http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: LAXMAN KALU NIKALJE

       Vs.

RESPONDENT: THE STATE OF MAHARASHTRA

DATE OF JUDGMENT: 05/04/1968

BENCH: HIDAYATULLAH, M. (CJ) BENCH: HIDAYATULLAH, M. (CJ) VAIDYIALINGAM, C.A. GROVER, A.N.

CITATION:  1968 AIR 1390            1968 SCR  (3) 685  CITATOR INFO :  R          1971 SC 953  (8)  RF         1971 SC1977  (11)  R          1972 SC 622  (33)  RF         1973 SC 460  (17,20)  R          1981 SC1441  (3)  R          1981 SC1552  (11,12)

ACT: Indian Penal Code, (45 of 1860) ss. 299 and 300-Scope of-

HEADNOTE: When  appellant and his wife’s brother-the  decreased,  were quarrelling about the time of his wife’s going with him, the appellant  whipped  out  a knife and gave one  blow  to  the deceased, by which an injury on the right side of the  chest penetrating  4"  deep  into the  chest  cavity  was  caused, resulting  in death.  The appellant was convicted  under  s. 302 IPC. HELD : The case fell within the third part of s. 299 IPC and was  punishable  under  the second part of  s.  304  IPC  as culpable homicide not amounting to murder. Though  the  injury was serious, it did  not  penetrate  the lung.   Death was caused mainly because it cut the  axiliary artery and veins and caused shock and haemorrhage leading to death.  The quarrel was not such as would have prompted  the appellant to make a homicidal attack. Thirdly  of s. 300 requires that the bodily injury  must  be intended and   the bodily injury intended to be caused  must be  sufficient  in the ordinary course of  nature  to  cause death.   This  clause is in two parts; the first part  is  a subjective  one which indicates that the injury must  be  an intentional  one and not an accidental one; the second  part is  objective in that looking at the injury intended  to  be caused, the court must be satisfied that it was  ’sufficient in the ordinary course of nature to cause death.  The  first part was complied with because the injury which was intended to  be caused was the one which was found on the  person  of the  deceased.   But  the second  part  was  not  fulfilled, because but for the fact that the injury caused the severing of  artery,  death might not have ensued.  In  other  words, looking  at  the matter objectively, the  injury  which  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

appellant intended to cause did not include specifically the cutting  of  the  artery but to wound the  deceased  in  the neighbourhood of the clavicle.  Therefore, thirdly of s. 300 did not cover the case.  Inasmuch as death had been caused,, the  matter  came  within at  least  culpable  homicide  not amounting to murder.  There again, s. 299 is in three parts. The  first  part  takes  in the doing of  an  act  with  the intention  of causing death.  The appellant did  not  intend causing  death and the first part of s. 299 did  not  apply. The  second  part deals with the intention of  causing  such bodily injury as is likely to cause death.  Here again,  the intention  must  be to cause the precise  injury  likely  to cause  death  and  that  also  was  not  the  intention   of appellant.  The matter therefore came within the third part. The  act was done with the knowledge that the appellant  was likely by such act to cause the death of the deceased.  [690 E-691 C]

