“Death of the deceased was occasioned by a combination of Injury No. 1 and 2, and complications arising therefrom including aspiration of blood into the air passages resulting in Anoxic Brain Damage. The same, in the opinion of the doctor (P.W. 64), had occurred due to the fact that the deceased was kept in a supine position for the purpose of sexual assault.”
My Lord, Is the offence under Section 302, IPC made out against the accused so as to make him liable therefor?
Injury No. 1
“The accused was alone… As soon as the train had left Vallathol Nagar Railway Station and moved towards Shornur the accused entered the ladies compartment and assaulted the deceased and, in fact, repeatedly hit her head on the walls of the compartment.”
[The liability of the accused for Injury No.1 would not require a redetermination.]
Injury No. 2
“P.W.4 and P.W.40 were traveling in the general compartment which was attached just in front of the ladies compartment. According to both the witnesses, they heard the sounds of a woman crying and wailing coming from the ladies compartment and though P.W. 4 wanted to pull the alarm chain of the train he was dissuaded by a middle-aged man who reported to them that the issue should not be carried any further as the woman had alighted from the train and had made good her escape.
It is the case of the prosecution that the victim was dropped/pushed by the accused from the running train to the track and that the side of her face hit on the crossover of the railway line.”
[Unless the fall from the train can be ascribed to the accused on the basis of the cogent and reliable evidence, meaning thereby, that the accused had pushed the deceased out of the train and the possibility of the deceased herself jumping out of train is ruled out, the liability of the accused for the said injury may not necessary follow. In this regard, the State has has referred to Injury No.1 sustained by the deceased and contended that in view of the impaired mental reflexes that the deceased had at that point of time it may not have been possible for her to take a decision to jump out of the train. While the said proposition need not necessarily be incorrect what cannot also be ignored is the evidence of P.W. 4 and P.W. 40 in this regard which is to the effect that they were told by the middle-aged man, standing at the door of the compartment, that the girl had jumped out of the train and had made good her escape.
The accused cannot be held liable for Injury No. 2.]
Anoxic Brain Damage
“It is the case of the prosecution that the accused appellant also jumped down from the other side of the running train and after lifting the victim to another place by the side of the track he sexually assaulted her.“
[The intention of the accused in keeping the deceased in a supine position, according to P.W. 64, was for the purposes of the sexual assault. The requisite knowledge that in the circumstances such an act may cause death, also, cannot be attributed to the accused, inasmuch as, the evidence of P.W. 64 itself is to the effect that such knowledge and information is, in fact, parted with in the course of training of medical and para-medical staff.
The fact that the deceased survived for a couple of days after the incident and eventually died in hospital would also clearly militate against any intention of the accused to cause death by the act of keeping the deceased in a supine position]
– Hon’ble Justice Ranjan Gogoi, Govindaswamy v. State of Kerala, [Criminal Appeal Nos. 1584-1585 of 2014].
Injury No. 1 was inflicted by the accused. Injury No. 2 was caused for the want of an ‘escape’ from the accused. The accused raping the deceased thereafter, knowing that the deceased has suffered injuries, is surely an act done with the ‘intention of causing bodily injury‘. Since the deceased died a few days after, death was always a ‘probable result‘ and it arrived in the ‘ordinary course of nature‘.
To second-guess Hon’ble Justice Ranjan Gogoi, however, would be a mistake. I have no doubt that Govindaswamy was argued ineptly before the Courts below. There was a want of material. Gogoi J. has artistically left out several issues unaddressed, for such is not the prerogative of the Highest Court. Emotions aside, Former Justice Markandey Katju’s call for a Review cannot be ignored.