1. This is a reference under Section 307, Criminal P.C. by the Sessions Judge, Amravati, against the verdict of the Jury. The Jury have unanimously found the accused (non-applicant) guilty under Section 308 Penal Code. The Sessions Judge is of the view that the conviction ought to be under Section 307, Penal Code.
2. The accused was committed to the Court of Session for trial under Section 307, Penal Code, for making a murderous assault on Kashiram (P.W. 1) on 22-1-1955 with the dagger, Article F, which he recovered from his house. The injuries caused to Kashiram were the following:
(1) Incised wound 2' x 3/4' x 3/4' situated on the left side of back just 4' below the interior angle of the left scapula and 2' away from the middle line of back.
(2) Incised wound 1' x 3/4' x 3/4' on the left side of back just 1' below the 1st injury.
(3) Abrasion 1/2' x 1/2' on the palmer aspect of the left hand in the middle portion.
Dr. Bende (P. W. 13), who stitched the wounds, found that the pulse of the patient was weak, and accordingly sent him to the Irwin Hospital where he was given operative treatment and discharged from the hospital on 10-2-1955, that is after 18 days. As deposed to by Dr. Kathale (P. W. 14), it was found during operation that the 9th rib was sliced and the parietal pleura was cut causing collapse of the left lung. According to both the doctors the injuries on the back were sufficient in the ordinary course of nature to cause death.
3. Kashiram (P.W. 1) admitted that the accused was having quarrels with him from 8 or 10 days, but he denied that this was because he suspected him to be misbehaving with his wife. However, he does not appear to be a person above reproach, as he is undergoing prosecution for assault on a police constable and also for breaking into the house of a refugee. The case of the accused was that he heard the shouts of his wife when she went out to urinate and saw him holding her hand. On seeing him, he let go his wife and dashed his head forcibly against his abdomen, when, in the scuffle, he stabbed him twice on the back.
The Jury did not accept his statement but believed that he acted as he did because of the preceding incidents. The Sessions Judge holds that as the provocation was not sudden, even if grave, the case would not be covered by Exception 1 to Section 300, Penal Code, if death supervened, and, therefore, the offence falls under Section 307 and not under Section 308, Penal Code.
4. In order to bring a case within the third clause of Section 300, Penal Code, on which reliance appears to be placed by the Sessions Judge, it is_not only necessary that the injury is sufficient in the ordinary course of nature to cause death but also that the accused intended to cause such injury. Mahadeo (P. W. 2), who saw the incident, has stated that while leaving the place, the accused said to Kashiram 'Now I have left you alive but hereafter I will kill you'.
Obviously the accused meant that he would kill him if he again misbehaved. The utterance of the accused clearly indicates that he did not intend to cause death or any injury which he knew to be likely to cause death, or even to cause such injury as was sufficient in the ordinary course of nature to cause death.
Apart from the exceptions to Section 300, Penal Code, the case, therefore, would not fall within Section 302, Penal Code, if death was caused and accordingly the verdict of the Jury cannot be said to be erroneous. It is immaterial that they did not state the correct grounds for their verdict but that alone did not justify the reference by the Sessions Judge when the facts of the case did not establish the verdict to be of a nature which no body of reasonable men would have given,
5. The accused is accordingly convicted under Section 308, Penal Code. Looking to the circumstances of the case, we sentence him to undergo rigorous imprisonment for a period of 2 years.
6. The reference is not accepted.