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PETITIONER: STATE OF HARYANA

       Vs.

RESPONDENT: PALA & ORS.

DATE OF JUDGMENT:       29/01/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  JT 1996 (2)   416        1996 SCALE  (2)179

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.       We have heard the counsel on both sides. The facts are that in  the evening  of December 6, 1989, the deceased Rati Ram, who  was Lambardar  of the  village, had gone on stroll outside the village. While he was coming at about 8.30 p.m., the appellants  emerged from  their house  and each  of them having  been  armed  with  massals,  A-1  had  attacked  the deceased when  he came  in front of their house, on the head and hit  him  three  times  on  different  parts.  When  the deceased had  fallen, A-2  again beaten him thrice on chest, abdomen and other parts of the body. PW-6 and 7, the son and brother of  the deceased,  who were  coming in search of him had witnessed  the occurrence. When PW-7 raised the cry, the accused had gone in and went away. The deceased was taken to the hospital.  He died five days thereafter. The doctor, PW- 9, R.M.  Singh, conducted  autopsy. He  noted seven injuries and injury nos.2 and 3 were head injuries. Injury No.2 was a lacerated wound  which was  inflicted on  the right  mastoid region of  size of  4 x  1 cm.  It was  irregular in  shape. According to  the doctor,  the cause of the death was due to septicemia resulted  as a  result  of  head-injury  and  was sufficient to  cause death in ordinary course of nature. All the injuries  were ante/mortem in nature and were sufficient to cause  death in  the ordinary  course of  nature. He  had stated that  "Septicasemie is the direct result of the head- injury. This  not a  disease. In other words, head injury is the cause of death. The injuries found on the person of the deceased could  be caused  by musals Ex.P-1 and P-2." In the cross-examination,  he   stated  that  "Septicaemia  has  no relation with  bleeding. It  is incorrect  to  suggest  that injuries in  this case  are not sufficient to cause death in the ordinary  course of nature. The Sessions Court convicted the respondents, applying clause thirdly of Section 300 IPC, under  Section   302  IPC  and  sentenced  them  to  undergo imprisonment for life. On appeal, the High Court had applied

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exception 4  to Section 300 IPC and converted the offence of murder into  culpable homicide  not amounting  to murder and convicted under  Section 304  Part II  and sentenced them to undergo imprisonment to the period already undergone and accordingly got  them released.  Thus this appeal by special leave.      It is  not a  case of  a  sudden  fight  upon  heat  of passion.  The   accused  bet   the  deceased   taking  undue advantage. Therefore,  Shri Mehta,  learned  senior  counsel appearing for  the respondents,  fairly and  rightly has not placed his  case under  Exception 4  to Section  300. On the other  hand   he  contended  that  when  death  was  due  to septicasemie, it  cannot be  referable to  the cause  of the death in  the ordinary  course of  nature due to anti mortom injuries and  that, therefore, the offence of murder has not been made  out. In  support  thereof,  he  sought  to  place reliance on  Lyon’s Medical  Jurisprudence for  India (Tenth Edition) at  page 222.  It is stated therein that "Danger to life depends, primarily, on the amount of hemorrhage, on the organ wounded,  and on  the extent of shock; secondarily, on secondary hemorrhage,  on  the  occurrence  of  septicaemia, erysipelas, tetanus,  or other  complications. In  answering the question  whether a  wound is  dangerous  to  life,  the danger must  be assessed  on the probable primary effects of the injury : Such possibilities as the occurrence of tetanus or  septicaemia,   later  on,  are  not  to  be  taken  into consideration." Though  the learned counsel had not read the later part of the opinion, the medical evidence on record do clearly establish  that Septicaemia is not the primary cause and the death was due to injuries caused to the deceased and they are sufficient to cause death in the ordinary course of nature. Septicaemia  would, therefore,  not  be  taken  into account.      Clause thirdly of Section 300 IPC envisages that if the act is  done with  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, it would  be murder  coming under  Section 300 IPC and that, therefore, it would not be a culpable homicide under Section 299 IPC.  When the accused emerged from their house and beat with deadly  weapon on  the head and other parts of the body and death  occurred as  a result of the injuries, it must be inferred that  the attack  on vital  parts of  the body  was intended to  be caused  with an  intention to  cause  death. Intention is locked up in the heart of the assailant and the inference  is   to  be   drawn  from   acts  and   attending circumstances.      It is  then  contended  that  the  respondents  had  no intention to  cause the death and that in support thereof he relies upon  the judgment of this Court in State of A.P. vs. Rayavarapu Punnayya [(1976) 4 SCC 382]. The facts therein do not help  the respondents.  All the  injuries therein though were not  on vital  parts, namely,  legs and  hands  of  the deceased, and  death ensued  due to their cumulative effect, this Court had applied clause thirdly of Section 300 IPC and had reversed  the contra-finding  of the  High Court and set aside  the   conviction  under   Section  304  part  II  and convicted the accused under Section 302 read with 34 IPC. It is true that this Court therein in paragraph 39 had observed that no secondary factor such as gangrene, tetanus etc , supervened.  In   this  case,   the  supervening   event  of septimcemia is  not of any consequence as pointed out by the doctor as the death was only on account of head injuries and other injuries  caused to the deceased. It is then contended that as there is no proof of a particular accused had caused

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fatal head  injury, they  are liable  only to  be  convicted under Section  326 IPC  . We  find no  force. The  facts  as narrated above  would establish that both the accused shared common intention  to kill  the deceased  and are  liable  to conviction under Section 302 read Section 34 IPC.      The appeal  is, therefore, allowed. The judgment of the High Court  is set  aside and  the accused  stand  convicted under Section  302  read  with  Section  34  IPC.  They  are accordingly directed, as held by the trial court, to undergo the imprisonment  for life.  They are  directed to surrender themselves forthwith.  In case  they do  not surrender,  the Sessions Judge  would forthwith  issue warrant of arrest and have the  warrants executed through the concerned police and report to the registry of this Court of compliance.