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION : Criminal Appeal No. 1  of 1966. 686 Appeal  by special leave from the judgment and  order  dated March 19, 1964, of the Bombay High Court in Criminal  Appeal No. 257 of 1963. M.   R. K. Pillai, for the appellant. D.   P. Bhandari and S. P. Nayar, for the respondent. The Judgment of the, Court was delivered by Hidayatullah  C. J. This is an appeal from the  judgment  of the High Court of Bombay setting aside the acquittal of  the appellant  Laxman Kalu Nikalje and convicting him  under  s. 302 with a sentence of imprisonment for life.  The facts  of the case are as follows This  Laxman  was married to Shantabai (P.W. 3) who  is  the daughter  of  one  Bhika Ganpat Nikam  (P.W.  2)  a  Railway employee  working at a Railway crossing at  Gartad  District Dhullia.  This crossing is situated on the Dhulia-Chalisgaon Railway  line.  Bhika was, residing in one of  the  quarters intended for such people near the Railway crossing with  his wife   Gangubai,  his  sons  Ramrao,  Laxman   and   Bharat. Shantabai was married some five years before the  occurrence and  lived with her husband, Laxman at Ganeshpur  Pimpri  in Taluka Chalisgaon. Some days before Nag Panchami of the year 1962 Shantabai was brought  to her parent’s place.  She stayed with  them  till the  10th  August  1962.  Laxman wanted his  wife  back  and arrived at Gartad to take her away to his own house.   Bhika put in some excuses saying that he had no money and he could only  send his daughter back after he gets his. pay  on  the 21st  or the 22nd.  The excuse given by Bhika and  his  wife Gangubai  was  that they could not let the girl  go  without giving her some. presents and that money was needed for  the purchase of these presents.  However, as Laxman insisted  on taking  his  wife  away immediately, a sum  of  Rs.  10  was borrowed.   It is said in one place that money was  borrowed from  one  Tarachand and in another,  from  Laxman  himself. Gangubai in the, company of Shantabai went to Dhulia to make some. purchases and returned ,on August 10 in the afternoon. It  appears that a train was then due and Laxman is said  to have  insisted  that  his wife should go with  him  by  that train.    The  parents,  however,  said  that  it  was   not auspicious to send the girl at night and that they could  in the  morning.  It does not appear that any quarrel over  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

took.   Whether Laxman was reconciled to this suggestion  or was  still  angry is not known.  In the evening at  about  7 P.m.  Laxman was sitting with Shantabai and  Ramrao  outside the quarter and Bhika was chopping some fuel at the back  of the  hut, Kamlabai (the widow of Ramrao),  Gangubai,  Bharat and                             687 Laxman were inside the room.  According to Shantabai, Ramrao and  Laxman had a few words and on that Laxman took   out  a knife  and  stabbed Ramarao on the shoulder  and  ran  away. Ramrao  shouted  and  so did  Shantabai;  Bhika  and  others arrived on the scene.  They carried Ramrao, on a cot to, the Railway Crossing and when the train arrived, it was  stopped by  showing  the danger signal.  Ramrao was  placed  on  the train  and left on the train accompanied by Bhika,  Gangubai and  Kamlabai.  On the train’ Bhika told the Guard that  his son-in-law had stabbed the injured man.  The, Railway  guard noted this fact in his log book.  Ramrao was carried to  the Dhulia hospital and was found to have died before his  entry in  the  hospital.  A report of the incident was  then  also made,  in  which  the name of Laxman was  mentioned  as  the assailant. The" police, after investigation, prosecuted Laxman.  On be- half of the prosecution, Shantabai was the main witness  and in  fact the only eye-witness.  Gangubai and Bhika  did  not claim  to have seen the actual happening.  On behalf of  the defence,  Kamlabai, the wide of Ramrao was, examined and  it is,  because of the -contrary versions of these two,  ladies that the conflicting decisions in  Court  and the  Court  of Sessions  have taken place. - According to Shantabai it  was her  husband  who had in flicted the  injury.  According  to Kamlabai  the  injury was caused by one Kacharu,  a  son  of Bhika  who has been missing from home for over 15 years  and who  had  arrived and quarrelled with Ramrao  and  assaulted him.  In support of the defence evidence of Kamlabai,  three other  witnesses  were examined.  One was C.  Ananda  Patil, M.P.  who  stated that his jeep had stopped near  the  level crossing because the gates were shut and the, train was due. He heard shouts from the quarter of Bhika and went there and enquired what had happened and he was told that, the  "elder brother  had stabbed the younger brother".  In other  words, his evidence was to the effect that it was Kacharu the elder missing brother of Ramrao who, had stabbed the victim.   Two other witnesses who are railway employees also came  forward to depose that after this incident they had met Kacharu  and that Kacharu had threatened them and told them that he would cause  them injury asking them about "circumstances  of  his family".  These two persons made a report to their  superior officer  and in that it is mentioned that on the 10th,  11th and  13th August they had seen Kacharu.  Kamlabai also  made two  written  reports  to the D.S.P. on the  26th  and  27th August   alleging  that  an  innocent,  person   was   being prosecuted  instead of the right offender, namely,  Kacharu. She  adhered to her story in the Court of Sessions and  said that these reports were prepared to, her dictation. The learned Sessions Judge who tried the case did not accept Shantabai’s evidence in view of two or three contradictions 688 which were brought out in her cross-examination on the basis of  her  previous  statement in  the  committal  court.   He thought  that  in all the circumstances  Kamlabai’s  version appeared to be the more probable, supported as it was by the evidence of Ananda Patil and the other two railway employees to  whom  we have referred.  On appeal the High  Court  went into   this  question  exhaustively.   The  learned   Judges

