PARMAR BHIKHABHAI DHULABHAI v. STATE — 1968 DIGILAW 110 (GUJ)

N. G. SHELAT, B. G. THAKOR, J. ( 1 ) THIS appeal arises out of an order passed on 11th October 1966 by Mr. J. D. Desai Additional Sessions Judge Nadiad in Sessions Case No. 98 of 1966 whereby the appellant-accused came to be convicted and sentenced to suffer imprisonment for life for an offence of murder punishable under sec. 302 of the Indian Penal Code. [ His Lordship after discussing the facts held that it was clear that it was in an incident which resulted in a sudden quarrel leading the accused to give a blow with a barchhi to Purshottam as a result there of that Purshottam met his death. His Lordship further observed :- ] ( 2 ) THE point made out by Mr. Trivedi the learned advocate for the appellant is of a two-fold character. The first contention is that much though the injury found on deceased Purshottam was sufficient to cause his death in ordinary course of nature it would not come within the ambit of clause Thirdly in sec. 300 of the Indian Penal Code so as to be punishable for murder under sec. 302 of the Indian Penal Code as it is further essential for the prosecution to show the that particular injury was in fact intended to be caused as required in that clause which has not been so established beyond any reasonable doubt in the case. In that event since death has resulted from the injury the case would fall under third part of sec. 299 of the Indian Penal Code and would become punishable under sec. 304 part II of the Indian Penal Code by attributing to the accused knowledge that he was likely to cause his death by such act. His alternate contention was that even if it were to fall under clause Thirdly of sec. 300 which defines murder having regard to the facts and circumstances disclosed in the case it can easily fall under Exception 4 thereto and that way punishable under sec. 304 part II of the Indian Penal Code. In support of the main contention he referred to a decision in the case of Harjinder Singh v. Delhi Administration A. I. R. 1968 Supreme Court 867. 304 part II of the Indian Penal Code. In support of the main contention he referred to a decision in the case of Harjinder Singh v. Delhi Administration A. I. R. 1968 Supreme Court 867. A very recent unreported decision of the Supreme Court in Criminal Appeal No. 1 of 1966 (Laxman Kalu v. State of Maharashtra) the judgment whereof came to be delivered by His Lordship Hidayatullah C. J. on 5th April 1968 was also relied upon. ( 3 ) NOW before turning to the points raised we may consider the facts leading to the incident when death of Purshottam occurred on that day. The facts established in the case over which no point is raised are that the relations between the two brothers were quite cordial and there was no dispute whatever between them before that incident. They were fairly poor persons carrying on agricultural operations. They lived in their respective houses which were close to each other. The root of the quarrel arose out of their 3 years old daughters playing nearby their houses. In that play it appears that Mangu the daughter of deceased Purshottam happened to throw some dust which fell in the eyes of Balu the daughter of the accused. As a consequence thereof their mothers came out and had exchange of words. As the evidence of witness Udesing shows it was at that time that the accused who was washing his hands on the ota came out on seeing his father coming with a view to reprimand his deceased uncle by saying as to why his wife was giving abuses to his wife. His evidence also shows that the accused had no barchhi at that time in his hand. As a result of some exchange of words apart from what the accused has stated in his statement which has been disbelieved by the learned Sessions Judge it appears that the accused had received some injury with a bush from which one can infer that some scuffle must have taken place between them. In that the accused appears to have picked up a barchhian instrument which is obviously used for their agricultural and other work and gave one blow therewith which hurt on the chest of deceased Purshottam. In that the accused appears to have picked up a barchhian instrument which is obviously used for their agricultural and other work and gave one blow therewith which hurt on the chest of deceased Purshottam. This part of the case of the accused stands borne out from the panchnama made of the condition of his person in the evening in relation thereto as also from the evidence of Dr. Talati Ex. 6. He was found to have two oblique linear abrasions on the left forearm volar aspect unla side each 1/2 away from each other and each (a) 3 1/2 x 1/10 and (b) medially and slightly curved 2 x 1/10 That injury was possible to have been caused by some sharp pointed rough substance such as a bush having thorns. Such a bush was found lying by the side of deceased Purshottam at the time of the incident. In other words the incident which resulted in causing injury to deceased Purshottam purely arose out of a sudden quarrel and some fight having taken place between them that evening. These facts would clearly show that the accused never intended to