MEHTA, J. - (1.) -
(2.) MAGHARAM (deceased) lived inside Jalori Gate, Jodhpur. Both he and P. W. 2 Lekhraj were friends. On April 13, 1967, Lekhraj visited the house of Mangharam at about 2 p. m. Both of them left the deceased's house for Mahesh School. They passed through Siwanchi Gate via Ghanchi's Mohalla. On their way to the school, MAGHARAM went to Hemant Kumar's shop to buy 'ber' fruits. When MAGHARAM was purchasing them, the accused Kalooram who was chewing betel, went near him and spat on him. MAGHARAM made a protest to it. Thereupon Kalooram hurled abuses at MAGHARAM. Soon after Kalooram took out a knife from his pant-pocket and struck a blow therewith on the throat of MAGHARAM. The accused delivered another knife blow at the same place. MAGHARAM tried to pick up some earth to throw it at the accused, but he could not succeed. The accused, on the other hand, dealt a third knife blow on the abdomen of his victim; whereupon MAGHARAM fell down. Kalooram then took to his heels from the scene of the crime. Brother of the accused, Kanhaiyalal, happened to come over there and he arranged for a tonga and took the injured MAGHARAM to the Mahatma Gandhi Hospital, Jodhpur. The injured was admitted to the hospital at 3. 30 p. m. the same day. Dr. K. G. Singhal, P. W. 7, Medical Jurist, Mahatma Gandhi Hospital, Jodhpur, found the following four injuries on the person of MAGHARAM - 1. Stab wound 2" x 3/4" x muscle deep going post medially towards the scapula on the lateral aspect of left chest middle portion. 2. Incised wound vertical 1-1/2" x 1/2" x muscle deep below the left chin. 3. Incised wound 1/2" x 1/8" x skin deep on the left angle of mandible. 4. Stab incised wound 3/4" x 1/4" x muscle deep on the left side of neck about its middle. Maghram expired at 1-30 a. m. during the night intervening April 13 and 14, 1967. Dr. Singhal conducted the post-mortem examination on the dead body of the deceased on April 14, 1967. The Doctor discovered the following internal injuries on the corpse - 1. Left side of the brain was pale and anaemic. 2. Left common carotid artery was tied at two places. Blood clots were present on the left side of neck (whole) and behind the esophagus and tracheae. 3. Tracheotomy was also done. In the opinion of the Doctor the internal and the external injuries could have been caused by the knife Ex. 4 Injury No 4 was grievous in nature as it had cut the blood vessels of the neck and it endangered the life of the victim. This injury was sufficient in the ordinary course of nature to cause death. The Doctor further opined that all the injuries cumulatively were sufficient in the ordinary course of nature to cause the death of the deceased. First information report of the occurrence was made by PW. 6 Kistooraram father of the deceased on April 14, 1967, at 7 a. m. , with the police station, Khanda Phalsa, Jodhpur. The police registered a case under sec. 302 I. P. C. and started investigation. The accused Kalooram was arrested on April 14, 1967, by the police : vide memo Ex. P. 2. The accused, while in the police custody, gave information, on April 18, 1967, to the Station House Officer, Hari Singh, to the effect that the weapon of the offence had been concealed by him in his house under certain articles of his bedding and that he was prepared to show the same. The information was reduced to writing. It is marked Ex. P. 12. In pursuance of the information the police recovered the Mood stained knife Ex. 4 at the instance of the accused under Ex. P. 5. The knife was duly sealed in the presence of Motbirs and was sent to the Chemical Examiner and the Serologist. The Chemical Examiner, Rajasthan, Jaipur, examined the article and found it positive lor blood. The Serologist and the Chemical Examiner to the Government of India certified that the scrappings from the knife were stained with human blood. The police prepared site inspection memo Ex. P. 3, site plan Ex. P. 4. description memo of the corpse Ex. P. 6 and other necessary documents. After the investigation was concluded, the police put up a challan against the accused Kalooram in the court of the Additional Munsiff Magistrate No, 1 Jodhpur City. The said Magistrate conducted preliminary inquiry in accordance with the provisions of sec. 207a Cr. P. C. , and committed the accused to the court of the Sessions Judge, Jodhpur, to face trial under sec. 302, I. P. C. On September 12, 1967, the accused was charged by the Sessions Judge, Jodhpur, under 302 I. P. C, to which he pleaded not guilty and claimed trial. In support of its case the prosecution examined 10 witnesses, including 3 eye witnesses, namely, Sarjoolal, P. W. 1, Lekhraj PW-2, and Bhopal Ram, P. W. 3. The accused in his statement, recorded under sec. 342 Cr. P. C, made a total denial of the crime, with which he stood charged. He further stated that Bhopalram was on his duty at Merta on the date of the alleged incident. He also deposed that he did not give any information to the police in respect of the alleged recovery of the knife, nor did the police recover it at his instance. The accused, in the end, said that the deceased MAGHARAM was a 'goonda' of the locality. He asked his parents to prevent their son from eve-teasing. Since that day the deceased's parents bore ill-will against him. At the time of the alleged incident he was working at Blue Star Mechanic Works, wherefrom he returned home in the evening. He did not produce any evidence in his defence. The