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PETITIONER: MORCHA

       Vs.

RESPONDENT: THE STATE OF RAJASTHAN

DATE OF JUDGMENT13/09/1978

BENCH: SINGH, JASWANT BENCH: 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

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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.

JUDGMENT:      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

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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

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    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.

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         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 haemorrhage 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.

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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. 751