S.D. Khare, J.
1. These are two connected appeals arising out of an order dated 24th April, 1970, passed by the learned Additional Sessions Judge, Rampur, convicting Shyam Lal alias Shyama (appellant) in Criminal Appeal No. 1008 of 1970) Under Section 302, IPC simpliciter and sentencing him to death, and convicting Chhanga (appellant in Criminal Appeal No. 1499 of 1970) Under Section 325 read with Section 109, IPC and sentencing him to three years' rigorous imprisonment. There is also before us the usual reference, made by the learned Additional Sessions Judge, for confirmation of the sentence of death passed by him against Shyam Lai.
2. The person who lost his life was Radhey Shyam, a resident of Mohalla Jhanda, within Police Circle Kotwali, Rampur. The prosecution case, briefly stated, is that on 13th November. 1967 at about 2.30 p. m. several sweepers had assembled in the compound of the Municipal Board, Rampur, where a selection for the appointment of sweepers on full time basis was to be made. At about 3 p. m. Radhey Shyam (deceased) arrived there on a cycle and made a general enquiry from the persons assembled there as to where his uncle Sarvi Jamadar was. At that stage an altercation took place between Radhey Shyam (deceased) and Chhanga (appellant) for the simple reason that Chhanga while replying to the general query made by Radhey Shyam, used indecent language. Both Radhey Shyam and Chhanga fought each other with fists, and while Radhey Shyam was having upper hand in that fight, Chhanga instigated his friend Shyam Lal (appellant) to hit Radhey Shyam. Shyam Lal (appellant) had a knife concealed in the back pocket of his pant. He took out the knife and inflicted a blow on the thigh of Radhey Shyam (deceased). At that stage Radhey Shyam suddenly turned towards Shyam Lal and the next blow that was given by Shyam Lal landed in the abdomen. As a result of that blow the intestines of Radhey Shyam came out. The witnesses, who were already present there, shouted to intervene and both the assailants, namely, Shyam Lal and Chhanga, left the place riding on one and the same cycle. The witnesses, who were present there did not have the courage to catch hold of Shyam Lai, who was brandishing a knife.
3. Sarvi Jamadar (P.W. 2), the uncle of the deceased managed to reach the place of occurrence immediately after hearine about the incident. The occurrence had taken place in front of the Health Office where Sarvi Jamadar was employed. He immediately took Radhey Shyam on a rickshaw to the District Hospital, where on being examined by the doctor he was declared to have already succumbed to his injuries. On being asked by Sarvi Jamadar Ram Bharosey (P.W. i) went to police station Kotwali and lodged the first information report the same day at 3.45 P. M. The place of occurrence was at a distance of about two furlongs only from the police station. However, the report was lodged after 45 minutes because the injured was first taken to the hospital and Ram Bharosey was sent to the police station only after the injured had succumbed to his injuries. There was thus no delay in lodging the first information report.
4. The post-mortem examination on the dead body of Radhey Shyam was performed by Dr. Jagdish Prasad Saxena (P.W. 18), Medical Officer, in charge Sadar Hospital, Rampur, on 14th November, 1967, at about 1 P. M. In the opinion of the doctor the deceased was about 22 years of age, and the death must have occurred about one day before the time of the post-mortem examination. The following ante-mortem injuries were noticed as a result of the external examination:
(1) Incised wound 2' X 1' X 3' deep on the front of left inguinal region 1' internal to the iliac crest. Clotted blood was coming out on probing the wound. The direction was transverse.
(2) Incised wound 1/2' X 1/4' X 1/2' deep on frontal upper part of right thigh 3|' below anterior superior iliac spoine. The direction was vertical.
(3) Incised wound 1 1/4' X 1/4 X 1/2' deep on the outer aspect of right thigh 5 1/2' below iliac crest. The direction was vertical.
5. On internal examination the doctor found the following injuries:
(1) Incised wound 2' X 1' on left inguinal region on the peritoneum. About one pound of clotted blood was present inside the abdominal cavity.
