N. Dhinakar, J. 1. The accused in S.C. No. 38 of 1996 is the appellant. He was tried and convicted for a charge under Section 302, IPC and sentenced to imprisonment for life on an allegation that he stabbed Naiju at about 6.45 p.m. on 19-6-1995 in front of a closed shop room in Cherpu Panchayat, Corakam Village, as a result of which the said Naiju died on his way to the hospital.
2. To prove the above charge, the prosecution examined P.Ws. 1 to 12 and marked Exts. P1 to P7. M.Os. 1 to 9 were also produced and marked.
3. The facts necessary to dispose of the appeal can be briefly summarised as follows : The accused and the deceased are friends. On the afternoon of 19-6-1995 they were seen quarrelling with each other by P.W. 5. On the evening of the same day at about 6.45 p.m. for reasons unknown to anybody an altercation ensued between the deceased Naiju and the accused followed by a scuffle between them. P.W. 1, who was returning from his masonry work, P.W. 2, who was running a hotel near the scene of occurrence and P.W. 3, who was standing at the scene of occurrence saw the accused and the deceased grappling with each other. The accused using his leg brought down Naiju, the deceased on the floor, sat on his abdomen, pulled put a knife and stabbed twice on the chest of the deceased. P.W. 4, the police constable attached to Cherpu Police station who was on traffic duty reached the place of occurrence. On seeing P.W. 4 the accused beat the knife on the floor and broke it into two. P.Ws. 1 and 3 then took the injured to a private nursing home where on examination by the doctor, P.W. 7, he was pronounced dead. In the meanwhile the accused was detained at the scene of occurrence by P.W. 4.
4. P.W. 1 then went to Cherpu Police Station and laid a complaint Ext. P1 at 8.15 p.m. With P.W. 11, the Sub-Inspector. A case in Crime No. 119 of 1995 under Section 302, IPC was registered under Ext. P1 (A) the first information report. Express reports were sent to the higher officials as well as to the magistrate. P.W. 11 thereafter proceeded to the scene of occurrence and arrested the accused and brought him to the police station.
5. P.W. 12, the Circle Inspector of Police, took up investigation on receipt of the first information report on 20-6-1995 and proceeded to the private nursing home, where the body of the deceased Naiju was kept. He then conducted inquest over the dead b6dy in the presence of the panchayatdars between 7.30 a.m. and 9.30 a.m. Ext. P6 is the inquest report. The body was then sent for postmortem with a requisition to the medical college hospital, Thrissur.
6. On receipt of the requisition P.W. 6, the Associate Professor of Forensic Medicine, Medical College Hospital, Thrissur, commenced autopsy over the dead body and found the following antemortem injuries :
1. Incised penetrating wound 4 x 0.6 cm. transversely oblique, on left side of front of chest with the lower medial sharp cut end situated 3 cm. outer to the midline and 4 cm. below the collar bone. The upper lateral end was rounded and was placed 2.5 bm. below the collar bone. The wound entered the left chest cavity by cutting through the first intercostal space and also by cutting the upper 3/4th of the costal cartilage of the left 2nd rib (chest wall thickness 3.5 cm.). In the chest cavity the wound cut the upper part of front of pericardial sac 2 x 0.6 cm. full thickness. Deep to that the wound transfixed the norta, the wound in the front wall of norta measuring 1.8 x 0.5 cm. (0.8 cm. above its origin) and the wound on the back wall of norta measured 0.8 x 0.4 cm. diameter of norta 2 cm.). Pericardial sac contained 150 gm. of blood clots and 50 cc of fluid blood. the left chest cavity contained 200 gm. of blood clots and 430 cc of fluid blood. The wound was directed backwards, medially and downwards and had a depth of 8 cm.
2. Incised stab wound 2.8 x 0.5 cm. 3 cm. deep, vertically oblique, on left side of front of chest with lower medial sharp cut end situated 2 cm. outer to midline and 12 cm. below the lower medial end of injury No. 1. The upper lateral end was rounded. This wound cut the costal cartilage of 7th rib on left side, full thickness (No internal organ was cut by this wound). The wound was directed backwards, slightly downwards and medially.
3. 'U' shaped abrasion 11 x 0.8 cm. on book of left upper arm 7 cm. above the joint line of elbow. The free limbs were pointing laterally, length of free limbs 4.3 cm. each. The concavity was medially. The normal area between the free limbs was 3.5 cm.
4. Incised wound 1.7 x 0.2 x 0.4 cm. vertically oblique, on the front of index finger of right hand. The upper lateral end was placed in midline 4 cm. above the tip of the finger.
5. Abrasion 1.5 x 1 cm. on right side of back of abdomen 4.7 cm. outer to midline and 4.2 cm. above the top margin of buttock.
6. Abrasion 1.3 x l cm. on left side of back of abdomen 5.5. cm. outer to midline and 4.6 cm. above the top margin of buttock.
