K.D. Sharma, J.
1. D.B. Criminal Appeal No. 560/74 and D.B. Criminal Jail Appeal No. 689/74 filed by Durga Shanker arisa out of one and the same judgment of the learned Sessions Judge, Udaipur, dated 27-8-1974 by which the appellant was convicted under Sections 302 and 324 IPC and was sentenced to undergo imprisonment for life and to pay a fine of Rs. 100/- and in default to further suffer rigorous imprisonment for three months on the first count and on the second to suffer rigorous imprisonment for six months for causing simple injuries to Smt. Noji with a sharp edged knife. The sentences on both the counts were, however, ordered to run concurrently.
2. The prosecution case against the appellant was as follows : The appellant wanted to run a shop situated near the temple of Radheshyam deity in front of the Court premises at Udaipur. Shri Narainlal PW 9 was running a tea stall in that shop after taking it on lease from its owner. As the appellant was desirous of running that shop, he approached Sohanlal deceased and the latter to assist him in having the shop. Sohanlal, thereupon called Narain Lal PW 9 about )5 days prior to the occurrence and asked him to give the possession of the shop to the appellant. Narainlal agreed to handover the possession of the shop to the appellant and received a sum of Rs, 200/ in advance from him and later on handed over the possession of the shop The shop was run by the appellant for a couple of days and thereafter it was closed. The appellant demanded the sum of Rs. 200/-from Narainlal, but the latter refused to make the payment. The appellant then went to the house of Sohanlal deceased on 7th April, 1974, at about 7.30 P.M. and called him out from inside the house. Sohanlal came out of his house and asked the appellant why he has come. The appellant asked Sohanlal to exert his influence on Narainlal for returning the sum of Rs.200/-to the appellant. Sohanlal refused to bring any pressure on Narainlal for the return of the money. This led to an exchange of hot words between the two & it was alleged that the appellant took out a knife & stabbed Sohanlal thrice with it. When two injuries were caused by the appellant one on each shoulder of Sonanlal, Mst. Noji, wife of Sohanlal, came there and tried to rescue her husband, but the appellant gave her also a knife blow Then Sohanlal's brother Kishanlal also reached there and tried to save his brother, but the appellant struck a blow on his back also with his knife Then the appellant ran away from there after leaving his 'chappals' and the cycle which he had hired from Champalal PW6. The physical condition of Sohanlal was serious and so he was removed to General Hospital Udaipur. Shri Prabhulal Teli Sarpanch, Panchayat Udaipur, came to the hospital to find out as to what had happened. Kishanlal, brother of Sohanlal, narrated the whole of the incident to Prabhulal, who thereafter went to Police Station Dhan Mandi Udaipur and lodged the report of the incident with the Police the very day at about 9 PM On the basis of the report, a criminal case under Sections 307 and 324 IPC was registered and the usual investigation was commenced. The injuries of Sohanlal and Mst Noji were examined by Dr. S.S. Bakshi at the hospital Upon examination Dr. S.S. Bakshi found the following three injuries on the body of Sohanlal:
(1) Incised wound with clean out margins and having bleeding and emphysema surgical 3/4''x 1/4' cavity deep on the left side of chest at the l1th of inter coastal space.
(2) Incised wound with clean cut margins and bleedings 3'x 3/4' muscle deep on the right shoulder anteriority.
(3) Incised wound with clean cut margins and bleeding 1' x 1/2' muscle deep on the left shoulder posteriori).
Dr. Bakshi was of opinion that injuries Nos. 2 and 3 were simple in nature and for injury No. 1 he reserved his opinion after X-ray examination. According to the doctor, all the injuries were caused by a sharp edged weapon and were received within half an hour. As the patient was in condition of shook, he was admitted in the hospital and taken to the operation theatre where an operation was performed on him by Dr. Khatri PW12 in the presence of Dr. S.S. Bakshi PW 1. In the course of operation, it was found that there was a cut in the stomach of the size of 2 cm. and a cut in the left lobe of the lever. The injury, therefore, was, in the opinion of Dr. Bakshi, grievous and dangerous to life as it had but vital organs. However, upon X-ray examination, do fracture of the rib was detected.
3. Dr. Bakshi found one injury on Smt. Noji also which is as follows:
Incised wound with clean cut margins passing through the other side and causing another incised wound with clean cut margins, size of wound of entry 1 1/2' x 1/2' through and through & wound of exit 1' x 1/2' through and through The wound of entry was on the right lore arm lower 1/3 posteriori),just above the wrist and the wound of exit was on the right fore arm lower 1/3 medially.
In the opinion of Dr. Bakshi, this injury was of a simple type and was caused by sharp weapon.
