NARAYANAN SATHEESAN @ BABOO versus STATE OF KERALA

Citation: [1978] 1 S.C.R. 577 · Decided: 29-09-1977 · Supreme Court of India · Bench: P.K. GOSWAMI · Disposal: Appeal(s) allowed

Judgment (excerpt)

-
Jf 
NARAYANAN SA THEESAN @ BABOO 
v. 
STATE OF KERALA 
September 29, 1977 
JP. K. GOSWAMI, P. N. SHINGHAL AND JASWANT SINGH, JJ.] 
577 
Murder charge-Conviction by High Court u/s. 302 Penal Code on appeal 
by State against acqliittal under that section but conviction u/s 3261 l.P.C. by 
Sessions-Non-production by the Prosecution or 
non-summoning 
u/.i:. 
311 
Crf.P.C., 1973 by Court, of the doctor' who performed the operation is not fatal 
1-1:~cn corroborated by dying declaration, autopsy report and one of 1lze 
cye-
Wlfnesses-Evidence Act (Act I), 1872, ss. 32(1) ands. 45. 
B 
The appellant, though charged u/s. 302 of the Indian Penal Code for inten-
C 
tionally causing the death of one K. G. Thomas alias Thampi, a well built male 
of 32 years on the night of December 16, 1972, by inflicting a stab injury of 
3X 1 cm. over his Jeft infrascapular area was, however, on a consideration of 
the material adduced before him, acquitted of the said charge and convicted u/s. 
326 and sentenced to 7 years rigorous imprisonment by the Sessions Judge. Both 
the appel1ant and the State appealed against the said orders. The High Court 
accepted the State's appeal, set aside the conviction u/s. 326 and convicted him 
u/s 302 and sentenced him to imprisonment for life. The High Court reseed 
the conviction on the dying declaration (Ex. p. 9) which received ample corro-
D 
boration from the testimony of one of the three eye-witnesses, Pappan (P.W. 5). 
Dismissing the appeal to this court u/s. 2(a) of the Supreme Court (Enlarge-
ment of Criminal Appellate Jurisdiction) (Act 28 of 1970), 1970, the court, 
HELD : (I) Non-production by the prosecution of the doctor who performed 
1.he operation on the deceased is of no avail. 
It is no doubt unfortunate that the 
prosecution has not attempted to examine the doctor who performed the opera-
tion, but this lapse is not sufficient to- downgrade the enormity of 
th~ offence 
committed by the accused. 
[583 C-D, H] 
(2) The High Court has correctly held that the case is clearly covered by 
Explanation (2) to s. 299 of the Indian Penal Code which provides that where 
death is caused by an injury, the person who causes it would be deemed to have 
caused the death although by resorting to proper remedies and skilful treatment, 
the death might have been prevented. 
[583 H, 584 Al 
(3) (a) In the instant case, taking into consideration the deadly character 
of the weapon used, the dastardly assault made by the accused and the 
•1i1al 
organs of the body on which the injury was caused as also the categorical state-
ment of Dr. Jayapalan, P.W. 4, who conducted the autopsy of the dead body of 
the deceased that the injury No. 1 was sufficient in. the ordinary course t:J cauc;;e 
<leath of the deceased, it is clear that. the appellant deliberately caused the fatal 
wound on the person of the deceased. The conviction u/s 302 of the Indian 
Penal Code must be maintained. [584 B·Cl 
(b) It is true that the appellant inflicted only one stab wound oil the deceas-
ed but the facts established in the case, namely, that the appellant did not act 
under any sudden impulse but pursued the deceased after arming himself \Vith a 
dagg~r which is a dangerous weapon in execution of a premeditated p!an moli-
vated by ill feelings nurtured for a ntimber of days and inflicted a severe st1b 
injury on the vital region of the body of the deceac;;ed which perforated not only 
his left lung but also penetrated into and impaired the left ventrical of his heart 
clearly show that the appellant had the intention of causing the death of the 
<leceased and pursuant thereto acted in a manner which brings the offence with-
in the mischief of c:. 302 of the Penal Code. The offence committPd 
bv 
the 
accusPd squarely falls within the ·purview of clause uthirdly" of s. 300 of the 
Indian PPnal Code according to which culpable homicide is murder if the act 
13-9JOSCI/77 
E 
F 
G 
H 
578 
SUPREME COURT REPORTS 
[1978] 1 S.C.R. 
A 
by which the death is caused is done with the intention of causing bodily injury 
to any person and the bodily injury intended to be caused is sufficient 
in 
the 
ordinary course of nature to cause death of the deceased. [583 B-E] 
B 
Gudar Dusadh v. State of Bihm·, A.I.R. 1972 S.C. 952, followed. 
CRIMINAL APPELLATE JURISDICTlON : Criminal Appeal No. 342 
of 1974. 
Appeal under Section 2(a) of the Supreme Court Enlargement of 
Criminal Appellate Jurisdiction Act, 1970 from the Judgment 
and 
Order da

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