R.L. Anand, J.
1. By this judgment, we dispose of Crl. Appeal No. 363DBA of 1991, State of Punjab v. Avtar Singh, filed by the State, Crl. Appeal No. 141SB91 Avtar Singh v. State of Punjab, filed by Avtar Singh accused appellant, and Crl. Revision No. 635 of 1991 Kashmir Singh v. Avtar Singh, filed by Kashmir Singh, complaint, as all these three cases have arisen from common judgment, dated 27.3.1991, passed by the learned Sessions Judge, Jalandhar who convicted Avtar Singh accusedappellant under Section 304 Part I of the Indian Penal Code and sentenced him to undergo R.I. for 7 years and to pay a fine of Rs. 5000/. In default of payment of fine the accused was ordered to undergo further R.I. for six months. The State is not happy with the finding given by the trial Court and it has been prayed by the State that conviction and sentence ought to have been passed by the trial Court under Section 302 I.P.C. Similarly, the complainant is not satisfied with the order of the trial Court and has filed a Crl. Revision. Shri Avtar Singh has also filed an appeal and he has made a prayer for total acquittal.
2. The briefs facts of the case are that Shri Avtar Singh son of Karam Singh resident of Shahpur, aged 40 years, at the time of his trial, was charge sheeted under Section 302 of the Indian Penal Code, on the allegations that on 17.5.1989, at 9.00 P.M. in the area of Shahpur, he committed the murder of Shangara Singh son of Shri Santa Singh, resident of Shahpur.
3. The story of the prosecution proceeds with the statement Ex.PD made by Shri Kashmira Singh son of Santa Singh before A.S.I. Shri Kashmir Singh of PoliceStation, Nakodar, and the complainant stated before the Thanedar that he was a resident of Shahpur and worked as an Assistant Lineman in the Electricity Board at Mehatpur. On the day of occurrence, in the evening he came to the house of his brother Shri Shangara Singh where his father Santa Singh and his sisterinlaw Kulwant Kaur were also present. Electric bulb was burning in the courtyard of the house. At about 9.00 P.M. Avtar Singh son of Shri Karam Singh, Jat resident of village, whose house is situated near the house of Shangara Singh, came to the house of said Shangara Singh and he demanded money back from the deceased who owed to the accused that money. Upon this, Shangara Singh told the accused that he was not in a position to pay back the money on that day and he shall return the same in few days. However, Avtar Singh insisted him for the payment at that very time and he then started hurling the abuses to Shangara Singh. Then Santa Singh, father of the deceased, his sisterinlaw Kulwant Kaur, requested the accused not to quarrel with the deceased but Avtar Singh did not pay any heed to their request. It is alleged by the complainant that within his sight, Avtar Singh at once took out a Chhuri (Knife) from his dub and started giving blows with it to his brother Shangara Singh who was aged 30/32 years. Those blows hit Shangara Singh above the left nipple in the chest and on his right shoulder. The complainant, Santa Singh and Smt. Kulwant Kaur tried their best to save Shangara Singh but Avtar Singh did not stop. On receipt of the knife blow, Shangara Singh fell on the ground. The witness raised alarm "Mar Ditta Mar Ditta". However, the accused ran away from the place of occurrence with his weapon. It is further stated by the complainant that his brother had died at the spot. On hearing the raula many persons collected at the spot. After leaving his father Santa Singh and sisterinlaw Smt. Kulwant Kaur at the spot he along with Harbans Singh Sarpanch started proceeding to the PoliceStation in order to lodge the report but on the way at the canal bridge Maheru, they met the policeparty, headed by ASI Kashmir Singh. ASI recorded the statement Ex.PD of the complainant. The Thanedar made the endorsement Ex.PD/1 and it was sent to the PoliceStation, Nakodar, for the registration of the case under Section 302/452 of the Indian Penal Code through the constable Kashmira Singh No. 1416 and on the basis of this endorsement formal FIR No. 88, dated 18.5.1989 under Section 302/452 IPC was registered vide DDR No. 37/38 dated 18.5.1989 at 12.05 A.M. The DDR was closed at 12.35 A.M. The special report of this case reached the Ilaqa Magistrate at 1.00 A.M. on 18.5.1989.
