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State of Mysore Vs. Hanamant Nagappa Gavada of Hattarwad - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Case NumberCriminal Appeal No. 282 of 1963
Judge
Reported inAIR1965Kant150; AIR1965Mys150; 1965CriLJ737; (1964)1MysLJ529
ActsIndian Penal Code (IPC), 1860 - Sections 300, 302, 304 and 342
AppellantState of Mysore
RespondentHanamant Nagappa Gavada of Hattarwad
Excerpt:
- section 11:[s.r. bannurmath & a.n. venugopala gowda, jj] res judicata - industrial disputes act (14 of 1947), section 33(2)(b) & 10 - permission for dismissal of workman sought by management under section 33(2)(b) of act - domestic enquiry against workman was set aside by tribunal and parties were directed to prove their respective case by leading evidence thus in said proceeding tribunal decided issue of misconduct of workman on merits and accordingly permitted his dismissal said dismissal thereafter challenged by workman under section 10 - held, issue of misconduct as decided earlier is substantive one and cannot be treated s incidental. findings of proceeding under section 33 having not been challenged, attained finality. same can neither be ignored nor be tried in a subsequent.....h. hombe gowda, c.j. (1) respondent hanamant nagappa gavada of hattarwad was put on his trial for an offence punishable under s. 302 of the indian penal code before the second additional sessions judge, belgaum. the charge against the respondent was that on the 2nd day of february 1963 at about 4 p.m. he assaulted one appayya kallappa gavada of hattarwad with the sickle (m.o. 2) and inflicted a number of injuries to him which resulted in his death and was, therefore, liable to answer the charge under s. 302 of the indian penal code. after trial the learned judge held that the respondent was guilty of an offence of culpable homicide not amounting to murder punishable under s. 304 of the indian penal code. the learned judge, who accepted the entire evidence of the prosecution, acquitted the.....
Judgment:

H. Hombe Gowda, C.J.

(1) Respondent Hanamant Nagappa Gavada of Hattarwad was put on his trial for an offence punishable under S. 302 of the Indian Penal Code before the Second Additional Sessions Judge, Belgaum. The charge against the respondent was that on the 2nd day of February 1963 at about 4 p.m. he assaulted one Appayya Kallappa Gavada of Hattarwad with the sickle (M.O. 2) and inflicted a number of injuries to him which resulted in his death and was, therefore, liable to answer the charge under S. 302 of the Indian Penal Code. After trial the learned Judge held that the respondent was guilty of an offence of culpable homicide not amounting to murder punishable under S. 304 of the Indian Penal Code. The learned Judge, who accepted the entire evidence of the prosecution, acquitted the respondent of he charge under S. 302 of the Indian Penal Code but convicted him under S. 304 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of five years. The State being aggrieved by the acquittal of the respondent under S. 302 of the Indian Penal Code had preferred this appeal.

(2) The facts of the case are as under : Hanamant Nagappa Gavada and deceased Appayya Kallappa Gavada are cousins. They were living in different portions of the same house in Hattarwad. Some months prior to the date of the incident, the wife of the respondent was haunted with evil spirits. The respondent suspected that Ayyappa Kallappa Gavada was responsible for the same and on that account they were not on talking terms. On 2-2-1963 in the early hours of the morning the paddy stack of the respondent heaped in his threshing floor was burnt. The respondent suspected that Ayyappa Kallappa Gavada set fire to the paddy stack and was responsible for the damage caused to his paddy stack. The respondent was able to save part of the paddy stack with the help of villagers from fire.

