JUDGMENT
Vinod Prasad, J.
1. Appellant Yogesh Kumar has questioned the correctness of his conviction Under Section 302 IPC and sentence of life imprisonment imposed by Additional Sessions Judge, Budaun vide his impugned judgment and order dated 1.2.1982 recorded in S.T. No. 396 of 1979 State Versus Yogesh Kumar relating to P.S. Kotwali, district Budaun through this appeal.
2. The background facts of the case are that Mohd. Siddiq informant was a driver of Bus No. UPO 1590 on which his cousin brother Raees Ahmad (deceased) was the conductor. The aforesaid bus belonged to one Ashok Kumar of Ujhani. Pappu was the brother of Ashok Kumar. There was a triadic altercation between Ashok Kumar and Pappu with the appellant Yogesh Kumar in the Kawwalli of Habib Painter in Ujhani. On 21.6.1979 the informant with deceased returned with their bus to Budaun from Babrala at 6.40 p.m. where they met the owner Ashok Kumar. The driver and conductor finished the accounting of the money with the owner and thereafter they took the dinner in Kishan’s hotel along with Lajpat Rai. After the dinner they came out of the hotel at 10.20p.m. when the appellant motivated by the earlier altercation in Kawwalli started abusing them. On the hurled abuses the prosecution party accosted him on which the appellant got infuriated. Raees, the deceased, tried to pacify him but the appellant stabbed him with knife in his neck uttering that he used to take side with Ashok the owner of the bus. Raees fell down after sustaining the injuries and the appellant took to his heels. He was chased and was apprehended in front of the Congress Office. In that melee of arrest the shirt of the appellant torned off and the knife also got broken. Injured Raees was rushed to Lajpat Hospital. The appellant was brought to the police station by informant, constable Tej Pal and many others and there the informant lodged the FIR scribed through Waseem Khan as Crime No. 455 of 1979 and 456 of 1979 Under Section 307 IPC and Section 25 of the Arms Act respectively at 10.50p.m. The knife was recovered and it’s seizure memo is Ext. Ka 4. Head Constable Jandail Singh prepared the chik FIR Ext. Ka 7 and GD entry Ext. Ka 14. Injured lost his life in the hospital after some time and inquest on his body was performed by SI Prem Singh proved as Ext. Ka 8 and other relevant papers as Ext. Ka 9 and ka 10. Sub Inspector Nem Singh P.W. 7 started the investigation, conducted spot inspection and prepared site plan Ext. Ka 12. He collected the blood stained and plain earth from the place of incident Ex. Ka 13.Subsequent investigation was conducted by S.I. Vishwanath Dwivedi P.W. 6 who recorded the statement of witnesses and made the seizure memo regarding token of the bus Ext. Ka 5 and concluding the investigation submitted charge sheet on 10.8.1979.
3. Post mortem examination on the dead body of Raees Ahmad was conducted on 22.6.1979 at 9. 35 a.m. Rigor mortis was present on his both extremities and post mortem staining was also present on back and posterior aspect neck and buttock and following ante mortem injury was found on the corpse:
1. Punctured wound 4 cm. x 2-3 4 cm. x chest cavity deep left side on the neck lower third left side. 1.25 cm. above the middle third of left clavicle. The wound is lying obliquely and half vertically. The direction of wound is downwards and medially (inwards). The margins were clean cut. Muscles of neck cut and loft common carotid artery and internal juglar vein punctured. Upper most and inner part of pleura left side punctured & left lung underneath punctured.
4. His lung was found punctured and in the stomach there was semi digested semi solid food about ten oz. with some fluid matter. The cause of the death was shock and haemorrhage as a result of injury to common carotid artery and internal Juglar vein and injury to lungs.
5. The appellant was also medically examined on 22.6.1979 at 7.17 P.M. and four contusions and one abrasion was found on his body.
