M. Karpagavinayagam, J.@mdashThis is a case of double murder, in which the Appellant Abdul Farook faced his trial along with 2nd accused Asraf Ali and 3rd accused Rameela Beebi in Sessions Case No. 239 of 1987, before the Principal Sessions Judge, Madurai. Five charges have been framed against all the three accused First charge relating to the allegation that the appellant/1st accused on 16-6-1987 at about 12.30 p.m. in front of the house of one Allavudeen situated at second lane, Arunachalapuram in Ismailpuram 19th street, Madurai, caused the death of one Alima Beebi, and thereby he committed the offence u/s 302 of Indian Penal Code. The second charge relating to the offence u/s 302 read with 109 I.P.C. against the 2nd accused for having instigated the Appellant to cause the death of one Jailani. The third charge was framed against the Appellant, alleging that he with M.O.I, knife stabbed the said Jailani during the course of the same transaction by inflicting injury on her left chest and thereby committed the offence u/s 302, I.P.C. The fourth charge relating to the accusation framed against the 3rd accused Rameela Beebi, that on the same day, at the same time, during the course of same transaction, she wrongfully restrained the said Jailani from proceeding further, thereby she committed an offence punishable u/s 341, I.P.C. The fifth charge was in respect of the offence u/s 302 read with 34, I.P.C. against the 3rd accused Rameela Beebi, alleging that she shared the common intention along with the appellant/1st accused, who caused the death of Jailani.
2. On termination of trial, learned trial Judge, found the Appellant alone guilty u/s 302, I.P.C. (two counts) and sentenced him to undergo imprisonment for life for each count. Substantive sentences were directed to run concurrently. However, accused 2 and 3 were acquitted. We shall refer, hereinafter, Alima Beebi as 1st deceased (D1) and Jailani as 2nd deceased (D2)
3. The prosecution has examined P. Ws. 1 to 13 filed Exs. PI to P20 and marked M. Os 1 to 16. Let us now state the case of the prosecution, which could be discerned form the evidence brought on record.
4. Allavudeen, the husband of D2 Jailani is doing business in fruits near Chinthamani talkies. Samsudeen, who is the husband of 3rd accused Rameela Beebi is also doing the business in fruits, near Dinamani talkies. Allavudeen used to supply fruits to Samsudeen in the morning and Samsudeen will sell the same in retail and pay the money due to Allavudeen in the evening. For sometime Samsudeen was not paying the amount regularly. He would pay only half of the amount, that too, on some days. Therefore, Allavudeen insisted Samsudeen to pay dues in full. However, Samsudeen did not pay the same as demanded by Allavudeen. So, Allavudeen stopped the supply of fruits to Samsudeen and instead, started supply to P.W.4 Subbiah, who was also doing business in fruits, near Dinamani talkies. Due to this, misunderstanding developed between Allavudeen and Samsudeen.
5. One day prior to the occurrence at about 11.15 p.m. Samsudeen on one side and one Syed, Pradeep Kumar and Sundaram on the other side, were found quarrelling with each other, and since public peace was disturbed, P.W.10 Sundaram, Head Constable, attached to B2 police station, arrested both the parties, brought them to police station and registered the cases in Cr. Nos. 1483 to 1486 of 1987 u/s 75 of City Police Act. Ex.P12 is its case file. On information, the 3rd accused Rameela Beebi, wife of Samsudeen, thought that Allavudeen was responsible for the arrest of her husband Samsudeen, on the earlier night, since the persons Syed, Pradeep Kumar and Sundaram were set up by Allavudeen, in order to quarrel with Samsudeen, so that police could arrest him. This is, according to the prosecution, the immediate motive for the genesis of the occurrence.
6. D2 Jailani is the wife of Allavudeen. D1 Alima Beebi is his sister. P.W.I Abdul Rahim is the son of D1 Alima Beebi. P.W.2 Syed Banu is the brother''s wife of P.W. 1. D2 was residing with her family in Arunachalapuram. P.W. 1 Abdul Rahim, P.W.2 Syed Banu and D1 Alima Beebi were residing at Seeman Nagar. 1st Accused/appellant Abdul Farook is the son of 3rd accused Rameela Beebi and Samsudeen. 2nd accused Asraf Ali is the younger sister''s son of 3rd accused. They were also residing in the same street in Arunachalapuram, where Allavudeen and D2 were residing with their family..
