Bennett, J.:— The appellant Sunnu Muduli has been convicted by the Additional Sessions Judge of Koraput Jeypore under section 302 of the Penal Code and sentenced to transportation for life for the murder of one Gulanga Sisa on the 25th of March, 1945. The appellant and all the witnesses are Banda Prajas (hill-tribesmen) who come either from the village of Andrahal or its two hamlets at Jamuguda and Jigidiguda. Jamuguda, where the appellant lived, is one mile from Andrahal, the village of the deceased, and two miles from Jigidiguda.
The case for the prosecution was that on Sunday evening, the 25th of March, 1945, the deceased Gulanga Sisa and Mangla Sisa, son of Guru Sisa (p.w 10) came to a Salap tree on the outskirts of Andrahal and drank Salap there. It appears from the evidence of the Doctor (p.w 3) that Salap is an extremely intoxicating liquor. Mangala Sisa, son of Guru Sisa then went away, and the deceased, thereafter, towards the evening, went in the direction of Jamuguda. On the way he met his wife's brother, another Mangala Sisa, son of Buda Sisa, and together they both came to Jamuguda to the house of yet a third Mangala Sisa (p.w 8), son of Sonia Sisa. The deceased requested Mangala Sisa, son of Sonia Sisa to let him have a she-pig on share system and, with the latter's agreement, he went to get a she-pig and was proceeding back towards Andrahal when he met the appellant. By this time it was nightfall, and the appellant questioned his right to take a pig away from the village at night. The deceased resented the appellant's interference and they quarreled. Each gave the other one or more slaps and then they struggled and fell to the ground. One Guru Muduli (p.w 11) and Mangala Sisa (p.w 9), son of Buda Sisa came up and separated them. The appellant went off to his house and Guru Muduli and Mangala Sisa, son of Buda Sisa took the deceased with them to a jack tree on the road to Andrahal, about 50 yards from the house of one Lachhmi Muduli. Some time later, a cry was heard from the deceased from the direction of Lachhmi Muduli's house to the effect that he had been stabbed by the appellant. Mangala Sisa, son of Guru Sisa (p.w 10) heard the deceased cry and went to him. He found the deceased lying in front of Lachhmi Muduli's house with a bleeding wound in his stomach, from which the intestines were emerging. The appellant was not there, and the deceased told him that the appellant had stabbed him with a knife, because, as the appellant said, he was drinking Salap from his tree. Mangala Sisa, son of Sonia Sisa then went along to the road and called to the deceased's father (p.w 7) who came to the scene of occurrence with his wife the deceased told his father that it was the appellant who had stabbed him with a knife accusing him of having drunk Salap from his tree. The deceased was not removed from the spot, and in the morning a panchayat was held at which the deceased told the panches that it was the appellant who had stabbed him.
The first information was lodged by the deceased's father at 11-30 a.m on the 27th of March, 1945. In that information p.w 7 repeated what his son had told him, but he did not say anything about the previous incident in regard to the she-pig. Instead, he said that the deceased had told him that after having taken Salap with Mangala Sisa, son of Guru Sisa, he had gone to chew tobacco at the house of another uncle, Mangla Sisa of Jamuguda, but, after chewing tobacco there and while he was returning, the appellant called him and asked him why he had drunk Salap from his tree. The deceased said, he denied having done so, and, that, on this, Sunnu Muduli, the appellant, taking hold of the knife came and stabbed him in the stomach and fled away. The Sub-Inspector proceeded to the spot, where he arrived in the afternoon of the 28th of March. He found the dead-body still lying in front of Lachhmi Muduli's house with a gaping wound in the stomach and intestines bulging out. He found that the appellant was not in his house, but after information received he arrested him at Jigidiguda in the house of his uncle, Lachhmi Muduli, at 5 p.m on the 29th of March, 1945. After arrest, he searched the body of the appellant and, in the course of the search, the appellant produced a knife, from his loin. The appellant was taken to the police-station, and on the 2nd of April, 1945, he was sent to a Magistrate to have his confessions recorded. The Magistrate (p.w 1) cautioned him and sent him to the sub-jail. The appellant was again produced before the Magistrate on the 3rd of April, 1945, and again cautioned, and as he still wanted to make a confession, the Magistrate duly recorded it. In that confession the appellant stated—
“On the night of 25th March, 1945, the deceased Gulanga Sisa was taking away the pig of Mangala Sisa. I saw it and asked who it is that is come to take away the pig of Mangla Sisa at night. The deceased Gulanga Sisa got angry and said “Have you become, great that you are giving order”. Laying this he struck me with a slick. Being struck I fell down. After I fell down lie kicked me. I cried out and Guru Muduli came and paid that it was not good to quarrel and took away the deceased Gulanga. Thereafter I came home and was sharpening my knife to cut bamboos. At that time I saw the deceased Gulanga coming from my back. Fearing that he would kill me I got up and stabbed him with my knife in his belly. Having received the stroke lie tell down. Out of fear I fled to the jungle and concealed myself. On Wednesday I went from the jungle to the house of my uncle Lachhmi Muduli at Jigidiguda. The police arrested me in that village. I had told Lachmi Muduli that I had slabbed the deceased.”