6. In the trial Siddiq P.W. 1 supported the prosecution version as has been mentioned in the FIR and stated that in Kawwalli there was a scuttle between Ashok Kumar and Pappu on the one side and Yogesh Kumar appellant on the other and at that time the appellant had threatened Ashok Kumar and his brother and since then there was enmity between the two. He had further stated that from Babrala they had brought their bus to Budaun at 6. 40p.m.and after doing the accounting they had taken dinner in Deepak Hotel alongwith one Lajpat Rai and the incident occurred after they had came out from the hotel. He had further stated that the appellant was arrested after being chased infront of Congress Officer and the knife was also snatched away from him which had broken down. He has proved the knife as Ext. 1. He had further stated that he had brought the appellant alongwith the help of police constable Tej Pal Singh P.W. 5 and other people at the police station and had handed over the appellant and knife at the police station and then had lodged the FIR. He has beefs subjected to searching cross-examination by defence but nothing material had came out which can dent his testimony even slightly on participation of the appellant in the incident. Some minor contradictions and omissions have been put to him which do not damage the merits of the matter. Regarding the manner of the assault he had stated that the appellant had uttered that Raees used to take the side of the master Ashok Kumar and therefore he will remove him from his way. He had deposed that the place of the incident is near Lavela crossing and it is a densely populated place. He had further deposed that at the time of assault deceased had caught hold of the hand of the appellant by which he was wielding knife but his hand had slipped causing injury to the deceased because his palm was greased. He further deposed that the appellant had not made any second assault on the deceased and after the incident he was chased by many people. He had further deposed that during registration of his FIR message about the death of the deceased was received from the hospital. He denied the suggestion that the deceased was done to death in darkness and no body had seen the incident. He had further denied that the appellant had sat for easing himself near the graves at Jiyarat and some people started chasing him and in that scuffle the bushirt of the appellant came in their hand and near Lavela crossing he was apprehended and falsely implicated in the crime. He had further denied that no recovery of knife was made from the possession of the appellant. He had further denied the suggestion that he had become a false witness and after receiving the information regarding the murder of the deceased he was called and made a witness. He had also denied that none of the eyewitnesses were present on the spot and no scuffle had ensued in the Kawwalli.
7. Abrar P.W. 2 also supported the evidence of informant P.W. 1 in all material particulars and had deposed that vituperation preceeding the assault lasted for 1-1/2 minute. He had further deposed that the appellant could not scuffle with the deceased. He had contradicted P.W. 1 in respect of catching hold of hand by the deceased and slipping of his hand causing injury to the deceased. He had been subjected to through cross-examination but nothing material has come out of his evidence.
8. Dr. M.V. Jiyal P.W. 3 had conducted the autopsy on the dead body of the deceased on 22.6.1979 at about 9.30 A.M. and had found the injuries and the internal and external features on the dead body which has already been mentioned above.
9. Ashok Kumar P.W. 4 who was the owner of the bus also supported the prosecution version in all it’s material aspects of the matter and had deposed that the appellant had rushed to assault him. However deceased came in between him and the appellant. He further deposed that before assaulting Raees the appellant had not made any assault on him. He had stated that Raees had raised his hand to save himself. He had further deposed that after assaulting the deceased the appellant had not made any effort to cause him injury and ran away.
10. Tej Pal Singh, constable P.W. 5 had evidenced before the court that he was on duty at the time of the incident near Lavela crossing and he had caught the appellant near the Congress Office with the a knife which got broken in scuffle with the appellant to get him freed. He had further deposed that he had brought the appellant to the police station Kotwali where the FIR was got registered. Nothing material has come out from his evidence to dent the prosecution version.
11. Vishwanath Dwivedi Sub Inspector P.W. 6 who had subsequently investigated the case deposed that he was entrusted with the investigation on 28.6.1979 and he has proved the various steps taken by him during the investigation as has been mentioned herein before in this judgement.
12. Sub Inspector Nem Singh P.W. 7 the first I.O. of this case has also proved the various steps taken by him which have been referred to above and nothing material has come out in his deposition against the prosecution.
13. In his defence Under Section 313 Cr.P.C. the appellant has stated that he was returning back after strolling when near the ladies hospital he had set down for urinating near some graves when some people started chasing him armed with danda and near Lavela crossing he was apprehended on suspicion and falsely implicated in the offence and no knife was recovered from his possession. He had further taken the defence that the eyewitnesses were not present on the spot and he was falsely implicated in this case.
14. Learned Additional Sessions Judge found the case of the prosecution proved to the hilt and the guilt of the appellant well cemented and therefore convicted him Under Section 302 IPC and imposed the sentence of life imprisonment on him which has been challenged in this appeal.
15. We have heard Sri P.N. Misra learned senior counsel in support of this appeal and Miss Usha Kiran learned AGA on behalf of the State.
