JUDGMENT
K.C. Sharma, J.
1. This appeal is directed against the judgment dated August 24, 1995 passed by the Additional Sessions Judge No. 1, Jaipur City, Jaipur, thereby convicting the accused appellant Under Section 302 IPC and sentencing him to life imprisonment with a fine of Rs. 1000/- in default thereof to further undergo six months’ simple imprisonment.
2. The Prosecution story, in nut shell is that on 11.7.1994 at 1.10 AM PW-2 Farooq elder brother of deceased Arif submitted a written report, Ex.P. 6 before PW-10 Kishan Lal Sub-Inspector Police Station Ramganj Jaipur alleging therein that during the night intervening 10/11.7.1994 at about 11-11.15, while he along with Bundu and Chand were sitting infront Dargah Adamshah near Julahon-ki-Masjid and were talking together on hearing noise all of them rushed to the place and found that in A-von Milk Store accused Sajid had caught the neck of Mohd. Arif. He asked as to what has happened, in the meantime Sajid took out a knife from the right pocket of his trouser and stabbed below the left ribs by saying that “AAJ TERA KAM TAMAM KAR DETA HOON”. As a result of stabbing, his intestines came out. He fell down and became unconscious. At that time, Sahid R/o Oonth-wala-Mohalla was also with accused Sajid Jalal and Abdul Rashid were also present at the place of occurrence. The accused ran away inflicting knife blow. Thereafter, he alongwith Haji Jahir Ahmed took the injured to S. M.S. Hospital, Jaipur, where the doctors after examining the injured, declared him dead.
3. On the basis of the above written report, Ex.P-6, Police registered a case vide FIR No. 234/94, Ex.P. 7 for offence Under Section 302 IPC and proceeded to investigate the case, PW-10 Kishan Lal prepared the inquest report, Ex.P. 2 and seized T-shirt, Baniyan and belt of the deceased having cut marks and blood stains vide seizure memo Ex.P. 3. He inspected the site and prepared site plan Ex.P. 5. He arrested accused Mohd. Sajid on 11.7.1994 accused Mohd. Sahid on 12.7.1994 vide Ex.P. 9 and Ex.P. 15 respectively. Accused Mohd. Sajid gave information Ex.P. 16 Under Section 27 of the Indian Evidence Act on 13.7.1994 about recovery of knife and pursuant to his information, a knife was recovered from his house vide Ex.P. 4. Post mortem on the dead body of deceased Arif was conducted by PW-8 Dr. Sheetal Jain the report of which is Ex.P. 13. On post mortem the doctor found following injury on the person of deceased.
Incised stab wound of size 3 cm x 1cm x abdomen cavity deep placed over left side lower abdomen, 8 cm lateral to the umbilicus and 6-1/2 cm over the outer superior iliac spine. Margins are clear cut regular and well defined. On exploration the wound is going downwards redially cutting the underneath muscles cleanly after this the loops of intestine at one place found cut through and through. On further exploration, the wound track further goes downwards and towards right side of abdomen. On it side it cutted the internal iliac artery just 1cm below its origin from the right common iliac artery surrounding tissue having tick haeatoma abdominal cavity is full of clotted a fluid blood. The wound is obliquely placed. Loops of intestines are coming out from the wound.
Dr. Jain has opined that duration of above injury is within 24 hours prior to post mortem examination. He further opined that the cause of death is Haemorahagic shock as a result of antimortem injury to right internal iliac artery and sufficient to cause death in ordinary course of nature.
4. After completion of investigation the police submitted a charge sheet against accused Mohd. Sajid @ Sajid and Mohd. Sahid Under Section 302, 302/34 IPC and Section 4/25 of the Arms Act in the court of learned Additional Chief Judicial Magistrate, No. 1, Jaipur City, Jaipur, who committed the case to the court of Sessions.
5. The case came to be tried by the Additional Sessions Judge No. 1, Jaipur City, Jaipur. After hearing Counsel for the accused appellants, the learned trial court framed charges Under Section 302 IPC and Section 4/25 Arms Act against accused Sajid and Under Section 302/34 against accused Sahid. The charges were read over and explained to the accused to which they pleaded not guilty and claimed to be tried. During trial the prosecution examined as many as 10 witnesses and exhibited some documents. The accused were then examined Under Section 313 Cr.P.C. The accused also examined in their defence DW-1 Abdul Gaffar and DW-2 Sabbir Khan.
6. After completion of trial, hearing arguments of both the sides and perusal of evidence and material on record, convicted and sentenced accused appellant Sajid as aforesaid. Hence the present appeal by accused appellant.
