Bhaskar Pandit Kadam and another vs State of Maharashtra

R.A. Jahagirdar, J.

[Having discussed the facts and evidence other than the medical evidence in paras 1 to 22 the judgment proceeds.]

Now, we refer to the medical evidence in order to determine especially the liability of accused No. 2 insofar as the injuries caused by him to Gokul are concerned. Dr. Ujalambkar examined as P.W. 13 has deposed to the injuries of all the three persons. Before we proceed to examine the injuries to Gokul let us take the liberty of examining his deposition insofar as the injuries to Krishnabai and Bhamabai are concerned. At about 10-45 p.m. on 8th March 1982 he examined Krishnabai and found the following injuries : -

(1) Irregular punctured incised wound 3" x W abdomen deep on right side of

epigastrium, 3 inches above right side of the umbilicus.

(2) Transverse punctured incised wound 2" x 1/4" chest deep on the right side of the chest 4 inches below the right nipple 4 in inframammary line.

(3) Punctured incised wound 3" x 1/4" x muscle deep on right mammary region, on 6th rib in mid-axillary line.

According to the doctor, the injuries of Krishnabai were fresh when he examined and they were caused by a sharp pointed weapon. He also examined Bhamabai at about 10.30 p.m. on the same day and found the following two injuries on her person : -

(1) Two irregular shaped punctured incised wounds of 3" x 1" abdomen deep and 1 1/2" x 1/4" x abdomen deep on the left side of the abdomen. Both were irregular shaped, punctured incised wounds 3 inches above the right anterior superior iliac spine.

(2) Oblique punctured incised wound 2" x 1/4" abdomen deep on left renal angle, 7 inches above and lateral to anterior superior iliac spine.

These injuries were also fresh and were caused by sharp pointed substance. Dr. Bachhav,, P.W. 14, attached at the relevant time to the Civil Hospital at Nasik examined both Krishnabai and Bhamabai some time after they had been examined by Dr. Ujalambkar. Dr. Bachhav has stated that on Krishnabai he found the following injuries : -

(1) Stab injury on right hypochondrium 1 1/2" x 1/2" muscle deep.

(2) Stab injury 1" x 1/2" muscle deep on 6th intercostal space on the right side.

(3) Stab injury on the right side of breast on the lower part.

Similarly he found the following injuries on Bhamabai whom he examined at the same time : -

(1) Stab injury on the abdomen left lumber region 1 1/2" x 1".

(2) Stab injury on the abdomen 1" x 1/2" on the left side.

(3) Stab wound on the abdomen lateral region 1" x 1/2" x 2".

Dr. Bachhav has in unequivocal terms stated that the conditions of both Krishnabai and Bhamabai were serious and the injuries to both of them were on the vital parts of their bodies. In the absence of the treatment, the injuries of both would have endangered their lives. After reading the medical evidence in respect of the injuries to both Krishnabai and Satyabhamabai in the light of the cross-examination which is practically nil as far as these injuries are concerned, we are of the opinion that the offence punishable u/s 307 of the Indian Penal Code is clearly established insofar as accused Nos. 1 and 2 are concerned.

We now turn to the testimony of Dr. Ujalambkar in relation to the injuries of Gokul. Dr. Ujalambkar found the following external injuries on the body of Gokul: -

(1) Oblique incised wound 1 1/2" x 1" x organ deep on right side of the chest 1/4" lateral to sternum and just below the lateral 1/3rd of clavicle.

(2) Oblique incised wound 1 1/2" x 1/2" organ deep on right groin, 2 inches below and medial to anterior superior iliac spine in the line of inguinal ligament:

(3) Linear abrasion 2" x 1/10" on upper 1/3rd right side of the neck.

(4) Abraded area 1/4" x 1/4" on posterior aspect of left elbow joint.

(5) Old healing wound I 1/2" x 1/8" x 1/8" with cellulitis of right ankle joint, on medial aspect.

