Kucko alias Pravin Kumar vs State

Saroj Bala, J.—The judgement and order dated September 21, 1982 passed by the Sessions Judge Muzaffarnagar in S.T. No. 233 of 1980 whereby convicting the appellant for the offence under Sections 302 323 324 I.P.C. and sentencing him to rigorous imprisonment for life u/s 30? I.P.C, rigorous imprisonment for three months u/s 323 and rigorous imprisonment for one year u/s 324 I.P.C is under challenge ,n this appeal.

The relevant facts are these:

On May 20, 1978 at about 7 A.M. the accused-appellant came at the tea shop of Vijai Kumar Singh alias Vijai Pal (victim) and his brothers Bhopal(P.W.3) and Shukpal (P.W.4) situated in Mohalla Gajawali Muzafarnagar and ordered for a cup of tea. The victim refused to supply tea unless the amount of Rs. 7.25 outstanding for the previous purchase of tea was paid. At this the accused-appellant took out knife from his pocket and gave knife blow to Vijai Kumar. Bhopal (P.W.3) and Kali Ram (P.W.6) were subjected to assault by wielding of knife by accused-appellant when they tried to intervene and intercept him. Sukhpal (P.W.4) got scribed the written report of the incident by Ram Chandra (P.W.10) and laid it P.S. Kotwali at 8.05 A.M. on 20.5.1978. On the basis of written report chick F.I.R. (Ext. Ka 10) was prepared by Shyam Raj Singh (P.W.7) and crime was registered in G.D. (Ext. ka 11) u/s 324 I.P.C. After the death of victim crime was altered to Section 304 I.P.C.

The victim Vijai Pal, then alive was rushed to the district hospital Muzafarnagar and was medically examined at 7.25 A.M. on 20.5.1978 by Dr. Sant Saran Khanna (P.W.11) and following injuries were found on his body as per injury report (Ext.ka16)

Stab incised wound on the left side chest in mid-axillary line 3.5" x 1" x cavity deep, omentum was coming, tailing downward and medidily, bleeding present 4" away to the umbilicus from 12.0 O''clock to 3.0 O''clock.

Incised wound 2" x 1.5"x muscle in the back of left upper arm lower third, tailing medially down.

Incised wound 1" x 1/4" x skin deep on the back of left upper arm medially third, tailing medially.

According to the doctor G.C. was very low. B.P. was not recordable. The injuries were caused by sharp edged weapon. The victim was taken to the Medical College Meerut for higher treatment. He expired there on 28.5.1978 at 12.30 A.M.

The inquest on the dead body was conducted by S.I Razi Haidar then posted at police outpost Medical College Meerut. He prepared the inquest report (Ext.ka2), photolash (Ext.ka3), challanlash (Ext.ka4) and letters to C.H.O. Meerut (Ext.ka5). The sealed bundle containing the dead body was handed over to (P.W.2) for transportation to the Mortuary for postmortem. Jhe autopsy on the dead body of Vijai Pal was conducted by Dr. Dilawar Singh(P.W.1) on 28.5.1978 at 3.40 P.M. and following antemortem injuries were found on his person:

Infected wound 2.5 cm x 1 cm x chest cavity deep on left side chest outer part in mid axillary line, 19 cm. below the axilla.

Infected wound 2.5 cm x 1cm x abdominal cavity deep on left side of abdomen middle part.

Stitched wound 17 cm. long on left side abdomen, 3 cm. away from of umblicus.

Stitched wound 11 cm. long on left side abdomen on outer and upper part.

On internal examination pleura was found punctured. The death was caused due to septicemia as a result of severe peritoneous. The postmortem report(Ext. ka-1) was prepared by the doctor (P.W.I) at the time of autopsy.

The injured Bhopal (P.W.3) was medically examined by Dr. D.C. Mobar (P.W.5) on 20.5.1978 at about 8.50 A.M. and following injuries were found on his body as per injury report (Ext. ka-7):

Incised wound 1/4" x 1/8" x muscle deep left side angle of mandible. Bleeding present.

