Gautam Kumar Choudhary, J
1. Both the appellants are before this Court in appeal against the judgment of conviction and sentence under Section 302/34 of the IPC.
2. Informant is the wife of deceased. As per her fardbeyan recorded on 24.01.2015 at 11.30 a.m., her husband- Raju Prasad Gupta (deceased) was caught hold by the appellants and was stabbed in his abdomen by his elder brother- Deepak Prasad Gupta in the morning at 6 a.m. when he was going to toilet. It is said that Sapana Devi caught hold of him, whereas her husband stabbed the deceased in his abdomen, as a result he was fatally injured. He was taken to Central Hospital, Dakra where he died. Genesis of the offence has been stated in the FIR that the appellant wanted to grab the tent house shop of the deceased and because of this he was previously assaulted by the appellant no.1 for which police case was lodged.
3. On the fardbeyan, Khelari P.S. Case No.14/15 was registered under Section 302/34 of the IPC against both these appellants on the very same day of incidence. Police on investigation found the case true, submitted charge sheet and both the appellants were put on trial under Section 302/34 of the IPC.
4. Altogether eleven witnesses have been examined on behalf of the prosecution and the relevant documents including inquest report, seizure list, fardbeyan, post-mortem examination report and FSL report were adduced into evidence and marked as exhibits. The seized knife and blood-soaked paper piece were produced in the Court and were made material Exhibit Nos. 1 and 2.
5. It is argued by the learned counsel on behalf of the appellants that the injury sustained by the deceased was self-inflicted and the death was suicidal in nature. Altogether ten witnesses have been examined on behalf of the defence and they have stated that death was suicidal. It is argued that the evidence of defence witness is to be accorded equal weightage as that of prosecution witness. The deceased and the informant were in the habit of quarrelling on minor disputes. D.W. 3 has deposed that he had committed suicide. D.W. 4 and D.W. 5, who are sisters of the deceased, have also deposed that the deceased was vexed by the conduct of his wife therefore, he committed suicide. Testimony of D.W. 6- the brother of the deceased, D.W. 7- his mother, D.W. 8, who is maternal uncle have all testified on the same line. It is argued that independent witness D.W. 9 has also deposed that it was a case of suicide as there used to be regular quarrels between husband and wife. D.W. 10 has also attributed the cause of death to be suicide.
6. It is further argued that since the prosecution case rests on the solitary account of the informant (P.W. 8) and therefore, in order to place reliance on her testimony, it should be found wholly reliable.
7. The alternative plea is that it was a case of single knife blow and the Doctor has not opined that injury was sufficient in the ordinary course of nature to cause death so as to bring the act within the third Clause of Section 300 of the IPC. The case will come under Section 304 Part II in view of the ratio laid down by the Hon’ble Supreme Court in Bunnilal Chaudhary v. State of Bihar, (2006) 10 SCC 639.
8. Learned A.P.P. has defended the judgment of conviction and sentence.
9. Doctor who conducted post-mortem examination, has been examined as P.W. 9. He found one stabbed wound, 4 cm x 1 cm cavity deep over front of left abdomen, lower part, 4 cm left to midline. The weapon passed the soft tissues perforating large intestine and urinary bladder. Blood clot was found in the abdominal cavity. The injury was ante-mortem in nature caused by sharp cutting pointed weapon. Death was due to shock and hemorrhage as a result of the injury. The above noted injury was possible by knife.
10. The Investigating Officer (P.W. 10) has given the description of place of occurrence in para 6 of his testimony to be the house of the deceased near the toilet where there was sign of profuse bleeding on the ground and a blood-stained knife was lying on the ground. The knife was seized and on forensic examination of the knife, human blood was found as per FSL Report (Exhibit 6).
11. As incidence took place in the house in the morning at 6 O’ clock, informant being the wife of the deceased becomes a natural witness to the incidence. It is to be noted that the case has been lodged without any delay on the very same day of incidence and so there is not much room for reflection and afterthought. P.W. 8 has deposed that it was the appellant, who inflicted the knife blow on her husband while appellant no.2- Sapana Devi caught hold of his hand. Thereafter, her husband rushed towards her and then informant and deceased locked themselves in a room. From there, she informed Manoj Kumar Gupta and others on telephone. In para 16 of the cross-examination, she has deposed that at the time of occurrence, her husband and minor daughter were present and from the side of the accused, both the appellants and their son were present. Testimony of P.W. 8 is corroborated by the medical evidence. Her testimony rules out any other witness either from the side of prosecution or the defence to have seen the occurrence. In this view of matter, the testimony of other witnesses regarding manner of assault, cannot be accepted.
