JAIN, J. - (1.) THE appellant Dhanjee was convcited of the offience under Sec. 302, I P. C , and was sentenced to imprisonment for life and a fine of Rs. 100/-, in default of payment of fine to further undergo six months' rigorous imprisonment, by the Sessions Judge, Udaipur, by his judgment dated 27-5-1974.
(2.) THE prosecution case, in brief, is that there was a dispute between the accused Dhanjee and the deceased Laljee with regard to an agricultural land. Criminal litigations were also going on. THEre were cross criminal cases. THE accused had instituted a criminal case against the father of the deceased for having beat him and the accused Dhanjee was also prosecuted for having beat Hurji. the brother of the deceased and Khema, the father of the deceased. On 14-8-73 the deceased Laljee had visited the house of Ratna Patel (P. W. 2) at about 8. 00, p. m, in connection with the recovery of his dues relating to the labour charges. Ratna instead of making cash payment, expressed that he will make payment in kind and will deliver grain. THEreupon Laljee with a view to bring a basket from his house to take the grain, which may be supplied by Ratna, was coming out of the house of Ratna. Soon after he came out of the house of Ratna, the accused rushed from his house which is situated infront of the house of Ratna, and exhorted that where the enemy is going and after such exhortation thrusted the dagger (Gupti) in his abdomen. THE occurrence was witnessed by Amarjee (P. W. 1 ). THE injured Laljee raised an alarm shouting that Dhanjee has thrusted Gupti in his abdomen. Amarjee (P W. 1), Panna (P. W. 3), Vijey Singh (P. W. 4) were attracted to the scene of occurrence. Laljee was first removed to his house. THEreafter the same night he was taken by Nandu, Panna, Hurji and Vijay Singh to the Police Station, Kanba, District Dungarpur, where the injured Laljee lodged the verbal report (Ex. P/2), on which case under Sec. 307, I. P. C , was registered at 12. 30 a. m. , by the S. H. O. Jahoor Ahmed (P. W. 18 ). He seized the blood stained shirt (Ex. 1) and Dhoti (Ex. 2) of the injured vide seizure memo Ex. P/3. THEreafter the injured was sent to the hospital along with Ex. P/5, in which the investiga-ing officer stated to the Medical Jurist, Dungarpur, to conduct the medical examination of the injured & in case it is found that the condition of the injured is serious and precarious, then his dying declaration may also be recorded. THE injury on the person of the injured was examined by Dr. Kanhaiya Lal Gandhi (P. W. 5 ). THE injured was in his senses and was in a position to give statement, soon 15-8-1973 at about 5. 00 p. m. , Dr. Gandhi recorded his dying declaration (Ex P/4 ). THE injured succumbed to his injuries on 16-8 1973 at the Hospital at 8. 20, p. m. He conducted the postmortem examination on the dead body on 17-8-1973 and found the following external injuries on the person of Laljee deceased : - (1) Transverse incised wound 1 "x 1/4" x on the right side of the supra pubic region 3" above the pubic bone. (2) Lacerated wound 1/2 "x 1/4" on the right buttock 2" right to the annal opening. On opening the body he found that the muscles below the wound No. 1 in the abdomen were cut over the peritonium which was perforated. THE perforation was 1" in diameter with peritonitis. Further below there were two perforations in the small intestines (illeum) 3/4" in diameter each through which air bubbles and fecal matteis were coming out. Further below there was fecal matter and blood in the peritonium cavity all over. THE posterior wall of the abdominal cavity was having a perforation, which was passing out through the wound No. 2 near the anus. THE perforation on intestines were on the outer boarder and 3" from ileocal Junction. Wound No. 1 was the wound of entry and wound No. 2 was the gound of exit. THEy were through and through. According to Kanhai)a Lal Gandhi, the deceased died as a result of shock and haemorrhage caused by generalised peritonitis and intestinal perforation caused by the injuries. Jaboor Ahmed (P. W. 11) visited the spot and conducted the spot investigation, prepared the site plan (Ex. P/l) and site notes. The accused Dhanjee was arrested on 17-8-1973 vide memo Ex. P/7 and the accused got the Gupti recovered on his information (Ex. P/12), vide recovery memo Ex. P/8. The Gupti was packed and sealed, as boold stains were found on it. The statement of Laljee (Ex. P/l3) was also recorded under Sec. 161, Cr. P. C. The two sealed packets, one of the clothes of the injured, and the other of Gupti, were sent for chemical examination. On chemical examination n all the articles were found positive for blood vide report Ex. P/l5 and the serological examination revealed that all the three articles were stained with human blood vide Serologist report Ex. P/16. Blood groupping could not be made, as blood on Gupti was not sufficient for test After completion of investigation, charge-sheet was presented against the accused and the accused was ultimately tried by the Sessions Judge, Udaipur. On being charged under Sec. 302, I. P. C, the accused pleaded not guilty and claimed to be tried The prosecution examined in all 11 witnesses. P. W. 1 Amarjee is an eyewitness of the occurrence, P. W. 2 Ratna is the witness, who had seen the accused returning with Gupti to his own house immediately after the occurrence. P. W. 3 Panna and P. W. 4 Vijay Singh are the