trial court, relying upon the evidence of Lekhraj P. W. 2 and Bhopalram P. W. 3, as also on the recovery of the blood stained knife [ex. 4j on the information and at the instance of the accused, convicted the appellant under sec. 302, I. P. C, and sentenced him to imprisonment for life. The accused appeals against that verdict. The contention of the learned counsel for the appellant is that the trial court went wrong in placing reliance upon the testimony of Lekhraj P. W. 2 and Bhopalram P. W. 3. The information memo regarding the recovery of the knife Ex. P. 12, learned counsel urged, is not admissible in evidence, as the accused has not stated that it was he who had hidden the weapon. The prosecution, learned counsel adds, has also failed to prove that the accused had any motive which actuated him to commit the crime. Lastly, learned counsel submitted, as an alternative argument, that even if it was held that the accused inflicted injuries to Magharam, he was entitled to claim benefit of exception 4 to sec. 300, I. P. C. , as the homicide was committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel. The post mortem examination of the dead body of Magharam, conducted by Dr. K. C. Singhal P. W. 7, reveals that the deceased sustained 4 injuries, the details of which have been set out above. Of these injuries the stab incised wound muscle deep on the left side of the neck was sufficient in the ordinary course of nature to have caused the death. The Doctor further expressed the view that all the injuries cumulatively were also sufficient in the ordinary course of nature to have caused the death of Magharam. This aspect of the case stands unchallenged. There is, therefore, no manner of doubt that Magharam met unnatural or homicidal death. The important question that survives for consideration is whether it was the accused Kalooram, who inflicted the 4 injuries to Magharam with a sharp-edged weapon. In this connection the prosecution examined 3 eye-witnesses, Sarjoolal, P. W. 1, Lekhraj P. W. 2 and Bhopalram P. W. 3. The trial court has discussed at length the testimony of Sarjoolal and reached the conclusion that he is not a reliable witness. Sarjoolal P. W. 1, was interrogated for the first time on April 29, 1967 i. e. , 15 days after the occurrence. He did not disclose anything about the incident to the police at the earliest opportunity. His name also does not appear in the first information report. He is a shop-keeper and carries on business somewhere in the vicinity of the scene of the crime. It is not believable that he does not know the name of a single person out of 100 or 150 persons who had assembled at the time of the actual assault. It is for these reasons and other inconsistencies found in his statement that the trial court distrusted him and we believe rightly so. We may now take up the evidence of Bhopalram P. W. 3, brother of the deceased Magharam. In his examination in chief he supports the prosecution story. He is the real brother of the deceased Magharam. He claims to have seen the occurrence from some distance. Had this witness been present on the spot, he would have rushed to the place of the crime to rescue his brother and to have prevented the accused from striking knife blows on his brother. In his statement in the committing court at portion marked A to B he had stated that he had reached the spot when Magharam and Kalooram were abusing each other, and that when they were fighting with fists and slaps, no one intervened. The witness was confronted with that portion of his statement in the course of his examination in the trial court His answer was that he did give that statement in the committing court. The witness had at another place said that he did not hear the exchange of abuses between the accused and the deceased because he was coming from a distance. The witness further deposed - "i did not see them grappling with each other. " He further says that the brother of the accused signed the form of admission in the Hospital. Had Bhopalram been present in Jodhpur on the date and at the place of the occurrence it was expected of him to have taken his injured brother to the Hospital and to get him admitted, after signing the admission form. The witness also deposed that he did not make any report of the occurrence immediately to the police, nor did he request the medical officer to send information of the happening to the police. This is also an unnatural conduct. It can hardly be taken as true that Bhopalram's brother was lying in a precarious condition in the Mahatma Gandhi Hospital, Jodhpur, and the witness, the brother of the injured, would leave for Merta Road on his duty. Kistooraram PW. 6, father of Bhopalram, says - "when I got the report written my son Bhopalram was not with me. He was at Merta Road at that time. He came to Jodhpur at about 1 p. m. on 14. 4. 