STA TE OF KARNATAKA A v.

VEDANAYAGAM

NOVEMBER 23 994

[M.M. PUNCHHI AND K. JA YACHANDRA REDDY, JJ.] B

Indian Penal Code 1860-Clause Thirdly a/Section 300 Scope-Single injury-Stabbing with dagger on left side of chest Injury found sufficient in ordinary course of nature to cause death-No pre meditation-Accused intended to cause that particular injury-Whether Clause Thirdly of Section 300 /PC attracted-Held-Yes Conviction u!s 302 sustainable.

This appeal has been filed against the judgement of the High Court holding that the offence would come down to Section 304 P1trt II IPC and not one u/s 302 IPC.

The deceased, who was son of P.W. l's sister, was living with his D mother PW 3. The accused developed illicit intimacy with the wife of PW 1. On the fateful day PW 3, the mother of the deceased and the mother of the accused were quarrelling with each other. The accused hearing the quarrel came out of his house armed with a dagger. Seeing this PW 1 went and brought the deceased. Then the accused shouted that "you have defamed me. I would not leave you. I will Kill." Saying E this he stabbed on the left side of the chest of the deceased and the deceased fell down •nd died instantaneously. The Trial Court held him guitly u/s 302 IPC and sentenced him to under go imprisonment for life.

On appeal, the High Court confirmed the finding of the Trial Court namely that it was the accused who caused the fatal injury but F held that having regard to the genesis of the matter i.e. that there was no pre-meditation and since the accused inflicted only one blow with the dagger which unfortunately landed on the chest, it cannot be said that the accused intended to cause the death of the deceased. (The High Court also observed that on seeing the deceased the accused who had. G only a knife in his hand gave only one blow and unfortunately it landed on the chest of the deceased and that there are no circumstances placed before us to indicate that the accused wanted to finish off Sugumaran or intendt.d to finish off Sugumaran. Therefore, under these circumstances, it is very difficult to infer that the accused inflicted the blow on the chest of the deceased with an intention to bring about his H

A death. The High Court further held that "Therefore, according to the principle laid down in Tholan's case, we think that the offence, however, unfortunate it may be, would come down to Section 304 Part

II, IPC.")

The question that arose for consideration was whether the offence B committed by the sole accused in this case amounted to murder punishable u/s 302 IPC or culpable homicide punishable u/s 304 Part II IPC and whether the High Court was right in holding that whenever there is only single injury the offence would be culpable homicide though the medical evidence is to the effect that the some is necessarily fatal and sufficient in the ordinary course of nature to cause death. c

Allowing the appeal, this Court

HELD 1.1 Both the Courts below have clearly noted that the injury was a very serious one which brought about the instant death. The blow was aimed at the chest and the injury was inflicted with great force with a deadly weapon on the vital part. It entered the thoracic cavity, passed through the substance of the sternum, injured the lower lobe of the left lung and entered the chamber of the right ventricle. It is not a case where there was a quarrel between the accused and the deceased or where they grappled with each other so that it cannot be definitely said that the accused aimed the blow at a particular part of the body and therefore, intended to cause that particular injury which was objectively found to be sufficient in the ordinary course of nature to cause death. No doubt there was no pre-meditation. Therefore, the important question is whether Clause Tqirdly of Section 300 IPC is attracted. (701 D to F)

1.2 Ingredient of Clause Thirdly of Section 300 IPC is not the intention to cause death but on the other hand the ingredient to be proved is the intention to cause the particular injury that was present.

It is fallacious to contend that whenever there is a single injury only a case of culpable homicide is made out irrespective of other circumstances. (702 G)

Virsa Singh v. State of Punjab, (1958) SCR 1495; Jagrup Singh v.

State of Harayana, [1981) 3 SCC 616, Jai Prakash v. State (Delhi Administration) JT (1991) 1 SC 288, relied on.

H Tho/an v. State of Tamil Nadu, AIR (1984) SC 759, distinguished.