witnesses, who appeared at the scene of occurrence on the alarm of the deceased Laljee and to whom an oral dying declaration was made by the deceased. P. W. 5 Dr. Kanhaiya Lal Gandhi was the Medical Jurist, Dungar-pur, who recorded the dying declaration Ex. P/4 and also conducted the postmortem examination on the dead body of the deceased. Kamal Singh (P. W. 6) is Motbir witness of the spot investigation. P. W. 7 Heera is an hostile witness who has not supported the prosecution. He is not adhered to the version given by him to the police with regard to extra judicial confession said to have been made by the accused to him P. W. 8 Nand Kumar, Head Constable, Kotwali, Dungarpur, is the witness, who prepared the Panchnama Lash (Ex. P/10), P. W. 9 Hari Singh and P. W. 10 Chuni Lal are the witnesses, who carried the sealed packets. P. W. 11 Jahoor Ahmed is the investigating officer. The statement of the accused was recorded, in which he denied the prosecution case. He stated that the witnesses are inimical to him. The learned Sessions Judge, after hearing the arguments, found that it is proved that the author of the injuries on the person of the deceased is accused Dhanji and he further found that the act of the accused is covered under clauses (2) and (3) of Sec. 300 IPC Consequetly, he convicted the accused appellant under Sec. 302, I. P. C. and sentenced him, as aforesaid. We have heard Shri M. Mridul, assisted by Shri S. L. Jain, learned counsel for the appellant and Shri Niyazuddin Khan, learned Public Prosecutor, for the State. In order to connect the accused with the commission of the offence, the prosecution places reliance on the testimony of P. W. I Amarjee, P. W. 2 Ratna, P. W. 3 Panna and P W. 4 Vijay Singh and it further places reliance on the evidence, which has proved the three written dying declaration, namely the first information report (Ex. P/2), the dying declaration recorded by P. W. 5 Dr. Kanhaiya Lal Gandhi (Ex. P/4) and the statement recorded by the police under Sec. 161 Cr. P. C. (Ex. P/13 ). Besides that, the prosecution further places reliance on the circumstantial evidence, by recovery of the Gupti (Ex. 3) which was founds tained with human blood. On behalf of the appellant it is urged that the evidence of the eye witness Amarjee has been cooked up and no credence should be given to his testimony. It was urged that according to this witness it was a dark night and he was passing through the way at a distance of about 40 to 50 paces from the house of Dhanjee. It was also raining at the time of occurrence, so it was not possible for the witnesses to have observed the incident. The question is, was it possible for the witness to have observed the incident. It is true that according to Amarjee it was a dark night and the occurrence took place about 8 or 9. 00 p. m. It was also raining at that time. The witness categorically states that he saw the incident from a distance of about 15 arms. In his cross examination he stated that when he was on the way near the shop of one Kalalan, he saw the occurrence & he gave the distance of the shop from the house of Dhanjee as 40 to 50 paces He also admitted that there was no light at the spot, when the incident took place. He clearly states that he has seen the deceased coming out from the house of Ratna and he had identified him. He has emphatically denied that he did not see the occurrence. He has stated that he had seen a long weapon in the hand of the accused, which was of iron & on the basis he has stated that it was Gupti. In his further cross-examination he stated that he had seen both, the assailant as well as the victim, by their faces and so he had identified both of them. As regards the distance between the house of Dhanjee and the shop of Kalalan Nathi, the witness has given the distance on the basis of estimate, but it can be known by the site plan prepared by the S. H. O. The site plan (Ex P/l) gives this distance at 30 paces. Point 'd, has been shown to be the place, from where the witness had seen the occurrence. From point 'b' the shop of Smt. Nathi has been shown. Point 'c' is the place of incident, where Gupti was thrusted. The distance given up to point 'd' from the place of incident, is 20 paces. There is a further check available on record with regard to the presence of this witness Amarjee. The deceased Laljee in his first information report Ex P/2 has made mention of the fact that immediately at the time of occurrence Amarjee Ved had arrived at the spot. Thus, in our opinion, the presence of Amarjee cannot be doubted and it is within his sight that the incident took place. The witness has made a very categorical statement that though night had fallen, but it was not pitch darkness. Man was visible. So it would appear from his statement that the darkness was not such that the visibility was completely nil. We find that the statement of Amarjee is worthy of acceptance and for no reason his evidence can be found incredible. Ratna (P. W. 2) also to some extent corroborates the story given by Amarjee. He was lying on a cot in his house just infront of the entrance. The Angan in the way outside the house was visible from that place. He has deposed that Laljee had demanded his labour charges and he told him that instead of cash, he will deliver grain. Thereafter Laljee went out of his house to bring the basket. Soon after he went out of the house, Laljee raised a shriek. He has