PRITMA JOSHI AND ANOTHER vs BARKATULLAH VISHWAVIDYALAYA

This appeal has been filed by the

appellants, being aggrieved by the judgment dated

17.08.1994, passed by Second Additional Sessions

Judge, Mandla in S.T. No.116/1993, whereby the

appellant No.1 has been found guilty for the offence

under Section 323 of the Indian Penal Code and has

been sentenced to Rigorous imprisonment for one year

with fine of Rs.500/- with a stipulation for two months

simple imprisonment in case of default and appellant

No.2 has been found guilty of the offence under

Section 302 of the I.P.C. and has been sentenced to life

imprisonment.

The prosecution case, in brief, is that on

21.05.1993, at about 6.30 P.M., while Munnalal (P.W.-

1), Sunil Kumar (P.W.-3) and Khemkaran (deceased)

were returning home from the work. A verbal

altercation ensued between appellant No.1 Komal

Prasad and Munnanlal (P.W.-1), on account of crossing

the barrier. It is alleged that appellant No.1 struck

Munnalal (P.W.-1) on his head with a stick, causing

simple injury to him. Khemkaran when tried to

intervene and save Munnalal, appellant No.2 also

came to the spot and grappled with deceased

Khemkaran and took out a knife and stabbed him on

the abdominal region, as a result of which, Khemkaran

sustained grievous injuries and became unconscious.

The appellants then ran away. Khemkaran was

admitted in District Hospital, Mandla on 21.05.1993,

where after sometime, he succumbed to his injuries.

Report to this effect was lodged by injured

Munnalal (P.W.-1) at 9.00 P.M. on 21.05.1993, which

was registered at Crime No.244/93 and marked as

Exhibit P-1. On the basis of FIR (Ex.P-1) the criminal

law was set into motion. The appellants were arrested

and on the basis of their disclosure statement,

offending weapon ''knife'' was seized.

Dr. Anoop Pradhan (P.W.-10), who initially

examined Khemkaran has sated that his condition was

serious. There was a 2" x 1" x 1" stab incised wound

5 cm below the naval region and the injury was

grievous in nature. The postmortem examination of the

body of the deceased was performed by Dr. P.K. Mitra

(P.W.-11) at 12.15 P.M. on 22.05.1993

The postmortem report was submitted vide

Ex.P-17, which noticed the following injuries on the

body of the deceased:-

"Stab wound 1 x 2 cm present 3 inches below umbilicus oblique from above downward. Abdominal cavity is full of blood. Part of mesentery alongwith blood vessels cut."

The cause of death has been recorded as

haemorrhage stock due to huge internal bleeding as a

result of injury. Dr. Anoop Pradhan (P.W.10) and Dr. P.K.

Mitra (P.W.-11) have opined that the death is possible

with such injury.

In order to establish its case, the

prosecution mainly relied on the evidence of injured

eye witness P.W.-1 Munnalal and the medical evidence

including the deposition of P.W.-10 Dr. Anoop Pradhan

and P.W.-11 Dr. P.K. Mitra. The appellants abjured the

guilt. It was pleaded that during the course of

grappling, the deceased sustained injuries with his own

knife.

The trial Court placing reliance on the

evidence of P.W.-1 Munnalal and evidence of P.W.-10

Dr. Anoop Pradhan and P.W.-11 Dr. P.K. Mitra and the

postmortem report, found the accused persons guilty

as charged and convicted and sentenced them

aforesaid.

Shri Surendra Singh, learned Sr. Counsel in

support of the appeal has urged that the occurrence

took place on a sudden provocation on account of oral

altercation. There was no intention or premeditation to

harm the deceased, hence the conviction as done is

not correct. It is further submitted that in the facts

and circumstances of the present case, Section 302 of

the I.P.C. has no application and the appellant No.2 at

the most would be charged under Section 304 Part-II of

the I.P.C.

Shri Anubhav Jain, learned Govt. Advocate

appearing for the respondent/State has submits that

the trial Court has analysed the evidence in detail and

has correctly held that the appellant No.2 guilty for the

offences under Section 302 of the I.P.C. and the

appellant No.1 under Section 323 of the I.P.C.

