Dr. B.S Chauhan, J.— Leave granted. This appeal has been preferred against the judgment and order dated 25-8-2009 passed in Criminal Appeal No. 242 of 2004 by the High Court of Judicature at Bombay, Nagpur Bench, affirming the judgment and order dated 16-3-2004 passed by the IInd Additional Sessions Judge, Nagpur, in Sessions Trial No. 366 of 2003 convicting the appellant under Section 302 of the Penal Code, 1860 (hereinafter called “IPC”) and awarding the sentence of life imprisonment and, in addition thereto a fine of Rs. 1000 had also been imposed and in default of payment to undergo further rigorous imprisonment for the period of one year.
2. The facts and circumstances giving rise to this appeal are that the appellant's sister, Sandhya had a love affair with Prashant (deceased) which continued for 2-3 years. The appellant was fully aware of the said affair and expressed his displeasure, having had altercations with Prashant (deceased) several times. On 30-4-2003, the appellant saw Prashant (deceased) and his sister Sandhya chatting with each other at about 9.15 p.m at a short distance from his house. He assaulted Prashant (deceased) with the knife thrice and ran away from the spot. The appellant's sister Sandhya (PW 6) called the police jeep passing through the road. The police shifted Prashant, injured, to the hospital and while going to the hospital Prashant made a statement to PSI Bhaurao Meshram (PW 7) which was treated to be an FIR under Section 307 IPC. As subsequently, Prashant died, the FIR was converted to one under Section 302 IPC.
3. Prashant made two dying declarations (Exts. 20 and 26), one to PSI Bhaurao Meshram (PW 7) on 30-4-2003 and another to Mr Prakash, Special Judicial Magistrate (PW 3) on 1-5-2003 to the effect that the appellant had caused knife injuries to him. After conclusion of the investigation, charge-sheet was filed against the appellant under Section 302 IPC. In support of the case, the prosecution examined several witnesses, however, the eyewitnesses including Sandhya (PW 6) did not support the case of the prosecution and they were declared hostile.
4. The trial court after considering the evidence on record and the arguments made by the learned counsel for prosecution as well as the defence, convicted the appellant under Section 302 IPC vide judgment and order dated 16-3-2004 awarding the life imprisonment and a fine of Rs. 1000 and in default of payment to undergo further rigorous imprisonment for the period of one year. Being aggrieved, the appellant preferred Criminal Appeal No. 242 of 2004 which has been dismissed vide impugned judgment and order dated 25-8-2009. Hence, this appeal.
5. Shri Gaurav Agrawal, learned counsel appearing for the appellant has made large number of submissions regarding the veracity of the evidence on record; pointed out contradictions in the two dying declarations; prosecution case was not supported by any of the eyewitnesses including Sandhya (PW 6) who had called the police jeep which had taken Prashant (deceased) to the hospital; and the panchnama witnesses of the recovery of knife also did not support the case of the prosecution. However, realising the fact that there have been concurrent findings of fact by the two courts below, wherein after considering the contentions of the defence in detail the courts have recorded the finding that there was no material contradiction in both the dying declarations and the conviction could be based solely on the said dying declarations, he restricted his case only to the nature of offence. It has been submitted by Mr Agrawal that as the act of the appellant had not been premeditated and it all happened because of sudden provocation, conviction could be only under Section 304, Part I IPC and not under Section 302 IPC.
6. Mr Shankar Chillarge, learned counsel appearing for the State has submitted that considering the gravity of injuries, no interference is required with the impugned judgment by this Court. The appellant has rightly been convicted under Section 302 IPC. The appeal lacks merit and is liable to be dismissed.
7. We have considered the rival submissions made by the learned counsel for the parties and perused the record. The admitted facts, in the case, have been that the love affair of Sandhya, sister of the appellant, continued with Prashant (deceased) for 2-3 years. The appellant did not like the relationship and had altercations with Prashant (deceased) several times. On seeing both of them together at an odd hour i.e 9.15 p.m on 30-4-2003, he suddenly assaulted Prashant with knife and caused stab injuries. Later on, Prashant (deceased) succumbed to the said injuries and died on 2-5-2003.
8. The following injuries were found on his body as per the post-mortem report:
(i) Stitched wound over left side of the chest 9th intercostal space in posterior auxiliary line of size 1 cm × 0.5 cm, angles and margins clear cut cavity-deep.
