Case ID: 2310

Judgment:
Criminal Appeal No. 21 of 1965. Appeal by special leave from the judgment and order dated May 19	 1964 of the Punjab High Court	 Circuit Bench at Delhi in Criminal Appeal No. 7 D of 1963. A.S.R. Chari	 C.L. Sareen and R.L. Kohli	 for the appellant. B.R.L. lyenger	 S.P. Nayar for R.N. Sachthey	 for the respondent. The Judgment of the Court was delivered by Sikri	 J. This appeal by special leave was limited to the question whether the case comes under section 302 of the Indian Penal Code. The case of the prosecution which has been accepted by 247 the learned Sessions JUdge and the High Court was	. in brie as follows: On January 31	 1962	 at about 2.30 p.m.	 a fight took place ' between Dalip Kumar	 P.W. 12	 and Harjinder Singh	 appellant	 near the water tap in front of a tin factory in Zamirwali lane	 Delhi. Harjinder was apparently worsted in the fight and he then left the place holding out a threat that he would teach a lesson to Dalip Kumar. The appellant. returned with his brother Amarjit Singh to the house of Dalip Kumar and shouted to Dalip Kumar to come out. Tejibai opened the door of the house and asked the appellant and Amarjit Singh to go away	 but either these two or the appellant pulled Dalip Kumar out of the house into the lane and gave him beating near a lamp post in the comer of Zamirwali lane. that time the deceased Kewal Kumar	 who was the brother of Dalip Kumar	 came and tried to intervene and rescue his brother. It is at this stage that the evidence conflicting as to what exactly happened	 According to one version	 Amarjit Singh accused caught hold of Kewal Kumar and the appellant took out the knife and stabbed the deceased. According to the other version	 given by Mohd. Ali	 P.W. 5	 this is what happened: "Dalip Kumar 's brother holding Jinda accused asked him not to fight. Jinda at that time took out the knife from his pocket and opened it with both his hands and then gave a blow with it under the belly and the upper portion of the left thigh. Amarjit Singh accused did not do. anything. " In cross examination he stated: "Jinda accused was holding Dalip Kumar from the collar of his shirt by his left hand. At that time Kewal Kumar was on right hand side of Jinda accused. When Jinda took out the knife and opened it with both his hands	 Dalip Kumar and his brother Kewal were grappling with Jinda accused Jinda accused gave only one knife blow to Kewal Kumar. Kewal Kumar was m bent condition when he was stabbed only once." After inflicting this injury the appellant ran away. Dr. G. section 	Mittal	 P.W. 8	 noted the following injuries on the person of the deceased: 1. A stab wound 1"x1/4"x? On left thigh upper and below the inguinal ligament. Abrasion l" x linear on back of left fore arm middle. He described the other features of the injuries as follows: 248 "The direction of the stab wound was Oblique and was going medially. Sartorius muscle was cut underneath along with femoral artery and vein. Cut over major part of their diameter. There was effusion of blood in the muscles and around the track over left thigh upper end. " He deposed that death was due to shock and hemorrhage from injury to femoral vessels by stab wound of the thigh. He further stated: "It is correct that femoral artery and vein are important main vessels of. the body. The cutting of these vessels would result in great loss of blood. The cutting injuries of these vessels could result in immediate death or after short duration. " It was urged before the Sessions Judge 0n behalf of the appellant that	 in the circumstances of the case; the offence	 if at all committed	 Would fall under section 326	 I.P.C. The learned Sessions Judge	 relying on Virsa Singh vs State of Punjab (1)	 he/d: "In this case	 the prosecution has proved that the bodily injury	 the nature of which has been described above was present. This injury was caused with the pen knife deliberately. It was not accidental or unintentional. Injury of any other kind. was not intended. This injury in the opinion of this doctor was sufficient in the ordinary course of nature to cause death. This being so the case ; would apply and the offence which the accused Jinda has committed falls u/s 302 Indian Penal Code." The High Court	 on appeal	 over ruled a similar contention in the following words: "Lastly	 the counsel has attempted to take the case out of the purview of the offence of murder. It has been contended that it was. just a small knife with which a blow was given and that it was not on the vital part of the body and	 therefore	 the appellant should not be held guilty of murder. In my opinion	 the contention is wholly unsustainable. The deceased	 a boy of about 16 years of age had merely come to help his brother	 when the appellant	 who had deliberately come armed with knife from his house	 stabbed the deceased with that knife on vulnerable part. 1 do not see how the (1) ; 249 offence can be considered not to fall within the purview of murder. " Later	 the High Court observed: "It is futile to contend that he did not intend to kill the deceased. The injury and the weapon are quite eloquent in this respect. " The learned counsel for the appellant	 Mr. Chari	 contends on the facts established in this case no offence under section 302 s been committed and the appellant should have been connected under section 326 or at the most under section 304	 part two. The learned counsel for the