Kanta Bhatanagar, J.
1. Appellant Mangilal was tried for the charge under Section 302 I.P.C. by the Additional Sessions Judge, Udaipur. By the judgment dated 30th January, 1976, the learned trial Judge convicted the appellant for the aforesaid offence and sentenced him to imprisonment for life and a fine of Rs. 100/-; in default of payment of fine to further under go rigorous imprisonment for three months.
2. The prosecution case stated, in brief, is as under: on 17-3-75 at about 5.0 P.M. there was quarrel between Smt. Anchi deceased and the wife and mother of appellant Mangilal outside the house of Mangilal in connection with some quarrel amongst the children. Smt. Kanku (P.W. 2), daughter-in-law of the deceased returning after the days' labour had reached there at that time. She, caught hold of her mother-in-law, the deceased, and took her inside her house. A little while thereafter, the appellant, went inside the house of the deceased with a dagger in his hand. He caught hold of her and dragged her outside the house He then plunged the dagger in her chest at the threshold of the 'pol; Dhanna (P.W. 1) while returning from his field also reached there. Kala (P.W. 2), a neighbourer also reached there. Bhura (P.W. 3), husband of the deceased was ill at the time and was lying at the Chabutara of the 'pol' at that time. After inflicting the blow, the appellant took out the dagger and ran away with, it to the house. Dhanna went to the police station, Amet and lodged an oral report with Head Constable Govind Singh, incharge of the police station. The information reduced into writing is Ex. P. 1 The Head Constable after registering the case went to the site. It being night, he could not do anything, but arranged for the watch of the dead body. On the next morning, he made necessary investigation at the site and prepared the site inspection memo and the site plan. On 18.3.75. he arrested the appellant. At the time of arrest he was wearing a 'bandi', which was suspected of blood stains, and was taken in possession and sealed. White under custody, the appellant furnished information to the investigating officer for getting the blood stained dagger recovered from his house. In pursuance of that information he got recovered the dagger Ex. 5 from beneath the grass lying in his house. The articles recovered were sealed. The dead body of Smt. Anchi was sent for post mortem examination. Dr. B.N. Kundu (P.W. 9), medical officer, incharge P.H.C. Amet conducted the autopsy over the dead body of Smt. Anchi and noted the following external injuries:
(1) Stab wound 5 cm. x 2cm. square shaped on right first inter costal space. 10 cm. downward deep. Direction downward and laterally.
(2) One abrasion 3 cm. x 1 cm. on laternal border of lower on fourth part of left arm skin deep.
Injury No. 1 was found to be grievous and caused by some sharp weapon. Injury No. 2 was found to be simple in nature and caused by some blunt object. The duration of the injuries according to the Doctor was 18 hours from the time of the examination. The Doctor noted fracture of the second and the third rib of the right side. In the opinion of the Doctor, the cause of death was due to syncope as a result of the cutting out of interior wall of acsending arota which caused pro fused haemorrhage. The Doctor opined that the death should have been instaneous. The post mortem examination report is Ex. P. 11. The blood smeared clothes taken off from the dead body were also sealed. All the articles sealed and recovered during the course of investigation were sent for chemical analysis. All the articles were found to be stained with blood by the Chemical Analyser. The cutting of the clothes and the scrapping from the dagger were found to be stained with human blood as per report of the Serologist Ex. P. 14.
3. Upon completion of the necessary investigation, charge sheet against the appellant was filed in the court of Additional Munsif & Judicial Magistrate Rajsmand. The learned Magistrate, committed the appellant to the court of Sessions Udaipur, to stand Ins trial. The learned Sessions Tudge transferred the case to the court of Additional Sessions Judge, Udaipur, who charge sheeted the appellant for the offence under Section 302 I.P.C. and on the denial by the appellant of the indictment, proceeded with the trial. The prosecution examined 12 witnesses in all. The appellant in his statement under Section 313 Cr. P.C. denied all the allegations levelled against him. About the blood on his bandi, he stated that Smt. Anchi being his aunt, he seeing her lying on the ground, had tried to make her stand and in that process his bandi might have been stained with blood. He also stated that he was owing Rs. 442/- from Bhura, husband of Smt. Anchi. Bhura did not return the money on demand. That, he had also suffered the expenses for the joint wall between his house and that of Bhura and for that reason Bhura has deposed against him. He also stated about there-being some quarrel between him and witness Kela in connection with money transaction. One defence witness Kishna was examined to state that Kela, Dhanna and Smt. Kanku had reached the site after the witness had reached there on hearing the cries of the children. He also stated that appellant Mangilal was there amongst the persons who lifted the dead body of Smt. Anchi. The learned trial Judge placed reliance on the prosecution evidence and passed the judgment of conviction and sentenced the appellant as stated earlier. Being aggrieved by his conviction and sentence, the appellant has preferred the appeal in this Court from the jail. As he was unrepresented, Mr. Ram Singh Rathore, Advocate was appointed Amicus Curiae to plead on his behalf.
