Judgment:
K.T. Thomas, J.
1. A cute little girl by name Sinimol (aged 4) became the unfortunate victim of the blood thirsty knife of a man who would have over enjoyed his Christmas frisking in merriments. Thenceforward Christmas day for PW. 2, Annamma, became death anniversary of her daughter Sinimol, while for others it is the birth anniversary of Jesus Christ. Sessions Judge convicted the appellant of Sections 302 and 324 of the I.P.C. On the first count, besides awarding sentence of imprisonment for life, learned Sessions Judge imposed a fine of Rs. 15,000/-, and directed that out of the fine amount, if realised, a sum of Rs. 10,000/- will be paid to P.W. 2. On the second count, Sessions Judge sentenced appellant to undergo rigorous imprisonment for one year, while the appeal was pending, a suo motu criminal revision case was registered at the instance of the learned Judge of this High Court who was in charge of the District concerned as he wanted a decision on the legality and propriety in imposing separate sentence of fine on an accused who is sentenced to imprisonment for life.
2. Facts are not much in dispute. A Christmas carol party was moving from house to house on the night of 25-12-1987. At about 7-30 p.m., appellant who was in a tipsy mood picked up an altercation with one of the chorus singers (P.W. 3). The choir members sensed that appellant was in a bellicose stance and when he drew out a knife P.W. 3 along with one of his companions scampered away and snugged in the house of one Mary (P.W. 4). Appellant chased P.W. 3 for some distance, but failed to intercept them. On the way, appellant came across Annamma (P.W. 2), and her child and he brandished his knife at them which resulted in causing serious injuries to the mother and child. The injury which Sinimol sustained was so serious that she succumbed to it. The injury sustained by the mother was not so serious.
3. The injury sustained by Sinimol has been described in the post mortem certificate as an incised penetrating wound (4 cm long) on the back of chest cutting three ribs, transfixed the upper and middle lobes of right lung and terminated just above the right collar bone in the subcutaneous place, which was directed upwards and forwards and to the left for a total minimum depth of 6 cms. P.W. 2 had a muscle deep stab injury on her chest and a penetrating stab injury on her abdomen. P.W. 2 spoke in clear terms that it was the appellant who inflicted those injuries. We have absolutely no reason to doubt the truth and reliability of her testimony in that regard. The finding made by the Sessions Judge that it was the appellant who inflicted the injuries on P.W. 2 and the deceased cannot be interfered with.
4. The main argument raised is that since appellant never intended to cause any injury to the deceased or to her mother, the offence would never go beyond Section 304, IPC (culpable homicide not amounting to murder). In support thereof learned counsel invited our attention to a series of decisions rendered by the Supreme Court, particularly the decision in Tholan v. State of Tamil Nadu AIR 1984 SC 759 : (1984 Cri LJ 478).
5. Before we discuss the scope of application of those decisions to the facts of this case, we want to inform ourselves of the legal position as could be understood directly with reference to the provision concerned in the IPC. Section 300 says that culpable homicide is murder (except in cases excepted thereunder) if the act done attracts any of the four clauses enumerated in the Section. The first and second clauses are not applicable since appellant had no intention to murder the child. Public Prosecutor contended that the relevant clause is the one termed as 'thirdly' in the Section. It reads thus :
If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.
6. The said clause has been subject of one of the finest legal discussions in the decision in Virsa Sihgh v. State of Punjab AIR 1958 SC 465 : (1958 Cri LJ 818) (A bench of three Judges, Jafer Imam, P. B. Gajendragadkar, and Vivian Bose, JJ). A. P. Sen, J. has remarked in a later decision that the observations of Vivian Bose, J. in Virsa Singh's case have become 'locus classicus and the test laid down... is ingrained in our legal system and has become part of the rule of law'. (See Jagrupsingh v. State of Haryana, AIR 1981 SC 1552 : (1981 Cri LJ 1138). However, learned counsel persuaded us to make a more liberal approach to the clause with the help of a catena of other decisions rendered by D. A. Desai, J. In those decisions, the assailants concerned have inflicted fatal injuries on vital parts of the victims, but still the 'thirdly' clause in Section 300 was (not) made was applicable. Those are the decisions reported in Randhri Singh v. State of Punjab, AIR 1982 SC 55 : (1982 Cri LJ 195); Kulwant Rai v. State of Punjab AIR 1982 SC 126; Jawahar Lal v. State of Punjab AIR 1983 SC 284 : (1983 Cri LJ 429); Jagtar Singh v. State of Punjab AIR 1983 SC 463 : (1983 Cri LJ 852) and Tholan v. State of Tamil Nadu AIR 1984 SC 759 : (1984 Cri LJ 478). We have noticed that in none of those decisions, the rule laid down in Virsa Singh's case AIR 1958 SC 465 : (1958 Cri LJ 818) has been referred to. We must point out that the decision in Virsa Singh's case was rendered by a bench of three judges. Its force and binding nature remains unerroded by the series of decisions (cited supra) rendered by bench of two judges. This court also had number of occasions to deal with this aspect (vide Thankappan v. State, 1988 (1) KLT 682; Thomas v. State of Kerala 1989 (1) KLT SN page 39 and Mathew v. State of Kerala 1990 (2) KLT 564. We feel that the legal position dealt with in Virsa Singh's case needs extraction here. Four postulates required for establishment of the 'thirdly' clause have been adumbrated by Vivian Bose, J. thus:
First, it must establish, quite objectively, that a bodily injury is present;
Secondly, the nature of the injury must be proved; These are purely objective investigations.
Thirdly, it must be proved that there was an intention' to inflict that particular bodily injury, that it to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and,
Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.
Learned Judge then observed as follows :
Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are hot guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or Otherwise unintentional.