respondent strongly relies. on the decision this Court in Virsa Singh vs Slate of Punjab(1) and he says at all the ingredients laid down in that case by this Court are ascent in this case and	 therefore	 the High Court was correct in firming the conviction of the appellant under section 302	 I.P.C. It seems to us. that all the ingredients which were laid down this Court in that case have not been established in this case. Bose	 J.	 speaking for the. Court observed: "To put it shortly	 the prosecution must prove the following facts before it can bring a case under section 300	 "3rdly"; 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 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 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. " The learned Judge further explained the third ingredient at p. 1503 in the following words: "The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he (1) ; 250 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 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 inflict an injury of a particular degree of seriousness	 but whether he intended to inflict the injury in 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. In Rajwant singh vs State of Kerala(1)	 Hidayatullah	 J. referring to Virsa Singh vs state of Punjab(2)	 observed: "As was laid down in Virsa Singh vs State of Punjab. 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 so.me other injury and that it was not accidental or unintentional. If this is also held against the offender the offence of murder is satisfied. " It seems to us that the. High Court has not considered whether the third ingredient laid down by Bose	 J. in Virsa Singh vs State Punjab(2) has been proved in this case or not. In our opinion the circumstances justify the inference that the accused did not intend to cause an injury on this particular portion of the thigh. The evidence indicates that while the appellant was trying to assault Dalip Kumar and the deceased intervened	 the appellant timing 'himself one against two took out the knife and stabbed 1he deceased	 It also indicates that the deceased at that stage was in a crouching position presumably to intervene and separate the two. It cannot	 therefore	 be said With any definiteness that the appellant aimed the blow tat this particular part of the thigh knowing that it would cut the artery. It may be observed that the appellant had not used the knife While he was engaged in the fight with Dalip Kumar. It was only when he felt that the deceased also came up against him that he whipped out the knife. (1) A.I.R. 1965 S.C.1874	 1878 (2) ; 251 in these circumstances it cannot be said that it has been proved that it was. the intention of the appellant to inflict this particular injury on tiffs particular place. It is	 therefore	 not possible to apply cl. 3 of section 300 to the act of the accused. Nevertheless	 the deceased was in a crouching position when the appellant struck him with the knife. Though the knife was " 5 to. 6" in length including the handle it was nonetheless a dangerous weapon. When the appellant struck the deceased with the knife	 he must have known that the deceased then being in a bent position the blow would land in the abdomen or near it a vulnerable part of the human body and that such a blow was likely to result in his death. In these circumstances it would be quite legitimate to hold that he struck the deceased with the knife with the intention to cause an injury likely to cause death. We are	 therefore	 of the opinion that the offence falls under section 304 Part 1. The appeal is allowed and the conviction is altered from one under section 302 to section 304 Part 1 and the appellant is sentenced to seven years rigorous imprisonment. G.C. Appeal allowed.

Summary:
The appellant was convicted by the Sessions Judge under section 302 of the Indian Penal Code and the conviction was upheld by the High Court. According to the prosecution evidence the appellant was trying to assault one D when the latter 's brother K intervened. The appellant took out a knife and caused an injury on K 's thigh which cut an artery and resulted in his death. In appeal	 by special leave	 before this Court it was urged that in the circumstances of the case the intention and knowledge requisite for an offence under section 302 I.P.C.	 had not been established. HELD: (i) The appellant had not used the knife while he was engaged in the fight with D. It was only when he felt that the deceased also came up against him that . he whipped out the ' knife. The deceased was at that time in a crouching position. In these circumstances it could not be said that the appellant intended to cause the injury in the thigh knowing that it would cut the artery. It was	 therefore	 not possible to apply cl. 3 of section 300 to the act of the accused	 and he was not guilty of murder. [250 G H] Virsa Singh vs State of Punjab. ; 	 applied. (ii) However	 when the appellant struck the deceased with the knife	 he must have known that the deceased then being in a bent position	 the blow would land in the abdomen or near it a vulnerable ' part of the human body and that such a blow was likely to result in his death. In these circumstances it would be quite legitimate to hold that he struck the deceased with the knife with the intention to cause an injury likely to cause death. The offence	 therefore. clearly fell under section 304 Part 1. [251 B C]