Morcha Vs. The State of Rajasthan
[1978] INSC 170 (13 September 1978)
SINGH, JASWANT SINGH, JASWANT KAILASAM, P.S.
KOSHAL, A.D.
CITATION: 1979 AIR 80 1979 SCR (1) 744 1979
SCC (1) 161
ACT:
Culpable homicide-Accused causing several
injuries on the person of the deceased, out of which one injury which had
injured the liver and caused the perforation of the larger colon was sufficient
to cause the death in the ordinary course of nature-Medical opinion further was
to the effect "that if immediate expert treatment had been available and
the emergency operation had been performed, there were chances of survival of
the deceased"-Whether it alters the nature of offence from one under
Section 302 I.P.C. to one under Section 304 Part 11 I.P.C.
Penal Code, Sections 299, 300, 302, 304 r/w
Evidence Act, Section 45 and Section 291 Criminal Procedure Code, 1973.
HEADNOTE:
The appellant was charged and tried for the
offence under Section 302 I.P.C. for causing the murder of his wife.
The Sessions Judge though on a consideration
of the evidence led in the case including the direct testimony of Mst.
Jelki(PW 3) and Mst. Modan (PW 8) found that
the appellant attacked his wife. Mst. Gajri with dagger (Ext. I) and caused
injuries on her person out of which injury No. 2 which had injured the liver
and caused the perforation of the large colon was sufficient to cause her death
in the ordinary course of nature, convicted him under Section 304 Part II
I.P.C. and acquitted him of the charge under Section 302 Penal Code, in view of
the fact that Dr. Laxmi Narain (PW 1) who conducted the postmortem examination
of the body of Mst. Gajri had said in the course of his examination that
"if immediate expert treatment had been available and emergency operation
had been performed there were chances of the survival". In State appeal,
the High Court altered the conviction of the appellant from one under Section
304 Part II I.P.C. to that under Section 302 I.P.C. and sentenced him to
imprisonment for life. Hence the appeal under Section 2(a) of the Supreme
Court(Enlargement of Criminal Appellate Jurisdiction) Act (Act 28) 1970.
Dismissing the appeal, the Court
HELD: 1. Explanation 2 to Section 299 of the
Indian Penal Code clearly lays down that where death is caused by bodily injury
the person who causes such bodily injury shall be deemed to have caused the
death, although by resorting to proper remedies and skilful treatment the death
might have been prevented. The mere fact that if immediate expert treatment had
been available and the emergency operation had been performed, there were
chances of survival of the deceased can be of no avail to the appellant. [749H.
759A]
2. The injury in the opinion of the doctor
being sufficient in the ordinary course of nature to cause death of the deceased,
the case squarely fell within the ambit of clause, Thirdly of Section 300
I.P.C. [749G] In the instant case, the appellant appears to have intended to
cause the death of Mst. Gajri otherwise there was no necessity for him to carry
the dagger with him when he went to the village of his in-laws to fetch his
wife.
745 That the appellant intended to cause the
death of the deceased is further clear from the fact that he inflicted a
through and through penetrating wound on the posterior axillary line which seriously
injured the vital organs of the deceased viz. the liver and the large colon
leading to internal haemorrhage and shock. [749F-G] Virsa Singh v. The State of
Punjab,[1958] S.C.R. 1495 and State of Andhra Pradesh v. Rayavarapu Punnayya
and Anr., [1977] 1 S.C.R. 601; reiterated.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 43 of 1972.
From the Judgment and Order dated 11-5-71 of
the Rajasthan High Court in D.B. Criminal Appeal No. 478/67.
Nemo: for the Appellant.
S.M. Jain for the Respondent.
The Judgment of the Court was delivered by
JASWANT SINGH, J. This appeal under section 2(a) of the Supreme Court
(Enlargement of Criminal Appellate Jurisdiction) Act, 1970 (Act 28 of 1970)
raises a short question as to the nature of the offence made out against the
appellant on the basis of the evidence adduced in Sessions Case No. 64 of 1966.
