Gopal Singh, J.
1. This is an appeal from the judgment of Shri Jasneer Singh, Sessions Judge, Bbatinda dated January 22, 1966 convicting Sadhu Singh appellant under Section 302, Indian Penal Code and sentencing him to imprisonment for life.
2. The appellant and his two brothers Chand -Singh deceased and Santu Singh, residents of village Puhli in the district of Bhantinda, were living in separate parts of the same house with a common courtyard and entrance gate. Badhu Singh was employed as a peon' in Government Middle School at Dayalpur Mirza. His wife, a patient of cancer, and their six children were residing in one part of the house. Chand Singh, residing in the second pant, was a vegetable seller. He bad a shop for sale of vegetables closely. The third brother Santa Singh resides in the third part of the house.
Sadhu Singh who was in the habit of drinking liquor, came to the house at 8.30 p. m. on August 11, 1965 when he was drunk. Chand Singh asked his brother, who is young, fir in age, to stop drinking especially when his wife was a patient of cancer, was ailing and money had to be spent on her treatment. Instead of appreciating the advice of his brother, Sadhu Singh resented the suggestion of refraining from the use of liquor. Sadhu Singh abused Chand Singh. In reply Chand Singh also abused Sadhu Singh. Upon this Sadhu Singh went into his room, brought out a naked Kirpan Exhibit P. 5 and gave a blow with it across the throat of Chand Singh. On receipt of the injury Chand Singh dropped down and expired soon thereafter.
3. The occurrence was witnessed by Malta Singh P. W. 2, who visited the house of Chand Singh for purchase of vegetables because of the belated arrival of certain guests in his house. After finding his shop on the way closed, he arrived prior to the commencement of the altercation consequent upon the dissuasion of Sadhu Singh by Chand Singh from the habit of consuming liquor, in the house of Chand Singh and saw the occurrence of causing of injury with kirpan by Sadhu Singh to Chand Singh. Shrimati Gurdev Kaur P. W. 3, wife of Chand Singh, was also there when the hot words were exchanged between the two brothers and the fatal blow with the lethal weapon was delivered by Sadhu Singh to Chand Singh. At that time, she was feeding the cattle. The occurrence was visible to the two witnesses as a lantern Exhibit P. 7 was burning in the courtyard.
Upon hue and cry, Hakim Singh P. W. 6 Panch of the village and Santu Singh brother of Chand Singh who at that time was out of the house, arrived there. Leaving them at the spot to guard the dead body, Malla Singh P. W. 2 proceeded to Police Station Nathans situate at a distance of 11/2 mile from village Puhli. The first information report giving the above account of the occurrence was lodged by the eye-witness Malla Singh at 10.30 p. m. on the same day. After drawing up the report, Kuldip Chand P. W. 12 visited the spot at 12,05 a. m. on 12-8-1965, drew up the inquest report Exhibit PB, collected blood-stained earth and took the same into possession vide Exhibit P. J. and made recovery of bloodstained kirpan Exhibit P. 5, which was left by Sadhu Singh near the point of occurrence. Sheath Exhibit P. 6 was recovered from a corner of a room o Sadhu Singh. Exhibit P. L, is the recovery memo in respect thereof.
Prithi Singh P. W. 8 Sarpanch of the village produced Sadhu Singh before the Investigation Officer at 6-30 a. m. on August 12, 1965. At the time when he was taken in custody, banian Exhibit P. 2, Shirt Exhibit P. 8 and kachha Exhibit P. 4 which he was putting on, were found to be blood-stained. These clothes were removed from his person and memo Exhibit PE pertaining to their recovery was prepared. The dead body of the deceased was sent for post-mortem examination.
4. Dr. M.S. Kang P. W. 1 Senior Medical Officer, Civil Hospital, Bhatinda, conducted the post-mortem of Ghand Singh deceased at 1-80 p. m. on August 12, 1965. He found the following three injuries on his person: --
1. Incised wound 11/4' x 1/8' x skin deep on the right chin.
2. Incised wound 11/2' x 1' x 3/4' on right side of neck starting from just below right angle of jaw downwards and forward. Underlying vertebrae were out. Internal and external carotid vessel und internal jugular vein were cut alongwith nerves.
3. Incised wound 1' x 3/4' x I' behind the right ear just below the right mastoid process.
He opined that injuries NOB. 2 and 3 constituted one continuous injury and both could be the result of one blow. Injuries NOB. 2 and 3 resulted in fracture of cervical vertebrae and the cause of death was the shook and haemorrhage due to out of carotid vessals and internal jugular veins. He also stated that the death of the deceased must have occurred within half an hour and the time that had elapsed between death and post-mortem of the deceased could be about 8 hours. He gave the opinion that the injuries could be caused with a sharp-edged weapon like kirpan.
5. After investigation of the case, the appellant was proceeded against for offence under Section 302, Penal Code. In course of trial, the appellant pleaded alibi and denied knowledge of the occurrence. He stated that he had been implicated on account of enmity with his brother. He said that his sister was married to a cousin of Shrimati Gurdev Kaur PW wife of the deceased, that the formar obtained maintenance order of Ra. 50/- per month against her husband, that on that score Shrimati Gurdev Kaur was giving evidence against him, that Malla Singh P W used to visit the house of his brother, that be used to stop him from doing so and that he and Hakim Singh Panoh who arrived at the place of occurrence are inimically disposed towards him. He, however, did not substantiate his allegations of enmity and ill will on the part of these witnesses against him.