7. On 16-6-1987 at about 12 noon P.W.I Abdul Rahim, P.W.2 Syed Banu, his sister-in-law, P.W. 1 ''s mother Alima Beebi (D1) and Pawl''s younger brother one Mere (not examined) came over from Seeman Nagar to the house of Allavudeen, in order to see the ailing child in the family of Allavudeen. At that time, in front of the house of Allavudeen, 3rd accused Rameela Beebi, the wife of Samsudeen and D2 Jailani, the wife of Allavudeen were found quarrelling with each other. Immediately, P.W.2 Syed Banu and D1 Alima Beebi went near and separated them. But the 3rd accused shouted at them, stating that ''since they beat her, they would see what she would be doing'' and so saying she left the place and went towards her house.
8. After she left, P. Ws. 1,2 and Mere went inside the house of Allavudeen. D2 was at that time cleaning the vessels, outside her house. D1 Alima Beebi was also standing there. Whiles, P. Ws. 1.2 and Meera heard the shouting " " On hearing the sound, P. Ws. 1 and 2 and Meera came out of the house and saw the Appellant/1st accused coming with M.O.I knife. He exclaimed "
" and so saying he aimed at D2 Jailani and shouted " " and at that time D1 Alima Beebi cried as " " and intervened and the stab fell on her left chest. D1 Alima Beebi fell down. D2 Jailani got afraid and ran towards west. At that time the 2nd accused Asraft Ali came with Aruval (M.O.2) and instigated the Appellant, by saying " " 3rd accused Kameela Beebi also ran after D2 Jailani and went ahead and restrained D2 Jailani from proceeding further. D2 Jailani ran into the next house. The Appellant stabbed with M.O.I knife on her left chest, saying " " Both D1 and D2 died at the spot. Then the Appellant/1st accused with M.O.I knife and 2nd accused with M.O.2 Aruval ran towards the river side. 3rd accused went to her house. P.W.3 Mahalingam, an independent witness also saw the occurrence.
9. Immediately thereafter, P.W.I went to B2 police station, Madurai and gave the complaint. P.W. 11 Damodaran, Sub-Inspector of Police recorded the statement of P.W.I at 12.30 noon and obtained his signature. Ex.Pl is the complaint. Ex.P13 is the express F.I.R.P.W.I 1 Sub-Inspector registered the case in Cr. No. 1489 of 1987, under Sections 341 and 302 r/w 109 I.P.C. against accused 1 to 3. Ex.Pl and a copy of Ex.P13 were dispatched to concerned Judicial Magistrate, while copies of Ex.P13 were forwarded to higher officials.
10. P.W.13, Rajendran, Inspector of Police received the copy of express report at 1.45 p.m. on 16-6-1987 and took up the case for investigation. He went straight to the place of occurrence, inspected the spot and prepared observation mahazar Ex.P2, attested by P.W.5 Nagarajan. Ex.P14 is the rough sketch. Between 3 p.m. and 6 p.m. he conducted inquest over the dead body of D1. He prepared the inquest report Ex.P15. Between 6.30 and 8.00 p.m. he conducted inquest over the dead body of D2. The inquest report is Ex.Pl6. During the inquest he examined P.W.I Abdul Rahim, P.W.2 Syed Banu, P.W.3 Mahalingam and others. He sent requisition Ex.P8 to Hospital, along with the dead body of D1 through P.W.9 Radhakrishnan, Police Constable, to conduct post mortem. He sent another requisition Ex.PIO to the hospital, through P.W.8 Marimuthu, Police Constable, for conducting post-mortem over the body of D2. He seized M.O.3 bloodstained earth from the place, where the dead body of D1 was found, under Ex.P3 mahazar. He, as well, seized M.O.4 series-bloodstained cement flooring pieces from the place, where the dead body of D2 was found, under Ex.P4 mahazar.
