R.P. Awasthy, J.
It is an appeal against the finding of holding the accused appellant guilty for committing an offence punishable u/s 302 of the Indian Penal Code and sentencing him to imprisonment for life.
Prosecution case is that on 14-5-1986, marriage of the daughter of Dhola Kumhar was going to be solemnised and on account of the said marriage ceremony, several people of village Chirga (Nayapara), Police Station Dhaurpur, District Sarguja, and the adjoining villages were invited at the house of Dhola Kumhar. There Kabilaso (PW.7), her son Sookhan, accused Panha and several other persons, including Prem and his wife Khaderan, were present. A quarrel took place between the wife of Prem and Kabilaso regarding the manner in which the food was served and the wife of Prem and Prem threw Kabilaso on the ground. Sookhan protested regarding the said incident and said that his mother had uttered nothing against either Prem or his wife and hence why they had thrown her on the ground. Thereafter, Sookhan, Dhola Kumhar and Doonda Gond intervened and saved the mother of Sookhan. In the said process, it appears that some injuries must have been caused to Prem or his wife. Panha, the accused, who was present at the place of incident, went to his house and brought an axe from his house. At that time, Sookhan was sitting on a cot and people of Ghasia caste were playing music on drums. Few girls of that community were dancing in the courtyard. Sookhan was throwing coins towards the drummers.
At this juncture, the accused, who had brought an axe from his house, came there and all of a sudden, without giving any warning, dealt one blow on the head of Sookhan and dealt yet another blow on his neck. On account of the said injuries, Sookhan died at the place of incident itself.
A report regarding the said incident was lodged by Khaituran (P.W.6) at Police Station Dhaurpur. After recording the said report, Head Constable of Police, Remish Kispotta (P.W.18) came to the place of incident, where he conducted usual death inquest as per memorandum Ex.P-13. He prepared map Ex.P-22 of the place of incident. Shri Remish Kispotta seized coins from the place of incident, as per seizure memo Ex.P.-16. He also seized a pair of shoes as per seizure memo Ex.P.-17. He found that the cot, on which Sookhan was sitting, was having blood-like stains. The rope, with which the said cot was weaved, was also seized as per seizure memo Ex.P.-18.
After causing injuries to Sookhan, the accused had thrown the axe on the place of incident itself and had fled away. The said axe was seized from the place of incident as per seizure memo Ex.P.-15. Bloodstained and plain earth from the court-yard of the house of Dhola were also seized as per seizure memo Ex.P.-14.
On the articles being sent to the Forensic Science Laboratory, Sagar, all the articles including the axe seized from the house of Dhola and the rope with which the cot was weaved, were found to be stained with blood. According to the report of Serologist, blood found on the rope and Baniyan of the deceased, was of human origin. Blood found on other articles, as per the said report, was disintegrated and, therefore, its origin could not be determined.
After completion of investigation, a report u/s 173 of the Code of Criminal Procedure was filed against the accused-appellant. The accused appellant pleaded not guilty of the charge for the alleged commission of offence punishable u/s 302 of the Indian Penal Code.
After recording evidence in the case, the trial Court held the accused appellant guilty and sentenced him as referred above.
Learned counsel for the accused appellant submitted that in view of sufficient evidence available on record, it is established that it was the accused and the accused alone who had inflicted the said bodily injuries found on the person of Sookhan,. Therefore he would not be in a position to assail the said finding. However, his contention is that the criminal act committed by the accused would come within the ambit of Exception 4 of Section 300 of the Indian Penal Code. His contention is that in para 9 of her deposition, Sonamati (P.W.5) has categorically admitted that her brother deceased Sookhan had caught hold of the hair of the mother of the accused. [According to Sonamati (P.W.5), the quarrel had taken place between the mother of the accused and the mother of the deceased, in which both of the ladies had caught the hair of each other. Thereupon, the deceased had intervened in the matter and had caught hold of the hair of the mother of the accused and had separated the mother of the accused from his mother.
Prior to the incident, there was no ill-will between the accused on the one hand and the deceased on the other. Therefore, this incident took place without any premeditation in a sudden fight in the heat of passion. Therefore, the criminal act committed by the accused would not come within the ambit of an offence punishable u/s 302 of the Indian Penal Code but would come within the ambit of an offence punishable under second part of Section 304 of the Indian Penal Code.
From the totality of evidence, it seems that the first incident had taken place in the noon when food was being served to the persons, who were invited in the house of Dhola Kumhar. In the said quarrel between the ladies, Sookhan had intervened and in the process he had caught hold of the hair of the mother of the accused. In view of the testimony given by Kabilaso (P.W.7), it appears that the said quarrel was pacified on intervention of the persons present there. Nevertheless, Sonamati (P.W.5) has stated in para 4 of her deposition that the quarrel continued for a period of two or three hours. She has also stated that after intervention by people, the persons who were quarrelling with each other, were separated and thereafter Sookhan was sitting on a cot. In spite of it, altercation, between the persons quarrelling, continued.
As the case may be, the present case would not fall within Exception 4 of Section 300 of the Indian Penal Code because the accused had gone'' to his house, had taken out an axe and then again returned to the place of incident. This goes to show and indicate that he had resolved and had premeditated that he would inflict injuries by means of the said axe on the person of Sookhan. It is also noteworthy that the accused appellant dealt two axe blows by means of Tangiya, on the vital parts of the body of Sookhan, without giving any warning or without saying anything. This circumstance also goes to give a glimpse of resolve, premeditation, intention and mental attitude of the accused-appellant.
Therefore, it cannot be said that the said offence was committed without any premeditation. Consequently, the criminal act committed by the accused would not be covered by the provision contained in Exception 4 of Section 300 of the Indian Penal Code.
Looking to the injuries caused by the accused on the person of Sookhan, no other inference can be drawn except that the accused intended to kill Sookhan.
Consequently, the present appeal fails in its totality and the finding given and sentence awarded by trial Court are maintained and confirmed.
Order passed by the trial Court pertaining to disposal of articles produced in the said court is also maintained and confirmed.
