JUDGMENT
Arun Mishra, J.
1. The appeal has been filed against judgement and order of conviction under Section 302 IPC and sentence of life imprisonment passed by the Sessions Judge, Sagar in ST No. 382/98.
2. The prosecution case, in brief, is that accused Mukesh Ahirwar used to teach Sandhya Raikwar (PW.5) and her brothers and visit their house with effect from December,1997. As per prosecution case marriage of Sandhya (PW.5) was settled in village-Navgaon, District-Chhatarpur. However, it appears that Sandhya (PW.5) wrote letters Article B and C to accused Mukesh Ahirwar. When her marriage was likely to be settled, she had disclosed the factum of writing of letters, to her father Prakash Raikwar. On 26.9.98 when accused went to the house of Sandhya, her mother Krantibai (PW.1) asked him to hand over the letters written by Sandhya Raikwar. Accused asked Sunil Raikwar that he will give back the letters if he accompany him to his house. On that Umesh Raikwar (PW.4) and Sunil Raikwar accompanied accused to his house. Accused asked Umesh Raikwar (PW.4) and Sunil Raikwar to sit outside and thereafter accused went inside the house and brought out the letters, but refused to hand over the letters to Sunil Raikwar, on that Sunil Raikwar made an effort to snatch the letters from him, on that accused with the help of Gupti (pointed sharp edged weapon) inflicted injury on the head and abdomen of Sunil Raikwar , thereafter accused ran behind Umesh Raikwar along with Gupti and chased him for 200 yards. Inspite of being injured ,Sunil also ran towards that direction in order to save Umesh Raikwar, however, he fell down in front of grocery shop of Keshram. On enquiry being made by Surajkumar (PW.6) and Neetu (PW.7), Sunil Raikwar made an oral dying declaration that accused had inflicted Gupti injury on his person. From the pocket of deceased Sunil letters Article B and C were recovered. Sunil was taken in Autorickshaw to PS-Motinagar and then to hospital, he was declared dead by the doctor. Dr.Devendra Kumar (PW.3) performed autopsy on 27.9.98 and found two injuries on the person of deceased, one on the right side of chest and other on the head, both were penetrating incised wounds, cause of death was excessive bleeding due, injuries were found to be sufficient in ordinary course of nature to cause death. Accused was nabbed and on the basis of information furnished by him, weapon of offence Gupti and blood stained clothes were seized, they were sent to FSL for chemical examination, on the Gupti, shirt and full pant of the accused and on the clothes of deceased presence of human blood was found. On serological examination also on the shirt and full pant of accused human blood was found.
3. Accused abjured the guilt and submitted that deceased Sunil and Umesh Raikwar did not accompany him to collect letters, he was arrested on 27.9.98. According to accused, there was a cricket team of Suraj, Damodar and Neetu, he was having a different cricket team, as ball had been lost match was declared as drawn, on that accused persons hurled abuse on him. He was falsely implicated in the case. Aggrieved by the conviction and sentence imposed, the appeal has been preferred by the accused.
4. Shri S.C.Datt, learned senior counsel appearing with Shri Siddharth Datt, for appellant has submitted that considering the fact that there was sudden quarrel during the course of scuffle, Gupti was taken out by the accused as an effort was made to snatch the letters from the hand of the accused,thus, the case would fall under exception 4 to Section 300 IPC. It would not be a case of culpable homicide amounting to murder, at the most accused could be convicted for commission of offence under Section 304 Part II of IPC. Reliance has been placed on several decisions of Apex Court by learned Counsel appearing on behalf of appellant to be referred later.
5. On the other hand, Shri S.K. Rai, learned GA appearing for State has submitted that present one ,is a case of out and out murder, deceased was unarmed, deceased and his brother were taken to the house of accused in order to give back the letters written by Sandhya, there was no reason for the accused not to hand over the letters once he had taken deceased and his brother to his house, in premeditated manner accused went inside the house brought the letters in his hand and refused to hand over , then an effort was made by the deceased Sunil to snatch the letters, he had snatched the letters, on that accused had inflicted two injuries on the deceased with the help of Gupti, one on the head and other on the chest. The injury on the chest was sufficient in ordinary course of nature to cause death. Exception 4 to Section 300 IPC is not attracted in the instant case as accused acted in premeditated manner,secondly deceased and his brother were not armed, deceased and his brother had not caused any injury to the accused, there was no such provocation caused so as to inflict the injuries with the help of Gupti on the vital part of body, the accused has taken the deceased and his brother to his house and had taken undue advantage of situation and had acted in cruel manner, thus, he has been rightly convicted by the court below for commission of offence under Section 302 of IPC.