In the course of his examination by the Committing Magistrate, the appellant stated—
“About 1½ months ago the deceased Gulanga Sisa came to my house on Sunday night and was taking away a female pig of Margala Sisa. At that time I saw and asked him as to why he was taking away the pig at night. Gulanga Sisa got angry villi me and struck me with stick near the house of Mangla Sisa. At that time Guru Sisa came and separated us. I went away to my house. Gulanga Sisa was drunk I went home and was sharpening my knife to cut bamboos. Exhibit II is my knife. At that time lie came to my back. Seeing him come I became afraid that he would kill me and stabbed Gulanga Sisa at his belly with Exhibit II. Having been struck he fell down. As he fell down I fled away to the jungle to conceal myself. Thereafter on Wednesday I went to the house of p.w 9 Lachhmi Muduli at Jigidigunda. He kept me at his in use for the purpose of making made over to police custody. I informed p.w 9 about having stabbed Gulanga. While he came from my back I saw a knife in the hand of Gulanga. As he was armed will knife I became afraid that he would kill me. I have nothing else to say.”
The appellant was again examined by the learned Additional Sessions. Judge, and he made the following statement—
“The deceased attacked me. He was guilty and I am not guilty. Exhibit II is my knife. I gave it to the Sub-Inspector. I confessed before the Magistrate out of fear of the deceased's relations. I had been to the house of Lachhmi Muduli, but I did not tell him that I stabbed the deceased. I did not state the deceased in fact lie had come to Mangala Sisa's house to take pig by force. I obstructed. Thereupon the deceased slapped me we quarrelled. Guru Muduli separated us. I went to my house and Guru Muduli took the deceased away. Some time after the deceased came from behind and caught hold of my neck and we struggled. I had my knife with me and I cannot say if my knife struck against his stomach or how he received his injury. I have no enmity with the p.w's 7, 8, 10, 14, 15 and 16. I have enmity with p.w 12 (Lachhmi Challan). It is at his instance that all the people speak against me because I am helpless and orphan. My enmity started with him from the pig incident. He sides with the deceased. I got the injuries on my body in course of my struggle with the deceased in font of Lachmi Muduli's house, as I fell down on the ground.”
The injuries referred to, which were found on the person of the appellant, were described by Dr. R.B Samantrai (p.w 3) as being 5 scratches which could not have been self-inflicted and could not have been caused by kicks or blows.
In his appeal from jail to this Court, the appellant has stated:
“Gulungu Sisa and Mangala Sisa the two persons came to the village of the petitioner at 9 P.M on the date of occurrence and they were taking away a from the house of Mangala Sisa of the village of the petitioner. Hearing the noise the petitioner went to the said place and asked them not to make noise, on which the said Gulunga Sisa and Maueala Sisa beat the petitioner. When the petitioner was coming to his house from that place, the said two persons came running and beat the petitioner on the way. The petitioner caught told of Gulanga Sisa and loth fell down on the ground. When they fell down the said Mangala Sisa with the object of killing the petitioner struck him with a knife. The knife did not hit the body of the petitioner but hit the abdomen of Gulanga Sisa and owing to he said injury he let go the petitioner and the petitioner went home. Thereafter a report was made to the police in respect of the aforesaid matter. The police without considering anything arrested the petitioner and sent him for trial. The court on the strength of the false evidence of the said Mangala Sisa and others has sentenced the petitioner to imprisonment for 20 years.”
