Judgment:
D.N. Chowdhury, J.
1. The Appeal is directed against the judgment dated 21-5-1994 passed by the learned Additional Sessions Judge, Dibrugarh conviction the accused/appellant under Section 302, IPC and sentencing him to undergo life imprisonment. On an F.I.R. dated 3-1-1988 Jaipur Police Station Case No. 3/88 was registered under Section 302, IPC. The above information was lodged by the PW 2, Shri Dina Bora before the Officer in Charge Joypore Police Station informing that his younger brother Pradhan Bora was killed by Ripunjoy Borgohain by stabbing him in the abdomen with a dagger in front of Ashok Hotel near Moran Tiniali. After completion of the investigation the Police submitted charge sheet under Section 302, IPC. On committal the learned trial Court charged the accused/appellant under Section 302, IPC. PW 1 is the Doctor who made the autopsy of the deceased and on examination he found the following injuries :
Injury No. 1:- One stab injury on the right upper abdominal wall of size 3 cm x 0.57 cm wedge sharp, clean cut margin, depth 6 c.m.
Thorax:- All healthy, Both chamber of heart empty.
Abdomen :- Injury described under injury No. 1 empty.
Liver :- One puncture wound in the right lobe of the liver of 3 cm x 0.5 cm size and 3 cm depth and haemorrhage from it leading to deposition of blood in the abdominal cavity....
The Doctor opined that the injury was homicidal in nature which was caused by sharp pointed weapon. The injury described by the Doctor as injury No. 1 was connected injury.
2. P. W. 2 is the informant who did not see the occurrence and he was only reported by Ananda Gogoi about the occurrence. Mr. Ananda Gogoi was examined as PW 3 who stated that he along with Tarun Kunwar (PW 6) were having tea at Ashok Hotel, Naharkatia. Pradeep (deceased) came in a motor cycle and entered the Ashok Hotel, and took a glass of water inside the said Hotel. Pradeep then talked a few minutes with the witness and then he started to go out of the Hotel. Accused at the moment came towards the Hotel and stabbed Pradeep with a dagger and left the scene immediately. According to this witness when the accused, came towards the. Ashok Hotel Pradeep returned back a few steps to the Hotel and the occurrence took place inside the Hotel. The witness deposed that Accused had stabbed Pradeep with dagger on his abdomen and ran away from the said Hotel thereafter. The deceased put his one hand in the wound and with the other hand gave the witness the key of his Motor Cycle asking him to inform at his house, witness accordingly informed deceased's brother. Kanak (PW 4) took Pradeep to thana by a rickshaw, Witness came to Pradeep's house with the Motor bicycle and informed Pradeep's brother about the incident. On examination the witness stated that after talking with the witness the deceased went about 10 feet towards the door of the Hotel and then accused came and stabbed Pradeep with a dagger and then ran away from the place of occurrence. The witness also stated that he saw the accused, when he entered the Hotel. It only took a few seconds for the accused to reach Pradeep and stabbed him. He also saw the dagger which was stained with blood in the hand's of the accused.
3. PW 4, Sri Kanak Gogoi stated that he was taking tea in the restaurant in Naharkatia Town on the date of occurrence. He also saw that a commotion that took place at the door of the said restaurant and there was a fight between Pradeep and someone. He also saw a wound on the abdomen of Pradeep but did not see the persons who did it. This witness was declared hostile by the prosecution and was cross-examined. On cross-examination the witness stated that he did not see Pradeep Borah near the Cinema Hall and when he entered the hotel he saw Ripunjoy Gohain talking with Pradeep. The witness denied that he made statement before the investigating officer that he saw Pradeep (deceased) talking with Ripunjoy Gohain and that after one minute Ripunjoy took out a knife from inside his shirt and stabbed Pradeep on his stomach and after that Ripunjoy (accused) ran away towards the Moran Road. The witness deposed that he saw Pradeep falling on the ground and brought Pradeep in a rickshaw to the thana and from thana he took Pradeep to Dr. Shankar where Pradeep was given preliminary treatment. From Dr. Shankar's place the witness and others took Pradeep to Duliajan Oil Hospital and after examining Pradeep, Doctor at Duliajan hospital declared Pradeep dead. The accused was cousin brother (son of father's sister), this witness was declared hostile by the prosecution. According to this witness that he saw the occurrence but could not recognise the person who stabbed Pradeep. On enquiry from the Court the witness stated that he was carrying Pradeep in injured condition in a rickshaw to thana and on the way he asked him, who stabbed Pradeep, but Pradeep could not reply and at no stage he told the name of the assailant.
4. PW 5 is Sri Hema Gogoi is the seizure witness on whose presence the wearing cloths of Pradeep (deceased) was seized.
5. PW 6 is Tarun Kunwar who was present at the place of occurrence in the hotel in Naharkatia town where he was taking tea and saw Pradeep was corning to the hotel and took water and after taking water he was going out of the hotel and at the moment he heard noise in front of the Hotel. After hearing noise and shout he came out of the hotel and saw Pradeep in front of the hotel with wound on is stomach which was bleeding and after 2/5 minutes, he saw Kanak Gogoi (PW 4) was coming with a rickshaw and Kanak picked up Pradeep on the rickshaw and took him towards thana. This witness was declared hostile.
6. PW 7, Suresh Rajak who stated on oath that on the date of occurrence i.e. 3/4 years ago he had seen a boy running away after having dropped a dagger behind the grocery shop of one Nandi at Naharkatia. He said that the could not recognise the boy. He knew the accused but the person (accused) who was in the dock was not that boy. This witness was declared hostile.
