Sukku Alias Sukhrat vs State of M.P.

R.C. Mishra, J.—This appeal has been preferred against the judgment-dated 28/6/96 passed by Sessions Judge, Tikamgarh in S.T. No. 19/ 95, whereby the appellant was convicted u/s 304 Part II of the IPC and sentenced to undergo R.I. for 5 years and to pay a fine of Rs. 500/-and in default, to suffer R.I. for 6 months. At the relevant point of time, Dhanka (since deceased) was a resident of Village Laxmanpura. He used to have recurrent attacks of headache. The appellant, a resident of Durhatora and a tattooist by profession, undertook to cure Dhanka by making tattoos on his temples and occiput. In the process, Dhanka sustained internal injuries and was rendered unconscious. His son Jagdish (PW3) took him to Civil Hospital at Tikamgarh. Declaring him as brought dead, Dr. A.K. Jain, by way of memo (Ex. P/6), informed the Police accordingly. After due investigation, the appellant was charge-sheeted for the offence u/s 304 of the IPC.

The appellant pleaded false implication due to animosity. In the cross-examination of Jagdish (PW3), it was also suggested that Dhanka had died of food poisoning after eating a rotten fish.

Jagdish (PW3) testified that his father Dhanka used to have frequent attacks of headache. According to him, it was in his absence that the appellant, despite being forbidden by him to do so, inscribed tattoos on occipital and temporal regions of his father''s skull by means of a machine. He further deposed that on his return home, he found his father lying unconscious and the appellant explained that the tattoo marks were created at the insistence of Dhanka. Nothing could be elicited in his cross-examination so as to suggest that he was, in any way, interested in securing conviction of the appellant on absolutely false grounds. His evidence drew support from the medical evidence. Dr. B. Kathel (PW4) proved existence of the following injuries on Dhanka''s body -

(i) Two black linear abrasions of 4 cm length (gap of 1 cm in between) on left side of forehead, 1.5 inches above & 2 inches lateral to outer border of left eyebrow.

(ii) Two black linear abrasions of 6 cm length (gap of 1.5 cm) on occipital region, 1 inch below occipital tuberosity.

According to him, mode of the death was syncope but it was not possible to give any definite opinion as to its cause.

Co-villagers Nathua (PW1) and Kishori (PW2), though declared hostile by the prosecution, clearly stated that the appellant is a professional tattoist.

In the light of the overwhelming evidence on record, learned trial Judge did not commit any illegality in holding that aforesaid injuries were authored by the appellant only.

This brings me to the question as to what was the offence committed by the appellant ?

Learned trial Judge was of the view that the act committed by the appellant attracted Exception 5 to Section 300 of the IPC that reads as under-

Exception 5.- Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.

Obviously, the exception refers to cases where a man consents to submit to the doing of a particular act either knowing that it will certainly cause death or that death will be the likely result. Yet, tattooing is not such an act. As further explained by Pigot, J. in Nayamuddin''s case (1891) 18 Cal 484 (FB) -

the person killed with a full knowledge of the facts, determined to suffer death, or take the risk of death, and that this determination continued upto and existed at the moment of his death.

The view taken by learned trial Judge, therefore, cannot be sustained. But, even though, the appellant had no intention to cause Dhanka''s death or knowledge that the injuries caused by him would be sufficient in the ordinary course of nature to cause his death, tattooing on the vital parts viz. temples as well as occiput gave a proximate cause of the death. Accordingly, he ought to have been held guilty of causing Dhanka''s death by professional negligence, punishable u/s 304A of the IPC.

Coming to the question of sentence, it may be observed that a considerable period of more than 16 years has already elapsed after the incident in question. Meanwhile, the appellant has already suffered imprisonment for 1 year and 11 months whereas maximum sentence prescribed for the offence u/s 304A of the IPC is imprisonment for a term of 2 years, or with fine, or with both. In these circumstances, interests of justice would be met if the term of sentence of imprisonment is reduced to the period already undergone by the appellant.

In the result, the appeal is allowed in part. The conviction u/s 304 Part II is altered to one u/s 304A of the IPC and the term of custodial sentence is reduced from 5 years to the period already undergone by the appellant. However, the sentence of fine is maintained. The appellant is directed to appear before the trial Court on or before 30.11.2011 for depositing the fine amount or for being committed to custody to suffer the default sentence.