On the afternoon of 2-2-1963 the mother of the respondent was in the field and was engaged in collecting the unburnt paddy in the threshing floor. The respondent went to his threshing floor at about 3 p.m. with a sickle in his hand. Appayya Kallappa Gavada was engaging himself in digging the earth with a spade in his field which is situated quite near the threshing floor of the respondent. It is stated that the respondent was in his threshing floor for some time talking to his mother and then came to the place where Ayyappa Kallappa Gavada was digging earth and belaboured him with the sickle and inflicted as many as 39 injuries which resulted in his death. The information about the incident was conveyed to the Nandagad Police and they came to the spot. The respondent was taken into custody and a blood stained khaki half pant on his person was seized. On the information furnished by the respondent (M.O. 2) the sickle which was stained with blood and (M.O. 3) a khaki full shirt which was stained with blood were seized in the presence of the panchayetdars.

The investigation conducted by the Sub-Inspector of Police of Nandagad disclosed that the respondent had intentionally inflicted a number of injuries with M.O. 2 the sickle on the afternoon of 2nd February 1963 and was thus responsible for the unnatural death of Appayya Kallappa Gavada. A charge sheet was accordingly placed against the respondent in the Court of the Judicial Magistrate Khanpur. The learned Magistrate committed the respondent to take his trial for an offence under S. 302 of the Indian Penal Code in the Court of Session, Belagum. The trial of the respondent was held before the Second Additional Sessions Judge, Belgaum. The learned Judge framed a charge for an offence punishable under S. 302 of the Indian Penal Code. When the same was read over and explained to the respondent, he claimed to be tried. The prosecution examined as many as 17 witnesses to establish the charge of murder against the respondent.

The respondent having entered upon his defence examined his mother Rukmini to rebut the evidence of the prosecution. The plea of the respondent was one of the justification. He admitted that he belaboured Appayya Kallappa Gavada, his cousin with M.O. 2 while he was digging earth in his field on the afternoon of 2nd February 1963 and that Appayya succumbed to those injuries on the spot. His plea was that he was provoked by the challenge given to him by deceased. He also stated that Appayya Kallappa Gavada hit him with the handle of the spade which was in his hand which caused him pain on his back and that his mind was very much disturbed on account of the infliction of the injury caused by the handle of the spade by the deceased. In order to support this plea, the respondent examined his mother Rukmini on his behalf.

The learned Judge, who recorded the evidence of the witnesses and the statement of the respondent and the evidence of the only defence witness, held that the version of the prosecution that the respondent inflicted the injuries with M.O. 2 to Appayya Kallappa Gavada and those injuries resulted in his death, is true. He further held that the version of the respondent that he attacked Appayya Kallappa Gavada on account of the grave provocation is not true. He also rejected the version of the respondent that he was hit with the handle of the spade by the deceased and that he apprehended danger to his life and, therefore, attacked Appayya Kallappa Gavada. The learned Judge rejected the contention put forward on behalf of the respondent that the case of the respondent fell within exception (1) to S. 300 of the Indian Penal Code. He held that the evidence on record did not support the case of the respondent that he was deprived of the power of self-control by grave and sudden provocation so as to bring his case within exception (1) to S. 300 of the Indian Penal Code.

The learned Judge also rejected the plea put forward on behalf of the respondent that his case fell within exception (2) to S. 300 of the Indian Penal Code. He held that the evidence on record ruled out the possibility of the respondent having acquired the right of private of self-defense so as to entitle him to cause the death of Appayya Kallappa Gavada. Similarly the learned Judge negatived the defence put forward on behalf of the respondent that his case fell within exception (4) to S. 300 of the Indian Penal Code inasmuch as the evidence did not establish (1) sudden fight, (2) absence of pre-meditation, and (3) want of no undue advantage. Having rejected all these contentions the learned Judge proceeded to consider whether the offence committed by the respondent is murder or culpable homicide not amounting to murder. The learned Judge held that the respondent can only be said to have intended to cause such bodily injury as was likely to cause death. The offence, therefore, reduces itself to one punishable under S. 304 of the Indian Penal Code.

