Karnataka High Court
Parminder Singh S/O Shrimava Singh vs State Of Karnataka By H.A.L. Police, ... on 17 November, 2006
Equivalent citations: 2007(2)KARLJ7, 2007 (2) AIR KAR R 256
Bench: N.S. Veerabhadraiah, Jawad Rahim
JUDGMENT
1. This appeal is by the sole accused being aggrieved of the judgment in SC No. 45/2002 on the file of the IV Addl. City Civil and Sessions Judge, Mayohall Unit, Bangalore City dated 03.01.2003 convicting him for the offence under Section 302 IPC and sentencing Mm to undergo imprisonment for life and to pay a fine of Rs. 5,000/- in default to undergo rigorous imprisonment for a period of two months.
2. The case of the prosecution in brief are as follows:
The deceased Kamal Monga a native of Ghaziabad, Uttar Pradesh, had taken admission in M.V.J. College of Engineering, Whitefield, Bangalore, So also the accused Parminder Singh the native of Malikpur, Punjab State had also taken admission in M.V.J. College of Engineering, Whitefield, Bangalore. Both were studying in Final year B.E. and were residing in premises bearing No. 120/ 21, Ist Cross, Anandanagara, Marathahalli, Bangalore having taken it on rental basis from PW2 -Smt. Surinder Kaur. The accused Parminder Singh and the deceased Kamal Monga are close friends studying in final year B.E. both residing in the said house. That an unhappy incident of quarrel took place between the accused Parminder Singh and the deceased Kamal Monga on 13.10.2001 at about 12.15 p.m. ended in the murder of Kamal Monga due to stab by the accused Parminder Singh. The incident of quarrel and stabbing was inside the house. PW2 - Smt. Surinder Kaur on hearing the screaming rushed to the spot and saw the accused Parminder Singh and the deceased Kamal Monga have caught hold of one another and there was severe bleeding, then she called out PW1 - Parvinder Deep Singh a student who was residing in the adjacent room. So also PW3 - Ajay Katharia the friend of PW1 -Parvinder Deep Singh came out and saw Kamal Monga had Buffered with stab injuries and that the accused Parminder Singh was holding the knife. The injured Kamal Monga was shifted to Manipal Hospital in an auto by PW1 - Parvinder Deep Singh, PW3 - Ajay Katharia and Manpreeth Singh. The doctor who examined Kamal Monga declared him as dead. The Medical Officer of Manipal Hospital PW9 Dr. A.V.S. Srikanth sent intimation to police as per Ex.P7. PW12 - R. Ashok, the Circle Inspector of Police on receiving the death memo proceeded to Manipal Hospital and found the dead body in the mortuary. He recorded the complaint of PW1 - Parvinder Deep Singh as per Ex.P1, registered a case in Crime No. 292/2001 for the offence under Section 302 IPC, prepared the FIR as per Ex.P8 and forwarded it to the Court through the police constable PW11 - K.M. Ramesh. On the same day he visited the place of occurrence and prepared the spot mahazar as per Ex.P2 and seized the knife - MO1 and Bed Sheet - MO2 and recorded the statement of Manpreeth Singh and Udayakumar. On 14.10.2001 he proceeded to the Manipal Hospital alongwith pancha witnesses prepared the inquest panchanama in between 9.30 a.m. to 11.30 a.m. as per Ex.P4. He forwarded the dead body to the Bowring Hospital through Head Constable PW8 - H. Narasimhaiah for conducting the postmortem examination. After postmortem examination the police constable produced the clothes of the deceased MO4 - Blood Stained Shirt and MO5 -Blood Stained Pyjama which was seized under Mahazar Ex.P9. On the same day he received the postmortem report as per Ex.P5. Thereafter on the same day the accused Parminder Singh was apprehended and brought to the police station at about 7.45 p.m. and kept him in safe custody. On 15.10.2001 he recorded the voluntary statement of the accused Parminder Singh as per Ex.P10 and at the instance of the accused Parminder Singh MO3 - Blanket was seized under the mahazar Ex.P3. He forwarded the seized articles to FSL for chemical examination and report and also forwarded the knife to the doctor and secured the opinion as per Ex.P6 and prepared a sketch of the scene of occurrence as per Ex.P11. After completion of the investigation submitted the chargesheet against the accused Parminder Singh for the offence under Section 302 IPC. Later on received the FSL report Ex.P12 as well as Serology report as per Ex.P14.
