IMPORTANT POINT
Where accused inflicted knife blow on left side of chest of deceased which penetrated lung but evidence showed that injury inflicted was not with intention to cause death and doctor did not opine that injury was sufficient in ordinary course of nature to cause death, offence would fall u/s 304 Part II IPC.

Headnote:Indian Penal Code, 1860 — Sections 302 and 302/149 — Deceased was assaulted by A1 with knife and blow was given on left side of chest — Accused 10 in number armed with weapons revolver and lathis had surrounded PW5 and his son on the way and deceased son of PW5 reached the spot — Conviction of A1 u/s 302 IPC and rest of accused u/s 302/149 IPC — Appeal — Contention that offence of appellant A1 was culpable homicide not amounting to murder — Injury inflicted on left side of chest of deceased was single one extending 1" x 1/2" penetrating wound and left lung was found penetrated — Doctor had not opined that injury was sufficient in ordinary course of nature to cause death — No attempt was made by A1 to cause serious injury on any vital part of body and there was no intention to cause death of deceased — Clause (iii) of Section 300 IPC did not cover the case and it stood covered by third part of section 299 IPC — Appellant A1 was liable to be convicted u/s 304 part II IPC and in facts and circumstances sentence of 5 years imprisonment and fine awarded — None of other accused had given any blow to deceased — No witness proved that accused had come with intention to commit murder of deceased — Conviction of rest of accused was liable to be set aside.
       Held : It is not in dispute that the injury inflicted on the left side of the chest of the deceased is single one. On examination, Dr. Vijay Kumar found the injury situated above nipple on the left side of the chest extending 1" x ½ " penetrating wound. On dissection, left lung was found penetrated. Dr. Vijay Kumar has not opined that the injury was sufficient in the ordinary course of nature to cause death. That was not even stated to be likely to cause death. No attempt was made by Bunnilal Chaudhary to cause serious injury on any vital part of the body of the deceased. There was no motive or intention of Bunnilal Chaudhary to have murdered Shambhu Raut. Therefore, the question is whether the offence can be said to be covered by Clause (iii) of Section 300 of the IPC.(Para 10)
       That Section requires that the bodily injury must be intended and the bodily injury intended to be caused must be sufficient in the ordinary course of nature to cause death. This clause is in two parts:- the first part is a subjective one which indicates that the injury must be an intentional one and not an accidental one; the second part is objective in that looking at the injury intended to be caused, the court must be satisfied that it was sufficient in the ordinary course of nature to cause death. We think that the first part is complied with, because the injury which was intended to be caused was the one which was found on the person of Shambhu Raut. But the second part, in our opinion, is not fulfilled because but for the fact that the injury caused had penetrated the lung, death might not have ensued. In other words, looking at the matter objectively, the injury, which Bunnilal Chaudhary intended to cause, did not include specifically the cutting of the left lungs but to wound Shambhu Raut in the neighbourhood of the nipple on left side of chest. Therefore, we are of the opinion that Clause (iii) of Section 300 does not cover the case. Inasmuch as death has been caused, the matter must still come within at least culpable homicide not amounting to murder. There again, Section 299 is in three parts. The first part takes in the doing of an act with the intention of causing death. As we have shown above, Bunnilal Chaudhary did not intend causing death and the first part of Section 299 does not apply. The second part deals with the intention of causing such bodily injury as is likely to cause death. Here again, the intention must be to cause the precise injury likely to cause death and that also, as we have shown above, was not the intention of Bunnilal Chaudhary. The matter, therefore, comes within the third part. The Act which was done was done with the knowledge that Bunnilal Chaudhary was likely by such act to cause the death of Shambhu Raut. The case falls within the third part of Section 299 and will be punishable under the second part of Section 304 IPC as culpable homicide not amounting to murder. (Para 11)
       We, accordingly, alter the conviction of Bunnilal Chaudhary from Section 302 to Section 304 Part-II, IPC and in lieu of the sentence of imprisonment for life imposed on him, we impose a sentence of rigorous imprisonment for five years and to pay a fine of Rs. 1,000/- with default stipulation of two months simple imprisonment.(Para 12)