He was of the opinion that injury No. 1 was necessarily fatal and the said injury and injury No. 2 could have caused with a weapon like M.O. 1. Ext. 22 is the postmortem certificate.
7. In the meanwhile P.W. 12 continued his investigation and examined witnesses. He prepared the scene mahazar Ext. P5 attested by P.W. 8. He had a rough sketch, Ext. P5 prepared through P.W. 10. He recovered M.O. 3 shirt and M.O. 4 lungi worn by the accused. The material objects were then sent to the Court with a requisition to send them for chemical analysis. Ext. P7 is the report of the chemical analyst showing that M.Os. 3 and 4 contained 'O' group blood. After completing investigation the final report was filed against the accused.
8. When questioned under Secion 313, Cr.P.C. on the incriminating circumstances appearing against him the accused pleaded innocence. The learned Sessions Judge accepted the prosecution case and convicted and sentenced him to imprisonment for life and hence the present appeal.
9. The learned Counsel appearing for the appellant contended that the evidence of P. Ws. 1 to 3 cannot be accepted as they are chance witnesses. He further contended that the occurrence could not have taken place in the manner alleged and in any event the accused is entitled for the benefit of Exception 4 to Section 300. We have heard the Public Prosecutor on the contentions.
10. P.Ws. 1 to 3 claims that they witnessed the occurrence. P.W. 1 in his evidence has testified to the effect that he was on his way back from his masonry work and happened to see the occurrence when the accused and the deceased were grappling with each other. P.W. 2 is the owner of a hotel and the occurrence took place adjacent to the said hotel. P.W. 3 has deposed that he was the owner of an autorickshaw and went to the bazar to see whether his autorickshaw is available at the stand. It cannot be said that these witnesses are chance witnesses and that their explanation cannot be accepted. We also have the evidence of P.W. 4, the traffic police constable, who on hearing a commotion came to the scene and found the deceased lying with injuries and the accused standing there with a knife in his hand. The injured was immediately rushed to the private hospital by P. Ws. 1 and 3 and was examined by the doctor, P.W. 7 at. 6.55 p.m. These facts indicate that P.Ws. 1 and 3 must have been present at the scene of occurrence or otherwise the injured could not have been removed to the hospital within 10 minutes. The evidence of P.W. 4, the police constable, cannot be rejected when he has deposed that the accused on seeing him beat the knife on the floor and broke it into two. Nothing was elicited in the cross-examination of P.W. 4 to suggest as to why he was falsely deposing against the accused. Similarly in spite of searching cross-examination of P.Ws. 1 to 3 no material was brought forth to show that these witnesses were inimical towards the accused. We see no reason to reject their evidence. The contention of the learned Counsel that the prosecution did not produce the duty note book of P.W. 4 is to be stated only to be rejected in the light of the evidence of P.Ws. 1 to 3. Even in the first information statement, Ext. P1 given by P.W. 1, the fact that a police constable came to the scene of occurrence is found mentioned. The said first information statement was laid with P.W. 11, the Sub-Inspector of Police at about 8.15 p.m. is within an hour and a half from the time of occurrence. The evidence is overwhelming against the accused and we hold that it was the accused who caused the fatal injury on the deceased.
11. The question that is now to be decided by us is the nature of the offence committed by the accused. It is the admitted case that none of the witnesses knew the reason for the quarrel between the accused and the deceased. As the learned Sessions Judge observed, for reasons unknown to anybody an altercation ensued between the deceased Naiju and the accused followed by a scuffle between them. In the absence of any evidence to show as to who caused the provocation and how the quarrel ensued, we are of the view that the appellant is entitled for the benefit of Exception 4 to Section 300, IPC since admittedly the accused caused the injury on the deceased during a quarrel. In Surinder Kumar v. Union Territory, Chandigarh AIR 1989 SC 1094 : (1989 Cri LJ 883) the Supreme Court was of the view that to invoke Exception 4 to Section 300, IPC the cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault and that the number of wounds caused' during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. We are of the view that the above observations of the Supreme Court apply with all its force to the facts of the present case. There is nothing on evidence to suggest that the accused acted in an unusual or cruel manner for him to be denied the benefit of Exception 4 to Section 300, IPC.
12. On the facts of this case we hold that the accused stabbed the deceased without any premeditation in a sudden fight in a heat of passion upon a sudden quarrel and without his taking undue advantage and acting in a cruel or unusual manner. He is entitled for the benefit of Exception 4 to Section 300, IPC. In that view of the matter we feel that the offence committed by the appellant/accused will be one under Section 304, Part I, I.P.C. and his conviction under Section 302, IPC has to be set aside.
13. In the result, the conviction against the appellant under Section 302, IPC is set aside. He is convicted under Section 304 Part I, IPC. He is sentenced to suffer rigorous imprisonment for a period of 7 years.
14. With the above modification in conviction and sentence the appeal is disposed of. Set off, if any, available to the appellant will be given to him.