JUDGMENT
1. Heard Mr. J. M.
Choudhury, learned senior counsel appearing on behalf of the appellant, and Mr. D.
Goswami, learned Public Prosecutor for the
State respondent.
2. This appeal is directed against the judgment and order, dated 21-5-1999, passed by the Sessions Judge, Barpeta, in Sessions Case No. 68/96, whereby the accused-appellant Mahipal Nath was convicted for the offence under Section 302, IPC and sentenced to undergo imprisonment for life and pay a fine of Rs. 2000/-, and in default, to suffer further imprisonment for six months.
3. The prosecution, as unfolded, is that the accused-appellant Mahipal Nath has got a restaurant at Howly Dally Bazar. The deceased Digen Boro also used to visit the said daily bazaar and on the date of occurrence, i.e. on 3-9-91, an altercation took place between the deceased and the accused in front of the shop of the accused. Thereafter, the accused person picked up a knife and stabbed the deceased as a result of which the deceased died at the spot. One of the witnesses, immediately reported the matter to the police station and a General Diary Entry was made. The dead body was sent for post mortem examination, which was conducted by Dr. Rabindra Sharma, (PW-8), who found as follows :–
“External appearance :
A non emaciated, no decomposed, male dead body with rigor mortis in all four limbs. ‘ There is no discharge of faucal matter from the anus or jelly like substance from the urethra.
(i) One penetrating injury in the right chest wall in the 7th intercostals space at the scapular line placed transversely. Size 3/4″ x 1/4″ x 4″.
Pleurae :– Penetrated in the site of injury. There is haemothorax in the right side.
Larynx and Trachea :– Pale and full of blood.
Right lung — Collapsed.”
4. In the opinion of the doctor, the death was due to shock and haemmorrhage as a result of the injuries sustained.
5. In this case, we find that the prosecution has examined as many as 11 witnesses and there is overwhelming oral evidence on record to show that an occurrence as alleged by the prosecution took place at the time and place and in the manner as stated by the prosecution, witnesses and as a result thereof, the deceased, Dwijen Boro, sustained injuries and died. The death of the deceased, as a result of the said injuries, is not disputed or challenged.
6. The prosecution case rests on the testimony of eye witnesses, namely, Nathu Ram Boro (PW-1), Abdul Samad (PW-2), Gala Ram Boro (PW-3), Anowar Hussain (PW-5) and Maitha Boro (PW-9). On perusal of the evidence of the five witnesses aforementioned, we find that on the date of occurrence, an altercation had taken place between the accused and the deceased. The witnesses have further submitted that at that point of time, the accused as well as the deceased were under influence of liquor and as the altercation was going on, the accused picked up a knife from the kitchen of his shop and gave blow on the back of the deceased, where-upon the deceased fell down and died at the spot. All the above named five witnesses are independent persons and they are no way interested in the result of the prosecution. The occurrence had taken place at around 4 PM in a market area and as such, the presence of so many eye witnesses at the spot is not unnatural. The witnesses have been cross-examined at length, but nothing has been brought out to show that these witnesses are deposing falsely or that no such incident had taken place. On being informed, the police arrived at the market. The trial Court has relied upon the testimony of the eye witnesses and on perusal of their evidence, we see no reason to take a different view from what the learned trial Court has taken, namely, that it was the accused-appellant, who had caused the death of the said deceased.
7. The next question that arises for consideration is as to whether the accused-appellant had the intention to cause death of the deceased. Admittedly, there cannot be any direct evidence regarding intention, and the intention has to be inferred from the facts and circumstances of the case. This is a case of giving a single blow, which, unfortunately, proved fatal. There is no evidence to show that the accused tried to give further blows or he was prevented from inflicting further blows on the deceased. This goes to show that the accused had no intention to cause death; otherwise, nothing prevented him from dealing further blows on the deceased.
8. PW-2, Abdul Samad, is an employee in the restaurant of the accused and he has stated that the accused used to sell liquor in the said market. PW-2 has further stated that on the date of occurrence, since morning, the accused was consuming liquor and at the relevant time, both the accused and deceased were under the influence of liquor. We find that when the altercation was going on, the deceased left the place after giving warning to the accused that he would face the consequence for the ongoing altercation and it seems that the above warning poured fuel to the fire and the accused picked up the knife and gave a fatal blow.
9. Sri Choudhury, learned senior counsel, has submitted that this being a case of giving single blow and that too without any pre-meditation/planning, the act of the accused may not come under Section 302, IPC.
10. The question of single blow was considered in the case of K. Ramakrishnan Unnithan v. State of Kerala reported in AIR 1999 SC 1428 : 1999 Cri LJ 2101, Giani Ram v. State of Haryana reported in 1995 Cri LJ 4168, wherein the Apex Court extended the benefit to the accused-appellant by bringing home the offence under Section 304, Part II, IPC. The matter was, again, considered by the Apex Court in the case of Mahesh Balmiki alias Munna v. State of M.P. reported in (2000) 1 SCC 319 : 1999 Cri LJ 4301 wherein the Apex Court observed as follows :
“Adverting to the contention of a single blow, it may be pointed out that there no principle that in all cases of a single blow, Section 302, IPC is not attracted. A single blow may, in some, cases, entail conviction under Section 302, IPC, in some cases under Section 304, IPC and in some other cases under Section 326, IPC. The question with regard to the nature of offence has to be determined on the facts and circumstances of each case. The nature of the injury, whether it is on the vital or non-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted, are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him.”
11. In the recent case of Dhupa Chamar v. State of Bihar, reported in 2002 AIR SCW 3217 : 2002 Cri LJ 3764 the Apex Court has considered the earlier judgments and reiterated the decision in Mahesh Balmiki, (1999 Cri LJ 4301) (SC) (supra).
12. Reverting to the facts of the present case, we hold that the accused-appellant had no intention to kill the deceased and the incident took place at the heat of moment as both the deceased and the accused were under influence of liquor and, hence, the act of the accused does not constitute an offence under Section 300, IPC. However, it will be an offence as defined under Section 299, IPC punishable under Part-II of Section 304, IPC. Accordingly, the conviction of the accused-appellant is converted to conviction under Section 304, Part II, IPC.
13. We have heard the learned counsel on sentence. The accused-appellant, Manipal Nath is sentenced to imprisonment for 8 years and to pay fine of Rs. 3,000/-, and in default, further imprisonment for 2 months.
14. The appeal stand disposed of accordingly.