LAB HA

STATE OF UTTRANCHAL

APRIL 27, 2007

[S.B. SINHA, AND MARKANDEY KA TJU, JJ.)

Penal Code, 1860:

Sections 302-Murder-Two persons caught hold of victim, third one C gave an exhortation and appellant inflicted 3 knife blows on him including one on vital part-Death of victim-Held, Courts below rightly held that death of victim was homicidal in nature and was caused by appellant-His conviction and sentence u/s 302 maintained-Trial court was right in opining that a case of common intention was not made against other accused-Their D acquittal upheld.

Appellant and 3 others were prosecuted for an offence punishable under Section 302/34 IPC. The prosecution case was that 'U' had advanced Rs.Sito 'M'. When 'U' asked 'M' to pay the said amount back, the latter started abusing him. Meanwhile mother of appellant came there and gave an E exhortation whereupon 'M' and 'R' caught hold of 'U' and the appellant inflicted 3 knife blows on him. The victim after running a short distance fell down. The incident was witnessed by PW4, PW-7 and PWl, the father of the deceased, who were returning from market. The victim was taken to the hospital, where he was declared dead. The trial court convicted the appellant F under s.302 and acquitted the remaining three holding that the prosecution could not be able to prove that they had a common intention to commit the offence. The High Court having dismissed the appeal of the convicted accused, he filed the present appeal.

Dismissing the appeal, the Court

HELD: 1.1. In view of the medical evidence and the testimony of the eye witnesses, there is no reason to disagree with the findings of the courts below that the death of the victim was homicidal in nature and the same was caused by the appellant (Paras 6, 10 and 13) (829-F; 830-D, G)

LAB HA v. ST A TE OF UTIRANCHAL 827

1.2. The First Information Report was lodged almost immediately after A the occurrence. P.W.4 is a relative of the P.W.1. They were coming back together from the market Both of them saw the entire incident and supported the prosecution case. Reliance was not placed upon the testimony of P.W.7 by the trial judge as some statements made by him before the Court had not been made before the Investigating Officer under Section 161 of the Code of Criminal Procedure, 1973. The approach of the Court in this behalfalthough B may not be entirely correct, but in the facts and circumstances of the case, even on the testimony of other witnesses the prosecution has proved its case against the appellant [Para 9 and 8) [830-A-C)

2.1. The submission that only a case under Section 304 (Part II) IPC C has been made out, cannot be accepted. The appellant was carrying a big knife.

The intention to cause death and/or to cause an injury which is likely to cause death is evident from the fact that the first blow was given by the appellant on a vital part of the body namely 5 cm below the nipple. He inflicted three blows in quick succession. He took undue advantage of bis position as the deceased was being held by two other accused. Therefore, it cannot be said that there D had been no debasement or appellant did not take undue advantage of the situation and/or there was a total absence of cruelty. Further, there being no provocation on the part of the deceased, it is not a case where only an offence under Section 304 (Part II) of the Indian Penal Code is made out.

(Paras 14, 16, 17 and 20) (830-H; 831-D, E, G] E

2.2. The trial judge was right in opining that a case of common intention has not been made out as against the other accused persons, as nobody probably in their wildest dream could have though that a petty dispute relating to demand ofRs.5 by the deceased, would lead to his death at the hands of the appellant

(Para 16) [831-C) F

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 638 of 2007. .

From the Final Judgment and Order dated 12.06.2006 of the High Court , ofUttaranchal at Nainital in Criminal Appeal No. 1281 of2001 (Old No. 1442 G of 1987.

Vinay Singh, J.P. Tripathi and V. N. Raghupathy for the Appellants.

Reepak Kans~! and Jatinder Kumar Bhatia for the Respondent.

The Judgment of the Court was delivered by H

A S.B. SINHA, J. Leave granted.

l. One Umra advanced a petty sum of Rs. 5 to Multana by way of loan.

On 31. I 0.1985 at about 9 p.m., he asked him to pay the said amount back to him. What was his response thereto is not known. Multana, however, started hurling abuses on him. Bechni, the mother the appellant came there and said

B "UMRA DO KAUDI KA LAD.KA HAI, ISKO MITII MAIN MILA DO. MAIN

ISKI EENT SE EENT BAJA DUNGA" Whereupon Multana and Ranjeet caught hold of the deceased. Appellant was carrying a big knife with him. He inflicted three blows on the deceased with the said knife. The deceased ran towards his house pressing his abdomen by his hands. He could not run for a long C distance. He fell down, P. W. l, Amar Singh, father of the deceased who had .

been coming back to his house alongwith P.W. 4, Jeet Singh from the market witnessed the entire incident. It was also witnessed by P.W. 7, Birsa Singh.

The deceased was taken to the hospital immediately. He, however, was declared dead. A First Information Report was lodged in regard to the said incident by Amar Singh at 10.40 p.m. in the Dehradun Police Station.

2. On completion of the Investigation, all the four accused were chargesheeted. Appellant was charged for commission of "murder" of the deceased. He was convicted and sentenced to rigorous imprisonment. Other three accused, however, were acquitted by the learned Trial Judge opining that the prosecution has not been able to prove that they had a common E intention to cause the said offence. An appeal preferred by the appellant against the said judgment of conviction and sentence was dismissed by the High Court by reason of the impugned judgment. Appellant is, thus, before us.

3. Mr. Vinay Singh, learned counsel appearing on behalf of the appellant F would, in support of this appeal, submit that the prosecution case should not be accepted inasmuch as;

(I) The medical evidence is contrary to the ocular evidence, as not only no injury was found ori the abdomen of the deceased, two other injuries were found on his back.

(II) According to doctor more than one weapon might have been used.

