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Maibam Birahari Singh Vs. Manipur Administration - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantMaibam Birahari Singh
RespondentManipur Administration
Excerpt:
- - chaoba singh alias sanajaoba singh) shows that 10 years back the appellant complained against the deceased before the the panchayat that the deceased had beaten the appellant's mother and that the deceased was fined. he further deposed that the injuries could be caused with a sharp weapon like ext. it is well settled that the statements of the appellant under section 342 cr. he is not bound to prove his defence to the hilt, like the prosecution. c. jagannadhacharyulu, j.c.1. criminal appeal 14 of 1966 is an appeal filed by the accused in sessions trial 1 of 1966 on the file of the sessions judge, manipur, at imphal against his conviction under section 302 i.p.c. and sentence of death.2. criminal reference 40 of 1966 is a reference made by the sessions judge under section 374 cr. p.c. for confirmation of the sentence of death.3. the case of the prosecution, according to the charge sheet and as brought out in the evidence, is that the deceased nodia singh of keirao pitra village was the paternal uncle of the appellant, that both of them lived in the same 'ingkhol' (homestead land) but in different adjoining houses in keirao pitra, that there were disputes betwen both of them, that at about 7-00 p.m. on 13-8-1964 the deceased went.....
Judgment:

C. Jagannadhacharyulu, J.C.

1. Criminal Appeal 14 of 1966 is an appeal filed by the accused in Sessions Trial 1 of 1966 on the file of the Sessions Judge, Manipur, at Imphal against his conviction under Section 302 I.P.C. and sentence of death.

2. Criminal Reference 40 of 1966 is a reference made by the Sessions Judge under Section 374 Cr. P.C. for confirmation of the sentence of death.

3. The case of the prosecution, according to the charge sheet and as brought out in the evidence, is that the deceased Nodia Singh of Keirao Pitra village was the paternal uncle of the appellant, that both of them lived in the same 'ingkhol' (homestead land) but in different adjoining houses in Keirao Pitra, that there were disputes betwen both of them, that at about 7-00 p.m. on 13-8-1964 the deceased went out of his house and did not return, that P.W. 9 (his wife Barni Devi) and others went in search of him and found him at about 10 p.m. lying dead with various cut injuries on his body in his paddy field at a distance of about 150' to the east of the 'ingkhol' and that the appellant, the next door neighbour, was not seen in that night. P.W. 10 (M. Nageswar Singh) the son of the deceased lodged Ext. A/8 (Complaint) before P.W. 14, the station house officer of Lamphel Police Station, which is about 7 miles from the village, in the same night at about 3 A. M. alleging that the appellant, who was inimically disposed towards the deceased might have murdered the deceased.

P.W. 14 registered the case in F.I.R. 908 (8) 64 under Section 302 I.P.C. At about 3-45 A.M. the appellant surrendered himself before P.W. 14, as mentioned by the latter in Ext. A/10 (general diary). P.W. 15 (N. Kunjeswar Singh), the station house officer of Imphal Police Station took over the investigation. P. W. 15 proceeded to the village in question along with the appellant after recording his statement as per Ext. A/11, wherein he offered to show the dao. In the presence of P. Ws. 1(A Heiton Singh), 2(T. Tamro Singh), and 12 (Y. Kirti Singh, Chowkidar) the appellant removed Ext. M/1 (dao) from amidst the bushy leaves of pumpkin plants growing near his house and handed it over to P.W. 15 (N. Kunjeswar Singh), who seized it under Ext. A/11. The Additional District Magistrate sent Ext. M/1 to the Chemical Examiner and the Serologist in Calcutta for examination of Ext. M1. They sent Ext. A/15 (report) stating that Ext. M/1 is stained with human blood. P.W. 15 (N. Kunjeswar Singh) conducted the inquest in the presence of P.Ws. 1(A. Heiton Singh), 2(T. Tamro Singh) and 12(Y. Kirti Singh), Chowkidar as per Ext. A/2 and sent the dead body for post-mortem examination to the Civil Hospital in Imphal. P.W. 7 (R.M.O.) conducted the post-mortem examination at 3,15. P.M. OB 14-8-1964 and issued Ext. A/6 (post-mortem certificate). He was of the opinion that the injuries might be caused with Ext. M/1 (dao).

