Dismissed

Shajitha, v. State of Kerala

Kerala HC7 Feb 2024CRL.A/1176/2019

Case brief

AI extract

What is this about?

A woman convicted for pouring formic acid over her sister-in-law's head, causing fatal burns, appealed against her life sentence for murder and convictions for acid attack and cruelty. The High Court found the causal chain between injury and death proximate, rejected an insanity plea, upheld all convictions and dismissed the appeal.

What the court decided

AI extract

Shajitha, Vs State of Kerala — Dowry and Cruelty | Kerala HC (2024)

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Crl. Appeal No. 1176/2019

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

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THE HONOURABLE MR. JUSTICE JOHNSON JOHN WEDNESDAY, THE 7^TH DAY OF FEBRUARY 2024 / 18TH MAGHA, 1945 CRL.A NO. 1176 OF 2019

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CRIME NO.2412/2016 OF Kothamangalam Police Station, Ernakulam CP 16/2017 OF JUDL. MAGISTRATE OF FIRST CLASS-I, KOTHAMANGALAM AGAINST THE JUDGMENT DATED 30.08.2019 IN SC 810/2017 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT, ERNAKULAM

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APPELLANT/ACCUSED:

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SHAJITHA, AGED 35 YEARS

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D/O.MOOSA, CHULLIKKATTU VEEDU, KUTTILANJI KARA, ERAMALLUR VILLAGE, NOW UNDERGOING IMPRISONMENT IN WOMEN’S PRISON AND CORRECTIONAL HOME, VIYOOR, THRISSUR DISTRICT, PIN -680 910.

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BY ADV MANJU ANTONEY

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RESPONDENT/PROSECUTION/STATE:

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STATE OF KERALA,

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REPRESENTED BY CIRCLE INSPECTOR OF POLICE, KOTHAMANGALAM POLICE STATION (CRIME NO.2412/2016 OF KOTHAMANGALAM POLICE STATION) THROUGH PUBLIC PROSECUTION HIGH COURT OF KERALA, ERNAKULAM, PIN – 682 031.

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BY ADV SMT.AMBIKA DEVI S, SPECIAL PUBLIC PROSECUTOR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.01.2024, THE COURT ON 07.02.2024 DELIVERED THE FOLLOWING:

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P.B. SURESH KUMAR & JOHNSON JOHN, JJ.

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Dated this the 7^th day of February, 2024.

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JUDGMENT

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Johnson John, J .

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The accused in S.C. No. 810 of 2017 on the file of the Additional District and Sessions Judge, Ernakulam filed this appeal under Section 374(2) of Cr.P.C., challenging the conviction and the sentence passed against her for the offences punishable under Sections 302 326A and 498A of IPC as per the impugned judgment dated 30.08.2019.

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The prosecution case is that the accused is the sister of the husband of the deceased Nissamol. The husband of the deceased was suffering from cancer and for availing treatment from RCC, Thiruvananthapuram, the deceased and her husband reached the family house of the husband of the deceased in Nellikuzhi Grama Panchayat on 30.09.2016 and at that time, the accused was also residing there. Because of previous enmity and suspicion that the deceased and her husband came to the family house to continue their residence there and with the intention to commit murder, the accused poured formic acid

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from a plastic bucket through the head of the deceased at about 6.15 a.m. on 01.10.2016 while the deceased was sitting in the front verandah of the family house and the deceased sustained severe burn injuries on her head and various parts of the body and she succumbed to her injuries on 05.12.2016 while undergoing treatment in Jubilee Mission Medical College Hospital, Thrissur and the accused is thereby, alleged to have committed the offences as aforesaid.

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On the basis of Exhibit P1, First Information Statement of PW2 recorded by PW14, ASI of Kothamangalam Police Station, Exhibit P16 FIR was registered by PW16, Sub Inspector of Kothamangalam Police Station, on 03.10.2016. Thereafter, PW17, Circle Inspector of Kothamangalam Police Station, conducted the investigation and filed the final report before the Judicial First Class Magistrate-I Kothamangalam and after committal, when the accused was produced before the trial court, originally charge was framed for the offences under Sections 498A, 326A and 304 of IPC and during the course of trial, the charge under Section 304 IPC was altered to Section 302 IPC on 17.07.2019.