4. ASI Kashmir Singh started the investigation of this case. He visited the place of occurrence. The dead body was lying in the house of Shangara Singh. The Thanedar prepared the inquest report Ex.PC in the presence of Sukhwinder Singh and Harbans Singh. He also recorded their statements in the inquest proceedings. He prepared request Ex.PB for postmortem examination and the dead body of Shri Shangara Singh was despatched to the mortuary for post mortem examination under the custody of Bachitar Singh and Askaranjit Singh constables. The Thanedar inspected the place of occurrence and he took into possession blood stained earth and made a sealed parcel thereof vide recovery memo Ex.PF. He also took into possession the ordinary earth from the place of occurrence and made a sealed parcel thereof vide recovery memo Ex.PF. He prepared the rough site plan Ex.PG with correct marginal notes. He recorded the statements of the witnesses. After the postmortem examination the constable produced before the Thanedar the clothes of the deceased which were taken into possession vide recovery memo Ex.PH. On return to the Police station, the Thanedar handed over the sealed parcel of the blood stained earth with Moharrir Head Constable with seals intact. He made a search of the accused in order to arrest him but he was not available.
5. On 30.5.1989, Sarpanch produced Avtar Singh accused and he was arrested. On 1.6.1989, the Thanedar interrogated Avtar Singh with regard to the weapon of offence in the presence of ASI Darshan Singh and H.C. Baljit Singh. Avtar Singh accused disclosed that he had kept concealed one dagger in the heap of chaff and he could get the same recovered. His statement Ex.PJ was recorded which was signed by him. Thereafter, the accused led the police party and the witnesses to the specified place of concealment and got recovered dagger/knife Ex.P.1 from underneath the heap of chaff. The Thanedar made a sealed parcel of the knife Ex.P.1 and it was taken into possession vide memo Ex. PJ/1, attested by ASi Darshan Singh and HC Baljit Singh. The Thanedar also prepared the rough sketch of the knife Ex.PJ/2. He prepared the rough site plan Ex.PJ/3 of the place of recovery. He recorded the statements of the witnesses and on return to the PoliceStation, deposited the dagger/knife with MHC, with seals intact.
6. On 18.5.1989, Dr. Pal Singh Virk, Medical Officer, Civil Hospital, Nakodar, conducted the postmortem examination on the dead body of Shangara Singh aged 30/32 years, which was brought by constable Bachittar Singh and Askaran Jit Singh and identified by Harbans Singh and Sukhvinder Singh and the doctor found the following injuries on his person :
1. Stab wound 2 x 3/4 cm on the left side of chest 8 cm above nipple over mamory line oblique in direction.
2. Stab wound 11/3 cm x 3/4 cm on right side of upper the chest 4 cm outer to middle of clavicle, oblique in direction.
3. Abrasion 112 x 1/4 cm on right side of nose 2 cm below root of nose.
4. Abrasion 112 x 1/4 cm on left side of upper lip 1 cm outer to left ala of nose.
7. On dissection, the injury No. 1 underlying skin, soft tissues, muscles were cut pleura was cut and plural cavity contained about one litre of blood and there was a 11/2 cm long and 1/2 cm wide and 2 cm deep cut in the upper lobe of left lung. The lung cavity contained blood about 1/2 litre.
8. Under injury No. 2 the underlying skin, facia and pectorals major muscle fibres were cut. The axillary artery was cut 3/4 of its circumference. The medial root of median nerve was cut through and through. As per the opinion of the doctor, the stomach was healthy and it contained semidigested food about 300 ml.
9. The injuries were antemortem in nature and in the opinion of the doctor the cause of death was due to shock and haemorrhage on account of injuries No. 1 and 2 which were sufficient to cause death individually and collectively in the ordinary course of nature. The probable time that elapsed between the injury and death was about 10 to 15 minutes and between death and post mortem examination was 12 hours. Ex.PA is the carbon copy of the post mortem report. Ex.PB is the inquest report on the basis of which the doctor conducted the post mortem. The doctor also stated in his statement that the statement of Kashmira Singh Ex.PD, copy of the FIR Ex. PD/2 and request for post mortem Ex.PC, accompanied the dead body. The doctor further opined that injuries No. 1 and 2 could have been caused with dagger while injuries No. 3 and 4 of Shangara Singh could have been caused by a fall.
