1. The accused Panchaksharam was charged by the Sessions Judge of South Arcot under Section 304, Indian Penal Code, with cutting the deceased Munuswami with a toddy drawer's knife on the head, back and abdomen. The learned Sessions Judge found on the evidence that the accused did strike the deceased Munuswami on the head, back and abdomen and caused the injuries alleged; but he held that the accused had neither the intention nor the knowledge which would bring the offence within the mischief of Section 304, Indian Penal Code. He found however that the accused voluntarily caused grievous hurt under grave and sudden provocation and so convicted him under Section 335, Indian Penal Code and sentenced him to two years' rigorous imprisonment. The Crown has appealed against the acquittal under Section 304, Indian Penal Code.
2. It was contended on behalf of the Crown that the findings of fact of the learned Sessions Judge must be accepted and that the arguments of the learned Counsel for the accused must, be confined to combating the arguments with regard to the nature of the offence committed. The learned Counsel for the accused relied on Section 439(6), Criminal Procedure Code, which is to the effect that any convicted person to whom an opportunity has been given of showing cause why his sentence should not be enhanced shall be entitled to show cause against his conviction. That sub-section does not apply because this is an appeal, not against the sentence, but against the acquittal. It is however clear that in an appeal against acquittal the accused is entitled to ask the Court to consider all the evidence before it and all the possible grounds which may be raised against the conviction. If therefore the learned Counsel for the accused is entitled to argue on the facts of the case to show that the accused has not committed an offence under Section 304, Indian Penal Code, then although the acceptance of those arguments may not autocratically set aside the conviction under Section 335, Indian Penal Code yet if this Court were satisfied that no offence was committed, it would undoubtedly exercise suo motu its powers tinder Section 439 (1), Criminal Procedure Code and set aside the conviction.
3. However, after, hearing, the learned Counsel for the accused, I am satisfied that the facts found by the learned Sessions Judge are correct. P.W. 5 is equally related to both parties and her evidence therefore is very valuable. Moreover, the accused himself has made several statements which to a great extent meet the prosecution case. The learned Sessions Judge has accepted the accused's case to the extent that while in the tope he heard that his mother had been attacked by the deceased and was lying senseless, that he came to where the deceased and his mother were, that the deceased asked him what he was doing there with the knife and struck him on the hand with his stick, that the accused then stabbed him, that the deceased then gave further blows with his stick and that the accused delivered several more blows with his knife on the person of the deceased.
4. I agree with the learned Sessions Judge that the accused cannot be said to have acted in self-defence. His mother was in no further danger from the deceased. He came there with the intention of attacking the deceased and the deceased, when he saw that the accused had a knife and was prepared to use it, was justified in striking his hand to prevent him from using it. A free fight between the accused and the deceased followed; and the accused must accept responsibility for the acts done by him.
5. That the accused acted under grave provocation there can be no doubt; but whether it was also sudden provocation is open to doubt; but I am prepared to accept the finding of the learned Sessions Judge that there was grave and sudden provocation. I cannot however agree with him that the offence committed did not amount to one punishable under Section 304, Indian Penal Code. The accused certainly knew that a blow with a knife on any vital part of the body was likely to cause death; and there are few parts of the body where a severe blow with a knife, would not cause death unless expert medical attention was immediately available. In a sense, the learned Sessions Judge concedes that, for he says 'it was an injury which endangered human life, and so it amounts to grievous hurt as defined in Section 320, Indian Penal Code'. The learned Sessions Judge has found the accused guilty of causing grievous hurt under grave and sudden provocation and he has said that it was grievous hurt because it was hurt that endangered human life. The finding of the learned Sessions Judge therefore amounts to this, namely, that the accused voluntarily caused an injury which endangered human life and the deceased died as the immediate result of that injury. If the accused voluntarily caused an injury that endangered life and the deceased died as the result of that injury, the offence committed is certainly culpable homicide. Moreover, the injury caused was a very grievous one; and I have never known of an injury of that kind from which a wounded man has survived. It was not merely a cut across the abdominal wall; but the intestine itself was severely injured. Although theoretically death was not the necessary result, yet in the ordinary course of nature one would expect that death would result. In very few cases of murder can it be said that the injury caused necessarily resulted in death; but if it is caused with the necessary intention or knowledge and death results from the injury caused, then the offence committed is murder or culpable homicide as the case may be. Had there not in this case been grave and sudden provocation, the accused would have been guilty of murder.
6. The conviction under Section 335, Indian Penal Code, is therefore set aside and the accused convicted under Section 304, Indian Penal Code. In view of the fact that the accused acted under grave provocation and that the deceased was a bully, I do not think any very great enhancement of sentence is necessary. I sentence the accused to three years' rigorous imprisonment.