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Dhupa Chamar-appellant 1 and Tokha Chamar-appellant 2 were convicted by the trial court under Section 302 of the Penal Code and sentenced to undergo imprisonment for life.
Prosecution case, in short, is that on 13th June, 1983 at 8.00 p.m., there was an incident of assault by fists and slaps. On 14th June, 1983 at 8.00 a.m., appellants armed with bhalas came near the house of Ramu Chamar and started abusing his family members. Ram Patia Devi made a protest whereupon appellant Dhupa Chamar gave a bhala blow on the left side of her neck and the same was pulled out forcibly from the neck as a result of which she fell down and died instantaneously. Appellant Tokha Chamar assaulted Dharam Chamar in the abdomen with bhala. Thereupon injured Dharam Chamar and Sharda Devi were taken to the hospital where Dharam Chamar was declared as brought dead.
Upon conclusion of trial, the Sessions Judge, while acquitting three accused persons of the charge under Section 302/149, convicted the appellants as stated above.
A question arises as to when death is caused by a single blow, whether clause Thirdly of Section 300 is attracted. The ingredient 'intention' in that clause is very important and that gives a clue in a given case whether offence involved is murder or not.
Intention is different from motive. It is the intention with which the act is done that makes difference, in arriving at a conclusion whether the offence is culpable homicide or murder. Therefore, it is necessary to know the meaning of expression 'intention' as used in these provisions.
In this connection, we may usefully refer to the high authority of Vivian Bose, J in the case of Virsa Singh v. State of Punjab [1958 SC]. In that case, appellant Virsa Singh was convicted under Section 302 of the Penal Code which was upheld by this Court although there was only one injury which was attributed to him which was caused as a result of spear thrust. It was contended in that case that as it was a case of solitary injury, it could not be inferred that there was intention to inflict a bodily injury that was sufficient to cause death in the ordinary course of nature as such act of the offender did not amount to murder.
A Bench of this Court in the case of Jagrup Singh v. State of Haryana [1981 SC] observed thus:-
"These observations of Vivian Bose, J. have become locus classicus. The test laid down in Virsa Singh's case for the applicability of Clause Thirdly is now ingrained in our legal system and has become part of the rule of law. The decision in Virsa Singh 's case has throughout been followed as laying down the guiding principles."
Keeping in mind the aforesaid principles, if we examine facts of the present case, Clause Thirdly of Section 300 is fully attracted. It appears that the accused persons came armed with deadly weapons and there was an altercation and exchange of hot words whereafter appellant No. 1 assaulted victim Ram Patia Devi with a bhala causing injury on the chest rupturing important blood vessels and cutting of aorta and other artery resulting in her instantaneous death.
In view of the nature of injury whereby important blood vessels were ruptured inasmuch aorta and artery were cut and when the doctor opined that death was caused as a result of severe haemorrhage and shock due to the rupture of great veins, undoubtedly, it can be reasonably inferred therefrom that such a solitary injury inflicted upon the deceased was sufficient to cause death in the ordinary course of nature.
The above circumstance would show that accused intentionally inflicted the injury and the same would indicate such a state of mind of the appellant Dhupa Chamar that he aimed and inflicted the injury with deadly weapon. In the absence of evidence or reasonable explanation to show that this appellant did not intend to inflict injury by bhala in the chest with that degree of force sufficient to rupture important blood vessel and cutting of aorta and other artery, it would be perverse to conclude that he did not intend to inflict that injury that he did. When once the ingredient 'intention' is established then the offence would be murder as the intended injury was sufficient in the ordinary course of nature to cause death. Therefore, inevitable conclusion would be that appellant Dhupa Chamar has committed the offence of murder and not culpable homicide not amounting to murder.
In view of the fact that three accused persons were acquitted by the trial court itself of the charge under Section 302/149 out of the seven accused persons and no other person is said to have participated in the occurrence as mentioned in the prosecution case and evidence, and as the number of accused persons becomes less than five, there cannot be said to be any unlawful assembly, as such conviction of appellant Nos. 2 to 4 under Section 302/149 becomes unwarranted.
In the result, appeal of appellant Dhupa Chamar fails and the same is accordingly dismissed. Appeal of appellant Tokha Chamar, Doma Chamar and Adalat Chamar is allowed in part, their conviction and sentence under Section 302/149 of the Penal Code are set aside and they are acquitted of this charge. Their convictions and sentences under other sections are confirmed.
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