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

discussed  the matter both from the point of view of  actual evidence  led  in  the case  and  also  probabilities.   The learned  Judges discarded the evidence of  Kamlabai  holding that  she  was interested in saving Laxman,  the  appellant, because he was related in a distant way with her.  They felt that  there  was  no reason for Shantabai  to  have  deposed against her own husband and the suggestion made in the  Ses- sions Court that Shantabai wanted to get rid of her  husband because  he  was a cripple and was ill-treating her  had  no substance in fact. We have had the evidence of these two ladies read to us  and also  the  judgments  of the High Court  and  the  Court  of Sessions.   We think that on a proper appraisal of  all  the circumstances  of  the case the view expounded by  the  High Court  is to be preferred.  We may say here that it  is  now the  settled  law that the powers of the High  Court  in  an appeal  against  the acquittal are not  different  from  the powers  of  the same court in hearing an  appeal  against  a conviction.   The High Court in dealing with such an  appeal can go into all questions of fact and law and reach its  own conclusions  on evidence provided it pays due regard to  the fact  that the matter had been before the Court of  Sessions and  the  Sessions Judge had the chance and  opportunity  of seeing the witnesses depose to the facts.  Further the  High Court  in reversing the judgment of the Sessions Judge  must pay  due  regard to all the reasons, given by  the  Sessions Judge for disbelieving a particular witness and must attempt to dispel those reasons effectively before taking a contrary view  of  the matter.  It may also be pointed  out  that  an accused  starts with a presumption of innocence when  he  is put up for trial and his acquittal in no sense weakens  that presumption, and this presumption must also receive adequate consideration from the High Court. We have borne all these principles in mind and we think that the  High  Court was also alive to, them, because  the  High Court  has  considered  the matter  in  a  closely  reasoned judgment  in  which it has taken into account  every  single reason   given  by  the  Sessions  Judge  in  reaching   the conclusion that Shantabai’s version was to be preferred  and the  evidence of Kamlabai to be rejected.  If  the  evidence which  has  come  before  the  High  Court  in  support   of Kamlabai’s  version  had existed before  the  incident  took place, it would have been a significant but not conclusive                             689 fact.   It  is, however, clear that these persons  speak  to have  seen Kacharu after the incident and not before.   Only one witness said that he was living for five months with his parents.  It is. significant that the father and the  mother were  not closely questioned about Kacharu living with  them for as many as five months.  That apart, if Kacharu had been living in the village for as many as five months, much  more evidence would have been available, to prove the fact.   The evidence which has, been brought before the Court is of  his doings on the 10th and after the 10th of August and there is nothing  to show that there was any other thing he had  done in the village before.  The fact is that he had  disappeared from home as many as 15 years ago and it is unlikely that he would have appeared just at the crucial time when Laxman had gone  to fetch his wife and had a difference of  opinion  as to;  whether  she  should go by the  evening  train  or  the morning  train.  In our opinion advantage was taken  of  the fact  that Kacharu had disappeared from home.  There was  no risk  in naming him as the assailant with a view  to  saving Laxman  from  the  charge,  which  was  immediately  brought against  him not only by his father-in-law but also  by  his