The Sessions Judge, Udaipur, who tried the
appellant found on a consideration of the evidence led in the case including
the direct testimony of Mst. Jelki (P.W. 3) and Mst. Modan (P.W. 8) that the
appellant attacked his wife, Mst. Gajri with dagger (Exh. 1) and caused
injuries on her person out of which injury No. 2 which had injured the liver
and caused the perforation of the large colon was sufficient to cause her death
in the ordinary course of nature. Despite this finding, the Sessions Judge
convicted the appellant under section 304 Part II of the Indian Penal Code and
acquitted him of the charge under section 302 of the Penal Code in view of the
fact that Dr. Laxmi Narain (P.W. 1) who conducted the post mortem examination
of the body of Mst. Gajri had said in the course of his examination that if
immediate expert treatment had been available and emergency operation had been
performed, there were chances of her survival. The Sessions Judge agreeing with
the contention raised on behalf of the defence also found that according to the
case of the prosecution itself, the accused had gone to the village of his
in-laws to fetch Mst. Gajri and it was only on her refusal to accompany him
that the incident took place; that he had no intention to kill Mst. Gajri and
that at best what could be attributed to the appellant was the knowledge that
the injury he was inflicting on the deceased was likely to cause her death.
746 On the matter being taken in appeal by
the State, the High Court found that the Sessions Judge was in error in
acquitting the appellant of the offence under section 302 of the Indian Penal
Code ignoring the evidence to the effect that a penetrating wound 11/2"
X1/2" was caused by the appellant with a dagger on the posterior axillary
line 10" from the top of the shoulder and 5" from the spine which had
caused injury to the liver and perforation of the large colon and was
sufficient to cause death in the ordinary course of nature. Accordingly, the
High Court altered the conviction of the appellant from the one under section
304 Part II of the Indian Penal Code to that under section 302 of the Penal
Code and sentenced him to imprisonment for life.
Mr. K.K. Luthra who was appointed as amicus
curiae in the case not having cared to appear despite long and anxious waiting,
we have gone through the entire record with the assistance of counsel for the
respondent. The grounds of appeal submitted by the appellant which are very
inartistically drafted can at best be interpreted to urge only one thing viz.
that the High Court went wrong in upsetting the judgment and order of the
Sessions Judge and convicting the appellant under section 302 of the Indian
Penal Code instead of under section 304 Part II of the Penal Code as ordered by
the Sessions Judge. This contention, in our judgment, is entirely misconceived.
It completely overlooks the circumstances attending the commission of the
offence viz. that the appellant went armed with a dagger and despite the
willingness expressed by Mst. Gajri to accompany him next morning, he inflicted
without the slightest provocation two injuries on her person (1) which landed
on her right palm 3/4" above the second metacarpo phalangeal joint in the
process of warding off the blow and (2) a penetrating wound, as stated above.
The whole affair appears to be pre-planned and pre-meditated and as such the
case squarely falls within the purview of clause thirdly of section 300 of the
Indian Penal Code. We are fortified in this view by two decisions of this Court
viz. Virsa Singh v. The State of Punjab and State of Andhra Pradesh v. Rayavarapu
Punnayya & Anr. In Virsa Singh v. The State of Punjab (supra) where the
accused thrust a spear into the abdomen of the deceased which resulted in his
death and in the opinion of the doctor, the injury was sufficient to cause
death in the ordinary course of nature, it was held that even if the intention
of the accused was limited to the infliction of a bodily injury sufficient to
cause death in the ordinary course of nature and did not extend to the
intention 747 of causing death, the offence would be murder. The following
observations made by this Court in that case are worth quoting:- "If there
is an intention to inflict an injury that is sufficient to cause death in the
ordinary course of nature, then the intention is to kill and in that event,
clause 'thirdly' would be unnecessary because the act would fall under the
first part of the section, namely- "If the act by which the death is
caused is done with the intention of causing death." In our opinion, the
two clauses are disjunctive and separate. The first is subjective to the
offender:
"If it is done with the intention of
causing bodily injury to any person." It must, of course, first be found
that bodily injury was caused and the nature of the injury must be established,
that is to say, whether the injury is on the leg or the arm or the stomach, how
deep it penetrated, whether any vital organs were cut and so forth. These are
purely objective facts and leave no room for interference or deduction: to that
extent the enquiry is objective; but when it comes to the question of
intention, that is subjective to the offender and it must be proved that he had
an intention to cause the bodily injury that is found to be present.
Once that is found, the enquiry shifts to the
next clause- "and the bodily injury intended to be inflicted is sufficient
in the ordinary course of nature to cause death." The first part of this
is descriptive of the earlier part of the section, namely, the infliction of
bodily injury with the intention to inflict it, that is to say, if the
circumstances justify an inference that a man's intention was only to inflict a
blow on the lower part of the leg, or some lesser blow, and it can be shown
that the blow landed in the region of the heart by accident, then, though an
injury to the heart is shown to be present, the intention to inflict an injury
in that region, or of that nature, is not proved. In that case, the first part
of the clause does not come into play. But once it is proved that there was an
intention to inflict the injury that is found to be present, then the earlier
part of the clause we are now examining- 748 "and the bodily injury intended
to be inflicted" is merely descriptive. All it means is that it is not
enough to prove that the injury found to be present is sufficient to cause
death in the ordinary course of nature; it must in addition be shown that the
injury is of the kind that falls within the earlier clause, namely, that the
injury found to be present was the injury that was intended to be inflicted.
