Sheo Prasad vs State of U.P.

B.C. Jauhari, J.—Sheo Prasad has filed this appeal against his conviction u/s 302 IPC and sentence of imprisonment for life awarded to him by the judgment of the Sessions Judge, Azamgarh dated 31-3-77.

The occurrence is said to have taken place on 7-5-1976 at about 4 p.m. in village Bhairo Das Pur, P.S. Mahrajganj which is situated at a distance of one mile from the Police station. The report was lodged by Sahti PW 2 at 6 15 p.m. the same day. One Banarsi had three sons namely Sahti PW 2, Chhangur and Kalpu. Chhangur from his first marriage had a son Ram Prasad who is the deceased in this case. Very shortly after the death of his wife Chhangur married a second time and the Appellant Shiv Prasad was born from the second wife. This is therefore, a case of murder by the Appellant Sheo Prasad of his step brother Ram Prasad. According to the allegations contained in the FIR there was a partition between Chhangur and Sahti and the northern portion came to the share of Sahti PW 2 and the southern to the share of Chhangur. There was an Osara in the east of the house in the middle of which there was a Tatia. On the day of the incident at about 4 p.m. Sahti removed the Tatia and started digging for constructing a wall. Upon this Appellant Sheo Prasad started abusing Sahti. Ram Prasad deceased came there and asked the Appellant net to indulge in abuse. There was an exchange of abuses between the two and Smt. Hardeiya wife of Sahti PW 2 intervened and took away Ram Prasad and confined him in a Kothri and the quarrel ended for the time being. Thereafter, Ram Prasad was sent by Hardeiya to bring medicine from Mahrajganj and as he came cut of the house, Sheo Prasad Appellant came to the door saying that he would settle the matter that day and Sheo Prasad ran towares Ram Prasad, both went towards the south and reached the field of Ugra Singh. Ram Prasad asked Sheo Prasad not to quarrel upon which Sheo Prasad took out the knife and gave a blow on his chest. Ram Prasad fell down as a result of stab injury and died soon-afterwards and the Appellant Sheo Prasad ran away with the knife. The occurrence was witnessed by Vishwanath PW 3, Surjan PW 4 and Parmoo PW 1 who also tried to intervene in the matter. After the occurrence Sahti went to the police station and lodged his report Ex. ka 1 The report was taken down by Head Constable Abdul Rasheed PW 7. (sic) Singh S.I. PW 8 started the investigation in the case. He recorded the statement of Sahti at the police station and thereafter conducted an inquest report on the dead-body which had been brought to the police station by Sahti and which is Ex. ka 3. Thereafter he sealed the corpse and prepared the necessary forwarding letters Ex. ka 4 to Ex. ka 7 and entrusted the dead body to constable B. Pandcy PW 6 for getting the post mortem done at Azamgarh. The Investigating Officer recorded the statement of Surjun at the police station itself and then started for the spot. He examined Smt. Hardei, Vishwanath and Parmoo on the spot, inspected the locality and prepared site plan which is Ex. ka 11.

The autopsy on the dead body of the deceased was conducted by Dr. S.L. Diwan PW 9. He found an incised wound just lateral to sternum on right side in third intercostal space. Blood was coming out from the wound. Its area was 3/4" x 1/2" x cavity deep. The internal examination revealed an incised wound in the wall of thorax. Pleura was also incised as also the right lung. In the opinion of the doctor the death was caused as a result of shock and haemorrhage as a result of injury.

The injury according to the doctor was sufficient in the ordinary course of nature to cause death.

The Appellant pleaded not guilty and attributed his implication in the case due to enmity.

The learned Sessions Judge came to the conclusion that the offence u/s 302 IPC was made out against the Appellant and in the result he recorded conviction in the case.

We have heard the learned Counsel for the Appellant and the learned State counsel at great length and feel that in so far as the prosecution case is concerned it is beyond any shadow of doubt established against the Appellant. We shall however, come to the question whether the offence is murder u/s 302 IPC or culpable homicide not amounting to murder u/s 304 part II IPC later.

As far as the prosecution version is concerned Parmu PW 1, Vishwanath PW 3 and Surjan PW 4 who were said to be the eye witnesses of the occurrence have not supported the prosecution version at all and the prosecution story is supported only by the uncle Sahti PW 2 and aunt Hardeiya PW 5. While it is true that the independent witnesses have turned hostile and have not supported the prosecution story, there is absolutely no reason to disbelieve Sahti PW 2 and his wife Hardeiya PW 5. He is the uncle of both, the deceased as well as the Appellant. Similarly, Hardeiya is the aunt of both, the Appellant as well as his brother Ram Prasad, who, was murdered. The Appellant has to show some strong enmity or motive for the uncle and the aunt to depose against him in such a serious crime as murder which can lead to serious consequences and thereby an infliction of a severe sentence also. Both the uncle as well as the aunt have supported the prosecution story in all its material particulars. Sahti has stated on oath that the Appellant struck a knife blow on the chest of the deceased after following him in the field of Ugra Singh. The report of the incident was lodged without any appreciable delay and the dead-body was also taken to the police station. The report corroborates the version of the prosecution. Further the quarrel between the parties on the removal of the Tatia is admitted even to Surjan who has turned hostile as far as the main story of stabbing is concerned. Surjan has admitted the altercation preceding this murder and on this part of the statement there is no challenge in the cross-examination. The altercation, therefore, which is admitted by Surjan further lends corroboration to the version of the FIR as supported by Sahti and his wife.

