State vs Sagar Bhagwan Harji

Baxi, J.

(1) The respondent was tried by the Additional Sessions Judge, Gondal, on a charge u/s 302, Penal Code, but was convicted under Part I of

Section 304, Penal Code, and sentenced to seven years'' rigorous imprisonment. This appeal has been preferred by the State against the learned

Judge''s above order.

(2) The facts as found by the learned Judge are ithat the respondent is alleged to have assaulted his elder brother''s wife Puri and given her several

blows with the flat side of a shovel causing severe Injuries to her resulting in her death. The assault took place on 18-3-53 in a field at about 10 or

11 a. m. and was the result of a dispute between the respondent and the deceased Puri over the boundary of the lands, which were respectively

assigned by the respondent''s father Harji to the respondent and Puri. The boundaries were demarcated by boundary stones, but the respondent

had removed the stones and claimed some portion of the field which was assigned to the deceased Puri.

On the morning of the offence the respondent went to his uncle Lava Jetha and requested him to come to the field and set boundary stones again.

Lava came to the field at about 10 a. m. The respondent and the deceased Puri were there. Puri''s minor son Bhavan, on whose behalf Puri was

acting as his guardian, was also there. Lava wanted to place the boundary stones in their original position, but the respondent did not agree as he

wanted more land. Lava however insisted upon fixing stones in their original places. The respondent then stated that he would call independent

persons in the afternoon and get the boundary fixed by them.

After an exchange of words with the respondent, Lava started to return to the village. He had hardly gone a few paces, when he heard the shouts

of a shepherd Gova Vira, who was also there, that Puri was being assaulted. Thereupon he turned back and both he and the shepherd ran to the

rescue of the woman. But before they reached the spot the respondent had already dealt severe blows to Puri with the flat side of his shovel and

had run away taking the shovel with him. The woman had fallen down in a pool of blood and had become unconscious. She was taken to the

police chowki, where she died at about noon.

(3) The respondent admitted the disputes with Puri. He also admitted having called the uncle to the field and that he had prevented his uncle from

fixing the boundary stones but he denied having given any blow to the deceased. His case Was that there was an exchange of abuses between him

and Puri, in the course of which she attempted to snatch the shovel from him, and accidentally received a blow on her head. The learned Additional

Sessions Judge disbelieved the defence and came to the conclusion that the respondent caused the death of the deceased by intentionally delivering

blows to her which were likely to cause death and convicted and sentenced him as above. The respondent did not appeal against these findings nor

against his conviction and sentence.

(4) In this appeal therefore the only question that arises for determination is whether in the above circumstances the respondent is guilty of the

offence of murder or whether he is guilty of the lesser offence of culpable homicide not amounting to murder. It is conceded by the prosecution that

the respondent had no intention to kill the woman. Therefore the respondent can be convicted of murder under Clause 3 of Section 300, Penal

Code, only. The medical evidence shows that the deceased had 7 external injuries of which four were on the head. The first two injuries were

lacerated wounds and were comparatively not very serious. But the third injury was a lacerated wound 2""x"" deep upto bone on the right side of the

head one inch above the right ear extending from front to back and the fourth injury showed that the right temporal bone was fractured into small

pieces. In the opinion of the Doctor these two latter injuries could be caused only by violent blows and each of them was individually sufficient in

the ordinary course of nature to cause death. In addition to these injuries on the head, the deceased had a wound on the outer part of the right

shoulder and a weal on the right arm J"" below it, and a lacerated wound 2 below the right elbow. While conceding that the two injuries on the head

described above were sufficient in the ordinary course of nature to cause death, the learned Judge appears to have taken the view that the

respondent must be taken to have intended to cause injuries likely to cause death but they exceeded in violence which he had in view.

Consequently he held him guilty of culpable homicide not amounting to murder. It is impossible to agree with this conclusion. The respondent

delivered seven blows to the deceased. Pour of them were on the head by means of a heavy instrument, out of which two were individually

sufficient to cause death in the ordinary course of .nature. A person dealing such blows is presumed'' to know that their natural consequences

would be death and he would clearly fall within Clause 3 of Section 300, Penal Code.

The learned Judge appears to have been influenced by a decision of the Bombay High Court in � ''Mana Gendal v. Emperor''.That case merely

decides that where death is caused by injuries on the head and elsewhere and in cases where the offence committed Is culpable homicide not

amounting to murder, it is wrong to take a lenient view of the offence and convict the accused of the lesser offence of grievous hurt. But that case is

no authority for the proposition that where death is caused by Intentionally Inflicting injuries, which are sufficient in the ordinary course of nature to

cause death, the offence would not amount to murder. Such a finding would be plainly against the provisions of the Penal Code.

Another case upon which the learned Judge relied was � ''Sardarkhan Jaridkhan v. Emperor'' AIR 1916 Bom 191 (B). That case is clearly

distinguishable because only one blow was dealt by the accused to the deceased with an iron shod stick and the learned Judges thought that it was

possible to come to the conclusion that the blow which the accused struck, exceeded in violence and injury which he had in view at the moment of

striking it. No such view can be possible in this case. We are satisfied that the respondent caused the death of the deceased Puri by intentionally

causing injuries to her, which were sufficient in the ordinary course of nature to cause death and he is plainly guilty of the offence of murder as

defined by Clause 3 of Section 300, Penal Code.

(5) The learned Advocate - for the respondent next contended that as the respondent was acquitted of the charge of murder, we should not

interfere with the lower Court''s order unless we were satisfied that there were sufficient and compelling reasons justifying interference. In � Rao

Shiv Bahadur Singh and Another Vs. The State of Vindhya Pradesh, , the Supreme Court laid down that In an appeal against an acquittal the

Appellate Court had full powers to review the entire evidence but proper weight and consideration should be given to the following matters, viz:

the view of the trial Court as to the credibility of the witnesses.

the presumption of innocence which is strengthened by the acquittal.

the right of the accused to the benefit of doubt, and

the reluctance of the Appeal Court to disturb a finding arrived at by the trial Judges after seeing the witnesses.

It is therefore clear that the High Court will not readily interfere with findings of fact by the trial court based on the appreciation of evidence except

for substantial and compelling reasons. There is however no dispute about findings of fact in this case but the Additional Sessions Judge applied

wrong law to them and his decision must be corrected. We therefore accept the appeal and set aside the respondent''s conviction u/s 304, Penal

Code, and convict him u/s 302, Penal Code, The respondent is a young man and whatever the merits of his disputes with the deceased, he

appears to have attacked her in the heat of a sudden quarrel. The attack was not a premeditated one. Under the circumstances we think that

sentence of transportation for life would be the proper sentence and we sentence him to transportation for life.

Shah C.J.

(6) I agree.