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KARNATAKA HIGH COURT
R.G. Desai and K.B. Navadgi. JJ.
State of Karnataka - Petitioner
versus
Jameer Pasha - Respondent
Cr. Appeal No. 291-1984
Decided on 1-3-1988
Counsels for the parties:
K H.N. Kuranga, State P.P.-For the Appellant.
N.S. Sampangiramaiah, Advocate-For the Respondent.
IMPORTANT POINT
Where multiple injuries were caused on vital parts of a pregnant woman with a fatal weapon, which were found sufficient in the ordinary course of nature to cause death of the deceased, the offence committed would be u/s. 302 and not u/s. 304 IPC.
Headnote:(i) Indian Penal Code. 1860-Sections 302 and 304-Respondent convicted for causing death of his wife u/s. 304 Part II-Appeal against by State-Nine serious injuries caused by crow bar on vital parts of, deceased who was pregnant-Whether the offence committed by accused is murder punishable u/s. 302 or culpable homicide not amounting to murder punish able u/s. 304, part II? (The former).
Held, regard being had to the nature and number of the injuries, the vital parts chosen, and the nature of the weapon used, the intention of the accused must have been to cause the death of the deceased and the offence committed by him would be one under Section 302 I.P.C. (Para 11)
Held also in the result, the appeal is allowed and the conviction of the respondent accused under Section 304 Part-II I.P.C. and the sentence imposed by the trial Court are set aside and the respondent-accused is convicted under Section 302 I.P.C. and he is sentenced to undergo imprisonment for life. The trial Judge is directed to issue warrant for the arrest of the accused and to commit him to custody to serve out the rcmaining 'portion of the sentence. (Para 12)
JUDGMENT
Desai, J. -The respondent was the accused in Sessions Case No. 7/82 on the file of the additional Sessions Judge, Mysore. He was tried for the offence punishable under Section
301, I.P.C. on the allegation that on 4-11-1981 at about 9 A.M in his house in Gousia Nagar, he committed the murder of his wife Asraf Unnisa by assaulting her with the crow-bar (M.O. 1).
2. As the accused denied the commission of the offence. P. Ws-1 to 11 were examined and Exhibits p-1 to 12 and M. Os- 1 to 17 were produced on behalf of the prosecution. Exhibits. P-1 to P-3 were got marked during the cross-examination of the prosecution witnesses.
3. Accepting the prosecution evidence, the learned trial Judge convicted the accused under Section 304 Part-II I.P.C. and sentenced him to undergo. R. 1 for five years. Hence, this appeal by the State against the acquittal of the accused for an offence punishable under Sec, 302 I.P.C. by obtaining leave.
4. The accused has not preferred any appeal against his conviction under Section 304 Part II I.P.C. as stated by the Office and the learned State P.P. Hence, the conviction of the accused under Section 304 Part-II IPC has become final. Therefore, it follows that the finding of the learned trial Judge that it is the accused who caused the death of his wife Asraf Unnisa has become final and, in this appeal, the accused cannot dispute the said fact in view of the decisions in The State of Andhra Pradesh v. Thadi Narayana1 and State of Mysore v. Hanamant Nagappa Gavada of Hattarwad2.
5. So, the only point that arises for determination in this appeal is whether the offence committed by the accused in causing the death of his wife would be one punishable under Section 302 I.P.C. or Section 304 Part-II I.P.C. as held by the trial Judge.
6. In deciding this question, it would be useful to bear in mind the nature of the injuries caused to the deceased. Dr. Panduranga Shenoy (P.W. 1) who conducted the Post Mortem examination over the dead body of deceased Asraf Unnisa, has stated that he noticed the following external injuries on her dead body:
(1) Right side of the head and face was flattened.
(2) Right ear lobe was lacerated and hanging loose.
(3) Split lacerated wound 3 cm x 1 cm X bone deep in size on the right side of head, 4 cm above right ear.
(4) Multiple lacerated wounds due to splitting of skin, on the right side of the face. All were bone deep.
(5) Lacerated wound 4 x 1 cm x 0.5 cm in size, on the right side of upper lip.
(6) Right angle of the mouth was torn and right side of lower lip was contused.
(7) Contused lacerated wound 4 cm x 2 cm X bone deep on the fight side of lower jaw.
(8) The area around right ear was contused diffusely.
(9) Diffused irregular contusions over the entire front of chest and breast.
(10) Abrasion 6 X 4 cms. on the back of right fore-arm, 4 cm above the wrist.
(11) Abrasion 2 X 1 cms. on the back of right shoulder joint.
(12) Linear abrasion 10 X 4 cms. on the back of the chest across the right shoulder blade.
On dissection, be noticed the following internal injuries:
(1) Scalp layers were contused all over, more on the left side.
(2) A depressed comminuted fracture of the right parietal bone with radiating fissured fractures extending towards all directions.
(3) The fracture bas extended to the base of the skull separating it at mideranial fossa.
(4) Membranes torn on right side.
(5) Brain was lacerated at the right hemisphere. It was pale, intracerebral bleeding on right side present.
(6) 2nd to 4th ribs on right side were fractured at mid armpit level.
(7) Pleura on right side contused.
(8) Right lung on the back aspect was contused.
(9) The abdominal cavity contained 100 cc of blood.
(10) The area adjoining the transverse colon, mesentry and Para vertebral muscles were deeply contused.
(11) Area around the right kidney contused.
(12) Uterus was enlarged to 16 to 20 weeks size and it contained a dead male foetus of the size of 16 to 20 weeks. Well d
