SHARMA, J. - (1.) PASSION of Raju Thapa to consume wine inside the temple, hurt the religious feelings of Vijay Lamba, who thrust knife on the abdomen of Raju Thapa. Vijay Lamba, appellant herein, was put to trial before learned Additional Additional Sessions Judge No. 1, Jaipur City, for having committed murder of Raju Thapa, who vide judgment dated August 27, 2004 convicted and sentenced the appellant to suffer imprisonment for life and fine of Rs. 1000/-, with default stipulation.
(2.) THE incident occurred on October 9, 1997 at 10. 30 PM in Nepali temple situated at Pashupati Nath colony Jaipur when Lala, brother of Vijay Lamba (appellant), asked Raju Thapa (deceased) not to consume liquor in the temple. Raju Thapa in turn, replied that he used to give donation for proper arrangement of temple but pigs were entering the temple. THEreafter Lala and Raju Thapa indulged in hurling abuses at each other and crowd gathered. In the meanwhile Vijay Lamba rushed to spot armed with Khukhri but Dal Bahadur (Pw. 8) disarmed him. Vijay then brought knife and thrust it on the abdomen of Raju Thapa, who was removed to SMS Hospital Jaipur where he died. A written report (Ex. P-4) was handed over by Dal Bahadur at 1 AM on October 10, 1997 to the SHO Police Station Bhatta Basti in the Emergency Ward of the Hospital. On that report case under Sections 302 IPC was registered and investigation commenced. Autopsy on the dead body was performed, necessary memos were drawn, statements of witnesses were recorded, appellant was arrested and on completion of investigation charge sheet was filed against the appellant. In due course the case came up for trial before the learned Additional Sessions Judge No. 1 Jaipur City. Charge under Section 302 IPC was framed against the appellant, who denied the charge and claimed trial. THE prosecution in support of its case examined as many as 9 witnesses. In the explanation under Sec. 313 Cr. P. C. , the appellant claimed innocence. Four witnesses were examined in support of defence. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated above. We have heard rival submissions and weighed the material on record. A look at the postmortem report (Ex. P-15) of deceased Raju Thapa, demonstrates that following antemortem injuries were found on the dead body:- 1. Bruise red 71/2 x 6cm on (R)side face below (R)eye. 2. Abrasion red 1/2 x 1/4 cm with red clotted blood on (R)side face adjacent to injury No. 1. 3. Abraded bruise 21/2 x 2cm with red clotted blood latral to (R)angle of mouth. 4. Abrasion red 1/2 x 1/2 cm on (L) lower lip 5. Abrasion multiple four in number 1 x 1/2 to 1/4 x 1/4 cm with red clotted blood placed over (L)side neck and in between (L) shoulder and neck. 6. Lacerated wound 11/2 x 1/2 x MD on (R) occipital region of head. 7. Incised stab wound 21/2 x 1 x abdominal cavity deep obliquely placed on (L)side front of abdomen 21/2 cm (L) lateral to mid line stab wound relation upto the (L) side of naval process of 3rd lumber membranes through cutting of shealt, muscles, penitoma and wall of storish at pyboric part of size 1 x 1/2 x durogin & tearing and end wound of size 1/4 x 1/6 cm & through & through of abdominal aorta with surrounding large amount alend red hypesite partly clotted amount of hemopotion is about 1500 c. In the opinion of Dr. M. L. Mawat (Pw. 6) the cause of death was shock due to hemorrhage brought about as a result of injuries. The prosecution case is founded on the testimony of informant Dal Bahadur (Pw. 8) and Bal Kumar (Pw. 9), who were examined as eye witnesses of the occurrence. Dal Bahadur (Pw. 8) in his deposition stated that he used to work as Langri (Cook) in police station Manak Chauk. Bal Kumar, Madan Kumar and Raju Thapa were also working with him. On October 9, 1997 around 10. 30 PM he along with Bal Kumar, Madan Kumar, Raju Thapa and Chet Bahadur had gone to the temple at Pashupati Nath colony for worship. Lala, brother of Vjay met them there. Lala asked Raju Thapa not to consume liquor in the temple. Raju Thapa replied that liquor is presented to God, thereupon hot words were exchanged between Lala and Raju and Lala started beating Raju. He (Dal Bahadur) and others tried to intervene. In the meanwhile Vijay Lamba came armed with Khukhri but he (Dal Bahadur) disarmed him and threw the weapon. Vijay then brought knife and thrust it on the abdomen of Raju Thapa, intestines came out and blood started oozing. Raju was removed to hospital where he died. Testimony of Dal Bahadur gets corroboration from the evidence of Bal Kumar (Pw. 9), who stated that on October 9, 1997 around 10. 