10. The blood stained earth, the clothes of the deceased and the dagger, were sent to the office of Chemical Examiner who found blood on these articles. The contents of the blood were sent to the office of Serologist and vide report Ex.PL, the Serologist opined that blood stains on earth and Chhuri were not sufficient for test while the contents of Phatui and kasha were disintegrated.
11. On the completion of the investigation, all the accused were challaned in the Court of Area Magistrate, who supplied the copies of the documents to the accused and vide order dated 5.8.1989 accused Avtar Singh was committed to the Court of Session to face the trial.
12. Vide order dated 19.8.1989, the learned Sessions Judge, Jalandhar, framed a charge under Section 302 of the Indian Penal Code against the appellant Shri Avtar Singh which was read over and explained to him. The accused pleaded not guilty to the charge and claimed a trial.
13. In order to prove the charge, the prosecution examined Dr. Pal Singh Virk, Medical Officer, Civil Hospital, Nakodar, who conducted the post mortem examination on the dead body of Shangara Singh. His observations have already been noted by us in the earlier portion of this judgment.
14. The prosecution also examined Shri Dalip Singh, Draftsman who prepared scaled site plan Ex.PE of the place of occurrence, according to scale of 1" equal to 16 feet, with correct marginal notes.
15. The prosecution tendered into evidence affidavits of MHC Naresh Kumar, constable Bachittar Singh, Chatter Singh and Jaspal Singh as their statements were of formal nature and the learned Sessions Judge admitted their statements on affidavits after giving opportunity to the opposite party and those were exhibited as PW3/A to PW6/A, respectively.
16. Kashmira Singh PW7 is the complainant and he proved the ocular account. His statement is also corroborated from the statement of Smt. Kulwant Kaur PW8. PW9 is Kashmir Singh the investigating officer. The learned Public Prosecutor in the trial Court finally tendered into evidence the reports Ex.PK and PL of the Chemical Examiner and the Serologist and closed the case after giving up Harbans Singh PW as having been won over by the accused and the remaining witnesses were given up as unnecessary.
17. On closure of the prosecution evidence the statement of the accused was recorded under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. The accused denied those circumstances and stated as follows :
"I was go between the marriage of Sucha Singh and his wife. Sucha Singh turned out his wife as he has liaison with Kulwant Kaur PW. I had protested against this conduct of Sucha Singh. He and Kulwant Kaur joined together to falsely implicate me in this case".
18. When called upon to enter into the defence, the accused examined Harbans Singh son of Sh. Mauja Singh resident of Shahpur, as DW1, who deposed that Avtar Singh hails from his village and so was Shangara Singh deceased. His house is adjacent to the house of Shangara Singh. He is Sarpanch. At about 10.30 or 11 P.M. on the day of occurrence he was present in his house and heard noise from the house of Shangara Singh. He rushed to that house. When he reached at the house of Shangara Singh he saw him lying on a cot with injuries on his person and he had breathed his lost. Other villagers had also arrived there before his arrival. He inquired from them as to who had caused the injuries to Shangara Singh but they replied that the assailant was not known. According to this witness, Kashmira Singh, Santa Singh and Kulwant Kaur were not present in he house at the time. They arrived there after the arrival of this witness. He accompanied Kashmira Singh to inform the police. Kulwant Kaur contracted marriage with Sucha Singh brother of Shangara Singh deceased on the intervention of the village panchayat. A writing was prepared in this regard which was scribed by him and he handed over the same to Sucha Singh. The witness further deposed that Avtar Singh was arrested by the police on the next morning of the murder of Shangara Singh. In the cross examination, Shri Harbans Singh deposed that he was not present at the time of the preparation of the inquest report. He admits his signatures on Ex.PC and PC/1 but states that these documents were not read over to him at the time of obtaining his signatures. He further admits that he did not state before the police that he was attracted by the noise at about 10.30 or 11.30 P.M. He also admits that accused is from his brotherhood and so was the deceased. According to this witness no reference was made in the panchayat record about the writing of marriage between Kulwant Kaur and Sucha Singh. He further admits that he did not make any complaint to the police orally or in writing against the arrest of the accused in this case nor any resolution was passed in the Gram Panchayat against the false implication.
