JUDGMENT
Kalyan Jyoti Sengupta, J.
1. In this appeal we find the appellant were arraingned and subsequently convicted for the charges under Sections 302/34 of the Indian Penal Code. The learned Sessions Judge awarded punishment of life imprisonment (rigorous) and also a fine of Rs. 5,000/- each, in default to suffer rigorous imprisonment for six months more.
2. The prosecution story of the case, in short, is as follows :-
The victim one Zulfikar All along with one Md. Hussain, being the defacto complainant, P.W.I; one Govinda Raju, being P.W.2 and one Abdul Majid, being P.W.3, on the fateful day, i.e., 25th February, 19.8 at around 9.30 p.m. were all gossiping sitting in front of the shop, namely, Santosh Jewellery at Phoenix Bay, Port Blair. While doing so the victim intended to smoke cigarette, so all the four as above went around 11.30 p.m. to the shop of Azad All, appellant No. 1, situated near the house of one Smt. Fathima. Obviouslyu the shop was then closed. The defacto complainant knocked at the door of the shop and called Sazad, being the appellant No. 2 herein who used to stay inside there, to open the shop. None responded to the call of defacto complainant though lights were on inside the shop room. All of them were standing and taking in front of the house of one Fathima at that point of time. After 15 minutes the accused Sazad came out from the rear side of the shop room and on his asking victim told that he had knocked the door of the shop at the late hours of the night for he needed a cigarette. Thus the incident started with exchange of words followed by altercation between these two. Meanwhile, another accusd Azad came out and Joined altercation and started abusing Zulfikar All for knocking the door of the shop at the late hours of the night, this subsequently turned into scuffle between them. Md. Hussain, P.W.I, Abdul Majid, P.W.3 and Govinda Raju, P.W.2 tried to pacify and separate them. Both the accused persons being infuriated had told that they would do away with Zulfikar (victim) and Sazad then went inside the shop and brought a sword like weapon called ‘Dah’. Appellant No. 1 then asked him to finish off victim and Sazad instantly struck one blow on the left backside of the neck and two blows on the right and left hands of the deceased with the said weapon. The victim then fell down on the ground and started bleeding profusely. Even thereafter Sazad tried to strike again with the Dah, however, he was somehow prevented by the aforesaid P.W.I, P.W.2 and P.W.3. Thereafter Sazad went back to the shop with Dah.
3. However it appears from the statement under Section 164 of the Criminal Procedure Code made by P.W. 1, P.W.2 and P.W.3 that the victim after having sustained injury as above tried to reach his house which was not far from the place of occurrence. However on his way he fell down near his house on the gravels stacked in front of his house. There the victim was heard saying to his mother that both the accused together assaulted him and he would not survive and soon thereafter he became unconscious. His maternal uncle brought a towel and drapped around injured neck to stop bleeding. Thereafter he was taken to G. B. Pant Hospital at Port Blair.
4. The Investigating Officer immediately on receipt of F.I.R. at 3 a.m. on 26th February, 19.8 started investigation. He collected blood stained asphalt at the place of occurrence, seized the incriminating weapon with blood stain, one pair of chappal with blood stain, blood stained shirt and lungi of Sazad. The blood found on materials were chemically examined and report was submitted. Post Mortem Report was also prepared and submitted. There were as may as 22 witnesses apart from the material exhibits and documentary evidence to establish charge. There was no witness on behalf of the defence. However, it appears from the trend of the cross-examination as well as the statements made under Section 313 of the Code of Criminal Procedure by accused persons, that the plea of defence was that victim, P.W.I, P.W.2 and P.W.3, were all highly intoxicated on the fateful day and they caused unwarranted disturbances knocking at the door of the shop in the late hours of the night. They displaced empty soft drink bottles kept in front of the shop. Both the accused persons protested against such unruly behaviour particularly in the midnight that resulted in altercation. They were assaulted by the above person with fists and blows, as such they had sustained injuries. According to their version, P.W. 1 actually assaulted them with the said Dah which was brought out from the scooter of the P.W.2. While making unsuccessful bid to hit the appellant P.W. 1 inflicted injuries by mistake in the darkness on the neck and hands of the deceased.