4. We heard Mr. Ram Singh Rathore, Amicus Curiae and Mr. H.N. Calla, Public Prosecutor and carefully examined the record of the case.
5. Mr. Rathore has assailed the finding of the learned trial Judge on the ground that Smt. Kanku being inside the house, was not in position to see the occurrence. That Bhura being ill was lying on ground with his face covered with the quilt and, therefore he also could not have been in a position to see the actual occurrence. The learned Amicus Curiae contended that the defence version about there being quarrel between Bhura and Smt. Anchi on the day of occurrence and the possibility of Smt. Anachi committing suicide for that reason has been wrongly discarded by the learned trial Judge. The learned Public Prosecutor controverting these contentions submitted that there is direct as well as circumstantial evidence to connect the appellant with the commission of the crime and there is no scope of interference with the findings of the learned trial Judge.
6. The prosecution has placed reliance on the testimony of four eye witnesses namely; Smt. Kank, Bhura and Kela and the circumstantial evidence of the recovery of the blood stained Bandi from the person of the appellant at the time of his arrest and the recovery of the blood stained dagger Ex. 5 in pursuance of the information furnished by him while under custody. About the testimony of eye-witnesses it is to be noted that so far as Dhanna is concerned, the learned trial Judge has not believed his testimony about the actual occurrence as he has stated to have reached only outside the house of Bhaja at the time of the alleged stabbing by the appellant. The threshold of the pol of Bhura could not be visible from outside the house of Bhaja. Similarly, there being two or three houses in between the houses of Kela and Bhura, former could not have been the actual incident. Smt. Kanku has stated about Kela reaching there after the incident. The prosecution case, therefore, rests on the testimony of Smt. Kanku and Bhura. Smt. Kanku has been cross examined at length and has stood it well. She was the person who had taken her mother-in-law, deceased Smt. Anchi, inside the house from the place where there was quarrel between Smt. and the wife and mother of the appellant. Her persence inside the house with Smt. Anchi was thus natural. She could have, therefore, seen Mangilal entering the house with a dagger, catching hold of Smt Anchi and dragging her up to the threshold of the pol and then plumging the dagger in her chest. Bhura has supported Smt. Kanku on all material particulars. Mr. Rathore has laid much emphasis on the version of Smt Kanku that her father-in-law Bhura was lying on the Chabutara with his face covered by the quilt and could not see the stabbing but on her raising a cry he had seen the appellant running away. Bhura has specifically stated about there being quarrel between his wife and Mangilal (appellant) and the latter plunging the dagger Bhural's statement in this connection can not be disbelieved merely because Smt. Kanku has stated that her father-in-law was sleeping with his face covered with the quilt at that time. Possibility of Bhura removing the quilt and seeing the occurrence unnoticed by Smt. Kanku, cannot be ruled out. The attention of a person lying on account of illness in the 'pol' in in the threshold of which, the incident had taken place, would, in the natural course be attracted.
7. The circumstantial evidence of the recovery of Bandi from the person of the appellant having staines of blood on it is also a link in the prosecution case against him The appellant has not disowned the bandi. The Serologist's report proves human blood on the cutting of the bandi. Of similar importance is the recovery of the blood stained dagger in pursuance of the information furnished by the accused at his instance. The Serologist detected human blood on the scrappings of the dagger. Dr. B.N. Kundu on seeing the dagger Ex. 5 has opined that the fatal injury on Smt. Anchi could have been caused by that weapon. The learned trial Judge, has, therefore, rightly placed reliance on the statements of these two eye witnesses in holding the appellant author of the fatal injury of the deceased Smt. Anchi.
8. The defence argument about the possibility of suicide by Smt. Anchi on account of quarrel with her husband is devoid of force. The argument is based on the statement of Smt. Kanku who had admitted that her mother-in-law and father-in-law used to quarrel because of the latter remaining ill. She, however, denied the suggestion that her mother-m-law had committed suicide. Otherwise also it is not palatable that the lady could have dared to commit suicide with the dagger.
9. Mr. Rathore vehemently argued that even if the appellant is held to be the author of the stab wound, still his case does not fall within the defintion of murder and therefore, the conviction under Section 302 I.P.C. is not sustainable. He submitted that there was only one injury and that too, as stated by Bhura was caused after a quarrel for a few minutes and, therefore, intention to commit murder can not be inferred and the case at the most may fall within the ambit of Section 304 I.P.C.