11. On 17-6-1987 at 6.00 a.m. P.W.13, Inspector of Police went to Dindigul along with P.W.6 Mohammed Bilal and Anr. and arrested accused 1 to 3 in front of the house of one Abdul Wahab. The Appellant/1st accused gave a confession statement, in pursuance of which M.O.I knife was recovered, which was kept concealed in the roof of that house, at the instance of the Appellant, under Ex. P5. 2nd accused also gave a confession. P.W.13 seized the bloodstained shirt M.O.5, Kaili M.O.6 at that time worn by 2nd accused, under Ex.P6 mahazar. 2nd accused, then pointed out a bush, in which M.O.2 aruval was concealed and produced the same to P.W.13, which was recovered under Ex.P7 mahazar.
12. P.W.7 Dr. Thiagarajan, Madurai Medical College, on receipt of requisition for conducting post-mortem from P.W.13, commenced post-mortem at 10-00 a.m. on the dead body of D1, and he found the following injuries:
"An horizontally oblique stab wound below the left breast in front of chest 3.5 cm x 5 cm. x entering thoracic cavity with regular margins, inner and curved outer end pointed. Inner end situated 7 cms. below the left nipple and outer end 9 cms below and outside left nipple. On dissection, wound passes oblique cutting the 5th intercostals space 3.5 cm x 0.5 cm. through and through with surrounding area extracted blood clots noted.
On dissection, wound passes through the pericardium 3 cms. x.25 cms x through and through. Pericardia cavity, contains 35 ml. blood with clots. Wound passes obliquely towards centre, passing through the anterior wall of left ventricle 2.5 cm x 0.5 cm x through and through. Left pleural cavity contains 950 ml. blood with clots.
Other findings: Peritoneal cavity empty. Pleural cavity-right-empty. Hyoid bone-intact. Heart and Pericardium-described in injury column. Left and right lungs-cut section pale. Coronaries-patent. Liver, Spleen and Kidneys-cut section pale. Stomach-150 gms. Semi solid material without any definite smell, mucous pale. Bladder-empty. Uterus-empty, normal Brain-surface vessels pale, cut section pale.
He is of opinion that the 1st deceased would appear to have died of shock and hemorrhage due to external stab injury to the chest with corresponding internal injuries (injury to pericardium and left ventricle) sustained by her. Ex.P9 post-mortem certificate was issued by the doctor in respect of D1.
13. On the same day at 11.20 a.m. he conducted post-mortem on the dead body of D2 and found the following injuries:
"An oblique stab wound noted on the inner wall of axilla situated 18 cms and 6.5 cms and below and outer side of left nipple in the 6th intercostals space 3 cms. x 0.5 cm x entering the thoracic cavity. Margins regular upper end curved and lower end pointed. Surrounding intercostals muscles extravasations of blood clots noted. On dissection, wound passes obliquely cutting through the 6th intercostal space obliquely 3 cm x 5 cm x through and through. Stab wound passes through the left lung lower lobe upper part 3 cm x 5 cm x 1.5 cm. exist 2.5 cm x 5 cm x through and through teared pericardial cavity contains 50 gms of blood with clots. Stab passes through the left ventricular cavity wound of entrance lateral border 2.5 cm x 0.25 cm through and through. Exit on the antero medial part close to inter ventricular septum 1 cm x 0.25 cm x through and through. Left pleural cavity contains 1100 ml. blood with clots.
Other findings: right pleural cavity-empty. Peritoneal cavity-empty. Lungs-right-cut section pale. Left-injury described in injury column other areas cut section pale. Hyoid bone-intact. Heart, Pericardium - described in injury column. Coronaries patent. Liver, Spleen and kidneys - cut section pale. Stomach - 100 gms. semi solid food material, no definite smell, mucosa pale. Uterus-empty, normal. Bladder-empty. Brain-surface vessels pale, cut section pale. All other internal organs-cut section pale.
He is of opinion that the 2nd deceased would appear to have died of shock and hemorrhage due to stab injury, external wound No. 1 with corresponding internal injury (injury to left lungs. Pericardium and left ventricle) sustained by her. He issued Ex.P11 postmortem certificate in respect of D2.
