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PETITIONER: GUDAR DUSADH

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT15/02/1972

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ SHELAT, J.M. REDDY, P. JAGANMOHAN

ACT: Indian   penal   Code  (Act  45  of  1860),  s.   300,   cl. thirdly--Single  blow with lathi on head of  deceased  given deliberately--Nature of Offence.

HEADNOTE: Section 300, clause thirdly, of the Indian Penal Code, 1860, consists  of two parts.  Under the first part it has  to  be shown that there was an intention on the part of the accused to inflict the particular injury which was found on the body of  the deceased.  The second part requires that the  bodily injury  intended  to  be inflicted  was  sufficient  in  the ordinary  course  of nature to cause death.  So far  as  the first  part is concerned, the court has to see  whether  the injury which was found on the deceased was the one  intended by  the  accused or whether it was  accidental  without  his having  intended  to cause that bodily injury.  Once  it  is found  that  the  injury was not  accidental  and  that  the accused  intended  to cause the injury  which  was  actually inflicted  and found on the body of the  deceased the  first part is satisfied.  The court should then go into the second part and find, in the light of the medical evidence, whether the  bodily injury inflicted was sufficient in the  ordinary course  of nature to cause death.  If the court  finds  that the requirements of both the parts have been satisfied,  the case is covered by the clause unless it falls within one  of the exceptions. [508 C-F] In  the present case, the circumstances of the  case  showed that  the  assault  by  the  accused  on  the  deceased  was premeditated  and that the blow given by the accused to  the deceased  was  not accidental.  The fact  that  the  accused aimed  the  blow on the head of the  deceased-with  a  lathi showed that it was his intention to cause the precise injury which was found on the head of the deceased.  As the  injury was  deliberate and not accidental, and as according to  the medical  evidence the injury was sufficient in the  ordinary course of nature to cause death, and as it actually resulted in  the death of the deceased, the case would fall  squarely within the ambit of clause ’thirdly’ of s. 300, I.P.C.,  and the appellant would be guilty of the offence of murder.  The fact that the accused gave only one blow would not  mitigate the  offence  and make him guilty of culpable  homicide  not amounting to murder [508 F-H; 509 D-E]

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Observations in Chamru Budhwa v. State of M.P., A.I.R.  1954 S.C. 652, explained and distinguished.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 94  of 1969. Appeal  by special leave from the judgment and  order  dated January 30, 1968 of the Patna High Court in Criminal  Appeal No. 539 of 1966. Nur-ud-din Ahmed and U. P. Singh, for the appellant. R.   C. Prasad, for the respondent. 506 The Judgment of the Court was delivered by Khanna,  J. Gudar Dusadh appellant was tried along  with  23 others  in  the court of Additional  Sessions  Judge  Saran. Eighteen  of the accused were acquitted by the trial  court. The  appellant  was convicted. under sections  302  and  147 Indian Penal Code and was sentenced to undergo  imprisonment for  life  on the former count.  No  separate  sentence  was awarded  to the appellant for the offence under section  147 Indian   Penal  Code.   The  remaining  five  accused   were convicted  under  section 323 read with section  149  Indian Penal Code as well as for other minor offences with which we are not concerned: On appeal the Patna High Court maintained the  conviction  and sentence of the appellant,  while  some modification was made as regards the sentence awarded to the other five convicted accused.  The appellant thereupon  came up  in  appeal to this Court by special leave.   The,  leave was,  however,  confined only to the  question  whether  the offence  committed by the appellant was murder  or  culpable homicide not amounting to murder. The  case  relates  to an occurrence  which  took  place  in village Khahla in district Saran at about 11 a.m. on  August 14, 1965.   Ramlal Bhagat, who was aged about 65 years, died as  a  result  of  the assault  during  the  course  of  the occurrence  while his son Ramashish Prasad (PW 10)  received injuries’.  The case of the prosecution is that a day before the  occurrence  Prasadi Dusadh and Ganesh Dusadh  killed  a goat  belonging to Baharan Bhagat (PW 8).  On the advice  of Ramlal Bhagat deceased, Baharan Bhagat lodged a report  with the police at 3 p.m. on that day.  On the morning of  August 14,  1965 Ramlal and his son Ramashish went to  their  paddy field.  While they were returning from the field at about  1 1 a.m. they were assaulted by the six convicted persons  who had  been hiding on the route.  The appellant gave  a  lathi blow  on the head of Ramlal as a result of which the  latter fell  down and died at the spot.  One of the  companions  of the appellant then shouted that the assault was made because of Ramlal being-responsible for the commencement of criminal proceedings  by Baharan.  Some injuries were also caused  to Ramashish.   The accused then set fire to one of their  huts with a view to prepare some kind of defence.  After that the accused fled away, SHO Sarju Prasad Singh of police station Barauli on  receipt of  information that a large number of persons belonging  to the  party of the accused had collected to attack the  other party in spite of the promulgation of an order under section 144 of the Code of Criminal Procedure, came to the place  of occurrence  but before that Ramlal had already been  killed. Sarju  Prasad Singh recorded the statement of Ramashish  and on the basis of that 507 statement,  a formal information report was prepared at  the

