Hon'ble Naheed Ara Moonis,J.
(Delivered by Hon'ble Amar Saran, J) This criminal appeal arises from a judgement and order of the Additional Sessions Judge, Sonbhadra dated 19.5.2003 convicting and sentencing the appellant Babloo Sweeper to undergo imprisonment for life under Section 302 I.P.C.
We have heard Sri Ajay Kumar Pandey, Amicus Curiae for the appellant and the learned A.G.A..
The prosecution case was that the appellant Babloo Sweeper was married to Phulwa Devi, the daughter of deceased Ram Bilas. He was crippled in his legs and a widower. In the intervening night of 12/13.9.2001, the appellant had taken his meal with Ram Bilas and they were talking. At that time, they started to quarrel because they were making accusations against each other of engaging in black magic (jadu tona) against each other. Then the appellant Babloo Sweeper took out a knife and stabbed Ram Bilas. On his cries, the witnesses Ram Chandra, Ashok, Sumer, Naresh and other persons of the Mohalla came there flashing their 'torches' and witnessed the incident. On their arrival, the appellant left in the direction of Arya Samaj. The persons present could not apprehend him. Ram Bilas died at the spot.
An FIR of the incident was lodged by one Naresh PW-1 son of Pyarey Lal at Police Station Obra on 13.9.2001 at 1.15 P.M. The investigation in this case was commenced by SI Intekhab Ahmad PW-6. After recording the statement of the complainant, he arrived at the spot and prepared the inquest report of the deceased and also prepared the recovery memo of the Gatta on which the deceased Ram Vilas was sleeping. He completed the formalities such as photolash, challan lash, letter for CMO, and handed over the corpse to the Constables Vanshraj Singh and Virendra Kumar Gupta for taking to the mortuary.
PW-5 Dr. A.K. Singh conducted the autopsy on the body of Ram Bilas on 13.9.2001 at 2.00 P.M. The deceased was 45 years old and of average built. Rigor mortis was present on both extremities. He found the following ante-mortem injuries on the deceased.
1.Incised wound 3 cm x 2 cm x cavity deep on left side of chest 5 cm lateral to nipple.
2.Incised wound 4 cm x 2 cm x cavity deep 5 cm below injury No.1.
3.Incised wound 3 cm x 2 cm x cavity deep 7 cm below to injury no.2.
4.Incised wound 3 cm x 1 cm muscle deep on left side of chest, 4 cm below nipple.
5.Incised wound 3 cm x 3 cm x cavity on left side of abdomen, 4 cm lateral to umbilicus, bowel loops were protruding out.
6.Incised wound 2 cm x 2 cm x cavity deep on left side of abdomen, 3 cm above to left of inguinal ligament.
7.Abrasion 4 x 4 cm on the back 8 cm below 7th rib.
The doctor noted that the cause of death was due to shock and haemorrhage as a result of ante-mortem injuries.
He arrested the appellant the same day and on his pointing out a blood stained knife was recovered by PW-6, S.I. Intekhab Ahmad on 13.9.2001 under Section 27 of Evidence Act. The I.O. prepared the site plan of the incident as well as the place of recovery of the knife. The charge sheet was submitted against the accused-appellant after investigation.
As per the report of the Forensic Laboratory dated 28.9.2002, the knife contained blood but as the blood had disintegrated, its origin could not be determined.
PW-4 Sabha Pati Pandey prepared the check report and also made the relevant G.D. entry on the basis of the FIR lodged by the informant. Initially a case was registered under section 304 IPC. Apart from the aforesaid formal witnesses, PW-1 Ashok, PW-2 Naresh informant and PW-3 Ram Chandra are the eye witnesses of the incident who have been examined in this case.
PW-1 has stated on oath in Court that there was some dispute between appellant Babloo Sweeper and his father-in-law Ram Vilas. They had taken their meals at the hut of the deceased and after their meals there was some dispute that the other person had practised jadu tona. At that time, the appellant gave some knife blows in the abdomen of his father-in-law Ram Vilas. He saw the incident in torch light. As there was a hue and cry on the arrival of the witnesses, the appellant ran away from the spot towards Arya Samaj. The incident took place at about 12.30 A.M.