14. After the postmortem. P.W.X Marimuthu, police constable recovered MO 7 bloodstained saree, M.O. 8 bloodstained blouse. M.O.9 bloodstained skirt, M.O.10 brass chain and M.O.11 black siring from the body of D1 and produced the same in police station. As well, P.W.9. Radhakrishnan, Police Constable recovered M.O.12 black string, M.O.13 Karugamani string. M.O.14 bloodstained blouse, M.O.15 bloodstained saree and M.O.16 bloodstained skirt from the body of D2 and produced the same in police station.
15. P.W. 13, Inspector of Police sent the requisition Ex.P17, on 22-6-1987 requesting the Judicial Magistrate, for sending the M. Os. to chemical examiner for analysis. P.W.12. Muthuswami, Court Assistant, after receipt of M. Os, and requisition sent the same to the chemical examiner along with the letter of the Judicial Magistrate Ex.P18 on 24-6-1987. Ex. P19 is the chemical examiner''s report dated 16-7-1987. Ex. P20 is the sonologist''s report dated 12-10-1987. After completion of the investigation, P.W.13, Inspector of Police laid the final report against the accused on 18-7-1987.
16. When the accused 1 to 3 were examined u/s 313 Code of Criminal Procedure, to explain the incriminating circumstances appearing against them in evidence, they chose to deny their complicity in the crime. The Appellant/1st accused, however, went on to add, that while the Appellant and his mother, the 3rd accused were going to his business premises, D1 and D2 both beat his mother, the 3rd accused and that he got provoked and therefore, he stabbed. The 2nd accused has simply said that he is an innocent and he has no connection whatever, with the said incident. 3rd accused has stated that when she along with the Appellant, her son, went for attending their business, D1 and D2 beat her and that she shouted and therefore, her son the Appellant/1st accused got provoked and stabbed both of them. However, no defence evidence was adduced.
17. On assessment of oral and documentary evidence, learned trial judge, accepted the case of the prosecution in regard to the Appellant/1st accused alone and rejected the case against accused 2 and 3 and as such acquitted the accused 2 and 3. Appellant alone was convicted and sentenced as stated earlier.
18. Mr. Vijay Kumar, learned Counsel for the Appellant submitted that the evidence adduced by the prosecution witnesses was not natural, and deserves to be rejected. He further contended that there was no intention for the Appellant to murder D1, since the stab accidentally fell on her, while aiming on D2. According to him, motive was not established for the Appellant to cause the death of D1 and D2 and the prosecution has failed to prove the reason and origin of the quarrel between D2 and the 3rd accused and the neighbors were not examined.
However, he contends that even assuming that the occurrence took place in the manner alleged by the prosecution, the Appellant cannot be convicted for the offences u/s 302, I.P.C. (two counts) for the reason, that he gave a single stab, on both the deceased and so at the most, the Appellant could be convicted for the offences u/s 304, Part I or Part II I.P.C.
19. Mr. R. Raghupathi, learned Additional Public Prosecutor, while countering the submissions made by Mr. Vijay Kumar, submitted that P.W.I Abdul Rahim and P.W.2 Syed Banu are truthful witness and P.W. 3 Mahalingam who is an independent witness gave a true account of the incident. He further submitted that the immediate motive for the occurrence was the arrest of Samsudeen, on the earlier night, which has been clearly brought out on record and that the offences which have been committed and would squarely fall u/s 300, I.P.C. by virtue of the principle of ''transfer of malice'', the Appellant must be held to have the intention to cause the death of D1 and then he chased D2 and stabbed on her chest, which reflects the clear intention of the Appellant to cause the death of both the deceased. He also submitted that it cannot be contended that each and every single stab case would attract the exceptions of Section 300, I.P.C. thereby making the Appellant/liable to be sentenced u/s 304 Part I or Part II P.C. According to him, when the intention of the Appellant has been established to cause the death of the deceased, the exception as contemplated in Section 300, I.P.C. would not come into play. He also drew support from the medical evidence. In short, he pleaded for upholding of the verdict of the learned trial judge.