19. The learned trial Court for the reasons given in para No. 14 of the judgment came to the conclusion that Avtar Singh is guilty for the offence under Section 304 PartI of the Indian Penal Code and not under Section 302 of the Indian Penal Code. Para No. 14 of the judgment of the trial Court is reproduced as under :
"The last argument of the defence is that the case does not fall U/s 302 IPC rather it would be attracted by the provisions of Section 304 Part I IPC. In order to develop his argument the learned counsel urged that the occurrence had taken place suddenly without premeditation and in a heat of passion. Further he argued that the assailant had not taken any undue advantage nor he acted in a cruel manner. According to the defence counsel the case in hand falls within the ambit of Exception4 of Section 300 IPC. I am in agreement with this defence argument that the accused inflicted only two injuries with a small knife without previous enmity and, of course, on some provocation, all of the sudden. That being so, the accused is liable to be convicted U/s 304 Part I of the Indian Penal Code and not U/s 302 IPC. I record his conviction accordingly".
13. Resultantly, the appellant Shri Avtar Singh was convicted and sentenced in the manner as stated above.
14. Aggrieved by the judgment and order of the trial Court, the State has filed an appeal making a prayer that the appellantaccused should be convicted and sentenced under Section 302 of the Indian Penal Code. Similarly, the complainant has also filed a revision. On the contrary, Shri Avtar Singh accused has filed the appeal and it has been prayed by him that he should be acquitted totally and that the trial Court erred in believing the statement of Kashmira Singh and Kulwant Kaur.
15. We have heard Shri S.S. Randhawa, learned DAG, appearing on behalf of the State of Punjab, Shri G.S. Dhillon, learned counsel appearing on behalf of the accusedappellant and Shri H.S. Sandhu, learned counsel appearing on behalf of the complainant and with their assistance have gone through the record of this case.
16. First of all, we would like to comment upon the appeal of Shri Avtar Singh, whose counsel Shri Dhillon, submitted that the trial court erred in relying upon the statement of Shri Kashmira Singh and Smt. Kulwant Kaur.
17. It is established on the record that the dead body of Shri Shangara Singh was found lying on a cot in his house. It is also established that from the house of Shangara Singh deceased the bloodstained earth was taken into possession. In these circumstances, the presence of the family members are very natural.
18. Now, let us examine how Shri Kashmira Singh PW7 has established his presence at the place of occurrence. We cannot lose sight of the fact that Kashmira Singh is none else but a real brother of Shri Shangara Singh deceased and in such a situation, Kashmira Singh would be the last person to screen the real offender. According to this witness he used to return to his village from Mehatpur after duty hours. Mehatpur is hardly at a distance of half a mile from his village Shahpur. The witness deposed that only 8 to 10 houses intervene between his house and that of Shri Shangara Singh deceased. The witness deposed that on 17.5.1989, at about 8 P.M. he went to the house of Shangara Singh where he and his wife along with his father were present and when they were talking with each other after taking the meals, accused Avtar Singh entered inside the house of Shangara Singh and demanded money from the deceased upon which deceased told the accused that he would pay the demanded amount after some time as he was not in a possession of the money at that time. It has further come in the statement of Kashmira Singh that Avtar Singh accused insisted for the payment at that very time. So much so he gave abuses to Shangara Singh. It has further come in the statement of Kashmira Singh that he intervened and asked the accused not to hurl the abuses upon which Avtar Singh took out a Chhuri from his dub and gave two blows to Shangara Singh; one on his left nipple in the chest and the other on his right shoulder. It has also been stated by the witness that after inflicting the injuries Avtar Singh fled away from the place of occurrence along with the weapon of offence. It has also come in the statement of this witness that there was a electric bulb burning in the courtyard of the house of Shangara Singh at the time of the occurrence. When they examined Shangara Singh he had already succumbed to his injuries.