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From the side of the prosecution, PWs 1 to 18 were examined and Exhibits P1 to P21 and MOs 1 and 2 series were marked to prove the charge against the accused. Since it is found that the accused is not entitled for an acquittal under Section 232 Cr.P.C., she was called upon

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to enter on her defence. From the side of the accused, DW1 was examined and Exhibit D1 was marked.

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After hearing both sides and considering the oral and documentary evidence on record, the learned Additional Sessions Judge, by the impugned judgment dated 30.08.2019, convicted the accused and sentenced her to undergo imprisonment for life and to pay a fine of Rs. 10,000/- and in default of payment of fine, to undergo rigorous imprisonment for a further period of one year for the offence under Section 302 IPC; rigorous imprisonment for ten years and to pay a fine of Rs.10,000/- and in default of payment of fine, to undergo rigorous imprisonment for a further period of one year for the offence under Section 326A IPC; and simple imprisonment for 3 years and to pay a fine of Rs.1000/- and in default of payment of fine, to undergo simple imprisonment for a further period of 3 months for the offence under Section 498A of IPC.

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Heard Smt. Manju Antoney, the learned counsel for the appellant and the learned Special Public Prosecutor Smt. S. Ambika Devi, and perused the records.

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The point that arises for consideration in this appeal is whether the conviction entered and the sentence passed against the accused is legally sustainable.

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The learned counsel for the appellant argued that there has been a time gap of about 2 months between the alleged date of incident and the date of death of the deceased and that the evidence of PW9 would show that the death was due to 50% massive burns and the consequent septicemia, and that to sustain a conviction under Section 302 IPC, the prosecution has to prove that septicemia developed only because of the injury sustained by the deceased in the incident and in the absence of any such evidence on the side of the prosecution, a conviction under Section 302 IPC is not sustainable.

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It is also argued that in the final report filed after investigation and in the original charge framed by the court, only the offences under Sections 304, 326A, and 498A IPC are alleged and the court below framed the altered charge for the offence under Section 302 IPC without sufficient materials and there is sufficient evidence to indicate that the accused is a mental patient entitled for the protection under Section 84 of IPC

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The learned Special Public Prosecutor argued that the prosecution has adduced convincing evidence to prove that the accused purchased formic acid used as the weapon of offence on 27.09.2016 and that she poured formic acid through the head of the deceased around 6.15 a.m., on 01.10.2016, and that she committed the act after pre-

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meditation and with the intention to murder her sister-in-law because of previous enmity and there is no reliable material to show that the accused is entitled to the protection under Section 84 of IPC.

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The elder brother of the husband of the deceased is examined as PW3 and he deposed that the accused is her sister. He deposed that in connection with the treatment of his brother Haneefa and for collecting funds from the MLA, the deceased along with her husband came to the tharavadu house and at that time, he was also there in the tharavadu house. On the next day morning, he woke up on hearing the wailing of the deceased Nissamol and he saw Nissamol sitting under a water tap. According to PW3, along with others, he also poured water on her body and at that time, the accused Shajitha was also there. There was a smell of acid on the body of Nissamol and subsequently, they took the injured to Baselios Hospital, Kothamangalam and from there, she was taken to Little Flower Hospital, Angamaly and thereafter, to Jubilee Mission Hospital, Thrissur and while undergoing treatment, she succumbed to her injuries.

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PW1 is a neighbour of the accused and he deposed that the incident occurred at about 6.15 a.m., on 01.10.2016. According to PW1, when his wife informed him that she heard a hue and cry in the house of the accused, he immediately rushed to that house and he saw the

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husband of the deceased bringing the deceased to the road and at that time, the deceased Nissamol was wearing only the pant of the churidar and her body was covered with a cloth. PW1 stated that Nissamol told him that the accused Shajitha had poured acid on her body and immediately he took the injured in his car to Baselios Hospital, Kothamangalam.