All these injuries were ante mortem and in fact were fresh. Injuns Nos. 1 to 3 noticed by him were possible by a sharp weapon like article No. 4 before the Court. On all internal examination Or. Ujalambkar found the following injuries : -

(1) There was the fracture of first rib on the right side of sterno costal junction.

(2) Rupture of apex of the right lung.

(3) Irregular tears. 3 in number on upper lobe of right lung.

(4) Tear of pericardium on the right side of heart.

(5) Irregular tear of aorta. Tear of pulmonary (Rt) artery.

(6) Injury No. 1 (external) i.e. oblique incised wound which was organ deep is the corresponding external injury for causing the fracture of the first rib. The same oblique incised wound is again responsible for causing all the above internal injuries such as rupture and irregular tears of lung and the heart.

Dr. Ujalambkar has stated that the death of Gokul was due to haemorrhage and shock which themselves were due to injuries on the body and the in juries on the internal organs. He has mentioned that external injuries Nos. 1 and 2 together with the internal injuries were sufficient in the ordinary course of nature to cause the death of Gokul. In the cross-examination surprisingly not a single question has been put to Or. Ujalambkar relating to the injuries suffered by Gokul and the cause of death as certified by the doctor in his examination. We are constrained to mention this because Mr. Dighe has sought to reduce the offence by relying upon some judgments of the Supreme Court to which necessarily we will make a reference shortly. On the medical evidence itself, which is before us. it is thus clearly established that accused No. 2 is guilty of the offence punishable u/s 30 of the Indian Penal Code for the injuries which he has caused to Gokul.

We will now turn to some of the authorities relied upon by the learned Advocate Mr. Dighe in order to diminish the liability of the accused and in particular of accused No. 2. In Gokul Parashram Patil Vs. State of Maharashtra, . it was noticed by the Supreme Court that only a solitary blow had been given by the accused to the deceased on the left clavicle which was specifically mentioned to be a non-vital part by the Supreme Court. The Supreme Court, therefore, proceeded to hold that if the accused gave a blow on the left clavicle, which was a non-vital part, he could not naturally know that the superior vena cava would be cut as a result of the injury caused to the left clavicle. In such a circumstance the Supreme Court held, and with great respect, naturally, that the accused could not be convicted u/s 302 of the Indian Penal Code but u/s 304 Part II of the Indian Penal Code. The reasons are not far to seek at all because the facts slated by the Supreme Court themselves show that there was a solitary blow and it was given on the left clavicle which was mentioned to be a non-vital part. The possibility of the accused possessing the knowledge that as a result of the blow given by him. superior venacava would be cut was non-existent. It is in these circumstances that the offence was held to be one u/s 304 Part II of the Indian Penal Code. Then there is the judgment of the Supreme Court in (iurniail Singh vs. State of Punjab AIR 1082 SC 1466, where as a matter of fact it was found that the injury caused was accidental without even a passing-thought of causing injury to the deceased person. As a finding of fact further it was held that the accused could not be said to have intended to cause that particular bodily injury which was in fact found to have been caused, in these circumstances it was held that the offence was one punishable u/s 304 Part II of the Indian Penal Code despite the fact that the injury inflicted may have been found to be sufficient in the ordinary course of nature to cause death. Both these judgments, in our opinion, are not relevant to the facts which are before us, wherein it is found that accused No. 2 caused not one but two injuries by knife on the abdomen of Gokul. He caused those injuries on a vital part such as the chest and the abdomen causing some large scale internal injuries which in turn resulted in haemorrhage and shock. For the same reasons, we are of the opinion that reliance placed by Mr. Dighe on Randhir Singh alias Dhire Vs. State of Punjab, . is equally misplaced. In this case the Supreme Court held :

"Having regard to the totality of circumstances, viz., there is only one injury, that the weapon was not carried by the accused in advance, that there was no premeditation, that he was a young college going boy, that there was some altercation between the deceased and his father and that the death occurred nearly after six days, one can only say that the accused must be attributed the knowledge that he was likely to cause an injury which was likely to cause death. It cannot be said that the accused intended to cause that particular injury. Under these circumstances, the appellant is shown to have committed an offence u/s 304, Part II."

