In Re : Thimmaraya Chetty

Somasundaram, J.—Thiru Thimmaraya Chetty, the Appellant herein, stands convicted and sentenced by the Sessions Judge, North Arcot at

Yellore, In S.C. 84 of 1967 on his file, to suffer rigorous imprisonment for seven years for an offence u/s 304 Part I of the Indian Penal Code.

Seshammal, the deceased in this case, was the concubine of P.W. 9, the father of the Appellant. On the. 4th October 1967, she had gone oat to

the bazar to purchase some articles. The Appellant who was demanding a partition of the house from his father, locked it when she was thus away.

She returned tack, sat in the plal and engaged herself in removing the stones from the articles which she had purchased. P.Ws. 1 to 4, neighbours,

intervened and requested the Appellant to open the house, He refused. Seshammal scolded him, saying that he, who was brought up by her,

should not behave in that manner. Provoked by this, the Appellant took up M.O. la blow pipe, which was nearby, and beat her in the back and la the chest. He also kicked her on the front of her neck. She fell down. Dropping M.O. 1 at the spot, he scurried away from the place P.W. 9 who had gone to the field, arrived at the house when he was informed about it by P.W. 5, his brother-in-law. They removed the injured to the house of

P.W. 11, the village headman and there the report Ex. P-14 was given. They then proceeded to the police station at Nairampall, and handed over the complaint and the report to the Head constable P.W. 12. P.W. 6, the Medical officer at Panchayat UNION dispensary, examined the injured and sent her to the Government Hospital at Tirupattur. Where P.W. 7, the Woman Assistant Surgeon, saw her, there was difficulty in breathing.

She admitted her as an Inpatient and Seshammal expired on the next day at 2-40 p.m. P.W. 13, the Inspector of Police, took up the investigation,

held the inquest and sent the body for postmortem, P.W. 7, who did the autopsy, opined that death was due to respiratory obstruction, P.W. 13,

completed the investigation and charged the accused u/s 302 I.P.C. P.Ws. 1 to 4 who had witnessed the beating and the kicking, deposed to what they had seen. When questioned, the Appellant admitted the acts attributed to him, but stated that he did it because the deceased indulged in filthy language and threatened to beat him with a broomstick. Observing that the Appellant had caused the death by doing an act with the intention of causing such bodily injury as is likely to cause death, and holding that the case would fall under Clause (2) of Section 299 I.P.C., the learned

Sessions Judge convicted and sentenced the Appellant u/s 3C4 Part I of the Indian Penal Code. This Is the case.

P.Ws. 1 to 4 have spoken to the beating and the kicking done by the Appellant, and there is no reason to disbelieve their evidence, The

Appellant (sic) that he kicked the deceased on the front side of the neck. P.W. 6 the Medical officer who first examined her at 5 p.m. had seen on

her a contusion, 2 1/2 x 1 3/4"" in (sic)ze, in the medical end of the right clavicle. There has been a vomiting of the blood and, as stated by P.W. 6,

this could be due either in the bearing or to other deceases. Dr. L(sic) Devi (P.W. 7), the Civil Assistant Surg(sic) the Tirupattur Hospital, had seen the injured at 8 p.m. The injured was then a have bit breathless and there was difficulty in breathing She was admitted as an in pat and she (sic)d at

2-40 p.m. on the next day. P.W. 7. who did the autopsy ON her body, on dissection had found that there was congestion in the posterior part of the peritoneum. Congestion was also seen by her on the anterior and posterior mediastines. There were blood clots. Both the bases of the lungs and the upper part of the trachea were congested and pedematous. There was traumatie congestion and oedema in the larynx. She opined that death was (sic)ue to respiratory obstruction due to trauma to cedema of the larynx trachea and mediastinal haematoma, compressing the mediastinal trachea. She has further stated that the respiratory obstruction caused. In this ease would in the ordinary coarse of nature cause death and that this obstruction could be caused by a kicking in the front part of the neck The congestion of the other internal organs was due to the respiratory failure. There were no visible external injuries In the threat. She has further stated that if there was a violent kicking, there should have been some Injuries In the internal organs. She has asserted that chronic asthma would not produce oedema on the larynx. Thus, the deceased had sustained a contusion on the medial end of the right clavicle. She had vomited blood. There was (sic)ma in the larynx, trachea and mediastinal

haemateme, compressing the mediastinal trachea. This oodema could not have been the result of chronic asthma, and it had caused respiratory obstruction which resulted in her death.