Accordingly the learned Judge convicted the respondent under S. 304 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for a period of five years. By this judgment the learned Judge impliedly acquitted the respondent of the offence under S. 302 of the Indian Penal Code. The respondent has not filed any appeal against his conviction under S. 304 of the Indian Penal Code and sentence of five years R.I. awarded to him for the said offence. The State has filed this appeal against the acquittal of the respondent on the charge under S. 302 of the Indian Penal Code.

(3) It is urged by Mr. Mahajan, the learned Counsel for the Appellant that the learned Judge having believed the prosecution story in its entirety fell into an error in holding that the respondent that no intention to cause the death of the deceased. He urged that the conclusion reached by the learned Judge that the offence committed by the respondent is not murder is palpably erroneous. Mr. Javali, who appeared for the respondent contended that in view of the fact that the State has preferred an appeal against the acquittal of the respondent on the charge under S. 302 of the Indian Penal Code he is entitled to ask the Court to reopen the whole case and urged that the prosecution has failed to make out a charge against the respondent for an offence under S. 302 of the Indian Penal Code. We are of the opinion that the learned counsel for the respondent is not entitled to advance any argument with regard to the conviction of the respondent for the offence of culpable homicide not amounting to murder punishable under S. 304 of the Indian Penal Code inasmuch as he has not preferred an appeal against the same.

The question as to whether a convicted person who has not preferred an appeal against the conviction is or is not entitled to challenge the conviction while an appeal filed by the State against his acquittal in respect of another charge is heard came up for consideration before their Lordships of the Supreme Court in State of Andhra Pradesh Thadi Narayana, : [1962]2SCR904 . Their Lordships held that

'In a case where several offences are charged against an accused person the trial is no doubt one; but where the accused person is acquitted of some offences and convicted of others the character of the appellate proceedings and their scope and extent is necessarily determined by the nature of the appeal preferred before the appellate Court. If an appeal is preferred against an order of acquittal by the State and no appeal is filed by the convicted person but the order of acquittal is not challenged by the State then it is only the order of conviction the falls to be considered by the appellate Court and not the order of acquittal. Therefore, the assumption that the whole case is against conviction is not well-founded and as such it cannot be pressed into service in construing the expression 'after the findings' '.

Even on merits we do not find any case for the respondent to claim an acquittal.

Therefore, we will now proceed to consider the merits of the contentions of Mr. Mahajan relating to the acquittal of the respondent of the offence under S. 302 of the Indian Penal Code. The fact that Appayya Kallappa Gavada succumbed to the injuries which he has sustained in his field at about 4 p.m. on 2nd February 1963 and that it is the respondent (Hanamant Nagappa Gavada) that inflicted those injuries with M.O. 2 the sickle is not in dispute. Apart from the trustworthy evidence of the four eye witnesses examined by the prosecution, the admission made by the respondent when he was examined under S. 342 of the Code of Criminal Procedure and the evidence given by D.W. 1, Rukmini Bai, the mother of the respondent makes this position abundantly clear. (His Lordship perused the evidence of the eye-witnesses and proceeded).

When the respondent was questioned as to what he has to say about the evidence of the eye witnesses, he gave the following answer:

'As the deceased provoked me by saying that he had burnt his paddy stack and as he used challenging words I was provoked and I cut the deceased with the sickle. While the deceased gave a challenge he had raised the spade and gave a blow to me with its handle.'

The respondent has further admitted that M.O. 1, Khaki half pant and M.O. 3 Khaki full shirt belonged to him and they were on his person at the time he attacked Appayya Kallappa Gavada and inflicted the injuries and both of them had been stained with blood. He has further admitted that M.O. 2 the sickle which he produced before the Sub-Inspector of Police on the date of the incident was stained with blood and that is the weapon with which he inflicted the injuries to Appayya Kallappa Gavada.