kill him and the very fact that he gave only one blow may also tend to suggest that he could not have intended to cause such a fatal blow as it turned out in consequence of the injury caused to him. It appears clear that neither the heart nor the lung had come to be injured. The injury however cut an aortic artery. The accused could have hardly intended or known that it would cut any such aortic artery so as to bring about his death. Only one blow was given. It is in those circumstances that we have to find out as to whether he can be held guilty as found by the learned Additional Sessions Judge so as to fall under clause Thirdly of sec. 300 of the Indian Penal Code. ( 4 ) THE contention of Mr. Mehta the learned Assistant Government Pleader. was that the very fact that he gave a blow on the chest part of the body should entitle the prosecution to raise a presumption about his intending to cause bodily injury as was sufficient in the ordinary course of nature to cause his death and that offence that way would clearly fall under clause Thirdly of sec. 300. was that the very fact that he gave a blow on the chest part of the body should entitle the prosecution to raise a presumption about his intending to cause bodily injury as was sufficient in the ordinary course of nature to cause his death and that offence that way would clearly fall under clause Thirdly of sec. 300. He invited a reference to the decision in the case of Virsa Singh v. State of Punjab A. I. R. 1958 Supreme Court 465 Bose J. speaking for the Court while considering the effect of Thirdly in sec. 300 of the Indian Penal Code observed as under :- TO put it shortly the prosecution must prove the following facts before it can bring a case under sec. 300 Thirdly:-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 hind 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. THUS according to Mr. Mehta what matters is as to whether the injury is found to be sufficient to cause death in the ordinary course of nature and when it is so averred by the Medical Officer in the case and the injury was in no way either accidental or unintentional or that some other kind of injury was intended by the accused the offence would tall in clause Thirdly of sec. 300 of the Indian Penal Code. He further referred to the observations to say that what is to be seen is whether he intended to inflict the injury and if once the existence of the injury is proved intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. Now that clause Thirdly of sec. He further referred to the observations to say that what is to be seen is whether he intended to inflict the injury and if once the existence of the injury is proved intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. Now that clause Thirdly of sec. 300 of the Indian Penal Code runs thus :- 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. On a proper analysis of this clause what is essential to establish is (1) that the bodily injury is caused to any person (2) that the said injury is sufficient to cause his death in ordinary course of nature. But this much is not enough. What is further required is not only the intention to cause any bodily injury but that intention has to be further shown to be such that he intended to inflict that very injury which turned out to be fatal. If than were not so the words the bodily injury intended to be inflicted would carry no meaning. That appears to be gist of the offence falling under clause Thirdly of sec. 300 of the Indian Penal Code. ( 5 ) WE may now refer to the decision in the case of Rajwant Singh v. State of Kerala A. I. R. 1966 Supreme Court 1874 where all the clauses of sec. 300 of the Indian Penal Code have been analysed and then while explaining clause Thirdly it has observed thus :-AS was laid down in 1958 S. C. R. 1495- (A. I. R. 1958 S. C. 465) 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 some other injury and that it was not accidental or unintentional. If this is also held against the offender the offence of murder is satisfied. 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 some other injury and that it was not accidental or unintentional. If this is also held against the offender the offence of murder is satisfied. Taking these observations into account in the case of Harjinder Singh v. Delhi Administration A. I. R. 1968 S. C. 867 the Supreme Court took the view that what was essential to establish was that the appellant aimed the blow at this particular part of the thigh knowing that it would cut the artery and unless that was so established it cannot be said that it has been proved that it was the intention of the appellant to inflict this particular injury on this particular place. In those circumstances the Supreme Court held that clause Thirdly of sec. 300 of the Indian Penal Code would not apply to the act of the accused and found that he struck the deceased with the knife with the intention to cause an injury likely to cause death so as to fall under sec. 304 part II of the Indian Penal Code. ( 6 ) MR. Trivedi invited a reference to the latest decision of 5-4-68 (unreported so far) of the Supreme Court in Criminal Appeal No. 1 of 1966 Laxman Kalu v. The State of Maharashtra which again explains even more clearly the correct position of law in that regard. The facts of the case are more or less quite similar to those in the case before us. The facts of the case showed 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 Laxmans wife should accompany him by the evening train or the morning train. It may be that some abuses might have ensued as is common amongst 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. 