IMPORTANT POINTS
1. It is the degree of probability of death resulting from the intended bodily injury whether a culpable homicide is of the gravest, medium or the lowest degree.
2. The Explanation to Section 299 IPC clearly contemplates that where the death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skillful treatment, the death might have been prevented.

Headnote:Indian Penal Code, 1860—Sectoins 299, 300 and 304-II—‘Culpable homicide’ and ‘Murder’—Distinction—Death caused by bodily injury after about six days of the incident—Plea regarding absence of proper medical treatment—Maintainability—Eye witnesses stating that appellant beat the deceased with a stick on his head twice and his son threw the aruval at the deceased and the deceased side stepped—Evidence of witnesses that on account of deceased marrying PW4 who was the daughter of appellant, as second wife, father and brother of PW4 were not happy with the deceased—On the date of incident when deceased was on his way to engage agricultural labourers, appellant with a stick appeared before the deceased and assaulted him—On account of injuries inflicted by appellant, deceased fell down and later on he was removed to the hospital and treated by various doctors but ultimately died—High Court convicted appellant for offence u/s 302 IPC—Whether plea of accused regarding absence of proper medical treatment is sustainable in view of Explanation to Section 299 IPC—(No)—Which was the appropriate provision to be applied—Held, Section 304 Part II IPC would be applicable and not Section 302 IPC—Conviction accordingly altered.
       Held : Coming to the plea regarding absence of proper medical treatment the argument is clearly unsustainable in view of the Explanation to Section 299 IPC. The explanation clearly contemplates that where the death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented. (Para 23)
       Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.(Para 34)
       The above are only broad guidelines and not cast iron imperatives. In most cases, their observance will facilitate the task of the Court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other that it may not be convenient to give a separate treatment to the matters involved in the second and third stages.(Para 35)
       When the factual scenario in the case is set aside on the touchstone of principles set out above, it becomes clear that the appellant is responsible for causing the death of the deceased. However, the application of Section 304 Part II IPC would be applicable and not Section 302 IPC. The conviction is accordingly altered. Ten years custodial sentence would meet the ends of justice. (Para 37)

JUDGMENT

Dr. Arijit Pasayat, J.—Leave granted.

2. Appellant calls in question legality of the judgment rendered by a Division Bench of the Madras High Court confirming the conviction of the appellant for commission of offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the ‘IPC’) and affirming the sentence of imprisonment of life as imposed. It is to be noted that the appellant was tried with one another whose conviction and the sentence imposed by the trial Court for offence punishable under Section 324 read with Section 511 IPC was set aside. Similar was the case for the appellant.

3. Background facts as projected by the prosecution in a nutshell are as follows:

Rathinavelu (PW-1) is the son, Saradha (PW-2) is the wife, Kanakraj (PW-3) is the younger brother and Selvi (PW-4) is the second wife of Periasamy (hereinafter referred to as the ‘deceased’). Appellant-Sellappan is the father and acquitted accused Selvaraj is the brother of Selvi (PW-4). All of them were residing at Nallarayanapatti.

4. The deceased without the knowledge of the appellant and Selvaraj married PW-4 on account of which, they were angry towards the deceased.

5. About 1½ years prior to the incident, appellant abused the grandmother of PW-1 and he was questioned by the grandfather of PW-1. Appellant beat the grandmother of PW-1 and the deceased went to the police station and gave a complaint against him. A panchayat was convened, where the appellant was advised that he should not abuse the family members of the deceased.

6. About a year prior to the date of incident, the appellant went to the house of the deceased and wanted his daughter PW-4 to return the jewels which was given to her. She refused to part with the jewels on account of which also the appellant was nurturing a grievance against the deceased.

7. At about 5.45 p.m. on 3.4.1994, Saradha (PW-2), the mother of Rathinavelu (PW-1), who is the wife of the deceased Periasamy, was collecting leaves for silk worms for the purpose of feeding them. Kanakaraj (PW-3) was inside the house. The deceased left the house to bring agricultural labourers and, while he was on his way, the appellant armed with a stick, Selvaraj armed with an aruval, appeared before him. On seeing them the deceased became panicky and shouted saying that they are about to beat him. Selvaraj threw the aruval, which he had in his hand at the deceased and the deceased side stepped. At that time, the appellant with the stick, which he had in his hand, beat the deceased on the head twice. The deceased fell down. The appellant leaving the stick, ran away from the place followed by Selvaraj, who took away the aruval with him. The occurrence was witnessed by PWs. 1 to 3.

8. Kanakaraj (PW-3) went and brought a taxi at about 7.45 p.m. The injured Periasamy was placed in the vehicle and taken to the Government Mohan Kumaramangalam Hospital, where he was produced before Dr. Chellammalpuri (PW-9), the Casualty Medical Officer at 9.00 p.m. PW-9 on examination of the injured Periasamy found the following injuries.

“1.A contusion about 4” in diameter at the occipital region.

2.A contusion about 1" diameter at the back of right scapular”.

9. PW-9 issued Ex.P5, a copy of the accident register and Ex.P6, the wound certificate. PW-9 also sent Ex.P4 intimation to the Outpost Police Station, which was received by Head Constable (PW-11) attached to the Outpost Police Station, Dr. Singaram (PW-10) treated the deceased and issued Ex.P7 wound certificate.

10. On receipt of Ex.P4 sent by PW-9, Head Constable (PW-11) attached to the Outpost Police Station went to the ward, where the injured was admitted and finding him unconscious, questioned PW-1, who gave a statement. The said statement was reduced into writing and the same stands marked as Ex.P1. PW-11 then returned to the Outpost Police Station and by wireless informed Attayampati Police Station, within whose jurisdiction the occurrence took place.

11. The Head Constable (PW-

Click Here to Read the rest of this document

2007 Supreme(SC) 102

Cases Referred (6)