20. All the relevant facts, which led to this prosecution, have been detailed by us in the earlier paragraphs. On the basis of those facts, we have to now assess the inherent merits of the contentions urged by the counsel on either side. It is highly relevant to note that even during the cross examination of the eye witnesses viz. P. Ws. 1,2 and 3, a suggestion was put to them that while the Appellant along with the 3rd accused Rameela Beebi was coming, D1 and D2 beat the 3rd accused, the mother of the Appellant and so he got angry and stabbed them. The very same statement as well was made by the Appellant, while he was questioned u/s 313, Code of Criminal Procedure Therefore, it is not in dispute that the two deceased were stabbed only by the Appellant. The dispute is only in the manner of occurrence. The case of the prosecution is that on the instigation of the 3rd accused Rameela Beebi, Appellant Abdul Farook came from his house with the knife (M.O.I) stabbed and caused the death of D1 and D2. The case of the defence is that, while the mother of the Appellant viz. the 3rd accused was beaten by D1 and D2, the Appellant stabbed D1 and D2 out of provocation. In die light of the peculiar defence taken in this case, the evidence of prosecution witnesses has got to be viewed very carefully.
21. The Appellant/1st accused is the son of 3rd accused, who is the wife of Samsudeen. 2nd accused Asraf Ali is the sister''s son of 3rd accused. They were all residing in Ismailpuram 19th street, Arunachalapuram. D1 Alima Beebi is the sister of Alavudeen, D2 Jailani is his wife. P.W.I. Abdul Rahim is the son of D1. P.W.2 Syed Banu is the daughter-in-law of D1. Allavudeen with his family was also residing in the same street in Arunachalapuram. D I, P.W.I and P.W.2 were residing in Seeman Nagar. Allavudeen used to supply fruits in whole sale. Samsudeen was one of his customers, who purchased fruits from Allavudeen and sold it in retail. Misunderstanding developed between Samsudeen and Allavudeen, for the reason, that Allavudeen suddenly stopped supplying the fruits to Samsudden, because he was not regular in payments and started to supply the fruits to P.W.4 Subbiah, who was also doing business in the same area, in which, Samsudeen was doing his fruits business.
22. Earlier night to the date of occurrence, Samsudeen was arrested by P.W.10, Head Constable, in connection with the case registered u/s 75 of City Police Act, since Samsudeen was found quarrelling with three persons in public place. 3rd accused Rameela Beebi, thought that Allavudeen was responsible for the arrest of her husband Samsudeen.
23. On 16-7-1987 at about 12.00 noon, 3rd accused came to the house of D2 and picked up quarrel with her. At that time, P. Ws.l, 2 and D1, who just arrived at the house of D2 from Seeman Nagar, happened to see this quarrel. So, immediately they came near and separated them. Then, 3rd accused started shouting that "you beat me, you will see what I am going to do" and so saying she went to her house. D1, D2 and the witnesses thought that the quarrel was over and calmness restored. They never expected any serious thing would happen, due to this quarrel. They did not even take serious note of the challenge posed by the 3rd accused, who went to her house. Thereafter, P. Ws. 1,2 and Ors. were playing with the children inside the house. D2 was cleaning the vessels outside the house, where D1 was simply standing. A few minutes later, P. Ws.l and 2 heard the shouting from outside the house and they came and saw the Appellant rushing towards the house with M.O.1 knife accompanied by 3rd accused. Then the Appellant started shouting and so saying, with M.O.1 knife the Appellant aimed at D2 and attempted to stab on her Having got shocked over this, D1 exclaimed and intervened. Unfortunately, the stab ten on the left chest of D1. On receipt of this injury, D1 fell down. Out of fear, D2 Jailani ran away, but the Appellant chased her. D2 entered into the neighbouring house. At the entrance, the Appellant stabbed with the same knife M.O.1, on the left chest of D2. She also fell down. Both the deceased died instantaneously at the spot. This is the narration of the incident as spoken to by P. Ws. 1 and 2.
