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PETITIONER: HARJINDER SINGH ALIAS JINDA

       Vs.

RESPONDENT: DELHI ADMINISTRATION

DATE OF JUDGMENT: 14/11/1967

BENCH: SIKRI, S.M. BENCH: SIKRI, S.M. SHELAT, J.M.

CITATION:  1968 AIR  867            1968 SCR  (2) 246  CITATOR INFO :  R          1975 SC 179  (8)  R          1981 SC1441  (3)  R          1981 SC1552  (11,12)  RF         1986 SC 683  (7)

ACT: Indian  Penal Code, s. 302 and s. 304--Murder and   culpable homicide-Ingredients of offence of murder.

HEADNOTE: The  appellant was convicted by the Sessions Judge under  s. 302  of the Indian Penal Code and the conviction was  upheld by the High Court. According to the prosecution evidence the appellant  was  trying to assault one D  when  the  latter’s brother  K intervened.  The appellant took out a  knife  and caused  an  injury  on K’s thigh which  cut  an  artery  and resulted in his death.  In appeal, by special leave,  before this  Court  it was urged that in the circumstances  of  the case  the intention and knowledge requisite for  an  offence under s. 302 I.P.C., had not been established. HELD: (i) The appellant had not used the knife while he  was engaged in the fight with D.  It was only when he felt  that the deceased also came up against him that ..he whipped  out the’  knife.  The deceased was at that time in  a  crouching position.  In these circumstances it could not be said  that the  appellant  intended to cause the injury  in  the  thigh knowing  that it would cut-the artery.  It  was,  therefore, not  possible  to apply cl. 3 of s. 300 to the  act  of  the accused, and  he  was not  guilty  of murder. [250 G-H] Virsa  Singh  v.  State  of   Punjab.  [1958]  S.C.R.  1495, applied. (ii)  However, when the appellant struck the  deceased  with the  knife, he must have known that the deceased then  being in  a bent position, the blow would land in the  abdomen  or near it--a vulnerable’ part of the human body--and that such a  blow  was  likely  to  result  in  his  death.  In  these circumstances  it would be quite legitimate to hold that  he struck  the  deceased with the knife with the  intention  to cause  an  injury  likely  to  cause  death.   The  offence, therefore. clearly fell  under s. 304 Part 1. [251 B-C]

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JUDGMENT: CRIMINAL  APPELLATE  JURISDICTION:  Criminal  Appeal No.  21 of 1965. Appeal  by special leave from the judgment and  order  dated May  19,  1964 of the Punjab High Court,  Circuit  Bench  at Delhi in Criminal Appeal No. 7-D of 1963. A.S.R. Chari, C.L. Sareen and R.L. Kohli, for the appellant. B.R.L.  lyenger,  S.P.  Nayar for  R.N.  Sachthey,  for  the respondent. The Judgment of the Court was delivered by Sikri, J.This appeal  by special  leave was limited to   the question  whether the case comes under s. 302 of the  Indian Penal  Code.   The case of the prosecution  which  has  been accepted by 247 the learned Sessions JUdge and the High Court was,. in  brie as follows:    On  January  31, 1962, at about 2.30 p.m., a  fight  took place’  between Dalip Kumar, P.W. 12, and  Harjinder  Singh, appellant,  near the water tap in front of a tin factory  in Zamirwali  lane, Delhi. Harjinder was apparently worsted  in the  fight and he then left the place holding out  a  threat that he would teach a lesson to Dalip Kumar.  The appellant. returned  with  his brother Amarjit Singh to  the  house  of Dalip  Kumar and shouted to Dalip Kumar to  come out.   Mst. Tejibai opened the door of the house and asked the appellant and  Amarjit Singh to go  away, but either these two or  the appellant pulled Dalip Kumar out of the house into the  lane and  gave  him  beating near a lamp-post  in  the  comer  of Zamirwali lane.  At. that time the deceased Kewal Kumar, who was the brother of Dalip Kumar, came and tried to  intervene and  rescue  his  brother.  It is at  this  stage  that  the evidence conflicting as to what exactly happened,  According to  one version, Amarjit Singh accused caught hold of  Kewal Kumar  and the appellant took out the  knife   and   stabbed the   deceased.  According to the other  version,  given  by Mohd. Ali, P.W. 5, this is what happened:                    "Dalip  Kumar’s  brother  holding   Jinda               accused asked him not to fight.  Jinda at that               time  took out the knife from his  pocket  and               opened it with both his hands and then gave  a               blow  with  it under the belly and  the  upper               portion  of  the left  thigh.   Amarjit  Singh               accused did not do. anything." In cross-examination he stated:                    "Jinda  accused was holding  Dalip  Kumar               from the collar of his shirt by his left hand.               At  that  time Kewal Kumar was on  right  hand               side of Jinda accused. When Jinda took out the               knife and opened it with both his hands, Dalip               Kumar  and  his brother Kewal  were  grappling               with  Jinda accused   Jinda accused gave  only               one  knife blow to Kewal Kumar.   Kewal  Kumar               was m bent condition when he was stabbed  only               once." After inflicting this injury the appellant ran away. Dr. G..S. ,Mittal, P.W. 8, noted the  following injuries on the person of the deceased: 1. A stab wound 1"x1/4"x? On left thigh upper and below  the inguinal ligament. 2. Abrasion l" x linear on back of left fore-arm middle. He described the other features of the injuries as follows: 248                   "The  direction  of  the  stab  wound  was