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The evidence of PW1 shows that he borrowed a nighty from a nearby house and gave the same to Nissamol and while driving the vehicle, his eyes were burning due to the fume of the acid from the body of the injured. According to PW1, Nissamol and her husband told him that while Nissamol was sitting in front of the house, the accused Shajitha, who came from behind, poured acid over the head of Nissamol. PW1 also stated that the husband of Nissamol recently died due to blood cancer. The evidence of PW1 shows that the injured Nissamol was taken to Little Flower Hospital, Angamaly and from there to Jubilee Medical College Hospital, Thrissur and while undergoing treatment there, she died on 05.12.2016.

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The father of the deceased Nissamol is examined as PW2. PW2 deposed that the deceased Nissamol is his third daughter and she was married to Haneefa and that the accused herein is the sister of the husband of his daughter Nissamol. According to PW2, in connection with the treatment of the husband of the deceased for cancer, they came to

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the family house of her husband at Kuttilanji and on the next day, when he reached there to meet Haneefa, he got the information that his daughter is taken to hospital for treatment. PW2 stated that the mother of the accused told him that the accused after milking the cow in the morning entrusted the milk in a vessel for delivery to the mother and at that time, the mother of the accused was not aware regarding the intention of the accused. PW2 identified his signature in Exhibit P1 First Information Statement and according to PW2, when he reached the family house of his son-in-law, immediately after the occurrence, he did not see the accused there.

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PW4 was working as Salesman-cum-Attender in the Cooperative Marketing Society at Kothamangalam and he deposed that the accused herein purchased 2½ litres of formic acid from the society on 27.09.2016 and the copy of bill No. 16646 dated 27.09.2016 in this connection is marked as Exhibit P2.

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The Secretary of the Co-operative Marketing Society, Kothamangalam is examined as PW5 and he deposed that PW4 was working in their shop as a salesman and when the police came there to seize the bill book, he received back the same from the police on kaichit and he identified his signature in Exhibit P3 kaichit. The evidence of PW5 shows that he produced the original bill book before the court at the

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time of his examination and he stated that as per bill dated 27.09.2016 bearing No. 16646, it can be seen that 2½ kilograms of acid was sold for Rs.245/- and that Exhibit P2 is the copy of the said estimate. PW5 also identified his signature in Exhibit P4 mahazar prepared by the police.

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PW6 is a witness to Exhibit P5 inquest report and PW7 is a witness to Exhibit P6 scene mahazar. According to PW7, he is residing near the house of the accused and he was present when the police came there for investigation. He also deposed that the police recovered her dress, bucket and plastic can from there and he also identified his signature in Exhibit P7 seizure mahazar of the dress of the deceased and Exhibit P8 seizure mahazar of bucket and can.

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The fact that the accused is the sister of the husband of the deceased is not disputed and from the evidence of PWs 1 to 3, it is proved beyond reasonable doubt that the deceased along with her husband Haneefa reached the family house of Haneefa on the previous day of the occurrence and that the accused and PW3, who are siblings of the husband of the deceased, were also there in the family house at that time. The evidence of PW3 shows that the deceased and Haneefa came to the family house after 10 p.m. on the previous day and even though he was residing 3 km. away from the family house, he decided to stay in

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the family house on that day and the next day morning, he woke up on hearing the wailing of the deceased Nissamol.

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The evidence of PW3 further shows that he felt the smell of acid from the body of Nissamol and to dilute the effect of acid, they poured water on the body of Nissamol and subsequently, took her to the hospital. PW1, the neighbour who took the injured to the hospital, has categorically deposed that because of the fume of acid from the body of Nissamol, he felt a burning sensation in his eyes and therefore, it was difficult for him to drive the vehicle. The evidence of PW1 shows that the husband of the deceased was not alive at the time of trial and that the deceased and her husband had told him that the accused poured acid through the head of the deceased from behind.