Mr. Vassmam(sic), appearing for the Appellant, contends that the case would fall Within the ambit of Section 323 I.P.C. and that as such there

can be no conviction (sic) u/s 304, part I or pan II. For this position, he relies upon the decision in In Re: Marana Goundan, . That was a case of a kick in the abdomen and there was no mark of injury, external or internal. But, here the kicking which was on the throat, had caused oedema followed by obstruction to the respiratory system. The case in Chikati Guruvalu v. Emperor, 1944 M.W.N. 233, is also case where the injuries were inflicted to the nostrils. Death in that case was probably due to She age and feeble health of the deceased and there was nothing in evidence to suggest that the injury Inflicted in that case would in the ordinary course of nature bring about death. Similarly, the deceased in the case reported in Ramakrishna Panicker Vs. State of Kerala, had a diseased spleen. The next case relied on by him viz., Urmese Vs. State of Kerala, , is a case where the accused had merely beaten the deceased with an open palm in the neck.

Section 299 of the Indian Penal Code defines the offence of culpable homicide and Section 300 defines the circumstances in which the offence

of culpable homicide with, in the absence of certain exceptions, amount to murder. The circumstances in this case do not indicate that (he kicking was done by the Appellant with the intention necessary to make it under. The kicking was sodden and therefore unlaten-(sic). Clearly it is culpable homicide not amounting to under and the case does not fall within any of the exceptions mentioned in Section 300 I.P.C. Where culpable homicide net amounting to under is committed by an act done with he intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, it would fall u/s 304 Part I, But, where the act is done the knowledge that it is likely to cause death, but without any Intention to cause death or to cause such bodily injury as is likely to Cause death, it would fall under the second part The first of the section applies where there is a guilty intention, and the second part would apply where there is no such intention, but there is knowledge. The Appellant herein could not have had the intention of causing death so as to come within part I But he should have had the knowledge that kicking in the throat was likely to cause death or such bodily injury which is likely to Cause death. This will come within the purview of the second part.

The learned Public Prosecutor draws my attention to the caissons reported in Martmuthu In re AIR 1924, Mad, 41, and Gupta v. R. AIR

1949, All. 109, and contends that the case would fall only within the purview of Section 304 Part II. The first case is a ease where the prisoner had kicked his wife voluntarily on ore side of her body. There was no fracture of any bone. But she lost her breath in mediately thereafter. Ayling, J

held that one who kicks a woman on the side must be credited with the knowledge that he is likely thereby so cause her death and as such he would render himself punishable u/s 304 Part II of the Indian Penal Code. In the case reported in Gupta v. R. AIR 1949, All. 109, the accused had given a blow to the deceased with a stick in the region of the liver. She died an hour thereafter. Superficially it was a simple injury. Bat, the medical evidence showed that it was a serious one which had caused a rupture of the liver. It was held that a person who beats In the region of the liver should know that the death might be caused if the liver was ruptured and that he would render himself liable tinder Section 304 Part II of the

Indian Penal Code. Similarly, one who kicks in the region of the throat should know that death might be caused by respiratory obstruction.

Thus, the Appellant herein had kicked the deceased with his leg ID the front side of the neck. This had caused a contusion 3 1/2"" x 1 3/4"" on

the medial end of the right clavicle. Death was due to the respiratory obstruction due to traumatic oedema of the larynx, trachea and mediastinal haematoma compressing the mediastinal trachea. The medical evidence is clear on the question that such a kick would have caused oedema causing the respiratory obstruction. The person who kicks a woman in the throat should have had the knowledge that it was likely to cause death within the ambit of Section 304 Part 11.

The kicking was sudden. The Appellant himself had asked P.W. 5 to go and fetch P.W. 9 from the fields. Considering these circumstances,

while altering the conviction to one u/s 304 Part II, I.P.C. I sentence the Appellant to suffer R.I. for two years. With this alteration in the conviction and sentence, the appeal is dismissed.