The only excuse that the respondent advanced was that is was on account of the provocation and in heat of passion that he killed Appayya Kallappa Gavada and he pleaded for mercy. It is clear from the evidence of the eye-witnesses that the version of the respondent that he was provoked or beaten by Ayyappa Kallappa Gavada (deceased) is not true. As a matter of fact all the witnesses have stated in one voice that the respondent gave three or four blows with M.O. 2 to Ayyappa Kallappa Gavada P.W. Parashivarama has stated that the respondent proceeded a few paces from the place thereafter and having observed Ayyappa Kallappa Gavada getting up, he came back to the place and inflicted a good number of injuries and caused his death. This version of the several eye-witnesses has not been controverted by the respondent in the course of their cross-examination.

(4) P.W. 3 Dr. Shantappa, who conducted the post mortem examination over the dead body of Ayyappa Kallappa Gavada on 3rd February 1963 observed as many as 39 injuries on his person and they are as follows:

(1) An incised wound 21/4' x 1/4' and bone deep on the left temporal region, anterior-posterior in direction, passing through the upper third of left ear.

(2) Left ear is cut across by an incised wound 1' x 1/4' x 1/2' in its upper third.

(3) An incised wound 3' x 1/2' x 1/4' on the right cheek upper part extending between right eye and the lobule of right ear.

(4) An incised wound 11'x2'x11/2' extending from lobule of right ear and going round the neck on its back side and ending at left maxillary process. This has cut all the soft structures f the neck and exposed the bones at its bases.

(5) An incised wound 21/2'x11/2'x11/2' on the left side of neck 1' below the lobule of the ear.

(6) An incised wound 5'x11/2'x11/2' on the back and left side of neck at the level of 6th cervical spine.

(7) An incised wound 21/2' x 2'x 11/2' on the left side of neck oblique in direction 11/2' below body of mandible.

(8) An incised wound 21/2'x 3/4'x1/2' on the region of left body of mandible.

(9) Chip fracture of mandible at the base of injury No.8 fractured surfaces are smoothly cut.

(10) An incised wound 3/4'x1/6'x1/10' on the medial half of right eyebrow.

(11) An incised wound 1/4'x1/4' x1/4' on the bridge of the nose.

(12) An incised wound 11/2' x 1/4' skin deep 11/2' below the middle of left clavicle.

(13) An incised wound 1' x 1/4' skin deep 1' below the right sterno-clavicular joint.

(14) An incised wound 3' x 11/4'x1/2' on the lateral aspect of middle third of right forearm. This has exposed the right ulna at its base.

(15) An incised wound 1' x 3/4' x 1/2' on the dorsal aspect of right palm between the 4th and 5th matacarpal bones at their distal ends.

(16)An incised wound 1' x1/10' bone deep on the dorsal aspect of middle and terminal phalanges of right little finger. This has avulsed the nail.

(17)An incised wound 11/2' x 1/2' skin deep on the medial aspect of left arm in its middle.

(18) An incised wound 21/2' x1/4'x skin deep 1' below and lateral to injury No.17 transverse in direction.

(19) An incised wound 3/4' x 1/4' skin deep. 1/2' above injury No. 18.

(20) An incised wound 3/4 x 1/4' skin deep. 1/2' above injury No. 19.

(21) An incised wound 3/4'x 1/4' x skin deep, 1/2' on the outer aspect of lower third of left arm.

(22)An incised wound 11/4' x 1/8' x skin deep on the top of left shoulder.

(23) An incised wound 6' x 1/2' x skin deep transverse in direction in the left mid-scapular region.

(24) An incised wound 2/12' x 2' x 11/2' on below the left forearm back aspect 1' below tip of elbow.

(25) Compound fracture of left radius and ulna at the base of injury No. 24. Fractured ends are clearly cut.

(26) An incised wound 11/4' x 1/2' x skin deep on the lower end of left ulna.

(27) An incised wound 3/4'x 1/2' x skin deep on the dorsal aspect of middle phalanx of left little finger.

(28) An incised wound curved in shape 3/4' x 1/4' x skin deep on the dorsal aspect of proximal phalanx of left ring finger.

