Rakesh Saksena, J.@mdashAppellant has filed this appeal against the judgment dated 14th June, 2001 passed by Sessions Judge, Bhopal in Sessions Trial No. 404/2000 convicting the Appellant under Sections 302 and 326 of the Indian Penal Code and sentencing him to imprisonment for life with fine of Rs. 500/-and rigorous imprisonment for 6 months with fine of Rs. 100/- on each count, respectively.
2. In short, prosecution case is that on 3.9.2000, Dilip Sahu, the deceased was staying in Swadeshi Lodge situated in Hanumanganj, Bhopal. Lachhu Sindhi and Dinesh Sahu had gone to meet him. At about 10:00 p.m. Appellant along with his wife Rajkali and Dinesh Yadav went there and met Dilip Sahu. They made demand of their money which was borrowed by him. Talking to them Dilip Sahu came down on the road. Dilip Sahu assured them that he would return the money, but they insisted that he should return it on that very day. An altercation ensued between them during which accused Dinesh Yadav caught hold of Dilip, Appellant''s wife Rajkali dealt a blow on the forehead of Dilip by broken glass bottle and Appellant took out a Chhuri from his waist and dealt blows with it on the chest and waist of Dilip. Dilip fell down. When Dinesh Sahu (PW-5) tried to save him, Appellant dealt a blow with Chhuri to him also whereby he suffered injury on his right hand thumb. In the meanwhile, constable Naresh Lakda (PW-6) who was present in the vicinity and ASIR.P. Pandey (PW-12) caught the Appellant and took him to police station. Naresh Lakda took injured persons to hospital where Dilip Sahu was declared dead. On the information given by Dinesh Sahu (PW-5), first information report Ex.P/14 was recorded at police station Hanumanganj and a case u/s 307/34 I.P.C. was registered against all the three accused persons. At about 11:00 p.m. on receiving the report from Dr. Shailendra Shrivastava, C.M.O. Hamidya Hospital, Bhopal about the death of Dilip, marg intimation report Ex.P/17 was recorded at police station, Maharana Pratap Nagar, Bhopal. Dead body of Dilip Sahu was sent for postmortem examination. Dr. C.S. Jain (PW-13) conducted the postmortem examination of the dead body and found seven injuries on it. Four injuries were stab wounds. Postmortem examination report is Ex.P/23. Dr. Shailendra Shrivastava (PW-1) examined the injuries of Dinesh Sahu and found one incised wound on his right hand index finger. His report is Ex.P/1. Dr. Manoj Mehra (PW-11) also performed the medico legal examination of Dinesh and vide his report Ex.P/22 confirmed the said injury. Spot map was prepared and a Chhuri was seized from the possession of Appellant. After further investigation, charge sheet was filed and the case was then committed for trial. Accused Dinesh Yadav remained absconding.
3. During trial, Appellant abjured his guilt and pleaded false implication. According to him, Dinesh Sahu (PW-5) falsely implicated him because Rajkali married him instead of marrying to Dinesh Sahu. In defence, Appellant examined Mangiram (DW-1).
4. Prosecution examined fourteen witnesses. Dinesh Sahu (PW-5), Naresh Lakda (PW-6), Lachhu @ Laxman (PW-2) and Omprakash (PW-4) were examined as eyewitnesses of the incident. Lachhu and Omprakash, however, did not support the prosecution case. Dr. Shailendra Shrivastava (PW-1), Dr. Jyoti (PW-10), Dr. Manoj Mehra (PW-11) and Dr. C.S. Jain (PW-13) were examined to prove the injuries found on the body of injured Dinesh Sahu and deceased Dilip Sahu.
5. Learned Sessions Judge, after trial and upon appreciation of evidence adduced in the case, convicted and sentenced to Appellant under Sections 302 and 326 of the Indian Penal Code, however, finding the evidence insufficient against accused Rajkali, acquitted her. Aggrieved by his conviction, Appellant filed this appeal.
