N. Dhinakar, J.
1. The appellant, who hereinafter will be referred to as the accused for the sake of convenience, was tried before the learned I Additional Sessions Judge, Madurai, in Sessions Case No. 73 of 1985, and stands convicted under Sections 302 and 324 IPC. The allegation against him is that at about 10.30 p.m. on 16.1.1985, he stabbed Gnanaiah, on the left thigh, on the left side of the head and on the left hand, with a knife, M.0.1,as a result of which, the said Gnanaiah died at about 11.20 p.m. on the same day while he was on his way to Government Rajaji Hospital Madurai. He was also charged under Section 324 IPC on an allegation that during the course of the same transaction, he caused an injury to P.W.1 with the same knife. The learned Session Judge convicted and sentenced him to imprisonment for life for the offence of murder and directed him to suffer rigorous imprisonment for a period of 18 month for the offence under Section 324 IPC, with a further direction that the sentences will run concurrently. Hence, the present appeal.
2. At about 10.30 p.m. on 16.1.1985, P.W.1, after taking tea, was sitting in front of a tailor-shop. The accused at that time came from north and proceeded to the tea-stall belonging to one Saravanan. He picked up a quarrel with the tea-stall owner by telling him that he had given false evidence and implicated him in a criminal case. Thereafter, the accused went to a cycle-shop and after calling the owner of the shop by his caste name, abused him and told him that Gnanaiah. the deceased in the case, is unnecessarily interfering in his affairs and that he will be taken care of. At that psychological moment, unfortunately, the deceased Gnanaiah came out of a hotel and asked the accused as to why he is abusing him. The accused retaliated by saying that he will be abused only like that. Filthy language was used by the accused. The deceased asked him not to use such language and was leaving the place. The accused stated that he will only abuse him like that and then, took a knife and stabbed him on the left thigh. The deceased shouting that he is being stabbed, bent down and immediately, the accused inflicted another stab which was warded off resulting in an injury on the left hand of the deceased. P. Ws. 1,5 and others. ran towards them. P.W.1 prevented the accused from stabbing as a result of which, he sustained an injury on his right hand. The deceased fell down unconscious and he was removed to Government Rajaji Hospital, Madurai, where the Duty Doctor, P.W.3. examined him and found him dead at 11.20 p.m. He noticed the following injuries on his body:
1. Incised-like wound over the left cut appeared of thigh upper 4 cm x 1/2 cm x 4 cm.
2. Another lacerated wound over the left forehead 4 cm x 1/2 cm x 1/2 cm.
He issued Ex.P-4, the duplicate copy of the accident register. The doctor sent Ex.P.3, the death intimation, to the police station.
P.W. 13, the Sub-Inspector of Police, who was at the Police Station at Avaniyapuram, on getting an information that a person had been stabbed at the bazaar, went to the spot and there, he was informed that the injured was removed to Government Rajaji Hospital, Madurai. P.W.13 thereafter proceeded to the hospital where the death intimation was handed over to him. P.W.1, who was present at the hospital, gave a statement, which was reduced into writing. Ex.P-1 is the said statement. P.W.13 registered a case in Crime No. 9 of 1985 on the basis of Ex.P-1 under Section 302 and 324 IPC by preparing express reports. Ex.P-16 is a copy of the printed First Information Report. The Circle Inspector of Police, Thirupparankundram Circle, P.W. 14, was informed about the registration of the crime.
3. P.W. 14, on receipt of the intimation, went to Avaniyapuram Police Station at 1.45 a.m. on the night of 16/17.1.1985, where he obtained a copy of the printed F.I.R. He then proceeded to the scene of occurrence where an observation mahazar. Ex.P-8 was prepared. He also drew a rough Sketch, Ex.P-I7. He searched for the accused between 4.30 a.m. and 5.30 a.m. on 17.1.1985, but the accused was found absconding. He went to the hospital and conducted inquest over the dead body of Gnanaiah between 8.00 a.m. and 10.00 a.m. in the presence of panchayatdars during which, he questioned and recorded the statements of P. Ws. 1,2,5 and others. He issued a requisition for conducting autopsy on the body of Gnanaiah.
4. On receipt of the requisition and the dead body, P.W.6, the Tutor in Forensic Medicine, Mudurai Medical College Hospital, Mudurai, conducted autopsy on the body of Gnanaiah and found the following injuries:
1. An oblique stab injury upper 3rd of front of the left thigh 3 cm x 1 cm x 8 cm. Inner and blunt, outer end pointed, margins clear cut, on dissection: Wound passes through the underlying thigh muscles obliquely downwards and medially cutting the femoral artery and vain and reaching upto the femur. Length reduces with the depth and ends as point. Surrounding area contained 260 gms of blood with clots.
2. Anteroposterior incised wound on the left frontoparietal area 6 cm x 0.5 cm x bone deep with 2 cm tailing on the posterior end.
3. A linear abrasion 4 cm in length x skin deep dorsum at the left hand above downwards.
He issued Ex.P-7, the post-mortem certificate, with his opinion that the deceased would appear to have died of shock and hemorrhage due to injury No. 1 with its corresponding internal injury.
P.W. 1, who also sustained an injury at the time of incident, was sent to the hospital with a memo by P.W. 13, the Sub-Inspector of Police, for treatment and P.W.2, the Duty Doctor at the Casualty ward of Government Rajaji Hospital. Madurai, examined him at 11.20 a.m. on 17.1.1985 and found a linear abrasion measuring about 4 cm on the right forearm front about its middle. He was treated as an outpatient. P.W.2 issued Ex.P-2, the wound certificate, with her opinion that the injury is simple in nature.
