STATE OF HARYANA

PALA AND ORS.

JANUARY 29, 1996

[K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

Penal Code, 1860:

Ss.302 r/2, 34, 304 Pmt ll-Murder-Inte11tion to cause death-T1ial C Cowt co11victing for murdei-High Court Convicting u11der S.304 Part II and sentencing the accused to undergo in1prison111ent to the period already undergone--On appeal held, accused shared co111n1on intention to kill the deceased-Hence convicted u11der S.302 r/2 S.34 and sentenced to impriso11ment for life.

D State of A.P. v. Rayavarapu Pu1111ayya, (1976] 4 SCC 382 relief on.

Lyon's Medical Jurispmdence for India (Tenth Edution), referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 210 of 1996.

E From the Judgment and Order dated 1.9.92 of the Punjab & Haryana High Court in Cr!. A No. 145-DB of 1990.

D.B. Vohra for Ms. Indu Malhotra for the Appellant.

F Rajiv K Garg and N.D. Garg for the Complainant.

B.K. Mehta and Prem Malhotra for the Respondents.

The following Order of the Court was delivered :

G Leave granted.

We have heard the counse.1 on both sides. The facts are thal 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 H them having been armed with musals, A-1 had attacked the deceased when

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he came in front of their house, on the head and hit him three times on A -

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 B 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 4cm x 1 cm. It was irregular in shape. According to the doctor, the cause of the death was due to septicaemia which resulted as a result of head-injury and was sufficient to cause death in ordinary course of nature. All the c injuries were ante/mortem in nature and were sufficient to cause death in the ordinary course of nature. He had stated that "Septicaemia 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 D

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 !PC, under Section 302 !PC and sentenced that to undergo imprisonment for life. On appeal, the High Court had applied exception 4 to Section 300 !PC and converted the offence of E murder into culpable homicide not amounting to murder and convicted under Section 304 Part JI and sentenced them to undergo imprisonment to the period already undergone and accordingly got them released. Thus this appeal by special leave.

F 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 septicaemia, it cannot be referable G 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 H

SUPREME COURT REPORTS

[1996] 1 S.C.R.

A 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 B 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.

C Clause thirdly of Section 300 !PC 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 !PC and that, therefore, it would not be a culpable homicide under Section 299 !PC.

D 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. v. Rayavarapu Punnayya, [1976] 4 SCC 382. The facts therein do not help the respondents. All the injuries therein though F 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 !PC and had reversed the contra-finding of the High Court had set aside the conviction under Section 304 part II and convicted the accused under Section 302 read with 34 !PC. It is true that this Court therein in paragraph 39 had observed that no secondary factor such as G gangrene, tetanus etc., supervended. 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 that a particular accused had caused fatal head injury, they are liable only to be convicted H under Section 326 !PC. We find no force. The facts as narrated above

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would establish that both the accused shared common intention to kill the A deceased and are liable to conviction under Section 302 read Section 34

lPC.

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 !PC. They are accordingly directed, as held by the trial court, B 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.

G.N.

Appeal allowed.