JUDGMENT
Rajendra Saxena, J.
1. Appellant Prakash alias Omprakash was tried by the learned Addl. Sessions Judge No. 1, Hanumngarh, Camp Sangaria, who by his judgment dated 31-1- 1990 convicted him for the offences under Sections 302 and 307, IPC and sentenced him to life imprisonment with a fine of Rs. 100 and in default to further undergo S.I. for one month under the first count and to four years’ R.I. with a fine of Rs. 100/- and in default to further suffer one month’s S.I. under the second count. However, the learned Addl. Sessions Judge No. 1, Hanumangarh acquitted co-accused Bhaga and Krishna of the offences under Sections. 302 r/w arid 307/34, IPC. Against his conviction, the appellant has preferred this appeal.
2. The facts of this case can be recaptitulated within a narrow compass. It appears that on the next day of Holi festival, which fell on 16th March, 1987, at about 1.30 PM deceased Khetpal purchased a bottle of country liquor. He was going towards his field situated near the Johad of village Dhamba. Appellant Omprakash and co-accused Bhaga and Krishna came there. They asked Khetpal (deceased) to offer them the liquor, but the latter refused. Thereupon, co-accused Bhaga snatched the bottle of liquor from him, while the appellant and co-accused Krishna, grappled him and felled him down. It is the case of the prosecution that co-accused Krishna sat over the deceased and his brother co-accused Bhaga, who had a lathi in his hand, was standing nearby. Deceased Khetpal raised an alarm ^^ekjs js A ekjs js A** which attracted PW 1 Suraja Ram and PW 2 Bhadar Ram. Meanwhile, the appellant took out a knife from his fold and after opening the said knife by pusing its lever wielded a blow, which landed on his chest, .PW 2 Bhadar Ram intervened and tried to rescue Khetpal. Thereupon, co-accused Bhaga dealt a lathi blow towards him but the latter caught hold of that lathi. Thereupon co-accused Bhaga grappled him and the appellant inflicted another knife blow causing injuries on his chest. Thereafter, all the three assailants ran away towards the Johad. PW 1 Suraja Ram took Khetpal, who was still alive, to the bus station from where, they star ted for Sangaria for taking him to the hospital for treatment but in the way Khetpal succumbed to his injuries. PW 2 Bhadar Ram, who was also injured, rushed to the Primary Health Centre Dispensary, Sangaira, PW 4 Dr. Nathmal Dugar sent a message to Police Station, Sangaria from where PW 6 Suman Ali, A.S.I. reached the hospital. Suman Ali recorded the ‘parcha bayan’ (Ex. P. 2) of injured Bhadar Ram on the same day at 3.27 PM and sent the same to the Police Station Sangaria on which formal FIR Ex. P. 27 was drawn. PW6 Suman Ali conducted the initial investigation, prepared the site plan Ex. P.1 and its memo Ex. P 1-A and panchayat Nama of the dead body of Khetpal Ex. P. 3.
3. Dr. Nathamal Dugar conducted the post mortem examination of the dead body of Khetpal and found.the following injuries:
1. Echymosis 5 cm x 3 cm on the left elbow joint;
2. Punctured wound 2x 1x 11 cm on the left sternum upper 1/3″.
On removing the sternum, he found that the wound of that injury extended upto pleura and deep to the left lung and heart causing injuries to aorta cutting the pericardium membrane and aorta vessel.
The Doctor opined that the cause of death of Khetpal was shock and haemorrhage due to injuries on aorta and the heart.
4. Doctor Dugar also examined the injuries of P.W. 2 Bhadar and faound one incised wound 3 x 1 x 1/4 cm on latter’s right chest wall. The wound was penetrating arid air transmission was noticed from the punctured chest wound. The X-Ray of the chest of Bhadar was also taken but no bony injury was found. Dr. Dugar prepared the MLR Ex. P. 12 and opined that the said injury was grievous and caused by a sharp weapon. He further opined vide his report Ex. P. 13 that the said injury of Bhadar could prove dangerous to life, had he not been treated in time.