5. The learned Session Judge, however, upon considering all aspects dlsbelived the defence plea as nothing had been proved by them. Moreover, the story of Inflicting injury by P.W. 1 on the body of the deceased victim was not corroborated either by the circumstance or by any material evidence. Trial Court upon analysis of the entire evidence came to finding that the appellant No. 2 with the aid and assistance of the appellant No. 1 in furtherance of their common intention to kill him had inflicted fatal injury on the neck of the deceased. Their motive would be apparent from the fact that there was animosity between the family of the victim and the appellants in connection with sale of a plot of land which originally belonged to their uncle Imtiaz All. The accused persons thus had sufficient reason to cause injuries on the person of Zulflkar Ali. It was further found that the accused, Sazad, while giving blow of Dah on the neck of Zulfikar had requisite knowledge and intention that such injury would cause death of the deceased in ordinary course of nature. The two other injuries which Zulfikar received on his both arms might have been received by him while trying to block repeated blows of ‘Dah’ by raising hands and the intention of Sazad Ali to kill Zulfikar is very much evident as he struck blows at least thrice on victim with the said ‘Dah’ which was a deadly sharp weapon to cause fatal injury on the victim. The accused No. 2 did not give any blow below the waist of the victim so that it can be stated that he gave those blows on Zulfikar as self defence.
6. Therefore, the learned trial Judge convicted them under Section 302 read with Section 34 of the Indian Penal Code and did not consider as to whether the case could be fallen under Section 304 of the Indian Penal Code, even though he noted the fact and evidence in support, thereof, that the incident did not happen suddenly, but there was altercation followed by scuffle when the accused persons received some fist blows on their face, accused Sazad Ali got infuriated and rushed to the back side of their shop to bring sword like ‘Dah’.
7. The learned lawyer for the appellants contends while assailing the judgment and sentence that proecution has not been able to prove the case beyond reasonable doubt. The learned trial Judge wrongly disbelieved the fact that the defacto complaint to conceal his own crime has falsely implicated the appellants. Injuries on the person of the victim were inflicted accidentally by the defacto complainant who indeed wanted to inflict injury on the persons of both the appellants with the ‘Dah’ that was kept in scooter and subsequently it was brought out for this purpose. In the seizure memo the I.O. falsely recorded the ‘Dah’ was recovered from the appellant No. 2 in collusion with defacto complainant. The seizure memo is unbelievable, as it has been signed by the defacto complaint. In support of his submission he relied on the decisions of Supreme Court and .
8. In his alternative argument he submits, even if it is held that the appellants had caused injury which was proved to be fatal later on, then this was done being provoked by the assault and criminal intimidation of the victim and his associates in order to save their lives and property. Those persons were unruly elements and hooligans in the local area and they had become undaunted beyond permissible limit because of their easy access to and close connection with the police officials one of whom happens to be relation of the P.W. 1. There were enough provocation in the midnight caused by four people who conjointly assaulted them by fist and blows causing injuries and in this situation therefore, the appellants had no other option but to inflict injury as self defence however without any intention to kill him. Therefore, this case very much fall within the exception of Section 300 of the Indian Penal Code so the same has to be dealt with under Part II of Section 304, I.P.C.
9. The learned Public Prosecutor, Mr. Saroop, contends that we should not interfere with the Judgment and sentence of the learned trial Judge, the case of prosecution has been proved by the three eye-witnesses. They and each of them saw Sazad assaulting and inflicting blows thrice with the ‘Dah’ by the appellant No. 2 at the instigation of the appellant No. 1. Apart from this there was oral dying declaration of the victim given to his mother (P.W. 10) and also P.W.5. The incriminating weapon ‘Dah’ was recovered and seized from the custody of the appellant No. 2 and the same was found to be blood stained. The wearing apparels of the appellant’s and those of victim were seized and recovered by the Investigating Officer and the same were found to be blood stained. The towel which was drapped around on the neck of the victim to stop bleeding and a pair of hawai chappal which was recovered from the place of occurrence, were found to be with blood stained. The blood stained asphalt and controlling asphalt were also recovered. All these blood were chemically examined and tested and the same was found to be of human blood. The blood group of the offending weapon and that of found on wearing apparels of the accused and towel recovered from the neck of the victim were the same group of the blood. Three eyewitnesses who withstood cross-examination successfully stated that the appellant No. 2 inflicted three injuries on the back of the neck and the hands respectively of the victim. The injury on the neck was found to be fatal and this has also been stated by the Doctor P.W. 12 who examined first at the time of admission and also the Doctor, P.W. 13 who conducted post motem.
10. The learned trial Judge examining all evidence and materials found that motive and intention was to kill the victim, so in this case the conviction and sentence is justified under the law.
11. We have heard the learned counsels for the parties and we have carefully examined the materials placed before us. After giving due consideration of the same it appears to us that initially the victim sustained grievous injury and then he succumbed to the same ultimatel. Following are the questions which are required to be considered for disposal of the appeal.
