JUDGMENT [ENTITY], J.
1. This appeal has been preferred by the appellant/accused being aggrieved by the judgment and order dated 15-5-1993 passed by the learned 2nd Additional Sessions Judge, Chandrapur in [CASE NUMBER], whereby the appellant/accused has been convicted under [SECTION] of the [ACT] and sentenced to suffer rigorous imprisonment lor life with a fine of Rs. 1,000/- and in default, to suffer R.I. for three months.
2. Briefly stated, the facts of the prosecution case are that the deceased [ENTITY] was resident of Ballarshah, District Chandrapur. He was staying in Shiwaji Ward at Ballarshah along with his wife [ENTITY] (PW 3). The appellant/accused is also resident of the said ward. His house is situated behind the house of the deceased. It seems that being neighbours the accused and deceased were close to each other. The marriage of the accused was settled by the deceased. The accused suspected that the character of his wife was not good and though the deceased was knowing it, he settled his marriage and, therefore, he had a grudge against the deceased.
3. On 7-6-1992 at about 10 p.m. while the deceased and his wife [ENTITY] were sitting in the courtyard of their house, the accused went there and started abusing the deceased. [ENTITY], therefore, asked the accused as to why he was abusing her husband. The accused, therefore, got annoyed and slapped [ENTITY]. [ENTITY] (PW 9), who was then present there intervened and separated them. After a while, brother and mother of the accused came there. They also started abusing [ENTITY] and the deceased. [ENTITY] again intervened and separated them. By that time, the accused came there running with a knife and gave a knife blow on the chest of the deceased due to which the deceased sustained bleeding injury on his chest. On seeing it, [ENTITY] and other persons gathered there. The accused then went away. [ENTITY] then took the deceased to the Police Station and lodged her oral report (Exh. 25) in the matter. The deceased was then taken to the hospital at Ballarshah but as the Medical Officer was not present there, he was being taken to the hospital at Chandrapur but on way, he succumbed to his injuries.
4. Meanwhile on the basis of the oral report (Exh. 25) lodged by [ENTITY], an offence came to be registered against the accused as [CASE NUMBER] which initiated the investigation. During the investigation, PSI [ENTITY] (PW 4) visited the spot and prepared spot panchnama (Exh. 8). Inquest panchnama (Exh. 10) of the dead body of the deceased was also drawn. The accused then came to be arrested. A knife was then recovered at the instance of the accused. His blood stained clothes were also seized. A knife, clothes and other articles that were seized were sent to Chemical Analyser, whose report is at Exh. 46. Post mortem report is also produced at Exh. 31. As such, on completion of investigation, chargesheet came to be presented in the Court of J.M.F. C, Rajura. On commitment, the charge (Exh. 4) was framed by the trial Court against the accused under [SECTION] of [ACT] to which the accused pleaded not guilty and claimed to be tried. His defence was one of total denial and false implication.
5. The learned trial Judge after hearing both the sides and considering the evidence on record convicted and sentenced the appellant/accused as stated above.
6. Shri [ENTITY], the learned Counsel for the appellant/accused, urged before us that the evidence of PW 3 [ENTITY] and that of PW 6 [ENTITY] does not inspire confidence as their evidence is not corroborated by the material witness PW 9 [ENTITY], who turned hostile. According to Shri [ENTITY], the appellant/accused has been falsely implicated into this case.
7. Shri [ENTITY], the learned Additional Public Prosecutor, however, supported the judgment passed by the learned Additional Sessions Judge and submitted that the learned trial Judge was perfectly justified in relying on the evidence of both the eye-witnesses, namely, PW 3 [ENTITY] and PW 6, [ENTITY] and convicting the appellant.
8. To appreciate the rival contentions raised at the Bar, we have carefully perused the judgment and scrutinised the evidence in detail.
9. Undisputedly, the entire prosecution case hinges on the testimony of two eye-witnesses, namely, PW 3 [ENTITY], the widow of the deceased and PW 6 [ENTITY], the next door neighbour of the deceased, as other witness PW 9 [ENTITY] turned hostile and refused to support the prosecution on material points. We may, therefore, refer to testimony of these two witnesses.