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             Oblique  and  was going  medially.   Sartorius               muscle  was cut underneath along with  femoral               artery and vein.  Cut over major part of their               diameter.  There was effusion of blood in  the               muscles  and around the track over left  thigh               upper end..." He  deposed that death was due to shock and hemorrhage  from injury  to femoral vessels by stab wound of the  thigh.   He further stated:                      "It is correct that femoral artery  and               vein are important main vessels of. the  body.               The  cutting of these vessels would result  in               great loss of blood.  The cutting injuries  of               these vessels could result in immediate  death               or after short duration."     It was urged before the Sessions Judge 0n behalf of  the appellant  that,  in  the circumstances  of  the  case;  the offence,  if  at  all committed, Would fall  under  s.  326, I.P.C.   The learned Sessions Judge, relying on Virsa  Singh v. State of Punjab (1), he/d:                      "In  this  case,  the  prosecution  has               proved  that the bodily injury, the nature  of               which  has been described above  was  present.               This  injury  was caused with  the  pen  knife               deliberately.    It  was  not  accidental   or               unintentional.  Injury of any other kind.  was               not  intended. This injury in the  opinion  of               this  doctor  was sufficient in  the  ordinary               course  of nature to cause death.  This  being               so the case 1958 S.C.R. 1495 would apply   and               the  offence  which  the  accused  Jinda   has               committed falls u/s 302 Indian Penal Code."        The  High  Court,  on appeal,  over-ruled  a  similar contention in the following words:                "Lastly,  the counsel has attempted  to  take               the case out of the purview of the offence  of               murder.   It has been contended that  it  was.               just a small knife with which a blow was given               and  that it was not on the vital part of  the               body and, therefore, the appellant should  not               be  held guilty of murder. In my opinion,  the               contention   is  wholly  unsustainable.    The               deceased,  a boy of about 16 years of age  had               merely  come  to help his  brother,  when  the               appellant,  who  had deliberately  come  armed               with   knife  from  his  house,  stabbed   the               deceased  with that knife on vulnerable  part.               1 do not see how the (1) [1958] S.C.R. 1495. 249 offence can be considered not to fall within the purview  of murder." Later, the High Court observed:                   "It  is futile to contend that he did  not               intend  to kill the deceased. The  injury  and               the   weapon  are  quite  eloquent   in   this               respect."    The  learned  counsel  for  the  appellant,  Mr.   Chari, contends  on the facts established in this case  no  offence under s. 302 s been committed and the appellant should  have been  connected  under s. 326 or at the most under  s.  304, part  two.  The learned counsel for the respondent  strongly relies.  on the decision this Court in Virsa Singh v.  Slate of Punjab(1) and he says at all the ingredients laid down in that  case  by  this  Court are ascent  in  this  case  and,