1.3 There is no legal basis whatsoever for the High Court to hold A that since the respondent accused gave only one blow, though found to be sufficient in the ordinarily course of nature to cause death, Clause Thirdly of Section 300 is not attracted. In the instant case, there was hostility between PW 1 and the accused. The words uttered by the accused against the deceased followed by the stabbing with the dagger on the left side of the chest of the deceased, would clearly indicate that B he intended to cause that particular injury which was objectively found to be sufficient in the ordinary course of nature to cause death. (704 G,

705H, 706 B)

1.4. Going through the facts of the case, there is no doubt whatsoever that the accused intended to cause that particular injury on C the chest which necessarily proved fatal. Therefore, Clause Thirdly of Section 300 IPC is clearly attracted. The High Court erred in holding that the accused did not intend to cause his death by inflicting the injury in his chest because there was no pre-meditation and, therefore, the offence would be culpable homicide. This view of the High Court is not correct. (706 C, D) D

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 454 of 1988.

From the Judgment and Order dated 16.9.87 of the Kamataka High Court in Crl .A. No.302 of 1986.

Mohan R. Katak and M. Veerappa for the Appellant.

R.P. Wadhwani for the Respondent.

The Judgment of the Court was delivered by

K. JAYACHANDRA REDDY, J. The question that arises for consideration in this appeal filed by the State of Kamataka is whether the offence committed by the respondent, the sole accused in the case, amounts

to murder punishable under Section 302 l.P.C. or culpable homicide punishable under Section 304 Part II l.P.C. and whether the High Court is right in holding that whenever there is only single injury the offence would G be only culpable homicide though the medical evidence is to the effect that the same is necessarily fatal and sufficient in the ordinary course of riature to cause death ?

The deceased Sugumaran, P.W.1, Pooswamy and other material witnesses were all workers in Kolar Gold Field and were residing in a place H

called Gorgaum. The House of the accused w&s about 26 feet from P. W. l's house. The deceased, who was son of P.W. l. 's sister, was living with his mother P.W. 3, Muniyamma in another house. The accused developed illicit intimacy with Chudamani, wife of P.W:l. on 9.7.1984 at about 11 P.M., P.W.l saw the accused making signs to his wife Chudamani and seeing P.W.l he ran away. On 13.7.1984 at about 3.P.M., P. W. 3 and the mother of the accused were quarrelling near the house of P. W. l. P. W. l rushed to the house of P.W. 3 and fetched her son, the deceased. The accused in the meanwhile, on hearing the quarrel, entered the scene with a knife M.0.1 in his hand and on seeing the deceased the accused gave a knife blow on the left side of his chest as a result of which the deceased fell down and died instantaneously. P.W. l chased the accused but could not catch him. Thereafter he went to the police station and gave a report, Ex.P.l. P.W. 10, S.I., took up investigation, held the inquest and sent the dead body for post-mortem. The Doctor, who conducted the post-mortem, found one stab injury on the left side of the chest and opined that the death was a result of the said injury to the vital organs. After completion of the investigation, the charge sheet was laid. The accused pleaded not guilty.

The trial court accepted the prosecution case and held that a clear case . under Section 302 I.P.C. is made out and accordingly convicted the accused and sentenced him to undergo imprisonment for life. On appeal the High Court confirmed the finding of the trial court namely that it was the accused who caused the fatal injury but relying on the judgment of this Court in Tho/an v. State of Tamil Nadu, AIR (1984) SC 759, however, held that having regard to the genesis of the matter i.e. that there was no pre - meditation and since the accused inflicted only one blow with the dagger, M.0.1 which unfortunately landed on the chest, it can not be said that "the accused intended to cause the death of the deceased." The High Court also observed that on seeing the deceased the accused who held already a knife in his hand "gave only one blow to Sugumaran and unfortunately it landed on the chest of the deceased" and "that there are no circumstances placed before us to indicate that the accused wanted to finished off Sugumaran or intended to finish off Sugumaran. Therefore, under these circumstancs. it is rather very difficult to infer that the accused inflicted the blow on the chest of the deceased with an intention to bring about his death. "The High Court further held that" Therefore, according to the principle laid down in Tholan's case, we think that the offence, however, unfortunate it may be, would come down to Section 304 Part II I.P.C.

