Devi Sahai vs State

Teja Singh, C.J.—Devi Sahai has been found guilty by the learned Sessions Judge, Mohindargarh u/s 302, I.P.C., and has been sentenced to transportation for life. He has preferred an appeal against his conviction and sentence. The record is also before us for the confirmation of the sentence.

Jag Ram whom the appellant is alleged to have murdered, was his father''s brother. The occurrence took place on the morning of 6th August 1950. The prosecution story in brief is that the deceased and the appellant jointly owned, shutters of a door and by mutual arrangement Jag Ram got hold of them and agreed to pay Rs. 35/-to Devi Sahai for his share. He was allowed a month to make the payment but for some reason or the other he made a default. We are told that the appellant demanded the payment of his money once or twice but the deceased always put him off on one pretext or the other. On the fateful day the deceased happened to be sitting in front of the house of Charanji P.W. 3 and was busy in having a smoke. Ram Sarup, Dana and Nanta were also sitting nearby. The appellant came up and asked the deceased to let him have the money that he owed to him. The deceased wanted more time and upon this the appellant started cursing him. The deceased returned the abuse and this resulted into an altercation. While the quarrel was going on the deceased got up and wanted to leave the place. On this the appellant took up a double-pronged piece of wood called ''Halsundi'' which happened to be lying near by, went up to the deceased and struck him with it on the head. The man fell down unconscious and was taken to his house where he succumbed to his injury in a few hours. Mt. Nanti the widow of the deceased proceeded to the Police Station and lodged the report. S.I. Shil Chand reached the village the same day and after preparing the inquest report and other formal papers recorded the statements of the eye-witnesses.

The material witnesses in the case are Mt. Nanti, Charanji, Ram Sarup, Dana and Nanta. Mt. Nanti besides proving the first information report averred that she had also been attracted to the spot on hearing the quarrel that was going on between her husband and the appellant and was an eye-witness of the injury given by the appellant on the head of the deceased. The other witnesses corroborated her testimony and described how the deceased had been attacked by the appellant. None of them was shown to have any kind of bias against the appellant and the manner in which they all gave evidence proves affirmatively that they had no motive to give false evidence.

As regards Mt. Nanti, inspite of the fact that she was the widow of the deceased, I see no ground to distrust her testimony either, first because all the other witnesses proved her presence on the spot at the time of the incident and secondly because no previous ill-will existed between the appellant and the deceased and there was, therefore, no motive on her part to perjure herself. The appellant denied his guilt and alleged that the witnesses gave evidence against him became of enmity but no enmity of any kind has been proved. In fact no enmity was even suggested in the cross-examination of the witnesses. The evidence of Dr. Ram Gopal Verma who conducted the post-mortem examination on Jagram''s dead body was that he discovered a contused wound 21/2" in length on the posterior part of the mid-frontal region of the head and that on opening the scalp under the injury he found a fissured fracture 4" in length on left side of frontal bone running from the middle of the bone towards the left and in downward direction. Death in the opinion of the Doctor was due to compression of the brain brought about by the fracture of the skull bone. From this it is clear that the responsibility for causing Jag Ram''s death lay upon the appellant.

The question is whether his act amounted to murder pure and simple. It was urged by Shri Chetan Dass who appeared on behalf of the State that in view both of the weapon used and the part of the body which the appellant selected for the attack it must be held that he had the intention of inflicting such a bodily injury as was likely to cause death or at least was sufficient in the course of nature to cause death and so the case fell within the purview of Clauses ''Secondly'' and ''Thirdly'' of Section 300, I.P.C. Shri Kedar Nath, learned counsel for the appellant argued that since the whole thing happened on the spur of the moment and the appellant acted on a sudden impulse he could not be credited with the intention of causing an injury either likely to cause death or sufficient to cause death in the ordinary course and he could only be convicted for causing a grievous hurt. Now both sides are agreed that not only the deceased and the appellant were closely related to each other but there was no previous ill will between them. All the eye-witnesses with the exception of Mt. Nanti, admitted that their relations had always been cordial. It is true that the deceased''s failure to pay up the amount that he owed to the appellant during the stipulated time must have caused some annoyance to him, but there is no reason to think that this made the appellant the enemy of the deceased or could have been a ground for his using any violence against him. I, therefore, accept the contention of the appellant''s counsel that the appellant got excited by the exchange of abusive language which he had with the deceased and when he saw that the deceased was about to go away in a moment of frustration he took up the ''Halsundi'' and struck it on the head of the deceased. In the circumstances, it appears to me that there can be no question of his intending to cause an injury sufficient to cause death in the ordinary course of nature and Clause ''Thirdly'' of Section 300 can have no application at all. So far as Clause ''Secondly'' is concerned it can apply only if it was within the knowledge of the offender that the injury which he intended to cause was likely to cause death and my opinion is that this condition is not satisfied, in the present case.