(29) An incised wound 11/2' x 3/4' x 1/2' on the dorsal aspect of left ring finger on its middle and terminal phalanges.

(30)Compound fracture of terminal phalanx of left ring finger at the base of injury No. 29.

(31)An incised wound curved in shape 1/4' x 1/2' x skin deep on the dorsal aspect of proximal phalanx of left middle finger.

(32) An incised wound 3/4' x 1/4' x skin deep 1/3' distal to injury No. 31.

(33) An incised wound curved on shape 1' x 1/3' x skin deep on the dorsal aspect of middle phalanx of left middle finger.

(34)An incised wound 3/4' x 1/4' x bone deep on the dorsal aspect of proximal phalanx of left index finger.

(35) Chip fracture of proximal phalanx of left finger at the base of injury No. 34. Fractured surface are smooth.

(36)An incised wound 1' x 1/4' x skin deep on the right mid scapular region 2' lateral to the spine.

(37)An incised wound 3' x 1/4' x skin deep 3/4' to the left of umbilicus oblique in direction.

(38)A perforating incised wound 3' x 2' x peritoneum deep on the left lumber region 3/4' above lilac crest transverse in direction. Through this the coils of intestines are protruding. They are lacerated irregularly.

(39) An incised wound 2' x 3/4' x 1' on the outer aspect of left knee.

(5) The Doctor is of the opinion that the above injuries and fractures were ante mortem and death was instantaneous in this case. He has further stated that injuries Nos. 4, 6 and 38 were individually fatal and the injuries found on the person of the deceased could have been caused by M.O. 2 the sickle. He has further stated that the cause of death was shock and hemorrhage. The version of the Doctor has remained unchallenged. Further the respondent himself had admitted that he was responsible to inflict all the injuries found on the person of Ayyappa Kallappa Gavada. It is no doubt true that the respondent has stated in his examination under S. 342 of the Code of Criminal Procedure that the deceased gave him a challenge and also beat him with M.O. 4 on his back. It is proved this fact namely that the deceased provoked him by using challenging words and also beat him with the hind portion of M.O. 4. The respondent examined Rukminibai, his mother.

The version of Rukminibai is that the deceased gave a blow with the hind portion of M.O. 4 on the buttocks of the respondent while the version of the respondent is that the deceased gave a blow with the hind portion M.O. 4 on the back. It is significant to note that the panchayatdars examined the person of the respondent on the evening of 2nd February 1963 when he was taken into custody by the Sub-Inspector of Police and that did not find any injury either on the back or on the buttocks of the respondent. They have noted that the respondent complained of pain on his back due to the blow that had been delivered by the deceased with the spade. There is absolutely no reason to discredit their version. No question with regard to the beating by the deceased on the back of the respondent with M.O. 4 was put to any one of those witnesses.

Even if there is some truth in the version of the respondent that the deceased gave a blow with the hind portion of M.O. 4, we do not think that the right of private defence of the respondent extended to the extent of inflicting as may as 39 injuries, (three of them being individually fatal) to the deceased. The evidence of the eye-witnesses referred to above which has remained unchallenged clearly indicated that the respondent proceeded form the place after inflicting a few injuries and after Appayya Kallappa Gavada fell down to some distance; that he turned back and found Appayya Kallappa Gavada trying to get up and once again came inflicted a good number of injuries with M.O. 2 and causes his death on spot. It is clear from this that the version of the respondent that he committed the act on sudden and grave provocation or the act of the deceased gave him a feeling that his life was in peril or that the deceased was likely to cause any bodily harm is not true. Similarly the evidence on record does not establish that the respondent committed the act in a sudden fight and without any premeditation or that he did not take undue advantage over the deceased in inflicting the injuries.