4. Later on Sohanlal died in the hospital on 20th April, 1974 After his death an autopsy was conducted over his dead body by Dr. G S. Purohit PW 2 the very day on 20th April 1974 arid so the case was altered from under Section 307 IPC to a case under Section 302 IPC by the Police. Dr. G S. Purohit found the same external injuries on the dead body as were detected by Dr. Bakshi during the life time of the deceased. Besides those injures, Dr. Purohit found an additional incised wound over l/2'x 3/4' muscle deep over medial aspect of upper part of right leg and an operation wound. On opening the abdomen, Dr. Purohit found that there was repair of the stomach on the interior aspect and there was a cut of the left lobe of the lever which had been repaired and blood was oozing out. According to Dr. Purohit, the injury to the lever was sufficient in the ordinary course of nature to cause death but as the lever was repaired upon operation, Sohanlal survived from 7th April, 1974 to 20th April 1974. As to the cause of death Dr. G.S. Purohit opined that Sohanlal died because of peritonitis which had developed due to injury to the lever.
5. The appellant was arrested by the Police and while in the Police custody he gave an information Ex P 16 which led to the discovery of a knife from the pocket of his pentaloon which was lying inside his house. The knife was sealed soon after the recovery. The Investigating Officer after preparing the site inspection memo and a site plan and after taking the clothes of the deceased in to his possession and collecting other necessary evidence, filed a charge-sheet against the appellant under Section 302 and 324 IPC in the court of Judicial Magistrate Fust Class Udaipur. The learned Magistrate upon finding a prima facie case exclusively triable by the Court of Sessions, committed the appellant to the Court of Sessions Judge, Udaipur for trial under Sections 302 and 324 IPC. The learned Sessions Judge tried the appellant and found him guilty of both the charges and sentenced him on each count in the manner stated above.
6. Aggrieved by his conviction and sentence, the appellant has preferred these two appeals one from Jail and the other through his Advocate Shri Hanwant Mal Lodha
7. We have carefully perused the record and heard Mr. H. M. Lodha for the appellant and Mr. N.S. Acharya Public Prosecutor for the State.
8. Firstly it has been contended before us by Mr. H M. Lodha that the evidence led by the prosecution to prove its case is highly discrepant and does not fit in with the probabilities of the case and the learned Sessions Judge committed a grave error in placing impicit reliance on it for convicting the appellant under Sections 302 and 324 IPC. It was further urged that the darkness had set in at the time when the occurrence took place and, therefore, it was not possible for the eye-witnesses to see the culprit and the assault alleged to have been made by him on the deceased The learned Counsel for the appellant further laid much emphasis on the fact that the prosecution could not examine independent witnesses of the locality in which the occurrence took place specially when it has come on the record from the side of the prosecution itself that so many persons were eye witnessing the occurrence
9. The learned Public Prosecutor, on the other hand, strenuously urged that the evidence of the eyewitnesses in this case is entirely trust worthy and the criticism directed against it by the learned Counsel for the appellant is not well founded.
10. We have considered the rival contentions. It will not be out of place to mention that the prosecution examined Mst. Noji PW 3, Kishanlal PW 4 and Kishanlal son of Loomji Mali PW 14 to prove the connection of the appellant with the crime of murder Mst Noji PW 1 and Kishanlal PW 4 are closely related to the deceased Mst. Noji is wife of the deceased while Kishanlal PW 4 is his real brother. Both of them claimed to have eye witnessed the occurrence. Their evidence Cannot be brushed aside or discarded merely on the ground of their relationship with the deceased It has to be judged on merits and if it is found trust worthy on close scrutiny thereof, there is no reason why conviction should not be based on if In the coarse of arguments, we have been taken though the evidence of these two witnesses. Both of them have clearly stated in their depositions that it was the appellant who struck blows on the shoulders & the stomach of the deceased with a knife & when these witnesses came for the rescue of the deceased the appellant made assault on them also with his knife and caused one injury on the body of each. The learned Counsel for the appellant could not succeed in assailing their evidence before us on any reasonable score The occurrence took place in front of the house of the deceased Mst Noji PW 1 being the wife of the deceased naturally would have come out of the house when an altercation took place between the deceased and the appellant Likewise, Kishanlal PW 4 who was living with the deceased in the same house could naturally be expected to come out of the house on hearing the altercation between the deceased and the appellant over a petty sum of Rs. 200/-. Hence the presence of these two eye witnesses at the time and place of occurrence cannot reasonably be doubted. The evidence of these two eye witnesses is further corroborated by the testimony of Kishanlal son of Loomji Mali PW 14 who heard Sohanlal deceased cry in 'Mar gaya re' and the appellant running towards him and moving by his side having a weapon like knife or dagger in his hand. He immediately ran to the spot and found injuries on the stomach and shoulders of the deceased. The deceased then disclosed to him that Durga Shamker appellant had run away with the knife. He noticed injuries on the bodies of Mst. Noji. and Kishanlal PW 4 also. He claimed to have seen from a distance of about 50 paces that Sohanlal deceased and the appellant were catching hold of each other. Upon careful review of the evidence of these three witnesses, we are satisfied that their evidence. is truthful and capable of providing a sound basis for holding the appellant responsible for causing injuries on the body of the deceased and his wife. There is no force in the contention of the learned Counsel for the appellant that the assault was made on the deceased during the hours of darkness and so the eye-witnesses could not see the face of the assailant in the obsence of any adequate source of light at the place of occurrence. The reason is that Mst. Noji clearly stated in her cross-examination that the assault was made at about 7 or 7.30 P.M. and when she came out of her house on hearing the altercation between the deceased and the appellant there was light of an electric bulb on a pole out side her house and in that light she saw the appellant. She, however, stated that later on the electric light had gone off but that does not make any difference because she professed to have seen the appellant in front of her house when the light was on. Kishanlal PW 4 also claimed to have seen the appellant while the latter was quarrelling with the deceased. His evidence is that the occurrence took place at about 7.30 PM and at that time darkness had not set in. Consequently we are unable to hold that there was no sufficient light to enable the eye witnesses to see the culprit.