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

own wife and was reported to, the guard on the Railway train -and   also  stated  in  the  report  to  the  Police   made immediately  afterwards.   Kamlabai seems  to  have  delayed making her statement to the Police and there is nothing  to. show  on the record of the case that she ever named  Kacharu as the real assailant to the Police.  It is unfortunate that our  law  does  not admit of  cross-examination  of  such  a witness  in  respect of statements before  the  Police.   We endorse  the  action  of the  Sessions  Judge  in  excluding reference to this statement in the Sessions trial. The  fact  thus remains that the evidence did  not  disclose that Kacharu came on the scene at any earlier moment and the only  evidence is that of Ananda Patil who, on enquiry,  was told,  we  do not know by whom, that the elder  brother  had stabbed  the younger brother.  This in any case, is  hearsay evidence and cannot be acted upon.  Therefore, without going too much into the details of the matter, we only wish to say that  between  the  two  judgments  which  we  have  closely examined, and which have been read to us in full, we  prefer that   of  the  High  Court  and  think  that  in  all   the circumstances  of  the  case,  it  was  a  fair  and  proper appraisal  of the divergent evidence in the case.   We  must therefore  hold  that it was Laxman, the appellant  who  was responsible for causing the injury to Ramrao. The next question is what was the offence which was  brought home to him?  The injury is a single one.  Shantabai did not speak about the weapon; she only stated that he hit him With a weapon and ran away.  On examination the injury was  found to be situated 2 inch below the outer 1/3 of right  clavicle on the- 690 right  side  of the chest and penetrated to the depth  of  4 inch  into the chest cavity.  It is no doubt true  that  the injury was serious, but it is to be noticed that it did  not penetrate the lung.  Death was caused mainly because it  cut the   axiliary  artery  and  veins  and  caused  shock   and haemorrhage leading to death.  In these circumstances, it is necessary to consider whether this case is covered by any of the clauses of S. 300 of the Indian Penal Code. Mr.  Bhandari who appeared before us for the  State  frankly conceded,  and  we  think rightly, that  the  case  was  not covered  by  the first and the second clause.   It  must  be remembered  that the quarrel between Ramrao and  Laxman  was not such as would have prompted Laxman to make, a  homicidal attack  upon his brother-in-law.  The quarrel was only  this much,  whether  Laxman’s wife, should accompany him  by  the evening  train  or the morning train.  It may be  that  some abuses  might have ensued as is common among  these  people, and Laxman having lost his temper whipped out his knife  and gave one blow.  It must be remembered that he gave one  blow and  although  it was given on the chest, it was  not  on  a vital part of the chest and but for the fact that the  knife cut   an  artery  inside,  death  might  not  have   ensued. Therefore the question is whether the offence can be said to be covered by thirdly of s. 300 of the Indian Penal Code. That  section  requires  that  the  bodily  injury  must  be intended and the bodily injury intended to be caused must be sufficient in the ordinary course of nature to cause  death. This clause is in two parts; the first part is a subjective, one  which indicates that the injury must be an  intentional one and not an accidental one; the second part is  objective in  that  looking at the injury intended to be  caused,  the court  must  be  satisfied that it  was  sufficient  in  the ordinary course of nature to cause death.  We think that the first  part is complied with, because the injury  which  was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

intended  to  be caused was the one which was found  on  the person of Ramrao.  But the second part in our opinion is not fulfilled,  because but for the fact that the injury  caused the  severing  of artery, death might not have  ensued.   In other  words, looking at the matter objectively, the  injury which Laxman intended to cause did not include  specifically the  cutting  of  the  artery but to  wound  Ramrao  in  the neighbourhood of the clavicle.  Therefore, we are of opinion that  the  thirdly  of  s. 300  does  not  cover  the  case. Inasmuch  as  death has been caused, the matter  must  still come  within  at least culpable homicide  not  amounting  to murder.   There again, S. 299 is in three parts.  The  first part  takes  in the doing of an act with  the  intention  of causing  death.  As we have shown above, Laxman did not  in- tend  causing  death and the first part of S. 299  does  not apply.  The second part deals with the intention of  causing such bodily                             691 injury  as  is  likely  to cause  death.   Here  again,  the intention  must  be to cause the precise  injury  likely  to cause  death and that also, as we have shown above, was  not the intention of Laxman.  The matter therefore comes  within the  third part.  The act which was done was done  with  the knowledge  that Laxman was likely by such act to  cause  the death of Ramrao.  The case falls within the third part of s. 299  and will be punishable under the second part of s.  304 of the Indian Penal Code as culpable homicide not  amounting to  murder.  We accordingly alter the conviction  of  Laxman from  s. 302 to s. 304 of the Indian Penal Code and in  lieu of the sentence of Imprisonment for life imposed on him,  we impose  a  sentence of rigorous Imprisonment  for  7  years. With this modification, the appeal shall stand dismissed. Y.P.                                                  Appeal dismissed.- 692