10. PW 3 [ENTITY], the widow of the deceased has stated that on the day of occurrence at evening time after having their meal, she and her husband were sitting in the courtyard of their house. Her husband was sitting on a cot while she was sitting near the gate of the compound of the house. At that time, the accused came there under the influence of liquor and started abusing them. On being questioned as to why he was so abusing, he slapped her on her face. Her husband, therefore, asked the accused as to why he assaulted his wife but by that time PW 9 [ENTITY] came there and he took the accused towards the side of public tap. Thereafter the brother and the mother of the accused came there and they also started abusing the deceased and his wife. [ENTITY], the brother of the accused who was armed with a stick assaulted [ENTITY]. PW 9 [ENTITY] again intervened and took the brother and mother of the accused outside the compound of the house of the deceased. Soon thereafter the accused came there running with a knife and dealt a knife blow on the chest of her husband due to which her husband sustained bleeding injury and fell down on the ground. His clothes were stained with blood. PW 9 [ENTITY] and other persons gathered there and they put her husband on a cot. Thereafter she took her husband to the Police Station in autorickshaw and lodged her report (Exh. 25) in the matter. The deceased was then sent to the hospital at Ballarshah but as the Medical Officer was not present in the said hospital, he was removed to Civil Hospital, Chandrapur. However he succumbed to the injuries sustained by him on the way to the said hospital. This witness was cross-examined on behalf of the accused at sufficient length but there is nothing in her evidence either by way of contradiction or material omission which would go to discredit her.
11. This evidence of PW 3 [ENTITY] is material corroborated by PW 6 [ENTITY], the neighbour of the deceased. Her house is situated in front of the house of the deceased. She has in very clear terms told the Court that on the date of the incident at about 9 or 10 p.m. She was sitting in the courtyard of her house. According to her, at that time, some altercations were exchanged between the accused and the deceased. The accused was complaining the deceased that his wife was not of good character. However, [ENTITY] (PW 9) intervened and separated them. Thereafter, the mother and brother of the accused came there. Mother of the accused caught hold of the hair of [ENTITY] (PW 3) and the brother of the accused assaulted her with a stick. Again [ENTITY] (PW 9) intervened and took them aside. It is further deposed by PW 6 [ENTITY] that soon thereafter the accused came there running and assaulted the deceased with a knife on his chest due to which the deceased sustained bleeding injury on his chest and fell down on the ground. Her daughter [ENTITY], whose house is situated adjoining her house, rushed to the spot and pushed the accused in order to prevent further assault. Thereafter the accused went away. The deceased was then removed to the hospital in a rickshaw.
12. The evidence of both the aforesaid eyewitnesses is attacked by Shri [ENTITY] on the ground that as [ENTITY] (PW 9) denied to have reached the place of incident when the deceased was assaulted by the accused, the evidence of these witnesses needs to be discarded as both of them have stated that [ENTITY] (PW 9) intervened. On careful scrutiny of the evidence of [ENTITY] (PW 9), we do not find any substance in this attack because [ENTITY] (PW 9) has categorically stated that at the time of the incident in question, he was taking meal in his house. According to him, at that time some altercations were exchanged between the accused and the deceased and hence, he intervened and separated them. It is also deposed by him that thereafter brother and mother of the accused came there and they were quarrelling with the deceased and his wife [ENTITY]. He again intervened and took them away from the spot. It is no doubt true that [ENTITY] (PW 9) turned hostile but it is now the established principle that the evidence of a prosecution witness who has been declared hostile should not be thrown overboard on the ground that his evidence cannot be relied upon. That much of the evidence of the hostile witness can be relied upon by the prosecution if that statement is in conformity with other evidence. Similar view has been taken by the Apex Court in a decision in [PRECEDENT] . So keeping in view the aforesaid principle, we find that the evidence of [ENTITY] (PW 9) which is in conformity with the evidence of both the aforesaid eye-witnesses, namely, PW 3 [ENTITY] and PW 6 [ENTITY] that he intervened and separatd the accused and deceased can very well be relied upon and in our view, this evidence of [ENTITY] (PW 9) fully supports the version of both the aforesaid eye-witnesses. We, therefore, find that the learned trial Judge acted correctly in accepting the evidence of PW 3 [ENTITY] and that of PW 6 [ENTITY].
13. We also find that the manner of incident given out by both the aforesaid eye-witnesses is corroborated by medical evidence, inasmuch as in the opinion of Dr. [ENTITY] (PW 5) an Autopsy Surgeon, a punctured wound having clean cut edges, on left side of sternum 2" below and medial end of clavicle over 4th left rib 2.5 c.m. away from sternum border sustained by the deceased corresponding to internal injury over 4th left rib medial site, 4th rib fractured at the entrance of the punctured wound and injury over left upper lobe of lung of the size of 2.5 c.m. x 0.5 c.m. x 2.5 cm. was sufficient in the ordinary course of nature to cause the death. His post mortem examination report is at Exh. 31. Nothing has come out from the cross-examination of this witness to dispute his aforesaid finding and the concluding opinion. We, therefore, find that the medical evidence on record supports the version of both the eye-witnesses.
