JUDGMENT
G.K. Sharma, J.
1. This appeal is directed against the judgment dated 5th December, 1985 passed by the Addl. Sessions Judge, Baran in Sessions Case No. 134/83 by which, the learned Judge convicted the appellant Ram Kishan under Section 302 and sentenced him to undergo imprisonment for life and a fine Rs. 200/-, in default of payment of fine, to further undergo two months rigorous imprisonment. He also convicted the appellant Mishri Lal for the offence under Section 302 r/w Section 109 IPC and sentenced him to life imprisonment and a fine of Rs. 200/-, in default of payment of fine, to further undergo two months rigorous imprisonment.
2. The facts of this case briefly stated are that the Head Constable Kartar Singh recorded the Parcha Bayan of Mangi Lal s/o Nathu Lal at the Government Hospital, Chhabda. This statement was recorded in presence of the Medical Officer who made an endorsement on the Pareha Bawan that the injured was capable of giving statement. After recording the statement and before Mangilal could put his signature on it he expired. In this Parcha-bayan Mangilal stated that the incident took place at about 8 p.m. on 26-9-83 when he was sitting on the Doli outside his house. His wife with inside the house. He asked Ram Kishan not to harass him mother because he is the owner of the property and it is his sweet will to dispose it according to his will. Ram Kishan told as to how he will dispose of the properly and thereafter Ram Kishan inflicted knife blow on the left side near the axilla and then further inflicted two knife blows. After receiving injuries he cried and on hearing the cries Ram Chandra Kauli and Jagdish Kauli came and rescued him. He was brought in the hospital by these persons. On the basis of his parcha-bayan FIR was prepared and case under Section 302, IPC was registered.
3. After completing usual investigation the Police submitted challan against accused Ram Kishan under Section 302 and Mishri Lal under Section 302 r/w 109 IPC.
4. Dr. Mahendra Srivastava PW 7 conducted the post mortem on the dead body of Mangi Lal. According to his report, Mangi Lal had three stab wounds as mentioned in post mortem report Ex. P. 15. The doctor found that when Mangi Lal was admitted in the hospital he was having profuse bleeding and restlessness and was found to have peripheral circulatory failure. In his opinion the cause of death was haemorrhagic shock due to injuries to major vessels.
5. The learned trial Court framed charge against Ram Kishan under Section 302 IPC and against Mishri Lal ander Section 302 r/w Section 109 IPC. Both the accused persons pleaded not guilty and claimed trial.
6. The prosecution examined 8 witnesses. The accused persons denied the allagationss made by these witnesses & in their defence one witness was examined. The learned Sessions Judge after concluding trial and hearing both the parties found both the accused appellants guilty and sentenced each of them as mentioned above.
7. The learned counsel for the appellants argued that there is no case against the appellant Mishri Lal and he has been falsely implicated by the witnesses in the trial of this case. He pointed out that in the Parchabayan Ex. 14 Mangi lal (deceased) did not name Mishri Lal. He did not state that in the beginning he and Mishri Lal scuffled with each other where Ram Kishan was standing. He did not speak that Mishri Lal instigated Ram Kishan to inflict blows and kill him. When the witnesses were examined the case was developed and the name of the Mishri Lal was introduced by Pana Bai PW 3, who is the wife of deceased Mangi Lal. Therefore, at latter stage Mangi Lal was entangled in this case. The learned Public Prosecutor replied that witnesses have named Mishri Lal so it is incorrect to say that Mishri Lal was falsely implicated in this case.
