The deceased and his wife and children frequently used to visit the house of Vikraman. At the house of Vikraman, the deceased vomited and he became weak. The deceased was brought to the appellant by Vikraman, the wife of Vikraman, the mother of the deceased and daughter of the deceased. It was at that time the deceased cried aloud by seeking help by stating that he was going to die. In order to save the life of the deceased, he administered the juice of the leaf of a plant, which is a medicine and after sometime, he directed PW2 and PW3 to go to their house, by stating that the deceased would return after sometime. Before leaving the house of the

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appellant, they made the deceased to lie on a cot at the house of the appellant. After sometime, the deceased complained of increase in chest pain and thereby the appellant went out for procuring a car.

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Initially, PW5 was not prepared to come with the car. When the appellant insisted, PW5 came with the car and the deceased was taken into the car and he was taken to the hospital. There, the deceased was declared dead. After sometime, the Circle Inspector of Police, Nedumangadu and party came over there and he was taken to the police station from where he was taken to Aryanad. He was wrongfully confined for four days and he was produced before court on 31^st .”

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The prosecution and the accused were heard.

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Since no grounds were made out to acquit the accused under Section 232 Cr.P.C., they were called upon to enter on their defence. On the side of the accused, DWs 1 and 2 were examined and Ext.D1 was marked. Again, the prosecution and the accused were heard. The court below acquitted the 2^nd accused. The court below found the 1^st accused, who is the appellant herein, guilty of the offence

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punishable under Section 304 Part II IPC, convicted him thereunder and sentenced him as aforesaid.

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Heard the learned counsel for the appellant and the learned Senior Public Prosecutor.

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Learned counsel for the appellant has argued that the cause of death mentioned in Ext.P13 is not correct and the deceased had, in fact, died on account of heart failure. According to the learned counsel for the appellant, the said aspect is clear from the findings in Ext.P4. It has also been argued that the leafy paste allegedly administered to the appellant was not poisonous and the same was only a medicine. It has been argued that no offence can be made out against the appellant in view of Section 92 IPC. It has also been argued that the aspiration of stomach contents will not cause immediate death. It has been further argued that the incident, even if admitted will not constitute an offence in view of Section 92 IPC.

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Regarding the cause of death, the evidence

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available is the evidence of PW8 Assistant Professor of Forensic Medicine, Medical College, Thiruvananthapuram and Exts.P4, P13 and P13 reports. PW8 conducted the autopsy at 3.35 p.m. on 26.10.2002 and prepared Ext.P4 postmortem certificate. The following antemortem injuries were noted in Ext.P4:-

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“1. Superficial crescentic lacerated wound 1 x 0.3 cm on the inner aspect of lower lip, 1 cm to the right of midline and 1.5 cm inner to lip margin.

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2. Superficial crescentic lacerated wound 0.4 x 0.3 cm, 02 cm outer to injury No.(1) in the same line.

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3. Superficial lacerated wound 1.5 cm long vertical on the inner aspect of right side of lower lip, 2.3 cm inner to the angle of mouth.

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4. Superficial crescentic lacerated wound 0.3 x0.2 cm on the inner aspect of right side of lower lip 1.3 cm inner to the angle of mouth.

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5. Superficial lacerated wound 2 x 0.3 cm on the right lower gum margin 3 cm outer to midline.

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6. Superficial lacerated wound 1.5 cm long linear to 0.5 cm on the lower part of upper lip. 0.5 cm above the angle of mouth.

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7. Superficial lacerated wound 0.5 x 0.2 cm on the left lower gum margin, 3.5 cm outer to midline.

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8. Superficial lacerated wound 1 x 0.5 cm on the inner aspect of left side of lower lip 1 cm inner to the left angle of mouth.

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9. Crescent lacerated wound 0.3 x 0.2 cm on the left side of inner aspect of lower lip, 2 cm inner to the left angle of mouth.

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10. Abrasion 1.5 cm long linear and vertical on the left side of face its lower and 5.5 cm outer to midline and 3 cm above the angle of mouth.

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11. Abrasion 0.3 x 0.2 cm on the front of neck 1.5 cm to the right of midline and 8.5 cm below jawbone.

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Flap dissection of neck was done under bleedless field. The subcutaneous tissue and deeper structures appeared normal.

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12. Abrasion 0.8 x 0.8 cm on the outer aspect of right elbow.

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13. Abrasion 0.5 x 0.5 cm on the top of left feet 6.5 cm in front of ankle.”