PW-2 Naresh informant has reiterated his version as given in the FIR. He stated that the deceased Ram Vilas was crying that he should be saved as his son-in-law was attacking him with a knife. On that, the informant Naresh, Ram Chandra and others ran to the spot and then in the torch light held by the witnesses, he saw the appellant and recognised him as the person who was stabbing his father-in-law Ram Vilas with a knife. On their enquiry, the appellant simply ran away with the knife, and though he was chased he could not be apprehended. Then he dictated a report to one person present in the crowd who had gathered there and then handed over the report at the police station.
PW-3 Ram Chandra has given a similar deposition that in the night of 12/13.9.2001 at about 12.30 A.M when he was preparing to sleep, he heard the cries of Ram Vilas, ?Bachao-Bachao.? Then he reached the spot and he saw the appellant Babloo Sweeper stabbing his father-in-law Ram Vilas with a knife in his hut.
In his 313 Cr.P.C statement, the appellant denied the incident and claimed that a false report had been lodged against him.
Learned Amicus Curiae did not raise any argument regarding the facts of the occurrence. He only mentioned that no recovery memo of torches by which the witnesses are said to have identified the appellant had been prepared in this case. He confined his argument to one short submission that the case against the appellant would not travel beyond Section 304 Part II IPC as the incident took place immediately after a sudden quarrel between the parties over practising black magic against each other.
According to learned AGA independent witnesses have deposed for establishing the participation of the appellant in this incident, which is corroborated by the recovery of the blood stained knife at the instance of the appellant. There was no reason for the false implication of the appellant and it was not suggested that anyone else could have any incident committing the murder of the deceased who was crippled in both legs.
He further submitted that as there were six incised wounds on the abdomen and chest region of the deceased, it could only be inferred that the appellant had attempted to cause the injuries on the vital parts of the deceased which were sufficient in the ordinary course of nature to cause the death of the deceased, therefore he could only be convicted under Section 302 IPC and the trial judge had rightly recorded the conviction of the appellant under the said provision.
We are in agreement with the submission of the learned AGA that so far as participation of the appellant in this offence, it stands clearly established by the independent eye witnesses and the recovery of the blood stained knife at the instance of the appellant, and the absence of any reason for his false implication, and the absence of any other person who may have had any reason to murder the deceased. The learned Amicus also sensibly did not raise any substantial arguments for raising a doubt regarding the participation of the appellant in the incident.
However so far as the other submission of the learned Amicus that the case would not go beyond second 304 IPC at the highest, and no case under section 302 IPC was disclosed, we are of the view that the said submission merits serious examination.
Here it may be noted that in the FIR itself, it is mentioned that after taking their meals the appellant and the deceased began to quarrel and accuse each other of engaging in jadu tona activities. PW-1 Ashok has also deposed that after the quarrel regarding jadu tona the appellant gave knife blows on the stomach of the deceased. PW-2 Naresh has stated that when he arrived at the spot, the persons present there were raising cries and he himself saw the appellant giving two or three knife blows to the deceased. PW-3 Ram Chandra has stated that the appellant had taken his meal with the deceased Ram Vilas and they had made allegations of practising jadu tona against each other. Thereafter a fight broke out between them leading to the appellant inflicting knife blows on the deceased.
In this connection Exception 4 to Section 300 IPC reads as follows:
?Exception 4- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner?.
On an analysis of the evidence we are firmly of the view, that the case is squarely covered by the said exception, as the act was committed without premeditation after a sudden fight in the heat of passion after a sudden quarrel and merely because 5 or 6 blows were given to the deceased, it could not be said that the appellant had taken undue advantage or acted in a cruel or unusual manner. The dispute was only about making charges and counter charges against each other of practising jadu tona. It was immediately after the said quarrel in the heat of passion and without premeditation that this incident had taken place, therefore, in our view, the case would fall within the purview of Section 304 IPC.
However, considering the nature of the repeated blows inflicted on the abdomen and chest region of the deceased, it could at least be inferred that the act by which death was caused was done with the intention of causing death or at least such bodily injuries as were likely to cause death so as to bring the case within the purview of Section 304, part I IPC and it could not be said that the nature of injuries suggested that the act was done only with the knowledge that it was likely to cause death but without any intention to cause death or to cause such bodily injuries as were likely to cause death, so as to bring the case only within the purview of section 304, part II IPC.
In this view of the matter, we think that the ends of justice would be met, if the conviction and sentence of the appellant is altered from one of imprisonment for life under section 302 IPC, to one under section 304 part I of the Penal Code. In the above background we think that a sentence of 10 years R.I. would meet the ends of justice.
With the above modification the appeal preferred by the appellant is partly allowed.
Order Date :- 3.3.2011 sfa/