SHARMA, J. - (1.) THIS appeal stems from the judgment dated June 2, 2000 of the learned Special Sessions Judge, SC & ST (Prevention of Atroticites) Cases Ajmer rendered in Sessions Case No. 77/1997 whereby the appellant was convicted and sentenced as under:- U/s. 302 IPc To suffer Imprisonment for life U/s. 307 IPc To suffer Rigorous Imprisonment for two years. The sentences were ordered to run concurrently. Co-accused Kalu @ Nirmal was however acquitted of the charge under Sections 302/34 and 307/34 IPC.
(2.) ON May 15, 1997 around 1. 45 PM when Govind Singh (PW. 3) was selling ice-candy, the appellant bought ice candy and when price of ice-candy (Rupee one), was demanded, the appellant took out knife and stabbed it on the left side of the chest of Govind Singh. In the meanwhile Govind Singh's brother Lalit Kumar (now deceased) when made attempt to save Govind Singh, the appellant inflicted knife blow on the chest of Lalit Kumar, as a result of which he fell down. Lalit Kumar while taken to the Hospital, died on the way. Injured Govind Singh was admitted to the Hospital. Dinesh Kumar Bohra, Investigating Officer, on receiving information of the incident of stabbing, reached at the J. L. N. Hospital and recorded statement of Govind Singh. ON the basis of Parcha Bayan of Govind Singh (Ex. P-1) case under sections 302 and 307 IPC was registered and investigation commenced. Injuries sustained by Govind Singh were examined, dead body of Lalit Kumar was subjected to autopsy, statements of witnesses were recorded, appellant and co-accused Kalu @ Nirmal were arrested, knife allegedly used in commission of offence got recovered at the instance of the appellant and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned trial Judge. Charges under Sections 302 and 307 IPC were framed against the appellant, who denied the charges and claimed trial. The prosecution in support of its case produced as many as nine witnesses. In their explanation under Section 313 Cr. P. C. , the appellant claimed innocence. No witness in defence was however examined. Learned Trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above. We have pondered over the submissions of learned counsel for the appellant and learned Public Prosecutor and with their assistance weighed the material on record. Dr. Laxmi Narain Singhaksha (PW. 8) performed autopsy on the dead body of Lalit and as per post mortem report (Ex. P-8) there was Stab wound 3 x 1. 5cm x ? on front of left side of chest 1. 00 cms on the left nipple and 6. 5 cm lateral to medial place, on the left intercostal space, place obliquely medial angle of the wound is point and acute while the lateral angle obture with thin abrasion at its. Dissection: On dissection of the abdominal cavity. The muscles and subcutaneous lies underneath the external wound are and stained with blood. There is a cut of 4. 5 x 1cms in size, oblique placed in the IV intercostal space, the intercostal muscles are cut through & through which the thorasic cavity expend. There is chip fracture (cut) of the border of the 4th rib, 2. 5cms in size lateral to sterno costal juncture. There is cut in the parietal pleura in space. The left lung is collapsed & pleural cavity is filled 1. 2 foul & clotted blood. There is a cut, 2 x 1cms in size on medial free border of the left lung lob. The wound is through & through penetrating the lung tissue with big sized cut on the inner surface of it left upper lob. Visceral pleura is also cut. There is a cut 1 x 5cms in the covering of the ascending oorta, just prian to arch of oorta. The tunica of the oorta are stained with blood. There is a cut of 5 x 2cms in size on arch of oorta anterior surface near the branching of bracho caphalec trunk. The wound is perforating actric wall. The direction of the wound from its entry at left side chest wall to its termination at oorta is upward & medial and is 7. 00 cms in length. The track was through and through stained with blood. Cause of death was shock due to excessive bleeding from left lung and the oorta caused by sharp weapon, freshly before death. The injury was ante mortem in nature. The injury was sufficient to cause death in ordinary course of nature. Dr. Laxmi Narain Singhaksha also examined Govind Singh (PW. 3) who as per Medical Injury Report (Ex. P-6) sustained stab wound 2 x 1cm x ? on left side of chest almost vertical 7. 5cms. Outward and downward to the left nipple. As per X-ray report (Ex. P-7) no bony injury was seen and it was stated that opinion about nature of injury could be expressed after reading surgeon notes. Dr. K. K. Dangayach (PW. 7) was posted as Surgeon at J. L. N. Hospital, operated upon the injury and as per Surgeon Notes (Ex. P-5) there was 1/2cm (with) size, muscle deep stab wound present on 5th Lt intercostal space on ant axillary line, from which oozing was seen. This wound was clean by savlon and normal saline and stitches were applied with plain thread, interrupted in casualty and clean and dress the wound after proper hemostats. Dr. Laxmi Narain Singhaksha after examining operation notes opined that injury was simple in nature. The fact that appellant gave a blow with a knife to deceased Lalit which landed on the left side of his chest and this injury resulted in death of Lalit is not open to dispute and not questioned before us. Learned counsel for the appellant urged that having regard to the genesis of the occurrence and the surrounding circumstances and the fact that one blow with a knife was given which happened to land on the chest, it cannot be said with reasonable certainty that appellant committed murder of deceased Lalit or appellant intended to cause the particular injury and the injury intended to be inflicted was sufficient in the ordinary course of nature to cause death. In such a situation the appellant can be held guilty of committing an offence under section 304 Part II of IPC. Reliance is placed on Tholan vs. State of Tamil Nadu (1), Mochi Raju vs. State of Gujrat (2), K. Ramkrishnan Unnithan vs. State of Kerala (3), and Yudhvir vs. State of Haryana
(3.) KEEPING in view the submissions, it is necessary to recapitulate the genesis in which the incident took place and the surrounding circumstances. Govind Singh, a petty ice-candy vendor, used to sell ice- candies on a Thela. On the date of incident the appellant came over there and asked for round shape ice-candy. After appellant consumed ice-candy, Govind Singh demanded price of ice-candy but the appellant refused to make payment and started abusing and gave a fist blow. Govind Singh when repeatedly demanded rupee one, the appellant took the knife out of his pocket and inflicted knife blow on the left side of the chest of Govind Singh. Hearing hue and cry when Lalit, the brother of Govind Singh arrived and made attempt to save Govind Singh appellant gave knife blow on the left side of the chest of Lalit as a result of which he fell down and died on the way to the Hospital. This is the version of the prosecution as to the origin of the occurrence. The question that requires consideration is-could the appellant be said to have committed murder? In other words, whether Part I or Part III of section 300 IPC, would be attracted in the facts of this case. ;