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The further findings in Ext.P4 are the following:-

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“Injury numbers 12 and 13 were covered with adherent brown scab. Pharynx, larynx, trachea and the bronchial tissue were found stained with

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dark greenish brown paste like material, mucosa showed superficial corrosion. Lungs congested and oedematous and showed areas with dark greenish brown discolouration in the lower part of upper lobe and lower lobes at places suggestive of aspirated faci of stomach contents. Subendocardial haemorrhage present in heart. Left ventricular wall was 2.6 cm in thickness and showed pale areas. Anterior descending branch of the left coronary artery in its proximal 1/3 showed 80% atherometous thickening of the wall narrowing the lumen. Epicardial fat around showed haemorrhage. Artery was intramural in the upper half. Ostia of the right coronary artery was smaller when compared to the remaining part. Crowding of atherematous plaques were seen around the ostia. Aorta showed fatty streaks and atheromatous plaques. Patechial haemorrhages present in the scalp. Brain showed severe congestion and oedema, small bead like atheromatous thickening present in the middle cerebral artery. Oesophagus in the lower part showed superficial corrosion. Abdomen distended. Stomach contained firm rice, vegetables and dark greenish brown fluid having

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no unusual smell, mucosa showed superficial corrosion. Loops of intestine hyperaemic and distended. Lumen contained fluid similar to that in stomach. Small intestine contained firm rice also. Liver showed early fatty change. Perirenal fat showed thickening. Kidneys were flabby with distinct certicomedullary demarcation and streaks of cortical haemorrhages. Renal capsule was found adherent at places. Pancreas pale and showed a cooked appearance. Urinary bladder was empty, its mucosa was normal. All other internal organs were congested otherwise normal.

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Viscera and sample of blood collected and sent for chemical analysis.”

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In Ext.P4, PW8 has reserved the opinion as to

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cause of death pending the report of laboratory investigation. On getting the report of the examination of viscera and contents, PW8 furnished Ext.P13 final postmortem certificate. According to her, the laboratory findings revealed no poison in the viscera and blood. The histopathological examination of tissue bits showed normal histology in heart and brain, fatty change and periportal

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inflammation in liver, congestion of lung and splean and acute tubular necrosis and focal inflammation of kidney were found. According to PW8, the death was due to aspiration of stomach contents. According to PW8, injury Nos. 1 to 11 were possible due to the application of force to make a person to open his mouth.

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Even though the learned counsel for the appellant has canvassed an argument that the death of the deceased was due to heart failure, no such questions were put to PW8 when she was subjected to cross-examination. Not even a suggestion was put to PW8 as to whether the death had occurred in this case on account of heart failure. In cross-examination, the opinion furnished by PW8 in Ext.P13 as to the cause of death has not been challenged. Presently, from the evidence of PW8 and from the contents of Ext.P4 and Ext.P13, there is nothing to show that the death of the deceased was due to heart failure. Matters being so, the present argument forwarded by the learned

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counsel for the appellant regarding the cause of death of the deceased cannot be accepted.

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It is evident from the contents of Ext.P4 that the

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pharynx, larynx, trachea and the bronchial tissue were found stained with dark greenish brown paste like material. Even lungs contained such materials, in the lower part of upper lobe and lower lobes at places, suggestive of aspirated foci of stomach contents. Stomach contained firm rice, vegetables and dark greenish brown fluid. When dark greenish brown fluid was found in the stomach, the finding in Ext.P4 postmortem certificate regarding the presence of dark greenish brown discolouration in the lower part of upper lobe and lower lobes of the lungs is suggestive of aspirated foci of stomach contents. Matters being so, there is absolutely nothing to disbelieve the versions of PW8 and the contents of Exts.P4 and P13 regarding the cause of death. It stands proved that the death of the deceased was due to aspiration of stomach contents.

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Ext.P19 is a report from the Senior Research Officer (Botany), Pharmacognosy Unit, Ayurveda Research Institute, Poojappura, Thiruvananthapuram, regarding the plant in question, which was collected through Ext.P8 mahazar on the basis of Ext.P7(a) disclosure statement by the appellant. The Botanical name of the plant was identified as “Lindernia crustacea or Vandellia Crustacea Benth”. According to Ext.P19, the said plant is reported to contain a bitter principle. Along with Ext.P19, the other details of the plant obtained from the Wealth of India, a CSIR Publication, is also attached. The same shows that the plant is reported to contain a bitter principle. The same further shows that the plant is used mainly for external applications for boils, sores, ringworm attack and itches.

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The learned counsel for the appellant has produced the literature on the plant, which shows that the decoction of its root can be used for curing ulcers, leprosy, epilepsy, diarrhea, insanity, etc.

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In this particular case, PW2 or PW3 has no case that the deceased was suffering from any illness. According to them, it was by representing that the deceased was suffering from illness on account of evilness, the appellant had administered the leafy paste to the deceased. The appellant has no case that he was a qualified medical practitioner. The appellant has no case that he was a qualified practitioner in herbal medicines also. The evidence clearly suggests that the appellant was practising in witchcraft and similar practices. The evidence of PW2 and PW3 clearly point out the said aspects.

