C.M. Lodha, J.
1. On the night of April 16 1970 when PW2 Bhagwati Kishore was sitting with his wife in privacy at about 10.45 p.m. in a room of his house abutting on the public street in the city of Kota, there appeared a shadow of a man on the curtain of the window giving an impression to the couple that some-body was improperly invading their privacy. Cans quently Bhagwati Kishore challenged the person to which an offensive reply came from the intruder. This intruder is alleged to be the accused. The accused challenged PW2 Bhagwati Kishore to come out. Meanwhile Bhagwati Kishore's father Ramkrishnu deceased happend to corns there and on a verbal altercation between him and the accused, the accused struck a blow with a knife at the chest of Ramkrishana who fell down badly injured and cried out that the accused Sajan had struck him. Bhagwati Kishore (sic) after the accused but the latter threatened to kill him also and so Bhagwati Kishore give up the chase and the accused ran away. Bhagwati Kishore went to the Police Out Post, Kethooni, and lodged a written report Ex. P 2 of the occurrence. Thereafter be came to the spot where a few persons of locality had collected, and had taken Ram-Krishna to the hospital, from where the police constable who had also accompanied them to the hospital phoned at the Police Station, Makbara that Ramkrishna had died in the night. PW17 Ramsaran, Station House Officer, Police Station, Makbara registered case under Section 302 I.P.C. against the accused and started for the place of occurrence for investigation and also sent Police Constables Udayhhan Singh and Bhomsingh to search out the accused and arrest him. PW4 Udaybhan Sngh arrested the accused the same night at about 11.45, outside Kishorepura Gate and produced him before the Station House Officer. The arrest memo is Ex P5. The Station House Officer conducted a personal search of the accused and recovered a blood stained knife from the pocket of the pant worn by the accused at that time. The recovery memo of the knife is Ex. P 8 Since blood stains were found also on the pant and the underwear worn by the accused they were taken into custody by the police. The recovery memo of the clothes of the accused is Ex. P. 9. The knife as well as the clothes were sealed by the Station House Officer and were sent to the Chemical Examiner on April 25, 1970 with Head Constable PW14 Uma Shanker. The report of the Chemical Examiner is Ex P 18 and the report of the Serologist is Ex P. 19 The knife as well as the clothes were found stained with human blood. The post-mortem examination of the dead body of Ramkrishna conducted by Dr. R.K. Gupta (P.W. 15) revealed the following injuries:
1. Stab wound 1' x 5/8' en the front of right side of chest on its lower part at the sterno chondrial junction of light 7th rib, margins cleanly out and lying horizontally. On further dissection the chondrial junction of right 7th rib was cut. It was going onward and little laterally, injuring the pleura, pericardium and perforating the right atrium '3/8' in length. Haemopericardium was present. Little right aided haemo thoriax was seen.
2. Abrasion 1' x 3/4' on the front of left knee.
The post-mortem report proved by the doctor is Ex P. 3.
2. The case was tried by the Sessions Judge, Kota who by his judgment dated 29-4-1971 convicted the accused under Section 302 I.P.C. and sentenced him to imprisonment for life. Aggrieved by his conviction and sentence the accused has submitted this appeal.
3. Learned Counsel for he appellant has urged that the direct evidence of the crime produced by the prosecution is not reliable. He has also argued that the presence of blood stains on the blade of the knife as well as on the clothes cannot be used as an incriminating circumstance against the accused inasmuch as the alleged recovery of toe knife from the possession of the accused is doubtful and the articles had not been properly sealed so as to exclude the possibility of the same being tampered with. In the last resort he has contended that even if in a case is held to be proved against the accused, the offence falls under Section 304 Part II and not under Section 322 I.P.C..