8. We have perused the Parcha Bayan Ex. P. 14 and the statements of the material witnesses. Parcha-bayan Ex. P. 14 was recorded by Head Constable Kartar Singh who has been examined as PW 8 and he stated that he has correctly written this statement Dr. Mahendra Srivastava PW 7 made an endorsement on this Parcha-bayan Ex. P. 14 that the injured was capable of giving his statement which was recorded in his presence. So, it is clear that when this Parcha-bayan was recorded by Kartar Singh, Mangi Lal was in full senses and what ever he had stated was correctly recorded by Kartar Singh Head Constable. In this Parcha-bayan Mangi Lal has not stated that when this incident took place Mishri Lal was also present there. According to this Parcha-bayan the incident took place between himself and Ram Kishan and Mishari Lal was not at all present there. Had it been a fact that Mishri Lal was present there and he instigated Ram Kishan to kill Mangilal then injured Mangi Lal would have stated so in Parcha-bayan Ex. P. 14. Therefore, it is clear that Pana Bai PW 3 developed this story in her statement she entangled Mishri Lal. Prem Chacd PW 1 has not stated that Mishri Lal was also present there. He simply stated that Mangi Lal and Mishri Lal used to fight with each other and on the day of incident he heard the voice ‘Bachao Bachao’. He came there and saw Mangi Lal in pool of blood. He has not stated any word about Mishri Lal. Jagdish PW 2 & Pana Bai PW 3 have stated that Mishri Lal and Mangi Lal were fighting. Ram Kishan was also there. Then Mangi Lal cried Bachao and Ram Kishan inflicted the injury. After going through the statements and the Parcha-bayan, we are of the opinion that Mishri Lal has been falsely implicated by the witnesses and the learned trial Court has erred in not appreciating the evidence properly. No case is made out against Mishri Lal appellant. We do not agree with the finding of the learned of the trial Court with regard to Mishri Lal and he is not found guilty of the offence under Section 302/109 IPC.
9. About Ram Kishan appellant, the learned counsel Shri A.K. Gupta argued that case under Section 302, IPC is not made out. The incident took place at a sudden quarrel between Ram Kishan and Mangi Lal and without any intention of causingh death to Mangi Lal knife blow was inflicted by Ram Kishan and thus, a case under Section 304, Part-I, IPC is only made out. Mr. Gupta relied on the case decided by the Division Bench of this Court in which Hon’ble G.K. Sharma, J. was one of the member (1986) 4 Judicial Surveyor.
10. The learned Public Prosectuor in reply to this argument argued that three stab wounds were inflicted by Ram Kishan. The stab wound No 1 is below the left axilla which is 1-1/2″ x l/4″x 4-1/2″ deep. This injury No 1 in the opinion of the doctor is sufficient to cause death in the ordinary course of nature. So the intention of Ram Kishan was clear and he inflicted injuries intending to cause death. He inflicted three stab wounds. Therefore, Ram Kishan has been rightly convicted by the learned trial Court under Section 302 IPC.
11. We have considered the arguments advanced by both the learned counsel. A culpable homicide is murder if the act by which that death is caused or is done with the intention of causing such bodily injury as the offender knows to be likely to cause death and if the act is done with the intention of causing bodily injury and the bodily injury is intended to be inflicted is sufficient in the ordinary course of nature to cause death and lastly if while committing the act the offender knows that is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death. But there are certain exceptions to this proposition. If the act was 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 then this culapable homicide would not be murder as is clear from Exception 4. There is nothing on the record which indicates that Ram Kishan had premeditation to commit the murder. The allegation is that Mangilal was sitting on the Dolli out side his house when Ram Kishan came there and there was exchange of words between them. There was some scruffle and in this scruffle Ram Kishan inflicted knife blows. So, it is clear that Ram Kishan had no intention to cause death of Mangi Lal. It is clear that he had not inflicted those bodily injuries with the intention that those injuries would cause death. Incident took place in a sudden fight and in heat of passion a quarrel took place and Ram Kishan inflicted those injuries. So the case is fully covered under exception 4 of Section 300, IPC. We are of the opinion that accused-appellant Ram Kishan is guilty of offence which falls under Section 304 Part-I, IPC.
12. In view of our above discussion we set aside the conviction of Pam Kishan charged under Section 302, IPC but find him guilty of the offence under Section 304, Part-I, IPC.
13. As a result, the appeal of Mishri Lal is accepted and he is acquitted of the offence under Section 302 and 109 IPC. His bail bonds are cancelled and he need not surrender
14. The appeal of the appellant Ram Kishan is partly accepted. His conviction and sentence under Section 302 IPC are set aside. He is convicted under Section 304 IPC and sentenced to imprisonment for 10 years a fine of Rs. 100/-, in default of fine to further undergo one month’s S.I. Appellant Ram Kishan is in jail. He be detained in jail to undergo the sentence awarded to him as above.