5. Appellant Omprakash was arrested on 28-3-1987. It is the case of, the prosecution that on 31-3-1987, he made a voluntary disclosure statement Ex; P. 31 to the Investigating Officer and in pursuance thereof got a blood stained knife recovered from his house vide recovery memo Ex. P. 10, which was seized and sealed on the spot. The sealed packets of the blood soaked shirt of the deceased and of the recovered knife were sent to the State F.S.L., Rajasthan, Jaipur. After examination, the Serologist vide his report Ex. P. 23 opined that the blood soaked shirt as also the recovered knife were stained with human blood. However, their blood groups could not be determined due to disintegration.
6. After completion of the investigation, a challan was filed against the appellant and co-accused Bhaga and Krishna in the Court of the learned MJM Sangaria, who committed the case to the learned Sessions Judge. After trial, the learned trial Judge acquitted coaccused Bhaga and Krishna holding that their common intention was not proved. He, however, found the appellant guilty of the offences under Sections 307, and 302, IPC and sentenced him in the manner as aforesaid. Hence this appeal.
7. We have heard Mr. H.S.S. Kharlia learned counsel for the appellant and Mr. Bhora, learned P.P. at length and carefully perused the record of the lower Court.
8. At the very outset, it may be mentioned here that Mr. Kharlia has not, challenged the factum of incident. His only contention is that even if the prosecution evidence is taken to be true on its face value, still then the offence proved against the appellant does not travel beyond the offences punishable under Sections 304, Part I and 307, IPC According to him, the appellant had no enmity with the deceased. The incident took place all of a sudden on spur of the moment because the appellant and co-accused persons had asked the deceased to offer them wine, which he refused. The appellant had no intention to commit the murder of Khetpal. The appellant only dealt one knife blow. If he had the intention to commit the murder of Khetpal, he would have inflicted more injuries to him. In such circumstances, according to him the learned trial Judge has committed an illegality of fact and law in convicting the appellant for the offence under Secton. 302, IPC. Mr. Kharlia has further contended that the appellant is under detention since 28-3-1987 and thus, he has served out the sentence for a period of more than seven years and one month. Therefore, keeping in view all the facts and circumstances of the case, he may be awarded sentence for the period already undergone by him.
9. On the other hand, Mr. D.R. Bohra, learned P.P. has strenuously opposed this appeal. He has asserted that there is direct evidence of injured Bhadar and another eye witness P.W. 1 Surja Ram, who has fully supported the proseuction case and deposed that the appellant had inflicted a knife blow on the chest of Khetpal and that when Bhadar wanted to rescue him, the appellant also dealt a knife blow on the chest of Bhadar. According to him, the injuries sustained by Khetpal were sufficient in the ordinary course of nature to have caused death. Therefore, keeping in view the aforementioned ocular evidence, the motive becomes irrelevant. He has argued that by the action of appellant, it stands firmly established that he had the intention for committing the murder of Khetpal as also of Bhadar. The injuries sustained by Khetpal were on his vital parts causing injuries to aorta, vessles and the heart. Therefore, according to him it is not a case of culpable homicide not amounting to murder punishable under Section 304, Part I, IPC.