16. Sri P.N. Misra learned Counsel for the appellant made an endeavor to bring forth some of the discrepancies from the prosecution evidence but ultimately confined to the submission only on the nature of offence which has been committed by the appellant. Learned Counsel for the appellant contended that according to the prosecution story the incident occurred all of a sudden in night at 10.20p.m. without any premeditation. He contended that the appellant met the deceased and the eyewitnesses all of a sudden at the crossing at that hour of night and the assault proceeded with an altercation and the appellant in that meleeheat of anger never intended to cause death of the deceased who had intervened in the altercations. He contended that utterances by the appellant is indicative of the fact that he never intended to cause death nor he intended to cause such bodily injury to the deceased as to be sufficient in the ordinary course of nature to cause death. He further submitted that the appellant never knew that the bodily injury inflected by him will cause the death of the deceased in all probability and therefore the offence will not travel beyond the scope of Section 304 IPC. He further submitted that in the wake of anger and anguish a single blow was given by the appellant which proved fatal and therefore, the offence against the appellant will not travel beyond 304 part II IPC. He further contended that the appellant was 19 years of age at the time of the incident and he belongs to a respectable family and had no criminal history. He further submitted that the assault was made by the appellant not to cause the death of the deceased but to keep him away from interference between him and Ashok Kumar and there was absence of any intention to cause death and therefore what can be said with certainty is that the appellant had knowledge that by his assault he can cause the death of the deceased and therefore his guilt is covered under exception 4 to Section 300 IPC He therefore submitted that the conviction Under Section 302 IPC is bad in law and instead the appellant should be convicted Under Section 304 part I IPC and be sentenced suitably.
17. Learned AGA on the other hand contended that looking to the nature of injury the intention of the appellant can be presumed and therefore, conviction has been rightly recorded and appeal is merit less and deserves to be dismissed.
18. We have given our anxious consideration on the submissions raised by both sides and have perused the record and evidence ourselves.
19. From the narration of incident it is clear that there was no predetermined assault by the appellant and the incident occurred all of a sudden by a chance meeting between the prosecution side and the appellant in dark hour of night. Assault was made on the road where it was slightly dark and according to the evidence of P.W. 1 the hand of the deceased were greased therefore he could not avert to assault as a result of which he sustained the injuries. There was no enmity between the deceased and the appellant at all. Motive to appellant was against the owner of the bus Ashok Kumar. He had no intention to cause the death of the deceased. The incident was preluded by a vituperation from both the sides. In that heat of anger a single blow was given by knife by the appellant which proved the fatal. The utterances made by the appellant at the time of the assault also does not indicate that he intended to cause the death of the deceased or that he intended to caused such bodily injury as was sufficient on the ordinary course of nature to cause death. His conduct indicates that he really wanted to keep the deceased away from coming in between him and Ashok Kumar P.W. 4. In such circumstances it is difficult to presume that the applicant really intended to cause the injury sustained by the deceased. To us it seems that in dim light the blow fell of the neck of the deceased without any intention to cause injury on it. What seems to us is that in an attempt to stop the deceased from assaulting Ashok Kumar that the deceased received fatal blow. The appellant never made any second attempt nor he mad any endeavour to assault any body else. More over normally the knife is used on the lower part of body but in this case it was used on the neck which shows that probably the attempt was to keep the deceased away from Ashok Kumar. On such facts we are of the opinion that the offence which has been committed by the appellant will not travel beyond the scope of Section 304 part I IPC as it cannot be said without an element of doubt that the appellant intended to cause death of the deceased or that he intended to cause such bodily injury as was likely to cause his death.
20. In this view, which we have taken we are fortified by some of the following judgements of apex court as exemplers.
21. In Balson v. State of Kerla it has been held by the Apex Court under the similar circumstances as follows:
4. The above facts are sufficient to show that the injury sustained by the deceased, though in the ordinary course is sufficient to cause death, would not have been intended to be inflicted by the brother assailant The situs at which the fatal blow fell was not chosen or intended by the assailant according to the High Court and even as per facts narrated. It happened on account of fortuitous circumstances.
1. We, therefore, alter the conviction to Section 304, Part I of the Indian Penal Code. We think that, a sentence of imprisonment for a period of seven years would be sufficient to meet the ends of justice on the facts of the case. Accordingly, we order the appellant to undergo rigorous imprisonment for seven years for the offence he is convicted now.
