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CASE NO.: Appeal (crl.)  1068 of 2005

PETITIONER: THANKACHAN       

RESPONDENT: STATE OF KERALA                                          

DATE OF JUDGMENT: 24/08/2005

BENCH: B.P. SINGH & S.H. KAPADIA

JUDGMENT: J  U  D  G  M  E  N  T (Arising out of SLP(Crl.) No.1540/2005)

       Delay condoned.                           Special Leave granted.         This 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.  

The 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.         In view of these facts, the question is whether the appellant is guilty  of the offence punishable under Section 302 IPC.         Learned 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.           Counsel for the State submitted that the medical evidence does  establish that the death was the result of the injury caused to the deceased.   Had 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.         The 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.           The 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 death.   We 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

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one which is punishable under Section 304 Part II IPC.         Having 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.   Keeping 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.         This appeal is allowed to the extent indicated above.