Ranjan Gogoi, J.@mdashThis appeal is directed against the judgment and order dated 31.05.2008 passed by learned Additional Sessions Judge, Nawanshahr in case No. 43 of 2005 by which the accused appellant has been convicted u/s 302 IPC. Learned trial court has sentenced the accused/appellant to undergo R.I. for life and to pay a fine of Rs. 10,000/-, in default to suffer RI for a period of one year more. Aggrieved, this appeal has been filed.
2. The case of the prosecution in short, is that on the basis of the statement (Ex. PF) of PW 4 Surjit Singh as recorded by PW-8 SHO Naveen Pal Singh in the police post at Asron, formal FIR (Ex. PF/2) was recorded. The aforesaid statement made by PW-4 Surjit Singh was to the effect that on 0808.2004 at about 10.00 a.m. while the complainant along with his son Inderjit Singh were working in their fields, the accused/appellant came and informed them that Amrik Singh (deceased) to whom the accused had leased out his land, had irrigated the land excessively and had flooded the fields of the accused as a result of which a ditch/pit had been formed in the field belonging to the accused. According to the complainant, the accused had informed him that he was going to kill Amrik Singh and fill the ditch/pit by burying his dead body. According to complainant, he tried to reason out with the accused and requested him to amicably resolve the dispute, but the accused/appellant replied that he was going to settle the matter and for this purpose he had brought an axe along with him. The complainant had further stated that accused/appellant refused to listen to the complainant and went towards the village when he met Amrik Singh coming from the village towards the field. Thereafter, according to the complainant, the accused abused Amrik Singh and immediately gave 3-4 blows on the head of Amrik Singh with the axe that the accused was carrying. As a result of aforesaid assault, the deceased died on the spot.
3. After registration of the FIR investigation was carried out by PW-8. Inquest was held and the dead body was sent for post mortem examination. Site plan (Ex. PK) was prepared and after the arrest of the accused which was made on the same day, the disclosure statement (Ex. PM) made by him was recorded. On the basis of aforesaid statement, the alleged weapon of assault i.e. axe was recovered, vide recovery memo (Ex. PN/1). Thereafter, upon the conclusion of investigation and on receipt of post mortem report, challan was presented in the court of Sub Divisional Judicial Magistrate, Balachaur. The offence alleged being exclusively triable by the court of Sessions, the learned SDJM, Balachaur committed the case for the trial to the court of Sessions Judge, Nawanshahr. In the trial court, charge u/s 302 IPC was framed against the accused/appellant. The accused-appellant having pleaded not guilty to the charges framed, the trial commenced. In the course of trial, 8 prosecution witnesses were examined on behalf of the prosecution. No evidence was adduced by the defence. The statement of the accused/appellant was recorded u/s 313 Cr.P.C. Thereafter, at the conclusion of the trial, the accused/appellant has been found guilty and sentenced as aforesaid.
4. We have heard Mr. Kushaldeep S. Sandhu, Advocate for the appellant and Ms. Manjari Nehru Kaul, Additional Advocate General, Punjab.
5. Learned Counsel for the appellant in the course of elaborate arguments has taken us to the statements of PW-1 Dr. Anil Khosla, PW-3 Inderjit Singh, PW-4 Surjit Singh (complainant), PW-7 Kuldip Singh, (Patwari) and PW-8 SHO Naveen Pal Singh (investigating officer of the case). Learned Counsel for the appellant has submitted that evidence on record has conclusively proved and established that assault, though committed by the accused, was the result of grave and sudden provocation and, therefore, the conviction of the accused/appellant u/s 302 IPC is not justified. According to learned Counsel, on the basis of evidence on record, the learned trial court should have ordered for conviction of the accused appellant u/s 304 IPC as the offence committed falls within the 1st exception to Section 300 IPC. Learned Counsel for the appellant by referring to the evidence of Dr. Anil Khosla, who had performed the post-mortem examination, had submitted that injuries found on the deceased were caused by a single blow and to ward off the same the deceased had raised his right hand as a result of which his right wrist got severed. According to learned Counsel, as a result of said blow, cut injuries were caused in the face whereas the blunt part of the axe had hit the deceased on the head resulting in lacerated injury on the left arch and the left side of forehead causing fracture of the frontal bone. Learned Counsel has submitted that the single blow dealt by the accused/appellant rules out any intention to cause death. That apart, the evidence of PW-3 has been relied upon to show that the flooding of the field of the accused by the acts of the deceased gave rise to a grave and sudden provocation and immediately, thereafter, the accused had left for the village when he met the deceased. Learned Counsel has referred to the statement of the accused u/s 313 Cr.P.C. to point out that the deceased had abused the accused. This act of the deceased gave rise to another provocation. The difference of time between the two incidents, accordingly to learned Counsel, was marginal.
