Judgment:
Goyal, J.
1. This appeal is directed against the judgment dated 12.1.99 passed by the learned Additional Sessions Judge No. 1, Jaipur City, Jaipur in Sessions Case No. 53/97 whereby the appellant Shri Anwar Hussain was convicted and sentenced under Section 302 IPC to undergo life imprisonment and a fine of Rs. 1,000/-, in default to further undergo three months Simple Imprisonment.
2. Briefly, narrated the prosecution story is that on 13.10.97 at 3 p.m. PW.1 Mohammed Muslim lodged a written report Ex.P.1 at Police Station Ramganj, Jaipur with the averments that his cousin brother Shri Mohammed Aziz (since deceased) was living with him in Balaji Ki Kothi. A sum of Rs. 23,000/- as price of precious stones was due against Anwar Hussain. Mohammed Aziz demanded his money on various occasions and on such demand one month earlier, Anwar Hussain being annoyed threatened to kill -Mohammed Aziz. At about 1.45 p.m. on 13.10.97, Mohammed Aziz alongwith Mohammed Muslim-informant and Manjoor Ali PW.9 was going to the house of Anwar for making a demand of this money. They found Anwar standing over a road divider infront of Madina Hotel. Over making a demand by Mohammed Aziz, Anwar started abusing and on asking not to abuse, he took out a naked Katar from his trouser's pocket and with intent to kill inflicted Katar blow upon the right thigh of Mohammed Aziz. Consequently, Mohammed Aziz fell down. Shri Anwar ran away alongwith the Katar. They brought Mohammed Aziz to S.M.S. Hospital where he was declared dead by the Doctor.
3. A formal FIR Ex.P.2 was registered under Section 302 IPC. After usual investigation, charge-sheet came to be filed in the Court of learned Additional Chief Judicial Magistrate No. 3, Jaipur city Jaipur, who committed this case to the Court of Sessions Judge. In due course charge under Section 302 IPC was framed. The accused pleaded not guilty and claimed trial. The prosecution, examined as many as 14 witnesses. The accused was examined as provided under Section 313 Cr.P.C. He denied entire prosecution evidence. It was stated by him that witnesses Mohammed Muslim, Manjoor Ali and Deen Mohammed were respectively brother, friend and tenant of deceased Shri Mohammed Aziz. One witness Dr. Mohammed Hussain Jafari was examined in defence. Having heard final submissions, learned trial Court convicted and sentenced accused-appellant as above.
4. We have heard learned counsel Smt. Gyanwati, learned Public Prosecutor Shri Rajendra Yadav and scanned the entire evidence. PW.14 Dr. Dharmendra Kumar the then Medical Jurist, S.M.S. Hospital, Jaipur conducted the post-mortem on the dead body of Shri Mohammed Aziz at 5 p.m. on 13.1097 and prepared the post- mortem report Ex.P.14. He noted following ante-mortem injury.
Stab incised wound of size 2 cm x 1 cm x muscle deep present on front of right thigh 14 cm distal to right anterior ileus spine. On dissection it is diverted posteriorly in the thigh muscles. Further dissection showing through and through incision of femoral artery and also femoral vein lying under the artery. The track is diverted further at posteriorly incised another unidentified branch of femoral artery. Still there is bleeding present under the femoral artery wound. Fresh haematoma large amount present in surrounding muscles. The track is ending in muscles posteriorily in the posterior muscles of thigh. The wound track is far from femur bone.
5. In the opinion of doctor cause of death was shock brought as a result of ante-mortem injury as mentioned in the post-mortem report. It was sufficient to cause death in ordinary course of nature. The injury was caused by sharp pointed weapon. This injury was possible by Katar, Article 1, which was shown to the doctor at the time of his statement. In view of this medical evidence, it is well proved that deceased Shri Mohammed Aziz died on account of this injury.
6. Learned trial Court relying upon evidence of three witnesses namely PW.1 Mohammed Muslim, PW.3 Deen Mohammed, and PW.9. Manjoor Ali came to thisconclusion that it was the accused-appellant who inflicted the injury & thereby caused the death of Shri Mohammed Aziz.