further stated that he saw the accused Dhanjee returning to his house armed with a Gupti. He has not deposed that he has seen the accused thrusting the Gupti blow. It appears that he was attracted towards the scene of incident on the alarm raised by Laljee and it is at that point of time that he saw the accused returning to his house from Angan armed with a Gupti. He too has admitted in his cross-examination that it was raining and it was a dark night. But he has clearly stated that the door of the house of Dhanjee was visible and soon after the occurrence lamp was lighted in his house, with regard to the identification of the accused we cannot lost sight of the fact that so far as Ratna is concerned, the accused was his close neighbour and Amarjee is also residing just behind the house of Ratna (P. W. 2) and the accused was also a neighbour of him. The accused was thus not a stranger. A know person can easily be identified as compared to a stranger. So, in our opinion, the identity of the appellant is well established from the evidence of these two witnesses and besides that it is also pertinent that the victim immediately raised the alarm, in which he stated that Dhanjee has thrusted Gupti in his abdomen. Panna (P. W. 3) is the elder brother of the deceased Laljee. Some land was allotted to his elder brother Hurji and the accused used to say his elder brother Hurjee that he will not permit him to cultivate that land. Dhanjee had filed a complaint against Hurjee, Laljee him-self, and his younger brother Nandu. He was attracted to the scene of occurrence on hearing alarm of Laljee that Dhanjee had given a blow to him and he along with Vijay Singh, Nandu and Hurjee reached the place of incident and at that time the victim told them that Dhanjee had thrusted Gupti. This witness has also stated that his father had beat Dhanjee some time before the occurrence on account of dispute relating to land. Vijay Singh (P. W. 4.) and also the testimony of Panna (P. W. 3) to some extent, corroborates his version. Vijay Singh, of course, has not corroborated the exhortation part stated by Panna and Vijay Singh has simply stated that he had heard the cries of Laljee that the enemy had given a blow to him, but he has further stated that when he reached near the victim, the victim was in his senses and the victim revealed to him as to the other persons that there was an enmity with Dhanjee and Dhanjee had thrusted Gupti A question was also put to Vijay Singh in cross-examination regarding darkness and the witness replied that the darkness was such that the man could be seen from the distance of five steps. The evidence of these witnesses relating to what the deceased stated to them appears to be truthful, as the victim was in senses and it was natural for him to have revealed the incident to those, who were attracted to the scene of incident, Besides the above evidence, as already stated above, there are written dying declarations of the deceased in the form of F. I. R. (Ex. P/2), in the form of statement recorded by Dr. Kanhaiya Lal Gandhi & in the form of statement recorded by the investigation officer during the investigation. The S. H. O, has proved the report Ex P/2 as well as the statement Ex. P/13 recorded u/s. 161, Cr. P. C. , & Dr. Kanhaiya Lal Gandhi has proved the statement Ex. P/4. Ex. P/2 is further proved by Vijay Singh, as the report was read over to him, on which the witness stated that it was report Ex. P/2. which was lodged by the deceased Laljee. In all the three dying declarations, the deceased has given consistent version of the whole story as to how he happened to visit the house of Ratna at about 8. 30, p. m. , and as to how he was dealt with a Gupti blow by the accused, when he was returning from the house of Ratna. Virtually no cross examination has been directed in order to discredit the three recorded dying declarations. The oral dying declaration made before the witnesses gets ample corroboration from the written dying declarations. The circumstantial evidence of recovery of Gupti on the information and at the instance of the accused, which has been found stained with human blood, is a further corroborative piece of evidence to con-nect the accused with the commission of the offence. In our opinion, there is overwhelming, clear, cogent, convincing and credible evidence on record to prove that the author of the injury on the person of the deceased Laljee was the accused appellant Dhanjee.
(3.) THE main and principal controversy in the case is as to what offence is made out against the accused ? It is to be seen as to whether the appellant could be convicted of the offence under Sec. 302, I. P. C. and whether the act of the accused is covered under clause (2) and clause (3) of Sec. 300, I. P. C. as has been found by the learned Sessions Judge. On behalf of the appellant it is urged that the genesis of the occurrence has not come on record Under what circumstances the occurrence took place, is not known and beside that no intention can be attributed to the appellant to cause the death of Laljee inasmuch as the appellant did not repeat any blow. Had he intended to cause the death of the deceased, the natural conduct of the appellant would have been to repeat the blow with dagger leaving no chance of survival of the victim. It was urged that at the most the appellant can be attributed the knowledge that his act in thrusting the Gupti blow in the