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PETITIONER: GOKUL PARASHRAM PATIL

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT04/05/1981

BENCH: KOSHAL, A.D. BENCH: 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

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    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.

JUDGMENT:      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

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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. 662