Mr. Chetan Dass urged that every person should be presumed to intend the natural consequences of his act. This is no doubt correct but with a view to be able to find out the exact intention of a person we must also take into consideration all the surrounding facts and the circumstances in which the act is committed. In the present case, as has been pointed out above, there being no previous enmity between the appellant and the deceased, it cannot even be held that the appellant could have intended to cause a serious hurt. In this connection it must not be forgotten that he picked up the weapon that he used from the spot and the peculiar shape of the weapon is such that even if used with both hands, it could not ordinarily result in causing a fatal injury. Accordingly I am not prepared to hold that" the appellant intended to cause an injury that he knew was likely to cause death or the injury that would be sufficient to cause death in all probability. All that can be held is that he knew that he was likely to cause death and since death was caused by him, the offence committed by him was culpable homicide not amounting to murder. In this respect the facts of the case are analogous to those of '' Ganesha Vs. Emperor . In that case, the accused''s wife and the deceased, who was the wife of the accused''s brother, were quarrelling about sharing a pumpkin. The accused broke the pumpkin into two against the wishes of the deceased whereupon she abused him. The accused took up a lump of limestone weighing about three pounds and struck the deceased with it on her head. The injury resulted in her death. It was held that the accused had committed an offence of culpable homicide not amounting to murder. "It is perfectly clear", observed the learned Judges:

that the accused acted on the impulse of the moment and had no intention either of killing the deceased or of fracturing her skull. The case does not come under either of the four clauses of Section 300, I.P.C. At the same time, as the lump of ''potni-matti'' weighed three pounds it must be taken that he knew that there was a probability of a fatal injury being inflicted.

In re ''Perumal Naicken'', 13 Cri LJ 129 (Mad), the accused had caused the death of his wife''s aunt in the following circumstances: He suspected his wife of infidelity and stabbed her four times on the back with a clasp-knife. She ran up to the deceased for protection and clasped her arms round her waist. The deceased begged accused not to stab his wife. The accused then plunged the knife into the deceased''s back. It was held that the accused was only guilty of culpable homicide not amounting to murder as he had no intention of killing the deceased or of causing a vital injury, i.e., a wound at a place and of a character which would naturally cause death. It was further held that though the wound actually inflicted was no doubt sufficient in the ordinary course of nature to cause death it was not enough to bring the case u/s 302, because to make an offence of murder, ft must also be shown that the accused intended to inflict such injury.

The other case in point is ''Kara v. Queen-Empress'', 5 Pun Re 1893. where the accused had caused the death of his wife by striking her on the head with a wooden Kharwanji (a stand on which butter is churned.) The Sessions Judge had convicted him of murder holding that the case fell within Clause 3 of Section 300, I.P.C. The Chief Court held that the conviction should have been under second part of Section 304, I.P.C., as it could not be safely found that there was anything more than knowledge that death was likely to result from such a blow as the accused gave.

Shri Chetan Dass relied upon AIR 1949 19 (Nagpur) . In that case not only the weapon used was a knife, but it was proved that the accused had intended to cause and had caused a wound in the abdomen which was sufficient in the ordinary course of nature to cause death. The Fact of the other case cited by the learned counsel, '' AIR 1934 741 (Lahore) , were also distinguishable inasmuch as the weapon used was a ''sela''. The accused had plunged it into the chest of the victim and death was instantaneous. From this the learned Judges inferred that the intention of the accused was to cause death. In '' AIR 1934 335 (Lahore) the weapon used was a ''Dang'' and the accused hit his victim on the head in a sudden quarrel. It was held that the accused did not intend anything more than causing grievous hurt under sudden impulse, and consequently he could only be punished u/s 325, I.P.C. With all deference I would prefer to follow the view taken in the Allahabad and Punjab Record cases, because whatever may be the intention of an offender when he attacks another person on a vulnerable part of his body and uses a fairly heavy weapon he should be credited with the knowledge that his act is likely to endanger life and even though he does not intend to cause death the offence committed by him cannot but be described as culpable homicide not amounting to murder.

For all these reasons, I would allow the appeal to the extent that I would convert the appellant''s conviction from Section 302, I.P.C., to one u/s 304, Part II, I.P.C., and reduce his sentence to 5 year''s rigorous imprisonment.

Chopra, J.

I agree.