Ram Surat Ram (Maurya), J.
1. Heard Sri Sunil Kumar, for the appellants, Sri Rajesh Kumar, Brief Holder, for State of U.P. and Sri L.B. Yadav, for the informant.
2. Panna Lal Gaur and Byas Gaur have filed aforementioned appeal from their conviction and sentence passed by Additional Session's Judge, Court No. 3, Mau, dated 22.11.2013, in S.T. No. 37 of 2010, State vs. Panna Lal and another, [arising out of Case Crime No. 1554 of 2009, under Section 302, 504 of Indian Penal Code, 1860 (hereinafter referred to as the IPC), S.T. No. 35 of 2010, State vs. Byas Gaur, (arising out of Case Crime No. 1683 of 2009, under Section 4/25 Arms Act, 1959) and S.T. No. 36 of 2010, State vs. Panna Lal, (arising out of Case Crime No. 1745 of 2009, under Section 4/25 of Arms Act, 1959), Police Station Ghosi, district Mau, convicting them, under Section 302 read with Section 34 IPC and sentencing for imprisonment for life and fine of Rs. 20000/- each and under Section 4/25 Arms Act, 1959 and sentencing them for one year imprisonment and fine of Rs. 500/- each, with default stipulation.
3. On the written complaint (Ex-Ka-1) of Surya Bhan Yadav (PW-1), FIR (Ex-Ka-3) of Case Crime No. 1554 of 2009 was registered under Section 302, 504 IPC, at P.S. Ghosi, district Mau on 11.10.2009 at 20:40 hours, by Constable Moharrir Ashok Kumar Tiwari (PW-4), against Panna Lal Gaur, Byas Gaur and one unnamed accused. It has been stated in the FIR that the informant Surya Bhan Yadav son of Bahal Yadav was permanent resident of village Jamuwari, P.S. Ghosi, district Mau. Suresh Yadav, the younger brother of the informant, was working in P.A.C. Today on 11.10.2009 at 7:00 PM, he had come to Jamuwari Mod (Chatti). The informant and his nephew Pradeep Yadav son of Uday Bhan had gone to receive him. Suresh, the brother of the informant, began to take eggs from the shop of Panna Gaur son of Jairaj, resident of Pandeypar, PS. Ghosi, district Mau, where Byas, the brother of Panna and one other person were also present. The informant began to take pan for eating from pan shop, situated by the side of it. Pradeep began to take spices. In the meantime, some dispute started between Panna Gaur and his brother Suresh, in respect of purchasing egg. Byas, while abusing, said that the people used to purchase egg and while giving money, they used to quarrel. Suresh, brother of the informant, forbade from abusing. Then other accused, who was with Byas, exhorted while abusing that he was quarreling, kill him. On which Byas and Panna Gaur started inflicting knife blow upon Suresh with an intention to kill him. On which, the informant, the peoples present on the pan shop and nephew of the informant Pradeep rushed towards them but Byas, Panna Gaur and third person, fled away from the spot, waving their knife. The incident was witnesses by the informant and other persons present there. Due to causing knife injury, a panic was created on the spot. The peoples began to fled away closing their shops. The informant and Pradeep with the help of other persons took injured Suresh to Mau, where the doctors declared him as dead. The dead body of the brother of the informant was lying at District Hospital Mau. After lodging the report, legal action be taken against guilty persons.