It may also be noted that in Randhir Singh s case there was only one injury.

There are some further authorities which also need to be considered at this stage. Laxman Kalu Nikalje Vs. The State of Maharashtra, is often pressed into service by the defence Advocates in order to get the liability diminished from one u/s 302 to one u/s 304 Part II of the Indian Penal Code and often this judgment, which has been subsequently referred to by the Supreme Court in another judgment, is cited by the Advocates to canvass the view that a single blow given on the chest by an accused person, even if it causes death, could make an accused liable only u/s 304 Part II and not u/s 302 of the Indian Penal Code. This attempt, in our opinion, is unfortunately repeated often and is misconceived. The facts of Laxman Kalu Nikalje''s case are not remembered by the learned Advocates who often rely upon this judgment. It is in these circumstances that we are constrained to refer to the nature of the injuries sustained by the deceased in that case on the basis of which the Supreme Court held that the offence was not u/s 302 of the Indian Penal Code. After examining the evidence the Supreme Court said that the evidence disclosed the following facts : -

"The injury inflicted on the person of the deceased was a single one. The eyewitness did not speak about the weapon but she only said that the accused hit the victim with a weapon and ran away. Though the injury was a serious one in that it had cut the auxiliary artery and veins, it was not on the vital part of the chest and had not reached the lungs."

It is obvious that on the material which was before the Supreme Court in that case, it was held that the injury was almost superficial and it was only accidental that an artery like an auxiliary artery and the veins had been cut. From this it was inferred that the accused did not have an intention to cause such injury as was likely to cause death or an injury which was sufficient in the ordinary course of nature to cause death. The injury itself was held to be not the result of the act of the accused. Since, however, the accused had aimed a blow on the chest, knowledge was attributed to him that his act was likely to cause death. Therefore, the Supreme Court held that the case fell under the third part of Section 299 and, therefore, Part II of Section 304 of the Indian Penal Code. The judgment of the Supreme Court in Laxman Kalu Nikalje''s case is not an authority for the proposition that if a knife blow is given on the chest of a person who consequently dies as a result of the injuries, the offence can never fall u/s 302 of the Indian Penal Code or that it must necessarily fall u/s 304 Part II of the Indian Penal Code.

Similarly any attempt to invoke the authority of the judgment in Harjinder Singh alias Jinda Vs. Delhi Administration, , to reduce the liability of accused No. 2 in the instant case must also fail. In Harjinder Singh''s case the accused had struck the deceased with a knife on the thigh causing a rupture of the femoral artery. Thigh has never been regarded as a vital part of the body and if as a result of an injury caused to the thigh an artery is ruptured, naturally the death could not be said to be due to an injury caused intentionally by the accused. It was thus found to be legitimate to hold that the accused struck the deceased with the intention to cause the injury likely to cause death and, therefore, the offence fell u/s 304 Part I of the Indian Penal Code. If one reads paragraph 9 of the judgment, one notices that the Supreme Court inferred right off private defence - hence Part I of Section 304.