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therefore,  the  High  Court  was  correct  in  firming  the conviction of the appellant under s. 302, I.P.C. It  seems  to us. that all the ingredients which  were  laid down  this Court in that case have not been  established  in this case. Bose, J., speaking for the. Court observed:    "To  put  it  shortly, the  prosecution  must  prove  the following  facts  before it can bring a case under  s.  300, "3rdly";       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,.       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." The learned Judge further explained the third ingredient  at p. 1503 in the following words:       "The question is not whether the prisoner intended  to inflict a serious injury or a trivial one but whether he (1) [1958] S.C.R. 1495. 250      intended  to inflict ’the injury’ that is proved tO  be present.If  he can show that he did not, or if the  totality of’  the  circumstances justify such an inference, then,  of ’course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact  that the  appellant inflicted it, the only possible inference  is that  he  intended to inflict it.  Whether he  knew  of  its seriousness,  or intended serious consequences,  is  neither here  nor ,there. The question, so far as the  intention  is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once  the existence of the injury is proved the intention to cause  it will  be presumed unless the evidence or  the  circumstances warrant an opposite conclusion. In  Rajwant  singh v.State of  Kerala(1),  Hidayatullah,  J. referring to Virsa Singh v. state of Punjab(2), observed:                    "As was laid down in Virsa Singh v. State               of  Punjab...   for the  application  of  this               clause  it must be first established  that  an               injury is caused, next it must be  established               objectively what the nature of that injury  in               the  ordinary  course of nature is.   If  the.               injury  is  found to be  sufficient  to  cause               death  one test is satisfied. Then it must  be               proved that there was an intention to  inflict               that  very injury and not so.me  other  injury               and   that   it   was   not   accidental    or               unintentional.   If this is also held  against               the   offender  the  offence  of   murder   is               satisfied." It  seems  to  us that the. High Court  has  not  considered whether the third ingredient laid down by Bose, J. in  Virsa Singh  v.  State Punjab(2) has been proved in this  case  or not. In our opinion the circumstances justify the  inference

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that  the accused did not intend to cause an injury on  this particular portion of the thigh. The evidence indicates that while  the appellant was trying to assault Dalip  Kumar  and the  deceased intervened, the appellant timing ’himself  one against two took out the knife and stabbed 1he deceased,  It also  indicates  that the deceased at that stage  was  in  a crouching position presumably to intervene and separate  the two.   It cannot, therefore, be said With  any  definiteness that  the appellant aimed the blow tat this particular  part of  the thigh knowing that it would cut the artery.  It  may be observed that the appellant had not used the knife  While he  was engaged in the fight with Dalip Kumar.  It was  only when he felt that the deceased also came up against him that he whipped out the knife. (1) A.I.R. 1965 S.C.1874, 1878   (2) [1958] S.C.R. 1495 251 in  these circumstances it cannot be said that it  has  been proved  that  it  was. the intention  of  the  appellant  to inflict  this particular injury on tiffs  particular  place. It  is, therefore, not possible to apply cl. 3 of s. 300  to the act of the accused.     Nevertheless,  the deceased was in a crouching  position when  the appellant struck him with the knife.   Though  the knife  was " 5 to. 6" in length including the handle it  was nonetheless  a dangerous weapon.  When the appellant  struck the  deceased  with the knife, he must have known  that  the deceased  then being in a bent position the blow would  land in  the  abdomen or near it a vulnerable part of  the  human body and that such a blow was likely to result in his death. In these circumstances it would be quite legitimate to  hold that  he  struck  the  deceased  with  the  knife  with  the intention to cause an injury likely to cause death.  We are, therefore,  of the-opinion that the offence falls  under  s. 304 Part 1.     The appeal is allowed and the conviction is altered from one  under  s.  302 to s. 304 Part 1 and  the  appellant  is sentenced to seven years rigorous imprisonment. G.C.                                        Appeal allowed. 252