67. " The above facts demonstrate that the presence of Bhopalram on the scene of the occurrence on April 13, 1967, is not free from doubt and the trial court, in our opinion, should not have placed reliance on his testimony. Lekhraj P. W. 2 supports the whole of the prosecution story. He was the friend of the deceased Magharam His presence on the scene of the crime cannot be doubted. The learned counsel submits that as the witness did not try to intervene in the combat, his conduct should be assumed to be unnatural Lekhraj is a boy of about 18 years of age. It could not be expected from him to have faced a formi-dable opponent, armed with knife, causing awe His non-interference at the time of the actual fight does not suggest his absence on the spot Despite lengthy cross-examination Lekhraj's testimony has not been damaged and the trial court correctly held that his evidence is convincing, cogent and credible. He bore no enmity or ill-will against the accused. The fact that the witness was friendly to Magharam does not detract from the value to be attached to his evidence, because naturally enough he was interested in seeing that the real murderer war convicted of the offence, but he cannot be expected to adopt a course by which some innocent person would be substituted for the person really guilty of the murder. In fact his feelings would be the strongest against the real culprit and, consequently, his evidence cannot be discarded on the mere ground of his being friendly to the deceased. His evidence to our minds is of sterling worth. The trial court has placed reliance upon the admission of the accused (Ex. P. 12), made before the police under sec. 27 of the Evidence Act, regarding the recovery of the knife. Learned counsel for appellant urged that the information memo Ex. P. 12 nowhere contains that the accused made a confession that he had hidden the knife and, therefore, Ex. P. 12 should not have been taken into consideration by the court below. We have perused Ex. P. 12 with circumspection. Its relevant portion reads as follows - "the accused Shri Kalooram, son of Bheraram Ganchi, resident of Tatiyon-ka Chowk, Jalori Gate, Jodhpur, has informed that the knife with which Magharam Chaudhary was hit on his neck and abdomen has been kept by me at my house in the articles of my beddings comprising quilts etc. , which he was prepared to point out. " The accused has unequivocally and categorically admitted that it was he, who had hidden the knife and that weapon he was prepared to produce It is no doubt true that the words "with which Magharam was stabbed on his neck and abdomen" are not admissible in evidence since they do not relate to the discovery of the knife in the house of the informant. But the information supplied by the accused that "1 have concealed the knife in my bedding" leads to the discovery of the fact that a knife had been concealed in the house of the informant by him and that fact is admissible in evidence under sec. 27 of the Evidence Act: vide Kottaya vs. Emperor (l ). We see no good reason for disbelieving the police officer regarding the statement made by the appellant. An examination of the statement of the S. H. O. Hari Singh P. W. 10, does not disclose any circumstance which would justify us in holding that he was not speaking the truth. The fact that the appellant hid the blood-stained knife clearly indicates his guilty knowledge. Here it may also be pointed out that the knife was recovered at the instance of the accused under memo Ex. P. 5, which stands proved by the statement of the Station House Officer, Hari Singh P. W. 10, and the Motbir Atmaram P. W. 4. The knife according to the Chemical Examiner was positive for blood and, in the opinion of the Serologist, was stained with human blood. Thus, the recovery of the blood stained knife is an important link in the chain of proof. The learned counsel for the appellant then submitted that the prosecution has failed to establish motive for the crime In this connection, suffice it to say that where, as here, the positive evidence against the accused is reliable and trustworthy, the question of motive is of little importance Reference in this connection is made to para 523 Halsbury's Law of England, 3rd Edition, Vol. 10, which reads as below - "the prosecution may prove, but is not bound to prove, the motive for a crime; and, even in cases where innocence of intention is a defence, an innocent or praise-worthy motive, if the necessary intent is proved, is irrelevant and affords no defence. . . . . . . . . " Similarly in Gurcharan Singh vs. State of Punjab (2), his Lordship Sinha J. , spoke for the court thus - "where the positive evidence against the accused is clear, cogent and reliable, the question of motive is of no importance. " Be that as it may, the prosecution evidence discussed above, is worthy of belief or trust and, therefore, the absence of motive is no ground for not acting upon the testimony, which is otherwise reliable. We may now switch over to the alternative submission made on behalf of the appellant that the case is covered by exception 4 to sec. 300, I. P. C. Exception 4 reads as under - "culpable homicide is not murder if it is committed without pre-meditation 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. " The expression "undue advantage" as used in exception 4 to sec. 300 means unfair advantage. If the victim has no weapon and if he does not get a chance to run away to defend himself with whatsoever he can pick-up, he must be held to have been placed at a disadvantage. In other words, an assailant cannot but be said to have taken undue advantage of his victim if the latter is taken completely unaware and is struck with a sharp-edged weapon when he even does not suspect that he is about to be struck. No reasonable person can expect that a man would whip out a knife and strike another on a vital part of the body with it on account of a petty quarrel of the kind which took place in this case. If the weapon or the manner of the assailant is out of all proportion