It is the above finding of the High Court that is challenged in this appeal by the State. Both the Court below have held that on seeing the deceased, Sugumaran, the accused who was armed with a dagger, M. 0. l,

plunged it into the left side of the chest of the deceased as a result of which A he died instantaneously. The Doctor, who conducted the post-mortem, noted the following injury :

"a) a punctured wound 2" by 112 "over the chest on the left side over the 2nd costal cartilage 1" from the mid sternum situated obliquely. It has clean out edges and sharp angles at B both the extremities edges are over cut. The edges of the wound clean not bruised. On probing the wound with ablunt probe it had freely entered the theresic cavity.

On dissection it is noticed that the wound had passed through the substance (T) of the sternum , 2nd costal C cartilage anterior border of the lower lobe of the left lung and entered the chamber of the right ventricle 2 "above the .... (not clear) of the heart."

Both the courts below have clearly noted that the injury was very serious one which brought about the instant death. From the above D description, it can be seen that the blow was aimed at the chest and the injury was inflicted with great force with deadly weapon on the vital part. It entered the thoracic cavity, passed through the substance of the sternum , injured tlie lower lob of the left lung and entered the chamber of the right ventricle. It is not a case where there was a quarrel between the accused and the deceased or where they grappled with each other so that it can not be E definitely said that the accused aimed the blow at a particular part of the body and therefore intended to cause that particular injury which was objectively found to be sufficient in the ordinary course of nature to cause death. No doubt there may be scope to contend that there was no pre - meditation and therefore Clause Firstly of Section 300 l.P.C. namely that F the accused intended to cause death, is not attracted. But the important question is whether Clause Thirdly of Section 300 l.P.C. is attracted.

The scope of Clause .Thirdly of Section 300 l.P.C has been the subject matter of various decisions of this Court. The decision in Virsa Singh v.

State of Punjab, [1958] SCR 1495 has throughout been followed in a G number of cases by all the High Courts as well as the Supreme Court. In all these cases the approach has been to find out whether the ingredient namely the intention to cause the particular injury was present or not ? If such an intention to cause that particular injury is made out and if the injury is found to be sufficient in the ordinary course of nature to cause death, then Clause Thirdly of Section 300 1.P.C. is attracted. Analysing Clause Thirdly H

A and as to what the prosecution must prove, it was held in Virsa Singh 's case as under:

"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 bodly injury, that is to say, that it was not accidental or unitentional, 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 element 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 . "

It was further observed as under :

"If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional. "

(emphasis supplied)

Thus it is clear that ingredient of clause Thirdly is not the intention to cause death but on the other hand the ingredient to be proved is the intention to cause the particular injury that was present. It is fallacious to contend that wherever there is a single injury only a case a culpable homicide is made out irrespective of other circumstances. In Emperor v.

Sardarkhan Jaridkhan, (1917) l.L.R. 41 Bombay 23, 29 it was observed as under:

"where death is caused by a single blow, it is always much more difficult to be absolutely certain what degree of bodily injury the offender intended."

Commenting upon this observation Justice Bose in Virsa Singh 's case A held thus:

"With due respect to the learned Judge he has linked up the intent required with the seriousness of the injury, and that, as we have shown, is not what the section requires. The two matters are quite separate and distinct, though the evidence B about them may sometimes overlap."

As to how the intention is to be inferred even in a case of single injury, Justice Bose further held as under :

"The question is not whether the prisoner intended to inflict C a serious injury or a trivial one but whether he 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 D 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 infict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in E 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. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct F question and has nothing to do with the question whether the prisoner intended to inflict the injury in question.

It is true that in a given case the enquiry may be linked up with the seriousness of the injury. For example, ifit can be G proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be as serious H

704 SUPREME coµRT REPORTS

(1994] SUPP. 5 S.C.R

as it turned out to be but because he did not intend to inflict the injury in question at all. His intentiqn in such a case would be to inflict a totally different injury. The difference is not one of Jaw but one of fact"

(emphasis supplied)

.This question was again considered Jagrup Singh v. State of Haryana, [1981] 3 SCC 616 by a Bench of this Court consisting of Justice D.A.Desai and Justice A.P.Sen and following the ratio laid down in Virsa Singh 's case it was held as under :