1. Are the accused persons responsible for causing death of Zulfikar Ali?
2. If so whether the case is of simple homicide or culpable homicide.
3. If it is culpable homicide whether the same is amounting to murder or not.
4. If not, whether the accused persons are guilty of committing offence under Section 304 of the Indian Penal Code.
12. On the date of occurrence we find from the testimony of P.W. 12, Dr. N. Thulasidharan and P.W.I3 that the victim sustained grievious injury on the neck which was sufficient to cause death in normal course, so a case was registered initially under Section 307/34 of the Indian Penal Code. Ultimately, however, it has been converted to be under Section 302 read with Section 34 of the Indian Penal Code.
13. In order to answer question No. l as formulated above, we have examined findings and conclusion of the learned trial Judge on the given materials and we have no hesitation to uphold his findings that accused persons were responsible for causing death of the victim Zulfikar Ali. The story put forward by the defence that in the darkness Zulfikar Ali was really hit with fatal injuries by P.W. 1 mistakenly while missing his target to Sazad Ali, appellant No. 2 herein, with the ‘Dah’ is totally unacceptable to us and has rightly been rejected by the learned trial Judge. Ours conclusion in this regard will appear from the findings as under.
14. Three eye-witnesses, P.W.I, P.W.2, P.W.3, have categorically stated in their evidence that they saw Sazad Ali inflicting injuries with the ‘Dah’ thrice. In the cross-examination their testimony to this extent stand remain unshaken. P.W. 10 (mother of the victim), P.W.5, P.W.7, P.W.8 have stated in their evidences that the victim made dying declaration that the appellant Nos. 2 and 1 had assaulted and injured and he would not survive. The serological test of the blood found in the wearing apparels of the two accused persons and the victim and the blood found on the road and that of found on the towel which was put around in the neck of the deceased and the weapon reveal that all these blood fall withih same group A and human blood. Apart from these blood there is no evidence to show that blood of any other person was found or was produced. Therefore we conclude that the blood was to be of victim only. The ‘Dah’ (incriminating weapon) was recovered from Sazad and in fact it was voluntarily produced by him before the Investigating Officer (P.W.20) and the said ‘Dah’ was found to be blood stained. The defence has not explained as to how the wearing apparels of the accused were got blood stained. The defence has not explained either as to why the incriminating weapon came in their possession which, if we go by the version of the defence that the same was brought out by the P.W. 1 from his scooter, should not have been in their possession or produced by the appellants. It, therefore, necessarily follows that the weapon could be produced by one of the accused persons because the said ‘Dah’ belonged to the accused persons and the same was not brought by P.Ws. 1,2,3 and Zulflkar Ali. Moreover, the testimony of the three eyewitnesses are consistently the same, stating that the ‘Dah’ was brought by Sazad Ali from the backside of the shop room. Under such circumstances and upon careful analsis of the evidence we hold that Sazad Ali inflicted three injuries with the instigation of his elder brother and in furtherence of their common intention, one of them later proved to be fatal to the said victim which however was ultimately proved to be cause of death. So the authorities, viz. and relied on by the learned lawyer for the appellant are of no assistance factually or legally.
15. So far the question No. 2 is concerned, this is to be ascertained from the circumstances and act and conduct of the appellants. The intention of causing such bodily injury as likely to cause death of a person will appear from the manner in which he had acted for causing injury and no direct evidence can be found in this case as towhat was the intention of the assailants. Where bodily injury sufficient to cause death is actually caused, it is immaterial to go into the question as to whether the accused had intention of causing death or of causing such bodily injury as is likely to cause death. In otherwords, if nature of injury is found to be sufficient to cause death, intention or knowledge of the offenders as mentioned Section 299 of I.P.C. is to be inferred from this act itself. In the case of Sital Singh v. State of Punjab , it has been held amongst others that it is permissible inference that the appellants at least could be imputed with knowledge that he was likely to cause an injury which was likely to cause death. In this case the Doctors’ evidence (P.W. 12 and P.W. 13) prove that the injury on the neck was found to be fatal one and it was the cause of death. In their evidence the Doctors, P.W. 12 and P.W. 13, have said that the injury on the neck was sufficient to cause death of a human being in ordinary course of nature. The extent of injury on the left side of the neck was 20 cm. in length extending from the below left angle of mandible to the occipital protuberance obliquely upwards and posteriorly. So when it was found from the evidence that one injury is sufficient to cause death, his knowledge, as is likely by such act to cause death is established. Under such circumstances we are of the view that the accused persons in furtherance of their common intention have committed culpable homicide.
16. The next question being the third one as to whether this culpable homicide amounts to murder so as to record the conviction under Section 302/34 of the Indian Penal Code. In other words, whether the accused persons are entitled to get advantage of any of the exceptions as mentioned in Section 300 of the Indian Penal Code or not. Therefore, we need to re-produce the Exceptions as mentioned in Section 300 of the Indian Penal Code.