4. There is no direct evidence in this case. The learned Sessions Judge held that there is the following circumstantial evidence against the appellant. Firstly, the appellant had a motive to murder the deceased on account of enmity. Secondly, he absconded after murdering the deceased and surrendered himself in the Police Station before P.W. 14 (W. Borobi Singh), its station house officer. Thirdly, Ext. M/1 (dao) was discovered on the information-given by him, which was stained with human blood. Fourthly, the evidence of P.W. 7 (Dr. K. Gopal Singh) shows that the injuries of the deceased could be caused with Ext. M/1. Then the learned Sessions Judge relied on the admissions made by the appellant in his statement* under Section 342 Cr. P.C. Ext. A/17 is the statement of the appellant recorded by the committing Magistrate under Section 342 Cr.P.C., which was treated as evidence under Section 287 Cr. P.C., in which the appellant admitted having killed the deceased. In the statement of the appellant before the Sessions Judge recorded under Section 342 Cr.P.C., he stated that the deceased fell down on the ground, probably, because he received injuries on account of the dao Ext. M/1, which the appellant used to ward off the assault attempted to be made by the deceased with a big wooden log. He however negatived the plea of the appellant regarding his right of private defence. So, he found the appellant guilty under Section 302 I.P.C. and sentenced him to death.

5. The learned Counsel for the appellant challenged all the findings of the lower court. So, the evidence has to be carefuly scrutinised to judge whether they are correct or not.

6. Firstly, with regard to the question of motive, it is not necessary for the prosecution to establish that the appellant had any motive to murder the deceased. But, still there is evidence to show that there were disputes between the deceased and the appellant. P. Ws. 4 (K. Ibotombi Singh), 6 (Th. Mohon Singh), 8 (A. Aber Singh), 9 (M. Baruni Devi), 10 (M. Nageswar Singh) and 11 (N. Chaoba alias Sanajaoba Singh) were examined to show that about 10 years prior to the incident, the appellant filed a Criminal case against the deceased before the Irilbung Salis Panchayat alleging that the deceased had beaten the mother of the appellant. P. W. 4 (K. Ibotombi Singh) was a member of the Panchayat. He stated that, though he could not state what the Panchayat decided, yet after the appellant lodged the complaint against the deceased both of them were inimical and that they were not on talking terms. He is an independent witness. P.Ws. 6 (Th. Mohon Singh) and 8 (A. Aber Singh) denied the knowledge of the Panchayat and were treated as hostile and cross-examined by the learned Assistant Public Prosecutor. But P.Ws. 9 (M. Baruni Devi), the widow of the deceased and 10 (M. Nageswar Singh) his son deposed to the prior dispute. P.W. 11 (N. Chaoba alias Sanjaoba Singh) is now a member of the Nyaya Panchayat. He was formerly a member of the Salis Panchayat in Irilbung. He deposed to the fact of the complaint made by the appellant against the deceased alleging that the deceased had assaulted his mother and that the Panchayat convicted the deceased and fined him. He is an independent witness. So, the evidence of P.Ws. 4(K. Ibotombi Singh), 9 (M. Baruni Devi), 10 (M. Nageswar Singh) and 11 (N. Chaoba Singh alias Sanajaoba Singh) shows that 10 years back the appellant complained against the deceased before the the Panchayat that the deceased had beaten the Appellant's mother and that the deceased was fined.

7. Though the above incident took place about 10 years prior to the occurrence, there is the further evidence of P.Ws. 9 (M. Baruni Devi) and 10 (M. Nageswar Singh) which shows that the deceased opened a gate some days prior to the occurrence and that there was a quarrel between the appellant and the deceased on the ground that the cattle of the deceased trespassed into the 'ingkhol' of the appellant. Though P.W. 9 (M. Baruni Devi) stated that the dispute took place 2 or 3 days prior to the occurrence, the evidence of P.W. 10 (M, Nageswar Singh) is that it took place about 2 months prior to the occurrence. So, there is no doubt that there were ill feelings between the deceased and the appellant.