7. PW.1 Mohammed Muslim-cousin brother of deceased Mohammed Aziz stated that the deceased Mohammed Aziz and accused Shri Anwar were having transactions of precious stones and a sum of Rs. 23,000/- was due against accused Anwar and on account of non- payment of this amount by accused, enmity existed between them. On 13.10.97 at about 1.30/1.45 p.m., Mohammed Aziz alongwith him and Manzoor Ali was going to the house of Anwar for recovery of the said amount. Anwar was found standing on divider in front of Haveli. On making a demand by Mohammed Aziz, Anwar started abusing him. When asked not to abuse, he took out a Katar from his trouser's pocket and tried to inflict injury upon chest but injury was caused upon the right thigh of Mohammed Aziz and accused Anwar ran away with Katar. They took Mohammed Aziz to S.M.S. Hospital, where he was declared dead by the doctor. He submitted the report, Ex.P.1. He has been cross-examined in detail. It was admitted by him in cross-examination that PW.9 Shri Manjoor Ali was the friend of Mohammed Aziz. It was also stated that some shops were open at the place of occurrence and people were coming and going, but he did not know the name of those persons. So many persons were present there but he did not know their names. PW.9 Shri Manjoor Ali Supported the testimony of PW.1 Shri Mohammed Muslim. He was also cross-examined in detail. In cross-examination, he stated that he and Mohammed Aziz both were doing business of precious stones. It was also stated that 5 or 6 persons came to the place of occurrence but he did not know their names. It was also stated that their blood stained clothes were not taken by the police. Third eye-witness PW.3 Deen Mohammed (not named in FIR Ex.P.1), stated that he was coming upon his scooter from his house and was going to his shop and infront of Madina Hotel, Mohd. Aziz and Anwar were abusing each other and thereafter Anwar Hussain took out a Katar from his pocket and inflicted a blow upon his right thigh and ran away. Mohammed Aziz was taken to hospital by Muslim and Manjoor Ali and he himself went to his shop. In cross-examination, he stated that his shop is near the house of the deceased. He, contrary to his statement in examination-in-chief stated that the deceased was not abusing the accused, rather the accused was abusing him. He also denied this suggestion that since he is the tenant of deceased's uncle, he gave a wrong statement.
8. Regarding the reliability of these three witnesses, it was argued by learned counsel Smt. Gyanwati that all the three witnesses were interested, hence their testimony cannot be relied upon. Admittedly, PW,1 Shri Muslim is the cousin brother of the deceased and PW.9 Shri Manjoor Ali was the friend of deceased and the shop of PW.3 Shri Deen Mohammed is by the side of the house of the deceased. But, only on this count, their testimony cannot be thrown out, though such evidence should be considered with care and caution. It was next argued that PW. 1 Shri Muslim deposed contrary to FIR because there is nothing in the FIR that the accused first tried to inflict Katar blow upon chest. No doubt this fact is not mentioned in the FIR Ex.P.1, but this omission is not so material so as to raise any doubt regarding the testimony of PW.1 Mohammed Muslim. It is categorically mentioned in FIR Ex.P.1 that the accused first started abusing and then took out Katar from his trouser's pocket and inflicted Katar blow upon right thigh of Shri Mohammed Aziz, consequently he fell down. PW.1 Shri Mohammed Muslim clearly stated these facts before the trial court. Thus, there is no material improvement in his statement before the trial court. It was next argued that the prosecution story appears to be improbable that the accused was having a naked katar in his trouser's pocket because there was every possibility of injury being caused to the accused himself. But this argument also does not carry any weight because there was no reason of any injury being caused to accused merely by carrying a katar in the pocket. It was also argued that there were so many shops open at the time and place, of occurrence and so many people were coming and going on the road and according to these eye-witnesses a number of persons assembled there but not a single independent witness was examined and therefore the prosecution evidence was notreliable beyond doubt. Learned Public Prosecutor contended that only on this count, the evidence of eye-witnesses cannot be discarded. PW.13 Shri Gopal Puri, Sub-inspector investigated the case. He stated in cross- examination that he made inquiry from a number of persons but they did not speak about this occurrence. Therefore,' this