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The evidence of PWs 1 to 3 regarding the occurrence is supported by Exhibit P14, dying declaration of the deceased recorded by PW15, Judicial First Class Magistrate-I, Thrissur, on 05.10.2016. The evidence of PW15 shows that he reached Jubilee Mission Hospital, Thrissur around 3 p.m. on 05.10.2016 and at that time, the deceased was fit and conscious and she was admitted in the burns ward, room No. 4613 and he got the victim examined by the doctor and after satisfying that the victim was fit and conscious to give a statement, he recorded the incident as narrated by the victim. The evidence of PW15 shows that

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the statement of the victim regarding the incident tallies with all material particulars in the evidence of PWs 1 to 3.

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According to PW15, the victim told him that at about 6 a.m., while she was sitting in the front verandah, her sister-in-law Shajitha poured something from a bucket over her head and she felt severe burns and at that time, her husband and the brother of her husband were there and she told them that the accused is burning her and she also heard her husband saying that what is poured is acid. The victim also told PW15 that she saw a new can and bucket in the hands of her sister-in-law Shajitha and her sister-in-law did not like the victim and her husband residing together and that while pouring acid, the accused asked the victim whether she came there with her husband to enjoy and if in case she could not do away the victim with the said act, she would kill her and she poured the acid by saying so. The evidence of PW15 and Exhibit P14 shows that Dr. Naveen Isaac has certified in Exhibit P14 that the patient is and was conscious during the period of taking the statement.

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Even though PW15 was seriously cross examined, nothing material was brought out to discredit his evidence in chief examination regarding the competence of the victim to give the statement and there

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is nothing to indicate any illegality in the procedure adopted by PW15, while recording the dying declaration of the victim.

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It is well settled that under Section 32 of the Indian Evidence Act, 1872, statements, written or verbal of relevant facts made by a person who is dead as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death is relevant and admissible in a case in which the cause of that person’s death comes into question. It is clear from the evidence of PW15 and Exhibit P14 that the victim, in a fit and conscious state of mind, made the said declaration voluntarily and truthfully and therefore, we find no impediment in relying on such a declaration.

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PW13 was the Associate Professor of Forensic Medicine at Government Medical College Hospital, Ernakulam, who conducted the postmortem examination and issued Exhibit P13 postmortem certificate. The evidence of PW13 and Exhibit P13 shows the following ante-mortem injuries :

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“1. Healing burns over an area 25 x 22 cm, involving the left half of face, right half of forehead, a part of cheek (9x5 cm) front of chin and under chin area (8x6.5 cm). The edges of the burns showed effect of splash in an irregular fashion. There was crusting of the forehead region around the hair line and along the left angle of jaw. The pinna of left ear showed a raw surface with a

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reddish discoloration. Skin grafting was seen done over an area 11 x 8.5 cm around left ear. Surgical staples and gauze dressing were seen in-situ. Part of the injury was in an infected state.

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Healing burns over an area 53 x 22 cm, involving the middle of front of chest and abdomen, with its lower extent at a point 7 cm above the public symphysis. The injury was almost in a vertical fashion and was seen extending 10 to 12 cm on either side of midline. The lateral (outer and lower) extent of wound showed dribble marks. Skin grafting was seen done over the injury which was in a healing state.

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Burns involving the whole of left upper limb except a patchy linear vertical strip 26 x 4.2 cm, extending over the inner aspect of left arm, lower 1/3 of forearm and whole of the hand. Skin grafting was seen done over the area with surgical staples at places. Base of the wound showed dark reddish discoloration and had an unhealthy appearance.

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Burns involving the whole of left outer aspect of trunk, left half of back of trunk and a linear vertical patchy area of involvement 35 x 6.5 cm over the right half of back of trunk just outer to midline. Skin grafting was seen done over the 2/3 of the area of burns with surgical staples in-situ. The base of wound had a reddish and unhealthy appearance in most of the areas. Crust formation was noted at places over the wound.