Learned Judge has cited that if it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury. The difference is not one of law but one of fact; and whether the conclusion should be one way or the other is a matter of proof, where necessary by calling in aid all reasonable inferences of fact in the absence of direct testimony.
7. In Harijinder Singh v. Delhi Administration AIR 1968 SC 867 : (1968 Cri LJ 1023) Supreme Court did not apply the 'thirdly' clause when the facts were thus : In a sudden commotion, accused took out a knife and stabbed one who intervened in the fight. The injured was in a crouching position in his attempt to separate the fighting man. It could not hence be said that accused aimed a blow at that particular part of the body which would cut the femural artery. Again, in another case, Lakshman Kalu v. State of Maharashtra AIR 1968 SC 1390 : (1968 Cri LJ 1647) where there was a sudden fight and the accused who lost his temper dealt a blow with his knife which cut the auxiliary artery in the chest, Supreme Court held that accused would not have intended that injury and hence Supreme Court did not apply 'thirdly' clause. The above two decisions were cited by A. P. Sen, J. in Jagrup Singh' case (cited supra) to drive the legal position home.
8. Applying the legal position as reflected in the above decisions, we find it difficult to hold, on the fact of this case, that the appellant intended this injury to be inflicted, though the injury inflicted was sufficient in the ordinary course of nature to cause death. Appellant had no intention to cause any injury at all, much less an injury which was sufficient in the ordinary course of nature to cause death. What he did was only brandishing his blood thirsty knife since he had no motive against the little child or her mother. Nonetheless, he must be credited with the knowledge that he was likely, by such act, to cause death of the person who might sustain the injury with such a lethal weapon.
9. We, therefore, bring down the offence from Section 302 to Section 304 of the IPC. At the same time we maintain the conviction and sentence for the offence under Section 324, IPC.
10. Before dealing with the sentence aspect, we have to dispose of the criminal revision case in which legality and propriety in awarding a sentence of fine, in addition to the sentence of imprisonment for life are involved.
11. If the conviction is under Section 302 or under the first Part of Section 304 of the IPC, the convicted person 'shall also be liable to fine'. If the conviction is under the second part of Section 304, the sentence can be 'imprisonment of either description which may extend to ten years or with fine or with both....' The words 'shall also be liable to fine' in the former provisions are not to be understood as a legislative mandate that the court shall without exception award fine also. In this context, it is apposite to note that those words are invariably used in provisions where imposition of imprisonment is made mandatory, and that those words are absent in provisions where fine is prescribed as an alternative punishment. By the words 'and shall also be liable to fine', power is conferred on the court to impose sentence of fine also in addition to imprisonment. It does not mean that courts should impose fine in all such cases as a rule. The court has the discretion to impose or not to impose a fine sentence also in addition to the sentence of imprisonment. The same view has been adopted by a Division Bench of the Patna High Court in Tetar v. Ganauri AIR 1968 Patna 287 : (1968 Cri LJ 1108).
12. When we consider the propriety in combining a sentence of fine with sentence of imprisonment for life, we agree that it is not usually done, Legitimacy and propriety are not the same. Hence, the latter has to be dealt with independent of the former. Bombay High Court in State v. Pandurang Shinde, AIR 1956 Bombay 711 : (1956 Cri LJ 1306) expressed the view that sentence of fine for an offence of murder is wholly inapposite. The said view was not, however, approved by the Supreme Court in Palaniappa Gounder v. State of Tamil Nadu AIR 1977 SC 1323 : (1977 Cri LJ 992), Chandrachud, J. (as he then was) struck a note of caution that before imposing fine for an offence of murder 'one must pause to consider whether the sentence of fine is at all called for and if so what is a proper or adequate fine to impose in the circumstances of the case'. In the aforesaid exercise if the court is of the view that in a particular case a fine sentence, in addition to imprisonment, is necessary to meet the ends of justice, it is only proper that the court awards fine sentence as well.
13. When the legislature has not fixed any upper limit for the quantum of fine in respect of a particular offence, court has the freedom to fix any amount but then the court must see that the fine imposed is not excessively high or repulsively low. Section 63 of the Penal Code says that where no sum is expressed to which a fine may extend, the amount of fine to which the offender is liable should be unlimited, but shall not be excessive. At the same time, court should not make it a mockery of sentence by fixing ridiculously low amount as fine. Financial capacity of the accused, enormity of the offence, extent of damage caused to the victim of the offences etc. are relevant considerations in fixing up the amount. Section 357 of the Cr. P.C. contains provision for ordering payment of compensation in criminal case. The mode of realisation of such compensation is through imposition of fine. It is for the court to decide whether any person involved in the criminal offence deserves payment of compensation. In such a case a sentence of fine in conjunction with the sentence of imprisonment would be appropriate and condign.
14. In this case, after taking into account various consideration, we thought that it would be appropriate to impose a fine for such amount as would enable us to pay compensation to P.W. 2, in addition to the sentence of imprisonment for a term. However, Shri T. R. Raman Pillai, learned counsel for the appellant, reported to us that appellant is prepared to pay a sum of Rs. 25,000/-as compensation to P.W. 2. In fact, when the case reached the final stage of arguments the said amount was paid to P.W. 2. Shri Retna Singh, learned Public Prosecutor, in the light of the aforesaid development, submitted that no separate fine sentence need be imposed on the appellant.
15. In the result, we convict the appellant under Section 304 (Part II) of the Penal Code (instead of Section 302) and sentence the appellant to undergo rigorous imprisonment for five years. There will be no fine sentence. The sentence passed by lower court for the offence under Section 324, IPC will run concurrently. The conviction and sentence are altered as above and the appeal is disposed of accordingly.