GOKUL PARASHRAM PATILversusSTATE OF MAHARASHTRA

A
    658

                         GOKUL PARASHRAM PATIL
                                            v.
B                        STATE OF MAHARASHTRA

                                       May 4, 1981

                 [ A. D. KOSHAL AND BAHARUL ISLAM, , JJ. ]
c         Conviction under s. 302 Penal Code b2se-l on sole injury on non-vital part-If
    injury caused by the assailant was not intended to cause dearh clause thirdly of s.30
    Penal Code will not be attracted and the conviction and sentence should be under
    Part I! of sertion 304 Penal Code.

          The appellant attacked one Ania with a knife giving the latter a single blow
    above the left clavicle where it caused a muscle-deep incised wound having the
D   dimensions 1-1/4" x 1 /3". The autopsy surgeon, while certifying the existence
    of that wound, also found that the superior venacava had been cut, the damage
    so caused being sufficient in the ordinary course of nature to cause death. The
    sessions court convicted the appellant of an offence under section 301 of the Penal
    Code and sentenced him to imprisonment for life. The High Court confirmed
    the conviction and the sentence in appeal. Hence, the appeal by special
    leave.
E
          Allowing the appeal in part and substituting a conviction under Part II of
    section 304 and sentence of five years' rigorous imprisonment, the Court.

          HELD : I. To attract clause thirdly of section 300 of the Penal Code and
    also illustration (c) appended thereto the injury in quesiion needs satisfy only
F   two tests- namely, (a) the injury must be sufficient in the ordinary course of nature
    to cause death and (b) such injury must have been intended to heve been caused
    by the culprit. [661 A-BJ
             •
          2. In the present case, the solitary blow given by the appellant to the
    deceased was on the left clavicle a non-vital part-and tte appellant cannot be
    said to know that the superior venacava would be cut as a result of that wound.
G   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 vena-
    cava was cut must, therefore, be ascribed to a non-intentional or accidental cir-
    cumstance. Therefore, it cannot by said to have been intended by the appel-
    lant. [660 A-Cl

H         Virsa Singh v. Srate of Punjab, A.I.R. 1958 S.C. 465, referred to.
                  G.P. PATIL v. MAHARASHTRA (Koshal, J.)                     659

         Harjinder Singh v. Delhi Administration, A.I.R. 1968 S.C. 867 and Laxman   A
    Kalu Nikalje v. The State of Maharashtra, A.I.R. 1968 S.C. 1390, followed.


        CRIMINAL APPELLATE JURISDICATION: Criminal Appeal No.
    512 of 1981.

          Appeal by special leave from the judgment and order dated                 B
    the 8th September, 1980 of .the Bombay High Court in Criminal
    Appeal No. 664 of 1980.

           V.N. Ganpule,      A.B.   Lal and Mrs.       V.D. Khanna for the
    Petitioner.
                                                                                    c
~          0.P. Rana and R.N. Poddar for the Respondent.

          The Judgment of the Court was delivered by

          KosHAL, J. The appellant has been convicted of an offence
    under section 302 of the Indian Penal Code (hereinafter referred to             D
    as the Code) for causing the death of one Anita, and has been
    sentenced to imprisonment for life by the trial court as well as in
    appeal by the High Court.

           2. The case of the prosecution was that the appellant attacked
    the deceased with a knife giving the latter a single blow above the             E
    left clavicle where it caused a muscle-deep incised wound having
    the dimension 1-1/4" x 1/3". The autopsy surgeon, while certifying
    the existence of that wound, also found that the superior venacava
    had been cut, the damage so caused being sufficient in the ordinary
    course of nature to cause death.
                                                                                    F
          3. The learned counsel for the appellant has contended that
    the case does not fall within the ambit of section 302 of the Code
    and that the two courts below erred in relying on Virsa Singh v.
    State of Punjab. (1) The gist of the dictum of this Court in that case
    is that if an injury is held to have been intended by the assailant
    and is further found to be sufficient in the ordinary course of nature          G
    to cause death, it would attract clause thirdly of section 300 of the
    Code and that, therefore, its author would be liable to punishment
    under section 302 thereof. The question thus is whether the

          (I) A.T.R. 1958 S.C. 465
                                                                                    H
    660                     SUPREME COURT REPORTS         [1981] 3 S.C.R.

A    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 venacava
B   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
    circumstance. This was precisely the view taken in Harjinder Singh
c   v. Delhi Administration, (1) by Sikri, J., and in Laxman Kalu Nikalje
    v. The State of Maharashtra, (2) 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 artery and
                                                                            •
    veins. In each of the two cases it was held that although the injury
    which was found to be sufficient in the ordinary course of nature to
D   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
E
    part II of section 304 thereof.


          4. Mr. Rana, learned counsel for the State has drawn our
    attention to illustration (c) appended to section 300 of the Code
    and has contended on the basis thereof that the culpable act
F   attributed to the appellant is covered thereby. The illustration may
    be extracted :

          "(c) A intentionally gives Z a sword-cut or club-wound
               sufficient to cause the death of a man in the ordinary
G              course of nature. Z dies _in consequence. Here A is
               guilty of murder, although he may not have intended
               to cause Z's death' .

          (!) A.l.R. 1968 S.C. 867.
H         (2) A.LR. 1968 s.c. 1390.
                G.P. PATIL v. MAHARASHTRA (Koshal, J.)                  661
                                                                              A
       The proposition propounded by Mr. Rana is that the illustra-
'tion, which is obviously relatable to clause thirdly of the section,
 postulates that the injury in question need satisfy only two tests to
 attract the provisions of that clause and that those tests are :

        (i)   The injury must by sufficient in the ordinary course of         B
              nature to cause death.

       (ii)   Such injury must have been intended to have been
              caused by the culprit.

      There is no quarrel with this proposition but then the injury           c
which was found to be sufficient in the ordinary .course of nature
to cause death in the present case does not satisfy test (ii) because,
as already pointed out, it cannot be said to have been intended by the
appellant. The illustration, therefore, does not advance the cause
of the State.
                                                                              n
       5. Following the dicta in the two earlier decisions of this
Court which have been cited above, we partially accept the appeal,
set aside the conviction of the appellant for an offence under section
302 of the Code and substitute thereof one under part II of section
304 thereof. In consequence he shall suffer rigorous imprisonment
for 5 years which punishment, in our opinion, will meet the ends              E
of justice in the circumstances of the case. The judgment of the
High Court is modified accordingly.


S.R.                                              Appeal partly allowed.