10. We have given our most anxious and thoughful considerastion to the rival submissions made before us. It is not in dispute that the occurrence took place on 16-3-1987 at about 1.30 P.M. and that it was the next day of Holi festival. Thus, it was a day of merry making and revelry. The appellant as also the deceased Khetpal, injured Bhaga, P.W. 1 Surja Ram and P.W. 3 Sahi Ram are Bawari by caste. P.W. 3 Sahi Ram has deposed that on the ill fated day at 1.30 P.M., when he was going towards his house on the road, he saw P.W. 1 Surja Ram and one Chananiya carrying Khetpal, who had received injuries on his chest. He stated that at that time, Khetpal was alive and when he enquired from him, the latter informed that he had brought a bottle of liquor, which was snatched away by the appellant and his companions and the appellant had dealt a knife blow causing injuries to him. In his cross-examination, Sahi Ram stated that Khetpal had also told him that appellant and co-accused persons were insisting him to offer liquor to them but he declined and that thereupon, the incident took place. The appellant and the deceased belonged to same community and were neighbours. They had no previous enmity. Thus, appellant had no malice with the deceased. It was the day of fun making and revelry and the alleged incident took place all of a sudden, when the deceased turned down the demand of the appellant and co-accused persons for offering liquor to them which apparently enraged them. Thus, the incident took place all of a sudden and the act of the appellant was not premeditated. The incident took place on a trivial matter. The appellant and the co-accused Krishna felled him down and then all of a sudden, the appellant took out a knife from his fold and weilded a knife blow on his chest, which proved fatal. From the evidence recorded in this case, it stands firmly established that the appellant gave only one knife blow to the deceased and did not repeat. If he had any intention of committing the murder of deceased Khetpal, he could have inflicted more knife blows to the latter. The learned Sessions Judge has held that since the appellant had inflicted a forceful knife blow causing an incised wound upto the depth of 12 cm cutting aorta and causing injuries to his heart, it was manifest that appellant had the intenion to commit murder of the deceased. But the learned trial judge conveniently ignored that the alleged incident had taken place all of a sudden on the spur of a moment for a trivial matter on a day of revelry when the deceased refused to oblige the appellant and co-accused persons’ by offerning liquor to them. He has also not taken notice of the material fact that deceased and the appellant belonged to the same community; that the appellant had no previous animosity or malice towards the deceased. Therefore, in our considered opinion, the offence committed by the appellant falls in the fourth exception of Section 300, IPC because the explanation thereof declares that it is immaterial in such cases as to which party had offered the provocation or committed the first assault. The appellant did inflict a knife blow, which landed on the chest of the deceased, which was a vital part. Thus, he intended to cause such bodily injury by the knife, which was likely to cause death of the deceased. Hence apparently the offence successfully brought home against the appellant does not travel beyond the offence punishable under Section 304, Part I , IPC.
11. The learned P.P. has placed reliance on the case of Nashik v. State of Maharashtra, 1993 AIR SCW 1394 : (1993 Cri LJ 2619). In that case, the Sessions Judge as well as the High Court concurrently held the appellant guilty of the offence under Section 302, IPC. Deceased, who was undergoing sentence and was released on parole , had come to P.W. 1 and asked for boiled eggs. The appellant came armed with a knife and caught hold of the shirt collar of the deceased and abused him. Thereafter, a scuffling started between them. The appellant was overpowered and made to fall on the ground by the deceased. The appellant then shouted in the name of co-accused for help. Co-accused Hamid immediately rushed there with a knife and he laboured a knife blow on the thigh of the deceased. Thereupon, the deceased released the grip on the appellant and thereafter the appellant inflicted a strong blow on the stomach of the deceased resulting in his death. The appellant had denied his involvement in the case. It was contended that the appellant had no intention to commit the murder of the deceased but just wanted to cause injury to him and to teach him a lesson. It was held that the appellant was an aggressor and without any provocation had stabbed the deceased with a full punch resulting in severe injuries, which were likely to cause death in the ordinary course of nature. Keeping in view the concurrent findings of the trial Court and the High Court as also the medical evidence, the Apex Court held that it could not be held that the appellant had no intention to commit the murder of the deceased and maintained his conviction under Section 302, IPC. In that case, the appellant and the deceased had previous enmity. The facts of the instant case are clearly distinguishable. Here the appellant and the deceased belonged to the same community and had no previous enmity. The incident had taken place all of a sudden on spur of the moment when the deceased had refused to oblige by offering liquor to them on the next day of Holi. The appellant had dealt only one knife blow. Therefore, Nashik’s case (supra) does not come to the rescue of the prosecution.