Now, it is clear that there is a large measure of agreement between the prosecution witnesses and the appellant as to the events on the night of the 25th of March, 1945, up to the point where following the quarrel between the appellant and the deceased over the pig, Guru Muduli (p.w 11) and Mangala Sisa, son of Guru Sisa had separated them and had taken the deceased on to a jack tree on his road home to Andrahal and they all agree that at that time the appellant returned to his own house. It is clear that for some reason or another, which does not appear in evidence, the deceased returned to the village. Some indication of his motive in returning is given in deceased's father's statement in the First Information Report, where he says that his son told him that he was coming to get tobacco from p.w 8 Mangala Sisa, son of Sonia Sisa. That he did come back is, of course, perfectly clear. It would appear from the appellant's own statements both in his confession, before the Committing Magistrate and to the learned Additional Sessions Judge that some time had elapsed, because in all the three statements he says that he went home, that some time elapsed and that he had been sharpening his knife to cut bamboos. P.W 8, Mangala Sisa, son of Sonia Sisa, after describing the pig incident, said—
“After the quarrel was over I sat on my pida. Some time after I heard the voice of the deceased crying out that he was stabbed by the accused”.
Whatever may have been the purpose for which the deceased returned, it seems clear that he did not do so in order to quarrel with the appellant. It appears that he was unarmed, no knife or other weapon was found near his body, and it is significant that in his confession to the Magistrate the appellant made no allegation that the deceased was armed. It is true that for the first time before the Committing Magistrate, and even then it would appear to some extent by way of afterthought, the appellant stated that he had seen a, knife in the hand of the deceased and he became afraid that be would kill him. It is significant that in his statement to the learned Additional Sessions Judge, the appellant omitted any reference whatever to the deceased having been armed with any weapon and, so far as it goes, in his petition from jail, the appellant says that it was Mangala Sisa who had a knife and who stabbed the deceased by mistake. Moreover, if the deceased had been returning to quarrel with the appellant, one would have expected him to go towards the appellant's house and to have encountered him there. In fact, the place of occurrence was in front of Lachhmi Muduli's house, 42 feet away from the appellant's house and on the direct route which the deceased would have taken, going to and from Mangala Sisa's house from and to Andrahal. The fact that the incident occurred here seems to me quite inconsistent with any intention on the part of the deceased to return to Jamuguda for the purpose of quarreling, with the appellant.
So far as the prosecution witnesses are concerned, they state that they heard the cry from the deceased saying that he had been stabbed by the appellant. But p.w 7, the father of the deceased, stated that his son told him that
“he hold me that he was going to Mangala Sisa's house and that the accused met him on the way and stabbed him with the knife saying that he drank his (accused's) Salap”.
and p.w 8 gives a similar account of what the deceased told, his father. If there was an altercation over the drinking of salap, it is much more likely that altercation should have taken place prior to any blow than concurrently therewith, and I think that we must allow in favour of the appellant that there was prior to the stabbing of the deceased by the appellant, a verbal quarrel.
A mere verbal quarrel preceding a stab with a knife would not, ordinarily, raise the question in my mind, as to the applicability of the exception 4 to section 300 of the Penal Code. But our attention has been directed to a recent decision of the High Court at Lahore in Hans Raj Singh v. Emperor, in which it was apparently decided, firstly, that, if one person ‘A’ beats ‘B’ without ‘B’ having beaten ‘A’, it may nevertheless be said to have been a fight, and that it is not necessary that in order that exception 4 to section 300 should apply, that there should have been blows on each side. A word or a gesticulation may be as provocative as a blow. And, secondly, that, a person who gives another a stab in the stomach inflicting a wound measuring 2½″ × 1″ × 4″, cannot be said either to have intended to have caused an injury sufficient in the ordinary course of nature to cause death, or, to know that his act was so imminently dangerous that it must in all probability cause death, or would result in injury likely to cause death. The facts of that case are very similar to the facts of this case, in that there the deceased, who had recently set up a rival shop opposite that of the accused, came over to his rival's shop to buy pakoras. A quarrel ensued and the accused in that case suddenly picked up a knife which was lying handy, and stabbed the deceased in the stomach a wound from which he died. It was nevertheless held, on the grounds I have above stated, that the offence of the accused in that case was not murder, but only culpable homicide.