The evidence on the other hand clearly establishes that the respondent had come to the place armed with M.O. 2 with a view to assault Appayya Kallappa Gavada and that his sole object was to finish him off as he entertained suspicion in his mind that the deceased was responsible to set fire to his paddy stack heaped in his thrashing-floor. The learned Judge in our opinion rightly rejected the contention put forward on behalf of the respondent that his case fell within exceptions (1), (2) and (4) of S. 300 of the Indian Penal Code.

(6) Having thus rejected the plea of the respondent the learned Judge was of the opinion that the offence committed by the respondent was one of culpable homicide not amounting to murder inasmuch as the respondent never intended to cause such bodily injury that was likely to cause death. We are unable to accept this reasoning of the learned trial Judge. When a person inflicts as many as thirty-nine injuries, three of them being of fatal character with a sharp weapon like M.O. 2 to a person who is unarmed, it should be presumed that he intended to cause such bodily injury as was likely to endanger his life. The learned trial Judge has not read the definition of murder in S. 300 of the Indian Penal Code properly. The learned Judge has, in our opinion, failed to notice the clauses 'thirdly and fourthly' in S. 300 of the Indian Penal Code which really being the act committed by the respondent within the definition of murder and make him liable for the same.

The question whether the intention of a person who inflicts an injury to another which in the ordinary course of nature brings about the death of the other person can be gathered from the act and whether by such an act the person commits an offence of murder punishable under S. 302 of the Indian Penal Code, or an offence of culpable homicide not amounting to murder punishable under S. 304 of the Indian Penal Code, came up for consideration before their Lordships of the Supreme Court in Virsa Singh v. State of Punjab, : 1958CriLJ818 . An argument similar to the one that is adopted by the learned Judge to the effect that so long as the evidence does not prove that the person had intention to commit the murder of victim and it establishes only that he intended to cause such bodily injury as was likely to cause death the case falls within S. 304 of the Indian Penal Code was repelled by their Lordships with the following observations:

'The learned High Court Judges considered that the whole affair was sudden and occurred on a chance meeting'. But they accepted the finding that the appellant inflicted the injury on Khem Singh and accepted the medical testimony that the blow was a fatal one.

It was argued with much circumlocution that the facts set out above do not disclose an offence of murder because the prosecution has not proved that there was an intention to inflict a bodily injury that was sufficient to cause death in the ordinary course of nature. S. 300 'thirdly' was quoted.

'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'.

It was said the intention that the section requires must be related not only to the bodily injury inflicted but also to the clause, 'and the bodily injury intended to be inflicted is sufficient to cause death in the ordinary course of nature then the intention to kill and in that event the 'thirdly' would be unnecessary because the act would fall under the first part of the section, namely-

'If the act by which the death is caused is done with the intention of causing death.' In our opinion the two clauses are disjunction and separate. The first is subjective to the offender :

'If it is done with the intention of causing bodily injury to any person.' It must of course first be found that bodily injury was caused and the nature of the injury must be established that is to say the injury is on the leg or arm or on the stomach how deep it penetrated whether any vital organs were cut and so forth. These are purely objective facts and leave no room for inference or deduction : to that extent the inquiry is objective but when it comes to the question of intention, that is subjective of the offender and it must be prepared that he had an intention to cause the bodily injury that is found to be present.

Once that is found, the enquiry shifts to the next clause 'and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death'.

The first part of this is descriptive of the earlier part of the section namely the infliction of bodily injury with the intention to inflict it that is to say if the circumstances justify an inference that a man's intention was only to inflict a blow on the lower part of the leg or some lesser blow and it can be shown that the blow landed in the region of the heart by accident, then though an injury to the heart is shown to be present, the intention to inflict an injury in that region or of that nature is not proved. In that case the first part of the clause does not come into play. But once it is proved that there was an intention to inflict the injury that is found to be present then the earlier part of the clause we are now examining--'and the bodily injury intended to be inflicted' is merely descriptive. All it means is that it is not enough to prove that the injury found to be present is sufficient to cause death in the ordinary course of nature; it must in addition be shown that the injury is of the kind that falls within the earlier clause, namely, that the injury found to be present was the injury that was intended to be inflicted. Whether it was sufficient to cause death in the ordinary course of nature is a matter of or deduction from the proved facts about the nature of the injury and has nothing to do with the question of intention'.

