IMPORTANT POINT
Where accused assaulted deceased by an axe but no injury was inflicted on any vital part of body & none of the injuries undividnally was sufficient to cause death, offence would fall u/s 304 part II IPC & not u/s 302 IPC.

ORDER

The appellant was charged for an offence under section 302 IPC by the 1st additional sessions judge, for committing the murder of one Kivuda Madaiah on 16th August, 1993 in the village of Bilugadi by assaulting the victim with an axe. Learned sessions judge found him guilty of the said offence punishable under section 302 and sentenced him to undergo imprisonment for life. The said conviction was affirmed by the High Court in its judgment dated 13th July, 2000. The appellant herein has assailed the said conviction and sentence in the abovesaid appeal. When the amtter came up for preliminary hearing, this Court confined the notice only to the nature of offence for which appellant could be punished based on the injuries suffered by the deceased.

2. As per the prosecution case the appellant suffered eight injuries which are as follows:-

(1) A contusion red in colour 1.5 cm X 4 cm present on the middle of left clavicle.

(2) An incised injury measuring 5 cm X 1 cm X 2 cm present on the medial aspect 4 cm above the left knee joint with clotted blood sticking around the wound. On dis-section of the wound a transverse fracture of the laower end of left femur present with collection of blood all around the lower and fractured femur.

(3) An incised injury measuring 1 cm X 4 cm X 4 cm present on the medial aspect of left leg.

(5) An incised injury 2 cm X 24 cm X 1 cm present on the medial aspect 4 cm above the medical malleolus of right leg.

A transverse fracture of lawer end of right tibia present.

(6) An incised injury 3 cm X 1 cm present on the lateral aspect of right knee joint.

(7) An incised injury 5 cm X 3 cm X 3 cm depth present on the posterior aspect of lower end of upper arm with transverse fracture of lower end of right humeroud exposing the muscles and blood vessels.

(8) Fracture of the lower end of left ulna present.

3. It is the case of the prosecution that the appellant attacked the deceased in his village which was witnessed by PW 1, his daughter-in-law. Taking into consideration the case of the prosecution, it is evident that if the appellant had intended to cause the death of the deceased then he should have attacked the victim at the vital part of his body. On perusing the injuries which are only on the hands and legs of the deceased and there being no injuries on the vital part of the body and the evidence of the doctor who conducted the post-mortem, who has stated that none of the injuries individually was sufficient to cause the death, we are of the opinion that the appellant did not intend to cause the death of the deceased.

4. In the said circumstances having considered the material on record and having heard the parties, we are of the opinion that the conviction of the appellant under section 302 is not sustainable and the same should be one under section 304 part II of the IPC. Accordingly, we partly allow the appeal and convert the sentence to ten years rigorous imprisonment under section 304 part II of IPC. If the appellant has served the said sentence he shall be released forthwith. While deciding the period of sentence the authorities will take into consideration the remission of sentence which the appeallant is entitled to in law.

The appeal is partly allowed.

Appeal allowed partly.

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