In my opinion, the proper test of the applicability of exception 4 to section 300 of the Penal Code is whether or not the accused shows, since the onus is on him under section 105 of the Evidence Act, that he acted solely out of the provocation engendered by the heat of a sudden quarrel followed by a sudden fight. One reason for saying that a man has acted out of some motive other than the mutual provocation, is that he has taken undue advantage of his opponent, and that is so obvious that it is made an express condition of the exception. In this case I have given the benefit of the doubt to the accused that there was some verbal quarrel prior to the actual infliction of the blow; but there is no sufficient evidence before us that anything was said in the course of that quarrel which excused the act of the appellant in immediately stabbing his opponent in the stomach. There may be exceptional cases where a word or a gesticulation may be regarded as being, in the particular circumstances of the case, so provocatory as to make it clear that the accused did, in fact, act solely and excusably out of the provocation so engendered. In the nature of things such cases must be rare and, in any event, fall, more appropriately within exception 1 than exception 4 to section 300 of the Penal Code. The ordinary inference, where one person picks up a knife and stabs another in the stomach merely following an exchange of heated words, is that the attacker has acted out of some other motive as well as the provocation that may have been engendered by the verbal altercation. In so far as the first leg of the Lahore decision, above referred to, is concerned, therefore, I do not think that the appellant in this case is entitled to the benefit of the fourth exception to section 300 of the Penal Code. So far as the second leg of that decision is concerned, which is contained in the judgment of Teja Singh, J., who incidentally disagreed with the judgment of his learned brother on the question as to whether one blow given by one person to another can constitute a fight, I am of opinion that, where one person takes up and uses a deadly weapon against a vital part of his opponent's body, he cannot thereafter be heard to say that he did not know that his act was so imminently dangerous that it would in all probability result in an injury likely to cause death. I think that every sane man must in those circumstances be deemed to have that knowledge. I do not think, therefore, that in the circumstances of this case the second leg of the Lahore decision, with which, in any case, I respectfully disagree, can avail the appellant.
Having regard to the appellant's own statements, to the dying declarations of the deceased and to the other circumstances of the case I have no doubt whatever that the learned Additional Sessions Judge was perfectly right in concluding that it was the appellant who stabbed the deceased, and for the reasons I have given, I am of opinion that there are no circumstances sufficient to enable the appellant to avail himself of the fourth exception to section 300 of the Penal Code.
I would, therefore, dismiss the appeal.
Meredith, J.:— I agree and I should also like to express my dissent from the views of the law expressed by Mohammad Sharif, J. and Teja Singh, J., in Hans Raj Singh v. Emperor. The adoption of these views would, in my opinion, be highly dangerous. With regard to exception 4 to section 300 of the Penal Code, in my judgment, the very wording of the provision shows that the word “fight” is used to convey something more than a verbal quarrel. The wording is “in a sudden fight……………upon a sudden quarrel”. This obviously means more than the words “upon a sudden quarrel” would do, if used alone. Nor do I agree that a man who uses a knife to stab an unarmed man in the abdomen, has not taken undue advantage or acted in a cruel or unusual manner. In my opinion, in such circumstances, he has done both.
With regard to the view of Teja Singh, J., I would like to observe that a man must be presumed to intend the natural and probable consequences of his act. A man who inflicts a large injury in the abdomen of another, penetrating to the bowels, one of the most vital parts of the body, cannot, in my judgment, be heard, to say that he has not done this
“with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused.”
(Section 300, 2ndly.), or,
“with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death”.
(Section 300, 3rdly.).
I also would dismiss the appeal.
Appeal dismissed.
S.H