6-A. P.W. 14, in the meantime, continued with his investigation and on an information, reached Ayyanapappakkudi and arrested the accused near an Ayyanar temple in the presence of P.W.9 and others. The accused when questioned gave a statement and the admissible portion of the same is Ex.P-10. The accused took the police party to a bye-pass road and from a shrub, took out M.O.I, the, knife, and produced the same, which was recovered under a mahazar Ex.P-11. The accused was taken to the police station and locked up.
5. As the accused had injuries on his person, he was sent with a memo to the hospital for treatment. P.W.4. the Duty Doctor at the Casualty Ward, Government Rajaji Hospital, Madurai, examined him at 1.20 p.m. on 18.1.1985 and found the following injuries:
1. Multiple abrasion about 1/2" in size on the left elbow.
2. Linear scratch about 1/2" on the right arm.
3. Haemotoma 1" x 1" on the vertex of skull.
4. Abrasion 1/2" over the back of the right scapula.
5. Abrasion on the left knee of size 1" x 1".
6. Abrasion on the right leg of size 1" x 1".
7. Abrasion on the left buttock of size 2" x 1".
He issued Ex.P-5, the wound certificate, with his opinion that the injuries are simple in nature.
6. The accused was sent to the Court for remand. The investigating officer questioned the post-mortem doctor and recorded his statement. The material objects seized in the case were sent to the Court with a request to forward them for analysis. On completion of the investigation, a final report was filed against the accused on 15.2.1985.
When questioned under Section 313 Cr.P.C., the accused has denied his complicity.
7. According to the prosecution, the occurrence took place at about 10.30 p.m. on 16.1.1985 and that it was witnessed by P. Ws. 1 and 5. P. Ws. l and 5 have, in their evidence, stated that the accused, who came from north, went to the tea-stall of Saravanan and thereafter, to a cycle-shop. According to them, he was abusing the deceased by saying that he is interfering in his affairs. They have further deposed that the deceased Gnanaiah at that time, came out of a hotel and questioned the accused as to why he is abusing him to which, the accused replied by saying that he will only abuse in such fashion. After that, the deceased was leaving the scene and the accused abusing the deceased stabbed him on the left thigh with a knife. M.O.1, and when the deceased bent down, he was stabbed once again causing an injury on the left hand. P.W.1, while intervening also sustained an injury at the hands of the accused. The evidence of P. Ws. 1 and 5 when perused shows that their evidence is natural and acceptable. Nothing is brought out in their cross-examination to reject their evidence. Immediately after the incident, the deceased was taken to the hospital where the Duty Doctor. P.W.3, on examining him, pronounced him dead. It is also the evidence of P.W. 13 that on an information received that a person had sustained injury at the bazaar, he went there and; on coming to know that the injured had been removed to Government Rajaji Hospital, Madurai, reached it where he examined P.W. 1 and his statement. Ex.P-1. was recorded at about 11.20 p.m. which means that the complaint in respect of the incident was recorded within a very short time, in which the name of the accused is found mentioned. We have no hesitation in coming to the conclusion that the accused stabbed the deceased. The post-mortem doctor, who conducted autopsy on the body of the deceased, also opined that the deceased died on account of injury No. 1 with its corresponding internal injury. Under the circumstances, we hold that the deceased died on account of homicidal violence and the homicidal violence was perpetrated upon him by the accused.
8. Learned counsel appearing for the appellant/accused strenuously contends that the accused ought not to have been convicted under Section 302 IPC and that at best, he can be convicted only under Section 304 Part-II IPC. It is his further submission that since the injury was on a non-vital part and the deceased died on account of the cut of the femoral artery, the accused cannot be attributed with the intention that he will be cutting the femoral artery which will result in death.
In Gokul Parashram Patil v. State of Maharshtra ( : 1981 SCC (CRI) 731), on similar facts, the Supreme Court held as follows.
The question thus is whether the particular injury which was found to be sufficient in the ordinary course of nature to cause death in the present case was an injury intended by the appellant. Our answer to the question is an emphatic No. The solitary blow given by the appellant to the deceased was on the left clavicle- a non-vital part- and it would be too much to say that the appellant knew that the superior vanacava would be cut as a result of that wound. Even a medical man perhaps may not have been able to judge the location of the superior venacava with any precision of that type. The fact that the venacava was cut must, therefore, be ascribed to a non-intentional or accidental circumstances. This was precisely the view taken in Harjinder Singh v. Delhi Administration ( : AIR 1968 SC 867), by Sikri, J., and in Laxman Kalu Nikalje v. State of Maharshtra (: AIR 1968 SC 1390), by Hidayatullah, C.J. In the former of these cases, the injury in question was a stab wound on the left thigh which had cut the femoral artery and vessels. In the latter, the damage caused consisted of a cut in the auxiliary (sic auxiliary) artery and veins. In each of t
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he two cases, it was held that although the injury which was found to be sufficient in the ordinary course of nature to cause death had resulted from a blow with a sharp-edged weapon, the same could not be said to have been intended, that the only injury which could be regarded as intentional was the superficial wound resulting directly from the blow, that the assailant could not be held guilty of an offence under Section 302 of the Code and that he was, on the other hand, guilty of a lesser offence falling under Part-II of Section 304 thereof. 9. The above principles will apply with all force to the facts of this case. We, therefore, hold that the conviction of the appellant/accused under Section 302 IPC cannot be maintained and instead, he has to be convicted only under Section 304 Part-II IPC. Accordingly, the conviction and the sentence imposed upon the appellant under Section 302 IPC are set aside and instead, he is now convicted under Section 304 Part-II IPC and for the said conviction, he is directed to suffer rigorous imprisonment for the a period of 5 (five) years. 10. With the above modifications in conviction and sentence, the appeal is disposed of. The Sessions Court will take steps to commit the accused to jail to undergo the remaining period of sentence.