8. Secondly, that the appellant absconded immediately after the occurrence took place is clear from the evidence of a number of witnesses including his own wife (Maibam Ongbi Tamu Devi) who was examined as P.W. 5. P.W. 1 (A. Heiton Singh) is no other than a close relative of the appellant. The appellant is the son-in-law of P.W. 1's (A. Heiton Singh's) brother. He deposed that though he saw the appellant in the morning and in the evening of 13-8-1964 in his house, he did not see him again until he was brought by the police in the morning of 14-8-1964. Also, he stated that the appellant was not found in the gathering in the night when the villagers assembled on the paddy field near the dead body to see it. P.W. 2 (T. Tamro Singh) is a neighbour of the appellant. His evidence is also to the same effect. P.W. 3 (K. Meino Singh), another co-villager stated that he did not see the appellant in the gathering. P. W. 5 (Maibam Ongbi Tamu Devi), the wife of the appellant stated that after she returned home from the fields in the dusk on 13-8-1964, she found her husband sitting in the verandah, but that she did not see him in the night after the occurrence took place and that she saw him only in the morning of the next day when the police brought him. She was not cross-examined. P.Ws. 9 (M. Baruni Devi) and 10 (M. Nageswar Singh), the widow and the son of the deceased also deposed that the appellant was absent from his house in the night. To the same effect is the evidence of P.W. 12 (Y. Kirti Singh, Chowkidar) of the village. The evidence of P.Ws. 10 (M. Nageswar Singh) and 14 (W. Borobi Singh) shows that after P.W. 10 (M. Nageswar Singh) gave Ext. A/8 (complaint) the appellant came to the police station at about 3-45 p.m. and surrendered himself. P.W. 14 (W. Borobi Singh) arrested him as can be seen from Ext. A/10 (entry in the general diary). So, the appellant left his house in the dusk of 13-8-1964 and did not return back to it. But, he surrendered himself to the Police Station at about 3-45 a.m. This is the second incriminating circumstance.

9. Thirdly, the evidence of P. Ws. 1 (A. Helton Singh), 2 (T. Tamro Singh), 12 (Y. Kirti Singh) and 15 (N. Kunjeswar Singh) shows that at about 7-00 a.m. on 14-8-1964 after the appellant was brought by P. W. 15 (N. Kunjeshwar Singh) to his house, he led the witnesses to the pumpkin plants near his dwelling house, that he removed Ext. M/1 (dao) from under their bushy leaves and handed it over to P. W. 15 (N. Kunjeswar Singh), who seized it under Ext. A/11, It was attested by all the witnesses viz., 1 (A. Heiton Singh), 2(T. Tamro Singh) and 12 (Y. Kirti Singh). Ext. A/15 (report of the Serologist) shows that Ext. M/1 is stained with human blood. The contention of the learned Counsel for the appellant is that there is no evidence to show that the pumpkin garden belonged to the appellant, but that it was an open one accessible to the public and that somebody might have put it in the garden. The evidence of P. W. 1 (A. Heiton Singh), 2 (T. Tamro Singh), and 12 (Y. Kirti Singh), is that the pumpkin garden was near the house of the appellant. But P. W. 15 (N. Kunjeswar Singh) stated that the garden belonged to the appellant. The evidence shows that Ext. M/1 was removed by the appellant from a bushy growth of leaves of pumpkin plants.

So, that much portion of the statement of the appellant in Ext. A/11 which led to the discovery of Ext. M/1 is admissible in evidence under Section 27 of the Indian Evidence Act. Vide also Mangalsing Sonelal v. Emperor AIR 1948 Nag 78 and State of Orissa v. Basanta Bag AIR 1959 Orissa 33. The learned Counsel for the appellant further argued that Ext. A/15 does not mention the identity of the blood group. The Serologist states therein thai he could not determine the blood group, as the stain was not sufficient for the test. Generally stated, there are several cases where the Serologist is not able to determine the blood groups. P. W. 2 (T. Tamro Singh), neighbour of the appellant identified the dao as that of the appellant. He deposed that he used it occasionally by borrowing it from the appellant The fact that Ext. M/1 was seized on the information furnished by the appellant and it was stained with human blood is a third criminating circumstance.

10. Fourthly, P. W. 7 (Dr. K. Gopa Singh), the medical officer who conducted the post-mortem examination found the following external injuries as mentioned in Ext. A/6.

(i) One transverse incised wound 4' x 3' * x 3' on the interior surface of the middle of the neck, (ii) One transverse incised wound of 5' x 1' x 1' on the area extending from the right angle of the mouth, (iii) One transverse incised wound 4'x3'x1' just above the left axillary fossa. (iv) One transverse incised wound 9' x 4' x bone deep on the anterior surface of the left arm. (v) One transverse incised wound - 3'x2'x hone deep on the posterior surface of the left forearm.

On dissection, he also found the following internal injuries:

(i) One compound fracture of the fourth cervical vertibra with damage of internal carotid arteries corresponding to external injury No. 1; (ii) One compound fracture of the mandible corresponding to external injury No. (ii).

(iii) A compound fracture of the left humerus corresponding to external injury No. (iv). (iv) One compound fracture of left ulna and radius corresponding to external injury No. (v).