30 PM while he along with Dal Bahadur, Raju Thapa and Madan Kumar was standing on the ground of temple, Lala, brother of Vjay came over there. Raju had a pouch of liquor. Lala then asked Raju not to consume liquor in side the temple. Raju Thapa replied that liquor is presented to God. ******* Hot words were exchanged between Lala and Raju. Friends of Lala, who were standing nearby, gave beating to Raju. In the meanwhile Vijay came armed with Khukhri but he and Dal Bahadur disarmed him (Vijay) and threw the weapon. Vijay then brought knife and thrust it on the abdomen of Raju Thapa. Raju fell down, police reached on the spot and removed Raju to hospital where he died. Fact situation that emerges from the material on record may be summarized as under:- (i) Raju Thapa (deceased) had gone to the temple with pouch of liquor. (ii) He was prevented by Lala, brother of Vijay Lamba (appellant), from consuming liquor inside the temple, but he insisted that he would consume liquor in the temple itself, since wine is offered to God. (iii) Raju Thapa was given beating by the crowd. In the meanwhile, Vijay Lamba came armed with knife and thrust it on the abdomen of Raju Thapa. (iv) There was no enmity between Vijay Lamba and Raju Thapa prior to the incident and the occurrence was a sudden affair.
(3.) CHAPTER XVI of the Indian Penal Code, consisting of 80 Sections deals with all offences involving personal injury. The scheme of the CHAPTER appears to be to take capital crime first, then other cognate offences, imperilling life and then minor offences such as hurt, assault and the like offences falling into the category of personal injuries. The CHAPTER classifies them into five principal heads according to the act and effect. These are:- (i) Voluntary culpable homicide; (ii) Murder; (iii) Grievous hurt; (iv) hurt; and (v) assault. The difference between (i) and (ii) is the subject of Section 299 and 300. After laying down the cases which the presence of certain ingredients aggravate culpable homicide to murder Section 300 IPC, next turns to certain exceptional cases in which the offence is mitigated by certain circumstances, which, though not offering a complete vindication of the conduct of the accused, are yet such as the dictates of humanity and reason prescribed as fit grounds of mitigation. Shortly stated these circumstances are those arising out of:- (i) Provocation; (ii) Private Defence; (iii) Exercise of legal powers; (iv) Absence of premeditation; (v) Consent. The defence of provocation may arise where a person does intend to kill or inflict grievous bodily harm but his intention to do so arises from sudden passion involving loss of self control by reason of provocation. Before an accused can draw any benefit from Exception I to Section 300 IPC, there should be some circumstance to indicate that the act of the accused was done in the same transaction in which he received the grave and sudden provocation. K. M. Nanavati vs. State of Maharashtra (AIR 1962 SC 695) is the leading case wherein the Apex Court summarized the law of this country on the subject in the following words:-      " The Indian law, relevant to the present enquiry may be stated thus:- (i) The test of grave and sudden provocation is whether a reasonable man, belonging to the same class of society as the accused placed in the situation in which the accused was placed would be so provoked as to lose his self control. (ii) In India, the words and gestures may also, under certain circumstances, cause grave and sudden provocation, to an accused so as to bring his act within the first exception to Section 300 IPC. (iii) The mental background created by the previous act of victim may be taken into consideration in ascertaining whether the subsequent act caused a grave and sudden provocation for committing the offence. (iv) The fatal blow should be clearly traced to influence of passion arising from the provocation and not alter the passion had cooled down by lapse of time or otherwise giving room and scope of premeditation and calculation. " ;