JUDGMENT
N.N. Mathur, J.
1. This appeal is directed against the judgment dated 26-8-1993 passed by the learned Sessions Judge, Balotra, convicting the first appellant Kapoora Ram of offence under Section 302 IPC and sentenced him to imprisonment for life and to pay a fine of Rs. 2000/- and in default of payment of fine to further undergo six months’ rigorous imprisonment. He has also been convicted of the offence under Sec. 307 IPC and sentenced to five years’ R.I. and to pay a fine of Rs. 1000/- and in default of payment of fine to further undergo three months’ R.I. He has further been convicted of the offence under Section 452 IPC and sentenced to two years’ R.I. and to pay a fine of Rs. 500/-and in default of payment of fine to further undergo two months’ R.I. Second appellant Smt. Pani has been convicted of the offence under Section 302 read with 114 IPC and sentenced to imprisonment for life and to pay a fine of Rs. 100/- and in default of payment of fine to further undergo one month’s simple imprisonment. She has also been convicted of the offence under Section 307 read with 114 IPC and sentenced to five years’ R.I. She has also been convicted of the offence under Section 452 IPC and sentenced to two years’ R.I. All the substantive sentences have been ordered to run concurrently.
2. Briefly stated the prosecution case is that P.W. 1 Smt. Sushila submitted a First Information Report at Police Station, Siwana, stating that on 26-2-1992 at about 9. A.M., while she along with her husband was sitting on the shop, their son Ghanshyam aged 18 years was cleaning the drainage. Hearing the cries of her son, she came out and found that Kapoora Ram was assaulting his son Ghanshyam by an iron rod. She along with her husband intervened to rescue their son but Kapoora Ram assaulted her husband also. At that time, Kapoora Ram’s wife came out of the house carrying a knife in hand and exhorted him (Kapoora Ram) to kill them so that dispute comes to an end for ever. On this, Kapoora inflicted a knife blow on the left side of the chest of Ghanshyam on account of which he fell down. He was lifted and brought inside the shop. At that time, Kapoora and his wife again assaulted her husband and caused injuries. Seeing Kapoora Ram entering into the quarrel, Shambhu Singh and Hukma Ram arrived and intervened. It was also stated that Kapoora, his wife and his sons after leaving the shop, started pelting stones on the complainant party. 8 to 10 persons assembled there and witnessed the incident. As the condition of her husband and son was serious, the compounder was called from the hospital. The compounder, in view of their serious condition, advised them to take both the injured to Balotra or Siwana. On the way, Ghanshyam breathed his last. On this information, police registered a case for the offences under Sections 302, 307 and 452 IPC and proceeded with investigation. After usual investigation, police laid chargesheet against both the appellants for the offences noticed above.
3. The appellants denied the charges and claimed trial. The prosecution in support of the case examined nineteen witnesses. In statements under Section 313 Cr. P.C. both the appellants denied the correctness of the charges appearing against them. Kapoora Ram stated that he has been falsely implicated in 2-3 cases on earlier occasions as well. He was also threatened in the presence of the Sarpanch etc. that he will be implicated in false case. The case was decided in his favour in the month of December, 1991 and the instant quarrel took place in the year 1992. He also stated that 6 to 7 persons attacked on him by lathis. Bhanwarlal inflicted injuries by “Sariya” on account of which he became unconscious. Thereafter, he was taken inside the shop and the shutter was put down and they tried to tie him by ropes. Bhanwarlal tried to stab knife but as he fell down, the blow struck to Ghanshyam, who was standing in the front. Thereafter, Bhanwarlal put the dragger and took away Ghanshyam. Thereafter, Sushila caused injuries to him by dragger. She tried to cause injuries to him but they were sustained by Bhanwarlal. The defence in support of the case examined four witnesses. The first appellant Kapoora Ram appeared in the witness box as D.W. 4. Analysing the evidence, the learned Sessions Judge found the prosecution case established and, accordingly, convicted and sentenced them as noticed above.
