Gokul Parashram Patil Vs. State of
Maharashtra [1981] INSC 105 (4 May 1981)
KOSHAL, A.D.
KOSHAL, A.D.
ISLAM, BAHARUL (J)
CITATION: 1981 AIR 1441 1981 SCR (3) 658 1981
SCC (3) 331
ACT:
Conviction under s. 302 Penal Code based on
sole injury on non-vital part-If injury caused by the assailant was not
intended to cause death clause thirdly of s.30 Penal Code will not be attracted
and the conviction and sentence should be under Part II of section 304 Penal
Code.
HEADNOTE:
The appellant attacked one Anta with a knife
giving the latter a single blow above the left clavicle where it caused a
muscle-deep incised wound having the dimensions 1-1/4" x 1/3". The
autopsy surgeon, while certifying the existence of that wound, also found that
the superior venacava had been cut, the damage so caused being sufficient in
the ordinary course of nature to cause death. The sessions court convicted the
appellant of an offence under section 302 of the Penal Code and sentenced him
to imprisonment for life.
The High Court confirmed the conviction and
the sentence in appeal. Hence, the appeal by special leave.
Allowing the appeal in part and substituting
a conviction under Part II of section 304 and sentence of five years' rigorous
imprisonment, the Court.
HELD : 1. To attract clause thirdly of
section 300 of the Penal Code and also illustration (c) appended thereto the
injury in question needs satisfy only two tests-namely, (a) the injury must be
sufficient in the ordinary course of nature to cause death and (b) such injury
must have been intended to have been caused by the culprit. [66 A-B]
2. In the present case, the solitary blow
given by the appellant to the deceased was on the left clavicle a non- vital
part-and the appellant cannot be said to know that the superior venacava would
be cut as a result of that wound.
Even a medical man perhaps may not have been
able to judge the location of the superior venacava with any precision of that
type. The fact that the venacava was cut must, therefore, be ascribed to a
non-intentional or accidental circumstance. Therefore, it cannot by said to
have been intended by the appellant. [660 A-C] Visa Singh v. State of Punjab,
A.I.R. 1958 S.C. 465, referred to.
659 Harjinder Singh v. Delhi Administration,
A.I.R. 1968 S.C. 867 and Laxman Kalu Nikalje v. The State of Maharashtra,
A.I.R. 1968 S.C. 1390, followed.
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 512 of 1981.
Appeal by special leave from the judgment and
order dated the 8th September, 1980 of the Bombay High Court in Criminal Appeal
No. 664 of 1980.
V.N. Ganpule, A.B. Lal and Mrs. V.D. Khanna
for the Petitioner.
O.P. Rana and R.N. Poddar for the Respondent.
The Judgment of the Court was delivered by
KOSHAL, J. The appellant has been convicted of an offence under section 302 of
the Indian Penal Code (hereinafter referred to as the Code) for causing the
death of one Anita, and has been sentenced to imprisonment for life by the
trial court as well as in appeal by the High Court.
2. The case of the prosecution was that the
appellant attacked the deceased with a knife giving the latter a single blow
above the left clavicle where it caused a muscle-deep incised wound having the
dimension 1-1/4" x 1/3". The autopsy surgeon, while certifying the
existence of that wound, also found that the superior venacava had been cut,
the damage so caused being sufficient in the ordinary course of nature to cause
death.
3. The learned counsel for the appellant has
contended that the case does not fall within the ambit of section 302 of the
Code and that the two courts below erred in relying on Virsa Singh v. State of
Punjab. The gist of the dictum of this Court in that case is that if an injury
is held to have been intended by the assailant and is further found to be
sufficient in the ordinary course of nature to cause death, it would attract
clause thirdly of section 300 of the Code and that, therefore, its author would
be liable to punishment under section 302 thereof. The question thus is whether
the 660 particular injury which was found to be sufficient in the ordinary
course of nature to cause death, in the present case, was an injury intended by
the appellant. Our answer to the question is an emphatic no. The solitary blow
given by the appellant to the deceased was on the left clavicle - a non-vital
part - and it would be too much to say that the appellant knew that the
superior venacava would be cut as a result of that wound. Even a medical man
perhaps may not have been able to judge the location of the superior venacava
with any precision of that type. The fact that the venacava was cut must,
therefore, be ascribed to a non- intentional or accidental circumstance. This
was precisely the view taken in Harjinder Singh v. Delhi Administration, by
Sikri, J., and in Laxman Kalu Nikalje v. The State of Maharashtra, by
Hidayatullah, C.J. In the former of these cases, the injury in question was a
stab wound on the left thigh which had cut the femoral artery and vessels. In
the latter, the damage caused consisted of a cut in the auxiliary artery and
veins. In each of the two cases it was held that although the injury which was
found to be sufficient in the ordinary course of nature to cause death had
resulted from a blow with a sharp-edged weapon, the same could not be said to
have been intended, that the only injury which could be regarded as intentional
was the superficial wound resulting directly from the blow, that the assailant
could not be held guilty of an offence under section 302 of the Code and that
he was, on the other hand, guilty of a lesser offence falling under part II of
section 304 thereof.
4. Mr. Rana, learned counsel for the State
has drawn our attention to illustration (c) appended to section 300 of the Code
and has contended on the basis thereof that the culpable act attributed to the
appellant is covered thereby.
The illustration may be extracted :
"(c) A intentionally gives Z a sword-cut
or club-wound sufficient to cause the death of a man in the ordinary course of
nature. Z dies in consequence.
Here A is guilty of murder, although he may
not have intended to cause Z's death'.
661 The proposition propounded by Mr. Rana is
that the illustration, which is obviously relatable to clause thirdly of the
section, postulates that the injury in question need satisfy only two tests to
attract the provisions of that clause and that those tests are:
(i) The injury must by sufficient in the
ordinary course of nature to cause death.
(ii) Such injury must have been intended to
have been caused by the culprit.
There is no quarrel with this proposition but
then the injury which was found to be sufficient in the ordinary course of
nature to cause death in the present case does not satisfy test (ii) because,
as already pointed out, it cannot be said to have been intended by the appellant.
The illustration, therefore, does not advance the cause of the State.
5. Following the dicta in the two earlier
decisions of this Court which have been cited above, we partially accept the
appeal, set aside the conviction of the appellant for an offence under section
302 of the Code and substitute thereof one under part II of section 304
thereof. In consequence he shall suffer rigorous imprisonment for 5 years which
punishment, in our opinion, will meet the ends of justice in the circumstances
of the case. The judgment of the High Court is modified accordingly.
S.R. Appeal partly allowed.
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