Mahendra Kumar vs State of Rajasthan

M.B. Sharma, J.—The learned Addl. Sessions Judge under its judgment dated 20th April 1991 convicted the accused appellant u/s 302 I.P.C. and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 500/- or in default of payment of fine to further undergo simple imprisonment for six months. The accused appellant was further convicted u/s 4/25 of the Indian Arms Act and was sentenced to undergo simple imprisonment for six- months. The substantive sentences on both the counts were ordered to run concurrently.

There is no dispute that the accused Vijay Kumar died an un-natural death. It is the case of the prosecution that on 8th September 1988 at about 10.20 p.m. in the city of Ajmer near Handpump at Nawab Ka Bedam the deceased Vijay Kumar and the accused appellant Mahendra Kumar were talking with each other and there was some ex-change of abused in between them and the accused-appellant is said to have taken a knife from his pocket and stabbed in the chest of the deceased. The occurrence is said to have been witnessed by Anand Singh PW 7, Tarachand PW11 and Tarachand S/o Mangal PW 12. Rajendra Kumar PW4 who is the real brother of the deceased was informed by Tara Chand PW. 11 about the incident. Rajendra Kumar went to the spot and saw that his brother Vijay Kumar was lying with an injury on his chest by knife and the blood was coming out of that injury. Soon thereafter police arrived at and Rajendra Kumar lodged a report and a case was registered and investigation was set in motion.

Vijay Kumar died and post mortm was conducted, but because the post mortem report was an admitted document, the doctor was not produced to prove it. It will appear from the post mortem report Ex. P17 of deceased Vijay Kumar that in the opinion of the doctor, the deceased had died 12-18 hours prior to the post-mortem and the doctor found that there was a stab wound 2 1/2 x 1 1/2 cms. death an explasetion in IV D.C.S two cms. Below left nipple and B cms. lateral to midline (mid stinnal line). There were two injuries also out of which one was an old infected wound on right big toe and the other was an abrasion 2 1/2 x 1 cm. So far as third injury was concerned, it was an old injury. On exploration of injury No. 1, the doctor found that it was covered with clotted blood and on dissection of stab traverses through chest well, pleaura pericardium and left ventricle of heart (lower part of it, through and through). Entire track was soaked up with thick dark blood, and pericardial cavity contained thick blood about 700ms. Track of stab traverse inwards, outwards and medially into lower part of lefr ventricle. Wound of entry was 2 1/4 x 3/2 cm. and wound of exit on back of It ventricle was 1 1/4 x 1/2 cm. with piercing of full thickness of anteror and posterior walls of ventricles. Ventricle (left) was empty and thoraci cavity contained free blood about 1500 ml. lungs were seen pale. Other abdominal viscera were also pale. Track of stab was 12 cms. deep into chest. In the opinion of the doctor the cause of death was shock due to excessive haemorrhage as a result of injury to vital organ i.e. heart.

The accused was tried and he pleaded not guilty and after the close of the prosecution evidence his statement u/s 313 Cr.P.C. were recorded. He stood on a plea of bare denial. He stated that the witnesses are the relatives of the deceased and because of the enmity they are against him. He did not examine any witness in defence, the learned Addl. Sessions Judge convicted and sentenced him as aforesaid.

The learned Counsel for the accused appellant has tried to challenge the evidence of two eye witnesses namely PW 7 Anand and PW 11 Tara Chand on the ground that both are relatives of the deceased. After having heard the learned Counsel and having gone through the statements, only on the ground that they are relatives of the deceased, when there is no material that they boar any ill-will against the accused appellant, we do not agree with the learned Counsel and we say that the F.I.R. was lodged when Tarachand PW 11 had gone to the house of the deceased and informed Rajendra Kumar about the incident. Trarachand PW 11 has stated that he has witnessed the occurance and he had gone to the house of Trachand and informed Rajendra Kumar and Rajendra Kumar came to the spot. Rajendra Kumar PW 4 though is not an eye witness, but he states that immediately after the occurance Tarachand had come to him and it was the accused-appellant who had stabbed the deceased and deceased was lying.

The next contention of the learned Counsel for the accused appellant is that assuming that the accused is the author of the fatal blow to the deceased, the case will not travel beyond Section 304 Part II I.P.C. because PW 11 Tarachand in his statement has stated that both the deceased and the accused appellant were abusing each other, and were also grappling with each other. It was also stated in the cross examination that the deceased had accused the mother of the accused appellant and on this they grappled with each other and the deceased was holding the accused with his nock. At that point of them, the accused appellant had given a single blow by knife on the chest of the deceased. He, therefore, contends that the case of the accused-appellant is covered under the explantion 4 to Section 300 I.P.C. From the perusal of the record, it cannot be said that there was previous enmity in between the accused appellant and the deceased. The occurance had taken place all of a sudden. It is not known as to what was the cause of the quarrel. The deceased is said to have abused the mother of the accused appellant. Under these circumstances, we are in agreement with the learned Counsel that the case is covered under Exception 4 of Section 300 I.P.C.

But, in our opinion it is gnt a case which fall u/s 304 Part II I.P.C. but will fall u/s 304 Part I I.P.C. The reason is that the deceased was un-armed, they were only grappling, the chest is vital part of the body and the nature of injury will show that the wound was 12 Km. deep and has pierced the heart, there was profound bleeding and vital organ was damaged. In our opinion, there can be no doubt that the accused intended to cause an injury which was sufficient in the ordinary course of nature to cause death. At any rate, the accused intended to cause injury which he knew to be likely to cause death.

Consequently, we hereby partly allow this appeal and convert the conviction of the accused appellant from Section 302 to Section 304 Part I I.P.C. and sentence him to undergo 5 years rigorous imprisonment. The learned trial Court is direct to issued amended warrants.