Vijay Masih vs State of U.T.Chandigarh

H.S. Brar, J.

Appellantaccused Vijay Mashi son of Biru Nath, resident of House No. 283, Village Hallo Majra, was charged under Section 302 IPC for committing the murder of his wife Mariam. The trial Court vide its judgment and order dated 12.8.1994 found the accused guilty of an offence under Section 302 IPC and awarded him sentence of imprisonment for life and to pay a fine of Rs. 1,000/ and in default of payment of fine to undergo rigorous imprisonment for a period of six moths. Aggrieved from the judgment the present appeal has been preferred by the accused.

The facts necessary for disposal of this appeal are that having received information at police station, Sector 31, Chandigarh from control room on wireless that a quarrel had taken place at village Hallo Majra, SI Maghi Ram, SI Hardev Singh and ASI Chander Singh alongwith two constables had proceeded to the place of occurrence and there they recorded the statement of Balbir Singh son of Ajmer Singh PW.9.

The version so given by Balbir Singh is that on 12.4.1991 at about 9.30 p.m. he was standing in the lane in front of his house in village Hallo Majra, of which one room was on rent with the accused where he was living with his deceased wife, mother and their only child. Sham Lal PW who was tenant in another room on the ground floor of the house also came to the lane and they were standing there when a quarrel ensued between the accused and his wife Mariam and while fighting they came out of their room in the verandah. The wife of the accused was blaming him for returning home after taking liquor when the circumstances were such that they have nothing for preparation of the food in their house for lack of resources.

The accused then went inside the room and came out with a chhuri and gave blow with it on the left breast of his wife as a result of which she fell down and he ran away towards the fields at the back side of his house. The electric bulb was on in the verandah at that time. Mariam was taken to General Hospital, Section16, Chandigarh in a police van and was admitted. FIR No. 43 dated 12.4.1991, under Section 324 IPC was registered. From General Hospital, Mariam was referred to PGI. However, she is stated to have died in that hospital on 16th and the offence was changed to Section 302 IPC. Post mortem on the body of the deceased was performed. During the inquest proceedings under Section 174 Cr.P.C. the investigating officer recorded statements of various witnesses including the two eye witnesses namely Balbir Singh PW 9 and Sham Lal PW 10.

In all, to prove its case, the prosecution examined 15 witnesses, namely, PW 1 Jaswant Singh Draftsman, PW 2 Dr. Taran Preet, PW 3 Dr. A.S. Bawa, PW 4 H.C. Om Parkash, PW 5 Constable Jaspal Singh, PW 6 Dr. A.S. Gill, PW 7 Dr. D. Lobo, PW 8 Dr. Ravinder Sachdeva, PW 9 Balbir Singh, PW 10 Sham Lal, PW 11 Samual Masih, PW 12 Dr. C.S. Rao, PW 13 SI Om Parkash, PW 14 ASI Chander Singh and PW 15 SI Hardev Singh. Out of the aforesaid 15 witnesses, the doctors who treated the deceased and prepared her postmortem report, the two eye witnesses aforestated and the investigating officer are the material witnesses which supported the case of the prosecution in Court. The statement of Balbir Singh is Ex. PL which was recorded by Hardev Singh PW 15 about an hour after the incident. The post mortem report of the deceased is Ex.PD while the rough site plan prepared by the investigating officer is Ex.PU.

During the course of investigation conducted by ASI Hardev Singh, the accused, in the presence of AIR Om Parkash, made disclosure statement Ex.PO stating that he had kept concealed the Chhuri in a drain in village Hallo Majra and could get the same recovered. Consequent upon the disclosure statement of the accused the knife/Chhuri is stated to have been recovered vide memo Ex.PR.

Initially the FIR was registered under Section 324 IPC but the challan against the accused was filed under Section 302 IPC. The accused was charged with the same offence and the learned trial court after detailed discussion and appreciating the evidence on record convicted the accused and awarded the aforestated sentence to him. Before hearing arguments, the statement of the accused was recorded under Section 313 Cr.P.C. wherein the accused submitted that some other persons had murdered his wife Mariam and he named the assailants as Kala and Banti. According to him the police had falsely implicated him. The clothes of the deceased which were bloodstained were also recovered during investigation and as per report of Serologist Ex.PX and PY the same were found to be stained with human blood.

Learned counsel for the appellant has mainly argued that there are serious and definite discrepancies and contradictions in the case of the prosecution which create more than a mere doubt and also show that the story of the prosecution has neither been proved nor is probable in the facts and circumstances of the case. To substantiate his submissions the learned counsel has argued that the recovery of knife and shirt has been planted upon him. The description of the injury under the armpit is not supported by the medical evidence; there is delay in lodging the FIR and the accused has been falsely implicated in the case.