7. PW 8, Nareswar Gosain who was the investigating officer. As per instruction of the officer in charge of Police he went to Maran Tiniali and found a knife lying in the shoe of Suresh Rajak landi (sic). He seized that knife in presence of witnesses. Ext 4 is the seizure list and Ext. 4 (1) is his signature. He handed over the knife and seizure list to I/O. This witness stated that he did not see blood marks on the handle or any part of the knife or blood mark at the place where the knife had been lying.
8. PW 9 Syed Nekubur Rahman is S.I. who held the inquest. Ext. 3 is the inquest report and Ext. 3(2) is his signature.
9. On consideration of the evidence on record the learned trial Court relying mainly on the testimony of PW 3 convicted the accused under Section 302, IPC. The learned Court also took note of the evidence of PW 4 Sri Kanak Gogoi, PW 6 Sri Tarun Kunwar and found corroboration with these witnesses that occurrence took place at about 1/1.30 p.m. on 3-1-1988 at the Hotel/ Restaurant at Naharkatia Town. The Court also acted upon the evidence of the aforesaid two witnesses in ascertaining that they were in the hotel at the relevant time. The learned Judge also took note of the evidence and considered the evidence of PW 1, Dr. M.N. Gogoi who held that the accused used sharped pointed weapon and caused injuries on the vital parts of the deceased and accordingly the learned trial Court held that the accused intentionally caused the death of the deceased and accordingly fount guilty to the accused and convicted the deceased under Section 302 IPC and sentencing him to undergo life imprisonment. Hence the appeal.
10. Mr. D.C. Mahanta, the learned counsel appearing on behalf of the appellant referred to the evidence of the witnesses and tried to impress upon us for acquittal of the accused on the basis of the material evidence on record.
11. Upon going through the materials evidence on record we are not in a position to come to contrary finding about the involvement of the accused. PW 3 unerringly pointed out that the accused who alone gave the fatal blow on the deceased. The presence of PW 3 at the place of occurrence amply proved by the testimony apart from the PW 4 and PW 6. The occurrence took place in broad day light. The evidence on record did not leave any room to question the involvement or identity of the accused in the commission of the crime.
12. Mr. Mahanta, the learned counsel appearing on behalf of the appellant however pointing to the injuries and other attending circumstances submitted that on the basis of the materials on record the accused could not have been convicted under Section 302 of the IPC. According to Mr. Mahanta, the learned counsel there was only one injury near the abdomen given by a young man. The learned counsel has submitted that only one blow was inflicted on the victim and deceased succumbed to death. Mr. Mahanta pointing out to the injury on the person of the deceased submitted the accused did not have the intention to cause the death of the deceased and therefore the accused can not be held guilty of murder under Section 302, IPC. Mr. Mahanta, the learned counsel in support of his contention referred to the decisions of the Supreme Court reported in AIR 1968 SC 1390 :1968 Cri LJ 1 647), 1995 (Supp) (3) SCC 476 (sic) and AIR 1997 SC 687 : 1997 Cri LJ 831.
13. Mr. J. Singh, the learned Public Prosecutor fairly submitted that the accused was rightly found guilty for causing the death of the deceased, Pradeep. The accused while inflicting the injuries had the necessary knowledge that the injury caused would be sufficient to cause death of the deceased.
14. Culpable homicide and murder both involve causing of death of a human being by another human being. Culpable homicide is genus whereas murder is a species. All murder is culpable homicide but not vice versa. Presence of special mens rea is the distinguishing mark. It consists of four intellectual dispositions mentioned in Section 300 of the IPC (subject to the exceptions indicated). Punishment is to be inflicted proportionate to the gravity of the generic offence. Murder is first degree of culpable homicide cited in Section 300. The second degree of culpable homicide is punishable under the first part of Section 304. The third degree of culpable homicide, in the reduced form is punishable under the second part Section 304. After a trial when the Court finds the causal connection between the act done by the accused and the death, the stage is set for considering to whether the act of the accused amounts to culpable homicide within the meaning of Section 299, when the answer is in affirmative the next exercise is for the consideration of the operation of Section 300 of the IPC. This is the phase at which the Court is to look into the facts to ascertain as to whether the prosecution has succeeded in bringing home the case within the sphere of any of the four clauses mentioned in Section 300, IPC, Culpable homicide is not murder, when the case falls within five executions of Section 300, IPC, Even, when this exceptions indicated above is not pleaded nor prima facie established on the evidence on record to prosecution must still require under the law to bring the case under any of the four clauses of Section 300, IPC to sustain the charge of murder. Even the prosecution fails to discharge in establishing any one of the four clauses of Section 300 I.P.C. the accused can not be convicted on the charge of murder and the case may be one of the culpable homicide not amounting to murder as contained in Section 299 of the IPC. In the case in hand the appellant intended to cause bodily injury on the deceased. Apparently the first part of Clause 3rdly under Section 300, IPC is established but considering the entire evidence on record and attending circumstances it can not be said that the prosecution succeeded in proving that the injury was intended to be inflicted was sufficient in the ordinary course of nature to cause death. As pointed out earlier there was only one blow inflicted on the deceased. No evidence on record did disclose any animosity. It can not be inferred that the appellant caused the death by doing an act with the intention of causing death it can at best be inferred that the act was done with the knowledge that was likely to cause death but without any intention to cause death or to cause such bodily injury as was likely to cause death. However, from the nature of the guilt and attending circumstances, we can not come to the finding that the accused in fact had the necessary intention to cause death. In that view of the matter we are of the view that the accused could not have been convicted under Section 302, IPC and it can only be convicted under Section 304, Pt. II and that the accused is sentence to undergo 7 (seven) years imprisonment from life imprisonment. The appeal is partly allowed and the conviction and sentence is modified to the extent indicated above.