The learned Counsel appearing for the Appellant urged that in this case the story of the prosecution is that the Investigating Officer handed over the dead body on the spot after sealing it to Sri. Basteshwar Pandey PW 6 who according to his statement received it on 7-5-76 and he took it to the mortuary. Perhaps he suffered from some loss of memory and then he corrected himself by saying that be did not take the corpse from the place of occurrence but from the police station to the mortuary. Reference was made to the statement of Sahti PW 2 who said that Daroga Ji had seen the corpse in the evening at the police station and next day in the morning also when it was taken to the police station. From this the learned Counsel tried to urge that there has been a manipulation because if Daroga Ji had sealed the corpse in the evening on the day of occurrence, then there was no question of its being seen again by him the next day. It is urged that this discrepancy falsifies the statement of Sahti and that statement, therefore, should not be believed. We have considered the argument and feel that the statement of Sahti cannot be disbelieved outright solely on this discrepancy. It is quite possible that after laps of time he might not have remembered correctly the unimportant incidents like the sealing and taking away the corpse in the true chronological order. The contradiction on this trivial point, therefore, cannot throw over board the entire testimony of the eye witnesses. The fact remains that there is no reason for the uncle to depose against his real nephew and implicate him falsely in such a serious crime fully conscious of the consequences of such an implication.

The net result of what we have said above is that the prosecution has established its case beyond any shadow of reasonable doubt. It has been established that there was a quarrel between Sahti and the Appellant regarding the construction of the wail in which there was an indulge of abuses and shortly thereafter the Appellant stabbed the deceased which killed him. Although Sahti and his wife have said that there vas an interval of 10 or 15 minutes between the quarrel and the murder, the story put forthwith is that after the exchange of abuses between the Appellant and the deceased, Hardeiya intervened and closed the deceased in a room and after 15 minutes the deceased when he was going to take medicine was attacked with a knife by the Appellant. To our mind this interval of 15 minutes does not appear to be probable. It appears that there was a dispute regarding the construction of the wall between Sahti and the Appellant and the deceased intervened and there was quarrel and exchange of abuses between the two, that Hardeiya tried to pacify and had separated the deceased but it is quite likely that the deceased himself came out and then this incident of murder took place. The story of this interval of 15 minutes and subsequent murder of the deceased by the Appellant appears to have been introduced with a view to make the offence more serious and aggravated.

We now come to the question as to whether on the established facts of the prosecution the case falls u/s 302 or 304 IPC. The prosecution relied on the Explanation "thirdly" to Section 300 IPC and urged that in this case the accused had caused an injury with a knife and that injury was sufficient in the ordinary course of nature to cause death The learned Counsel for the State relied on the case of Virsa Singh v. State of Punjab AIR SC 465. The learned Counsel for the State cited various cases which we shall presently discuss and his argument is that the rigour of Virsa Singh''s case is somewhat diluted by the later decisions of the Hon''ble Supreme Court We shall, therefore, examine the authorities beginning with the case of Virsa Singh. In the case of Virsa Singh (supra) it was held that the prosecution must prove the following facts before it can bring a case u/s 300 "thirdly". First it must establish quite adjectively that a bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say that it was not accidental or unintentional, or that some other kind of injury was intended.

Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type, just described, made up of the three elements set out above, is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.

Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout), the offence is murder u/s 300 "thirdly". It does not matter that there was no intention to cause death or that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature, (there is no real distinction between the two), or even that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause to the bodily injury actually found to be present is proved, the rest of the enquiry is pruely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. It was urged that in the instant case the doctor had opined that the injury was sufficient in the ordinary course of nature to cause death and accordingly it does not matter as urged by the learned Counsel for the Appellant that there was no intention to cause death or an injury of a kind that is sufficient to cause death and the Appellant should on the objective inference as opined by the doctor is guilty of murder u/s 300 "thirdly". In the case of Om Prakash v. State of Haryana AIR 1981 SC 462 there was a quarrel between the accused and the victim and the accused gave a blow on the vulnerable part of the victim''s body resulting his death and the offence was held to fall u/s 304, part 11 and not u/s 302. the next case of Gokul Parashram Patil Vs. State of Maharashtra, was the case of solitary blow by knife on the clavicle and there it was held that Section 300 "thirdly" was not attracted and the case was u/s 304 part II IPC. In that case also the doctor had certified that the injury was sufficient in the ordinary course of nature to cause death. In this case the solitary blow which was found to be sufficient in the ordinary course of nature to cause death did not satisfy the test of Section 300 "thirdly" because the Appellant never intended to cause such an injury.