Having gone through the evidence on record we are of the view that the contentions raised on behalf of the appellant have no merit. There are two eyewitnesses to the occurrence i.e. PW 9 and PW 10. There are no contradictions in their statements which could adversely affect the case of the prosecution. Both these witnesses have given the details of the incident without any material variation. These witnesses were crossexamined at length by the accused in the trial court but nothing material has come on record which would persuade the court to disbelieve these two witnesses. No doubt PW Balbir Singh has clearly admitted in his crossexamination that he is the owner of the building where Vijay Masih was residing with his wife and some rent was due to him. The mere fact that he is a landlord of the same building cannot be any ground to disbelieve this witness. To us it appears that this witness has truthfully admitted all the facts and had not attempted to bring incorrect facts on the court record.

PW 10 Sham Lal is a tenant in the same building and has supported the complete version of the prosecution and more particularly the statement of PW 9. From the statements of these two witnesses read in conjunction with other expert evidence on record, it is difficult for us to hold that the conviction of the accused is not well founded. The mere fact that PW 10 has given the time of occurrence as 9.15 P.M. while PW 9 has given the time approximately as 9.30 P.M. are not the contradictions in the facts and circumstances of the case which can be said to be materially affecting the case of the prosecution. Minor discrepancies not affecting the case of the prosecution in its roots cannot be held to be a ground for giving the benefit of doubt to the accused.

With regard to recovery of knife the learned counsel for the appellant has heavily relied upon Ex.PR and recovery of bloodstained clothes Ex.PS. It is contended that the recovery is planted upon the appellant as is clear from the language of these two exhibits. The knife is stated to have been recovered on 16.4.1991 while the knife was concealed by the appellant on 12.4.1991 in the drain near his house. As such it is argued that it is impossible that a small knife like the one in the present case can remain in a drain for four days. Secondly, it has been argued with regard to Ex.PS that the recovery is alleged to have been made on 13.4.1991 when Mariam was alive, but it has been recorded in Ex.PX "one bloodstained Salwar and Kameez (shirt) printed red, blue and purple of deceased Mariam" and "due to knife there is a hole on the right side of the shirt".

In order to appreciate the contention raised by learned counsel for the appellant we felt it necessary to look into the originals of Ex.PS and Ex, PR both. Ex. PS has been incorrectly translated, at page 87 of the paper book. It is not recorded in the original recovery memo Ex.PS that Mariam is deceased or that there is hole in the cloth on the right side due to knife injury. Both these material facts have been incorrectly translated, at page 87 of the paper book. There is no such discrepancy in the original of Ex.PS nor it is to be traced from the statement of PW 15, the investigating officer. It is quite possible that the knife could be recovered after even three days from a drain because the same is a very small drain in a village and the possibility of the knife being recovered after some time cannot be ruled out as being impossible Consequently, the submissions raised on behalf of the accused are liable to be rejected.

The delay in FIR is certainly of no consequence in the facts and circumstances of the present case. The occurrence had taken place at about 9.30 P.M. on 12.4.1991. Thereafter Mariam was taken to hospital and statement of Balbir Singh was recorded at about 10.15 P.M. and the FIR was registered at 11.00 P.M. on the same day. We are unable to appreciate the contention on behalf of the accused that there is any material delay in lodging the FIR. To us it appears that all concerned acted with reasonable promptness for recording the FIR.

The discrepancy with regard to mentioning of the injury has also been well explained in the judgment of the trial Court. The doctors have given expert evidence that injury was caused below the breasts on the left side, which from a distance and at 9.30 P.M. in the night, could be stated to be under the armpit on the left side. The statements of the doctors who treated her first and the doctor who prepared the post mortem report does not indicate any contradiction and the investigating officer PW 15 has provided the complete link evidence to the nature of the injury as well as the seat of the injury.

Now we proceed to discuss the last contention raised on behalf of the accused. The learned counsel has submitted that keeping in view the relationship between the parties, injury caused and facts and circumstances of the case, the petitioner ought not to have been convicted under Section 302 IPC and at best the accused could be convicted only for an offence under Section 304 PartII IPC.

We find some merit in this submission of learned counsel for the appellant. The deceased and the accused were wife and husband. They have been living together for years, of course with little roughness of the daytoday life. It has come on record that the husband and wife both happily celebrated the birthday of their child just three days before the date of occurrence. Even if we take the case of the prosecution as proved, the occurrence had taken place all of a sudden because of certain family dispute between the couple and accused had inflicted just one injury on the deceased obviously with no intention to kill her.

The description of the injury inflicted indicates that the accused never intended to kill his wife, besides the fact that there is no evidence on record from which it could be gathered that either the accused had intention to kill his wife or even intended to give her an injury which could cause death of the deceased. PW Dr. A.S. Gill has stated that the injury on the person of the deceased was an incised penetrating wound 1.5. cms x 0.25 cms x depth on the exploration by surgeon, on the left front chest 4.5. cms lateral from the left nipple. This was the only injury found on the person of the deceased. We also examined the weapon of offence which is a chhuri with a very small blade, a chhuri which is used every day for cutting the vegetables. On sudden provocation, a scuffle came up between the husband and the wife which resulted in this unfortunate incident. The learned counsel appearing for the State also very fairly conceded that there is no evidence to indicate motive, intention to cause death or even to cause such a bodily injury as is likely to cause death. Another factor which has come in the evidence of PW 6 is that the deceased Mariam is stated to have been brought by H.C. Ram Achhal and constable Budh Singh of the flying squad along with the husband of the deceased Vijay Masih. It appears that the accused had taken his wife to the hospital but probably disappeared thereafter. In this regard it may be appropriate to make reference to certain judgments having a bearing on the present issue before us.