"There is no justification for the assertion that the giving of a so/itqry blow on a vital part of the body resulting the death must always necessarily reduce the offence to culpable homicide not amounting to murder punishable under Section 304, Part II of the Code. If a man deliberately strikes another on the head with a heavy Jog of wood or an iron rod or even a lathi so as to cause a fracture of the skill, he must in the absence of any circumstances negativing the presumption, be deemed to have intended to cause the death of the victim or such bodily injury as is sufficient to cause death. The whole thing depends upon the intention to cause death, and the case may be covered by either clause Firstly or clause Thirdly. The nature of intention must be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon the death. "

(emphasis supplied)

Therefore there is no legal basis whatsoever for the High Court to hold that since the respondent accused gave only one blow, though found to be sufficient in the .ordinary course of nature cause death, Clause Thirdly of Section 300 is not attracted.

In Tho/an 's case as well as other cases relied upon by the learned counsel for the defence, it was found that the genesis of the occrrence as such that there was a sudden quarrel, intervention or grappling or 4:ight which threw a doubt abo, ut the necessary ingredient namely intention 1to

cause that particular injury being there.

STA TE OF KARNAT AKA v. VEDANA YAGAM [K. JAY ACHANDRA REDDY, J.] 705

Jai Prakash v. State (Delhi Administration) JT 1991 (1) S.C. 288, all A the cases including Tho/ans Case have been considered in the light of the principles laid down in Virsa Singh's case and ultimately itwas concluded as under:

"In all these cases, injury by a single blow was found to be sufficient in the ordinary course of nature to cause death. B The Supreme Court took into consideration the circumstances such as sudden quarrel, grappling etc. as mentioned above only to assess the state of mind namely whether the accused had the necessary intention to cause that particular injury i.e. to say that he desired expressly that C such injury only should be the result. It is held in all these cases that there was no such intention to cause that particular injury as in those circumstances, the accused could have been barely aware i.e. only had knowledge of the consequence. These circumstances under which the appellant happened to inflict the injury it is felt or atleast a D doubt arose that all his mental faculties could not have been' roused as to form an intention to achieve the particular result. We may point out that we are not concerned with the intention to cause death in which case it will be a murder simplicitor unless exception is attracted. We are concerned under clause Thirdly with the intention to cause that E particular injury which is a subjective inquiry and when once such intention is established and if the intended injury is found objectively to be sufficient in the ordinary course of nature to cause death, clause Thirdly is attracted and it would be murder, unless one of the exceptions to Section F 300 is attracted. If on the other hand this ingredient of 'intention' is not established or if a reasonable doubt arises in this regard then only it would be reasonable to infer that clause Thirdly is not attracted and that the accused must be attributed knowledge that in inflicting the injury he was likely to cause death in which case it will be culpable G homicide punishable under Section 304 Part II l.P.C."

In the instant case, the accused had illicit intimacy with the wife of P.

W. I. From this it can be said that there was hostility between P. W. l and the accused. On the fateful day P.W.3, the mother of the deceased and the mother of the accused were quarrelling with each other, and even by then H

A the accused hearing the quarrel came out of his house anned with a dagger.: Seeing this P.W.l went and brought the deceased. Then the accused shouted that "You have defamed me. I would not leave you. I will kill" Saying this he stabbed on the left side of the chest of the deceased and the deceased fell down and died instantaneously. It is important to note that there was neither a quarrel nor a fight between the deceased and the B accused. The words uttered by the accused against the deceased followed by the stabbing with the dagger on the left side of the chest of the deceased; would clearly indicate that he intended to cause that particularly injury which was objectively found to be sufficient in the ordinary course of nature to cause death.

C From all the above facts, there is no doubt whatsoever that the accused intended to cause that particular injury on the chest which necessarily proved fatal. Therefore Clause Thirdly of Section 300 l.P.C. is clearly attracted. The High Court erred in holding that "accused did not intend to cause his death by inflicting the injury on the chest because there was no .pre-ineditation and therefore the offence would be culpable homicide." This D view of the High Court isno~ correct and as discussed above Clause Thirdly of Section 300 l.P.C. is clearly attracted. For all these reasons we set aside the judgment of the High Court and restore the judgment of the trial court covicting the accused under Section 302 l.P.C. and sentencing him to undergo for life. Accordingly the appeal is allowed.

E A.G.

Appeal allowed.