4. After lodging of FIR, SSI Azam Ali Khan (PW-5) started investigation. He copied the check FIR and G.D. entry in case diary. He came at the place of incident and recorded statement of Pradeep Yadav on 11.10.2009, calling him from his house. On 12.10.2009, he recorded statement of Surya Bhan Yadav. He made spot inspection on 12.10.2009, on the pointing out of the informant and prepared site-plan (Ex-Ka-6). He took into possession the blood stained and plain earth from the spot and prepared its recovery memo (Ex-Ka-7). He recorded statements of Ram Dhyan Yadav and Pradeep Yadav, the witnesses of recovery memo. In order to arrest the accused, he made raids but could not arrest them. He took proceeding under Section 82 Cr.P.C., against the accused. On 24.10.2009, he copied Inquest in case diary. In the meantime, Panna Lal Gaur was arrested in other case under Railways Act and sent to jail on 27.10.2009. Byas Gaur surrendered in the Court on 30.10.2009. He recorded statement of Byas Gaur in district Jail Mau, in which he had confessed his guilt and had become ready to recover the knife, used in committing crime. On the pointing out of Byas Gaur, a knife was recovered on 06.11.2009, of which recovery memo (Ex-Ka-10) was prepared. He recorded statement of Panna Lal Gaur on 12.11.2009, in which, he confessed his guilt. On the pointing out of Panna Lal Gaur, a knife was recovered on 20.11.2009, of which recovery memo (Ex-Ka-11) was prepared. He prepared site-plans (Ex-Ka-12 and Ka-13) of places of recovery of knives. He sent the clothes of the deceased, knives recovered from the accused and blood stained and plain earth for chemical examination report. Chemical examination report (Ex-Ka-42) dated 29.05.2010 was filed, in which blood on the knives and blood stained earth were found disintegrated. After completing investigation, he submitted charge sheet (Ex-Ka-26) under Section 302/504 IPC against the appellants on 09.12.2009.
5. On the basis of recovery memos (Ex-Ka-10 and Ka-11), FIRs of Case Crime No. 1745 of 2009 (Ex-Ka-29) was registered against Panna Lal Gaur and Case Crime No. 1683 of 2009 (Ex-Ka-30) was registered against Byas Gaur, under Section 4/25 of Arms, Act, 1959, by Constable Bechan Ram (PW-7). SI Ram Satan (PW-6) investigated Case Crime No. 1745 of 2009. He copied the FIR and G.D. entry and recorded statements of Bechan Ram and SSI Azam Khan in case diary. He recorded statements of the witnesses of recovery, namely Suman and Dharmendra Dutt. He prepared site-plan (Ex-Ka-2) of the place of recovery. After completing investigation, he submitted charge sheet (Ex-Ka-28) on 20.11.2009. On which cognizance was taken.
6. SI Ram Bachan Yadav (PW-8) investigated Case Crime No. 1683 of 2009. He copied the FIR and G.D. entry and recorded statements of Bechan Ram and SSI Azam Khan in case diary. He recorded statements of the witnesses of recovery, namely Amar Nath Yadav and Dharmendra Dutt. He prepared site-plan (Ex-Ka-31) of the place of recovery. After completing investigation, he submitted charge sheet (Ex-Ka-32) on 11.11.2009.
7. From District Hospital Mau, a memo was sent to police station Sarai Lakhansi, Mau on 11.10.2009 at 8:40 PM for conducting Inquest of the dead body. From where, information (Ex-Ka-33) was given to police station Ghosi, Mau for conducting Inquest of dead body. SI Hemant Kumar Singh (PW-9) conducted Inquest (Ex-Ka-2) of the dead body on 12.10.2009 in between 6:00 AM to 8:15 AM. He prepared photo lash, challan lash, letters to the authorities etc. (Ex-Ka-34 to Ex-Ka-38) for postmortem and dispatched the dead body through Constables Brijendra Yadav and Ram Sahay Chauhan. Dr. Deepak Shah (PW-3) conducted autopsy of the dead body and prepared Postmortem Report (Ex-Ka-2), in which following ante-mortem injuries were noted:-
(i) Incised wound in an area of 7cm x 2.5cm x cavity deep on the left side of chest, 3cm below and lateral from left nipple.
(ii) Incised wound 2.5cm x 1.5cm x muscle deep on the left side chest, 5cm below from left nipple.
(iii) Incised wound 2.5cm x 1.5cm x muscle deep on the left aspect of left side chest, 13cm below from left Axilla.
(iv) Incised wound 1cm x 0.5cm x skin deep on the left side back of the chest, 7cm below from inferior angle at the left scapula.
(v) Incised wound 5cm x 1.5cm x muscle deep on the left side back, 13cm below from inferior angle of the left scapula.
(vi) Incised wound 2cm x 1cm x muscle deep on the left side back, 12cm medially down from inferior angle of the left scapula and 5cm lateral from mid line.