(2) Injuries to small intestine:
(a) Incised wound l' X 1/2' X cavity deep in the middle of small intestine.
(b) Incised wound 1' X 1/2' X cavity deep in the middle, 1' distal to injury No. 1
(c) Incised wound 2' X 1/2', cavity deep in distal part of small intestine.
(3) Injuries to large intestine:
(a) Incised wound 2' X l', cavity deep in pelvic sigmoid colon.
(b) Incised wound 1' X 1/2' X 3' deep in pelvic mean colon.
6. In the opinion of the doctor, death was caused due to haemorrhage and shock as a result of multiple injuries. The doctor was also of the opinion that the injuries caused were sufficient in the ordinary course of nature to re suit in death.
7. The prosecution relied on the testimony of five eye-witnesses of the occurrence. They are Ram Bharosey (P.W. 1). Mohan (P.W. 5), Kalbe Ali Khan (P.W. 6), Sarwan (P.W. 8) and Munna (P.W. 9). They supported the prosecution case. Although according to the statements made by them only two injuries had been caused by Shyam Lal to Radhey Shyam (deceased), all of them stated that the last injury caused was in the abdomen. According to Mohan (P.W. 5), Radhey Shyam had taken a turn towards Shyam Lal (appellant) when the injury in the abdomen was caused. At this stage it might be mentioned that Kalbe Ali Khan (P.W. 6) did speak of three injuries having been caused to Radhey Shyam (deceased). He was standing at some distance on the platform of the Health Office and he could not be very sure about the nature of the first two injuries which he thought must have been caused with fist only. According to him the first injury with the fist was caused on the back, the second injury on the abdomen and the third injury (by that time he could see that it was being caused with a knife) again in the abdomen. It appears that Kalbe Ali Khan did not watch the incident very minutely because from the medical evidence we find that only one injury (and not two as stated by the witness) were caused in the abdomen of Radhey Shyam (deceased).
8. Both the accused persons pleaded not guilty. In the court of the committing Magistrate both of them stated that they had absolutely nothing to do with the incident. However, in the court of session Chhanga (appellant) took the plea that he had been suddenly attacked by Radhey Shyam who was trying to strangulate him when someone, whose face he could not see because he was lying on the ground with face downwards, whipped out a knife and caused injuries to Radhey Shyam in order to save Chhanga. So far as Shyam Lal (appellant), is concerned, he stuck to his plea originally taken in the Court of the Committing Magistrate and again explained that he had nothing to do with incident.
9. No evidence was led for the defence.
10. The learned sessions Judge after having considered the entire evidence on the record, arrived at the conclusion, that it was a case of clear murder so far as Shyam Lal (appellant) was concerned. He, therefore, convicted him Under Section 302 IPC and sentenced him to death. Chhanga (appellant), as already stated, was convicted only Under Section 325/109 IPC and sentenced to three years' rigorous imprisonment.
11. We have heard the learned Counsel for the appellants, who has taken us through the entire evidence. Ram Bharosey (P.W. 1), Mohan (P.. W. 5), Sarwan (P.W. 8) and Munna (P.W. 9) are sweepers by caste and were present at the place of occurrence from much before the occurrence in connection with the recruitment that was to be made on that day for full time jobs of sweepers. Their presence at the time of the occurrence, could not, therefore, be doubted.
12. Kalbe Ali Khan (P.W. 6) was employed as a vaccinator in the Health Office and he too was present in the Health Office at the time of the occurrence. He did not witness the origin of the incident, but when he came out on the platform just in front of the health office near which the occurrence had taken place he could notice Radhey Shyam (deceased) and Chhanga (appellant) fighting with each other with fists. It was from that stage onwards that he witnessed the occurrence.. His presence too at the place of occurrence cannot be doubted.