to the offence given, that circumstance must be taken into consideration in deciding whether or not unfair advantage has been taken. In such a case the assailant must be held to have acted in a cruel or unusual manner. The learned counsel for the appellant relied upon a judgment of their Lordships of the Supreme Court in Chamru Budhwa vs. State of M P. (3 ). In that case there was an exchange of abuses between the parties and both came out of their houses in anger. In the course of the quarrel the appellant gave a fatal blow to the deceased on the head with his lathi. It does not appear that the deceased was unarmed, nor does it appear that he was taken unaware. In fact he advanced a step or two towards the appellant after being struck with a lathi by the appellant's brother, presumably with a view to attack him. In the present case no suggestion has been made in the prosecution evidence that the deceased advanced towards the appellant with a view to attack him. Further, lathi is a weapon which a villager commonly has in his hand, but a knife is not such a weapon. We have seen the knife in the course of hearing the arguments and found it quite formidable. Chamru Budhwa's case is, therefore, clearly distinguishable from the facts of the present case. In this connection reference is made to a Division Bench case of the Mysore High Court in B. B. Doddamani vs. State (4 ). The head note (B) is reproduced below - "where the evidence clearly shows that a family quarrel suddenly took a serious turn and in fight which was short and sharp, the accused gave one stab of knife to the deceased who was unarmed, the knife pierced so far as to enter the abdominal cavity and cut the upper wall of the stomach and completely cut one rib, and the victim died within one hour. Held that though there was neither premeditation nor any deliberate intention to kill on the part of the accused, the injury was sufficient in the ordinary course of nature to cause death and as the accused did intend to cause the injury of such nature the case clearly fell under clause 'thirdly' of sec 300 and the offence was punishable under sec. 302. Further that the case did not fall under the fourth exception as the accused had failed to establish that he stabbed the victim in the heat of passion without taking any undue advantage and without acting in a cruel or unusual manner. " We may also usefully refer to Syed Ahmed vs. The Ring (5 ). Its head note reads as under - "the using of a weapon by one person against an unarmed person in a sudden fight is not within the limits of Exc. 4 to sec. 300, because it is expressly provided that no unfair or undue advantage must be taken by one of the combatants if the plea of sudden fight is to be raised by way of exception. " In Narayananan vs. Trav. Co. State (6) His Lordship Bose J, observed - "it is enough to say that the Exception requires that no undue advantage be taken of the other side. It is impossible to say that there is no undue advantage when a man stabs an unarmed person who makes no threatening gestures. . . " In Dharman vs. State of Punjab (7), his Lordship Govinda Menon J. , held - "in these circumstances, there can be no doubt, as is clear from the testimony of witnesses, that the deceased's party was also armed with dangerous weapons, and when two such contending parties, each armed with sharp edged weapons, clashed and in the course of a free fight some injuries were inflicted on one party or the other, it cannot be said that either of them acted in a cruel or unusual manner. It would be otherwise if the deceased and his party were unarmed or armed with weapons which were not lethal or dangerous and the accused's party used sharp weapons. In that case the accused must be deemed to have acted in a cruel or unusual manner. " It would further be instructive to refer to an English authority reported in 1892 168, E. R. 1002. In that case it has been observed - "but if a party enters a contest, dangerously armed, and fights under an unfair advantage, though mutual blows pass, it is not manslaughter but murder. " In Russel on Crimes, 12th Ed. Vol. 1 page 623, it is given - "if with a deadly weapon, he deliberately inflicts a wound upon a vital part, where such a wound would be likely to prove fatal, a strong inference results that his mind and intention were to destroy. " In this case the victim Magharam was unarmed. He had had no suspicion that the appellant would make a serious attack on him with knife of more than an average size. It was the appellant who first spat on the deceased and when the deceased protested, the accused hurled abuses at him and eventually took out a knife and inflicted as many as four blows on the person of the deceased. He did not rest content with one blow but had had the tenacity of repeating the blows one after the other. Injury No. 4 was caused on the vital part of the deceased, i. e. , left side of the neck, Thus, the appellant had taken undue advantage of the deceased and acted in a cruel or in an unusual manner. Our conclusion, on the facts and the circumstances of this case, is that Exception 4 to sec. 300 I. P. C, is not applicable to this case and the offence under sec. 302, I. P. C. , has been brought home to the appellant beyond reasonable doubt. There is, therefore, no ground for altering his conviction to one under sec. 304, I. P. C. with the aid of Exception 4 to sec. 300, I. P. C.
(3.) THE appeal is accordingly dismissed. .;