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Burns over an area 10 x 5.5 cm (having a splash pattern) on outer aspect of right arm 8 cm below tip of shoulder.

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Burns over an area 35 x 4.5 cm involving the back and inner aspect of right elbow and forearm with dribble marks along the lower edge.

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Healed skin graft site 23 x 42 cm in a circumferential manner over the middle of right thigh with its upper extent 11 cm below prominence of hip bone. (Surgical wound).

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Healed skin graft site 21 x 42 cm in a circumferential manner over the middle of left thigh with its upper extent 15 cm below prominence of hip bone. (Surgical wound).”

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According to PW13, postmortem findings were consistent with death due to the complications of burns involving about 34% of the body surface. He also testified that the pattern of the burns was mainly involving the left half of the face, forehead, left arm region, front of chest, abdomen, back and inner aspect of right elbow and forearm. He also stated that these injuries are sufficient in the ordinary course of nature to cause death. In cross examination, PW13 stated that burns covering 30% or more of the body are considered fatal according to Indian standards and since the head is involved in this case, the chance of survival is less. He also opined that even if the burns are only 10% of the body, if the head is involved, that is considered fatal.

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PW8 was the Chief Medical Officer of Jubilee Mission Hospital, Thrissur on 05.12.2016 and he deposed that Nissa Haneefa was

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admitted on 01.10.2016 and she expired on 05.12.2016 at 3.30 a.m. Exhibit P9 is the certificate issued by PW8 in this regard.

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PW9 was working as a Plastic Surgeon in Jubilee Mission Hospital and his evidence shows that he treated Nissa Haneefa (the deceased), who was brought with 50% third-degree acid burns. He stated that she was treated there for 2 months and 4 days. Exhibit P10 is the death intimation issued by PW9 to the police. The treatment records of the deceased are marked as Exhibit P15 series. The evidence of PW9 and Exhibit P15 series shows that the deceased was seen by all the specialists and she had burns more over the left side of the face, more on the left part of the trunk and upper limb.

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PW9 also opined that probably the acid was poured from the left side and at the time of sustaining these burns, she might be in the lower position. PW9 also testified that the acid burns sustained by the patient were sufficient in the ordinary course of nature to cause death and that all treatments were given to the patient as per the medical protocol. According to PW9, the death was due to 50% massive burns and the consequent septicemia.

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The learned counsel for the appellant argued that the court below altered the charge originally framed for the offence under Section 304 IPC to Section 302 IPC on 17.07.2019 without sufficient materials.

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But, it can be seen from the proceedings of the trial court that the charge was altered after the examination of all the material witnesses and that opportunity was given to the prosecution and the defence for tendering additional evidence. It cannot be disputed that Section 216 Cr.P.C empowers the trial court to add or alter the charge at any time before the judgment is pronounced. In the absence of any material to show that any prejudice is caused to the accused, we find that the contention of the appellant in this regard is not legally sustainable.

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In State of Andra Pradesh v. Rayavarpu Punnayya {AIR 1977 SC 45} it was held as follows:-

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“When the Court is confronted with the question whether the offence is “murder” or “culpable homicide not amounting to murder”, the problem is to be approached in three stages. The question to be considered at first stage is whether the accused has done an act by doing which he has caused the death of another person. Proof of such causal connection between the act of the accused and the death leads to the 2nd stage for consideration whether that act of the accused amounts to “culpable homicide” as defined in section 299. If the answer of this question is prima facie found in the affirmative the stage is reached for considering the operation of section 300, I.P.C. This is the stage at which the Court should determine whether the acts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of “murder” contained in section 300. If the answer to this question is in the negative the offence

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would be culpable homicide not amounting to murder punishable under the first or the 2nd part of section 304, depending respectively on whether the 2nd or the 3rd clause of section 299 is applicable. If the question is found to be positive, but comes within any of the exceptions enumerated in section 300, the offence would still be culpable homicide not amounting to murder punishable under the first part of section 304. But sometimes the facts are so intertwined and the 2nd and 3rd stages are so telescoped into each other that it may not be convenient to give a separate treatment to the matters involved in the 2^nd and the 3^rd stages.”