The third case which also came up in 1981 is the case of Jagrup Singh Vs. State of Haryana, . In this case the death was due to cerebral compression as a result of head injury. In this cast the Supreme Court followed the test laid down in Virsa Singh''s case, nevertheless after laying down that the case of Virsa Singh still holds the field reference was also made to latter decisions and Section 300 thirdly" was not applied to this case, inasmuch as when the Appellant struck the deceased with the Gandasa in the heat of the moment without premeditation and in a sudden fight the conviction cannot be sustained u/s 302 IPC and the conviction can only be recorded u/s 304 Part II. The next case reported is Randhir Singh alias Dhire Vs. State of Punjab, in which also reference was made to the case of Virsa Singh. In this case after referring to the case of Virsa Singh as interpreted in Jagrup Singh''s case (Supra) it was held that 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. In other words the injury found to be present was the injury that was intended to be inflicted. On the facts of that case, therefore, and considering the totality of the circumstances that there was only a single injury and no premeditation and there was a previous altercation, it could only be said that the Appellant must be attributed to knowledge that he was likely to cause an injury which was likely lo cause death and accordingly the case was held to fall u/s 304 Part II and not u/s 302 IPC.

In the case of Kulwant Rai Vs. State of Punjab, the case was of a single blow with a dagger that landed on epigastrium area and the victim succumed to the injury. It was held that the case did not fall under clause "thirdly" of Section 300 and would only fall u/s 304 Part II IPC, because it could not be said that the accused intended to inflict that particular injury which was ultimately found to have been inflicted. In the case of Gurmail Singh and Others Vs. State of Punjab, it was held that even though the injury inflicted may have been found to be sufficient in the ordinary course of nature to cause death, what ought to be found is that the injury found to be present was the injury that was intended to be inflicted and it must be proved that there was intention to inflict that particular bodily injury which in the ordinary course of nature was sufficient to cause death.

AIR 1983 185 (SC) was a case of tingle stab wound on the chest preceded by an altercation between the accused and the victim. The case was held to fall not u/s 302 but u/s 304 part II inasmuch as there was no intention to kill the victim. Another case Jawahar Lal and Another Vs. State of Punjab, was a case of solitary blow by knife following a trivial quarrel. There was no attempt to inflict a second blow, since the intention to cause that particular injury could not be attributed, the case was not covered by Section 300 "thirdly" and only 304 part II. In this case the case of Jagrup v. State of Haryana was followed.

The next case cited was Sital Singh Vs. State of Punjab, . It was a case of a gun shot hitting in the abdomen and there also the case was held to fall u/s 304 part II IPC.

The last case cited was Jagtar Singh Vs. State of Punjab, . In this case there was a sudden quarrel on the spur of the moment and a single blow by knife was caused on the chest of the victim and although the doctor had deposed that the injury was sufficient in the ordinary course of nature to cause death, it was held that the intention to cause death or causing that particular injury could not be imputed and it Could only be said that the accused had the knowledge that it was likely to cause an injury which was likely to cause death and the offence squarely fell u/s 304 Part II IPC.

We have given a gist of the cases cited in order to indicate that merely because the doctor opines that a particular injury is sufficient in the ordinary course of nature to cause death, the case would not ipso-facto fall u/s 300 "thirdly" and the offence would not be murder. In cases of sudden quarrel without any premeditation where a single blow is lodged by the accused even on the vital part and there is no intention to cause that injury which was sufficient in the ordinary course of nature to cause death, it can only be said that the accused had the knowledge that he was likely to cause an injury which was likely to cause death. The inference deducible is that although in the Virsa Singh''s case there was an absolute unqualified observation that it does not matter that there was no intention to cause an injury of the kind that was sufficient to cause death in the ordinary course of nature nevertheless if the injury is present and is proved to be of such description objectively that was likely to cause death, the case is covered u/s 300 "thirdly". The latter cases however say that it must be established that the accused intended to cause the particular injury which was ultimately found to be inflicted and what ought to be found is that the injury found to be present was the injury that was intended to be inflicted. Applying the principles of these cases we feel that in the instant case there is no previous background of enmity between the parties and there was absolutely no previous quarrel between the deceased and the victim. The altercation developed that very day followed by stabbing by the Appellant. The stabbing with a knife without any attempt to cause any further blow can only impute knowledge that the injury could cause death. There is no evidence to establish that the Appellant intended to cause this type of injury and consequently, the case would not fall u/s 302 but u/s 304 Part II IPC.

20 Coming now to the question of sentence we feel that a sentence of 5 years'' R.I. would meet the ends of justice.

In view of what we have said above, we allow this appeal partly and alter the conviction of the Appellant from 302 IPC to one u/s 304 Part II. The sentence of life imprisonment is reduced to a period of five years'' rigorous imprisonment. The Appellant is on bail. He shall be taken into custody to serve out the remaining sentence if not already served according to law, and his bail-bonds are cancelled.

Appeal partly allowed.