19. The statement of Shri Kashmira Singh has been amply supported by Smt. Kulwant Kaur who deposed that when her husband told the accused that he was not in a position to pay the money at that time and made a promise to pay later on but Avtar Singh deceased started hurling abuses and when he was asked not to give abuses, he took out a Chhuri from his dub and gave two blows on the left chest and right chest. On receipt of these injuries, her husband fell down. Thereafter, accused left the place of occurrence along with weapon. It has also come in the statement of the lady that her Jeth and Harbans Singh Sarpanch of the village went to the PoliceStation while she and her fatherinlaw remained at the spot to guard the dead body. Further she deposed that the house of the accused was opposite to her house in the same street and the dead body which was earlier lying on the ground was placed on a cot before the arrival of the police. We have also gone through the cross examination of this witness. Though the learned counsel appearing on behalf of Shri Avtar Singh has tried to convince us that Kashmira Singh and Smt. Kulwant Kaur are false witnesses but we are not convinced with his submission for the simple reasons that it is established on the record that the occurrence has taken place inside the house of Shri Shangara Singh and in these circumstances, the presence of Kulwant Kaur is most natural. Kashmira Singh has also cogently explained his presence as to why he had gone to the house of his brother Shangara Singh. The learned counsel for the appellant submitted that the house of Shri Kashmira Singh is at a distance of 5/7 houses from the house of Shangara Singh and, therefore, he had no business to go to that house. The counsel submitted that Kashmira Singh has been introduced as a false witnesses by the Investigating Officer being the brother of Shangara Singh. We are not convinced with this argument. The house of Kashmira Singh is hardly at a distance of 57 houses from the house of Shangara Singh. There is nothing on the record to show that Kashmira Singh and Shangara Singh were not on speaking terms. In village life in the evening the members of the brotherhood, especially the close relations, sit together in order to share the opinion of each other on the events which happened during the day. The counsel for the appellant has not been able to show from the record that Kashmira Singh was inimical towards his client. The case set up by the accused is that Smt. Kulwant Kaur wife of Shri Shangara Singh was carrying on with Sucha Singh and this alleged conduct was being objected to by the accused and Shangara Singh has been killed by some stranger. Smt. Kulwan Kaur and Sucha Singh connived with each other and they have lodged a false case after taking the assistance of Shri Kashmira Singh PW7. We are not convinced with this argument also. It has come in the statement of PW7 Kashmira Singh that no Karewa marriage between Kulwant Kaur and Sucha Singh had ever taken place with the intervention of the Panchayat after the death of Shangara Singh. Otherwise also it does not look probable that Smt. Kulwant Kaur who is a domestic lady having three small children, would try to indulge in this type of activity with Sucha Singh who himself was a married. It was also argued by the learned counsel for the appellant Avtar Singh that the appellant was a Bachola of the marriage of Sucha Singh and his wife. Strained relations developed between Sucha Singh and his wife as a result of that Sucha Singh started having illicit relations with Smt. Kulwant Kaur. But this aspect of the defence is also not proved by any cogent, reliable or satisfactory evidence. Though an effort was made through the statement of DW1 that after the murder of Shri Shangara Singh, Smt. Kulwant Kaur performed a Karewa with Sucha Singh by a writing which was prepared in that regard with the intervention of the Panchayat but in our opinion, this is a simple suggestion with no cogent proof specially when Smt. Kulwant Kaur has categorically stated that she has not performed any Karewa. There is no evidence in the shape of ration card and voters list etc. to show that after the murder of her husband, Smt. Kulwant Kaur started residing as a wife in the house of Shri Sucha Singh and also there is no evidence that any dissolution of marriage took place between Sucha Singh and his own wife.
20. It was then submitted on behalf of the learned counsel for the appellant Shri Avtar Singh that the prosecution story is based on the statement of two witnesses who are interested in the success of the case and no independent witness has been associated. The submission of the learned counsel for the appellant cannot be accepted for the simple reason that the occurrence has taken has inside the house and in such a situation, only the natural inmates of the house or their relations would be the most probable witnesses.