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On the basis of the evidence of PW9 that the death was due to 50% massive burns and the consequent septicemia, the learned counsel for the appellant argued that the prosecution ought to have proved that septicemia developed only because of the injury sustained on the incident and that there is no satisfactory evidence to prove the said fact. It is also pointed out that from the evidence of PW9, it can be seen that the patient was treated in the hospital for two months and four days and she expired only on 05.12.2016.

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In State of Kerala v Narayanankutty [1980 KLT 908], it was held in paragraphs 13 and 14 as follows:

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13 . An act is said to cause death when death results from the act itself or from some consequences necessarily or naturally flowing from the act, and reasonably contemplated as its result. Where without the intervention of any considerable change of

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circumstances death is connected with the act of violence by a chain of causes and effects, death must be regarded as the proximate and not too remote a consequence of the act. The cause must not only be the causa sine qua non, but it must also be a cause reasonably proximate; but the doctrine of criminal causation has reasonable limits.

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14 . An injury may lead to death. Death may be instantaneous or may be delayed. The injury may lead to shock, excessive bleeding, coma, syncope etc. and cause death; in such a case injury and death have a clearly perceptible and direct nexus and there will be no difficulty in finding that death is the direct result of injury. The decision may not be so easy in a case where death is caused not directly by the injury itself but due to a complication or development or in a case where death is not instantaneous but is delayed. Where death is delayed or due to a later complication or development, court has to consider the nature of the injury, complication or development and attendant circumstances. If the complication or development is the natural or probable or necessary consequence of the injury and if it is reasonably contemplated as its result, the injury can be said to have caused death. If, on the other hand, the chain of consequences is broken or if there is unexpected complication causing new mischief, the relation of cause and effect is not established or the causal connection is too remote and the injury cannot be said to have caused death. If the original injury itself is of a fatal nature, it makes no difference that death is actually caused by a

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complication naturally flowing from the injury and not the injury itself, since causal connection is proximate.”

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On a careful perusal of Exhibit P15 series--treatment records of the deceased and the evidence of PW9 regarding the nature of the injury sustained by the deceased, we find that the prosecution has succeeded in establishing that septicemia developed as a natural or probable consequence of the acid burn injury sustained by the deceased. Further, the evidence of PW9 clearly shows that the original injury itself is of fatal nature and since the causal connection is proximate, we find that it makes no difference that the death is actually caused by a complication naturally flowing from the injury and not the injury itself and therefore, we find that the contention of the appellant in this regard is not sustainable and the death of the deceased is a homicide.

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The learned counsel for the appellant argued that the accused is entitled for protection under Section 84 IPC, as she was of unsound mind at the time of the alleged occurrence and that it has come out in evidence that the mother of the accused is also suffering from mental illness. However, the learned Special Public Prosecutor pointed out that no reliable evidence is adduced from the side of the accused to prove that the accused was incapable of knowing the nature of the act by reason of unsoundness of mind at the time of doing it and that the

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burden of proving the said fact is on the accused. Section 105 of the Indian Evidence Act, 1872 reads thus:

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“105. Burden of proving that case of accused comes within exceptions .

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When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Indian Penal Code (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.

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Illustrations

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(a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act.

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The burden of proof is on A.

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(b) A, accused of murder, alleges that, by grave and sudden provocation, he was deprived of the power of self-control. The burden of proof is on A.

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(c) Section 325 of the Indian Penal Code, 1960 (45 of 1860) provides that whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be subject to certain punishments.

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A is charged with voluntarily causing grievous hurt under section 325.