Their Lordships summed up the discussion with the following observations:

'To put it shortly, the prosecution must prove the following facts before it can bring a case under S. 300 'Thirdly';

First it must establish, quite objective, 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 the nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.'

It is clear from the above discussion that the act committed by the respondent is clearly murder falling under clause 'thirdly' of S. 300 of the Indian Penal Code. It is not the case of the respondent that did not intend to inflict the injuries on the vital parts of the body of the deceased. It is not his case that injuries Nos. 4, 6 and 38 which according to the Doctor were individually fatal were not aimed at those places by him. The respondent should be expected to know the serious consequences of his own act. The real question is not whether the respondent intended to kill or inflict an injury to a particular degree of seriousness. It is whether the respondent intended to inflict the injuries as found on the dead body of Appayya Kallappa Gavada and once these injuries establish the intention to cause those injuries we must presume unless the evidence on record or the circumstances placed on record warrant an opposite conclusion. In this case there is absolutely no material placed on record to indicate that the respondent did not know the seriousness of the injuries that he had inflicted with M.O. 2 to the deceased. He is, therefore, clearly guilty of an offence of murder punishable under S. 302 of the Indian Penal Code.

` (7) Reference may also be made to a case reported in 1961-39 Mys LJ 665, Ningappa Prabhu Sarwad v. State of Mysore, wherein this question was elaborately considered by a Division Bench and the reasoning similar to the one adopted by the learned trial Judge to bring the offence committed by the accused under S. 304, I.P.C was repelled. Their Lordships observed as follows:

'Sri Desai contended that even if the evidence adduced by the prosecution is accepted fully it does not establish any intention on the part of the accused to cause the death of Gurushantappa and that the probabilities in the case are that the incident is one to which exception No. 4 of S. 300 of the I.P.C. would be applicable. He has attempted to persuade us to take the view that the case is one which falls under the provisions of S. 304 of the I.P.C. We are unable to accept his contention. After all the intention of an accused person can be gathered only from the act which has been actually committed by him. In the present case the prosecution evidence sufficiently establishes that Article No. 1 which is certainly a deadly weapon (which we have seen and examined) has been used to inflict a fatal injury on a vital part of the person of Gurushantappa. The evidence of the Medical Officer, P.W. 21 shows that in consequence of this injury the chest cavity had been punctured that the left lung was injured and that the heart had been cut. It is also stated by him that this injury was sufficient in the ordinary course of nature to cause death. When this deadly weapon has been used with so much of violence as to result in an injury of this nature it cannot be said that the offence committed by the accused could be any offence other than that of murder. In a decision in Abdul Aziz v. Emperor, AIR 1933 Pat 508, in which stab wounds had been inflicted in the region of the chest. Their Lordships stated as follows: 'If a person stabs another in the chest or abdomen with sufficient force to penetrate such structures as were penetrated in the present case, he must clearly be held to have intended to cause such bodily injury as is sufficient in the ordinary course of nature to cause death; the killing of both Ganpat and Ramakishun would, therefore, prima facie amount to murder.'

Again in another case in Chand Singh v. Emperor, AIR 1934 Lah 741 it has been observed :

'If a man who is armed with a deadly weapon like a sela thrusts that weapon into the chest of his victim and causes instantaneous death he can have only one intention namely intention to murder.' In a decision of the Supreme Court in Basdev Singh v. State of Pepsu, (S) : 1956CriLJ919 Their Lordships while discussing the question of intention referred to the statement of Coleridge, J., which amongst other things contain the following: 'The inquiry as to intent is far less simple than that as to whether an act has been committed because you cannot look into a man's mind to see what was passing there at any given time. What he intends can only be judged of by what he does or says and if he says nothing then his act alone must guide you to your decision. It is a general rule in criminal law and one founded on common sense, that juries are to presume a man to do what is the natural consequence of his act. The consequence is sometimes so apparent as to leave no doubt of the intention.'