12. I do not find force in the argument on behalf of the appellant that mother (D.W. 7) of the deceased will not falsely depose to protect the assailant. Here both the appellants and the deceased were full brothers and it appears more logical and plausible that having lost one of the son, mother of the deceased was naturally not inclined to loose her another son by getting him convicted under Section 302 of the IPC.
13. Investigating Office (P.W.10) has noted in para 13 that this was not the first incidence, as on earlier occasion, on the written report of the deceased, Khelari P.S. Case No.88/14 was registered on 22.10.2014 against both the appellants under Sections 323, 324, 307, 506/34 of the IPC.
14. Considering the direct eye witness account of the informant and history of past attempt on the life of the deceased by the appellant, it is difficult to be persuaded by the argument advanced on behalf of the appellants that the injury was self-inflicted and the death was suicidal.
15. P.W. 1 and P.W. 4, who arrived at the place of occurrence on hulla and saw the deceased in a pool of blood. It is significant to note that P.W. 1 has deposed that deceased had himself narrated about the incidence to him. On the other hand, P.W. 4 has deposed that wife of the deceased had narrated the incidence to him. Testimony of P.W. 1 about statement made by the deceased regarding the manner of assault can be regarded as the oral dying declaration.
In view of the fact that these witnesses arrived at the place of occurrence shortly after the incidence, therefore, their testimony regarding facts forming part of the same transaction, will be relevant under Section 6 of the Evidence Act.
16. Coming to the last leg of argument, whether the injury inflicted by the single blow was sufficient to invite conviction under Section 302 of the IPC. Intention or knowledge is a mental element for which there cannot be direct evidence and is to be inferred from the nature of injury inflicted and the nature of weapon used. There is no law that in case of single blow, an offence under Section 302 of the IPC will not be made out. Furthermore, if the injuries inflicted are so fatal and critical in nature that a person succumbs to it within few hours, it can be said to be sufficient in the ordinary course of nature to cause death. Omission by the Doctor to record such an opinion, cannot be a ground to draw an inference that the injury was not sufficient in the ordinary course of nature to cause death. The injury as referred to above in the foregoing paragraphs, were so serious that it perforated the large intestine and urinary bladder. Considering the nature of injury, it cannot be said that it was not sufficient in the ordinary course of nature to cause death. It has been held by Hon’ble Supreme Court in Dhupa Chamar v. State of Bihar, (2002) 6 SCC 506 :
“15. In view of the nature of injury whereby important blood vessels were ruptured inasmuch as aorta and artery were cut and when the doctor opined that death was caused as a result of severe haemorrhage and shock due to the rupture of great veins, undoubtedly, it can be reasonably inferred therefrom that such a solitary injury inflicted upon the deceased was sufficient to cause death in the ordinary course of nature”.
[ Also see Pulicherla Nagaraju v. State of A.P., (2006) 11 SCC 444]
17. Under the circumstance, judgment of conviction and sentence of the principal accused- Deepak Prasad Gupta is affirmed under Section 302 of the IPC.
18. As far as appellant no.2- Sapana Devi is concerned, she has been vicariously held liable with her husband with the aid of Section 34 of the IPC by the learned Trial Court. Consistent case of the prosecution is that the fatal blow was inflicted by appellant no.1 when the deceased was going to washroom in the morning. The time and suddenness of the incidence in which it happened, is suggestive of the fact that there was no real concert and pre-planning between both the appellants. To inflict one single blow with knife, logically there was no requirement of the appellant to catch hold the deceased. She appears to have been roped as she happened to be the wife of the principal accused. Appellant- Sapana Devi is entitled to benefit of doubt and accordingly, the judgment of conviction and sentence passed against her, is set aside.
19. In the result, Criminal Appeal preferred on behalf of appellant no.1- Deepak Prasad Gupta is dismissed and that on behalf of appellant no.2- Sapana Devi is allowed.
Sapana Devi is on bail and accordingly her sureties of bail bond are discharged of the liabilities of their bail bond.
Criminal Appeal is accordingly partly allowed. Pending Interlocutory Application, if any, is disposed of.
Let the Trial Court Records be transmitted to the Court concerned along with a copy of this judgment.
