Vs. State of Kerala  Insc 445 (24 August 2005)
Singh & S.H. Kapadia
J U D
G M E N T (Arising out of SLP (Crl) No.1540/2005) Delay condoned.
is an unfortunate case in which the appellant has been sentenced to undergo
life imprisonment for committing the offence punishable under Section 302 IPC.
The facts relevant for the disposal of this appeal may be noticed. It is not
disputed that on 22.3.1999 at about 10.30 PM, the accused came home in a drunken state and when his wife (PW-2)
served food, he threw away the food and started quarreling with his wife. In
that process, the daughter (PW-3) of the appellant and his son (deceased) who
were asleep woke up. His son attempted to intervene to save his mother.
appellant is said to have picked up a chopper and inflicted a cut injury on his
son on the back of the left leg below the knee. On an alarm being raised,
several villagers assembled but the appellant prevented them from entering his
house being in an inebriated state. It appears that later his son was taken to
the hospital. The medical evidence discloses that the injury caused his death
on account of excessive bleeding.
view of these facts, the question is whether the appellant is guilty of the
offence punishable under Section 302 IPC.
counsel for the appellant submits that on the basis of the findings of fact
recorded by the courts below, an offence punishable under Section 302 IPC is
not made out and at best the appellant may be guilty of offence punishable
under Section 304 Part II IPC.
for the State submitted that the medical evidence does establish that the death
was the result of the injury caused to the deceased.
the appellant permitted the villagers to intervene and take the injured to the
hospital in time, perhaps his life may have been saved because the medical
evidence indicates that the deceased died of excessive bleeding on account of
damage to a vital artery.
question, therefore, which arises for our consideration is whether the
appellant inflicted the injury with the intention of causing death of the
deceased. Counsel for the State fairly submits that he is not in a position to
submit on the facts of this case that the appellant intended to inflict any
injury to cause the death of his son.
next question is whether the infliction of injury was with the intention of
causing such bodily injury as the appellant knew would likely cause the death
of his son. Here again, the facts disclose that he did not have such an
intention, nor can we find any intention on the part of the appellant of
causing bodily injury sufficient in the ordinary course of nature to cause
are, therefore, of the view that the offence committed is not an offence
punishable under Section 302 IPC. However, it cannot be denied that the offence
would fall under Section 304 IPC because even though the appellant inflicted
injury without the intention of causing death, he knew that the injury caused
with a weapon like a chopper may cause such injury as is likely to cause death.
We, therefore, find that the offence committed by the appellant is one which is
punishable under Section 304 Part II IPC.
regard to the facts and circumstances of the case, we partly allow the appeal
and set aside the judgment and order of the High Court of Kerala at Ernakulam
dt.21.5.2003 in Crl.A.No.204/2001 to the extent that the conviction of the
appellant under Section 302 IPC is set aside and instead the appellant is found
guilty of the offence under Section 304 Part II IPC.
in view the facts and circumstances of the case and the manner in which the
appellant behaved, a deterrent sentence is called for. We accordingly sentence
him to undergo ten years' rigorous imprisonment under Section 304 Part II IPC.
appeal is allowed to the extent indicated above.