Learned Sessions Judge secured the presence of the accused framed charges for the offence under Section 302 IPC. The accused pleaded not guilty and claimed to be tried. The prosecution in all examined PWs1 to 15, marked Exs.P1 to P14 and produced MOs1 to 6 whereas the defence got marked as Ex.D1 - the xerox copy of the serology report. The statement of the accused was recorded under Section 313 Cr.PC. The defence is one of total denial. Learned Sessions Judge for the reasons recorded in his judgment convicted the accused for the offence under Section 302 IPC sentencing him to undergo imprisonment for life and to pay a fine of Rs. 5,000/-. It is this judgment of conviction and sentence which is question in the present appeal.
3. Learned Counsel for the appellant Sri. Hasmath Pasha submitted that the accused Parminder Singh and the deceased Kamal Monga are close friends and were residing in the same room having taken admission in MVJ College of Engineering, White Field, Bangalore and were studying in final B.E. It is in the evidence of PW1 - Parvinder Deep Singh, PW2 -Smt. Surinder Kaur and PW3 - Ajay Katharia that both the accused Parminder Singh and the deceased Kamal Monga were the tenant under PW2 - Smt. Surinder Kaur and they did not have any differences or ill-will and that an unhappy incident of assault took place, where it is alleged that the accused Parminder Singh stabbed Kamal Monga with knife - MO1. It is also submitted that the incident of assault in question took place inside the room, is admitted and none of the witnesses have spoken or seen as to how the quarrel ensued. But their evidence shows that when they came out PW1 -Parvinder Deep Singh, PW2 - Smt. Surinder Kaur and PW3 - Ajay Katharia saw the accused Parminder Singh and the deceased Kamal Monga have caught hold of one another and the knife was in the hand of the accused Parminder Singh. It is also submitted that there is no motive on the part of the accused Parminder Singh or illwill so as to take away the life of the deceased Kamal Monga. It is further submitted that the act of the accused Parminder Singh is not a premeditated and as could be seen from the voluntary statement Ex.P10 it shows that the accused Parminder Singh was due in a sum of Rs. 5,000/-, in that regard when the deceased Kamal Monga demanded for money, the quarrel took place and it is stated that the deceased Kamal Monga slapped the accused Parminder Singh and then he assaulted. It is also submitted that merely because of the reason that the accused Parminder Singh in his statement under Section 313 Cr.PC pleaded his absence from the spot, but that itself is not a ground to hold that the accused is not entitled to claim any exceptions as provided under Section 300 IPC and submitted a plea of alibi is the principles of evidence whereas the exception provided are under Section 300 IPC which could be claimed by the accused if the evidence and circumstances are forthcoming and available on record.
Learned Counsel further submitted that in order to claim the benefit of exceptions of Section 300 IPC, it is not the number of injuries that have to be looked into but the manner in which the incident of assault took place and the conduct of the accused to be considered. If the act is done under a heat of passion causing many injuries, the accused having lost control, itself is not sufficient to hold that the accused is not entitled to claim exceptions of Section 300 IPC. The evidence of PW1 - Parvinder Deep Singh, PW2 - Smt. Surinder Kaur and PW3 - Ajay Katharia establishes the fact that immediately on seeing the injuries on the person of Kamal Monga, he was shifted to Genesys Hospital which is at a distance of 1/2 km from the room and from there the injured was shifted to Manipal Hospital where he was found dead. It is also in the evidence of PW1 -Parvinder Deep Singh and PW3 - Ajay Katharia that the accused Parminder Singh had also followed them and assisted in lifting Kamal Monga to the auto. All these circumstances leads that the accused Parminder Singh did not have any such intention to cause the murder of the deceased Kamal Monga and that the said act was done without any premeditation in the heat of passion and therefore falls under exception 4 of Section 300 IPC. It is also sought to be contended that while in the act of deprivation of the power of self control, the accused might have assaulted and committed the murder which falls under exception No. 1. Therefore, prays to set aside the conviction recorded for the offence under Section 302 IPC and to convict the accused for the offence under Section 304 Part I or Part II as the case may be.