13. All the witnesses for the prosecution, who claim to be eye-witnesses, of the occurrence, have given a very clear picture of the incident. Although it was stated by Ram Bharosey (P.W. 1) that before grappling between Radhey Shyam and Chhanga started, both Shyam Lal and Chhanga had abused Radhey Shyam, it is clear from the statement of Sarwan (P.W. 8) that Chhanga alone had talked to Radhey Shyam in an indecent manner as a result of which there had been an altercation between Radhey Shyam and Chhanga, and both had started fighting each other with fists. Shyam Lal (appellant), it appears, whipped out his knife at a later stage, when he noticed that Radhey Shyam (deceased) was getting an upper hand in the fight.
14. The prosecution evidence is not very clear on the point whether or not Chhanga had instigated Shyam Lai. According to Ram Bharosey and other witnesses (not including Kalbe Ali Khan P.W. 6), Chhanga had asked Shyam Lal to beat Radhey Shyam. Kalbe Ali Khan has, however, not supported the prosecution case on that point. He was standing at a few paces only from the place of incident, and according to his statement he could not hear the words of instigation uttered by Chhanga just before Shyam Lal started his attack on Radhey Shyam. In the circumstances it will not be safe to infer that what Shyam Lal did was at the instigation of Chhanga.
15. In the court below the witnesses for the prosecution were cross-examined and it had been suggested to them that they were falsely trying to implicate Shyam Lal and Chhanga because they were relations of one Km. Javitri, a sweepress, whom Shyam Lal loved and wanted to marry. It also appears that Shyam Lal (appellant) had got the name of Javitri tattooed on the left side of his chest. The defence however, failed to substantiate that part of the case. It could not be shown why the prosecution witnesses should have been interested in falsely implicating Shyam Lal even if it were to be assumed that he was in love with Javitri and wanted to marry her. The learned Counsel for the appellant has, therefore, in all fairness, abandoned that part of the defence case and has submitted before us that the version of the incident as given by the prosecution witnesses should in substance be regarded to be correct. All that has been contended by the learned Counsel for the appellants is that from the evidence led in the case it cannot be safely inferred that the knife injuries caused by Shyam Lai, though they were voluntary, were caused with the intention of causing that particular injury in the abdomen which proved to be fatal. It has been contended that from the circumstances of the case the probability that Shyam Lal did not intend to cause any injury on any vital part of the body could not be ruled out. Two injuries had been caused on the thigh only and the third injury, which had been caused to the abdomen could have resulted because of a sudden turn having been taken by Radhey Shyam (deceased) before that injury was actually caused to the latter.
16. As regards Chhanga, it is contended that the prosecution has failed to establish that he had instigated Shyam Lal to kill Radhey Shyam and that he could be convicted and sentenced only Under Section 323. IPC
17. We proceed to examine the case of each appellant after considering the submissions made before us.
18. He was about 17 years of age when the occurrence took place. The prosecution has not given in very clear terms any motive for the crime. All that could be inferred from the prosecution evidence was that the incident took place not because of any previous enmity between the assailants and the victim Radhey Shyam, but because just then there had been an altercation between Chhanga and Radhey Shyam followed by their beating each other with fists. Both Shyam Lal and Chhanga are alleged to be friends and Shyam Lal appears to have whipped out a knife when he saw Chhanga being worse off in the fight with Radhey Shyam (deceased).
19. According to the prosecution case the first blow that was inflicted by Shyam Lal on Radhey Shyam was on the thigh. The prosecution has not given any explanation as to how the second blow on thigh was also caused to Radhey Shyam. According to the statement made by the prosecution witnesses the blow in the abdomen (which must have been the third blow) was inflicted as soon as Radhey Shyam turned towards Shyam Lai.
20. In view of the fact that three injuries were caused to Radhey Shyam, two on the thigh and one in the abdomen and the prosecution witnesses speak of two injuries only, that is to say, one on the thigh and the last one on the abdomen, it can be safely inferred that at least two injuries must have been caused to Radhey Shyam before he took a sudden turn towards Shyam Lai, leaving Chhanga at the spot. It was at that stage that the injury to the abdomen must have been caused.