(III) P.W. 7, Bisra Singh having not been relied upon by the Trial Judge, P. W. 4, Jeet Singh having seen only Bisra Singh and nobody H else, his testimony should not have been relied upon.

.. .

(IV) In any event, having regard to the facts and circumstances of the A case, a case of commission of offence under Section 302 of the Indian Penal Code has not been made out but one under Ilnd Part of Section 304, as the offence was committed (i) without any pre-meditation, (ii) without any undue cruelty, (iii) At the spur of the moment on sudden provocation, and (iv) there was no debasement on the part of the B appellant.

4. The deceased suffered three injuries at the hands of the appellant which are as under:-

Punctured wound with clean cut margins 4cm x I Y, cm x heart cavity deep, cutting the 6th rib pleura and apex of peri cardium C and heart. I 00 ml of blood in pericardia) cavity; on the left side of front of chest 6 cm below the left nipple, I Y, cm away from nipple line.

Incised wound 2 Y, cm X I cm X I cm deep as the outer part of D back 5 ems below the posterior axillary fold.

Punctured wound with clean cut margins 5 cm X 2cm X 7cm deep on the back of chest directed upwards and anteriorly cutting the muscles of back, intercoastal muscles, pleura and piercing 2cm in the left upper lobe of lung in its lower part. A litre of fluid blood E found in the thoracic cavity."

5. P.W. 2, Dr. Ajay Krishna, who had conducted the post-mortem examination, opined that the injuries Nos. I and 2 were sufficient in ordinary course to cause death. So far as injury No. 3 is concerned, according to him, the same was directed from down to upward.

6. The doctor did not categorically state that in causing the injuries aforementioned, two different instruments have been used as according to him;

" .. .Injuries Nos. (ii) and (iii) could be caused by the one and same G . instrument as also from different instruments ... "

7. He, however, stated that the length and breadth of the injury would depend upon the force at which the weapon was used and if the blow of the instrument is light, it would not go deeper and in that case breadth shall be comparatively more.

8. The First Infonnation Report was lodged almost immediately after the occurrence. P. W. 1 in his deposition supported the prosecution case in its entirely. P.W.4 is a relative of the P.W. I. They were coming back together from the market. Both of them saw the entire incident. Both of them stated that whereas Ranjeet and Multana caught hold the deceased, Appellant took out B a knife and inflicted blows on the deceased. The accused, however, ran away when P.W. 1 started shouting.

9. Reliance was not placed upon the testimony of P.W. 7 by the learned Trial Judge as some statements made by him before the Court had not been made before the Investigating Officer under Section 161 of the Code of C Criminal Procedure. The approach of the Court in his behalf although may not be entirely correct, but in the facts and circumstances of this case, we are of the opinion that even on the testimony of other witnesses the prosecutrix may be held to have proved its case.

10. The statement of P. W. 4 that he saw Birsa Singh alone must be taken D into consideration with his other statements namely;

11. He and P.W. I were coming back from the market together:'When he stated about the presence of Birsa Singh alone, he must have meant that the latter was he only outsider who was present at the scene of occurrence and noticed the entire incident.

12. Submission of the learned counsel in regard to the fact that there was only one injury in the front and two injuries on the back do not militate against the prosecution story. Suffice it to say that one injury was 5 cm below the nipple and if the same had been described as the injury in he abdomen by P.W. 1 and P.W. 4 no serious exception thereto can be taken. Neither P.W.

F 1 nor P.W. 4 stated that the appellant caused all the three injuries on the front portion of the person of the deceased.

13. What was stated was that the injuries were inflicted in quick succession (the expression used in the vernacular was "Palak Jhapakte"). It G must hav~ taken him by surprise. We, therefore do not find any reason to disagree with the findings of the courts below that the death of Umra was homicidal in nature and the same was caused by the appellant.

14. Coming to the submission of the learned counsel that only a case under Section 304 part II of the Indian Penal Code has been made out, we H see no reason to accept the same. 'Fourthly' appended to Section 300 of the

Indian Penal Code provides that the culpable homicide would not be murder A if it was committed without pre-meditation in a sudden fight, in a heat of passion being sudden quarrel and the accused had not acted in a cruel and unusual manner.

15. The first ingredient of the said provision namely absence of premeditation exists in the instant case but it cannot be said that there was a B sudden fight, in the sense that the deceased was armed or made any provocative statement. As the prosecution story goes, it was the mother of Multana who gave a..'1 exhortation. What was the occasion therefore, we do not know.

16. The learned Trial Judge was right in opining that a case of common C intention has not been made out as against the other accused persons, as nobody probably in their wildest dream could h.ave thought that a petty dispute relating to demand of Rs. 5 by Umra from the deceased, would lead to his death at the hands of the appellant. Appellant, however, was carrying a big knife. He inflicted three blows repeatedly in quick succession. He took D undue advantage of his position as the deceased was being held by two other accused.

17. The intention to cause death and/or to cause an injury which is likely to cause death is evident from the fact that the first blow was given on a vital part of the body namely 5 cm below the nipple.

18. Two other blows might have landed on the side of the outer part of the back below the posterior auxiliary fold and the back of chest as the deceased on receipt of the first blow, must have moved to his right being in pain.

19. The effect of the blows was such that he even could not go beyond a few paces.

20. We, therefore, are of the opinion that it cannot be said that there

had been no debasement or appellant did not take undue advantage of the situation and/or there was a total absence of cruelty. We are, further, of the G opinion that there being no provocation on the part of the deceased, it is not a case where only an offence under Section 304 part II of the Indian Penal Code is made out. In appeal, for the aforementioned person is dismissed.

R. P.

Appeal dismissed. H