SHARMA, J. - (1.) THE appellant was placed on trial before the learned Special Judge (Sati Nivaran) and Additional Sessions Judge, Jaipur City, Jaipur in Sessions Case No. 3/1998 for having committed murder of Stifan Loyal. Learned Judge vide judgment dated August 10, 1999 convicted and sentenced the appellant for the offence under Section 302 IPC to suffer Imprisonment for life and fine of Rs. 1000/- in default to further suffer Rigorous Imprisonment for three months.
(2.) AS per prosecution story the informant Stenli Moris (PW. 10) submitted a written report to Rajendra Singh, SHO Police Station Vidhayak Puri, Jaipur City on October 27, 1997 at SMS Hospital, Jaipur with the averments that on the said date at 7. 30 PM while his wife Usha Lal was coming to her house the appellant hurled abuses. On being informed by Usha Lal, the informant went to the house of appellant and demanded explanation for his unruly conduct. The appellant became angry and had scuffle with the informant. In the meantime Vijay, Pradeep, Bhanwar and his brother in law Stifan Loyal (now deceased) came over there to intervene. The appellant then threatened them, went inside the house, came back with knife and inflicted knife-blow on the chest of Stifan Loyal, who as a result of which fell down and was taken to the hospital, where he died after some time. On the basis of the said written report a case under section 302 IPC was registered and investigation commenced. On completion of investigation charge sheet was filed and in due course the case came up for trial before the learned Special Judge (Sati Nivaran) and Additional Sessions Judge, Jaipur City, Jaipur. Charges under Sections 302 and 504 IPC were framed against the appellant, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 18 witnesses. In the explanation under Sec. 313 Cr. P. C. , the appellant claimed innocence and stated that the deceased along with Pradeep, Bhanwar and 2-3 persons came to his house. All of them were under the influence of liquor and abusing him. In that quarrel the deceased sustained knife-injury. The appellant examined his wife Smt. Elizabeth Benjamin (DW. 1) as defence witness. Learned trial Judge on hearing the final submissions convicted and sentenced the appellant as indicated herein above. It is contended on behalf of the appellant that the appellant was not motivated by any particular desire to kill the deceased and the incident occurred on the spur of moment without there being any intention of causing death or causing such an injury as the appellant know that was likely to cause death. Since motive of appellant to cause the injury on the person of deceased is not established, the case does not travel beyond Section 304 part II IPC. Reliance is placed on Chowa Mandal and Anr. vs. State of Bihar (1), Ramu vs. State of U. P. (2), Mohan Singh vs. The State of Rajasthan (3), and Chhoga Ram vs. State of Rajasthan Per contra, learned Public Prosecutor supported the impugned judgment and urged that from the material on record it can safely be inferred that the appellant had intention to kill the deceased. We have pondered over the rival submissions and scanned the material on record. Part II of Section 304 IPC applies when the act is done with the knowledge that it is likely to cause death but without any intention to cause death. In the case on hand the evidence of informant Stenli Moris (PW. 10) clearly shows that it was the complainant party who first took up cadged against the appellant and started abusing him in front of his house. The informant and appellant had a scuffle and the heat of abusive exchange was followed by infliction of single knife injury. As per injury report (Ex. D-3a) the deceased sustained stab wound on the right side of chest and he was conscious and perspiring. The Post Mortem Report (Ex. P-12) however shows that as many as 10 antemortem injuries were found on the dead body but the prosecution failed to explain as to how injuries came to be magnified and single injury was multiplied by ten. Informant Stenli Moris (PW. 10) made improvements in his testimony at the trial and deposed that the appellant inflicted two blows on the person of the deceased, although in his police statement and the FIR. Stenli Moris categorically stated that the appellant gave only one knife blow. Viscera of the deceased was sent for chemical examination and from the FSL report (Ex. P-18) it was revealed that quantity of 115mg. Ethyle Alcohol was found in 100 ml. Blood.
(3.) FACTS situation that emerges from the material on record may be summarised thus:- (i) The incident took place in front of the house of appellant. (ii) Prior to the incident the appellant and informant had altercations and scuffle. (iii) Single injury with knife on the right side of chest of the deceased has been attributed to the appellant. (iv) It was the informant and the deceased who took up cadged against the appellant and started abusing him. (v) The informant and appellant had scuffle and the heat of abusive exchange was followed by infliction of single knife injury. (vi) There was no enmity between the deceased and appellant prior to the incident. (vii) The deceased at the time of the incident was under the influence of liquor. Having analysed the entire material on record we find that the appellant acted without premeditation and under the heat of passion. Quarrel was suddenly ensued and the appellant did not take undue advantage of the situation since he gave only one blow and did not repeat the same. In the absence of any motive or intention as to his act which killed the deceased, the appellant can only be held guilty for an offence under Section 304 part II IPC. The appellant has been in custody since October 27, 1997 and in our opinion the ends of justice would be met in sentencing the appellant to the period already undergone by him in confinement. For these reasons, we partly allow the appeal and modify the impugned judgment dated August 10, 1999 rendered by Special Judge (Sati Nivaran) and Additional Sessions Judge, Jaipur City and instead of Section 302 IPC, we convict the appellant under section 304 part II IPC and sentence him to the period already undergone by him in confinement. The appellant who is in custody shall be set at liberty forthwith, if not required to be detained in any other case. . ;