We have heard the learned counsel for the

parties at length and perused the record. Learned

Senior counsel has placed reliance on the testimony of

injured eye witness Munnalal (P.W.-1) to show that the

incident happened on spur of the moment and there

was sudden altercation and grappling between

appellant No.2 and deceased Khemkaran and there

was no intention to cause death. In this grappling, the

deceased got struck by the knife in the abdominal

region and became unconscious. As per learned

Senior Counsel, as there was no intention to cause

death and only a single injury was inflicted, the case

would fall under Section 304-Part -II I.P.C . and not under

Section 302 of the I.P.C.

In Laxman Vs. State of M.P (2006) 11

SCC 316, the Supreme Court while interpreting and

analyzing the various clauses of Sections of 299 and

300 of the I.P.C . has referred to the observation made

by Vivian Bose, J in the case of Virsa Singh Vs. State

of Punjab AIR 1958 SC 465, hence:

These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh''s case (supra) for the applicability of clause "Thirdly" is now ingrained in our legal system and has become part of the rule of law. Under clause thirdly of Sec. 300 of the Indian Penal Code, culpable homicide is murder, if both the following conditions are satisfied: i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury, which in the ordinary course of nature, was sufficient to cause death, viz., that the injury found to be present the injury that was intended to be inflicted.

Thus, according to the rule laid down in Virsa Singh''s case, even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Sec. 300 of the Indian Penal Code clearly brings out this point.

On close scrutiny of the deposition of P.W.-1

Munnalal, it is revealed that verbal altercation ensued

on account of going over the barrier. Appellant No.1

inflicted injury on the head of P.W.-1 Munnalal, who fell

down. When deceased Khemkaran came to intervene

and save P.W-1 Munnalal, appellants stopped and

pushed him, as a result of which, he fell down in the

culvert. Thereafter, though the deceased, who was

unarmed, did not again grapple with or attack

appellant No.2, he, on his own, took out a big knife

which he was carrying with him and stabbed the

deceased in the abdomen and ran away. The injured

was taken to the hospital, where as per P.W.-8

Ramkumar, he succumbed to the injuries after two

hours.

In view of the clear statement of P.W.-1

Munnalal that the fatal injury was inflicted, when the

deceased fell down in the culvert and the severity and

intensity and the manner in which the stab injury was

inflicted which resulting in cutting the mesentery and

blood vessels, clearly establishes the intention of the

appellant No.2 and that he must be treated to be fully

in know of the consequences of his act including

possible death and the medical evidence including the

statement of Dr. Anoop Pradhan (P.W.-10) and Dr. P.K.

Mitra (P.W.-11), who have clearly opined that the death

is possible with such injury, Section 304-Part -II of the

IPC has no application to the present set of facts.

Having considered all the relevant material

and having noticed the fact that the intensity and

severity of the injuries and the manner in which it was

inflicted and in view of the seizure of the blood stained

knife from appellant No.2, we are of the view that the

trial Court has rightly held the appellant No.2 guilty of

offence under Section 302 of the I.P.C. for committing

the murder of Khemkaran and appellant No.1 under

Section 323 of the I.P.C. for causing simple injury to

Munnalal P.W.-1.

In view of the aforesaid, we do not find any

illegality or perversity in the appreciation of the

evidence made or finding of conviction recorded by the

trial Court.

However, looking to the fact that appellant

No.1 is now 73 years of age and he has already served

out about three months imprisonment, therefore it

would not be proper to send him back to jail again.

Appellant No.1 has been convicted under Section 323

of the I.P.C. and sentenced to rigorous imprisonment

for one year and fine of Rs.500/-. Fine amount has

already been deposited. His conviction under Section

323 of the I.P.C. is hereby maintained, but his sentence

is reduced to the period already undergone by him.

The appeal, so far as it relates to appellant

No.2 Dilip Kumar being meritless is accordingly

dismissed and that of appellant No.1 Komal Prasad

stands partly allowed.

Appellant No.2 is on bail. His bail bonds

shall stand cancelled and he is directed to be taken

into custody forthwith to undergo the remaining part of

jail sentence.