24. The evidence of P.W. 1, though he is related to the deceased inspires confidence in our mind. He is the first informant, who promptly went to B2 police station, Madurai, after the occurrence and gave the complaint Ex.P.1. The occurrence took place at 12.30 noon on 16-6-1987. The distance between the place of occurrence and B2 police station is 3 kms. P.W. 14, Sub-Inspector of Police received the complaint at 1.00 p.m. and registered the case for the offences under Sections 341, 302 r/w 109, I.P.C. against the Appellant and two others. The reading of the contents of F.I.R. and the evidence adduced before the Court by P.W. 1, shows that he is a truthful and reliable witness. He also deposed that he, along with P.W.2 and D1 came from Seeman Nagar, to the house of Allavudeen at Arunachalapuram, to see the ailing son of Allavudeen. He also admits that he is working in the shop of Allavudeen. P.W.I gave the details in his evidence, relating to the misunderstanding between Allavudeen and Samsudeen. During the cross examination of P.W.I, nothing has been elicited to discredit his evidence. There is no reason for him to speak falsehood against the Appellant, because he has no animosity whatever with the Appellant. His evidence against the Appellant is that the Appellant aimed at D2 and when, he attempted to stab her, the stab fell on D1, while she intervened.
25. P.W.2 Syed Banu is the daughter-in-law of D1. She also had reason for coming to the house of Allavudeen along with D1 and P.W.I. As a matter of fact, P.W.l''s evidence has been fully corroborated by P.W.2. According to them, there had been a time gap between the first quarrel, that took place between the 3rd accused and D2, and the stabbing incident. More so, when the 1st accused/appellant came from his house, he was armed with M.O.I knife and shouted by saying . Both the witnesses say that the Appellant caused the injuries on die vital parts of both the deceased, which has been clearly confirmed by the medical evidence adduced by P.W.7 Doctor Mr. Thiagarajan.
26. P.W.3 is also an eye witness, who is independent. He has neither affinity towards the deceased nor any animosity against the Appellant. He deposed that at the time of occurrence, he was standing in the corner place near the house of Allavudeen. When D2 Jailani was cleaning vessels in her house, he saw the Appellant, suddenly came with M.O.1 knife and attempted to stab D2, but the said stab fell on D1, while she intervened and thereafter the Appellant chased D2 and when she entered into the neighbouring house, she was also stabbed on her left chest by the Appellant with M.O.1 knife.
27. Learned Counsel for the Appellant submits that though P.W.3 deposed that he was working in Muthuraman binding office, in the same street, there is no reference about the binding office in the observation mahazar Ex.P2. He further submits that when a suggestion was put to him, that he was convicted in a criminal case of attacking 3rd accused and Samsudeen, it was denied by him, and so the trial Court has disbelieved the evidence of this portion adduced by P.W.3, since supporting documents were filed with statements u/s 313, Code of Criminal Procedure to prove the suggestion. Regarding binding office, though a different name is given, it is shown and mentioned in Ex.P2 observation mahazar. It is true that the trial Judge has disbelieved his denial of suggestion that he was convicted, but however believed his version in respect of the occurrence, after examining his evidence with care and caution. We are of the opinion that even this portion of the evidence adduced by P.W.3 need not have to be disregarded, for the reason, that the suggestion put to him was denied and the documents filed along with the statement u/s 313 Code of Criminal Procedure were not marked through P.W.3 and he has not been confronted with these documents. So, we cannot give any importance to these documents. As such, mere suggestion put to P.W.3, regarding his conviction cannot take the place of proof, to disregard his version. Therefore, we are of the opinion, that the evidence of P. Ws 1 to 3 is cogent and consistent, which is quite acceptable.
28. The F.I.R. (Ex.Pl) which was registered at 1.00 p.m. on 16-6-1987 reached the concerned Court on the same day at 3 p.m. It cannot be contended that there has been a delay. More so the inquest reports Exs. PI5 and PI 6 also reached the Magistrate on 17-6-1987 at 10.30 a.m. During the inquest by P.W.13, Inspector of Police, P.W.3 Mahalmgam was also examined. In such a situation P.W.3''s evidence assumes more significance, especially, when his name found a place in the F.I.R.
29. Next day i.e. on 17-6-1987 at about 6.30 a.m. accused were arrested by P.W.6 Mohammed Bilal and on the confession of Appellant/1st accused, M.O.1 knife which was concealed in the roof of a house was recovered under Ex.P5 mahazar. P.W.7 Doctor gave opinion, that both the deceased would appear to have died of shock and hemorrhage due to external stab injury on their chest. He also deposed that these injuries are possible by M.O.1 knife. In both the cases, the external injury with corresponding internal injury is necessarily fatal. He, as well, deposed that the injury found on D2 was possible, while the assailant chased and stabbed her on the inner side of the left axilla, because that injury is slightly downwards.