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The burden of proving the circumstances bringing the case under section 335 lies on A”

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DW1, Senior Consultant Psychiatrist at Government Mental Health Centre, Thrissur, is examined as DW1. DW1 deposed that the accused was brought from Vanitha jail on 14.02.2019 and after a detailed evaluation and mental status examination, he issued Exhibit D1 certificate stating that the accused has no mental illness and she is fit for trial. The evidence of DW1 further shows that he has observed and examined the accused from 14.02.2019 to 28.02.2019 and in his observation, she has no mental illness. Therefore, we find that the evidence of DW1 and Exhibit D1 will clearly show that the accused has no mental illness. It cannot be disputed that it is for the accused to establish her state of mind at the time of the commission of the offence for seeking the benefit of Section 84 IPC and in the absence of any evidence in this regard we find that the accused is not entitled to the benefit of Section 84 IPC .

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Another argument of the learned counsel for the appellant is that there is no satisfactory evidence to show that the accused committed the act with the intention to cause the death of the deceased and that the acts proved by the prosecution will not bring the case within the ambit of any of the four clauses of the definition of ‘murder’ contained in Section 300 IPC.

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The learned Special Public Prosecutor invited our attention to Exhibit P14, dying declaration of the deceased, and the evidence of PW15, Judicial First Class Magistrate-I, Thrissur, and pointed out that the utterings of the accused when she poured formic acid over the head of the deceased would clearly show that the accused committed the act with the intention to cause the death of the deceased. It is also in evidence that the accused purchased the formic acid from a Co-operative Marketing Society on 27.09.2016.

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Further, it is also in evidence that the accused used to quarrel with the deceased and that the accused did not like the arrival of her brother Haneefa along with the deceased to the family house where the accused is staying and it is in evidence that the deceased and her husband Haneefa resided in the family house previously. In Exhibit P14, dying declaration of the deceased, it is stated that the accused poured acid over her head by saying that if she is not finished by that act, the accused will finish her. Therefore, we find force in the argument of the learned Special Public Prosecutor that the acts proved by the prosecution will bring the case within the first clause of Section 300 IPC. However, it is pertinent to note that the court below has held that the act of the accused comes within the third clause of Section 300 IPC.

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It is well settled that even when the life of the victim could have been saved by giving proper treatment, the case would attract clause thirdly to Section 300 of I.P.C., if the medical evidence clearly indicates that the injuries sustained by the deceased was sufficient to cause death in the ordinary course of nature.

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The 2^nd part of Section 299 I.P.C. shows that if death is caused by doing an act with the intention of causing such bodily injury as is likely to cause death, the offence of culpable homicide is committed. The third clause of Section 300 I.P.C shows that if the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, the offence is murder.

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The intention to cause death is not an essential requirement of Part-II of Section 299 I.P.C. and only the intention of causing bodily injury coupled with the offenders knowledge of the likelihood of such injury causing the death of a particular victim is sufficient.

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The distinction between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death is one of the degree of probability of death resulting from the intended bodily injury. Clause thirdly of Section 300 I.P.C. means that death will be the most probable result of the injury having regard to the ordinary course of nature and a mere possibility is not sufficient as held

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Crl. Appeal No. 1176/2019

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: 24 :

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by the Hon'ble Supreme Court in State of Andra Pradesh v. Rayavarpu Punnayya [AIR 1977 SC 45]. Therefore, we find no

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reason to interfere with the finding of the trial court that the acts proved by the prosecution bring the case within the third clause of Section 300 IPC and the appellant/accused has no case that the act committed will come within any of the exceptions enumerated in Section 300 IPC and therefore, we find that the court below rightly convicted the accused for the offence under Section 302 IPC.

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It is not in dispute that the accused is the sister of the husband of the deceased and the incident occurred in the tharavadu house of the husband of the deceased and in view of the definition of ‘cruelty’ in explanation (a) of Section 498A IPC and the nature of the injury sustained by the deceased, we find that the court below rightly convicted the accused for the offence under Section 498A of IPC. Further, in view of the nature of the injury sustained by the deceased as a consequence of pouring formic acid by the accused over the head of the deceased, we find that the court below has also rightly convicted the accused for the offence under Section 326A of IPC.

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