21. Further argument which was developed by the counsel appearing on behalf of Shri Avtar Singh accusedappellant was that the house of the deceased was situated in a residential area of the village and still on hearing the altercation between the deceased and the accused nobody was attracted at the spot. The submission cannot be accepted; firstly, there was no altercation because the case of the prosecution is that the accused made the demand for money. Upon this, the deceased told him that he was not in a position to pay the money at that time on which the accused started raising abuses. There was hardly any altercation or commotion between the deceased and the accused. The case of the prosecution further is that on denial, the accused became infuriated and he took out the knife from the dub and gave two knife blows one after the other on the chest and right shoulder region of the deceased. In such a situation, there was hardly any time which might have attracted the neighbours. Moreover, we cannot lose sight of the fact that the accused was neighbour of the deceased and in such a situation, no independent person would try to the come forward in order to invite the enmity. On the contrary the probability is that deceased might have borrowed the money from the accused being a neighbour and when he was not in a position to repay the loan, it furnished a source of grievance to the accused to take the law into his own hands. The story of the prosecution can further be tested by taking in view the fact that the FIR has been lodged without any delay. The occurrence took place at about 9.00 P.M. The statement of Kashmira Singh was recorded by ASI Kashmir Singh at 11.00 P.M. on the basis of which FIR was recorded in the policestation at 12 mid night and the special report in this case reached the Ilaqa Magistrate at Nakodar at 1.00 A.M. The law on this point is well settled that if an FIR has been lodged without any delay and special report has also been received by the Area Magistrate with promptitude, it lends sufficient corroboration to the story of the prosecution ruling out the possibility that a false story has been coined to the disadvantage of the accused. Moreover, we cannot lose sight of the fact that it is a case of single accused. The enmity which has been suggested by the accused has already been found to be untenable and has no basis. Assuming for the sake of arguments that Smt. Kulwant Kaur and Kashmira Singh are interested witnesses, still we cannot reject their testimony on that ground. At the most we can scrutinise their statements with great care and caution. If their statements are corroborated by various circumstances, such as medical evidence and the recovery of weapon, that strengthens the version of the prosecution.
22. It was also suggested by the counsel for the appellant Shri Avtar Singh that neither Kulwant Kaur nor Kashmira Singh intervened in order to rescue Shangara Singh. Had they been present at the place of occurrence they would have received some injuries at the hands of the assailant. We are not convinced with this submission. It is the case of the prosecution that only two injuries were caused by the accused one after the other. The accused was armed with a deadly weapon whereas both the PWs were not carrying any weapon at that time. They did not even notice that the accused had a knife concealed in the dub. Therefore, the nonintervention on the part of Kashmira Singh and Kulwant Kaur was a probable act and on that score their testimony cannot be rejected. The ocular account is further corroborated by the medical evidence of Dr. Pal Singh Virk who deposed that injuries No. 1 and 2 could be caused by Chhuri while injuries No. 3 and 4 could be the result of the fall.
23. In this view of the matter, we are of the considered opinion that the presence of Kulwant Kaur and Kashmira Singh is most natural and probable and the ocular account of the story of the prosecution has been established by cogent, reliable and satisfactory evidence.
24. Now the vital point for determination is whether the trial Court was justified in convicting the appellant Avtar Singh under Section 304 PartI of the Indian Penal Code.
25. Section 300 of the Indian Penal Code defines murder and it lays down that 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 if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused or if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
26. The reading of the above would show that if an act has been committed with the intention to cause death or with the intention to cause such bodily injury which the offender knows is likely to cause death, in such a situation it will amount to murder until and unless the action of the offender is covered by any of the exceptions of Section 300. According to clause 3 of Section 300, if the death is caused with intention of causing bodily injury and such bodily injury is sufficient to cause death in the ordinary course of nature even in such a situation, it will be considered as murder. The intention is always judged from the action and its consequences.
27. In this regard, we may refer to the statement of Dr. Pal Singh Virk, who deposed that he noticed two stab injuries on the chest and on the right shoulder of the deceased. This is a sensitive part of the human body. The doctor further stated that on dissection of injury No. 1 tissues, muscles and pleura were cut and there was 11/2 cm long and 1/2 cm wide and 2 cm deep cut in the upper lobe of left lung. Similarly, on dissection of injury No. 2 the pectorals major muscle fibers were cut and the axillary artery was also found cut to the extent of medial root of median nerve which was found cut through and through. Knife is a deadly weapon. The accused repeated the blow when it was given on the right side shoulder of the deceased near the chest. The accused was fully prepared for the crime as he trespassed into the house of the deceased. There is no evidence at all that any altercation took place or any fight took place just before the occurrence or there was any exchange of hot words. Rather the evidence is that deceased told the accused that he was not in a position at repay the loan and he would arrange the money after sometime. Accused became infuriated. He started giving abuses without any provocation from the side of the deceased and took out a knife from his dub and gave two injuries one after the other on the vital part of the body of the deceased and as per the opinion of the doctor both the injuries were sufficient to cause death individually and collectively in the ordinary course of nature. In these circumstances we are not convinced with the reasons given by the trial Court that the case of the prosecution is covered by any of the exceptions of Section 300 of the Indian Penal Code.