6. The conviction of the appellant for murder of his brother has been based upon the evidence of the two eye-witnesses, Malla Singh P, W. and Gurdev Kaur P. W. Gurdev Kaur being the wife of the deceased is quite a natural witness. In spite of detailed cross-examination, nothing came out of her testimony to suggest that she could not have been present at the relevant time of occurrence or that the facts stated by her regarding the cutting of throat of her husband by his brother were in any way incorrect or exaggerated. Malla Singh P W is an independent witness. He has assigned a good reason for visiting the house of the deceased for purchase of vegetables upon sudden arrival of certain guests just prior to the hour of occurrence.
It will be quite natural for him to come to the house of the deceased when on the way he found his shop to be closed. It is in evidence that Ghand Singh deceased did sell vegetables in his house after the close and before the opening of the Shop. He is in no way inimically disposed towards the appellant. The evidence of these witnesses has been discussed in detail in a well considered and very well reasoned judgment of the trial Court. We have no reason to differ from the view which he has taken about the veracity of their testimony.
7. The evidence of the eye-witnesses receives corroboration from what was seen by Hakim Singh Panoh of the village, who arrived on the spot upon hearing hue and cry soon after the occurrence. He saw the blood-stained kirpan lying close to the body of the deceased and also both the above eye-witnesses present in the courtyard. The recovery of kirpan Exhibit P 5 found by the Serologist to be stained with human blood and recovery of three clothes, namely banian Exhibit P. 2, shirt Exhibit P. 3 and kachha Exhibit P. 4 also found to be stained with human blood removed from the person of the deceased upon his arrest at 6-80 a. m. on August 12, 1935, that is within 10 hours of the commission of the crime, also support the prosecution case.
8. The learned Counsel for the appellant conceded that he bad nothing to say on merits of the prosecution case. He, however, contended that it was a case of offence under Section 304, Part I, Indian Penal Code, or in the alternative a case of offence under Section 326, Indian Penal Code.
9. As regards the justification of conviction of the appellant under Section 304, Part I, Indian Penal Code, he said that the case was covered by Exception I of Section 300 read in conjunction with Section 304, Indian Penal Code. He said that the appellant was deprived of self-control by grave and sudden provocation caused by the deceased to the appellant upon his forbidding him from the use of liquor. We, however, do not find any support from the evidence that there was any provocation which could be regarded as grave and the situation in which the two brothers were placed at the relevant time, the appellant must have been deprived of the power of self-control.
It was a noble advice administered by an elder brother which the younger brother did not appreciate. The deceased was unarmed. There is nothing to show that under the circumstances, the appellant can be held to have been deprived of the power of self-control apart from there being no grave provocation. The claim of defence for this plea is nothing but an excuse for killing the deceased. Realizing the difficulty that the case of the appellant cannot be covered by Exception I of Section 300, the learned Counsel for the appellant tried to cover the case of the appellant by Exception 4 of that section.
The two ingredients which have to be established for attracting the applicability of Exception 4 are that culpable homicide is committed 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. If the exchange of abusive language between the two brothers consequent upon the advice tendered by one to the other is regarded as a quarrel, it cannot be legitimately contended that there was any fight between the two.
It is never the case of the prosecution nor anything has been elicited by the eye-witnesses in course of their cross-examination that the two brothers fought with each other either by grappling or by any violent act committed by one brother against the other. Thus the ingiedient of the quarrel having led to fight between the two is essentially missing. With reference to the second ingredient of Exception 4, the stand taken on behalf of the appellant is much worse. The deceased was unarmed and there could be no justification for the appellant to attack him with his kirpan, which he fetched from a room in which he was residing. There could be no apprehension of any kind from the deceased to the appellant. Thus the appellant took undue advantage and acted in an unusual and cruel manner in inflicting fatal blow with lethal weapon like kirpan. The second ingredient of Exception 4 also has not been satisfied,
The appellant caused blow with a sharp. edged weapon like kirpan on vital part of the body like neck and out internal and external carotid vessels and internal jugular vein along with nerves intending to cause death. His act with which the death has been caused was committed with the intention of causing death. In any case, the act of causing injury was committed by him with the intention of canting the fatal injuries which he knew to be likely to cause death. The injury in the present case has been found by medical evidence to be sufficient in the ordinary course of nature to cause death.
10. In support of his alternative contention of the offence committed being one under Section 326, Indian Penal Code, the learned Counsel for the appellant relied upon Pandurang v. 3 bate of Hyderabad reported in : 1955CriLJ572 . It is a case in which injuries were caused by three persons. One of the persons caused injury on the head which fractured the skull and the other two persons caused grievous injuries on other parts of the body. It was held that the person causing the fatal injury on the head was guilty of offence under Section 302, Indian Penal Code, whereas the other two persons, who had caused grievous injuries were guilty of offence under Section 326, Indian Penal Code. Thus this decision of their Lord-shipa of the Supreme Court is distinguishable. The case of the appellant corresponds to the accused who had caused fatal injury on the head and not to the other two accused who had caused grievous injuries on other parts of the body.
11. For the reasons stated above, we disallow the appeal. We may, however, note that the young wife of the appellant, who is a patient of cancer, and has six children to support the eldest one being 7/3 years will bear the brunt of his conviction and undergo suffering on being deprived of the source of income and the means of livelihood which the appellant provided to them. He was just a peon. The extent of the misery and starvation to which the wife and children of the appellant) will be put pending his long incarnation of life imprisonment in jail can better be imagined than described. We suggest that it is a fit case for clemency being shown on grounds compassionate. The Government will consider the case for remission of his sentence as thought appropriate in the interests of the members of the family left ill-provided for.
Smamsher Bahadur, J.
12. I agree.