RAJU ALIAS KOTTAIPAKKAM Vs. STATE

JUDGEMENT

(1.) THE accused appeals. He stands convicted for an offence under section 302, Indian Penal Code for having on 29th day of August, 1982 at about 3 P. M. at Palliadi Kattathurai road, in front of a grocery shop, committed murder by intentionally causing the death of Malkiah by stabbing him on his right chest with a pen knife.

(2.) THE brief case of the prosecution as spelt out by p. W. 1, who happens to be the brother of the deceased, is as follows: THE accused is a vender of arrack. THE deceased in one of his customers, who owed him some money on account of previous purchase and consumption of arrack. On 29th August, 1982 at about 2 p. m. , when P. W. I and his father were walking on palliadi Kattathurai road, his brother, the deceased was moving 10' forward. When the deceased Malkiah was nearing the grocery shop of P. W. 2, the accused approached Malkiah and scolded him, saying why after consuming arrack, he was wandering in the street without paying for the same. So saying, he ran with a knife. THE deceased Malkiah said that if he demanded the money in this manner, it would not be paid back. He invited the accused to speak with respect and politeness. THEn all of a sudden, the accused with the pen knife he was in possession of, stabbed Malkiah on the chest in the right part. An injury was caused. P. W. 1 and his father ran to the scene of occurrence, shouting'do not stab'. THE accused took back the pen knife and ran eastwards. Malkiah was taken by P. W. 1 and his father for about 50'. As Malkiah was not in a position to walk, they laid him by the side of the road. P. W. 1 went to bring a car. THE car was brought about at 4 p. m. At that time P. W. 1 was apprised by his father that Malkiah was already dead. THEre was blood-stain in the place of occurrence. P. W. 1 saw pool of blood in the place where Malkiah was lying dead. P. W. I then proceeded to the police station to give a first information report to P. W. 9. On 29th August, 1982 at 6. 30 p. m. P. W. 1 appeared before P. W. 9, the Head Constable at that time and narrated what had happened. P. W. 9 reduced the narration of P. W. 1 into writing and got it signed by P. W. 1, which is marked as Ex. P. 1. P. W. 9 registered a case in Crime No. 416 of 1982 for an offence under S. 302, I. P. C. , and sent express first information reports ex. P. 2 to the Second Class Magistrate as well as to the higher officials.

(3.) LEARNED counsel appearing for the accused does not dispute the fact that the accused caused the death of Malkiah. But his case is that the act of the accused does not constitute an offence punishable under s. 302, I. P. C. as held by the learned Sessions-Judge, but only an offence punishable under S. 304, Part II. He relied for this purpose on a decision of the Supreme Court in Gokul v. State of Maharashtra, 1981 S. C. C. (Crl) 731: 1981 crl. L. J. 1035 (1981) 2 S. C. C. 321: 1981 L. W. (Crl.) 286: A. I. R. 1981 S. C. 1441. The decision itself is based on a earlier decision of the Supreme Court reported in Virsa Singh v. State of Punjab, A. I. R. 1958 S. C. 465. The gist of the dictum of the Court in this case is that only if an injury is held to have been intended by the assailant and is further found to be sufficient in the ordinary course of nature to cause death, it would attract clause third of S. 300 of the code and that, therefore, its author would be liable to punishment under S. 302 thereof. In the case relied upon by the learned counsel for the appellant, the question was whether the particular injury which was found to be sufficient in the ordinary course of nature of cause death was an injury intended by the appellant The Supreme Court emphatically answered in negative and observed as follows: "the solitary blow given by the appellant to the deceased was on the left clavicle-a non vital part-and it would be too much to say that the appellant knew that the superior venacava would be cut as a result of that wound. Even a medical man perhaps may not have been able to judge the location of the superior venacava with any precision of the type. The fact that the venacava was cut must, therefore, be ascribed to a non-intentional or accidental circumstances. " The Supreme Court referred to other decision in which is was held that although the injury which was found to be sufficient in the ordinary course of nature to cause death had resulted from a blow with a sharp-edged weapon, the same could not be said to have been intended, that the only injury which could be regarded as intentional was the superficial wound resulting directly from the blow, that the assailant could not be held guilty of an offence under S. 302 of the Code and that he was, on the other hand, guilty of a lesser offence falling under Part II of S. 304 thereof.