In the internal examination, membranes and brain were pale. Pleura was incised on left side. Both the lungs were incised and pale (weighing 800gms). All chambers of the heart (weighting 250gms) were empty. About 3 litre blood present in the thoracic cavity. Small intestine contained digested liquid, food and gases. Large intestine and rectum were partially filled with gases and fecal matter. Gall bladder was partially filled, weighing 1150gms. Spleen was pale, weighting 120gms. Kidneys were pale, weighing 170gms. Urinary bladder was empty.
In the opinion of the Doctor, cause of death was hemorrhage and shock, as a result of ante-mortem injuries."
8. On committal, the cases were registered as S.T. No. 37 of 2010, under Section 302, 504 IPC, S.T. No. 35 of 2010, under Section 4/25 Arms Act, 1959 against Byas Gaur and S.T. No. 36 of 2010, under Section 4/25 Arms Act, 1959 against Panna Lal Gaur. All the three cases were consolidated and tried together. Additional Session's Judge framed charges on 23.04.2010, against the accused. The accused pleaded "not guilty" and claimed for trial. In order to prove the charges, the prosecution examined Surya Bhan Yadav (PW-1), the informant, Virendra Yadav (PW-2), an eye witness, Dr. Deepak Shah (PW-3), to prove Postmortem Report (Ex-Ka-2), Constable Moharrir Ashok Kumar Tiwari (PW-4) to prove check FIR of Case Crime No. 1554 of 2009, SSI Azam Ali Khan (PW-5), Investigating Officer of Case Crime No. 1554 of 2009, SI Ram Satan (PW-6), Investigating Officer of Case Crime No. 1745 of 2009, Constable Bechan Ram (PW-7) to prove check FIR of Case Crime Nos. 1683 and 1745 of 2009, SI Ram Bachan Yadav (PW-8) Investigating Officer of Case Crime No. 1683 of 2009, SI Hemant Kumar Singh (PW-9) to prove Inquest (Ex-Ka-2) and filed documentary evidence.
9. All the incriminatory materials and facts were put to the accused, under Section 313 CrPC. They denied the evidence and materials and claimed false implication, due to enmity. They stated that deceased Suresh was murdered by some one else in night and the witnesses were not present there. Virendra Yadav (PW-2) took Suresh to the hospital. They did not adduce any evidence.
10. Additional Session's Judge, after hearing the parties, by the impugned judgment held that from the statement of Surya Bhan Yadav and Virendra Yadav (PWs-1 and 2), the charges against the appellants have been proved. Recovery of knives on the pointing out of the appellants have been proved. On these findings, he convicted the appellants and sentenced as mentioned above. Hence, this appeal has been filed.
11. In order to prove the charges under Section 302 and 504 IPC, the prosecution has examined Surya Bhan Yadav (PW-1) and Virendra Yadav (PW-2) as the eye witnesses of the incident. Surya Bhan Yadav (PW-1) has stated that Suresh Yadav was his brother. He was employed as constable in P.A.C. and was posted at Naini. At the time of incident, he was assigned duty at Ghazipur. He alighted from a private bus at Jamuwari Mod (Chatti) on 11.10.2009 at 7:00 PM. On the prior information of his coming, he and his nephew Pradeep Yadav had gone to receive him at Jamuwari Mod. His brother Suresh came from the side of Amali in the bus and was standing at try-junction. At the try-junction, there was an egg shop of Panna Lal Gaur son of Jairam Gaur, resident of Pandeypar, P.S. Ghosi. Suresh, his brother, went to take egg from the shop of Panna Lal. At the shop of Panna Lal, Byas, the brother of Panna Lal and one unknown person were also present. He was taking pan from the shop of Sama Yadav. His nephew was purchasing spices, by side of egg shop. In respect of purchasing egg, some quarrel started between Panna Gaur and his brother Suresh,. Byas, who was present there, while abusing, said that the people used to purchase egg and while giving money, they used to quarrel. His brother Suresh forbade from abusing. Then the third person, present there, exhorted, while abusing, that he was quarreling, kill him. On which Byas and Panna Gaur started inflicting knife blow upon Suresh with an intention to kill him. His brother Suresh received knife injuries. On which, he, his nephew Pradeep and the peoples present there rushed towards them to save Suresh. Byas, Panna Gaur and third person, fled away from the spot, waving their knife towards north, looking to them. A bulb was lightening from battery at the egg shop, in which light, they witnessed the incident and fully recognized the accused. Virendra Yadav, resident of his village also witnessed the incident. Due to the act of the accused, a panic was created on the spot. The peoples began to fled away closing their shops and hided themselves in their houses. They took injured Suresh to District Hospital Mau, where the doctors declared him as dead. Thereafter, he gave written complaint (Ex-Ka-1) for lodging FIR of the incident, on which FIR was lodged. Inquest (Ex-Ka-2) of Suresh was conducted on 12.10.2009 in morning at District Hospital Mau, in his presence, in which he was a Panch.