4. It may be pointed out that the first information report was made at 11.20 p.m., that is, within less than an hour or the occurrence. It contains the name of the accused as well as the weapon of offence. It is important to note that the accused was apprehended within an hour of the occurrence i.e. at 11.45 p.m. It is also worthy of note that Bhagwati Kishore, the fist information had no animus whatsoever against the accused for falsely implicating him in a serious case of murder of his father. The accused has no doubt denied his complicity in the crime but has not imputed any motive against either Bhagwati Kishore or any of the eye-witnesses for implicating him. On the other band he has put a counter theory namely that Bhagwati Kishore may have himself killed his father on account of certain differences between them on domestic matters. This counter theory has no basis and does not deserve any attention. It has no foundation and is palpably absurd. These circumstances are, in our opinion, suggestive.
5. That Ramkrishna fell injured outside the house of Bhagwati Kishore from where the Station House Officer recovered blood stained stone in the presence of 'Motbirs', is a matter beyond dispute. Again, the fact that Ramkrishna died on account of the chest injury by a sharp weapon is also beyond dispute.
6. Coming to the direct evidence of PW2 Bhagwati Kishore and his wife PW3 Smt. Indra, we have gone through their evidence and find it truthful and forthright consistent with the circumstances of the case. There are no such material discrepancies in their statements so as to render their testimony doubtful The main argument made by the learned Counsel in connection with the evidence of these witnesses is that there was lick of sufficient light and these witnesses may not nave been able to identify the assailant and at any rate may not have seen the assailant inflicting blow to the deceased. It may be pointed out that the couple was awake in the room in which light on the road coming from the house of Laxman Raj and so also from another neighbour Shrikishan's house. He has further stated that the road light was also mourning at that time. It is clear from the statement of thjese two witnesses that they has a talk with accused before the occurrence and had resented the act of the accused in coming so near to the window. It is also clear from the statement of PW2 Bhagwati Kishore that he knew the accused from before, as he has stated that the accused Sajan was a bad character and used to indulge in eve teasing and misbehaved with the girls, residing in his house and his further used to rebuke him for that. Bhagwati Kishore has stated that after the accused had injured his father, he ran after the accused but dare not catch him as the accused threatened to take his life also. It chase circumstances, there is no room for doubt that these two witnesses correctly identified the accused as the assailant of Ramkrishna. The evidence of these two witnesses is amply corroborated by another eye-witness PW1 Mangilal. Learned Counsel for the appellant is, no doubt, correct in his criticism that the name of Mangilal is not mentioned in the first information report, but in the circumstances of the case we do not consider it a material omission, It appears from the testimony of PW1 Mangilal that even though he resided in a temple of his relation, he used to take his meals at his son's house, which is situated just opposite to the place of occurrence. He states that he had seen the accused inflicting a knife blow to the deceased from a distance of 5 to 6 steps. It may very well be that in a confused state of mind PW2 Bhagwati Kishore might not have mentioned the time of Mangilal though he mentioned the names of few others who had collected there. Be that as it may, for argument's sake, even if we igonore the testimony of Mangilal, we consider the evidence of Bhagwati Kishore and Smt. Indra good enough for holding that the accused had been identified as the assailant of the deceased Ramkrishna To lend further assurance to our minds, there is the evidence of recovery of blood stained knife and blood stained clothes from the person of the accused, soon after his arrest. We have looked into the evidence of the Investigating officer as well as PW 4. Udavbhan Singh who had apprehended the accused and the 'Motbir' PW 16 Sajan. We do not see any resons to reject their evidence regarding the recovery of the said articles. The articles were sealed as soon as they were recovered and were kept in Malkhana' and then sent for chemical examination quite expeditiously i.e. within 10 days of the recovery. PW 17 Ramsaran has stated in unequivocal terms that at the time of dispatch of the articles for chemical examination the seals of the package in which the articles had been put were in fact and exactly in the same condition as they were when the seals were put. Then we have the statement of PW 14 Uma Shanker who had carried the packages to the Chemical Examiner at Jalpur. He has stated that the packages were not at all tempered with. Further in the Chemical Examiner's report Ex. P. 17 there is a specific mention that the sales of the packages were found in tact as per specification. In this state of evidence we are unable to accept the contention raised on behalf of the accused-appellant that the prosecution had not eliminated chances of tempering with the sealed packages of the articles. This evidence of recovery of blood stained knife and clothes from the person of the accused soon after the occurrence is a strong corroborative piece of evidence so as to bring conviction to our minds regarding guilt of the accused.