12. Mr. Bohra has also cited the cases of State of Andhra Pradesh v. Bogam Chandraiah 1986 (3) Crimes 367 : (1986 Cri LJ 1903) and Subhash Pathak v. The State of Rajasthan 1992 Cr LR (Raj) 731. In those cases, it has been held that when there is direct evidence of an acceptable nature regarding the commission of an offence, the question of motive cannot loom large in the mind of the court and that it becomes irrelevant. We respectfully agree with this principle of law because when there is ocular testimony proving the incident, the motive pales into insignificance and absence thereof is not fatal to; the prosecution case. In Bogam Chandraiah’s case (supra), the accused persons were convicted under Section 302/34, IPC but on appeal, the High Court acquitted them. The deceased was attacked by the accused persons with an axe and knife after he was felled down. The High Court passed the order of acquittal holding that no motive was established; that there were neither minor contradictions in the prosecution evidence and that the informant instead of going to the Police Patel had directly gone to Police Station to lodge the report. The High Court had also evolved a new theory that the incident had taken place during darkness, which was not supported by the evidence. The deceased had received as may as thirteen injuries. Out of those, four injuries were grievous and sufficient to cause death in the ordinary course of nature. In Subhash Pathak’s case (supra), the appellant had killed his own lover by inflicting multiple injuries by dantli blows. The eye witnesses had deposed that they had seen the appellant inflicting dantli blows to Saroj (deceased) one after the other causing as many as five incised wounds on various parts of her body including the neck and the head. Therefore keeping in view the multiple injuries of the deceased in both the cases, the intention to commit murder was well proved by the direct evidence and, therefore, it was held that the motive for the crime became irrelevant and the accused persons in both the cases were found guilty of the offence under Section 302, IPC. Apparently, the facts of the case in hand are at poles apart and, therefore, those cases render no assistance to the respondent.
13. The last case relied upon by Mr. Bohra is that of Swaran Singh v. the State of Himachal Pradesh, 1984 (3) Crimes 12: (1984 Cri LJ (NOC) 147 (HP). In that case, the accused persons were tried for the offences under Sections 307 and 148, IPC and convicted for attempting to murder three persons. Their conviction was based on the statements of the injured persons, which were well corroborated by the medical evidence and the report of the Serologist. It was contended that the prosecution had failed to prove the motive and that the appellants had also pleaded their innocence. Therefore, they should be acquitted. Repelling that argument, the Himachal Pradesh High Court held that if all the factors point to the guilt of the accused persons, simply for want of motive, they cannot be considered as innocent. The correctness of the aforementioned principle of law cannot be doubted and we respectfully agree with the same but in the case in hand, the motive for the crime stands well proved by the testimony of P.W. 3 Sahi Ram, to whom deceased Khetpal had made an oral dying declaration to the effect that he had bought a bottle of liquor; that the appellant and the co-accused persons asked him to offer liquor to them, which he declined and that there upon the appellant and Krishna felled him down and appellant Prakash dealt a knife , blow on his chest. Therefore, Swaran Singh’s case (supra) renders little assistance to the prosecution.
14. In Mahendra Kumar v. State of Rajasthan 1992 Cri LR (Raj) 503, the deceased and the appellant hurled abuses and also grappled with each other. The appellant then gave a single blow by knife on the chest of the deceased. On exploration, the doctor found that the wound of the chest was 12 cm deep cutting the chest wall, pleura, pericardium and left vetricle of heart. The doctor opined that the cause of death was shock due to excessive haemorrhage as an injury to vital organ i.e. heart. The appellant was convicted for the offence under Section 302, IPC by the trial Court. In that case, the occurrence had taken place all of a sudden, there was no previous enmity between the accused appellant and the deceased and the deceased was alleged to have abused the mother of the appellant and thereupon, the appellant gave a single knife blow. Therefore, under those circumstances, this Court held that the offence brought home against the appellant was under Section 304, Part I, IPC, because the appellant intended to cause an injury, which was sufficient in the ordinary course of nature to have caused death. Therefore, the conviction of the appellant was altered from Section 302 to 304, Part I, IPC. Similar are the facts of the instant case.