21. The learned Counsel for the appellants has, therefore, contended that in view of the fact that at least two injuries had been caused to Radhey Shyam on the thigh, (a non-vital part of the body) at a time when Shyam Lal was in a position to have struck him with his knife on a vital part of the body, it can be safely inferred that at least in the beginning there was no intention on the part of Shyam Lal to have caused any injury on any vital part of the body of Radhey Shyam- It has further been argued that in the circumstances of the case when Radhey Shyam had taken a sudden turn towards Shyam Lal it could be that the third blow, though not intended to be inflicted on any particular vital part of the body, landed in the abdomen, which was a vital part of the body, because Radhey Shyam took a sudden turn towards Shyam Lal just at the moment when the blow was being struck.
22. It has come in the prosecution evidence that all the blows were inflicted by Shyam Lal in quick succession and the whole incident was over almost in no time. That must be the reason why the prosecution witnesses, who remained there throughout, could not notice when and how the second injury in the thigh was caused. The probability that the third injury was caused to Radhey Shyam, not merely as a result of the act of Shyam Lal assailant, but also because of the sudden movement made by Radhey Shyam (deceased) just at the moment when the injury was being caused and the vital part of the body became suddenly exposed to the blow could not be ruled out.
23. Had the injury in the abdomen of Radhey Shyam been caused by Shyam Lal at the time when the victim and the assailant were facing each other and the assailant could know where the knife blow was to land, there could be no doubt that the offence committed would have been that of murder covered by the first or the second clause of Section 300, IPC for the simple reason that normally the intention of the offender has to be -judged by his act, and both from the place where the injury has been caused and the extent of the injury caused it could, in such circumstances, be said to have been an act covered by the first clause of Section 300 IPC that is, when 'the act by which the death is caused is done with the intention of causing death'. However, due to the special circumstances of the case, that does not appear to be so in the present case.
24. Section 299 of the Indian Penal Code reads as follows:
Whoever causes death by doing an act with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
25. There can be no doubt that the act committed by Shyam Lal (appellant) would amount to 'culpable homicide' within the meaning of the term as defined in Section 299.
26. Section 300, IPC lays down when culpable homicide would amount to murder and when it would not amount to murder. Culpable homicide does not amount to murder if it falls within one of the Exceptions given in Section 300, IPC Exception 4 to Section 300, IPC reads as follows:
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's having taken undue advantage or acted in a cruel or unusual manner.
Explanation.It is immaterial in such cases which party offers provocation or commits the first assault.
27. In the present case there can be no doubt that Shyam Lal acted without premeditation in a sudden fight and in the heat of passion upon a sudden quarrel. That by itself is not enough. Before Exception 4 can fully apply it must also be shown that the offender has not taken any undue advantage or acted in a cruel or unusual manner.
28. Shyam Lal (appellant) was a young lad of 17 years at the time of the occurrence. There can be no doubt that by using the knife even on the thigh of Radhey Shyam he was commit- ting a dangerous act and if the death had been caused as a result of that act which he had voluntarily committed, he would have been guilty of an offence punishable Under Section 304, Part I, IPC
29. Section 304, first paragraph, reads as follows:
whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with intention of causing death, or of causing such bodily injury as is likely to cause death.
30. As mentioned by us already, this would have been a clear case of murder if from the prosecution evidence it could be definitely ascertained that Shyam Lal had intentionally caused that injury in the abdomen of Radhey Shyam which, according to the medical evidence proved fatal and was sufficient in the ordinary course of nature to cause death. In the present case the uncertainty is created because of the circumstances that (1) the sequence of events could not be minutely observed, and (2) after the injuries to the thigh had been caused, Radhey Shyam took a sudden turn towards Shyam Lai, who was striking him with a knife. Due to that sudden movement of the body made by Radhey Shyam the probability that there was no intention to cause an injury of that nature in the abdomen of Radhey Shyam could not in the circumstances of the case be ruled out.