6. In the instant case, it has not been disputed that letters Article B and C were written by Sandhya to the accused,he was a tutor , he used to teach Sandhya and her brother, Sandhya (PW.5) has admitted that she wrote the letters, as her engagement was going to be settled at Navgaon, District- Chhatarpur, she disclosed the fact of writing letters to accused to her father, on that her mother Krantibai (PW.1) had asked the accused to give back the letters, thereafter Sunil and Umesh Raikwar on being asked by the accused to accompany him to his house proceeded to his house, accused asked them to wait outside, accused had gone inside the house and came out with the letters in his hand, it appears that after bringing the letters in his hand, he had refused to give letters consequently, Sunil snatched away the letters from the hand of accused, letters Articles B and C were found in the pocket of deceased Sunil which indicate that he had snatched away letters Articles B and C from the possession of accused. On that accused had inflicted first blow with the help of Gupti which he was carrying on the head of Sunil. It is not that all of a sudden he brought Gupti, it was with the accused,then he inflicted the second blow on the chest of Sunil. Following injuries were found in the postmortem report of deceased Sunil:
Injury -One incised wound present Ant. surface of chest below xiphisternem 5″ away from Rt.Side Nipple.
(Size 1″ x 1/2″ x 4″ (Deep to abdominal cavity)
On Dissection abdominal cavity -Left lobe of liver, Ant. surface one incised wound 1″ x 1/2″ x 1″ deep passes to whole liver surface (up to post surface) reaches.
(2) One incised wound present on Rt.side of scalp (parital) region size 1″ x 1/2″ x 1″ skin Deep.
Injury no. (1) was sufficient in ordinary course of nature to cause death as opined by Dr.Devendra Kumar Jain (PW.3), it could have been caused by dagger, sword, Ballam, knife or by Gupti (weapon carried by the accused). From the statement of Umesh Raikwar (PW.4), brother of deceased, it is apparent that accused had inflicted two injuries on the deceased. It is also apparent that after accused had inflicted injury on deceased, Umesh was chased for a considerable distance by the accused armed with a Gupti, his effort was to catch hold of Umesh also and to inflict injury on him , but he could successfully run away. In the process, in order to save Umesh, his elder brother, deceased Sunil inspite of suffering injuries at the hands of accused had also followed both of them for some distance, but ultimately he fell down after some distance in front of grocery shop of Keshram. It is also clear that deceased as well as his brother were not armed with any weapon. It was also not suggested in the cross- examination of Umesh Raikwar that Sunil or the witness had inflicted any injury of any kind on the person of accused or carried some weapon.
7. Before dilating further on the main submission whether offence would be under exception 4 to Section 300 IPC, punishable under Section 304 Part II IPC, we deem it appropriate to refer to various decisions cited at Bar by learned Counsel for parties.
8. Shri S.C.Datt, learned senior counsel appearing with Shri Siddharth Datt for appellant has relied upon decision in Tholan v. State of Tamil Nadu wherein the Apex Court has laid down in the backdrop of the facts that accused started demonstrations using filthy language against certain organizers of a chit fund who had no connection with the deceased, in front of the house of deceased and the deceased came out of his house and asked the accused to go away, the accused on spur of moment gave only one blow with knife to the deceased and pushed him to some distance. In the circumstances, the Apex Court held that though requisite intention to commit murder could not be attributed to the accused, he used a weapon like knife and therefore he could be attributed with knowledge that he was likely to cause an injury which was likely to “cause death”. In such a situation, though he could not be convicted under Section 302 IPC, he would be guilty of committing an offence under Section 304 Part II IPC. Reliance has also been placed on a decision in Bhera v. State of Rajasthan (200) 10 SCC 225 in which accused and deceased quarreled, accused in anger suddenly bringing out a knife and giving blow on chest of the deceased which resulted in his death, the Apex Court held that it cannot be said that accused gave a knife blow with the requisite intention of causing murder of the deceased, hence, offence would be one under Section 304 Part II IPC not under Section 302 IPC, accordingly convicted the accused under Section 304 Part II IPC and sentenced to 5 years’ imprisonment.
Reliance has also been placed on Masumsha Hasanasha v. State of Maharashtra AIR 2000 SC 1876 in which accused gave only one blow by sharp edged weapon which resulted in death of deceased, however, injuries were caused to deceased during scuffle. The fact was supported by medical evidence. Accused was convicted under Section 304 Part II IPC not under Section 302 IPC and sentenced to five years’ imprisonment.