In Gokul Parashram Patil Vs. State of Maharashtra, to which we have already made a reference earlier, we noticed that the Supreme Court held that the case fell u/s 304 Part II of the Indian Penal Code because the small "blow given by the accused was on the clavicle which was a non-vital part. We have no doubt that if the facts had disclosed that even a solitary blow had been given on the neck of a person, it would have been held that the case fell u/s 302 of the Indian Penal Code. Neck has always been regarded as a vital part of the body and if a sharp instrument like a knife or a dagger is aimed at a neck and the injury is caused cutting off veins or arteries in the process, then the offence would and must necessarily fall u/s 302 of the Indian Penal Code. That the neck has such delicate parts such as jugular vein and the wind pipe is known even to a common man. No knowledge of anatomy is necessary to know that death would result if a knife blow is given on the neck. No knowledge of anatomy is also necessary to realise that death would result if a weapon like a knife is used on the chest forcefully cutting blood vessels or puncturing lungs or heart or air passages. Similarly no knowledge of anatomy is necessary to realise that death would result if knife is used on the neck cutting artery or other major vein. This is the reason why often in common parlance the phrase "cutting the throat" is used to indicate killing of a person. Similarly no knowledge of anatomy is necessary to realise that death would result if a knife is used on the abdomen which is a vital part cutting the intestines, kidneys, spleen or pancreas which are housed in that part of the body. In such a case it is not permissible to contend that merely one knife blow was given without intending to cause serious injuries resulting in the death of the person concerned. It must be realised that when a person uses a sharp and dangerous weapon such as a knife or a dagger or a spear on the vital parts of the body mentioned by us above, he must necessarily be presumed to intend the consequences of causing severe injuries to the vital organs in those parts of the body. In such a case, the offence would. subject of course to the medical evidence, fall u/s 302 of the Indian Penal Code.

While we are on this subject we may also briefly refer to some other judgments in this field. In Gudar Dusadh Vs. State of Bihar, . the accused had given a lathi blow on the head of the deceased as a result of which the deceased fell down and died instantaneously. The circumstances indicated that the assault was premeditated and the (sic) on (he head of the deceased was not accidental. Medical evidence showed that the injury was sufficient in the ordinary course of nature to cause death. The Supreme Court held the case squarely fell within the ambit of clause thirdly of Section 3(X) and was thus punishable u/s 302 of the Indian Penal Code. The head obviously was regarded as a vital part in that case. Similarly the head has been regarded as a vital part in Chahat Khan Vs. The State of Haryana, .

In Suite of U. P. vs. Babboo. AIR 1078 SC 1084. there were several injuries on the body of the deceased, but Dr. Kachar who had been examined noted that two of those injuries were punctured wounds which were chest cavity deep and left pleura and left lung had been punctured. The injury to the lung was in the entire thickness of the lower lobe and there was no doubt that the act by which the death was caused was done with the intention of causing bodily injury and the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death within the meaning of Section 300 of the Indian Penal Code. Here the injury has been made on the chest and it had gone sufficiently deep to cause injuries to the lung.

In Pappu v.s. State of C. P. AIR 1078 SC 1455. there was only one punctured wound on the chest was cavity deep. On internal examination it was found that this wound was going deep into the heart cutting the auricle and root of the aorta. Medical evidence was to the effect that the injury was sufficient in the ordinary course of nature to cause death. Here is a case of a single injury on the chest which was held to be causing death bringing the case within the mischief of Section 302 of the Indian Penal Code/

There should thus be no misunderstanding on the correct position in law. However, as has been pointed out by the Supreme Court in Virsa Singh Vs. The State of Punjab, . in a given case it may be proved or the totality of the circumstances may justify an inference that the accused only intended a superficial scratch and that by accident, the victim stumbled and fell on the sword or spear that was used. In such a case, the offence may not be of murder. The question is not whether the accused intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. "But if there is nothing beyond the injury and the fact that the appellant inflicted it. the only possible inference is (hat he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences. is neither here nor there. The question so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion."

We have no manner of doubt on the facts of this particular case that when accused No. 2 wielded the knife on the abdomen of Gokul not once but twice in a manner which caused extensive internal damage to the vital organs of Gokul, he had the intention to cause those injuries which were sufficient in the ordinary course of nature to cause death. Indeed on the evidence in the instant case, we may even hold that the accused intended by the act in which he indulged to cause the death of Gokul. This is one of those cases which can be brought directly under clause firstly of Section 33 of the Indian Penal Code. There is no escape from the conclusion that accused No. 2 is guilty of the offence punishable u/s 302 of the Indian Penal Code. [Rest of the judgment not material for report.]