HARENDM NATH MANDAI Vs. STATE OF BIHAR

JUDGEMENT

(1.) SECTION 304 does not create an offence but provides the punishment for culpable homicide not amounting to murder. In view of section 299 of the Penal Code, 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 cu1'pable homicide. In view of section 300 of the Penal Code, except in cases covered by the five exceptions mentioned therein, culpable homicide is murder. It is well -known that if a death is caused and the case is covered by any one of the five exceptions of section 300 then such culpable homicide shall not amount to murder. Section 304 provides punishment for culpable homicide not amounting to murder and draws a distinction in the penalty to be inflicted in cases covered by one of the five exceptions, where an intention to kill is present and where there is only knowledge that death will be a likely result, but intention to cause death or such bodily injury which is likely to cause death is absent. To put it otherwise if the act of the accused falls within any of the clauses 1, 2 and 3 of section 300 but is covered by any of the five exceptions it will be punishable under the first part of section 304. If, however, the act comes under clause 4 of section 300 i.e. the person committing the act knows that it is so imminently dangerous that it must in all probability cause death but without any intention to cause death and is covered by any of the exceptions, it will be punishable under the second part. The first part of section 304 applies where there is guilty intention whereas the second part applies where there is guilty knowledge. But before an accused is held guilty and punished under first part or second part of section 304, a death must have been caused by him under any of the circumstances mentioned in the five exceptions to section 300, which include death caused while deprived of power of self -control. under grave and sudden provocation, while exercising in good faith the right of private defence of person or property, and in a sudden fight in the heat of passion without premeditation. So far the present case is concerned, when death itself had not been caused, there was no occasion for convicting the appellant under section 304 of the penal Code.

(2.) NOW the next question is as to whether the appellant should be convicted for causing injury on the head of aforesaid Gopal Chandra Ravidas with the back portion of a Tangi. It was pointed out that the appellant had sustained injuries during the same occurrence including one at the scalp. The aforesaid injuries on the person of the appellant were examined by the Civil Assistant Surgeon, Sadar Hospital, Dhanbad, who has been examined as a witness at the trial. The appellant in his examination under section 313 of the Code of Criminal Procedure stated that he sustained injuries aforesaid while warding off the Bhala blow aimed at his chest by the aforesaid Gopal Chandra Ravidas. The other accused Sitaram Mandal who died during the pendency of the appeal had also been examined by the jail Doctor in the Dhanbad jail and said Doctor was examined as a witness at the trial, who proved the injuries on the person of accused Sitaram Mandal. The learned Judge himself on consideration of the materials on record has come to the following conclusion : -