(ii) Continued abrasion left shoulder, anterior aspect 3 cm × 0.5 cm, reddish.
(iii) Grazed abrasion over left arm, anterior aspect 4 cm × 3 cm, reddish brown.
(iv) Contused abrasion over dorsum of left hand, 3 cm × 2 cm, reddish brown.
(v) Stab wound in the mid of right thigh medial aspect 1.5 cm × 0.5 cm × muscle-deep, angles and margins clean.
(vi) Stab wound over right thigh, lateral aspect in its middle 4.5 cm × 1.5 cm, muscle-deep, angles and margins clear cut.
9. Doctor Amit Kumar (PW 1) found the following internal injuries:
(i) Internal injuries to thorax, cut injury to the parietal pleura corresponding to Injury 1.
(ii) Internal injury to diaphragm, cut injury through and through corresponding to Injury 1.
(iii) Peritoneum cut injury to peritoneum corresponding to Injury 1.
(iv) Cut injury to left gastric artery, cut injury to outer layer of stomach, cut injury to peritoneum corresponding to Injury 1.
10. Cause of death was opined to be haemorrhagic shock due to stab injury. In the opinion of the doctor, Injury 1 was of grave nature and proved to be fatal. Injuries 2, 3 and 4 were simple injuries. Injuries 5 and 6 did not cause any internal damage.
11. In both the dying declarations made by Prashant (deceased) the contradiction had been regarding place of injuries and nothing else, which has been held by both the courts below to be immaterial. What is material in both the dying declarations is that on seeing Prashant, deceased and Sandhya together, the appellant got annoyed and immediately took out the knife which he had with him and gave three blows on the body of the deceased.
12. It is evident from the medical report that the appellant has not given the knife-blow with full force. Otherwise, the depth of Injury 1 would have been more than just “cavity-deep”. The fact that the appellant stabbed the deceased twice in the thigh and only once in the chest is indicative of a lack of intention to cause death. Had the appellant intended to kill the deceased, it is unlikely that he would flee from the scene without having inflicted more injuries on the deceased.
13. The judgment cited by the learned counsel for the State, Pulicherla Nagaraju v. State of A.P (2006) 11 SCC 444, AIR 2006 SC 3010, is quite distinguishable from the present case as in that case the knife-blow that caused death was given with full force and the single injury was found to be 12 cm deep. Even in that case the law has been laid down as under:
“29. … The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention.”
This Court has reiterated the same view in Sridhar Bhuyan v. State of Orissa (2004) 11 SCC 395, AIR 2004 SC 4100 and Gali Venkataiah v. State of A.P (2007) 14 SCC 475, AIR 2008 SC 462
14. It is not the case even in any of the dying declarations that the appellant had premeditated or preplanned his actions or was having any information prior to the incident that the deceased would be found with his sister Sandhya at the place of occurrence. Their meeting might have been taken by the appellant as temerity. Therefore, it is a clear-cut case of loss of self-control and in the heat of passion, the appellant caused injuries to Prashant (deceased). By no means, can it be held to be a case of premeditation.
15. The appellant did not cause all the injuries on the vital parts of the body. Nor the appellant caused the fatal Injury 1 with full force, otherwise the said injury could have been very deep. On examining the weapon, Dr. Amit Kumar (PW 1) opined that Injuries 1, 2 and 3 could be caused by the handle of the knife. Death of Prashant (deceased) was not instantaneous, rather he died on the third day of the incident. The appellant has not taken any undue advantage or acted in a cruel or in an unusual manner. Undoubtedly, Injury 1 had been caused on the vital part of the body of the deceased but it must also be borne in mind that when a person loses his sense he may act violently and that by itself may not be a ground to be considered against him while determining the nature of the offence.
16. Each case is to be considered on its own facts, however, taking a holistic view of the matter. In such a case, the entire attending circumstances must be taken into consideration in order to find out the nature of the actual offence committed. (See Kailash v. State of M.P (2006) 11 SCC 420 and Karuppusamy v. State of T.N (2006) 11 SCC 459)
17. Thus, the facts and circumstances of the case require alteration of conviction of the appellant from Section 302 IPC to Section 304 Part I IPC and ends of the justice would be met by awarding ten years' rigorous imprisonment to the appellant. Ordered accordingly. The appeal is disposed of.