abdomen, is likely to cause the death and he at the most can be held guilty of the offence under Sec. 304, Part II, I. P. C It is further submitted on behalf of the appellant that it does not appear that the appellant ever intended to inflict a particular injury, which has actually been sustained by the victim. THE thrust of the Gupti might have accidently hit the abdomen. So the act of the accused would neither fall under clause (2) nor under clause (3) of S. 300, I. P. C. It was also pointed out that on court question as well as further cross-examination of Dr. Kanhaiya Lal Gandhi it has come in his evidence that the injury on the person of the victim, was of such a nature that death was the likely result and was not of such a nature that the death must be the result in all probabilities. Even if the operation would not have been performed, in the natural course the perforation of the intestines might have filled up. THE dimension of the perforation was only 1/4". In further cross-examination he stated that even after the development of peritonitis there where chances of surviving of the patient. It is emphasized that even according to the medical opinion the death was only the likely result and not probable result and there could be chance of survival even after development of peritonitis and perforation could be healed in the natural course looking to the dimension of the perforation in the intestines. THE learned counsel for the appellant, in support of his contention, placed reliance on Jawahar Lal v. State of Punjab (1 ). We have given our serious & anxious consideration to the above submissions, made on behalf of the appellant. We have given complete description of the injury as found externally as well as effect found internally in the narration of facts. The injury was through and through. The Gupti after piercing the abdomen come out 2" right to the anal opening on the other side. It had perforated not only peritonium, but small intestines (ileum) as well as the posterior wall of the abdominal cavity. It may be stated that the intestines is the vital organ and Dr. Kanhaiya Lal Gandhi in his examination-in-chief has categorically opined that this injury in the ordinary course of nature was sufficient to cause death. It is true that on court question he has also stated that death was the likely result of the injury and that the injury was not of such a nature that in all probabilities the death was inevitable. It is also pertinent to note that as a result of injury, the injured developed generalised peritonitis and paralyticilous. In our opinion, this development is the immediate cause of the injury. It appears that in the court question the Doctor stated keeping in view as to whether the death is inevitable and in that context he observed that it was not inevitable and it was the likely result and it appears that sufficient attention has not been paid in correctly appreciating the distinction between the expres-sion"injury likely to cause death' and the "injury sufficient in the ordinary course of nature to cause death''. A stab wound through and through on the vital organ like intestines, carries greater degree of probability to cause death and such an injury can be described and found to be an injury which is sufficient in the ordinary course of nature to cause death. It may be possible that if more scientific, careful and proper treatment would have been given, the victim would have survived. But we have to see to the nature of the injury itself and its consequences. We may examine the question as to whether the assailant Dhanjee intended to inflict this very injury, which has been sustained by the victim or intended to inflict such bodily injury, which he know that it is likely to cause death. The relations between the accused and the victim were inimical and strained. The victim was availed unaware at a time soon after his coming out of the house of Ratna and infront of|the house of the accused. He availed the victim with a lethal weapon like Gupti. The description of the Gupti is given by the investigating officer. In the seizure memo of the Gupti (Ex. P/8 ). The total length of the Gupti is 2' and the blade part of it is 1-1/2 'and the handle part is of 1/2'. It had bent at two places on his blade. With such a long blade of Gupti and with such a force it was made use of that it penetrate through and through. Normal user of the Gupti is that it is thrusted in the abdomen and that way it can be said that the Gupti knows the part of the body to be hit. When the victim was availed unawares and when the Gupti was thrusted on the middle part of the body, that is abdomen, then it can be found that the appellant actually intended to cause the injury, which is sustained by the victim or in any case the appellant intended to cause such bodily injury; which he knew that it is likely to cause death. It is significant to note that the incident is not the result of any trifling matter and the occurrence has not taken place at the spur of the moment. So it cannot be said that the appellant simply know the likely result of his act. Rather it can be positively found that the accused intended to achieve a particular object and acted accordingly. The exhortation assigned by the victim to the appellant is also indicative of the intention of the assailant. The victim was exhorted to be his enemy and after making such an exhortation the Gupti was trusted. ;