22. In case Krishna Tiwari v. State of Bihar under some what similar circumstances it has been held by the Apex Court as follows:
4. In our view, there is much substance in the contentions raised by the learned senior counsel for the appellants. From the evidence on record it is apparent that incident took place all of a sudden. It has been admitted by the prosecution witnesses that prior to the incident relations between the brothers were cordial. It has been specifically stated by informant P.W. 7, Anil Tiwary in his cross-examination that they were having best of relations with the accused prior to the incident. He has also denied the suggestion that there was property dispute between them. The witness has also admitted that the appellant Krishna Tiwary came empty handed and that incident took place because they scolded Manoj Kumar and deceased removed him from the middle of the door. He has also stated that after coming down Krishna Tiwary caught hold the collar of Paramhans and asked him why his cleaner was beaten. So, it is apparent that some quarrel took place between the deceased and Krishna Tiwary. At that moment, it is alleged that Krishna Tiwary uttered the word ‘assault’ and thereafter Dadan Tiwary inflicted two knife blows. It is true that first knife blow proved fatal; with regard to the second knife blow, admittedly, it is a simple injury which is skin deep. From the record, it is apparent that the prosecution has suppressed the evidence of other witnesses, particularly that of Manoj Kumar who was the cause of quarrel. However, taking the prosecution case as it is, it is apparent that the role played by A-1 is absolutely limited. Therefore, the trial Court has convicted him by resorting to Sections 109 and 111 of IPC. Further, it is admitted that relationship between brothers and the family members was cordial prior to the incident. The incident took place all of a sudden and without any premeditation. Manor, cleaner of the appellant was standing in the middle of the door and the ladies of the house were having obstruction in coming and going out from the house, therefore, he was scolded by deceased and removed from that place by use of force. It appears that he conveyed something, which has not come on record because Manoj is not examined, to the appellants. Appellants came down and the quarrel took place between deceased and Krishna Tiwary (A-1). In such a sudden quarrel and in heat of passion, appellant No. 2 son of Krishna Tiwary, A-1, inflicted a fatal blow to the deceased. Further, he has not acted in any cruel or unusual manner nor he has taken any undue advantage. Hence, at the most appellant No. 2 would be liable to be convicted for the offence punishable under Section 304 Part-1 IPC and the appellant No. 1 for the offence under Section 304 Part I read with Section 109 and Section 111 IPC. Further, the conviction of A-2 under Section 324 IPC for causing simple hurt to witness Anil Tiwary also requires to be maintained. For the sentence for the said offences, it has been pointed out by the learned Counsel for the appellants that A-2 has undergone imprisonment for more than nine years and Al has undergone sentence of about five years. Considering the facts and circumstances of the case, in our view, sentence undergone by the appellants would be sufficient to meet the ends of justice and we do so. Accordingly, the appeals are allowed to the aforesaid extent Appellants who are in jail be released forthwith, if not required in connection with any other case.
23. In similar circumstances in the case Mahesh v. State it has been held by the Apex court as follows:
4. From persual of the evidence, we find that when the appellant arrived along with the cattle at the field there was no pre-meditation for the assault. At the spot, there was an altercation between the parties and in the sudden fight, after the deceased objected to the grazing of the cattle, when possibly hot words or even abuses were exchanged between the parties, the appellant gave a single blow with the pharsa on the head of the deceased. The statement of the appellant and the suggestions given on his behalf to the prosecution witnesses that there was an attempt to assault the deceased with a pharsa which was with the deceased does not appear to be improbable. Thus, placed as the appellant and the deceased were at the time of the occurrence, it appears to us that the appellant assaulted the deceased in that sudden fight and after giving the him one blow took to his heals. He did not cause any other injury to the deceased and therefore it cannot be said that he acted in any cruel or unusual manner. Admittedly, he did not assault PW-2 or PW-6 who were also present along with the deceased and who had also requested the appellant not to allow his cattle to graze in the field of PW-1. This fortifies our belief that the assault on the deceased was made during a sudden quarrel without any premeditation. In this fact situation, we are of the opinion that Exception 4 to Section 300, IPC is clearly attracted to the case of the appellant and the offence of which the appellant can be said to be guilty would squarely fall under Section 304 (Part-I) IPC. The trial Court, under the circumstances, was justified in convicting him for the said offence and the High Court, in our opinion, fell in error in interfering with it and that too without dispelling any of the reasons given by the trial Court. The judgment of the High Court convicting the appellant for an offence under Section 302, IPC cannot be sustained and we accordingly set it aside and instead convict the appellant for the offence under Section 304 (Part-I) IPC.