7. We have heard learned Counsel for the appellant and the learned Public Prosecutor and gone through the judgment under challenge and the evidence on record.
8. In assailing the conviction, the main thrust of the arguments of the learned Counsel for accused appellant is as to what offence is made out against the accused. According to him, there was no enimity between the deceased and the accused appellant nor it was the case of the prosecution that there existed enimity between the two. The prosecution has failed to establish the cause giving rise to the commission of crime by the appellant. He submitted that PW-2 Farooq, PW-4 Jalalludin and PW-5 Abdul Rashid reached at the place of occurrence on hearing some noise, which means that some hot words were being exchanged between the deceased and the accused appellant as a result of which heat was generated and in that heat of passion and provocation, the accused appellant took out knife inflicted single blow and then ran away. In this back-ground, the learned Counsel submitted that the appellant cannot be attributed with the intension of causing death or causing such bodily injury which is sufficient in the ordinary course of nature to cause death or with the knowledge that the act is so imminently dangerous that it must in all probabilities cause death. In support of his arguments, learned Counsel has placed reliance on Ramesh Kumar @ Ramesh Chandra v. State of Rajasthan (Cr. L.R. (Raj.) 1999 Page 39) and K. Ramkrishnan Unnithan v. State of Kerla 1999 Cr. L.R. (SC) 206.
9. On the other hand, learned Public Prosecutor has supported the judgment of the trial court. He has submitted that in the facts and circumstances of the case and the evidence on record, the prosecution has been able to establish that the accused has acted in a cruel or unusual manner inasmuch as he inflicted a knife blow on the abdoman of deceased with full force, as a result of which his intestine came out and ultimately he scummed to this single injury and therefore, the accused had an intention to kill the deceased. He submitted that though it is a case of single blow, Section 302 IPC is well attracted. He has placed reliance on the decision of the Supreme Court in Mahesh Balmiki @ Munns v. State of M.P. .
10. Firstly, we have to examine as to whether the accused appellant, in the facts and circumstances of the case and in view of the evidence on record can be held responsible for causing injury by knife on the abdomen of deceased Arif, as a result of which his intestines protuded out? For the purpose, we deem it proper to refer to the statements of the witnesses.
11. PW-1 Jahir Ahmed, an eye witnesses of the occurrence has been declared hostile. However, he has admitted that when he reached at the scene of occurrence he came to know about the infliction of injury by knife on the abdomen of Mohd. Arif, as a result of which intestine had protuded out. He has admitted that panchayat name Ex.P. 2, seizure memo of cloths, Ex.P. 3, recovery memo of knife Ex.P. 4, site plan Ex.P. 5 were prepared in his presence. He admits that T-shirt, Belt and Baniyan had blood stains and cut marks on them.
12. PW-2 Farooq, elder brother of deceased was sitting at a shop and on hearing noise he went to the place of incident where Shafiq, Sahid Shamim Sajid and Gaffar had caught hold his brother near intestine. They brought his brother to Hospital where he was declared dead. He is the author of the FIR and Panchayatnama, Ex.P. 2 was prepared in his presence. In cross-examination, he has admitted that there was no previous enemity between the accused and his brother. On the contrary, they used to sit together.
13. PW-4 Jalalludin has stated that he and Rashid were standing at a bettle shop. Farooq and Jahir were also there. On hearing noise, they went to the place of incident. Gaffar Delhi-wala had caught the neck of Arif. Sajid and Sahid were present there. Sajid was beating Arif and Sahid was also beating. Thereafter Sajid took out a knife from the right pocket his trouser and stabbed into the stomach of Arif. Thereafter, the accused ran away.
14. PW-5 Abdul Rashid has supported the statement of PW-4 Jalalludin and has stated that Sajid took out a knife from the right pocket of his trouser and stabbed into right ribs of Arif.
15. There are in all five eye witnesses of the incident viz., PW-1 Jahir Ahmed, PW-2 Farooq, PW-3 Jalalludin, PW-4 Abdul Rasid, PW-7 Mohd. Yamin @ Chandu and PW-9 Bundu Khan. PW-1 Jahir Ahmed and PW-7 Mohd. Yamiri have not supported the prosecution story. But other three eye witnesses, referred to above, whose names find place in the report Ex.P. 6, which is the earliest version of the complainant and the fact that the FIR was lodged with promotness just after 2 hours of the incident also lends support to the prosecution case. The witnesses have categorically deposed that accused appellant Sajid inflicted a knife blow on the deceased which resulted in his death. Their statements are corroborated by the medical evidence, recovery of knife at the instance and on the information of accused and the cut marks found on the cloths of deceased. These witnesses are indendepent. They are reliable and trust-worthy and their testimony remained unimpeachable. These witnesses were subjected to lengthy cross-examination, but their testimony remained unimpeachable and nothing adverse has come on record. We also appreciate that the Counsel for the accused appellant has fairly not assailed the findings arrived at by the learned trial Court as to the infliction of knife blow on the person of deceased by appellant Sajid which resulted into the death of deceased.