Their Lordships later on referred to the decision of the Supreme Court in : 1958CriLJ818 referred to above and held that as the bodily injury caused by the appellant to his victim was sufficient in the ordinary course of nature to cause his death as stated by the Doctor and the appellant had failed to establish that it was caused either accidentally or unintentionally he was guilty of murder under S. 302 of the Indian Penal Code.

(8) We may also refer to a decision of a Divisional Bench of this Court in Basappa Bhimappa v. State, AIR 1961 Mys 21 in which also this question was considered. The question for consideration in the said case was whether the offence committed by the appellant which resulted in the death of the victim was one of murder punishable under S. 302, I.P.C. or culpable homicide not amounting to murder punishable under S. 304, I.P.C. Their Lordships held that the case did not fall within any one of the exceptions of S. 300, I.P.C. and it was clear case of murder and the case clearly fell under S. 300 'thirdly'. Their Lordships observed as follows:

'We, therefore, think that the conviction of the accused for the offence of murder is justified. Although he cannot be said to have had any intention to cause death, he in the circumstances must be held to have the intention to cause injuries to the deceased. That injury according to the medical officer was sufficient in the ordinary course of nature to cause death. One of the ribs, viz., the 11th had been completely cut.

The knife had pierced so far as to enter the abdominal cavity and cut the upper wall of the stomach. We have, therefore, no hesitation in accepting the opinion of the medical officer to the effect that the injury was sufficient in the ordinary course of nature to cause death. If, therefore, the appellant did intend to cause this injury and the injury is of the nature mentioned above, the case clearly falls under clause 'thirdly' of S. 300 and the offence committed by the appellant is one punishable under S. 302'.

(9) We have dealt with this question somewhat elaborately and have also extracted several paragraphs from the judgments of the Supreme Court and of this Court as we have observed a tendency amongst the trial Courts in this State to adopt the easy course of convicting persons accused under S. 304 of the Indian Penal Code, however serious the injuries inflicted may be, and in spite of the clear opinion of the medical officer that the injuries were sufficient in the ordinary course of nature to cause the death without making any reference to the clear pronouncements of the Supreme Court and of this Court referred to above. To sum up :

It is clear from the post mortem certificate Ex. 11 issued by the Medical Officer, Khanpur, (P.W. 3, Dr. Shantappa) who examined the dead body of Appayya Kallappa Gavada that most of the injuries inflicted by the respondent were found on the vital parts of the body and injuries Nos. 4, 6 and 38 were individually fatal. The respondent has inflicted these injuries to Appayya Kallappa Gavada without any justification. In these circumstances the offence committed by the respondent falls clearly under clause 'thirdly' of S. 300 of the Indian Penal code and is one of murder. The learned trial Judge, in our opinion, was not justified in acquitting the respondent of the charge under S. 302 of the Indian Penal Code and convicting him of the offence of culpable homicide not amounting to murder punishable under S. 304 of the Indian Penal Code. Therefore, the order of acquittal should be set aside and is hereby set aside.

(10) In the result, therefore, for the reason stated above this appeal is allowed. The acquittal of the respondent for the charge under S. 302 of the Indian Penal Code is set aside and the respondent is convicted of the offence of murder punishable under S. 302 of the Indian Penal Code instead of the offence of culpable homicide not amounting to murder under S. 304 of the Indian Penal Code. In the circumstances proved in the case we feel that the ends of justice will be met by sentencing the respondent to imprisonment for life for the offence under S. 302 of the Indian Penal Code. We order accordingly.

(11) Appeal allowed.


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