MORCHA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal under S. 2 (a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 (Act 28 of 1970) raises a short question as to the nature of the offence made out against the appellant on the basis of the evidence adduced in Sessions Case No. 64 of 1966.

(2.) The Sessions Judge, Udaipur, who tried the appellant found on a consideration of the evidence led in the case including the direct testimony of Mst. Jelki (P. W. 3) and Mst. Modan (P. W. 8) that the appellant attacked his wife, Ms. Gajri with dagger (Exh. 1) and caused injuries on her person out of which injury No. 2 which had injured the liver and caused the perforation of the large colon was sufficient to cause her death in the ordinary course of nature. Despite this finding, the Sessions Judge convicted the appellant under s. 304 Part II of the Indian Penal Code and acquitted him of the charge under s. 302 of the Penal Code in view of the fact that Dr. Laxmi Narain (P. W. 1) who conducted the post-mortem examination of the body of Mst. Gajri had said in the course of his examination that if immediate expert treatment had been available and emergency operation had been performed, there were chances of here survival. The Sessions Judge agreeing with the contention raised on behalf of the defence also found that according to the case of the prosecution itself, the accused had gone to the village of his in-laws to fetch Mst. Gajri and it was only on her refusal to accompany him that the incident tool place; that he had no intention to kill Mst. Gajri and that at best what could be attributed to the appellant was the knowledge that the injury he was inflicting on the deceased was likely to cause her death.

(3.) On the matter being taken in appeal by the State, the High Court found that the Sessions Judge was in error in acquitting the appellant of the offence under Sec. 302 of the Indian Penal Code ignoring the evidence to the effect that a penetrating wound 1 1/2" x 1/2" was caused by the appellant with a dagger on the posterior axillary line 10' from the top of the shoulder and 5" from the spine which had caused injury to the liver and perforation of the large colon and was sufficient to cause death in the ordinary course of nature. Accordingly, the High Court altered the conviction of the appellant from the one under S. 304 Part II of the Indian Penal code to that under S. 302 of the Penal Code and sentenced him to imprisonment for life.