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police  station.   Post mortem examination on  the  body  of Ramlal  deceased was performed by Dr. R. S. Singh on  August 15, 1965. At the trial the plea of the appellant was that he had  been falsely  involved in the case at the instance of the  Mukhia of the village who was inimical to the appellant. The  two courts below accepted the prosecution case that  it was the appellant who had given a lathi blow on the head  of Ramlal  deceased as a result of which the latter  died.   It was  held  that the case against the  appellant  fell  under clause  "3rdly"  of section 300 of Indian  Penal  Code.   As such,  the appellant was convicted under section 302  Indian Penal Code. The only question with which we were concerned in appeal  is whether the offence committed by the appellant is murder  or whether it is culpable homicide not amounting to murder.  In this  respect we find that according to Dr. R.S.  Singh  who performed  the post mortem examination on the dead  body  of the deceased,  the doctor found a lacerated  wound  2"x1/2" bone deep on the left side of  the head of the deceased. The injury  was ante-mortem     and had been caused by a  weapon like lathi. On dissection the doctor found 3" long  fracture of the left parietal bone about 2 1/2" from the middle  line of  the  top of the head. On removing the skull  the  doctor noticed  large amount of blood and  blood clots on the  left side of the brain. Death, in the opinion of the doctor, was due to compression on the left side of the brain.The doctor further stated that the above injury was sufficient in  the ordinary course of nature to cause death. The  appellant  who  caused  the  above  injury  to   Ramlal deceased,  in  our  opinion, was guilty of  the  offence  of murder and  he has been rightly convicted under section  302 Indian Penal Code. The appellant along with his companions was lying in  wait to attack Ramlal and, according to  the evidence  on  record  which has been accepted  by  the  High Court,  he gave a blow on the head of Ramlal as a result  of which Ramlal fell down and died instantaneously. It has also been found by the, High Court  that there was no altercation or exchange of abuses between Ramlal and the accused  party. The circumstances of the case thus show that the assault was premeditated  and  the blow on the head of  Ramlal  was  not accidental.  The fact that the appellant gave only one  blow on the head would not mitigate the offence of the  appellant and make him guilty of the offence of culpable homicide  not amounting  to, murder. The blow on the head of  Ramlal  with lathi was plainly given with some force, and resulted in. a 3" long fracture of the left parietal bone. Ramlal  deceased Died instantaneously and as, such, there arose no  occasion for 508 giving a second blow to him.  As the injury on the head  was deliberate  and  not  accidental  and  as  the  injury   was sufficient in the ordinary course of nature to cause  death, the  case against the appellant would fall  squarely  within the  ambit  of clause "3rdly" of section  300  Indian  Penal Code.  According to that clause, culpable homicide is murder if it is done with the intention of causing bodily injury to any  person and the, bodily injury intended to be  inflicted is  sufficient  in the ordinary course of  nature  to  cause death.  Section 300 also provides for some exceptions but we are not concerned with them in this case. Clause "3rdly" consists of two parts.  Under the first part, it  has to be shown that there was an intention on the  part of  the accused to inflict the particular injury  which  was found on the body of the deceased.  The second part requires

