JUDGMENT
1. The appellant on being tried for an offence of murder was found guilty and sentenced to imprisonment for life, which is being challenged in this appeal.
2. Bhola Ghasi, the deceased, is the son of PW-9, Subhadra Ghasin. PW-1, Chhotan Ghasi, is the brother of the deceased Bhola Ghasi. The case of the prosecution is that PW-2, Pawan Singh and PW-3, Birbal Ghasi, took a contract of construction work of one Sukhdeo Mahto. The appellant though wanted to be engaged in the said construction work, he was not taken. On 7.3.1993 at about 9.00 p.m. the deceased Bhola Ghasi, PW-2, Pawan Singh and PW-3, Birbal Ghasi, were near the incompleted house of Sukhdeo Mahto. They were playing 3humar. Koka Ghasi on reaching the place made some sarcastic remarks about the witnesses playing Jhumar. PW-3, Birbal Ghasi, asked him to go home, but they were abused. He was also assaulted by the deceased as well as by PWs-2 and 3. PWs-2 and 3 went away from the place. The deceased entered the house followed by the appellant, who in the meantime brought Ballam from his house, which was nearby and stabbed him. On receiving the stab injury, the deceased Bhola Ghasi fell down and died. Thereafter a complaint was given at the police station, on the basis of which investigation was taken.
3. The dead body was subjected to post mortem by Dr. Jogendra Nath, who was examined as PW-5. The doctor found the following injuries:
A. Abrasion: Six injuries of different dimension.
B. Stab wound: 2″ x 1 cm. x chest cavity over left chest part.
6c.m. inward to left nipple and 9 c.m. below clavicle 4 cm. Away from midline of chest. The weapon has entered into the chest cavity, cutting the 3rd and 4th rib partially; they entered into the inner boarder of left lung into pericardeal sack and apex of left heart. The wound on the heart was (2.5 cm. x 1 cm.) and came out of the heart muscle. There is blood and blood dots in the chest cavity and pericardial sock.
The injuries may be caused by Bhala.
C. Incised wound: 2 x 1 cm. soft tissue over left upper lip.
The doctor issued Ext. 1, the post mortem certificate, with his opinion that the deceased died on account of shock and haemorrhage, due to the stab wound.
4. After the completion of investigation, final report was filed and the appellant denied the incriminating circumstances, when they were put against him under Section 313 of the Code of Criminal Procedure.
5. The learned Counsel appearing for the appellant submits that even if the facts are taken to be true, the offence committed by the appellant will only attract Exception-4 of Section 300 of the Indian Penal Code and that no offence of murder is seen made out as, according to the prosecution, the occurrence took place during a quarrel and that the deceased was stabbed without any premeditation.
6. We have heard Mr. Alok Lal, learned A.P.P., appearing for the State, on the above contention.
7. The case of the prosecution is that the deceased suffered stab wound and died. The said fact stands proved through the evidence of PW-5, the doctor, who conducted autopsy.
8. The prosecution, in trial court, examined PW-1, Chhotan Ghasi and PW-4, Indra Ghasin, who is the daughter-in-law of PW-9, and PW-9, Subhadra Ghasin. PWs-1, 4 and 9, according to the prosecution, are witnesses to the occurrence. The evidence on record indicates that while the deceased, PWs 2 and 3(both of them turned hostile) were playing Jhumar, one Koka Ghasi made sarcastic remarks, as a result of which quarrel arose between the parties. At that time, the appellant, who was present and was armed with a Sabal, gave a blow to the deceased and later when the deceased entered the house, stabbed him with Ballam which he brought from his house, which is nearby. The evidence of the witnesses indicates that the occurrence took place while they were quarreling with each other on account of the sarcastic remarks made by Koka Ghasi, who was not examined by the prosecution as witness before the trial court. There is no material to show that the appellant went to the scene of occurrence with a pre-plan to murder the deceased, though, according to the prosecution, he had some grievance against the witnesses for not engaging him in the construction work. On the contrary, the evidence of the witness indicate that while the witnesses and the deceased were playing Jhumar, some sarcastic remarks were made by Koka Ghasi, who was not examined, leading to a quarrel and that during the quarrel, the appellant inflicted one stab injury on the deceased which unfortunately proved fatal. It is no doubt true that the appellant brought the Ballam from his house and stabbed, but it is to be remembered that the house of the appellant was near the scene of occurrence. The evidence, therefore, shows that the appellant stabbed the deceased during a quarrel without any premeditation. It cannot also be said that the appellant acted in unusual or cruel manner.
9. We, therefore, on the discussions made above, set aside the conviction of the appellant under Section 302 IPC and the consequence sentence imposed upon him. The appellant, instead, is found guilty under Section 304 para-1 of the Indian Penal Code, for which he is sentenced to seven years rigorous imprisonment. It is reported that the appellant is in jail. The period of sentence already undergone by him will be given set off.
10. With the aforesaid modification in the sentence only, the appeal is dismissed.