In the case titled as Jagpati v. State of Madhya Pradesh, AIR 1993 Supreme Court 1360, emphasizing the above stated principles of the accused having no intention to cause a particular injury which would be sufficient to cause death, the Supreme Court held as under :

"From the facts stated above it is clear that Ram Krishna had absolutely no immediate motive and even the appellant, Jagpati also because of the trivial quarrel that took place went and beat the deceased. Under these circumstances, we find it difficult to hold that these two accused intended to cause that particular injury which was sufficient in the ordinary course of nature to cause death."

It will be appropriate to make a reference to the Division Bench judgment of this Court where the facts are quite similar to the present case. In the case of Bhambar v. State of Punjab, 1995(3) RCR 420 , where the accused had caused iron chain injury on the deceased on a vital part near the ear and on evidence, the Court came to the conclusion that there was no intention to cause death and offence was converted from Section 302 IPC to Section 304 PartII IPC. In the case of Rajinder Singh v. State of Haryana, 1994(2) RCR 68 the accused had given one blow on the head of the deceased while proved fatal. Because of lack of intention the offence was converted from Section 302 IPC to Section 304 PartII IPC.

In a very recent judgment Hon''ble Supreme Court of India in the case of Sarup Singh v. State of Haryana, AIR 1995 Supreme Court 2452, where the accused had given one single hammer blow on the head of the deceased, which is a vital part of the body, had knowledge, but no intention, that injury would cause death of the deceased, the trial court convicted the accused for offence under Section 302 IPC, while the Court held as under :

"Keeping in view this medical evidence and the established facts and circumstances of the case on the record, we are of the opinion that the appellant can be clothed with the knowledge that the injury that he was causing to Jai Karan, with a hammer, on his head, a vital part of the body, was likely to cause his death, though without any intention to cause death or such injury as was likely to cause his death. He gave a single blow on the head of the deceased. The offence would, therefore, squarely fall under Section 304 PartII IPC. We, accordingly, hold him guilty of the said offence and convict him accordingly."

The underlying principle of the various judgments aforecited thus makes it clear that it is the intention to cause death which would primarily be the consideration for determining whether the offence committed by the accused would fall under Section 304 PartI or 304 PartII IPC. The accused must have an intention to cause death or cause a bodily injury which is likely to cause death. Absence of these ingredients i.e. the accused having no intention to cause death, would bring the offence outside the ambit of PartI of this Section. This distinction is fine but real and if overlooked, can result in miscarriage of justice. The law on this subject was discussed in detail by this Court in Criminal Appeal No. 362DB of 1994, titled as Mala Ram v. The State of Haryana, the reference to which can also be made. Reference can also be made to the judgment of the Supreme Court in the case of V. Sreedharan v. State of Kerala, 1992(1) RCR 523 , and a judgment of this Court in the case of State of Punjab v. Nazir Singh and others, 1992(2) RCR 321.

In the case of Jagrup Sing v. The State of Haryana, AIR 1981 Supreme Court 1552 the Hon''ble Supreme Court observed as under :

"The whole thing depends upon the intention to cause death, and the case may be covered by either Clause Firstly or Clause Thirdly. The nature of intention must be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon the death."

While converting the offence from Section 302 IPC of which the accused was challaned to Section 304 PartII IPC, the Hon''ble Supreme Court in the case of Jagrup Singh (supra) further held as under :

"There can be no doubt that it was used with certain amount of force because there was cerebral compression. But that by itself is not sufficient to raise an inference that the accused intended to cause such bodily injury as was sufficient to cause death. He could only be attributed with the knowledge that it was likely to cause an injury which was likely to cause the death. The matter, therefore, does not fall within Clause Thirdly of Section 300 of the Code."

For the consistent view taken by the highest Court of the land as afore stated we are unable to trace any intention on the part of the accused to cause death of the deceased. Apparently there is no motive, no pre meditation; the weapon used for committing the offence, the kind and seat of the injury as inflicted upon the deceased, nothing indicates that the accused intended to commit murder of his own wife, that too, on such meagre issue. The onus to prove intention and its case beyond reasonable doubt is ever on the prosecution and this burden cannot be discharged by mere inferences. There should be positive and definite evidence on record before an accused can be convicted for an offence under Section 302 IPC. Essential ingredients constituting such an offence are definitely missing in the facts and circumstances of the present case and we have no hesitation in holding that the accused is liable to be convicted only for an offence under Section 304 PartII IPC.

Having held the accused guilty of offence under Section 304 PartII IPC. we sentence the accused to undergo rigorous imprisonment for seven years and to pay of fine of Rs. 500/ and in default of payment of fine to further undergo rigorous imprisonment for fifteen days. The appeal is partially accepted to the above extent.