30. One more clinching circumstance could be discerned from Ex.P2 observation mahazars. It is mentioned in Ex.P2 that D1 was found dead in a pool of blood opposite to the house of Allavudeen, and that D2 was found dead at the door steps of Mohamada Beebi. the neighbour, in a position that half body was inside the house and the other half was found outside. This is a clear corroborative piece of evidence to the ocular version of P. Ws. I to 3. In the light of the above circumstances, we shall now discuss about the defence case.
31. According to the defence, D1 and D2 beat the 3rd accused and on getting provoked, the Appellant stabbed D1 and D2. This theory deserves outright rejection, for the following reasons. According to P. Ws. 1 to 3, D1 was stabbed in front of the house of Allavudeen and D2 was stabbed at the door steps of the neighbour''s house. As per the evidence of P.W.13 and Ex.P2, observation mahazar and Ex.P14 rough sketch, blood was found in both the places. Moreover the blood stained earth and blood stained cement flooring pieces taken from those places were sent for chemical analysis along with other M. Os. Ex.P20 seriologist''s report shows that the blood found on the clothes of both the deceased tallies with the blood found on the bloodstained earth taken in front of the house of Allavudeen and blood stained cement pieces taken from the neighbouring house. This is an important piece of evidence, which would show that the prosecution case alone is true. In view of the above facts and circumstances, we have no hesitation to conclude that the prosecution has been able to prove beyond reasonable doubt, that the Appellant has caused the death of D1 and D2.
32. We shall now discuss about the question as to what is the exact offence that was committed by the Appellant. Learned Counsel for the Appellant argued that this is a case of single stab, inflicted by the Appellant on both the deceased and the occurrence took place on a sudden provocation and as such, the Appellant is liable to be convicted only for the offences u/s 304 Part I or Part II I.P.C. He also further submits that even according to the prosecution, the Appellant'' aim was only to murder D2 Jailani and D1 Alima Beebi. The following factors have got to be taken into consideration, while deciding this question.
(i) According to the prosecution witnesses, after the first quarrel that took place between the 3rd accused and D2 was over, 3rd accused left the place and went towards her house. Sometime later, 1st accused/appellant came with M.O.1 knife and stabbed both the deceased and as such, there was a time gap between two incidents.
(ii) Even while the Appellant was coming, he armed with M.O.1 knife, exclaimed and so saying, he aimed at D2 and attempted to stab on her, but unfortunately the stab fell on the left chest of D1, who intervened by shouting.
(iii) On noticing the attitude of Appellant, aiming to murder D2- Jailani, she began to run. The Appellant chased her upto the neighbouring house, where she tried to take shelter. But, however she was caught and stabbed by the Appellant with M.O. 1 knife on her left chest at the entrance itself. The distance between the house of D2 and the neighbouring house is ten feet.
(iv) The length of blade portion alone in M.O.1 Knife, the weapon of the offence, is 13 1/2 cm.
(v) the injuries inflicted on both the deceased are necessarily fatal, and were also sufficient to cause the death of the deceased, in the ordinary course of nature, according to medical evidence.
(vi) Death of both the deceased was instantaneous.