16. Thus, on reappreciation of evidence, we are convinced that it was accused Sajid who took out a knife from the right pocket of his trouser and inflicted a blow, causing death of deceased.
17. Now, the question that emerges for our consideration is, as to whether giving a solitary blow on a vital part of the body resulting in death must always necessarily reduce the offence to culpable homicide not amount to murder punishable Under Section 304 Part-II IPC?
18. It is settled proposition of law that in a single injury case also accused can be convicted Under Section 302 IPC, if from the prosecution evidence it is proved that intention is to cause death or to cause a particular injury which is sufficient in the ordinary course of nature to cause death.
19. While dealing with a case of single injury, the Hon’ble Supreme Court in Jagrup Singh v. State of Haryana 1981 SCC (Cr.) 768 observed that there is no justification for the assertion that the giving of a solitary blow on a vital part of the body resulting in death must always necessarily reduce the offence to culpable homicide not amounting to murder punishable Under Section 304 Part-II of the Code. If a man deliberately strikes another on the head with a heavy log of wood or an iron rod or even a Lathi so as to cause a fracture of the skull, he must, in the absence of any circumstances negativing the presumption, be deemed to have intended to cause death of the victim or such bodily injury as is sufficient to cause death. The whole thing depends upon the intention to cause death, and the case may be covered by either clause Firstly or Clause Thirdly. The nature of intention must be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon the death.
20. The Apex Court again had an opportunity to examine the issue in the case of State of Karnataka v. Vedanayagam 1995 Cr.L.R. (SC) 69 and observed that it is fallacious to contend that Wherever there is a single injury only a case of culpable homicide is made out irrespective of other circumstances.
21. In the case in hand, admittedly, the accused inflicted single blow and did not repeat the same. There is no principle that in all cases of a single blow Section 302 IPC is not attracted. A single blow may, in some cases entail conviction Under Section 302 IPC, in some cases Under Section 304 IPC. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. In the present case there was no previous enemity between accused Sajid and the deceased. On the contrary, it may be gathered from the facts and the evidence that both accused and the deceased were friends and used to sit together. It appears that on some matter, altercation took place between the deceased and accused, and the accused inflicted a knife blow on the person of deceased, which proved fatal and Ultimately the deceased scummed to the said single injury. The blow no doubt, was severe one, as is obvious that the intestines of the deceased protuded out. Thus, in these circumstances it cannot be inferred that accused Sajid inflicted knife blow with the intention to cause death or that he was knowing that this is so imminently dangerous that it must in all probability cause death for the reason that incident took place all of a sudden, the accused inflicted knife blow and did not repeat further blows, for which the accused appellant had the opportunity.
22. In. K. Rama Kirishnan Unnithan v. State of Kerela (supra), while dealing with a case of single injury, the Hon’ble Supreme Court set aside the conviction Under Section 302 and instead convicted the accused Under Section 304 Part-II. The facts in that case were similar to the facts of the present case. In that case also there was no previous enemity between the accused and the deceased and after some altercation with the deceased, the accused inflicted a single blow on the abdomen of the deceased, which proved fatal and the deceased died -of a solitary blow. Their Lprdships of the Supreme Court after considering the facts and circumstances of the case observed:
Thus it is established beyond reasonable doubt that the appellant had given one blow but the blow no doubt was quite severe, as a result of which the intestines had protruded out. It is however crystal clear that the appellant had no animosity against the deceased and he was involved because of altercations with PW-1. The scenario in which the appellant has been stated by the eye witnesses to have given one blow on the deceased, it is difficult for us to hold that he gave the blow in question either with the intention of causing murder of the deceased or he can have said to have requisite knowledge that the death would otherwise be the inevitable result. In such a situation, even on accepting the prosecution case we hold that the accused did not commit the offence Under Section 302 but under Part-II of Section 304 IPC.