In cross-examination, he has stated that the deceased was doing duty at Ghazipur from 15-20 days prior to the incident. Prior to that, where he was posted was not remembered. Suresh was his real brother. At the time of incident, their family was not joint. Separation has taken place from about one year. Suresh used to come to the house two to four times in a year. Whenever, he informed for coming, he used to go to receive him. Some time, he used to come at Jeemanpur, some time at Thanidas Mod and some time at Jamuwari Mod and he used to go and receive him. Partition was not taken place between them due to any dispute but by way of family settlement. There was no other person of the name of Virendra Yadav son of Bal Yadav in his village. Suresh Yadav was employed in P.A.C. From 1994-95. Jamuwari Mod lies within the limit of village Pandeypar. Distance of his village from Jamuwary Mod to his village was about 1.5 kilometer and Pandeypar was less than one kilometer. There was a chatti at Jamuwary Mod, where there had been egg shop, grocery shop and electrical part shop, where the people of three villages used to visit. On the date of incident, he had mobile phone, of which number was 9451645507, on which Suresh had informed him about his coming, in between 3:00 to 4:00 PM. He did not remember mobile phone number of Suresh. On next day, he informed mobile phone number of Suresh as 9415529707. Suresh Yadav did not have any enmity with any other person at the time of incident. When Suresh Yadav alighted from the bus, he was present at the shop of SamaYadav, who was also resident of his village, which was at a distance of 15 to 20 paces. He had gone to the shop of Sama Yadav for eating pan, where his son Surendra was present. Egg shop was at the place, where the bus was stopped. Distance between the shop of pan from the shop of egg was about 15-20 paces, in south west corner. He did not go to the place of incident along with Investigating Officer. The road runs north to south and in east of bus stand. The bus was stopped slightly in north from the bus stand. Grocery shop of Ran Singh situated in east of the shop of Sama. House of Ranjit situated in west of the egg shop at a distance of about 7 paces. Ranjit had let out one room to Panna Lal. At the time of incident, there were 5-7 persons, including Virendra Yadav of his village, at the shop of Sama, apart from him and Pradeep. He could not state as to whether any other person of his village was present there or not. At the time of incident, the persons were purchasing at the shop of Rajendra but he did not notice them. His brother did not have any suitcase in his hand. After purchasing egg, the quarrel started, which continued for 2-4 minutes. At the time of quarrel, Suresh was standing in north of chauki. At the place of incident, there were two chaukis, on one eggs were kept and on other the customers were sitting and eating eggs. Suresh was eating egg, on the chauki on which eggs were kept and other chauki was in south of it. It did not remember as to how many persons were present on the egg shop. Before their reaching the spot, the accused had committed the incident and fled away. When the third person exhorted, then they proceeded to the place of incident. Whether third person was also armed with knife or not, he could not see. Panna was causing knife injury to Suresh from his front side and Byas was in his side. After receiving knife injuries to Suresh, his nephew arranged a Commander Jeep of Raj Kumar Maurya, calling from phone, which took 10-20 minutes in coming. In that vehicle, he, his nephew Pradeep and Virendra Yadav and other persons, whose names were not remembered to him were sitting along with Suresh. Thereafter, he stated that Virendra Yadav had not gone in that jeep. They went Mau, which was at a distance of 35 to 40 kilometer, from the place of incident, directly for treatment through Ghosi. They did not went to Primary Health Center Ghosi. They took about 35-40 minutes in reaching Mau. The doctor declared Suresh as dead. They kept the dead body of Suresh at District Hospital, Mau, where they remained in night. They went to the house on next day at about 12:00 to 1:00 in noon. Inquest was conducted between 6:00 to 8:00 AM on next day.