Whether it was sufficient to cause death in the ordinary course of nature is a
matter of inference or deduction from the proved facts about the nature of the
injury and has nothing to do with the question of intention.
In considering whether the intention was to
inflict the injury found to have been inflicted, the enquiry necessarily
proceeds on broad lines as, for example, whether there was an intention to
strike at a vital or a dangerous spot, and whether with sufficient force to
cause the kind of injury found to have been inflicted. It is, of course, not
necessary to enquire into every last detail as, for instance, whether the
prisoner intended to have the bowels fall out, or whether he intended to
penetrate the liver or the kidneys or the heart. Otherwise, a man who has no
knowledge of anatomy could never be convicted, for if he does not know that
there is a heart or a kidney or bowels, he cannot be said to have intended to
injure them. Of course, that is not the kind of enquiry. It is broad based and
simple and based on commonsense: the kind of enquiry that "twelve good men
are true" could readily appreciate and understand.
To put it shortly, the prosecution must prove
the following facts before it can bring a case under s. 300,
"thirdly";
First, it must establish, quite objectively,
that a bodily injury is present;
Secondly, the nature of the injury must be
proved;
These are purely objective investigations.
Thirdly, it must be proved that there was an
intention to inflict that particular bodily injury, that is to say, that it was
not accidental or unintentional, or that some other kind of injury was
intended.
Once these three elements are proved to be
present, the enquiry proceeds further and, 749 fourthly, it must be proved that
the injury of the type just described made up of the three elements set out
above is sufficient to cause death in the ordinary course of nature. This part
of the enquiry is purely objective and inferential and has nothing to do with
the intention of the offender.
Once these four elements are established by
the prosecution (and, of course, the burden is on the prosecution throughout)
the offence is murder under s. 300, thirdly. It does not matter that there was
no intention to cause death. It does not matter that there was no intention
even to cause an injury of a kind that is sufficient to cause death in the
ordinary course of nature (not that there is any real distinction between the
two). It does not even matter that there is no knowledge that an act of that
kind will be likely to cause death. Once the intention to cause the bodily
injury actually found to be present is proved, the rest of the enquiry is
purely objective and the only question is whether, as a matter of purely
objective inference, the injury is sufficient in the ordinary course of nature
to cause death. No one has a licence to run around inflicting injuries that are
sufficient to cause death in the ordinary course of nature and claim that they
are not guilty of murder. If they inflict injuries of that kind, they must face
the consequences; and they can only escape if it can be shown, or reasonably
deduced that the injury was accidental or otherwise unintentional."
Similar view was expressed by this Court in State of Andhra Pradesh v.
Rayavarapu Punnayya & Anr. (Supra).
In the present case, the appellant appears to
have intended to cause the death of Mst. Gajri otherwise there was no necessity
for him to carry the dagger with him when he went to the village of his in-laws
to fetch his wife.
That the appellant intended to cause the
death of the deceased is further clear from the fact that he inflicted a
through and through penetrating wound on the posterior axillary line which
seriously injured the vital organs of the deceased viz. the liver and the large
colon leading to internal haemorrh age and shock. The injury in the opinion of
the doctor being sufficient in the ordinary course of nature to cause the death
of the deceased, the case squarely fell within the ambit of clause thirdly of
section 300 of the Indian Penal Code as held by this Court in the decisions
referred to above.
The mere fact that if immediate expert
treatment had been available and the emergency operation had been performed,
there were chances of survival of the deceased can be of no avail to the
appellant.
750 Explanation 2 to section 299 of the
Indian Penal Code clearly lays down that where death is caused by bodily
injury, the person who causes such bodily injury shall be deemed to have caused
the death, although by resorting to proper remedies and skilful treatment the
death might have been prevented.
For the foregoing reasons, we are of the view
that the Sessions Judge was wholly wrong in convicting the appellant under
section 304 Part II of the Indian Penal Code and acquitting him of the charge
under section 302 of the Penal Code and the High Court was wholly right in
convicting the appellant under section 302 of the Penal Code instead of under
section 304 Part II of the Penal Code.
In the result, we do not find any merit in
this appeal which is dismissed.
S.R. Appeal dismissed.
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