4. Learned Addl State Public Prosecutor Sri. N. Rudramuni submitted that the entire evidence on record shows that there are no circumstances arising for the accused Parminder Singh to claim exceptions of Section 300 IPC. The evidence on record shows that the accused Parminder Singh was holding the handle portion of the knife whereas the deceased Kamal Monga was holding the sharp edge portion which clearly indicates that the deceased Kamal Monga in order to prevent the blows holding the knife. Further submitted that the contention of the appellant's Counsel that it is a free-fight is without any merits, as the accused Parminder Singh has not suffered even a single injury on his person and it indicates the accused Parminder Singh over powered the deceased Kamal Monga and has assaulted. Therefore, it is not a free-fight. Secondly, submitted that merely because of the reason that in the mahazar it is mentioned that all the articles found scattered inside the house cannot be presumed that there was free-fight and that even while in the act of the deceased escaping and running away, the articles might have scattered in the room, Thirdly, submitted that the voluntary statement Ex.P10 cannot be looked into. Even otherwise, if voluntary statement were to be considered, it shows that it is the accused Parminder Singh who assaulted the deceased Kamal Monga. Therefore, the ingredients of Section 300 IPC are established. Accordingly, the learned Sessions Judge has convicted the accused for the offence under Section 302 IPC which does not call for interference.
Learned Addl. State Public Prosecutor further submitted that the deceased Kamal Monga had sustained as many as nine injuries whereas the accused Parminder Singh has not sustained even a scratch marks and when there is no circumstances or evidence to show that the act done by the accused Parminder Singh is out of a sudden provocation, and thereby it shows that it is a voluntary act of the accused Parminder Singh in stabbing the deceased Kamal Monga. Further submitted that even while recording the statement under Section 313 Cr.PC the accused Parminder Singh has pleaded his absence by setting up the defence of "alibi" which has been discarded by the Trial Court and thereby the learned Sessions Judge has rightly convicted the accused for the offence under Section 302 IPC which does not call for interference.
Learned Addl. State Public Prosecutor further submitted that it is an admitted fact that it is the accused Parminder Singh and the deceased Kamal Monga who were alone in the room. The deceased Kamal Monga sustained severe injuries. When certain facts are within the knowledge of the accused Parminder Singh, it is for the accused Parminder Singh to explain as to how the incident took place in view of Section 106 of the Evidence Act. Also submitted that there are no circumstances to show that the accused Parminder Singh is entitled to claim any exceptions of Section 300 IPC. Therefore, prayed to confirm the conviction and sentence passed by the Trial Court and to dismiss the appeal.
5. In light of the submissions, the point for consideration that arises:
Whether the learned Sessions Judge is justified in convicting the accused for the offence under Section 302 IPC and sentencing him as above? If not, liable to be intefered with?
6. In this appeal, from the contention raised by the appellant's counsel the only short point that has to be considered is:
(i) Whether the conviction of the accused for the offence under Section 302 IPC is justified or whether the accused is entitled to claim the benefit of any of the exceptions of Section 300 IPC? If so, for what offence?
(ii) What Orders?
7. The medical evidence shows that PW7 -Dr. Bheeniappa Havanur conducted the postmortem on the body of Kamal Monga on 14.10.2001 in between 12.30 p.m. to 1.30 p.m. On examination found the following external injuries:
1 Superficial incised wound on right side of lower lip 1 X 0.5 X 0.5 cm.
2 Abrasion on right side of Chin 1 X 0.1 cm 3 Oblique stab wound on the right side front of chest situated 3 cms above the right nipple and 6 cms away from the midline measuring 3 cm X 2 cm X Chest cavity deep. The margins are clean cut and ends are sharp.
4 Oblique stab wound present 13 cms away from midline on the right Bide of chest, 20 cms below the top of shoulder along the anterior axillary line measuring 3 cm X 1.5 cm X abdominal cavity deep. The margins are clean cut and ends are sharp.
5 Stab wound on the pit of stomach 2 cms away from midline on the right side, horizontal in direction, measuring 3X2 cm X abdominal cavity deep. The wound is situated 7 cms above the level of umbilicus. The margins are clean cut and ends are sharp.
