DHANJEE Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE appellant Dhanjee was convcited of the offience under Sec. 302, I P. C , and was sentenced to imprisonment for life and a fine of Rs. 100/-, in default of payment of fine to further undergo six months' rigorous imprisonment, by the Sessions Judge, Udaipur, by his judgment dated 27-5-1974.

(2.) THE prosecution case, in brief, is that there was a dispute between the accused Dhanjee and the deceased Laljee with regard to an agricultural land. Criminal litigations were also going on. THEre were cross criminal cases. THE accused had instituted a criminal case against the father of the deceased for having beat him and the accused Dhanjee was also prosecuted for having beat Hurji. the brother of the deceased and Khema, the father of the deceased. On 14-8-73 the deceased Laljee had visited the house of Ratna Patel (P. W. 2) at about 8. 00, p. m, in connection with the recovery of his dues relating to the labour charges. Ratna instead of making cash payment, expressed that he will make payment in kind and will deliver grain. THEreupon Laljee with a view to bring a basket from his house to take the grain, which may be supplied by Ratna, was coming out of the house of Ratna. Soon after he came out of the house of Ratna, the accused rushed from his house which is situated infront of the house of Ratna, and exhorted that where the enemy is going and after such exhortation thrusted the dagger (Gupti) in his abdomen. THE occurrence was witnessed by Amarjee (P. W. 1 ). THE injured Laljee raised an alarm shouting that Dhanjee has thrusted Gupti in his abdomen. Amarjee (P W. 1), Panna (P. W. 3), Vijey Singh (P. W. 4) were attracted to the scene of occurrence. Laljee was first removed to his house. THEreafter the same night he was taken by Nandu, Panna, Hurji and Vijay Singh to the Police Station, Kanba, District Dungarpur, where the injured Laljee lodged the verbal report (Ex. P/2), on which case under Sec. 307, I. P. C , was registered at 12. 30 a. m. , by the S. H. O. Jahoor Ahmed (P. W. 18 ). He seized the blood stained shirt (Ex. 1) and Dhoti (Ex. 2) of the injured vide seizure memo Ex. P/3. THEreafter the injured was sent to the hospital along with Ex. P/5, in which the investiga-ing officer stated to the Medical Jurist, Dungarpur, to conduct the medical examination of the injured & in case it is found that the condition of the injured is serious and precarious, then his dying declaration may also be recorded. THE injury on the person of the injured was examined by Dr. Kanhaiya Lal Gandhi (P. W. 5 ). THE injured was in his senses and was in a position to give statement, soon 15-8-1973 at about 5. 00 p. m. , Dr. Gandhi recorded his dying declaration (Ex P/4 ). THE injured succumbed to his injuries on 16-8 1973 at the Hospital at 8. 20, p. m. He conducted the postmortem examination on the dead body on 17-8-1973 and found the following external injuries on the person of Laljee deceased : - (1) Transverse incised wound 1 "x 1/4" x on the right side of the supra pubic region 3" above the pubic bone. (2) Lacerated wound 1/2 "x 1/4" on the right buttock 2" right to the annal opening. On opening the body he found that the muscles below the wound No. 1 in the abdomen were cut over the peritonium which was perforated. THE perforation was 1" in diameter with peritonitis. Further below there were two perforations in the small intestines (illeum) 3/4" in diameter each through which air bubbles and fecal matteis were coming out. Further below there was fecal matter and blood in the peritonium cavity all over. THE posterior wall of the abdominal cavity was having a perforation, which was passing out through the wound No. 2 near the anus. THE perforation on intestines were on the outer boarder and 3" from ileocal Junction. Wound No. 1 was the wound of entry and wound No. 2 was the gound of exit. THEy were through and through. According to Kanhai)a Lal Gandhi, the deceased died as a result of shock and haemorrhage caused by generalised peritonitis and intestinal perforation caused by the injuries.

(3.) THE main and principal controversy in the case is as to what offence is made out against the accused ? It is to be seen as to whether the appellant could be convicted of the offence under Sec. 302, I. P. C. and whether the act of the accused is covered under clause (2) and clause (3) of Sec. 300, I. P. C. as has been found by the learned Sessions Judge. On behalf of the appellant it is urged that the genesis of the occurrence has not come on record Under what circumstances the occurrence took place, is not known and beside that no intention can be attributed to the appellant to cause the death of Laljee inasmuch as the appellant did not repeat any blow. Had he intended to cause the death of the deceased, the natural conduct of the appellant would have been to repeat the blow with dagger leaving no chance of survival of the victim. It was urged that at the most the appellant can be attributed the knowledge that his act in thrusting the Gupti blow in the abdomen, is likely to cause the death and he at the most can be held guilty of the offence under Sec. 304, Part II, I. P. C It is further submitted on behalf of the appellant that it does not appear that the appellant ever intended to inflict a particular injury, which has actually been sustained by the victim. THE thrust of the Gupti might have accidently hit the abdomen. So the act of the accused would neither fall under clause (2) nor under clause (3) of S. 300, I. P. C. It was also pointed out that on court question as well as further cross-examination of Dr. Kanhaiya Lal Gandhi it has come in his evidence that the injury on the person of the victim, was of such a nature that death was the likely result and was not of such a nature that the death must be the result in all probabilities. Even if the operation would not have been performed, in the natural course the perforation of the intestines might have filled up. THE dimension of the perforation was only 1/4". In further cross-examination he stated that even after the development of peritonitis there where chances of surviving of the patient. It is emphasized that even according to the medical opinion the death was only the likely result and not probable result and there could be chance of survival even after development of peritonitis and perforation could be healed in the natural course looking to the dimension of the perforation in the intestines. THE learned counsel for the appellant, in support of his contention, placed reliance on Jawahar Lal v. State of Punjab (1 ).