Counsel has also relied upon a decision in Sekar alias Raja Sekharan v. State represented by Inspector of Police,T.N. in which there was an altercation between the accused and deceased, there was no premeditation and assaults were given by accused during the course of sudden quarrel, accordingly Apex Court brought the case to ambit of exception 4 of Section 300 IPC. Even otherwise Apex Court observed that it was the case of accused exceeding the right of private defence, the conviction was made under Section 304 Part I IPC and custodial sentence of 10 years was imposed. Lastly, reliance has been placed by the appellants’ counsel on a decision in Ravi Kumar v. State of Punjab in which there was quarrel between accused and deceased, accused picked up Dhangu and gave two blows on the head of deceased, injury which proved fatal was incised wound. Accused was convicted under Section 304 Part II IPC and not under Section 302 IPC.
9. On the other hand, Shri S.K. Rai, learned GA has relied upon decision of Apex Court in Mohammed Mytheen Shahul Hameed v. The State of Kerala in which on facts the Apex Court found it established that the appellant was the aggressor and had inflicted the dagger injuries on the back and chest of the deceased maliciously and vindictively and not in self defence. No right of self-defence ever accrued to the appellant. Thus, Apex Court has held that exception (ii) to Section 300 had no application, similarly exception 4 to Section 300 was not attracted to the case as there was no mutual exchange of blows between the deceased who was unarmed and the appellant and the assault on the deceased by the appellant was deliberate and pressed with determination when the victim was fleeing for his life. Therefore, the Apex Court held that appellant was rightly convicted under Section 302 IPC and sentenced to life imprisonment. In Vasanta v. State of Maharashtra (1) , there was verbal altercation between accused and deceased, accused assaulted the deceased with very great force, there was nothing to show that altercation was of such serious nature which could cause sudden provocation, injury caused on chest and heart was most cruel according to medical evidence. Thus, Apex Court held that case fell squarely under Section 302 IPC and was not covered under Section 304 Part II IPC.
In Malkiat Singh v. State of Punjab in the absence of evidence that accused caused death in sudden fight in heat of passion , injury was inflicted by the accused, accused acted in cruel manner, hence, case was held to be that of murder not covered under exception 4 to Section 300 IPC.
In Mahesh Balmiki alias Munna v. State of M.P. accused asked deceased to come to particular place to receive the watch, at that place three associates of accused caught hold of deceased and accused gave a single fatal blow on chest with knife, total depth of wound was 19 cm., the Apex Court held that said blow cannot be said to be inflicted without premeditation. Thus, it cannot be said that accused had not taken “undue advantage” or not acted in “cruel” or “unusual manner”. The Apex Court held that exception 4 to Section 300 would not be attracted in the facts of the case.
In Sikander alias Mohd. Safiq v. State quarrel took place between accused and his father,
accused inflicted dagger blows on deceased step-mother and thereafter on his sister when they intervened in the quarrel, both victims were unarmed and had not caused any injury to accused. The Apex Court held it was not a case of sudden fight, accused acted in a “cruel” manner and had taken “undue advantage”. The Apex Court held that case was not covered by exception 4 of Section 300 IPC. Conviction of accused for murder was held to be proper.
In Jaipal v. State of Haryana accused persons were armed with dangerous weapon and none from complainant party was armed with dangerous weapon showing intention of accused and not complainant to attack, the accused party was aggressor ,deceased was attacked by accused duly armed with Gandasi and lathis. The Court held that accused was rightly convicted as he has acted in “cruel” and “unusual manner” and therefore exception 4 to Section 300 would not apply.
In State of Rajasthan v. Dhool Singh the Apex Court held that number of injury is not always the determining factor in ascertaining the intention. It is the nature of injury, the part of body where it was caused, the weapon used in causing such injury which are the indicators of the fact whether the accused caused the death of the deceased with an intention of causing death or not. The accused had dealt one single blow with a sharp-edged weapon on a vital part of body namely the neck. This act though solitary in number had severed sternoclinoid muscle, external jugular vein, internal jugular vein and common carotid artery completely leading to almost instantaneous death. Any reasonable person with any stretch of imagination could come to the conclusion that such injury on such a vital part of the body with a sharp-edged weapon would cause death. Such an injury not only exhibits the intention of the attacker in causing the death of the victim but also the knowledge of the attacker as to the likely consequence of such attack which could be none other than causing the death of the victim.
