Judgment

JASWANT SINGH, J.:- This appeal under S. 2 (a) of the SC (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 (Act 28 of 1970) raises a short question as to the nature of the offence made out against the appellant on the basis of the evidence adduced in Sessions Case No. 64 of 1966.

2. The Sessions Judge, Udaipur, who tried the appellant found on a consideration of the evidence led in the case including the direct testimony of Mst. Jelki (P. W. 3) and Mst. Modan (P. W. 8) that the appellant attacked his wife, Ms. Gajri with dagger (Exh. 1) and caused injuries on her person out of which injury No. 2 which had injured the liver and caused the perforation of the large colon was sufficient to cause her death in the ordinary course of nature. Despite this finding, the Sessions Judge convicted the appellant under s. 304 Part II of the Indian Penal Code and acquitted him of the charge under s. 302 of the Penal Code in view of the fact that Dr. Laxmi Narain (P. W. 1) who conducted the post-mortem examination of the body of Mst. Gajri had said in the course of his examination that if immediate expert treatment had been available and emergency operation had been performed, there were chances of here survival. The Sessions Judge agreeing with the contention raised on behalf of the defence also found that according to the case of the prosecution itself, the accused had gone to the village of his in-laws to fetch Mst. Gajri and it was only on her refusal to accompany him that the incident tool place; that he had no intention to kill Mst. Gajri and that at best what could be attributed to the appellant was the knowledge that the injury he was inflicting on the deceased was likely to cause her death.

3. On the matter being taken in appeal by the State, the High Court found that the Sessions Judge was in error in acquitting the appellant of the offence under Sec. 302 of the Indian Penal Code ignoring the evidence to the effect that a penetrating wound 1 1/2" x 1/2" was caused by the appellant with a dagger on the posterior axillary line 10 from the top of the shoulder and 5" from the spine which had caused injury to the liver and perforation of the large colon and was sufficient to cause death in the ordinary course of nature. Accordingly, the High Court altered the conviction of the appellant from the one under S. 304 Part II of the Indian Penal code to that under S. 302 of the Penal Code and sentenced him to imprisonment for life.

4. Mr. K. K. Luthra who was appointed as amicus curiae in the case not having cared to appear despite long and anxious waiting, we have gone through the entire record with the assistance of counsel for the respondent. The grounds of appeal submitted by the appellant which are very inartisticaly drafted can at best be interpreted to urge only one thing viz. that the High Court went wrong in upsetting the judgment and order of the Sessions Judge and convicting the appellant under S. 302 of the Indian Penal Code instead of under Section 304 Part II of the Penal Code as ordered by the Sessions Judge. This contention, in our judgment, is entirely misconceived. It completely overlooks the circumstances attending the commission of the offence viz. that the appellant went armed with a degree and despite the willingness expressed by Mst. Gajri to accompany him next morning, he inflicted without the slightest provocation two injuries on her person (1) which landed on her right palm 3/4" above the second metacarpo phalangeal joint in the process of warding off the blow and (2) a pentrating wound, as stated above. The whole affair appears to be pre-planned and pre-meditated and as such the case squarely falls within the purview of clause thirdly of Section 300 of the Indian Penal Code. We are fortified in this view by two decisions of this Court viz. Virsa Singh v. State of Punjab, 1958 SCR 1495 and State of Andhra Pradesh v. Rayavaraup Punnayya, (1977) 1 SCR 601 . In Virsa Singh v. State of Punjab (supra) where t