14. In addition to what has been discussed above clearly establishing the complicity of the appellant/accused regarding the offence in question, there is circumstantial evidence on record which supports the prosecution case. The evidence of [ENTITY] (PW 10) and Investigating Officer [ENTITY] (PW 11) speaks about the recovery of weapon, i.e. knife ([SECTION] at the instance of the appellant. The report of Chemical Analyser (Exh. 46) shows that the human blood was detected on the said knife. According to Dr. [ENTITY] (PW 5) the injury sustained by the deceased is possible by the said knife. This in our view is very clinching piece of evidence against the appellant.
15. Admittedly, the accused suspected that his wife was of bad character. The evidence of PW 6 [ENTITY] and PW 9 [ENTITY] shows that the marriage of the accused was settled by the deceased and his wife [ENTITY]. The accused, therefore, nurtured a grievance against them on the ground that they had settled his marriage with a girl of bad character. This seems to be the motive behind the commission of the crime in question.
16. Considering the entire evidence on record, in our view, the learned trial Judge acted correctly in holding the involvement of the appellant in the offence in question.
17. The only question Which remains to be considered is about the offence made out. Shri [ENTITY], the learned Counsel for the appellant, urged before us that looking to the totality of the circumstances, it was not proper on the part of the learned trial Judge to have convicted the appellant under [SECTION] of the [ACT] and at the most he should have been convicted for the offence punishable under [SECTION] of the [ACT]. According to Shri [ENTITY], even as per the eye-account, the appellant gave solitary blow of knife to the deceased which fell on his chest and as he did not make any attempt at giving second blow, the appellant could not be said to have an intention to cause that particular injury and, therefore, even if the injury proved to be fatal, the case would not be covered by [SECTION] of [ACT] and it would fall under [SECTION] of [ACT]. For this he relied on the decisions in [PRECEDENT] and [PRECEDENT] .
18. Shri [ENTITY], the learned Additional Public Prosecutor, on the contrary submitted that from the evidence that has come on record it can safely be held that the appellant who had malice against the deceased assaulted him with knife on vital part of the body with an intention to cause that particular injury which was in the ordinary course of nature sufficient to cause death and, therefore, the act of the accused would squarely fall within the mischief of [SECTION] of [ACT] and not under [SECTION] of [ACT] as alleged.
19. After giving our anxious consideration to the rival submissions of the learned counsel on the question as to what offence is made out, we regret that we are unable to concede with the submission canvassed by Shri [ENTITY]. The aforesaid decisions relied upon by Shri [ENTITY] in our view are inapplicable to the facts of the present case.
20. The facts of the case in [PRECEDENT] are not identical to the present case. In that case, weapon was not carried by the appellant in advance. It was taken by him from his father on the spot and there was no premeditation and death occurred nearly after six days of the incident. Here, the appellant after having a quarrel with the deceased went back to his house and came running with a knife and assaulted the deceased with it on his chest. It appears from the evidence of P.W. 6 [ENTITY] that had her daughter [ENTITY] not prevented the appellant, he would have dealt another blow to the deceased. Not only that but the blow given by the accused to the deceased was so forceful that it fractured the 4th left rib and damaged the lung of the deceased and in the opinion of the Autopsy Surgeon, this injury was sufficient in the ordinary course of nature to cause death and, therefore, in our view, the decision of the Apex Court in the aforesaid case would be inapplicable to the facts of the present case.
21. Similarly, in another case in [PRECEDENT] , there was trivial quarrel and the accused had no malice against the deceased. Here it is not so. In the present case, the accused nurtured a grievance against the deceased on the ground that the deceased had settled his marriage with a girl of bad character. This clearly indicates that the accused assaulted the deceased as he had some grudge against him. So in our view, his decision of the Apex Court is also of no avail to the accused.
22. The aforesaid discussion thus makes it clear that the appellant/accused assaulted the deceased with a knife on his chest with an intention to cause bodily injury which was sufficient in the ordinary course of nature to cause death and, therefore, in our view, the said act of the accused squarely falls within the mischief of [SECTION] of [ACT] and as such, he was rightly convicted and sentenced by the learned trial Judge under [SECTION] of [ACT].
23. In the result, the criminal appeal is dis- missed. The conviction and sentence against the appellant/accused are confirmed. The appellant/ accused is found guilty of the offence punishable under [SECTION] of the [ACT].