His opinion is that the death was due to shock and haemorrhage as a result of the injuries and that injury No. (i) was fatal. He further deposed that the injuries could be caused with a sharp weapon like Ext. M/1. So the medical evidence of P. W. 7 supports the case of the prosecution and constitutes the fourth piece of incriminating evidence against the appellant.

11. Under Section 342, Cr. P.C. the lower court examined the appellant. The appellant admitted the correctness of the evidence of the prosecution witnesses with regard to several matters. Firstly, with regard to the enmity between him and the deceased he stated that the criminal case was between his mother and the deceased on account of which the deceased was angry with the appellant, but that the appellant had no enmity towards him. Then, the appellant further stated that it is true that there were some quarrels between him and the deceased when the latter opened a gate and when the cattle trespassed on the land of the appellant. Secondly, with regard to his absence from his house in the night of 13-8-1964 he stated that the evidence of P. W. 5 his wife Tamu Devi that he was in his verandah in the dusk, that he did not return to his house in the night and that in the morning of the next day he was brought to his house on arrest is true. He further stated that at is true that he surrendered himself in the Police Station in the night before P. W. 14 (W. Borobi Singh). Thirdly, with regard to the seizure of Ext. M/1, he stated that he gave statement that he would pro-duce the dao (thang akonbi) and that he produced it accordingly from among the pumkin plants and gave it to P. W. 15 (N. Kim-jeswar Singh) and that he did not dispute the evidence of P. Ws. 1 (A. Heiton Singh), 2(T. Tamro Singh), 12(Y. Kirti Singh) and 15 (the Investigating Officer) in that regard. Thus, the four incriminating circumstances, proved by the prosecution were admitted by the appellant to be true, when he was examined under Section 342 Cr. P.C.

12. The appellant further stated in the lower court in reply to question No. 16 as to whether he wanted to say anything else that at about dusk in the evening of the day of occurrence when he went to collect firewood from the eastern part of his 'ingkhol' he saw his fencing pulled down and that two bamboos were cut down, that he saw the deceased and asked him about the bamboos and that the deceased replied that he cut them down as their branches spread towards his land. The appellant went on to state that then he got angry and rebuked the deceased, that the deceased rushed towards him by holding a wooden log of a big size to kill him, that the appellant warded off the assault to defend himself, that the deceased fell down probably because he received some injuries and that the appellant left the spot. The learned Sessions Judge relied on the above statements of the appellant. He exhibited the statement of the appellant under Section 342 Cr. P.C. recorded by the committing Magistrate as Ext. A/17 under Section 287 Cr. P.C. He discussed both the statements of the appellant and disbelieved the right of self-defence set up by the appellant before him as being contrary to his statement in Ex. A/17 and found him guilty under Section 302 I.P.C. The contention of the learned Counsel for the appellant is that the prosecution did not prove that the appellant committed the murder and that the prosecution cannot fill up the gaps by relying on the statement of the appellant in the trial court and on Ext. A/17 his statement before the committing Magistrate.

13. Section 342 Cr. P.C. runs as follows : '342. Power to examine the accused-

(1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any enquiry or trial without previously warning the accused, put such questions to him as the Court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence.

(2) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them; but the Court and the jury (if any) may draw such inference from such refusal or answers as it thinks just.

(3) The answers given by the accused may be taken into consideration in such enquiry or trial, and, put in evidence for or against him in any other enquiry into or trial for any other offence which such answers may tend to show he has committed.

(4) No oath shall be administered to the accused when he is examined under Sub-section (l).

So, under Section 342 (3) Cr. P.C. the Court can take into consideration the answers given by the accused.

Section 287 Cr. P.C. runs as follows:

287. Examination of the accused before Magistrate to be evidence. - The examination of the accused, if any, recorded by or before the committing Magistrate shall be tendered by the prosecutor and read as evidence.' So, the examination of the appellant as per Ext. A/17 before the committing Magistrate should be read as evidence.

14. In support of his contention that the statements of the appellant under Section 342 Cr, P. C. cannot be relied upon to fill up gaps in the prosecution case, the learned Counsel for the appellant cited the following rulings. In Saleh v. Emperor AIR 1929 Sind 255 the evidence let in by the prosecution was not sufficient by itself to justify the conviction. But, when the accused was examined under Section 342 Cr. P.C. he admitted having received Rs. 50/- by way of fine to hush up as a criminal offence committed by one of the complainants. This admission was not believed by the lower court. But, however, it was taken into consideration by the lower court while convicting the accused. It was held that the evidence was insufficient by itself and that the Court could not : rely on the statement made under Section 342 Cr. P.C. divorced from its context.