4. Assailing the conviction, it is contended by Mr. Sandeep Mehta learned counsel for the appellants that though the prosecution has examined four eye-witnesses viz; P.W. 1 Sushila, PW. 2 Bhanwarlal, P.W. 5 Hukma Ram and P.W. 6 Shambhu Singh but it is admited by the prosecution witnesses themselves that P.W. 5 Hukma Ram and P.W. 6 Shambhu Singh had arrived on the spot after the incident. As regards P.W. 1 Sushila and P.W. 2 Bhanwarlal, it is submitted that a careful scrutiny of their evidence will show that they are not reliable witnesses. It is also submitted that the injuries on the person of first appellant Kapoora have not been explained, as such, the prosecution is guilty of suppressing the genesis and origin of the incident. It is submitted in alternate that the incident took place on spur of the moment and the appellant has caused only single injury and, as such, it cannot be said that he had an intention to commit the murder of deceased Ghanshyam. At the most, he can be clothed with the knowledge that injury caused by him, may cause death in the ordinary course of nature. Thus, according to learned counsel, it is a case of culpable homicide not amounting to murder, punishable under Section 304 part II IPC. As regards the second appellant, it is submitted that part of exhortation attributed to her on face, is false and fabricated. She has been falsely implicated in the case. On the other hand, learned Public Prosecutor ha supported the judgment of the trial Court.
5. We have scanned, scrutinised and evaluated the evidence on record and considered the rival contentions.
6. P.W. 1 Mst. Sushila has almost reiterated the version given in the F.I.R. She has admitted in the cross examination that Shambhu Singh and Hukma Ram arrived after the incident. She also admitted that when she came out of the house hearing cries of her son, she found that her deceased son and first appellant Kapoora Ram were grappling. She also stated that Kapoora gave a blow on the head of his son by an iron rod on account of which he fell down. While she along with her husband intervened, the second appellant Smt. Pani arrived on the spot armed with a dragger and passed-on the same to Kapoora exhorting him to kill the deceased. She also admitted that till the dragger was stabbed, nobody had arrived. She also admitted that Kapoora was carrying a dragger in his left hand. She also admitted that there was no blood outside the house where the quarrel had taken place. The blood was inside the house.
7. P.W. 2 Bhanwarlal has also deposed almost in the line of P.W. 1 Sushila. He has denied the suggestion that he wanted to kill Kapoora by dragger but incidentally struck to deceased Ghanshyam. He admitted that he caused injuries to Kapoora. He stated that he caused only one injury. He also stated that his wife did not cause any injury to Kapoora. He denied the suggestion that 5 to 6 injuries were caused to Kapoora. Noth-ing substantial has been elicited in the cross-examination to discredit the testimony of this witness.
8. P.W. 12 Dr. Suresh Somani has stated that he conducted the post-mortem of deceased Ghanshyam and found the following injuries on his person :
1. A big elipticle incised wound, over the back body at the level of (y-8) ribs 2-C space placed obliquely 21/4″ lateral to left mid axillary line size 21/4″ x 1/2 x 5″, Depth measure approximately by inserting scale;
2. Contusion round 3″ x 2″ over the injury No. 2; and
3. Contusion on Rt. foot dorsum 11/2″ x 1/2″ oval bluish colour.
In his opinion, the cause of death was shock resulting from haemorrhage due to injury lying on lfef back of left lungs 11/2″ x 1″. He stated that injury was ante-mortem in nature. He has proved that post-mortem report Ex. P. 9.
On 26-2-92, he examined P.W. 1 Sushila and found the following injuries on her person :
1. A contusion oval shaped on the left side of wrist on post medial side size 2″ x 1/2″.
He has proved the injury report Ex. P. 10. In his opinion, the injury was simple caused by a blunt object.
He also examined P.W. 2 Bhanwarlal and found the following injuries on his person :
1. Incised wound on the back on the left side at the level of 10th rib size 11/4″ x 1/2″ x 1/4″ muscle deep with haematoma 11/2″ x 1/4″ on lateral side;
2. Contusion on the injury No. 1 size 2″ x 11/2″;
3. Contusion with abrasion on left side of frontal region irregular 11/2″ x 3/4″;
4. A incised wound on middle finger on Rt. side middle phalanx size 1/2″ x 1/4″ x 1/4″;
5. Contusion on injury No. 4 size 3/4″ x 1/2″;
6. C/o Bodyache.
He has proved injury report Ex. P. 2. In his opinion, all the injuries were simple, except injuries No. 1 and 4. All the injuries were caused by blunt object.
