KALIYA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) ACCUSED Kaliya alias Jagdish was convicted under section 302, I. P. C. and was sentenced to imprisonment for life with a fine of Rs. 1000/-, in default of the payment of fine to further undergo three months' rigorous imprisonment by the learned Sessions Judge, Jodhpur vide his judgment dated January 30, 1979. He has come up in appeal to challenge his conviction and sentence.

(2.) BRIEFLY stated, the prosecution case, which is short and simple, is that deceased-victim Mahendra Singh Chaudhary was living with his wife PW 13 Smt. Meena, minor son Rajesh aged about 5 years and daughter Shashi aged about 2\ years in a room in Hukam Niwas Building situate in Sardarpura, Jodhpur. The deceased and the appellant were on inimical terms. At about 7. 00 P M. on February 28, 1978, the deceased, his wife and the two children left their house to go to a temple as it was the birthday of Kumari Shashi. When the party covered a distance of a10-15 feet and reached near a Peepal tree, the party saw the appellant and Nrasingh Das (Co-accused acquitted) standing there. Accused Kaliya gave a fist blow on the mouth of the deceased and thereafter grappled with him and felled him down. The appellant did not leave the deceased. Somehow or other, the deceased managed to get up and started running in a bid to save himself. The appellant and Nrasingh Das ran after the deceased and caught him a few steps away. Nrasingh Das caught hold the hands of the deceased and the appellant struck a number of blows to him with knife he had with him. The victim received multiple injuries, one of which was in his abdomen. The victim fell down. P. W. 13 Smt. Meena raised cries and many persons collected there but none could dare to intervene. Both the culprits thereafter made good their escape. There was profuse bleeding from the wounds of the victim and the clothes he was wearing got drenched with it. Smt. Meena also received some injuries when she tried to rescue her husband. She took her husband in a three-wheeler auto-rikshow to Mahatma Gandhi Hospital, Jodhpur where he was admitted for treatment. One Chand-mal on duty at the enquiry cell of the hospital informed police, Sardarpura on telephone about the injured condition of the victim. The Station House Officer Badansingh (PW 17) immediately reached the hospital. Before he could reach there, the victim succumbed to the injuries. The Station House Officer found Smt. Meena there in the hospital and recorded her statement Ex. P. 16. Ex. P. 16 was treated as the First Information Report and a case under section 302, I. P. C. against the accused appellant and his associate Nrasingh Das was registered. The inquest report of the victim's deadbody was prepared. His blood-stained clothes were seized and sealed. The site of occurrence was inspected and blood-smeared soil was seized and sealed from there. Thn autopsy on the victim's deadbody was conducted at about 12. 15 P. M. on March 1, 1978 by Medical Jurist Dr. Prakash Dayal (PW 9 ). The doctor noticed the following ante-mortem injuries on the victim's deadbody:- 1. Incised wound 5 c. m. x 1. 2 c. m. on the chest on left side at the level of 6th rib and 6th intercostal space. The 6th rib had been partially cut at inferior border at the posto chondal junction. It was 4. 5 c. m. from the mid-line and was pleural cavity deep. There was about 70 to 100 cc blood in the left pleural cavlty. The injury was oblique in direction. 2. Incised wound 2. 5 c. m. x 0. 5 c. m. and skin deep in the eppigestic region 1 cm. to the left of mid line. It was transversed. 3. Incised wound 3. 5 cm. x 1. 5 c. m. about 7. 5 cm. to the left of mid-line and 10. 5 c. m. above the umblicus. The peritonium had been perforated and the omuntum was protrunding through the wound. It was oblique. 4. Incised wound 4. 5 c. m. x 1. 2 c. m. about 12 c. m. from the mid-line and 5. 5 c. m. below and lateral to injury No. 3. It was oblique. The omuntum was protruding and the peritonium had been performed. 5. Incised would 4. 5 c. m. x 1. 6 c. m. about 1. 3 cm. below the umbilicus in the mid line. A loop of intestine about 15 cm. long was protruding through the wound and it had been perforated at two places about 1 cm. long, The wound was oblique. The mesentry had been perforated at the margin of the intestine at two sides about 0. 7 c. m. long. There was about 500 cc blood in the peritonium cavity which was partially clotted. 6. Incised wound 2. 5 c. m x 0. 5 c. m. just to the right of injury No. 5. It was skin deep and longitudinal. 7. Incised wound 5 5. c. m. x 2. c. m. and muscle deep on the antro-lateral aspect of left thigh 14 cm. below the anterior superior iliac spine. It was transversed. 8. Incised wound 1. 0 cm. x 0 5 cm. and skin deep on the anterior aspect of left thigh 2. 5 cm. medial to injury No. 7. It was transversed. 9. Incised wound 3 cm. x 1 cm. and skin deep 2. 5 c. m. medial to injury No. 8. It was longitudinal. 10. Incised wound 2. 5 cm. x 1 c. m. and muscle deep on the lateral aspect of left thigh in 23 cm. below the crest of ileam. It was longitudinal. 11. Incised wound 2. 5. cm. x 1 cm. and muscle deep on the medial aspect of upper part of left thigh. It was longitudinal. 12. Incised wound 4 5 c. m. x 0. 7 c. m. and skin deep on the left lateral aspect of chest at its middle. It was longitudinal. 13. Abrasion 1. 5 c. m. x 0. 7 c. m. on the bridge of nose. 14. Lacerated wound 1 cm. x 0. 7 cm and muscle deep on the lower lib on left side with fracture dislocation of the lateral-incisor and canine teeth of upper and lower jaw with laceration of the gum at the site. 15. Bruise 7 c. m. x 3. 5. c. m. on the lateral aspect of left arm at its middle.

(3.) PW 9 Dr. Dayal in his examination-in-chief deposed that injury No. 5 of the victim was sufficient in the ordinary course of nature to cause death. He further deposed that the remaining injuries were also collectively sufficient to cause the death. In cross-examination he stated that in the ordinary course of nature the man would not survive after receiving injury No. 5 but only if expert treatment was made available immediately to him, he might have survived Learned counsel for the appellant, in view of this statement of Dr. Dayal, wants us to take out the offence from section 300, I. P. C. But we are unable to accept his contention. Exception (2) of Section 299 IPC clearly lays down that where death is caused by bodily injury, the person who caused such bodily injury shall be deemed to have caused the death of him although by resorting to proper remedies and skillful treatment the death might have been prevented. We have given our anxious consideration to the testimony of Dr. Dayal. In our opinion, there is nothing in it to take out the case from clause 3rdly of Section 300, I. P. C. If the bodily injury inflicted is sufficient in the ordinary course of nature to cause the death, clause 3rdly would atonce spring up to cover the case within its ambit. As such, injury No. 5 is sufficient to bring the case within the four corners of clause 3rdiy. Apart from that, the remaining injuries were also collectively sufficient to cause the death. The victim was iniflcited as many as 12 incised wounds on the different parts of his body. Again, the intention of the accused to commit the victim's murder is apparent looking to the number of injuries, parts of the body where they were inflicted and the weapon namely the knife used. We are, therefore, of the opinion that the offence resulting from the death of the victim is that of murder unless the case is covered by any of the Exceptions enumerated in Section 300, I. P. C.