In Hasham v. Emperor AIR 1936 Lah 28 it was held that the statements made by the accused in reply to the questions Under Section 342 Cr. P.C. cannot be used to fill up the defects in prosecution. In Motilal v. State it was held that where there is no circumstance appearing in the prosecution evidence against the accused he should not be examined under Section 342 Cr. P.C. and that his statement cannot be taken into consideration for convicting him. Vide also In re D. Pandurangan : AIR1953Mad418 . In Vijendrajit Ayodhya Prasad Goel v. State of Bombay : AIR1953SC247 it was held that the conviction of the accused cannot be based merely on his statement recorded under Section 342 Cr. P.C. which cannot be regarded as 'evidence'. But, it was pointed out that as the prosecution evidence disclosed that the go-down, in which there was rectified spirit without a permit, was in the possession of the accused and the accused in his examination under Section 342 Cr. P.C. admitted that he was in charge of the godown, then the Court was justified in referring to that statement as supporting the prosecution case concerning the possession of the godown.

In Bachchan Lal v. The State : AIR1957All184 it was held that the object of examination of the accused under Section 342 Cr. P.C. is to afford him an opportunity to explain away the circumstances which go against him, and not to elicit the matters about which there is no evidence. In Moral Majhi v. State : AIR1958Cal616 it was held that the statement of the accused under Section 342 Cr P. C. does not constitute evidence within the definition of Section 3 of. the Indian Evidence Act. But, at the same time, it was held that under Section 342 (3) Cr. P.C. the answers 'may be taken' and not that 'they must be taken into consideration in the enquiry or trial. In State v. Sitaram Dayaram Kachhi AIR 1958 Madh Pra 99 it was held that the accused person cannot be convicted on his statement made in his examination under Section 251 (A) Cr. P.C. before the framing of the charge.

15. The above rulings do not lay down that a statement under Section 342 Cr. P.C. cannot be looked into at all. On the other hand, Sub-section (3) lays down that the answers may be taken into consideration in the enquiry or trial. It was held in Deonandan Misra v. State of Bihar : 1955CriLJ1647 that the absence of explanation or a false explanation in a case where the various links have been satisfactorily made out and the circumstances point to the accused as the probable assailant with reasonable definiteness and in proximity to the deceased as regards time and situation, then it would be itself an additional link which completes the chain of circumstantial evidence.

In Andu Mushar v. State : AIR1955Pat428 the difference between the statement under Section 342 (3) Cr. P.C. of the accused in the course of the trial and the statement exhibited under Section 287 Cr. P.C. was pointedly brought out. In both the cases the Court has to consider the statement made by the accused. But, whereas the provisions in Section 342 Cr. P.C. give some latitude to use or not to use it, the same immunity is not afforded in Sessions trials which deal with grave offence. The Court is then bound to consider the effect of such statements and give its finding . It was also held that Section 287 Cr.P.C. does not impose any qualification with regard to the word 'evidence' and that it is difficult to interpret the section to mean that such statement should only be weighed to find if it is consistent with the innocence of the accused or not.

In Wasim Khan v. State of Uttar Pradesh : 1956CriLJ790 it was held that as the statement of the accused before the committing Magistrate is admissible in evidence under Section 287 Cr. P.C., it was not necessary for the Sessions Judge to specifically repeat the same when the accused admitted his statement before the committing Magistrate as correct, when read over to him. Sections 287 and 342 Cr. P.C. will be rendered nugatory if proper effect is not given to them. Section 342 (3) Cr.P.C. empowers the Court to take into consideration the answers given by the accused. Section 287 Cr. P.C. empowers the Court to read Ext. A/17 as evidence in the case. So both of them have got to be considered together, especially in view of the fact that there is a chain of incrementing circumstantial evidence against the appellant which had to be put to him and about which his answers had to be obtained under Section 342 Cr.P.C.

16. The statement of the appellant in the lower court as also Ext. A/17 go to show that there was a quarrel between the deceased and the appellant at about 7-00 P.M. regarding the cutting of 2 bamboos of the appellant by the deceased in the absence of the appellant on the ground that their branches spread to the land of the deceased. So, as alleged by the appellant, he must have abused the deceased. The deceased might have attempted to beat the appellant as stated by the appellant. The appellant, therefore, might have tried to ward off the blows. But, he exceeded his right of private defence by brutally killing the deceased, who was an old person. Ext. A/6 and the evidence of P.W. 7 go to show that the appellant inflicted as many as five deep injuries on the neck, mouth, left axillary fossa, left arm and left fore-arm etc. resulting in compound fractures of the bones inside. So, the appellant is guilty of the offence under Part I of Section 304 I.P.C.