10. To substantiate this contention, Mr. Rathore referred to the case of Harijinder Singh v. Delhi Administration 1968 Cr. LJ 1023 The case related to the quarrel between the accused and the brother of the deceased. The deceased went for his brother's rescue while he was in a crowching position presumably to intervene and separate the two. The accused finding himself one against two, inflicted blow with the pen knife to the deceased which caused injury to the thigh, cu ting the sertorius muscle along with femoral artery and vein. In view of the facts and circumstances of the case, clause 'thirdly' of Section 300 I.P.C. was not held to be applicable by their lordships of the Supreme Court hearing an appeal against the covniction of the accused for the offence under Section 302 I.P.G. Their lordships were of the opinion that though the knife was 5' to 6' in length, including the handle, nonetheless, it was a dangerous weapon and the accused inflicting the knife blow, where the deceased was in a bent position, must have known that it would land in the abdomen or near it a vulnerable part of the human body, and such a blow was likly to result in death. Under the circumstances his conviction from Section 302 I P.C. was altered to Section 304 Part I, I.P.C.
11. Another ease referred to by the learned Amicus Curiae is Laxman Kalu, Nika'je v. The State of Maharastra 1968 Cr LJ 1647. The facts and circumstances of that case were of altogether different nature. The dispute between the accused and his in laws was on a petty point, as to whether he would take his wife by the evening train or the next morning, Ii was on such petty matter that the accused had caused sharp edged injury to his brother-in-law. The eye-witness did not speak about the weapon, but only stated that the accused hit the victim with a weapon and ran away. Along with these circumstances the fact which weighed with their Lordships, in taking out the case form the perview of Section 302 I.P.C. and holding the accused appellant guilty for the offence under Section 304 I.P.C. was that though the injury was serious one in that it bad cut the auxiliary artry and veins, it was not on the vital part of the chest and had not reached the lungs.
12. The third case on which the learned Amicus Curiae placed reliance is Randhir Singh v. State of Punjab : 1982CriLJ195 . Their Lordships were pleased to discuss is detail the ingredients to be proved in order to bring the case within clause third of Section 300 I.P.C. The incident had taken place on a petty quarrel at the spur of moment. The deceased was washing his hands and face at the water pump installed by him outside his house. His wife was cleaning the utensils there. The appellant started digging earth from village phirni and started throwing it towards the water pump. The deceased asked him not to do so but the did not desist. The father of the appellant reached there with the Rassi and exhorted the son to attack the deceased. The appellant gave one blow with the sharp edge of the Kassi on the head of the deceased and blow proved fatal after a period of six days. In view of the totality of the circumstances that is, there being one injury, weapon having not been carried in advance by the appellant, there was no premeditation, the accused being a college boy, there being some altercation between the deceased and the father of the appellant, and the death occurring nearly after six days, their Lordships were of the opinion that the appellant must be attributed only with the knowledge that he was likely to cause injury which was likely to cause death. The conviction of the appellant was, therefore, altered from Section 302 I.P.C. to Section 304 I.P.C. and sentence of life imprisonment reduced to five years rigorous imprisonment.
13. The circumstances on hand are of altogether different nature. Had the appellant caused the injury to the deceased at the time of the quarrel amongst the ladies regarding the children, matter would have been different. The quarrel was already over. At the instance of her daughter-in law Smt. Anchi had already gone inside her house. It was after some-time that the appellant had gone to the house of the deceased armed with a dagger. This shows the premediation for committing the crime. Mr. Rathore urged that Bhura should be believed when he stated that the quarrel between the appellant and Smt. Anchi was for about 10 to 15 minutes and, therefore, intention of the appellant to commit the murder could not be there. The reason advanced is that, if there would have been any intention to (sic)inftaict dagger blow it would have been just on reaching the house of Smt. Anchi and not after a scuffle with her and taking her out upto the threshold of the 'pol'. The argument is not appealing. Bhura had given the approximate time of the quarrel. According to Smt. Kanku the appellant entered the house with the dagggar, caught hold of the deceased and dragged her upto the threshold and then plunged the dagger into her chest. Be it as it may a person going with a daggar in his land and then, be it immediately after reaching near the deceased or after a few minutes, inflicting the blow with that weapon on the vital part of the body of the victim, that is, the chest, resulting in instaneous death, would definitely be attributed, the intention of committing the murder of the victim. In these circumstances, we are unable to accept the argument of the learned Amicus Curiae that the case is taken out of the perview of Section 302 I.P.C. and the conviction, even if any, should be under Section 304 I.P.C.
14. Consequently, the appeal having no merits is dismissed.