JUDGMENT

Lokeshwar Singh Panta, J. — These two appeals arise out of common judgment and order dated 5th November, 2003 passed by the High Court of Judicature at Patna in Criminal Appeal No. 465/1999 by which the learned Judges have altered the conviction of Bunnilal Chaudhary (A-1) from Section 302/149 of the Indian Penal Code (for short `I.P.C.) to one under Section 302, I.P.C., whereas the conviction and sentence imposed upon Birendra Chaudhary (A-2), Maniraj Chaudhary (A-3), Dashrath Chaudhary (A-4), Magister Chaudhary (A-5), Amarjit Chaudhary (A-8), Naresh Chaudhary (A-9) and Rajdhari Chaudhary (A-10) by the trial court under Section 302/149, I.P.C., is affirmed. By the impugned judgment, Bali Chaudhary (A-6) and Jagdish Chaudhary (A-7) have been acquitted of the charges. All the accused persons were sentenced to imprisonment for life. Both these appeals are taken up and heard together and shall stand disposed of by this common judgment.

2. Briefly stated the facts of this case are that on 13.12.94 P.W.-10, Yogendra Raut, at about 9.45 p.m. lodged Fardbeyan (Ex. P-5) in Police Station Sidhwalia stating therein that about 17 days from the said date his relative of Paithanpatti, P.S. Majha, had purchased a she-buffalo from one Sattan Choudhary, belonging to his village, for a sum of Rs.6,800/-. His relative had a sum of Rs.700/- short of the full payment of the price of the she-buffalo, but on his request, the balance amount was to be paid later on. His younger brother brought a sum of Rs.400/- from his relative. On the day of occurrence, i.e. 13.12.94, at about 7.45 p.m. Maniraj Choudhary (A-3), son of Sattan Choudhary, called Yogendra Raut at his house when he gave a sum of Rs. 400/- to Sattan Choudhary and promised to pay the balance amount of Rs. 300/- on the following day. Maniraj Choudhary (A-3) took out a country-made pistol and pointed towards him. He shouted for help, which attracted his family members at the house of Sattan Choudhary. He came to his house along with his family members and later on took their dinner. His father, Brahmdeo Raut (PW-5), and his brother came out of their house and started going to Bathan. As soon as they reached mid-way from Bathan suddenly Bunnilal Chaudhary (A-1), Birendra Chaudhary (A-2), Maniraj Chaudhary (A-3), Dashrath Chaudhary (A-4), Magister Chaudhary (A-5), Bali Choudhary (A-6), Jagdish Chaudhary (A-7), Amarjit Chaudhary (A-8), Naresh Choudhary (A-9) and Rajdhari Chaudhary (A-10) holding a revolver and lathis in their hands came at the scene of occurrence and surrounded them. His younger brother, Shambhu Raut, reached there and all the accused persons chased him upto some distance when Bunnilal Choudhary (A-1) attacked Shambhu Raut with knife at the door of Ambika Ram. The blow was given on the left side of the chest. On seeing the incident, his father, Brahmdeo Raut (P.W.-5), came running to the house of Ambika Ram. His father was given knife blow on his head by Magister Chaudhary (A-5). On hearing their noise, many village people gathered at the scene of occurrence and on seeing them, all the accused persons fled away. His brother, Shambhu Raut, being seriously injured fell down at the door of Ambika Ram and blood was oozing out of the injury sustained by him. Shambhu Raut who was injured was put on a cot and taken to Sidhwalia Hospital for medical treatment where the Doctor had declared him dead. He took the dead-body of Shambhu Raut to the Police Station. On these premises, the Police recorded his statement (Ex. P-5).

3. On the basis of fardbeyan (Ex. P-5) P.S. Case No. 302/94 (Ex. P-4) came to be registered against all the ten accused persons under Sections 147, 148, 149, 324, 307 and 302 of the IPC. On completion of the investigation, charge-sheet against all the accused persons for the said offences was laid before the learned Chief Judicial Magistrate, Gopalganj, who committed the trial of the case to the Court of Sessions. The Sessions Judge transferred

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