31. We are, therefore, of the opinion that in the special circumstances of the case it cannot be said that the offender (Shyam Lai) had taken any undue advantage or acted in a cruel or unusual manner.
32. It was held in the case of Harjinder Singh v. Delhi Administration : 1968CriLJ1023 that where the intention of the accused to inflict the particular injury on the particular place is not proved, the third clause of Section 300, IPC could not apply and that it was quite legitimate to hold that the accused struck the deceased with the knife with the intention to cause an injury likely to cause death, and, therefore, the offence fell Under Section 304, Part I. The facts of the case of Harjinder Singh were slightly different from the facts of the present case. There a stab wound on the left thigh below the inguinal ligament had been caused. The direction of the stab wound was oblique and was going medially. Sartorius muscle was cut underneath along with femoral artery and vein. The death was due to shock and haemorrhage from injury to femoral vessels by stab wound on the thigh. The case of Virsa Singh v. State of Punjab : 1958CriLJ818 , was considered, and it was held that all the ingredients which were laid down by the Supreme Court in that case had not been established in the case of Harjinder Singh. It was pointed out that in order to establish that a case falls under the third clause of Section 300, IPC the prosecution has to prove the following facts:
(1) It must establish quite objectively that a bodily injury is present.
(2) The nature of the injury must be proved.
(3) 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.
(4) It must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature.
33. It was emphasised that the question is not whether the prisoner intended to inflict a serious injury or a trivial one, but whether he intended to inflict the injury that is proved to be present. And if it could be shown that he did not, or if the totality of the circumstances justified such an inference, then, of course, the intent that the section required was not proved.
34. Keeping in view the follow ing special circumstances of the case there is good deal of force in the contention that the offence committed by Shyam Lal would fall Under Section 304, Part I, IPC
(1) There was no pre-existing enmity between the parties.
(2) Two injuries which must have preceded the fatal injury were on non-vital part of the body.
(3) The fatal injury in the abdomen was caused just at the time when Radhey Shyam turned towards the assailant Shyam Lai.
(4) The entire incident took place within the twinkling of an eye and the observation of the witnesses for the prosecution with regard to the sequence of events could not be very accurate.
35. The appeal so far as Shyam Lal is concerned has, therefore, to be allowed in part and the conviction has to be altered from that Under Section 302, I. P C. to one Under Section 304, Part I, IPC
36. The prosecution evidence is clear on this point only that Chhanga started abusive language against Radhey Shyam. Thereafter both Radhey Shyam and Chhanga started beating each other with fists.
37. The evidence regarding instigation, as pointed out earlier, is not very clear. One of the witnesses for the prosecution, namely, Kalbe Ali Khan (P.W. 6) could not hear anything uttered by Chhanga immediately before Shyam Lal started striking Radhey Shyam with a knife. Shyam Lal was keeping a knife in the back pocket of his pant, and there is nothing on the record to show that Chhanga knew that Shyam Lal had a knife even if it could be assumed for a moment that, his stated by the remaining prosecution witnesses, Chhanga had in fact instigated Shyam Lal to beat Radhey Shyam. In these circumstances, Chhanga cannot be said to have committed any offence other than one punishable Under Section 323, IPC
38. Both the connected appeals are allowed in part. The conviction of Shyam Lal is altered from that Under Section 302 to one Under Section 304, Part I, IPC and the appellant is sentenced to seven years' rigorous imprisonment and the conviction of Chhanga is altered from that Under Section 325/109, IPC to one Under Section 323, IPC and the appellant (Chhanga) is sentenced to six months' rigorous imprisonment. Chhanga is on bail. He must surrender his bail forthwith and both Shyam Lal and Chhanga must serve out the sentences as now imposed by this Court.
39. The reference is rejected.