12. Virendra Yadav (PW-2) has stated that Panna Lal son of Jairam, resident of Pandeypar had his egg shop at the try-junction, Jamuwary. At the time of occurrence, a bulb was lightening at his egg shop. He was present at the pan shop of Shyama Yadav at try-junction. Suryabhan and his nephew Pradeep Yadav of his village were also present there. Suresh Yadav, the brother of Suryabhan, who was employed as the constable in P.A.C. was likely to come there. Suryabhan and Pradeep had come to receive him at try-junction. Suresh Yadav alighted from the bus at about 7:00 PM and went to purchase egg from the shop of Panna Lal. At that time, some quarrel started between Panna Lal and Suresh, in respect of purchasing egg. Byas, brother of Panna Lal was also present there and while abusing Suresh, said that the people used to purchase egg and while giving money, they used to quarrel. On which, Suresh forbade from abusing. A third person, sitting there, exhorted, while abusing that he was quarreling, kill him. On which Panna Lal and his brother Byas Gaur started inflicting knife blow upon Suresh with an intention to kill him. They rushed towards them to save Suresh. The accused fled away from the spot, waving their knife, leaving Suresh in half dead position. The incident was witnessed by him, Suryabhan, Pradeep and various persons present on the spot. Suryabhan and Pradeep had taken away Suresh in injured condition for his treatment. Suresh Yadav died due to knife injuries caused by the accused at District Hospital Mau at 8:15 PM. Inquest of the dead body of Suresh was conducted on 12.10.2009 in morning at District Hospital Mau, in his presence, in which he was a Panch. His statements was recorded by Investigating Officer after 6-7 days of incident.
In cross-examination, he has stated that at the place of incident, there was a chatti, where three shops were situated, one of Sudarshan, the other of Shyama Yadav and third of Ran Singh and one barber shop of Raftar. In east of the place of incident, the road running from Amila to Bojhi situated. He cannot say that the peoples used to come and go through out the night or for what time coming and going usually continued there. His village situated at a distance of one kilometer from the place of incident. The main market of his village was Bojhi bazar. He was engaged in agricultural work in his village and time to time (two-four or ten times in a month) used to go to Bojhi bazar. Whenever he went to bazar, used to come back by 6:00-6:30 or 7:00 PM. Whenever he used to return his house, on the road, jeeps, motorcycles and cycles riders used to come and go. The village Pandeypar of the accused was adjoining village of Jamuwary. By the side of the place where incident had taken place, Union Bank had constructed a sitting place for the passengers, where the buses used to stop. Panna Lal and Byas both were running egg shop. They had also taken one room on rent for storage of eggs, in the house of Ranjit. There was no shop in south of the shop of the accused. In north of their egg godown, there was road. In east of egg godown, they used to sell egg at a distance of 10-15 paces. At the place of incident, there were two chaukis, on one chauki in south side eggs were kept and on other chauki in north side the customers were sitting and eating eggs. He knew the accused Panna Lal and Byas from before the incident. He cannot say as to who was elder among them. Suresh Yadav was having five brothers, out of them Udaybhan had died. Suresh and Aniruddh were doing service in P.A.C. Third brother was doing service in Delhi. Suryabhan was an advocate and doing practice at civil court. He had gone to the shop of Shyama Yadav for eating pan, where Suryabhan and Pradeep were also present. Surendra son of Shyama was sitting at that time at the shop. When altercation was started between the deceased and Panna Lal and Byas, he Pradeep and Suryabhan went on the spot. He did not recognize the third accused. They were at a distance of about 15-20 paces, in east side. By the time, they reached on the spot, the accused had already caused knife injuries. Suresh was taken to hospital by Suryabhan, Pradeep and other villagers, in the jeep of Raj Kumar Maurya @ Habbi Maurya, after about half an hour of receiving injuries. He went to the hospital on next day, in morning. Inquest was conducted at the hospital. Nothing was inquired from him. His signature was obtained on the Inquest at about 8:00 PM, in evening. He denied the suggestion that he had not seen the incident.