Abrasion 2" x 1/4" on the outer aspect of right arm, lower part including elbow.

Incised wound 1/1/4 " x 1/8" x skin deep on the inner aspect of right hand palmer aspect. Bleeding present.

The injuries No. 1 and 3 were caused by sharp edged weapon like knife whereas injury No. 2 was caused by friction. All the injuries were simple in nature.

The injured Kali Ram was medically examined by the same doctor (P.W.5) at 11.15 A.M. on May 20, 1978 and two simple injuries caused by friction against hard substance were found on his body. The injury report (Ext.ka8) was prepared at the time of medical examination.

The crime was investigated by SI Hari Raj Singh (P.W.8). The investigating officer visited the venue of crime and prepared the site plan (Ext.ka12). He interrogated the injured Vijai Pal and recorded his statement u/s 161 Cr.P.C. (Ext.ka14). After interrogation of other witnesses and concluding the investigation he submitted the charge sheet (Ext.ka15) against the accused-appellant.

The case was committed to the court of sessions by the then C.J.M. Muzaffarnagar.

The accused-appellant was charged for the offences punishable under Sections 302 and 307 I.P.C. He pleaded not guilty to the charges and claimed to be tried.

The prosecution in all examined twelve witnesses out of them Bhopal (P.W.3), Sukhpal (P.W.4) Kali Ram (P.W.6) were eyewitnesses. Kali Ram (P.W.6) turned hostile. Rest of the evidence related to the medical and investigation aspects, about which reference has been given above.

On deep analysis of evidence, the trial judge convicted the accused-appellant.

We have heard Shri P.N. Mishra, learned Counsel for the appellant, learned A.G.A. appearing for the State and have scanned the trial court record.

The learned Counsel for the accused-appellant challenged the findings of conviction on the grounds: the appellant was medically examined by the same doctor (P.W.5) and as many as eight injuries were found on his body but his injuries were not explained; eyewitnesses are blood relations of deceased; the witness Sukhpal (P.W.4) stated to have caused injuries to accused-appellant by wielding of stick but surprisingly no injuries were caused to him; the incident took place all of a sudden without pre me rotation and accused-appellant having sustained injuries during the course of same transaction, the offence does not travel beyond Part II of Section 304 I.P.C.; the evidence of Dr. Dilawar Singh(P.W.1) is silent on the point that injuries were efficient in the ordinary course of nature to cause death. In support of the submissions reliance has been placed on the decisions in Gardial Singh v. State of Punjab 1995(CAR) 299, Chila Mukur Nagai Reddy and Ors. v. State of Andhra Pradesh XIV 1977 ACC 281 (SC) and Nachittar Singh v. State of Uttar Pradesh, (1982) 1 SCC 609

A It is true that eyewitnesses Bhopal (P.W.3) and Sukhpal (P.W.4) are real brother of the deceased. Their testimony cannot be discarded merely because of their relationship with the deceased. It is not to be forgotten that witness Bhopal (P.W.3) is an injured person and was medically examined the same day at 8.50 A.M. The testimony of related witnesses is to be examined with care and caution and once it stands the test of such scrutiny there is no legal bar in acting upon their testimony. All the three brothers had a joint tea shop in Mohalla Gajawali. Their presence at the shop at about 7 A.M. was natural and probable.

The witness Bhopal (P.W.3) categorically stated that the accused-appellant came at the tea shop at 7 A.M. and asked his brother Vijai Pal to prepare tea for him. Vijai Pal demanded the outstanding payment of Rs. 7.00 for the tea supplied earlier and refused to supply Lea unless the payment was made. At this the accused-appellant got infuriated. He took out the knife and gave knife blow to Vijai Pal. The accused-appellant subjected him to assault with knife when he tried to intervene. He deposed that accused-appellant also sustained injuries in the scuffle. He denied the suggestion that Vijai Pal started the quarrel and caused knife injury to the accused-appellant.