33. Section 301 of I.P.C. deals with culpable homicide by causing death of person other than person whose death was intended, [reproduce Section 302 of I.P.C. words omitted] It is clear from this Section, that if a person aimed at ''A'' with a dangerous weapon, but the stab fell on ''B'', it could still be held that he intended or knew himself to be likely to cause the death of ''B'' also. The principle of ''Transfer of Malice'' is expounded under this provision. Various decisions, which followed this principle will be applicable to this case also. In the case of Thothandi alias Andi v. State ( 1991 L.W. (Cri) 323) a Division Bench of this Court, to which one of is (Arunachalam,J) was aparty, has observed as follows:
"S.301, I.P.C. incorporates the doctrine which is christened, "Transfer of malice". This transfer of malice is the transmigration of motive. In other words if the killing takes place in the course of doing an act which a person intends or knows to be likely to cause death, it ought to be treated as if the real intention of the killer had been actually carried out. Courts have observed as hereunder:
"It is common knowledge that a man who has an unlawful and malicious intent against another, and, in attempting to carry it out, injures a third person, is guilty of what the law deems malice against the person injured, because the offender is doing an unlawful act, and has that which the Judges call general malice, and that is enough''. In other words, there will be no difference, while the injury intended for one falls on another, by accident or mistake......... Glanville Williams in his "Textbook of Criminal Law", 2nd Edition, 1983, while dealing with general and transferred intention has stated as follows:
"If the Defendant did not aim at anyone in particular, he is still liable on the basis of what is sometimes called ''general malice''-better, ''general intention''. The most obvious example is the terrorist bomber, though of course his crime is much graver than assault. An intention to hit anyone within range is always, in logic and law, an intention to hit the particular person who is hit.
Another possibility is that D aims at V-l but accidentally hits V2. This is an instance of what is traditionally called ''transferred malice'' - more precisely, transferred intention. Although D aimed to hit V-l, since his blow took effect of V2 it is deemed at common law to be an intentional attack upon V2. The rule is that D is guilty to the same extent as if he had intended to injure the person whom he actually did injure. The intention in respect of one victim is transferred by a legal fiction to another".
In the light of the above referred decision, which deals with the principle of Transfer of malice, it must be held that the Appellant had the intention not only to cause death of D2 Jailani, but also, had the intention to cause the death of D1 Alima Beebi.
34. We shall now deal with single stab cases. The supreme Court in the case of
"There is no justification for the assertion that the giving of a solitary blow on a vital part of the body resulting in the death must always necessarily reduce the offence to culpable homicide not amounting to murder punishable u/s 304 Part II of the Code. If a man deliberately strikes another on the head with a heavy log of wood or an iron rod or even a lathi so as to cause a fracture of the skull, he must, in the absence of any circumstances negativing the presumption, be deemed to have intended to cause the death of the victim or such body injury as is sufficient to cause death. The whole thing depends upon the intention to cause death, and the case may be covered by either Clause Firstly or Clause Thirdly. The nature of intention must be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon the death."
35. It has been held in the case of Jai Prakash v. State (Delhi Administration) (1991 L.W.(Crl) 269 ), by the Supreme Court, that each and every case of single stab would not come under the exception contemplated u/s 300 I.P.C. and even the single stab with the intention to cause injury, which is fatal on vital part of the body would attract Section 300, I.P.C. which is liable to be punished u/s 302. I.P.C. The Supreme Court has further observed as follows:
"In our view it is fallacious to contend that when death is caused by a single blow Clause Thirdly is not attracted and therefore, it would not amount to murder. The ingredient ''intention'' in that Clause is very important and that gives the clue in a given case whether offence involved is murder or not ..... we are concerned under clause Thirdly with the intention to cause that particular injury which is a subjective inquiry and when one such intention is established and if the intended injury is found objectively to be sufficient in the ordinary course of nature to cause death, clause thirdly is attracted and it would be murder, unless one of the exceptions to Section 300 is attracted. If on the other hand this ingredient of ''intention'' is not established or if a reasonable doubt arises in this regard then only it would be reasonable to infer that Clause Thirdly is not attracted and that the accused must be attributed knowledge that in inflicting the injury he was likely to cause death in which case it will be culpable homicide punishable u/s 304 Part II I.P.C."
It follows from the foregoing analysis of the facts and circumstances, that it is clear that the Appellant intended to cause the injuries found on vital parts of both the deceased, which according to medical opinion, were necessarily fatal, and attracts clause thirdly of Section 300, I.P.C.
36. Therefore, the conviction of the appellant u/s 302 I.P.C. (two counts) is valid in law and as such we have no reason to differ from the view taken by the trial Judge, who has correctly decided the issue. Hence we are of the opinion that this appeal deserves to be dismissed and the conviction and sentence imposed on the Appellantby the trial Judge are to be confirmed. Accordingly, the appeal is dismissed.