13. We have considered the arguments of the counsel for the parties and examined the record. The incident is alleged to have taken place on 11.10.2009 at 7:00 PM. Surya Bhan Yadav and Virendra Yadav (PWs-1 and 2) both have stated that a bulb was lightening from battery at the egg shop of the accused, where the incident had taken place and they had seen the incident in its light. Although in site-plan (Ex-Ka-6), the place of the bulb was not shown. But this was a temporary arrangement of light, in evening. At the time of closing shop in night, the shop keepers used to remove the battery and the bulb from that place which was an open place. The site plan was prepared on the next day i.e. on 12.10.2009. If in site-plan source of light was not shown, then on its basis, statements of eye witnesses are not liable to be disbelieved. Similarly if Investigating Officer has not recorded, statement of the driver of commander jeep or has not collected blood stained clothes of the witnesses or seat of the jeep or has not prepared recovery memo of the cycles of the witnesses, then it was negligence of Investigating Officer. Supreme Court in Karnel Singh v. State of M.P., (1995) 5 SCC 518, has held that in cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. Same view has been taken in Ram Bali Vs. State of U.P., (2004) 10 SCC 598.
14. The incident had taken place on 11.10.2009 at 7:00 PM. Suresh Yadav was brought to District Hospital Mau, which was at a distance of 35-40 KM in a commander jeep, where he was declared dead at about 8:15 PM. In G.D. entry (Ex-Ka-33), of police station Sarai Lakhansi, it has been noted that Imtiyaz, ward-boy had informed that Suresh was brought dead by Virendra Yadav. FIR was lodged by Surya Bhan Yadav (PW-1) at the police station Ghosi, which was at a distance of about 25 kilometer from Mau, on 11.10.2009 at 20:40 hours. On the basis of aforesaid facts, it has been argued that Surya Bhan Yadav (PW-1) was not present on the spot at the time of incident.
Presence of Surya Bhan Yadav (PW-1) on the spot cannot be doubted only for the reason that in hospital record, it was noted that Suresh was brought by Virendra Yadav. Surya Bhan Yadav (PW-1) had hired a jeep at that time and took Suresh in it to District Hospital Mau. When the doctor declared Suresh as dead at 8:15 hours, then he went to police station Ghosi for lodging FIR, which was lodged at 20:40 hours. Surya Bhan Yadav might have departed from the hospital, for lodging the FIR, at the time of preparing papers in hospital. Ghosi was at a distance of about 25 KM from Mau as it situated in between the place of incident and Mau. Covering this distance in 25 minutes by a commander jeep was not an impossibility. Surya Bhan Yadav (PW-1) was not confronted with these questions, in cross-examination as such his presence cannot be doubted for these reasons. Presence of Virendra Yadav was noted in District Hospital Mau as such his presence on the spot can also not be doubted. FIR cannot be said to be ante-timed and ante-dated.
15. In case diary, it has been noted that when Pradeep Yadav received information of the arrival of the police at the place of incident, he came there along with his villagers. On its basis, it has been argued that Pradeep Yadav was not on the spot rather he was at his house at the time of incident. His statements was recorded on 11.10.2009 at 22:10 hours by Investigating Officer. Pradeep Yadav, in his statements under Section 161 Cr.P.C. has stated that when the doctor at District Hospital, Mau declared Suresh as dead, then leaving dead body there at the hospital, he had come to his village. Thus he had stated that he had gone with the deceased to District Hospital Mau.
16. SI Hemant Kumar Singh (PW-9) conducted inquest on 12.10.2009 between 6:00 AM to 8:15 AM. Signatures of Virendra Yadav (PW-2) on the Inquest (Ex-Ka-2) is in middle of four other Panches. It appears that Virendra Yadav (PW-2), in his cross-examination, inadvertently said that he had signed Inquest at 8:30 PM. No question in this respect was put to SI Hemant Kumar Singh (PW-9) in this respect as such the appellants cannot be permitted to raise any argument on the basis of mistaken statement of Virendra Yadav. Similarly on the ground that Virendra Yadav was not mentioned as an eye witness in FIR, his presence on the spot cannot be doubted. FIR was lodged in a haste manner. Some omission in it was probable. Supreme Court in Satpal v. State of Haryana, (2018) 6 SCC 610, has held that an FIR is not to be read as an encyclopedia requiring every minute detail of the occurrence to be mentioned therein.