6. We have heard the learned Counsel for the parties and perused the record.
7. It was no longer disputed that deceased Dilip Sahu died of homicidal injuries. It is reflected from the evidence of Dr. Shailendra Sahu (PW-1) that when Dilip Sahu was brought to Hamidya Hospital, he was found dead. He had sent report in this regard to police. Dr. C.S. Jain (PW-13), Forensic Expert, Medico Legal Institute, Bhopal conducted the postmortem examination of the body of deceased and vide his report Ex.P/23, found following injuries on his body:
(i) Lacerated wound just above right eyebrow 4 x 0.6 cm, skin deep.
(ii) Lacerated wound on right maxillary region 3 x 2 cm, skin deep.
(iii) Lacerated wound on anterior aspect of chin below lower lip 1 x 0.5 cm muscle deep.
(iv) Stab wound on epigastria region 3.5 x 0.5 cm. One end pointed and other blunt. It perforated diaphragm, left ventricle wall with pericardium. Depth 8 cm.
(v) Stab wound on left hypochondria region 4 x 1cm. It stabbed stomach. Depth minimum 12 cm. Direction left to right below upward.
(vi) Stab wound on left inguinal region 1 x 0.4 x 6cm. Direction above downwards.
(vii) Stab wound on left upper thigh 3.5 x 0.5cm, skin deep.
In the opinion of Dr. Jain, death was caused due to shock and hemorrhage as a result of multiple stab injuries caused by hard sharp penetrating object. Injuries were sufficient to cause death in ordinary course of nature. Death was homicidal.
8. Apart from above evidence, from the evidence of Dinesh Sahu (PW-5) and Naresh Lakda (PW-6), it is amply established that deceased had suffered injuries as a result of assault by Chhuri. After death, the intimation in that regard was sent by Dr. Shailendra Shrivastava to police and marg intimation was recorded. Sub Inspector Vijay Bahadur Singh Chouhan (PW-9) conducted the inquest proceedings vide memorandum Ex.P/19 indicating the death of deceased by injuries. It was thus clearly established that deceased Dilip Sahu died of homicidal injuries.
9. Learned Counsel for the Appellant did not dispute that Appellant inflicted injuries to deceased by Chhuri as a result of which he died, but he submitted that the trial Court erred in convicting the appellant u/s 302 of the Indian Penal Code. According to him, since the incident occurred suddenly after a hot altercation on refusal of deceased to return money of Appellant, at the most Appellant could have been held liable for committing the offence of culpable homicide not amounting to murder. Learned Counsel pointed out that Appellant is continuously in custody since 4.9.2000. Learned Counsel for the State, on the other hand, justified and supported the conviction and sentence of the Appellant.
10. Dinesh Sahu (PW-5) deposed that he had gone to meet deceased who was staying in Swadeshi Lodge. After sometime, he along with deceased and Lachhu came down on the road. Appellant, Rajkali and absconding accused Dinesh Yadav reached there and demanded Rs. 15,000/-from deceased. Since Dilip had no money, he asked accused persons to not to quarrel and that he will make the payment. However, while they were on the road, hot altercation ensued between deceased and the accused persons. Dinesh Yadav caught hold of the hand of deceased and Appellant inflicted injuries to deceased by Chhuri. He dealt blows on his chest and abdomen. When he tried to defend the deceased, he also suffered injuries on his right hand thumb. He deposed that Dinesh Yadav ran away on the motorcycle. However, Appellant and Rajkali were nabbed by the people and some policemen. When he and Dilip Sahu were taken by police to hospital, Dilip was declared dead. He then went to police station and lodged the report Ex.P/14. Though this witness was subjected to a lengthy cross-examination, but nothing material could be elicited out to render his testimony unreliable. His evidence stood corroborated by the fact that he suffered injury in the occurrence. Dr. Shailendra Shrivastava (PW-1) and Dr. Manoj Mehra (PW-11) examined his injury and found an incised injury on his right hand thumb. His presence at the spot, therefore, stood established. Apart from it, his evidence finds further support from the first information report Ex.P/14 lodged by him immediately after the occurrence at 11:10 p.m. It is also significant to note that there is no suggestion by the accused that PW-5 had any animus against the Appellant. It was deposed by him that for the first time he had seen the Appellant and Rajkali at the time of occurrence.