11. Another contention put forward by the learned Counsel for the appellant is that the prosecution could not examine independent witnesses of the locality to prove the guilt of the appellant although there were persons other than the two eyewitnesses who also were seeing the occurrence Mst. Noji no doubt admitted in her cross-examination that persons living in the Mohalla also were eyewitnessing the occurrence but they did not come to rescue her and the deceased. Kishanlal PW 4 also admitted that about 20 or 25 persons of the locality were present when quarrel took place between the appellant and the deceased But the mere fact that the prosecution failed to produce other eye- witnesses does not cast any doubt on the veracity of the testimonies of Mst. Noji PW 3 and Kishanlal P w 4 and Kishanlal son of Loomji PW 14 specially when their evidence does not suffer from any infirmity, The prosecution is not bound to produce each and every eyewitness to support its case. Hence the evidence of the eye-witnesses cannot be discarded or disbelieved merely because the prosecution could produce more eye- witnesses and failed to do so.
12. The evidence of the eye-witnesses further finds corroboration from the medical evidence as to the number and nature of the injuries found on the body of the deceased and on the body of Mst. Noji Both the eye-witnessed claimed to have seen the appellant causing injuries to the shoulders and the stomach of the deceased with a knife and one injury to the right for:-arm of Mst Noji. Dr. S.S Bakshi, Medical Jurist found one incised wound on the right fore-arm of Mst. No. 1. The wound passed through the other side and caused another incised wound. Likewise the doctor found one incised wound on left side of the chest of Sohanlal deceased on the 11th of inter coastal space and the two incised wounds, one each on his right and left shoulder. Consequently we have no hesitation in our mind that no other person but the appellant was responsible for causing injuries to the deceased & to Mst Noji with a knife,
13. Lastly it was strenuously urged before us by Mr. H M. Lodha that the conviction of the appellant under Section 302 IPC is clearly unsustainable because his case comes within the purview of Section 304 part II or Section 326 IPC and not under any of the clauses of Section 300 IPC. According to his submission there was no premeditated plan for the murder of Sohanlal but it was a result of a sudden fight upon a sudden quarrel on the spur of the moment. In the heat of passion, she appellant assaulted the deceased and deceased caused two simple injuries in the. first instance on his shoulders & thereafter struck out a blow at random on the left side of his chest at the, 11th of inter-coastal space with a knife which did not cause instantaneous death, and the deceased survived for a number of days after receiving the blows and died of peritonitis which had developed subsequently. On the strength of these facts, the learned Counsel argued that the conviction of the appellant may be altered from under Section 302 IPC to Section 304 part II or Section 326 IPC The learned Public Prosecutor on the other hand con-tended that the appellant intended to kill the deceased or at least intended to cause such bodily injuries to him as were sufficient in the ordinary course of nature to cause his death and so the learned Sessions Judge rightly held him guilty of the offence of murder punishable under Section 302 IPC.