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. Then on a question whether that offence can be covered by clause Thirdly of sec. 300 of the Indian Penal Code it was held that it did not and that it would fall under third part of sec. 299 of the Indian Penal Code and that way under sec. 304 part II of the Indian Penal Code. While considering the question whether the offence falls under clause Thirdly it is observed that 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 and then later on said that looking at the matter objectively the injury which Laxman intended to cause was bodily injury and it did not include specifically the cutting of the artery but to wound Ramrao in the neighbourhood of the clavicle and therefore clause Thirdly of sec. 300 of the Indian Penal Code does not cover the case. ( 7 ) IN this view of the matter it is clear that clause Thirdly requires not only merely an intention to cause some bodily injury but his intention must further be established to cause that particular or specific injury which turned out to be fatal or sufficient to cause his death in ordinary course of nature. We have already said above that the injury was only one; that he did not specifically intend to cause injury so as to cut his aortic vein and that no part of vital region such as heart or lung was injured. Thus one test is satisfied but not the other essential one of intending to cause specific injury i. e. on a specific part of that region of the deceased. The offence therefore cannot fall under that clause of sec. 300 of the Indian Penal Code In our opinion therefore he can only be said to have intended to cause some injury on his chest which was likely to cause his death and not necessarily the fatal injury as it so turned out. The offence therefore cannot fall under that clause of sec. 300 of the Indian Penal Code In our opinion therefore he can only be said to have intended to cause some injury on his chest which was likely to cause his death and not necessarily the fatal injury as it so turned out. He can therefore be held liable for an offence of culpable homicide not amounting to murder punishable under part II of sec. 304 of the Indian Penal Code. The conviction shall therefore be altered from sec. 302 to one under sec. 304 part II of the Indian Penal Code. ( 8 ) IN view of our holding that the accused is guilty under part II of sec. 304 of the Indian Penal Code the alternate contention raised by Mr. Trivedi may not be considered. Even if it was considered in our view the facts of the case already stated here above can bring the case sufficiently well within the ambit of Exception 4 of sec. 300 of the Indian Penal Code. It is clear that the act committed by the accused was in no way intentional in the sense that it was committed without premeditation. On a sudden quarrel having arisen amongst the closest of the relations they being two brothers over a small petty quarrel which took place between their wives on account of some harm caused to the daughter of the accused while their daughters were playing nearby their houses that evening the exchange of abuses started and in the heat of passion when the deceased hurled a bush with thorns which hurt the accused he picked up an ordinary instrument which would be used by such agriculturists and had given only one blow which hurt him in the chest region. He cannot be said to have taken undue advantage or acted in a cruel or unusual manner. In our view therefore in those circumstances the case can well fall under Exception 4 to sec. 300 of the Indian Penal Code and that would make him liable only under part II of sec. 304 of the Indian Penal Code. He cannot be said to have taken undue advantage or acted in a cruel or unusual manner. In our view therefore in those circumstances the case can well fall under Exception 4 to sec. 300 of the Indian Penal Code and that would make him liable only under part II of sec. 304 of the Indian Penal Code. In this respect we may refer to the decision in the case of Chamru Budhwa v. State of Madhya Pradesh A. I. R. 1954 S. C. 652 where in similar circumstances with one fatal blow on head given it was held that the offence would fall under Part II of sec. 304 of the Indian Penal Code. ( 9 ) IN any view of the case therefore the order of conviction passed by the learned Additional Sessions Judge for an offence under sec. 302 of the Indian Penal Code cannot be justified and that conviction is altered to one under sec. 304 part II of the Indian Penal Code. In the circumstances of the case we convict and sentence him to suffer rigorous imprisonment for five years for an offence under sec. 304 part II of the Indian Penal Code. .