contention also has no force. Reliance has been placed upon Sukhar v. State of Uttar Pradesh (1). In this case under Section 307 IPC, PW.2 injured was the only eye-witness, though according to the prosecution case, more than 20 persons had gathered next to injured at the place of occurrence and yet none of them was examined and therefore, in view of long standing enmity between the accused and the injured, it was found unsafe to sustain the conviction, but in the case in hand, all the three eye witnesses have given categorical evidence against the accused-appellant that he took out a katar from his pocket and inflicted a blow upon the right thigh of the deceased. It was also argued that the blood stained clothes of Mohammed Muslim and Manjoor All were not taken by the Investigating Officer, hence, their presence at the place of occurrence becomes doubtful. In State of Rajasthan v. Shri Teja Singh and Ors. (2), there was delay in forwarding the FIR to the concerned Magistrate and no satisfactory explanation was given and the testimony of interested eye-witnesses was not corroborated with independent witness and presence of PW.7 was rendered doubtful because blood stained clothes of PW.7 were not recovered. Thus, only on the count of non-recovery of blood stained clothes of PW.7, the conviction was not set-aside. It was also argued that the evidence of recovery of katar was not relied upon by learned Sessions Judge, therefore, there is no corroboration from other evidence. It is correct that the learned trial court has not placed reliance upon evidence of recovery of katar but on this ground the other evidence i.e. eye-account of the occurrence supported by medical evidence cannot be disbelieved in this case.
9. Now it is to be seen as to what offence is made out? Learned counsel contended that only 1 injury was caused and that too on the thigh and thus offence under Section 302 IPC is not made out, at the most offence under Section 304, Part II IPC is made out. Looking to the fact that in the written report Ex.P.1, the appellant Anwar Hussain was attributed only one blow on right thigh of the deceased which proved fatal. According to eye- version of the incident as well as medical evidence only one katar blow was caused upon the right thigh of the deceased which was sufficient to cause death in ordinary course of nature. According to the judgment of Hon'ble Supreme Court in Masumsha Hasanasha Musalman v. State of Maharashtra (3), accused gave only one blow by sharp edged weapon which resulted in death of deceased and other injuries were caused due to scuffle. Therefore, accused was liable to be convicted under Section 304 Part II, IPC and not under Section 302 IPC. We would like to refer one another judgment of K. Rama Krishnan Unnithan v. State of Kerala (4), wherein the accused inflicted single blow by cutting instrument on the abdomen of the deceased after some altercation. The blow proved fatal and the deceased died of solitary blow. It was held by their Lordships of the Supreme Court that it was difficult to hold that the accused gave blow in question either with the intention of causing murder of deceased or with requisite knowledge that the death would otherwise be the inevitable result and under those circumstances the accused was held liable under Part II of Section 304 IPC. In the case in hand, the facts found proved are that the deceased was having a demand of Rs. 23,000/- against the appellant. On the fateful day, the deceased alongwith Mohammed Muslim and Manjoor Ali was going to the house of the appellant for recovery of this amount. There is no evidence to show that deceased would come for his money. The appellant was found standing over a road divider and on making a demand of the said amount, the appellant abused the deceased and after this altercation, the appellant all of a sudden took out a katar from his trouser's pocket and inflicted only one blow and that too on the right thigh of the deceased and ran away. The appellant did not repeat the blow. According to Exception 4 under Section 300 IPC culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel andwithout the offender having taken undue advantage or acted in a cruel or unusual manner. This case comes under Exception 4 and thus the offence made out is under Section 304, Part II, IPC and not under Section 302 IPC.
10. Consequently, we allow the appeal, set aside the conviction and sentence under Section 302 IPC and convert his conviction to Section 304, Part II IPC and we sentence him to seven years rigorous imprisonment. Period of detention undergone by the appellant is to be set off against the sentence of imprisonment as per Section 428 Cr.P.C.