The Apex Court in Bahadur Naik v. State of Bihar AIR 2000 SC 1582 has laid down that the “premeditation” can develop on spot in the backdrop of the fact that deceased was caught hold of by two accused, another accused inflicted dagger blows, conviction cannot be converted from murder to culpable homicide not amounting to murder.
In State of U.P. v. Virendra Prasad the Apex Court considered the question when “culpable homicide” does not amount to murder. The police officials were attacked by the accused operating gambling dens, the evidence of eye witness clearly indicated that after accused fired the gun and while the police officials were trying to take the gun from him, accused snatched away the gun from his father and started firing. There was no question of fight or scuffle as such act of firing by the accused from the close range which hit the deceased police inspector and two injured witnesses shows the intention of the accused, it was not a case within the ambit of Section 304 Part II IPC but the same was covered under Section 300.
10. Exception 4 to Section 300 IPC is quoted below:
300. Murder -Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or
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 having taken undue advantage or acted in a cruel or unusual manner.
It is apparent from the exception that in case there was no premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken “undue advantage” or acted in a “cruel” or “unusual” manner, the culpable homicide would not amount to murder.
11. We have to see in the facts of the instant case whether the act was without premeditation in a sudden fight/quarrel in the heat of passion and whether the offender has not taken “undue advantage” or he has not acted in “cruel” or “unusual” manner.
12. In the instant case, Sunil and his brother were unarmed, it is not the case that any of them had inflicted any injury on the person of accused. As a matter of fact, as stated by Krantibai (PW.1), Mukesh had asked Sunil and Umesh Raikwar to accompany him to hand over the letters written by Sandhya (PW.5), it was the accused who had taken the deceased to his house. The intention was to hand over the letters. Accused asked deceased and his elder brother to wait outside the house, then he went inside and came out with two letters Article B and C and along with Gupti, it appears that when accused had entered the house, he came with premeditated mind that he was not going to hand over the letters after having called the deceased to his house, on that Sunil had tried to snatch away the letters and he had succeeded in that as letters Article B and C were ultimately found in the pocket of deceased Sunil. In our opinion merely snatching away of the letters could not be said to be an act of sudden provocation or to cause heat of passion as accused knew very well for what purpose deceased was brought by him to his house. In our opinion, not only “undue advantage” was taken of the situation by the accused by calling the deceased to his house and thereafter inflicting injury on him by Gupti on the vital parts like, head and chest but he had acted in “cruel” and “unusual” manner. He was not expected to act in the manner he had acted, once he knew that he had brought the deceased to his house to hand over the letters. The accused was not satisfied by inflicting injury on the person of deceased Sunil, thereafter he ran behind Umesh Raikwar along with Gupti and chased him for 200 yards. Sunil inspite of suffering of injuries also ran towards that direction in order to save Umesh Raikwar, however, he fell down in front of grocery shop of Keshram, he was unable to chase owing to the injury sustained on chest and head. Thus, in our opinion it would not be a case falling under exception 4 to Section 300 IPC. It would be clearly a case of culpable homicide which amount to murder. Injury on chest was found sufficient in ordinary course of nature to cause death by the doctor. Umesh (PW.4) has stated that after inflicting the injuries on the person of deceased, accused followed him for considerable distance, thus, intention of accused and his knowledge is writ large in the instant case. Nothing has been brought out in the statement of Umesh (PW.4) so as to disbelieve his version. Apart from that oral dying declaration was also made when the deceased Sunil fell down. He had disclosed on enquiry being made by Suraj Kumar (PW.6) and Neetu (PW.7) that accused had inflicted injury of Gupti on him. Thus, otherwise reliable evidence of Umesh (PW.4) finds support not only from the statement of Krantibai (PW.1) but also from Suraj Kumar (PW.6) and Neetu (PW.7).
13. From the possession of accused Gupti was seized in presence of Rajesh Singh (PW.9) , investigation part has been proved by Premchand Jain (PW.10) and Ramkrishn Pathak (PW.12) , compliance of Section 157 Cr.P.C. was made has been proved by Vinod Kumar (PW.11). First Information Report was lodged promptly in the case within 2 1/2 hour of the incident, incident took place at 2 PM, report was lodged at 2.30 PM, thus, commission of offence under Section 302 IPC stands established beyond periphery of doubt against the appellant.
14. Resultantly, we find no merit in the appeal. Judgment and order of conviction and sentence are hereby affirmed. With respect to disposal of property, the order passed by the trial Court be followed. Appeal is hereby dismissed.