Exception 1.- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, cause the death of the person who gave the provocation or cause the death of any other person by mistake or accident.
Exception 2.- Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence.
Exception 3.- Culpable homicide is not murder, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
Exception 4.- Culpable homicide is not murder if it is committed without premeditation in a sudden fight, in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner.
Exception 5.- Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.
17. Having regard to the facts and circumstances of the case and materials, we are of the view that the case of the appellants does not come within the purview of Exception 1 of the aforesaid Section 300 by any stretch of imagination. No case has been made out putting forward plea of private defence so as to bring the case within the Exception 2 of the said Section, nor does it fall within Exception 3. However, we find from the evidence adduced by the prosecution as well as the documentary ones the following features. The incident took place near the betel shop of the appellant No. 1 admittedly. None of the appellants had gone to attack the victm at any other place. The eye-witnesses Nos. 1, 2 and 3 along with the victim went to the betel shop of the appellant No. 1 at about midnight though it was found to be closed, in order to buy a cigarette. In the midnight in ordinary circumstances a shop-keeper is not expected to be found to sell or supply cigarette to any customer. The aforesaid four persons after having found the shop closed in ordinary circumstances should have left the place. However, they did not do, rather they stayed there 15 minutes. No explanation has been given by the prosecution as to why they remained 15 minutes there and this gives rise suspicion in the mind of this Court as to the version of the prosecution to bring the case within the Section 302 of the Indian Penal Code. Admittedly, there were altercation amongst them, the victim on the one hand and the appellants on the other hand. From the evidence of P.W. 1, P.W.2 and P.W.3 there were scuffle amongst these persons. The appellant Nos, 1 and 2 sustained injury on their noses and forehead and this is proved by Medical examination report of P.W, 12, Excepting these group no third party was involved. The doctor witness opined that these injuries can be Inflicted by blunt weapon or by fist and blows. It is unnatural nor there is evidence that the appellants themselves have inflicted injuries. Prosecution has not explained as to how these accused persons sustained injuries. Therefore, we have no hesitation to hold that the victim and the eye-witnesses, P.Ws. 1, 2 and 3 either jointly or sigularly must have inflicted injuries on the body of the accused appellants. We, therefore, irresistably infer that there were instigation and provocation from the side of the victim as well as P.W. 1, P.W.2 and P.W,3. They were four in number and in the midnight four persons came Jointly to start altercation with the two persons. So the provocation was there in the heat of passion upon the sudden quarrel. In our considered view, this heat of passion and an altercation must have prompted, the appellant No. 2 to bring this offending material and to inflict the fatal injury on the neck. It was not the intention of the appellant No. 2 to kill him at that time. Had it been so the appellant No. 2 would have further attempted to make sure that the victim is finished immediately as it appears from evidence that the appellant No. 2 subsequently followed the victim and had ample chance to finish him subsequently. It was not done so. Therefore, this subsequent conduct of the appellant No. 2 does not endorse the theory of his intention to kill him. However, we are of the view that this appellant No. 2 should not have used this weapon. The learned trial Judge did not consider the implication of admitted fact of altercation followed by scuffle and assault by fist and blows causing injuries on the body of the appellants, that preceded the attack and blows by the appellant No. 2. We have no doubt in our mind had there been no altercation, nor scuffle, nor assault by fist and blows by the P.W.I, P.W.2, P.W.3 and the victim, the appellant No. 2 would not have committed culpable homicide. We are of further view that the offence has been committed without premeditation upon sudden fight and/or in the heat of passion upon a sudden quarrel and without the appellants having taken undue advantages or acted in a cruel or unusual manner. We hold that the prosecution has been able to establish case beyond doubt, of culpable homicide not amounting to murder as it squarely comes within Exception 4 of Section 300 of Indian Penal Code. Under such circumstances we are of the view that conviction under Section 302 was not justified and this case should have been converted under Section 304, Part I read with Section 34 of the Indian Penal Code. We hold that the appellants each of them have committed culpable homicide not amounting to murder.
18. Accordingly, we convert conviction under Section 304, Part I of the Indian Penal Code and we therefore sentence appellants each of them shall suffer rigorous Imprisonment for a period of ten years instead of life imprisonment, however, the quantum of fine shall remain unaltered. The conviction and sentence are modified accordingly. The appellants each of them if they are enlarged on bail shall surrender before the learned C.J.M. who shall remit them to jail to serve terms as above. Let the records of the learned Court below be sent down forthwith.
The appeal is allowed to that extent.
Sujit Barman Roy, J.
19. I agree.