14. We have given our anxious consideration to the above contentions. It transpires from the prosecution evidence itself that the appellant did not deliberately go to the deceased with the intention of killing him or of making any murderous assault on him He had gone to the house of the deceased for demanding a sum of Rs. 200/- from the latter which sum he had paid in advance to Narainlal PW 9 for having a shop for running a business. The deceased refused to pay the sum because it was not paid to him. He asked the appellant to talk to Narainlal PW 9 in this matter as Narainlal had received the amount This led to an exchange of hot words between the two. The appellant and the deceased began to grapple with each other and then the appellant took out a knife which was with him and with it caused injuries in the shoulders and to the stomach of the deceased Mst Noji came to the rescue to the deceased but she also receive'] a knife blow on her right fore-arm, In these circumstances, it can safely be held that there was no pre-meditated plan for the murder of Sohanlal and the assault was an outcome of a sudden fight upon a sudden quarrel on the spur of the moment It is no doubt true that Mst Noji PW 3 denied in her cross-examination that her husband and the appellant had grappled with each other before the actual assault was made, but she was confronted with and contradicted by portion A to B of her statement Ex D 1 which she gave before the Police and wherein she stated that all of a sudden Durga Shanker appellant began to grapple with her husband When confronted with above portion of her police statement, Mst. Noji denied to have made such a statement before the Police. Kishanlal PW 4 also admitted in his deposition that when he came out of the house on hearing the noise he saw that the deceased and she appellants were engaged in a wordy quarrel over a sum of Rs. 200/- Kishanlal son of Loomji PW 14, on the other hand, clearly admitted in his cross-examination that the deceased and the appellant were catching hold of each other. He further stated that he saw from some distance that Sohanlal and his wife on the one hand and the appellant Durga Shanker on the other were fighting. Hence we have no doubt in our mind that exception IV to Section 300 IPC was clearly applicable to this case and the offence was one of culpable homicide not amounting to murder punishable under Section 304 Part II IPC. In support of our above conclusion, we may refer to the evidence of Dr. S.S. Bakshi, medical jurist, who admitted in clear and definite terms, that by operation the lever and stomach of the deceased were repaired and there were more chances of his survival, but some secondary infection developed and that is why he died. The doctor further admitted that Sohanlal did not die as a result of the injuries, but died on account of secondary infection which no doubt developed because of injury No. 1 on the left side of chest at the 11th of Inter-coastal space. Similarly Dr G .S. Purohit PW 2 who conducted the post-mortem examination over the dead body of Sohanlal admitted that in the case the lever was repaired and there were chances of survival and that is why the patient survived from 7th of April, 1974 to 20th of April, 1974, and he died because of peritonitis which developed later-on, on account of Injury to the lever. Apart from this, the prosecution has led no evidence to prove that the knife with which the injuries were caused to the body of the deceased was of a long size and of a very dangerous character. As the appellant in the heat of sudden fight, upon a sudden quarrel and without premeditation, took out a knife which was with him and which was not proved to be of a very dangerous character and with it struck out at random only one blow on the vital part i.e. left side of the chest at the 11th of inter-coastal space, it cannot be said that he took undue advantage or acted in cruel or unusual manner. In this connection we may refer to an authority of the Supreme Court Inderstngh v. State of PEPSU reported in : AIR1955SC439 wherein the following observations were made by their Lordships of the Supreme Court and the offence was held to have fallen outside the purview of Section 302 IPC:
While agreeing with both the Courts below that it was the appellant who was responsible for inflicting the injuries which ultimately resulted in the death of the deceased we are, however, of the opinion that even though the blows were inflicted by the appellant on the head of the deceased with force, the lathi not being iron shod and the deceased being a young man and strongly built the appellant could not under the circumstances be held to have been actuated with the intention of causing the death of the deceased, nor do we think despite the medical evidence, that the injury was sufficient in the ordinary course of nature to cause death, and seeing on the doctor's admission that an injury of that kind is not incurable. But he no doubt knew that he would be causing such bodily injury as was likely to cause death and the offence committed by him would fall under Section 304 Part I and not under Section 302, Penal Code.
15. For the foregoing reasons we feel persuaded to alter the conviction of the appellant from under Section 302 I.P.C. to Section 304 part II I P C. as he must have known at the time of causing injury to the left side of the chest: of the deceased at the 11th of inter-coastal space that such an injury was likely to cause his death As regards the conviction and the sentence of the appellant under Section 324 IPC it may be observed that it is proved to the hilt by the prosecution beyond reasonable doubt that he inflicted one simple injury on the right arm of Mst. Noji with a knife when the latter tried to intervene The Sessions Judge, therefore, rightly convicted the appellant for this offence punishable under Section 324 IPC. The sentence passed against the appellant for this offence is not severe in the circumstances of the case. As regards the sentence under Section 304 part It IPC, it may be observed that appellant has already undergone imprisonment for more than 4 years and 11 months. Besides he has undergone detention during the investigation, inquiry or trial of this case since the date of his arrest that is from 13 4-74 to the date of his conviction i.e. 27.8-74. In cur opinion, the ends of justice would be met, if he is sentenced under Section 304 Part II I P.C. to a term of imprisonment already undergone by him.
16. The result is that we partly accept the appeals filed by Durga-Shanker and while maintaining his conviction and sentence under Section 324 IPC alter his conviction from under Section 302 I P.C to Section 304 Part II IPC and sentence him to a term of imprisonment already undergone by him. The appellant is in jail. He shall be set at liberty forth with if not required in connection with some other case.