23. In similar circumstances it has been held by the Apex Court in the case Laxman v. State of M.P. as follows:
21. The fact situation shows that arrows were being shot from a distance, not with any accuracy. One of such arrows hit the deceased. As established by the evidence of eye-witnesses the appellant had shot that arrow. There was no sudden quarrel as stated by the appellant. The evidence shows otherwise.
22. Considering the background facts @ page-SC3244 as noted above, appellant has to be convicted in terms of Section 304 Part I IPC and not in Section 302 IPC. The conviction is accordingly altered. Custodial sentence of 10 years would meet the ends of justice.
24. It has also been held by the Apex Court in Baqdi Ram v. State of M.P. as follows:
11. The High Court on a careful appreciation of the evidence on record has found the findings recorded by the trial Court unsustainable having regard to the evidence on record. The evidence on record clearly establishes that Mangilal, when he initially objected to the erection of the wall in front of his entrance, was not an aggressor. He merely objected to the construction of a wall blocking his passage. All members of the prosecution party including those who came subsequently were unarmed. The mere fact that they objected to the erection of the wall in front of their entrance did not pose any threat to the members of the defence party. There was really no reason for the members of the defence party to adopt an aggressive posture by assaulting Mangiram and his son Ramesh in the first instance, and thereafter assaulting Jagdish, deceased and others. It is noticeable that Mangiram and his son Ramesh were initially assaulted, and when they raised an alarm Jagdish, deceased, came running to the rescue of his father and brother. Admittedly he was unarmed. His rushing to the place of occurrence was not an act of aggression and it was only natural for him to come to the rescue of his father and brother who were being assaulted by the appellant and his family members. In such a situation there was really no justification for the appellant to assault Jagdish with a ‘gainti’ (pick-axe) and that too on the head of Jagdish causing such a serious injury. He must have assaulted Jagdish, deceased, with all his might having regard to he fact that the skull bone was fractured and extensive damage had been caused to the skull, as noticed by the doctor who performed the post-mortem examination.
1. Having appreciated the entire evidence on record we are satisfied that the High Court was right in holding that the appellant and other members of his family had no appreciation of danger to their person because members of the prosecution party were all unarmed. It has come in evidence, and the High Court has also recorded a finding that at some stage brick-bats were pelted from both sides by members of the families of Bagdi Ram and Maniglal which included some ladies. The injuries on the person of three of the accused are thus explained. Since both the parties indulged in brick-batting the High Court has given the benefit thereof to the defence and has acquitted four of the accused persons against whom there was no direct evidence of having participated in the assault. The High Court has analysed the evidence on record with a view to find out which of the members of the defence party actually assaulted the members of the prosecution party. So far as the appellant is concerned the evidence is clear and categoric that it was he who assaulted the deceased on his head with ‘gainti’ (pick-axe). The High Court, however, held, and in our view, rightly, that in the facts and circumstances of the case the appellant did not intend to cause the death of the deceased. There was an altercation followed by assault on PWs-1 and 4 and brick-batting from both sides. When tempers ran high, in the heat of passion, upon sudden quarrel, the appellant assaulted the deceased though unarmed, but without pre-meditation. He caused only one injury to the deceased by picking up the ‘gainti’ (pick-axe) lying there, and the fact that he did not repeat the blow is indicative of the fact that he did not intend to cause the death of the deceased. The High Court gave to the appellant the benefit of Exception 4 to Section 300 and found the appellant guilty of the offence under Section 304, Part I, IPC. We find no error with the finding recorded by the High Court. But in the facts and circumstances of the case we are of the view that the sentence of eight years is on the higher side. The ends of justice would be met if the sentence is reduced to three years rigorous imprisonment.
25. It has further been held by the Apex court in case reported in AIR 2004 SC 4496 Prakash Chandra v. State of H.P. as follows:
6. For bringing in operation of Exception 4 to Section 300, IPC it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage a id not having acted in a cruel or unusual manner.
7. The Fourth Exception of Section 300, IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, 6. For bringing in operation of Exception 4 to Section 300, IPC it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner.
7. The Fourth Exception of Section 300, IPC covers acts done in a sudden fight The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self control, in case of Exception 4, there is only that heat of passion which clouds men’s sober reasons and urges them to deeds which they would net otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way tier quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A ‘sudden fight’ implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral pro vocation, nor in such cases could the whole blame be placed on err side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which them parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death as caused (a) without premeditation, (b) in a sudden fight, (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the ‘fight’ occurring in Exception 4 to Section 300, IPC is not defined in the IPC. It takes two to make a fight Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression ‘undue advantage’ as used in the provision means ‘unfair advantage’. These aspects have been highlighted in Dhirajbhai Gorakhbhai Nayak v. State of Gujarat 2003 (5) Supreme 223. When the factual scenario is considered in the legal principles indicated above, the inevitable conclusion is that Exception 4 to Section 300, IPC is clearly applicable.