11. Evidence of Dinesh Kumar Sahu stood further corroborated from the evidence of constable Naresh Lakda (PW-6), who was posted on duty at nearby ''Gallamandi''. According to Naresh Lakda, when deceased and some persons came out of Swadeshi Lodge, Appellant assaulted the deceased by Chhuri. Hearing the noise, he rushed to the spot and caught the Appellant. He also stated that one more person had cut injury on his finger. Sub Inspector R.P. Pandey had also reached at the spot and took accused persons to police station. Naresh Lakda had seen the Appellant for the first time. Though there was some variation between the evidence of Naresh Lakda (PW-6) and Sub Inspector R.P. Pandey (PW-12) but it was not material since the Appellant was caught by them at or near about the place of incident.R.P. Pandey (PW-12), in the presence of Israr Hasan (PW-3) also seized the blood stained Chhuri from the spot.
12. After scanning and appreciating the evidence of aforesaid witnesses, we are satisfied that the trial Court committed no error in holding that prosecution successfully established that Appellant inflicted stab injuries to deceased, as a result of which he died. It was also established that Appellant caused grievous injury by Chhuri to Dinesh Sahu (PW-5). Dr. Jyoti (PW-10), R.M.O. in Radiology Department of Hamidya Hospital deposed that from the X-ray Ex.P/20 taken by her, she found that bone of the index finger of Dinesh Sahu was cut and, therefore, the injury was grievous in nature. X-ray report Ex.P/21 was written and signed by her. Conviction of Appellant u/s 326 of the Indian Penal Code is, therefore, fully justified.
13. Now the question before us is whether in the facts and circumstances of the case, the conviction of Appellant u/s 302 of the Indian Penal Code was justified or his act would fall in the category of the offence of culpable homicide not amounting to murder.
14. On perusal of the evidence on record, we find that there is absolutely no iota of evidence to indicate that there had been enmity between Appellant and the deceased or that Appellant had motive to commit murder of deceased.
15. From the evidence of Dinesh Kumar Sahu (PW-5), it is revealed that Appellant and his wife Rajkali approached to deceased and demanded Rs. 15,000/-from the deceased, but deceased had no money, then he (PW-5) told to them to take money from him. While talking, when they reached the road, suddenly there ensued a hot altercation between Appellant and the deceased in the course of which Appellant inflicted injuries by Chhuri to deceased. Report of the incident (Ex.P/14) was lodged by Dinesh Sahu wherein he had mentioned that deceased told to him that he owed Rs. 15,000/-to accused persons which they were demanding. In these circumstances, it seems probable that suddenly, on spur of the moment Appellant took out Chhuri from his pocket and inflicted injuries to deceased. Thus, the facts of the case and the evidence on record indicate that assault was not premeditated. It sparked off suddenly when deceased failed to return the money of Appellant. We, therefore, find substance in the submission made by learned Counsel for the Appellant that the Appellant is entitled to the benefit of Exception 4 of Section 300 of the Indian Penal Code and the offence committed by the Appellant was culpable homicide not amounting to murder. However, there can be no doubt that Appellant used Chhuri and dealt its blow on vital parts of the body of deceased, therefore, it has to be held that he intended to cause death or such bodily injuries to deceased which were likely to cause his death. We are, therefore, of the view that Appellant is liable to be punished under Part-I of Section 304 of the Indian Penal Code.
16. For the reasons aforesaid, the finding of learned Sessions Judge holding the Appellant guilty of the offence of murder punishable u/s 302 of the Indian Penal Code is set aside and he is held guilty of commission of offence of culpable homicide not amounting to murder punishable u/s 304 (Part-I) of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years with fine of Rs. 1000/-. In default of payment of fine, he shall further undergo rigorous imprisonment for three months. Conviction and sentence of Appellant u/s 326 of the Indian Penal Code as awarded by the trial Court is affirmed.
17. Appeal partly allowed.