15. Mr. Kharlia has also placed reliance on the case of Narain v. State 1994 Cr LR (Raj) 75. In that case, the appellant was young boy of 18-19 years of age and was convicted for the offence under Section 304, Part I, IPC by the trial Judge and sentenced to undergo seven years’ R.I. with a fine of Rs. 100/- The learned single Judge of this Court holding that the incident took place all of a sudden without any premeditation; that there was no previous enmity and looking to the young age of the appellant, reduced the sentence from seven years to the period of about two years and ten months, which he had already undergone while maintaining his conviction under Section 304, Part I, IPC. In the instant case, the appellant in his plea recorded under Section 313, Cr.P.C. disclosed his age as 25 years, while the learned Addl. Sessions Judge No. 1 has estimated his age as 35 years. Therefore, the appellant is not of tender age and this case does not help the appellant.
16. In Jagtar Singh v. State of Raj. 1983 SCC (Cri) 459 : (1983 Cri LJ 852), the appellant inflicted a single blow on the chest of the deceased. The injury sustained by deceased was found sufficient in the ordinary course of nature to cause death by the doctor. The appellant was a very young man. The incident took place on the spur of the moment, to some extent on deceased’s provocation, in a sudden and chance quarrel on a trivial issue. It was held that in such circumstances, no premeditation or malice on the part of the accused was inferable and that the intention to cause death or intention to cause that particular injury which proved fatal was absent and, thus, the case did not fall under the Firstly or Thirdly of Section 300 and, therefore, coviction under Section 302, IPC was not proper. It was further held that the accused had the knowledge that he was likely to cause an injury which was likely two cause death and, therefore, he was convicted for the offence under Section 304, Part II, IPC and sentenced to five years’ R.I. In that case, the appellant did not intend to inflict knife injury on the chest of the deceased. The parnala of the house of the appellant was protracted on the road and forehead of the deceased was dashed with the parnala which provoked the deceased to remonstrate the appellant. There was exchange of abuses and at that time, the appellant gave a blow with a knife causing injury on the chest of the deceased. Clearly, the facts of Jagtar Singh’s case (supra) are distinguishable. Here, the appellant and co-accused Kristina had felled down the deceased, who had declined to oblige them by offering the liquor which infuriated the appellant and gave a single blow on the chest of the deceased. Thus, the appellant intended to cause such bodily injury to the deceased, which was likely to cause death. Therefore, the offence made out against him is Under Section 304, Part I, IPC and not under Section 304, Part II, IPC.
17. The injuries caused to P.W. 2 Bhadar by the appellant have been well proved by the doctor. Mr. Kharlia, the learned counsel for the appellant has also not challenged the conviction under Section 307, IPC.
18. Hence for the reasons mentioned above, in our considered opinion, the learned Addl. Sessions Judge has committed an illegality in convicting the appellant for the offence Sections. 302 IPC. The appellant is under detention since 28-3-1987 and, as such, he has already undergone sentence for a period of more than seven years and one month. Keeping in view all the facts and circumstances of the case and all relevant factors, rigorous imprisonment for the period already undergone by him and a fine of Rs. 500/ – will suffice to meet the ends of justice.
19. In the premise of the above discussion, we partly allow this appeal and set aside the appellant Prakash’s conviction for the offence under Section 302, IPC but convict him for the offence under Section 304, Part I, IPC and sentence him to R.I. for the period he has already undergone with a fine of Rs. 500/- and in default to further undergo R.I. for one month. His conviction and sentence for the offence under Section 307, IPC are maintained.
20. A copy of this judgmewntl be immediately sent to Superintendent, Central Jail, Bikaner for information and compliance.