28. In 1971 Crl.L.J. 57, Ramakrishna Panicker and another v. State of Kerala, in para No. 6, it was held as under :
"6. Having regard to all the circumstances we do not link that we would have had much difficulty in coming to the conclusion that in stabbing PW1 in the chest with a pointed knife with such force as to penetrate into the pleural cavity, the Ist accused must have been actuated by the intention to cause bodily injury sufficient in the ordinary course of nature to cause death, if not the intention to cause death. In order words, that his offence really falls under Section 307".
29. If the above ratio of the judgment is applied in the present case, we have no difficulty in holding that the death of Shri Shangara Singh was a murder and the action of Shri Avtar Singh did not fall in any of the exceptions.
30. In 1976 Crl.L.J. 1242 Damisetti Subbanna v. The State, it was observed as follows :
"When an accused intentionally causes an injury which results in the death of the deceased, the action of the accused amounts to murder if the intentionally inflicted injury is sufficient in the ordinary course of nature of cause death. The opinion of the doctor that injury is sufficient to cause death plainly connotes that the injury is enough or adequate to cause death in the usual or ordinary course."
31. Further it was observed in the aforesaid case that the enquiry in regard to the question whether the injury is sufficient in the ordinary course of nature to cause death is purely objective and inferential and the matter has to be decided by the Court as a question of fact.
32. In AIR 1979 S.C. 1828 Abdul Waheed v. The State of Maharashtra, in para 3 of the judgment, it was held as follows :
"It was then contended by Mr. Hardev Singh that the case against the appellant falls under S. 304 and not under S. 302. We are, however, unable to agree with this contention as the nature of the injury inflicted by the appellant on the deceased by a weapon like knife which was as much as 3" deep manifestly and clearly intended to kill the deceased, and that too on some very paltry matter, that is to say, the refusal of the deceased Papa Khan to supply goods to the appellant on credit. In the circumstances, therefore, we think that the Sessions Judge was right in convicting the appellant under S. 302 IPC. For these reasons, there is no merit in the appeal which is accordingly dismissed."
33. In the cited case the accused gave knife injury 3" deep with the intention to kill and that on some very paltry matter like the case in hand. The Hon''ble Supreme Court gave the ratio that the accused has been rightly convicted under Section 302 of the Indian Penal Code.
34. Thus, we are of the considered opinion that the learned trial Court was not justified in recording the conviction of Avtar Singh accusedappellant under Section 304 PartI of the Indian Penal Code. Rather we are of the considered opinion that this finding on the part of the learned trial Court is patently erroneous and the same is hereby set aside. Consequently, Crl. Appeal No. 363DBA of 1991, filed by the State is hereby allowed and the accusedappellant Shri Avtar Singh, is convicted under Section 302 of the Indian Penal Code for committing the murder of Shri Shangara Singh and he is sentenced to undergo life imprisonment and to pay a fine of Rs. 2,000/. In default of payment of fine he shall undergo R.I. for a period of six months.
35. In the light of the observations made by us while allowing Crl. Appeal No. 363DBA of 1991 filed by the State, Crl. Appeal No. 141SB of 1991 filed by Avtar Singh accusedappellant, stands dismissed and Crl. Revision No. 635 of 1991, filed by Kashmir Singh complainant, needs no action and the same also stands disposed of in view of the observations made by us while allowing the appeal filed by the State. The copy of this judgment be sent to the Court of Chief Judicial Magistrate, Jalandhar for compliance.
36. Resultantly, all the three cases i.e. Crl. Appeal No. 363DBA of 1991, filed by the State, Crl. Revision No. 635 of 1991, filed by Kashmira Singh complainant and Crl. Appeal No. 141SB of 1991, filed by Avtar Singh accused appellants, stand disposed of in the manner as indicated above.
