R. Sadasivam, J.
1. The State has preferred the appeal against the acquittal of the accused Ayyanar on the charge of murder for having caused the death of' Rakkashiammal by cutting her with an aruval on the right leg at about 2 p.m. on 4th November, 1967 in Thottiapatti village, as a result of which the victim died at about 6-25 p.m. on the way to the hospital., Learned Sessions Judge found the accused guilty under Section 304 (Part II) Indian Penal Code and sentenced him to Rigourious Imprisonment for five years. The accused has not preferred any appeal against his conviction or sentence.
2. The fact that the accused did cut Rakkashiammal on the afternoon of 4th November, 1967, is proved by reliable evidence in this case and it has not been challenged by the learned Advocate for the accused. The accused Ayyanar was keeping P.W. 1 Lingammal, a married woman, the daughter of the deceased Rakkashiammal. P.W. 1 Lingammal lent Rs. 300 belonging to her mother, the deceased, to P.W. 7 Pulungandi at the instance of the accused about two months prior to the occurrene in this case. But she subsequently asked the accused to get back the amount from P.W. 7 Pulungandi and the accused refused to do so and he was under the impression that P.W. 1 Lingammal was asking for the return of the money at the instigation of her mother, the deceased, and even expressed that only if the deceased Rakkashiammal was done away with, P.W. 1 Lingammal would keep quiet. This is put forward as a motive for the occurrence and it is no doubt trivial.
3. Even on the morning on the date of occurrence P.W. 1 Lingammal and her mother asked the accused to get back the money from P.W. 7 Pulugandi, but the accused told them to mind their business. On the afternoon of that date at about 2 p.m. P.W. 1 was returning home following her mother who was carrying a basket of grass. P.W. 4 Peria Rakkashi, the sister of the deceased Rakkashiammal, was following behind P.W. 1 Lingammal and deceased Rakkashi. P.W. 2 Muthiah Naicker the elder brother of the deceased Rakkashi was then proceeding to his held along the street and P.W. 3 Pambulu Naicker was following him. Thus both P.Ws. 2 and 3 were then proceeding in the opposite direction. All on a sudden, the accused came along a lane from the south armed with an aruval which is alleged to be M.O. 1 in this case, and cut Rakkashimamal on her right leg above the ankle saying The learned Sessions Judge accepted the evidence of the eye witnesses P.Ws. 1 to 4 about the occurrence, though the accused denied the entire occurence, but he was not inclined to accept the statement alleged to have been made by the accused There is really no reason for not believing the alleged use of the words by the accused, but, for the purpose of this appeal, we do not want to attach any importance to the statement. Apart from the evidence of P.Ws. 1 to 4, there is the evidence of P.W. 6 Poosammal who came there shortly after the occurrence and saw the accused running away with an aruval in his hand and the witness crying The aruval M.O. 1 was recovered from P.W. 9 Gurunathan on information given by the accused to the police, but there was no blood stains on the weapon.
4. P.W. 1 Lingammal took her mother in a cart to Rajapalayam Hospital but she was advised that she should take her to Srivilliputhur Hospital. Thereupon she engaged a taxi, went to the Police Station and gave the report Exhibit P-1 to the Sub-Inspector of Police P.W. 12 Deenadayalu at about 6-20 p.m. and then went to the hospital with her mother. But, when P.W. 5 Dr. Vimala, Woman Assistant Surgeon attached to the Government Hospital at Srivilliaputhur examined Rakkashiammal at about 6-30 P.m. she found her dead. She noticed an oblique and complete regular cut on the lower 1/3rd of right leg commencing from 6' above the right ankle on the posterior aspect upto the anterior portion of the ankle joint, with a tag of skin of 1' width on the anterior aspect. Both bones tibia and fibula were obliquely cut on the line of the injury and blood vessels and muscles were also severed. In her chief-examination she stated that the injury is sufficient in the ordinary course of nature to cause death, but in her cross examination she expressed that ' the injury is also likely to cause death '. The learned Sessions Judge has stressed on this aspect of the medical evidence in finding the accused guilty of the lesser offence of culpable homicide not amounting to murder and in fact the learned Advocate for the Appellant also relied on this piece of medical evidence, for the same purpose. It is clear from the description of the injury that the leg was practically severed. Even in Exhibit P-1, P.W. 1 has stated that the accused cut her mother above the ankle of her right leg violently with aruval and it was hanging to the skin. An injury which is sufficient in the ordinary course of nature to cause death is also an injury likely to cause death and it is only in this view the evidence of P.W. 5 in cross-examination could be reconciled with her statement in chief-examination. Having regard to the injury which has been described sufficiently by the doctor, there can be no doubt that the injury is sufficient in the ordinary course of nature to cause death and it is not one which is merely likely to cause death.
5. The only question to be considered in this appeal is, whether on the facts stated above, the accused is guilty only under Section 304 (Part II) Indian Penal Code, as found by the learned Sessions Judge, or under Section 302, Indian Penal Code.