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There is absolutely nothing to disbelieve the evidence of PW2 because of the fact that she was also a sufferer, to whom also the very same leafy paste was administered by the appellant. According to PW2, at first, the leafy paste was administered to her. Immediately, she developed utter vomiting and diarrhea. She became weak and she was made to lie on a mat at the house of the

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appellant. Thereafter, the very same leafy paste was administered to the deceased. The deceased did not vomit; whereas, the deceased also suffered utter diarrhea. From the evidence of PWs.2 and 3, it has clearly come out that PWs.2 and 3 were sent back to their house by the appellant by a car and the deceased was detained at the house of the appellant. From the consistent versions of PWs.2 and 3, it has come out that the appellant wanted to administer more leafy paste to the deceased since the deceased did not vomit. By representing that the appellant wanted to administer more leafy paste to the deceased for making him to vomit, the appellant detained the deceased at his house. There is absolutely nothing to disbelieve the versions of PWs.2 and 3.

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The evidence of PWs.9, 10 and 16 have got relevance. PW9 has deposed that on 25^th morning at 6.30 a.m., he could see the deceased along with PWs.2 and 3 was going to the house of the appellant. During night, by

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about 9.30 p.m., he could hear the loud cries from the house of the appellant, seeking help and by shouting that he was going to be killed. The evidence of PW10 shows that by about 10 p.m., he could hear loud cries from the house of the appellant, seeking help. The evidence of PW16 shows that she could see a man along with a woman and a girl going to the house of the appellant in the morning and in the evening, she could see the appellant taking the woman and the girl to the road. Around 8 p.m., she could hear the loud cries of a man from the house of the appellant. It is true that there are minor variations in the wordings in the cries mentioned by PWs.9, 10 and 16. At the same time, it is evident that they could hear loud cries of a man from the house. Further, it has come out from their evidence that the deceased along with PWs.2 and 3 came to the house of the appellant in the morning. By 6 p.m., PWs.2 and 3 went away from there. Therefore, the fact that the deceased remained in the house of the appellant has clearly come out.

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The evidence of PWs.9, 10 and 16, therefore, clearly corroborate the evidence of PWs.2 and 3.

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The contents of Ext.P4 further corroborate the

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evidence of PWs.9, 10 and 16. It makes clear as to why loud cries were heard from the house of the appellant. A series of crescentic lacerated wounds were seen around the mouth, lips etc. of the deceased. The said ante-mortem injuries of crescentic shape are clearly suggestive of force administered on the mouth of the deceased for administering the leafy pasty material to him. The crescentic shaped wounds are nothing; but nail marks. Further, injuries were there on the lower gum also. The series of such antemortem injuries found on the face, mouth, lips, gum etc. of the deceased are clearly suggestive of force administered for administering the leafy pasty material into the mouth of the deceased. The deceased was crying for help and his cries clearly revealed that he was reluctant to take the leafy pasty material and he did not want to gulp it. When the

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deceased refused to consume the said leafy pasty material, the same was forcibly administered to the deceased. Merely because it was forcibly administered, it aspirated along with the stomach contents, which directly resulted into the death of the deceased.

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Even though the learned counsel for the appellant has argued that any knowledge within the meaning of Section 299 IPC cannot be attributed to the appellant in the incident, the said argument is devoid of merits. It is only common knowledge that forcible application of such leafy pasty material without the consent of the person, to whom, it is administered, can result in such aspiration. Apart from that, there is nothing to show that the appellant is a successful medical practitioner. The appellant has no case that he is a qualified medical practitioner. The appellant has no case that he is a practitioner in herbal medicines. A person, who was engaged in witchcraft, has administered the leafy pasty material forcibly to the

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deceased, which has directly resulted in the death of the deceased.

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The evidence relied on by the court below is sufficient to invite the offence of culpable homicide in this case. Of course, as rightly found by the court below, the culpable homicide committed by the appellant does not amount to murder. The prosecution has failed to establish intention on the part of the appellant to commit such a culpable homicide. At the same time, it is evident that there was sufficient knowledge on the part of the appellant in committing such culpable homicide. Therefore, all the ingredients required to establish an offence under Section 304 Part II of the IPC have been clearly established in evidence in the case. Much discussion is not required to conclude that the accused is not entitled to the protection of Section 92 IPC in a case like this. There is absolutely nothing to interfere with the conviction entered by the court below.

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Regarding sentence, the learned counsel for the appellant has canvassed for leniency in the question of sentence. Considering the gravity of the matter and the

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narrow margin in which the appellant has escaped from the offence of murder, this Court is of the view that the sentence imposed by the court below is proportionate to the gravity of the matter involved. Therefore, this Court is satisfied that the sentence is also not liable to be interfered with. This appeal is devoid of merits and is only to be dismissed and I do so.

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In the result, this Crl. Appeal is dismissed.

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Sd/- B. KEMAL PASHA, JUDGE.

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ul/aks/stu/-

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// true copy //

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P.S. to Judge.

Chandran @ Chandra Swami v. State of Kerala

Case brief

What is this about?

What did the court decide?

Chandran @ Chandra Swami v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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