17. On the basis of contents of stomach or dimension of the injuries time of incident and presence of witnesses cannot be judged. When two persons were inflicting knife blow simultaneously upon a person, then he would not remain in same position through out. Supreme Court in Sanjay Khanderao Wadane v. State of Maharashtra, (2017) 11 SCC 842, has held that presence or absence of food at the time of post-mortem in relation to the time of death is based on various factors and circumstances such as the type and nature of the food consumed, the time of taking the meal, the age of the person concerned and power and capacity of the person to digest the food. Judging the time of death from the contents of the stomach, may not always be the determinative test. It will require due corroboration from other evidence. If the prosecution is able to prove its case beyond reasonable doubt and cumulatively, the evidence of the prosecution, including the time of death, is proved beyond reasonable doubt and the same points towards the guilt of the accused, then it may not be appropriate for the court to wholly reject the case of the prosecution and to determine the time of death with reference to the stomach contents of the deceased.
18. It has been argued that the appellants had no previous enmity with the accused, in a sudden quarrel, they caused knife injuries to the deceased. The knives allegedly recovered on the pointing out of the accused, were the knives used for cutting boiled eggs. As such the offence of the appellants falls within the ambit of Exception-4 to Section 300 IPC and at the most the appellants can be punished under Section 304 Part II, IPC. He relied upon the judgments of Supreme Court in Virsa Singh Vs. State of Punjab, 1958 SCR 1495, Surinder Kumar Vs. Union Territory Chandigarh, (1989) 2 SCC 217, Harishankar Vs. State of Rajasthan, (1998) 8 SCC 355, Sukhbir Singh Vs. State of Haryana, AIR 2002 SC1186, and Kalegura Padma Rao Vs. State of A.P., (2007) 12 SCC 48.
19. Supreme Court in State of M.P. v. Shivshankar, (2014) 10 SCC 366, has held that help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the ''fight' occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not mu
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st necessarily depend upon the proved facts of each case. In Surain Singh v. State of Punjab, (2017) 5 SCC 796, has held that the weapon used in the fight between the parties is kirpan which is used by "Amritdhari Sikhs" as a spiritual tool. In the present case, the kirpan used by the appellant-accused was a small kirpan. In order to find out whether the instrument or manner of retaliation was cruel and dangerous in its nature, it is clear from the deposition of the doctor who conducted autopsy on the body of the deceased that stab wounds were present on the right side of the chest and of the back of abdomen which implies that in the spur of the moment, the appellant-accused inflicted injuries using kirpan though not on the vital organs of the body of the deceased but he stabbed the deceased which proved fatal. The injury intended by the accused and actually inflicted by him is sufficient in the ordinary course of nature to cause death or not, must be determined in each case on the basis of the facts and circumstances. In the instant case, the injuries caused were the result of blow with a small kirpan and it cannot be presumed that the accused had intended to cause the inflicted injuries. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. It is clear from the materials on record that the incident was in a sudden fight and we are of the opinion that the appellant-accused had not taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this Exception provided he has not acted cruelly. 20. In view of the judgment of Supreme Court in Surain Singh's case (supra), the offence of the appellants falls within the ambit of Exception-4 of Section 300 IPC. 21. In view of the aforesaid discussions, the appeal partly succeeds and is allowed. The conviction of the appellants passed by Additional Session's Judge, Court 3, Mau, dated 22.11.2013, in S.T. No. 37 of 2010, State vs. Panna Lal and another, [arising out of Case Crime No. 1554 of 2009, under Section 302, 504 IPC, S.T. No. 35 of 2010, State vs. Byas Gaur, (arising out of Case Crime No. 1683 of 2009, under Section 4/25 Arms Act, 1959) and S.T. No. 36 of 2010, State vs. Panna Lal, (arising out of Case Crime No. 1745 of 2009, under Section 4/25 of Arms Act, 1959), Police Station Ghosi, district Mau, are upheld, except under Section 302 IPC, they are convicted under Section 304 IPC. The appellants are in jail from the date of their arrest and have served about 9 years 8 months sentence. The appellants are sentenced for imprisonment already undergone by them. The appellants will deposit the fines as imposed by the Court below within three months of their release. In case of default, they will serve a sentence of two months, in lieu of it. 22. Office is directed to remit the original record of the court below and send a copy of the judgment for its compliance forthwith.