6. There can be no doubt in this case that the injury inflicted by the accused was not on a vital part of the body, as the injury was inflicted only on the leg. On the evidence it could not be said that the accused intended to kill the deceased Rakkashiammal and the offence would not fall under the first clause of Section 299 or 300, Indian Penal Code. Apart from the alleged threat there is nothing to show that the accused had any intention to cause the death of the victim. The relevant clause to be considered is Clause 3 of Section 300 Indian Penal Code. We have already pointed out that the injury inflicted on the deceased Rakkashiammal is one sufficient in the ordinary course of nature to cause death and this finding could be given objectively from the nature of the injury inflicted. There can be no doubt in this case that the accused intended to cause an injury on the leg of the victim. In other words, it could not be contended that the injury sustained by Rakkashiammal was either accidental or different in kind from the one intended to be inflicted by the accused.
7. The learned Advocate for the accused urged on the strength of the decisions relied on by him that the accused could be held to be guilty of culpable homicide not amounting to murder mainly on account of the fact that the injury inflicted was on the non-vital part of the body. He relied on Nanbu v. State , in which a Bench of Madhya Bharat High Court had to consider a case where the accursed shot an arrow in the thigh of the victim, which cut the femoral artery and the victim died on account of profuse bleeding. The trial Court found the accused guilty under Section 302, Indian Penal Code, on the ground that his act fell under clause IV of Section 300, Indian Penal Code. The relevant portion of the judgment is in the following terms ::
I should prefer to hold that the accused intended to cause bodily injury and that he should be assumed to have knowledge that it is likely to cause death. The arrow struck the thigh and not any vital part of body such as chest stomach, back or head. There was a single arrow shot. The accused, therefore, ought to be convicted under Section 304, Penal Code, part second.
It is clear from this decision that the cutting of the femoral artery was an accident in that case and it is difficult to attribute an intention on the part of the accused and this clearly distinguishes the case.
8. The decision of the Supreme Court in Harjinder Singh v. Delhi Administration (1968) 2 S.C.J. 190: (1968) M.L.J. 395, dealt also with a case of a single stab in the thigh resulting in the cutting of femoral artery. Their Lordships expressed their opinion that the circumstances justified the inference that the accused did not intend to cause an injury on a particular portion of the thigh, that the evidence indicated that while the appellant was trying to assault Dalip Kumar and the deceased intervened, the appellant finding himself one against two took out the knife and stabbed the deceased, that the deceased at that stage was in a crouching position presumably to intervene and separate the two, and that it cannot therefore he said with any definiteness that the appellant aimed the blow at this particular part of the thigh knowing that it would cut the artery. It is, under these circumstances, it was held that it was not possible to apply Clause 3 of Section 300, Indian Penal Code, to the act of the accused and the offence was held to fall under Section 304 (Part I) Indian Penal Code.
9. In a recent decision of the Supreme Court in Laxman Kalu Nikalje v. The State of Maharashtra (1969) M.L.J. 3: (1968) 2 S.C.J. 930, the Supreme Court had to deal with a conviction of the accused by the High Court of Bombay under Section 302, Indian Penal Code, after setting aside the judgment of acquittal of the trial Court. The injury in that case was a single injury on the right side of the chest in the axillary region. The weapon was not produced in that case. Though the injury had penetrated to a depth of 4 inches into the chest cavity, it did not penetrate the lung; and death was caused mainly because the injury cut the axillary artery and veins had been cut resulting in shock and haemorrhage leading to death. Their Lordships had no difficulty in finding that the injury inflicted in that case must be an intentional one and not an accidental one. But on the question as to the nature of the injury intended to be caused, they observed that the injury intended to be caused did not include specifically the cutting of the artery but only to wound the victim in the neighbourhood of the clavicle and that but for the fact that the injury caused the severing of artery, death might not have ensued. They observed that the act which was done by the accused in that case was done with the knowledge that he was likely by such act to cause the death of the victim and the case would therefore fall under the last clause of Section 299, Indian Penal Code.
10. A very strong circumstance which clearly distinguishes the instant case from the foregoing cases is that the accused had practically severed the leg of the victim and he did intend to chop off the leg with a deadly weapon like an aruval, namely, M.O. 1 in this case. This chopping off of the leg would necessarily involve the cutting of all bones, structures, blood vessels and nerves. There is therefore no scope for putting forward any plea that the accused did not intend to cause this particular injury or that he intended to cause an injury different from the one actually inflicted. In cases of this kind it has been consistently held both by this Court and the Supreme Court that the offence would fall under Clause 3 of Section 300, Indian Penal Code. We have also pointed out that, in the cases cited by the learned Advocate for the accused and referred to by us, the injuries inflicted indirectly involved (so to say) the cutting of one or other of the arteries and in such cases it is possible for the accused to contend with some justification that he did not intend to cause that particular injury. For the forgoing reasons we are unable to uphold the view of the learned Sessions Judge that the offence would fall under the latter part of Section 304, Indian Penal Code.
11. The conviction of the appellant is altered from one under Section 304 (later part) Indian Penal Code to one under Section 302, Indian Penal Code, and the sentence is enhanced to imprisonment for life.