Chummar vs State and Another

M.M. Pareed Pillay J.

The accused who has been convicted and sentenced u/s 304Part II of the Indian Penal Code for a period of 3 years by the Sessions Judge, Kottayam has filed the appeal. Criminal Revision Petition is filed by the father of the deceased. The prosecution case is that on 26-6-1982 the accused with the intention to murder Tomy and with the knowledge that death will be caused to him hit on his eye with the pointed end of a gent''s umbrella with force. Tomy sustained very serious injury and he breathed his last on 28-6-1982 at the Medical College Hospital, Kottayam. The accused and his wife were waiting for a bus on 26-6-82 at about 11 a.m. near Ferona Church at Kaipuzha. Tomy came on a cycle from South to north along Kottayam-Neendoor road. The cycle hit the accused''s wife and the tiffin carrier held by her fell on the road. The accused became furious when Tomy stated that the incident happened as the accused and his wife tried to cross the road. Enraged by the incident the accused hit Tomy with force on his eye with the pointed end of his umbrella.

Pws. 1 and 2 removed Tomy in a car to the Medical College Hospital Kottayam P. W. 1 gave the first information statement (Ext P-1) before the police. P.W. 1 deposed that he was standing in the veranda of Antony''s pan shop, that he saw Tomy coming on a cycle, that the accused and his wife tried to cross the road, that she was hit by the cycle, that the tiffin carrier which was with her fell down, that Tomy stated that the incident happened as the accused and his wife crossed the road, that the accused used abusive words against Tomy and that he poked his umbrella''s pointed end into Tomy''s eye PWs. 1 and 2 along with Tomy boarded a bus to go to Kaipuzha Hospital. As Tomy lost his consciousness he was taken in a car to the Medical College Hospital Kottayam. PWs 2 and 4 testified coroborrating the evidence of PW 1 in all material particulars. Nothing has been brought out in cross examination to discredit their testimony. The learned Sessions Judge has rightly held that the accused was responsible for the injury sustained by Tomy. Presence of PWs 2 and 4 was stated by pw. 1 at the earliest opportunity when he gave Ext. P-1 first information statement.

P. W. 5 doctor who treated Tomy stated that at the time when he was admitted in the hospital he was unconscious. P. W. 5 gave Ext P-4 intimation to the police. PW-6 conducted autopsy and issued Ext P.5 post mortem certificate. PW-6 stated that the cause of death was due to the injury sustained by the deceased in his eye. The doctor opined that the injury was sufficient in the ordinary course of nature to cause death. Ext P-5 postmortem certificate shows that Tomy had sustained a lacerated penetrating wound with 9.6 cm. depth on his right upper eye lid 2 c.m. from the middle and 0.5 cm below the eye brow.

Post mortem certificate and evidence of the eye witnesses would conclusively establish the fact that Tomy died as a result of the injury sustained by him. The evidence in the case would show that the said injury was caused to him by forceful hit with the pointed end of a gent''s umbrella.

Counsel for the accused submitted that even if the entire prosecution case is accepted the offence would only come u/s 304A of the Indian Penal Code. It is argued that even if the entire prosecution case is believed it would only reveal that out of a sudden outburst of anger the accused hit the deceased with the pointed end of his umbrella without any intention to cause any injury as is likely to cause death and hence the offence at best would only come u/s 304 A of the Indian Penal Code.

In a case where a person intentionally or knowingly inflicted injury on another he cannot take the stand that it was only a rash or negligent act and that he never could for see its consequences. Where bodily injury is inflicted by an overt act and the victim dies as a result of that injury it is futile to contend that the offence would only come u/s 304 A of the Indian Penal Code. Section 304A will not apply to a case where the accused committed an offence against another person voluntarily. Where a man strikes at another with a weapon, he is committing a criminal offence and that offence remains just the same whether he hits his intended victim or by chance hits a third person. When a person intentionally commits an offence and the consequence was not visualised by him he cannot turn round and say that his act was only rash and negligent coming u/s 304A of the Indian Penal Code. Every sane person has to be imputed with the knowledge that hitting with the pointed end of umbrella would cause injury on the victim. As such a knowledge can be imputed to the accused he cannot contend that unforeseen consequence followed which he never intended to happen or that he never knew that it is likely to happen. It is not possible to hold that the infliction of the injury on the deceased by the accused can be characterised as a rash or negligent act. When the accused hit the deceased with the umbrella definitely he should be attributed with the knowledge that it would cause injury to the victim. When such intention or knowledge can be attributed to the accused the offence would never come u/s 304A.

Section 299 I. P. C. provides that whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. In view of the evidence in the case it is not possible to hold that the offence would come u/s 304 Part II of the I. P. C. The offence squarely comes u/s 326 of the I. P. C. as grievous hurt has been undoubtedly caused to the deceased. Conviction against the accused u/s 304 Part II of the I. P. C. is hereby set aside and the accused is convicted u/s 326 of the Indian Penal Code and he is sentenced to undergo rigorous imprisonment for a period of 3 years.

With the modification in the conviction the appeal dismissed. Criminal Revision petition is also dismissed.