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that  the  bodily  injury  intended  to  be  inflicted   was sufficient in the ordinary course of nature to cause  death. So far as the first part is concerned, the court has to  see whether  the injury which was found on the deceased was  the one  intended  by the accused or whether it  was  accidental without  his  having intended to cause that  bodily  injury. Once it is found that the injury was not accidental and that the accused intended to cause the injury which was  actually inflicted  and found on the body of the deceased, the  first part  shall be satisfied.  The court would then go into  the second  part of the clause and find in the light of  medical evidence  as  to  whether the bodily  injury  inflicted  was sufficient in the ordinary course of nature to cause  death. If  the court finds that the requirements of both the  parts have been satisfied, the case shall be held to be covered by clause "3rdly" unless it falls within one of the exceptions. In  the present case, both parts of the clause "3rdly"  have been, satisfied.  As observed earlier, the injury which  was inflicted  by  the  accused on the head of  Ramlal  was  not accidental.   It  is  not  the case  of  any  one  that  the appellant  aimed a blow on some other part of the  body  and because  of some supervening cause like sudden  intervention or movement of the deceased the lathi struck the head of the deceased.   The fact that the appellant aimed a blow on  the head  of Ramlal with the lathi would go to show that it  was the  intention of the appellant to cause the precise  injury which  was found on the head of the deceased.  The  evidence of  Dr.  R. S. Singh who performed post  mortem  examination shows  that the above injury was sufficient in the  ordinary course of nature to cause death and actually resulted in the death of the deceased., The case of the appellant would thus be covered by clause "3rdly" of section 300 and he would  be guilty of the offence of murder. 509 Reference  on behalf of the appellant has been made  to  the case of Chamru Budhwa v. State of Madhya Pradesh(1).   There was  in  that case a severe exchange of abuses  between  the parties preceding the incident.  While the abuses were being exchanged,  the tempers rose high and both the parties  came out  of their respective houses in anger.  In the course  of the quarrel the appellant dealt a fatal blow on the head  of the deceased with his lathi.  It was held that the crime was committed by the appellant without premeditation in a sudden fight  in  the  heat of passion and  without  the  appellant having taken undue advantage or acted in a cruel or  unusual manner.   The  case  of the appellant was thus  held  to  be covered  by exception 4 to section 300 of Indian Penal  Code and he was found guilty of the offence of culpable  homicide not  amounting  to murder.  It was also  observed  that  the fatal  injury inflicted by the appellant on the head of  the deceased  by one blow was not caused with the  intention  of causing death or such, bodily injury as was likely to  cause death.   The last observation upon which reliance  has  been placed by Mr. Nuruddin on behalf of the appellant should  be taken to have been made in the context of the facts of  that case.  The above case does not warrant the proposition  that if  the accused gives a deliberate blow on the head  of  the deceased  with a lathi and thereby causes an  injury  as  is sufficient  in the ordinary course of nature to cause  death and  actually results in death, the case against  him  would not fall under clause "3rdly" of section 300 of Indian Penal Code. We are, therefore, of the view that the appellant was guilty of  the  offence  of murder and not  culpable  homicide  not amounting  to murder and that he has been rightly  convicted

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under   section   302  Indian  Penal   Code.    The   appeal consequently fails and is dismissed. V.P.S.                            Appeal dismissed. (1) A.I.R. 1954 S.C. 652. 510