23. The Division Bench of this Court in Ramesh Kumar @ Ramesh Chandra v. State of Rajasthan (supra) while dealing with a case of single injury inflicted at the spur of moment, and after considering the evidence on record observed as under:
In these circumstances, we are unable to infer an intention on the part of the accused to cause death of wife or even intention to such injury as likely to cause death and therefore, in our opinion, conviction Under Section 302 IPC is not proper.
24. The facts of the aforesaid case and the present case are similar except that the weapon used by the accused in the aforesaid case was Lathi and the blow was on head of the wife of accused, whereas, in the present case the weapon used was knife and its infliction by accused was on the abdomen of his friend. In both the cases, the incident took place at a spur of moment and only one blow was inflicted and there was no repeatation of further blows.
25. In Mahesh Balmiki v. State of M.P. (supra) relied upon by the learned Public Prosecutor, their Lordships of the Supreme Court while dealing with the intention or knowledge of the offender and the offence committed in the case of single injury observed:
In the instant case, the deceased was disabled from saving himself because he was held by the associates of the appellant who inflicted though a single yet a fatal blow of the description noted above. These facts clearly establish that the appellant had the intention to kill the deceased. In any event, he can safely be attributed the knowledge that the knife blow given by him was so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death.
26. We have respectfully perused the case cited by the learned Public Prosecutor. In the case before the Apex Court, the appellant and 3 others had snatched the wristwatch of a boy known to the deceased and at the request of boy, the deceased and one Harkishan asked the appellant to return the watch. The appellant asked deceased and Harikishan to come to some specified place. On reaching there, they had exchange of hot words and thereafter, the associates of the appellant, caught hold the deceased and the appellant gave a knife blow on the chest of deceased and also inflicted injuries to Harkishan who rushed to save the deceased. Therefore, in our opinion, the aforesaid case is of no help to the prosecution case as the facts of the case in hand are totally distinguished with that of the facts in Maheh Balmiki’s case.
27. In view of what has been discussed above, in the facts and circumstances of the case and on consideration of the case laws, we are of the opinion that the accused appellant neither intended to cause death of deceased nor had the knowledge that the injury he has inflicted on the deceased is such that it must in all probability cause death or such bodily injury which is sufficient in the ordinary course of nature to cause death, though it has factually so resulted in death of his friend Arif.
28. The scenario in which the appellant has been stated by the eye witnesses of the occurrence to have given one blow on the deceased, it is difficult for us to hold that he gave the blow in question either with the intention of causing murder of deceased or with requisite knowledge that the death would otherwise be the inevitable result. In such a situation, while accepting the prosecution case, we hold that the accused did not commit the offence Under Section 302 IPC, but Under Section 304 Part-II IPC.
29. We have heard the Counsel for the accused appellant on the question of sentence. Learned Counsel for the appellant submitted that the accused is in jail since 12.7.1994 and he has already undergone the sentence of more than 6 years and 9 months. Referring to some decisions of this Court, learned Counsel submitted that looking to the young age of 25 years at the time of the commission of offence and in the facts and circumstance of the case lenient view may be taken and the accused be sentenced to the term already undergone.
30. In RameshwarLal v. State of Rajasthan 1988 WLN (UC) 32 this Court maintained the conviction Under Section 304 Part-II but sentenced the accused to the term already undergone i.e. 10-1/2 months.
31. In Gurucharan Singh and Ors. v. State of Rajasthan 1992 Cr.L.R. (Raj.) 680 the trial had convicted accused Gurucharan Singh in that case Under Section 302 IPC and the sentence awarded was life imprisonment. On appeal the Division Bench of this Court altered the conviction from 302 IPC to Section 304 Part-II IPC and sentenced him to term of imrprisonment already undergone i.e. 15 months.
32. Again in Balunath v. State of Rajasthan 1993 Cr.L.R. (Raj) 771 the Division Bench of this Court convicting the accused appellant Under Section 304 Part-1, sentenced him to the term already under gone i.e. 3 years.
33. In Kesher Dev v. State of Rajasthan 1992 Cr.L.R. (Raj) 663 the Division Bench of this Court while convicting the accused Under Section 304 Part-II IPC, sentenced him to the period already undergone i.e. 4 years.
34. In the present case the accused appellant is in jail for last more than 6 years and 9 months. Keeping in view the young age of accused Sajid the circumstances in which the incident happened and in the light of the decisions referred to above. We deem it proper that the ends of justice would be met, if the accused is sentenced to the period already undergone by him. In the result we allow the appeal in part, set aside the conviction of the appellant Under Section 302 IPC and instead conviction him Under Section 304 Part-II IPC and sentence him to the period already undergone. The accused appellant is in jail and he be released forthwith, if not required in any other case.
