IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 498-DB of 2002 Date of decision: 18.1.2010 *** Raju Masih ..APPELLANT VS. State of Punjab ..RESPONDENT CORAM: HON'BLE MR. JUSTICE MEHTAB S. GILL. HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. Sushil Grover, Amicus Curiae with Mr. Nitin Grover, Advocate for the appellant. Ms. Manjari Nehru Kaul, Addl. Advocate General, Punjab. ARVIND KUMAR, J. The appellant is undergone life sentence, awarded to him by the learned Sessions Judge, Amritsar in Sessions Case No.58 of 1999, for having committed the murder of one Tarinder Pal Luthra, punishable under Section 302 IPC. He has also been directed to pay Rs.1000/- as fine, in default of which he is required to undergone further rigorous imprisonment for six months. The case of the prosecution, as unfolded by Dimple Luthra (PW2) is that on the night intervening 1/2.7.1999 at about 1.30 a.m. she got up after hearing some noise and after switching on the light of the room, she noticed that the appellant Rahu Masih, who is working as servant on the shop of her uncles namely Krishan Luthra and Tarinder Pal Luthra, was searching some thing and at that time he was having a unsheathed kirpan in his hands. She raised hue and cry, which attracted her uncle Tarinder Pal Luthra. As soon as her uncle was coming downstairs and Raju Masih was going upstairs, in the process, the appellant gave injury with kirpan in the abdomen of Tarinder Pal Luthra, as a result of which he fell down. The appellant made good his escape from the spot. The injured was shifted to the hospital, but he succumbed to the injuries. On the statement (Ex.PB) made by Dimple Luthra, FIR (Ex.PB/2) was registered. Inquest (Ex.PD) on the dead body of Tarinder Pal Luthra was done and autopsy on the dead body was conducted by PW.1 Dr. Ashok Chanana, who vide his report Ex.PF found the following injuries on the dead body:- “1. An oblique punctured incised wound 2.5 x 1.5 cms with clotted was present on the front and centres of abdomen, 10 cms above umblicus, at 12 O clock position. 2. An oblique incised wound 0.5 x 0.3 cm skin deep with clotted blood was present on the front of right middle finger at its proximal digit.” In his opinion, the cause of death was shock and hemorrhage due to injury No.1 which was sufficient to cause death in the ordinary course of nature. On 4.7.1999 the appellant was arrested and pursuant to the disclosure statement, kirpan used in the offence was recovered at his instance. On completion of usual formalities of investigation, final report under Section 173 Cr.P.C. was prepared and presented in the Court for trial of the accused. Charge under Section 302 of Indian Penal Code was framed against the accused, to which he pleaded not guilty and claimed trial. Consequently, the prosecution led its evidence by examining as many as 11 witnesses, including the eye-witnesses Dimple Luthra and her sister Timmy Mehra and tendered certain documents. Though the case of the accused was of false implication, but the learned trial Court while relying upon the testimonies of prosecution witnesses, held the accused guilty under Section 302 IPC and sentenced in the manner, indicated above. We have heard learned counsel for the parties and with their assistance have also gone through the record carefully. The FIR in this case had been lodged by PW.2 Dimple Luthra, an eye witness to the alleged occurrence. The FIR was registered promptly, without any delay and latches. The occurrence was also stated to have witnessed by her sister Timmi Mehra (PW.7). The presence of both these eye-witnesses cannot be doubted, though some delay in recording the statement of Timmi Mehra under Section 161 Cr.P.C. has been referred by learned defence counsel, but the same cannot go to the root of the case because the testimonies of both the eye witnesses are firm and unshattered, so far as the same speak of committing of murder of their uncle Tarinder Pal Luthra by the appellant. We have gone through the statements of both the witnesses. They have given the entire sequence of the occurrence, as to the manner. Their testimonies have been assailed on account of their relationship with the deceased, being his niece, But it is not the absolute law that the evidence of relation witnesses is not entitled to any weight but this very circumstance would add to the value of their evidence because they would be interested in ensuring that the real culprit responsible for the murder be punished and not the innocent person. That apart the occurrence took place during odd hours of night. Their presence at the spot is natural. Not only this, the medical evidence produced on record corroborates the ocular account. Further, no doubt as to the identity of the appellant could be raised since it is the specific case of the prosecution that being employed as a servant on their shop, they were acquainted with Raju Masih. The recovery of weapon of offence and the stolen articles from the accused was one of the vital circumstance, from which no doubt as to the commission of offence of murder of Tarinder Pal Singh, by the accused-appellant is left. Therefore, we are unable to take a different view than taken by the Court below so far as involvement of appellant in the murder of Tarinder Pal Luthra is concerned. The main argument that has been addressed by the learned counsel for the appellant is that the motive was to commit theft and there was no intention and pre-meditation on the part of the appellant to commit the murder and as such the present case is not a case of homicide but culpable homicide not amounting to murder. To substantiate the said argument, it has further been contended that the appellant had caused only one stab injury and had not acted in a cruel and unusual manner. The contention is meritless. There may be cases of murder where the accused attempts to avoid the penalty of murder by attempting to put forth a case that there was no intention to cause death. It is for the Courts to ensure that the cases of murder punishable under Section 302 IPC are not converted into offences punishable under Section 304 Part I/II or cases of culpable homicide not amounting to murder punishable under Section 302 IPC. The intention to cause death can be gathered generally from the circumstances and the facts of each case. 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. There is no justification for the assertion that the giving of a solitary blow on the vital part of the body resulting into death always necessarily attracts the provisions of culpable homicide not amounting to murder. In the instant case, the accused- appellant, who the employee of the deceased had entered the house in the dead of the night with “naked kirpan”, obviously for the reason that in any eventuality, he would use the same. The statements of PW2 Dimple Luthra and PW7 Timmy Mehra suggest that the occurrence had taken place when the deceased Tarinder Pal was coming down from the stair-case and the accused was going up-stairs. Their statements do not suggest any kind of provocation or resistance shown by the deceased. There had taken no altercation between the deceased and the accused to say that it gave a sudden provocation and the offence committed in the heat of passion. The accused-appellant, if had no intention, he could wield “naked kirpan” on the non-vital part of the body of the deceased, who was un-armed, enabling him to escape from the spot, but he did not do so. He wielded the “kirpan” blow on the vital part i.e. stomach of the deceased. The force used was heavy injuring intervening structure i.e. anterior chest wall, peritonium, omentum and right lobe of the liver and this also led the Doctor to opine that this injury was sufficient to cause death in the ordinary course of nature. Thus, the intention to cause death or at all events intention of causing bodily injury which is sufficient in the ordinary course of nature to cause death is made out. The case, thus, does not fall under exception (4) to Section 300 IPC, as argued by the learned defence counsel. Accordingly, the instant appeal, being without merit, is dismissed. (MEHTAB S. GILL) (ARVIND KUMAR) JUDGE JUDGE January 18,2010 Jiten