1. This is a criminal appeal by one Kumbhar Narsi Bechar, who was convicted under Section 302, Indian Penal Code, by the learned Sessions Judge Jamnagar, and sentenced to imprisonment for life. Accused No. 2, who wag also tried along with him, was acquitted. The prosecution case was that out of revenge for an injury inflicted on him, Kumbhar Narsi the appellant inflicted a knife blow on the deceased Mahendra Prabhulal alias Bhola at about 9-15 at night on 5-3-60 near the shop of one Pragji Hemraj, Pragji, who was in his shop, saw the incident, although he did not go to the scene of offence. Jagdishchandra, a cousin of the deceased Mahendra, and his brother Ghandrakant happened to pass by the scene and they saw the injured, and when they inquired of him they were told by the injured that the appellant had stabbed him with a knife. The injured Mahendra was taken to Irwin Hospital, where he was admitted at 9-50 P.M. Two doctors recorded his dying declaration at 10-15 P.M. The Taluka Magistrate recorded the dying declaration at 10-20 P.M. An operation was performed on the injured Mahendra and he died on 11-3-60 at 7-20 P.M. The accused was arrested On 9-3-60 and after usual investigation, was committed to the Sessions Court for trial. The Sessions Judge held that the injured Mahendra died on account of violence and that the death of the deceased was caused by the appellant Narsi with the intention of causing such bodily injury as was sufficient in the ordinary course of nature to cause death, and he thereupon convicted the appellant under Section 302, I.P. Code. This conviction is challenged by the accused in appeal.
2. (After stating the facts and after discussing the evidence and other contentions, the Judgment continued as follows:--)
3. The next question is whether the accused must be deemed to have caused the death of Mahendra, Mahendra was admitted in the hospital on 5-3-60 at 9-50 P.M., he was operated some time after 10-30 P.M. the same night, and he died at 7-20 P.M. oft 11-3-60. According to Dr. Vaidya the cause of death was pulmonary embolism in left lung, infection and shock. In cross-examination, the doctor has also deposed as followas:--
'Embolism will take place on account of obstruction in circulation of blood in artery. The obstruction may as well as be caused by a clot of blood getting released in arterial circulation as a result of the operation. He would see that the operation wound is kept clean and that no clot remains, but existence of blood dot in the surrounding area cannot be remedied. No clot remained in the present case. Embolism may take place as a result of fat also. But generally this will not result on account of operation. Generally post operative embolism is the result of blood clot and not fat clot. From this I can say that in the present case embolism was not due to fat clot. Upon a minute microscopic examination it is possible to detect whether embolism found in post-mortem is due to fat clot or blood clot. No such examination was made in this case. Death would take place in a minute or two as soon as the obstruction takes place in the artery on account of the clot.'
4. It is therefore clear from his evidence that the immediate cause of death was some pulmonary embolism in left lung, infection and shock and obstruction in circulation of blood in artery. The question is whether the appellant can be said to have caused the death. In most cases, even if fatal wounds are inflicted, the wounds themselves are not the immediate cause of death in the medical sense. But, even in such cases, death must be attributed to the fatal injuries which lead to death. In order that a person should be held responsible for having caused the death, it is not necessary that his act should be the immediate cause of death, in the medical sense. If P causes to Q injuries likely to cause death and as a result of such injuries it is necessary to perform an operation on Q, the injured man, and the injured man dies as a cumulative result of the original injuries as well as the operation, P must be deemed to have caused the death of Q, because the operation itself was necessitated by what he had done, and therefore he must be held to be the cause of the operation itself and the consequential death. We need not consider cases where the person who performed the operation is either negligent or is not skilled for the purpose, because in this case there is no evidence to suggest that the doctors who performed the operation were either negligent or unskilled for the purpose. It is true that the two doctors, who performed the operation were not examined, but it was open to the defence to examine them as defence witnesses, and in the absence of any evidence on thepoint, it cannot be said that they were either negligent or that they did not have the ordinary average skill expected of such persons. This is therefore a case of injuries likely to cause death necessitating an operation resulting in the death of the injured person. In such a case, it must be held that the person who inflicted the injuries likely to cause death did cause the death which ultimately resulted. It is not necessary in this case to consider whether the same principle applies to cases where the injuries inflicted were not likely to cause death because we are not dealing with such a case. In these circumstances, the appellant must be deemed to have caused the death of the injured Mahendra.