1. Additionally the shot was fired from a distance of 35 feet. Though the distance is always not determinative about the intention or knowledge of accused, the factual background has to be considered taking into account the nature of injuries sustained, the weapon used and such other relevant factors. As illuminatingly highlighted in Virsa Singh v. State of Punjab under clause Thirdly of Section 300, IPC culpable homicide is murder, if both the following conditions are satisfied i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the @page-SC4498 injury intended to be inflicted is sufficient in the ordinary, course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which in the ordinary course of nature, was sufficient to cause death viz. that the injury found to be present was the injury that was intended to be inflicted. For cases to fall within clause. Thirdly, it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. According to the rule laid down in Virsa Singh’s case (supra) even if the intention of the accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out the point The above aspects were highlighted in Abdul Waheed Khan v. State of A.P. Ruli Ram and Ors. v. State of Haryana . On that score also the proper conviction will be under Section 304, Parti, IPC and not Section 302, IPC as done by the trial Court and upheld by the High Court. The conviction is accordingly altered. Custodial sentence of ten years would meet the ends of justice.
26. It has also been held in Sukumar Rai v. State of West Bengal as follows:
13. From the above evidence it is evident that the deceased Prafulla died due to the wound in his abdomen which has 4 inches deep. In our opinion this shows the intention of the assailant to kill or to cause such, bodily injury as is likely to cause death. There is no reason to disbelieve the evidence of the prosecution witnesses that it was the appellant Sukumar who caused the injury on Prafulla, the deceased. The prosecution evidence of the eye-witnesses is corroborated by the medical evidence.
14. Learned Counsel for the appellant submitted that it was a case of self-defence because the appellant had purchased the land in question from the deceased who had entered into his land in spite of warning and as a result an altercation ensued. He contended that the deceased and his men assaulted the accused person and the injury on Prafulla was an accidental one in the scuffle which followed. We do not agree.
1. From the evidence it is clear that the deceased and his men were unarmed and there was no provocation on their part. It also seems that the deceased and the appellant are co-sharer in the land being plot No. 743. There is no evidence on record to show that the deceased and his men assaulted the appellant and his family members. Hence, in our opinion the conviction under Section 304 Part I read with Section 34 IPC was fully justified.
27. Looking to the above judgements by Apex court under the similar circumstances we are also of the view that a boy of 19 years of age without any criminal history all of a sudden by chance inflicted single blow in the heat of passion and anger and therefore is liable to be convicted Under Section 304 Part I IPC instead of 302 IPC and we therefore alter his conviction from 302 IPC to Section 304 part I IPC.
28. Coming to the sentence part of it we find that the incident had occurred in 1979 more than 26 years ago. At that time the appellant was 19 years of age and now he must be around 45 years of age and must be settled in life. By this time he must be having a family and children to foster therefore we consider it appropriate to sentence him for seven years R.I. with a fine of Rs. 70,000/- imposed on him out of which Rs. 50,000/- is directed to be given as compensation to the family members of the deceased. In our view the said sentence will be adequate punishment.
29. Resultantly this appeal is partly allowed. The conviction of the appellant Under Section 302 IPC and his sentence of life imprisonment is set aside instead of he is convicted Under Section 304 part I IPC and is sentenced to under go seven R.I. with a fine of Rs. 70,000/- imposed on him. Out of the said find Rs. 50,000/- shall be given as compensation to the family members of the deceased who is entitled to it by CJM, Budaun.
30. The appellant is said to be on bail. He is required to surrender his bail bonds and surety bonds forthwith. The C.J.M. Budaun is directed to take necessary steps for his arrest and after he is arrested or surrendered he shall be sent to Jail to serve out the sentence imposed by this judgment. Appellant is allowed three months time to deposit the amount of fine awarded by this judgment. As soon as the fine is deposited by him the OM Budaun will disburse Rs. 50,000 – as compensation to the near relative of deceased who is entitled to it within a week thereafter. After surrender of the appellant his bail and surety bonds shall be discharged.
30. Let a copy of this Judgment be certified to the lower court for it’s intimation.