17. The learned Sessions Judge disbelieved the defence of the appellant on the ground that Ext. A/17 is inconsistent with his version before him. In Ext. A/17 the appellant stated that about 2/3 months prior to the occurrence he lost one cow, that he learnt that the deceased gave away the cow to some tribal people for being killed and eaten and that when the appellant enquired the deceased about the matter he denied the fact. The appellant further made the same statement which he made in the Sessions Court about the dispute regarding the cutting of bamboos and that the appellant became angry and beat the deceased with Ext. M/1 twice or thrice. The learned Sessions Judge states in his judgment that P.W. 15 (N. Kunjes-war Singh) did not seize the club, that no witness spoke to its presence, that the witnesses were not cross-examined about the presence of the club and that, therefore, the plea of the appellant that he inflicted the injuries by way of self-defence is not believable. The appellant further stated in the Sessions Court that though he told the committing Magistrate that he inflicted the blows by way of self-defence, the Magistrate did not record the same in Ext. A/17. The learned Sessions Judge disbelieved this version of the appellant also.

It is well settled that the statements of the appellant under Section 342 Cr.P.C. must be construed as a whole when they are sought to be used : Vide Ahman Shah v. Emperor AIR 1937 Lah. 243 and Dronacharya v. State : AIR1959All526 . No doubt, in Karnail Singh v. State of Punjab AIR 1954 SC 204 it was held that where the statement of the accused under Section 342 Cr.P.C. consists of distinct and separate matters, there is no reason why an admission contained in one matter should not be relied on without reference to the statements relating to the other matters. But, in the present case, the statements of the appellant contain a consistent version as to how the immediate dispute arose when the occurrence took place. So, his entire version has to he acted upon. In such a case, there is no room for holding that the exculpatory portion of the statement should be rejected.

P.W. 15 might not have seized the club, lest the seizure should go against the prosecution case. The appellant was defended in both the courts by a State Brief. So, the fact that the State Brief did not cross-examine the witnesses with regard to the wooden club cannot prejudice the appellant's case. It might be that the committing magistrate forgot to mention what all the appellant stated. Further, the appellant is entitled to take advantage of the evidence and his statements on which the prosecution relies. He is not bound to prove his defence to the hilt, like the prosecution.

18. Thus, it is proved by the prosecution, firstly, that there were disputes between the appellant and the deceased and that they were inimically disposed towards each other. Secondly, it is proved that the appellant absconded in the night immediately after the occurrence took place. Thirdly, it is proved that, on his information and statement, Ext. M/1. (dao) was seized from the bushy growth of pumpkin plants. Fourthly, it is proved by Ext. A/6 and the medical evidence of P.W. 7 (Dr. K. Gopal Singh) that M/1 which is stained with human blood, could have caused the injuries of the deceased. Fifthly, it is proved that the appellant himself caused the injuries to the deceased in a quarrel at the time of the occurrence, but that he exceeded his right of private defence by brutally stabbing the deceased with Ext. M/1 with the intent to kill him. In Sita Ram v. State of Uttar Pradesh AIR 1966 SC 1906 the prosecution proved (i) motive, (ii) opportunity, (iii) subsequent conduct, (iv) false explanation and (v) confessional statements of the accused. It was held that the guilt of the accused under Section 302 I.P.C. was established. In the present case also, similar circumstances are proved.

19. Finally, the learned Counsel for the appellant argued that though the occurrence took place on 13-8-1964, the charge sheet was filed on 20-9-1965 as per Ext. A/15 and that there is no explanation for the inordinate delay. The learned A.P.P. stated that P.W. 15 the investigating officer awaited the receipt of Ext. M/1 and that in fact it was received after the charge sheet was filed. But, it has to be noted that many of the P.Ws. were examined on 14-8-1964 itself and some other in a few days later. So, the investigation and examination of the P.Ws. were over within 4 or 5 days from 13-8-1964, As such, no prejudice was caused to the appellant.

20. For the above reasons, the appellant is liable to be convicted under Section 304, Part I I.P.C. instead of Section 302, I.P.C. He is accordingly convicted thereunder and sentenced to undergo rigorous imprisonment for 7 years and the appeal is dismissed with the above modifications in the Section and sentence. The Criminal Reference 40 of 1966 is rejected.


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