He also examined the first appellant Kapoora and found the following injuries on his person:
1. Lacerated wound iregular size 1/2″ x 1/4″ situated on the forehead at middle of scalp round irregular;
2. Contusion on the forehead on injury No. 1 size 1″ x 1″;
3. A contusion on left ant. post surface of left shoulder round obliquely 11/2″ x 3/4″ medially towards axilla.;
4. Abrasion on the Rt. side of neck;
5. Contusion on the Rt. thumb region at route 11/2″ x 1/2″.
He has proved the injury report Ex. P. 11. In his opinion, all the injuries were simple caused by blunt object.
On the same day, he also examined Mst. Pani (second appellant) and found the following injury on her person ;
1. A linear scratch on the Rt. side of forearm 4″ x 1/10″.
He has proved injury report Ex. P. 12. The injury was simple caused by blunt object. Thus, the statement of P.W. 1 Sushila, so far as causing injuries to deceased Ghanshyam is concerned, finds corroboration from the F.I.R., the statement of P.W. 2 Bhanwarlal and the medical evidence. The statement of P.W. 2 Bhanwarlal also finds corroboration from the medical evidence. Thus, it is established beyond doubt that first appellant Kapoora Ram stabbed deceased Ghanshyam by knife.
9. Turning to the nature of offence, it has been admitted by P.W. 1 Sushila that the deceased Ghanshyam and appellant Kapoora were grappling. The appellant was armed with an iron rod. The post-mortem report Ex. P. 9 shows that there were only three contusions on non vital parts of the body in addition to an incised wound caused by a sharp edged weapon. Thus, till the knife came in the hand of the first appellant, he only caused two contusions. This clearly shows that the incident took place out of pre-meditation. It was a sudden quarrel. According to the prosecution, knife is alleged to have been passed-on to the first appellant by his wife Smt. Pani. We shall deal with the correctness of this part of the prosecution case, while dealing-with the case of Mst. Pani. It appears that on a petty matter, a sudden quarrel flared up. In these circumstances, it is clearly a case of culpable homicide not amounting to murder punishable under Section 304 part IIPC and not a murder punishable under Section 302 IPC . Both the eye witnesses viz P.W. 1 Sushila and P.W. 2 Bhanwarlal have categorically stated that a knife injury was caused to him by the first appellant. Their statement is corroborated by the medical evidence. The injury report Ex. P. 2 clearly shows that injuries Nos. 1 and 4 were grievous caused by a sharp edged weapon. In view of this, the fitst appellant has been rightly convicted under Section 307 IPC. There is also the evidence that the first appellant had entered in the house and as such, he has been rightly convicted under Section 452 IPC.
10. P.W. 1 Sushila and P.W. 2 Bhanwarlal have stated that a quarrel took place between deceased Ghanshyam and first appellant Kapoora. At that time, second appellant Smt. Pani arrived and passed-on a knife to her husband and asked him to kill the deceased so that the dispute may come to an end for ever. This aspect of the case does not inspire confidence. It clearly appears that both the witnesses have exaggerated the prosecution case. When the first appellant was already armed with an iron rod, there was no occasion for the second appellant to carry a knife and exhort her husband to kill the deceased. The second appellant is entitled to benefit of doubt. In our view, her conviction Under Section 302/114 IPC is not sustainable.
11. In view of the a fore said the appeal is partly allowed. The conviction of the second appellant Smt. Pani for the offence under Section 302/114 IPC is set aside and she is acquitted of the said offence. She is also acquitted of the offence under Sections 307 and 452 IPC, She is on bail. Her bail bonds| stand discharged. The conviction of the first appellant Kapoora Ram for the offence under Section 302 IPC is converted into Section 304 part-I IPC. He is in jail since February, 1992, as such, the sentence is reduced to the period already undergone. The conviction and sentence awarded to him under Sections 307 and 452 IPC is maintained. The sentence awarded on both the counts, has already been suffered by appellant Kapoora Ram, Appellant Kapoora Ram shall be set at liberty forthwith, if he is not required in any other case.