7. We may also mention, here, in passing that the evidence of Bhagwati Kishore and Sent. Indra is that at the time the blow was given to the deceased, he uttered the following words.
8. 'Bhanwar, Sajan has struck me with a knife' It may be mentioned, here, that Bhanwar is another name of P.W. 2 Bhagwati Kishore. This evidence is also relevant and corroboratise the testimony of the eye witnesses, There is thus, over-whelming evidence against the accused, and the offence has been brought home to him beyond all manner of reasonable doubt.
9. This brings us to the question of the nature of the offence viz. whether the accused should be punished under Section 304 Part II I.P.C as contended by his learned Counsel or he has been lightly convicted under Section 302 I P.C. Learned Counsel for the accused has endeavoured to show that there must have been an altercation and fight between the deceased and the accused in course of which the deceased may have given foul abuses to the accused which caused grave and sudden provocation and in the heat of the heat of the moment the accused gave only a single blow with a knife to the deceased without intending to cause his death or an injury sufficient in the ordinary cause of nature to cause death. In support of his contention he has relied upon Hans Raj Singh v. Emperor AIR 1946 Lal. 41 Khan Mir v. Emperor AIR 1925 Lah. 148. In re Kudumuls Mahanandi Reddi and Ors. AIR 1960 Andh Pra. 141 and K. Palani Moopan v. State 1951 mad. WN 462. On the other hand the learned Additional Government Advocate has placed strong reliance on the observations of their Lordships of the Supreme Court in Virsa Singh v. State of Punjab : 1958CriLJ818 .
10. In Virsa Singh v. State of Punjab : 1958CriLJ818 their Lordships were pleased to observe as follows:
To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 'thirdly'.
First, it must establish, quite objectively, that a bodily injury is present.
Secondly, the nature of the injury must be proved. These are purely objective investigations.
Thirdly, 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.
Once these elements are proved to be present, the enquiry proceeds further and,
Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.
11. It has been further observed that, 'once the intention to cause the bodily injury actually found to be present is proved the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to round around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that then are not guilty of murder. If they inflict injuries of that kind, they must face the consequences aod thpy can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional.
12. Looking to the nature of the injury in the present case there is no doubt that the accused intended to cause a bodily injury to the deceased on a vital and vulnerable part of the body viz. chest. The medical evidence is that death was due to injury to the heart and the injury was sufficient in the ordinary course of nature to cause death. The 7th rib was cut, and the pleurae as well as pericardium were injured perforating the right atrium (part of the heart). The accused, in cur opinion, intended to cause bodily injury sufficient in the ordinary course of nature to cause death. This is cleat from the fact the injury was inflicted on a very vital part of the body with a deadly weapon. We are not prepared to grant that the injury was accidental or unintentional or that the accused intended to inflict some other kind of injury than the one which was actually inflicted. In this view of the matter the case must fall under Section 300 'thirdly'.
13. We are also unable to accede to the submission of the learned Counsel that that the act was done by the accused whilst deprived of the power of self control or by grave and sudden provocation in a sudden fight, in the heat of passion upon a sedden quarrel and without the offender having taken undue advantage. There was no sudden fight at all nor there was any grave and sudden provocation We can well understand that the deceased might have asked the accused to desist from behaving indecently as he seemed to be doing but that did not furnish a reason for the accused to inflict a fatal blow with a formidable weapon like the knife in the present case which has a blade about 5' loner. The blow was given right in the chest near the heart. In this view of the matter, the accused-appellant has rightly been convicted under Section 302 I.P.C
14. The result is that we uphold the conviction and sentence ordered by the court below and dismiss this appeal.
15. Learned Counsel prays for certifying the case a fit one for appeal to the Supreme Court. The prayer is refused.