6. Learned Counsel has also referred to the cross-examination of PW-4 to point out that the relations between the accused and the deceased were cordial and they were, in fact, on visiting terms. Reliance on the evidence of PW-4, the complainant and PW-7, the Patwari, has been made to contend that the place where the first provocation occurred over the ditch/pit and place of the occurrence of the alleged crime were in very close proximity of each other. Therefore, according to learned Counsel, both incidents of provocation occurred one after another as a result of which the crime was committed in the heat of moment. In this regard, learned Counsel has also taken us to the statement of accused recorded u/s 313 Cr.P.C. to show that the accused was an ex-service man and was prone to sudden fits of anger. All the aforesaid evidence, according to learned Counsel for the appellant, would bring the present case within the 1st exception to Section 300 IPC. It is, therefore, argued that the conviction of the accused u/s 302 IPC is not legally tenable.
7. The arguments advanced by learned Counsel for the appellant have met with stiff resistance offered by learned Counsel for the State of Punjab who has pointed out that evidence on record in the present case does warrant conviction of the accused u/s 302 IPC. Learned State counsel has specifically referred to the evidence of PW-4, an eye witness, to show that even before the accused had met the deceased he had already made up his mind to commit the offence. The evidence of PW-4 has also been relied upon to contend that the said witness had clearly and categorically stated that accused had given 3-4 blows, in quick succession on the head of the deceased. The aforesaid evidence, according to learned State counsel, remains unassailed by the defence.
8. We have considered the rival submissions advanced on behalf of the parties. We have also scrutinized the evidence on record as well as the judgment under challenge in the present appeal.
9. Even if the argument of learned Counsel for the appellant that only one single blow could be attributed to the accused is to be believed, then also from the evidence of PW-1 Dr. Anil Khosla, it would follow that the said blow was, indeed, the fatal blow. The offence of murder contemplated by Section 300 IPC not only requires an intention on the part of an accused to cause death but also an intention to cause such bodily injuries which is likely to cause death or is sufficient in the ordinary course to cause death. In the present case the injuries were caused on a vital part of the body i.e head, by the use of axe and, therefore, it can be reasonably understood that said injuries were inflicted by the accused with the intention to cause death or at least with the intention to cause such bodily injuries that is likely to cause death in the ordinary course.
10. The evidence of PW-4 that the accused had informed him that he had made up his mind to kill Amrik Singh and fill the ditch/pit by burying his dead body; the refusal of the accused to entertain the request of the complainant for an amicable settlement and thereafter the giving of 3-4 successive blows on the head of Amrik Singh with the axe, in our considered view, clearly establishes the absence of any provocation on the part of the deceased resulting in the injuries caused by the accused. In fact from the evidence of PW-4, it clearly transpires us that accused had already made up his mind to kill the deceased and he was not in a mood to listen to any reason. If this was the bent of mind of the accused, the question of grave and sudden provocation on the part of the deceased will not arise. Grave or sudden provocation as contemplated by 1st exception of Section 300 IPC would require much more positive evidence with regard to conduct of the deceased which would make a reasonable person to lose all self control. Mere hurling of abuses by the deceased, even if the same is to be believed in the present case, in our considered view, cannot give rise to a grave and sudden provocation for commission of the offence alleged.
11. We, therefore, are of the view that contention of learned Counsel for the appellant that the act of the accused would be covered by the 1st exception to Section 300 IPC is not acceptable.
12. The net result of the aforesaid discussion would lead us to the conclusion that the conviction of the accused u/s 302 IPC has been rightly recorded by the learned trial court. We, therefore, will have no occasion to interfere with the conviction of the accused/appellant as recorded by the learned trial court and the sentence imposed.
13. Appeal, consequently, is dismissed.