The witness Sukhpal(P.W.4) is the first informant. According to him he was at his tea shop. His brother Bhopal was collecting water at the tap and victim Vijai Pal was inside the shop. At about 7-7.15 A.M. the accused-appellant came at their shop and ordered a cup of tea. His brother Vijai Pal (victim) refused to supply tea unless previous payment of Rs. 7.25 was made. The accused-appellant saying that ''whosoever demands money from him loses his life'', took out knife from his pant and gave knife blows to Vijai Pal. He deposed that he vaulted the accused-appellant with stick and Bhopal and Kali Ram gave kicks and fist blows.

The testimony of both the eyewitnesses has stood the test of cross examination and nothing substantial for discrediting their testimony could be yielded. The accused-appellant in his statement u/s 313 of Code of Criminal Procedure admitted having gone to the shop of victim Vijai Pal for having tea and Vijai Pal demanding outstanding payment for previous purchase of tea. According to him when he said that nothing was outstanding Vijai Pal abused him and said that he knew other methods for realising the money. He further stated that Bhopal (P.W.3) while assaulting with fists pulled him inside the shop and Vijay Pal attacked with knife and caused Injury. When Vijai Pal intended to inflict second blow he caught hold of his hand and snatched the knife. He used the knife of Vijai Pal in self-defence. The statement of the accused-appellant supports the date, time and place of the incident and weapon (knife) used. According to accused-appellant he caused knife injuries to the victim in self defence. The accused-appellant sustained eight injuries out of which five were lacerated wounds, two abrasions and a incised wound muscle deep on outer aspect of left shoulder join. The lacerated wounds were over the head and were kept under observation.

The witness Sukhpal (P.W.4) admitted having caused head injuries to the accused-appellant to save his brothers Vijai Pal and Bhopal. The defence of the accused-appellant that injuries were caused to the victim in self defence is not acceptable. The testimony of the eyewitness Bhopal (P.W.3) and Sukhpal (P.W4) does not suffer from any infirmity. We do not find any merit in the submission of learned Counsel that testimony of the eyewitnesses is unworthy of credit due to their relationship with deceased. He are in complete agreement with trial judge that their testimony was trustworthy on the point that accused-appellant gave knife blow to the victim Vijai Pal which resulted in his death.

Coming to the alternative argument that the offence doe not travel beyond Part II of Section 304 I.P.C. as the quarrel took place all of a sudden in a heat of passion and without premeditation. For the applicability of Exception 4 to Section 300 I.P.C. it has to be established that the act was committed without premeditation, in a sudden light, in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage and not having acted in a cruel or unusual manner Admittedly there was no previous enmity between the parties. The quarrel ensued on demand of outstanding payment of Rs. 7.00 for the tea supplied earlier. The injuries were caused to the accused-appellant. Attack by the appellant on victim in the sudden fight cannot be said to be a premeditated affair. The chest injury caused to the victim proved fatal. The victim died eight days after the incident due to septicemia. The appellant had not taken undue advantage or acted m cruel or unusual manner On the face of these facts the appellant shall be imputed with knowledge to cause such bodily injury as was likely to cause death and not the intention of causing death. The accused-appellant caused chest injury with knife the intention to cause death cannot be imputed but it would be reasonable to infer that he had knowledge that injury on vital part of the body would cause death therefore Part II of Section 304 I.P.C. is attracted.

In view of the above discussion, the appeal is partly allowed. The conviction of the accused-appellant Kucko alias Pravin Kumar u/s 302 I.P.C. is altered to Part II of Section 304 I.P.C and he is sentenced to rigorous imprisonment for ten years. The conviction and sentence awarded by the trial court for the offences u/s 323, 324 I.P.C. are maintained.

The appellant Kucko alias Pravin Kumar was released on bail during the pendency of appeal vide order dated 27.9.1982. The Chief Judicial Magistrate, Muzaffanagar shall cause him to be arrested and lodged in jail to serve out the sentence awarded by the trial court and modified by us.

Certify the judgement to the lower court within a week. The record of the case be also transmitted to the court below immediately. The compliance shall be reported by the Chief Judicial Magistrate Muzaffanagar within four weeks from date of receiving the copy of this order.