DAMODARAN Vs. STATE

JUDGEMENT

(1.) CRIMINAL Appeal 111 is by the State and is directed against the acquittal of the appellant of the charge of murder. According to the State there was absolutely no justification to reduce the offence to one of culpable homicide not amounting to murder. These appeals were heard together and Sri C. J. Simon to whom the court assigned the accused's brief presented the defence case very well.

(2.) THAT Bhargavi, the wife of the accused died of the injuries she sustained at the hands of the accused admits of no doubt on the evidence in the case. The testimony of Pw. 1 the deceased's mother and the statement the deceased herself made to the Police which formed the First information Report clearly show that the accessed gave Bhargavi two cuts with a sickle one on the head and the other on the neck. The occurrence was at about 4 p. M. on 1-2-1951 and Bhargavi died at about 4-15 A. M. on 2-2-1951. THAT her death was the direct result of the injuries caused to her is amply proved by the medical evidence in the case. In his statement before the trial court the accused admitted all but giving these cuts to Bhargavi. The circumstances leading to it as also the incidents that followed it are admitted by him leaving a void as it were with reference to the occurrence proper. However in his memorandum of appeal he has categorically admitted that he caused the death of Bhargavi and in view of that statement it is unnecessary to enter into greater details concerning the proof of the occurrence.

(3.) BEFORE concluding, a word has to be said about the conviction and sentence under Section 316. As at present advised it appears to us that the conviction and sentence under that section cannot be justified. Illustration to section 316 as also recognised Commentaries on Penal Code would seem to indicate that the section has no application to a case where the act attributed to an accused person has resulted in the causing of death of a pregnant woman. See Mayne's Criminal Law of India 4th Edition page 542 and Dr. Nandalal's Penal Code, Volume II page 1559. The forum of a charge under section 316 occurring in this as also the Commentaries by Rathanlal and Dr. Gour would also support this view. Further even if a separate conviction is not open to exception separate punishment would seem to offend section 71, I. P. C. The legality of the conviction or the sentence under section 316 has not been raised before us by either side. The appeal memorandum in either case does not refer to it and as the question did not receive sufficient attention during the arguments at the Bar we do not think it necessary to express any final opinion on either aspect. As we have found the accused guilty of murder and sentenced him to undergo rigorous imprisonment for life we do not consider that the conviction or sentence under Section 316 should be retained. Accordingly we set aside the conviction and sentence under that Section.