6 Incised wound present along the posterior axillary line near the right axilla measuring 3 X 1.5 cm X muscle plane.
7 Incised wound present on back of outer aspect of right elbow measuring 3 cm X 1.5 X 4 cms along the subcutaneous plane.
and on dissection found the following internal injuries:
1 On dissection of wound No. 3, the weapon has cut the skin, muscles of chest, the intercostal muscles in the second space and has entered the chest cavity and cut the upper lobe of lungs for 2 cms in length nearer the anterior border of the lung. The total length of track is 7 cms. The weapon is directed upwards, backwards and inwards. The right plural cavity contains 2800 ml of blood.
2 On dissection of wound No. 4, the weapon has cut the skin, muscles of chest, intercostal muscles in 6th intercostal space and has entered the abdomen and cut the liver 3 cms in length and pierced it for 4 cms depth. The ends are sharp and margins clean cut. The abdominal cavity contains 1000 ml of blood. The weapon is directed backwards and inwards. The total length of track is 6 cms.
3 On dissection of wound No. 5, the weapon has cut the skin, the anterior abdominal muscles (Rectus muscle on the right side) and has cut the mesentry for 3 cms in length. There is also contusion of the mesentry over 8X6 cms area. The weapon is directed backwards and downwards. The total length of track is 8 cms in length.
It is in the evidence of FW7 - Dr. Bheemappa Havanur that the death was due to shock and haemmorrhage as a result of stab injuries to the chest and abdomen as mentioned in Ex. P5 and postmortem report. The doctor on examining the knife - MO1 opined that all the stab injuries could be caused with the said weapon and furnished his opinion as per Ex.P6.
8. At this stage itself it is relevant to take note of the fact that the act of accused Parminder Singh is so brutal who has caused as many as 3 stab injuries apart from other injuries over the cheat and abdomen. It also evidences the fact that the stab injuries have penetrated to muscles of chest, intercostal muscle and also noticed deep cut margins which can be said that the injuries are of severe in nature and on account of the stab there is a collection of 1000 ml of blood in abdominal cavity. It is on account of the said injuries the deceased Kamal Monga suffered with homicidal death.
9. In the present case we have the evidence of PW1 - Parvinder Deep Singh, PW2 - Smt. Surinder Kaur and PW3 - Ajay Katharia who witnessed the accused Parminder Singh holding the knife and Kamal Monga fell down due to severe bleeding injuries caused.
10. The evidence of PW1 - Parvinder Deep Singh shows that he is residing at D. No. 120/21 at Ananadanagar, Marathahalli, Bangalore. He know the accused Parminder Singh and Kamal Monga. Both of them were studying in M.V.J. College of Engineering and were residing together at No. 120/ 21 , Anandanagar, Marathahalli, Bangalore whereas he was residing in a separate room. His evidence shows that about 8 or 9 months back while he was inside the room, PW2 -Smt. Surinder Kaur called him by shouting that the blood is oozing out. When he came near the room of Parminder Singh found that Kamal Monga had Buffered injuries and was bleeding and that the accused Parminder Singh was holding the back side (handle) of the knife whereas the deceased Kamal Monga was holding the sharp edge of the knife and were standing opposite to one another very closely. It is also in his evidence that Kamal Monga fell down. Then he took the injured to nearby hospital alongwith PW3 - Ajay Katharia and Manpreeth Singh. When he took the injured to nearby hospital, there they advised them to take the injured to some big Hospital. Then they all shifted the injured to Manipal Hospital. The accused Parminder Singh had also followed in his scooter. The doctor informed them Kamal Monga is dead. His evidence shows that the police came to the spot and recorded his complaint as per Ex.P1. It is also in his evidence that the police prepared the spot mahazar as per Ex.P2 and seized the knife.
In the cross examination he has admitted that he is staying alone in his room. The door of his room was closed and stated that his room door faces towards the road. On 13.10 2001 he witnessed the accused at the time of the incident and not before that. He has also stated that the accused Parminder Singh and Kamal Monga are very close friends both of them were staying in a single room for the last four years. He has further stated that he did not see fight between the accused Parminder Singh and deceased Kamal Monga. He has further stated that accused Parminder Singh is a very good student and he was going to college everyday. The accused Parminder Singh has never quarreled with anybody at any point of time. It is also admitted that Kamal Monga was taller than the accused Parminder Singh but he was not heavily built. He denied the suggestion that in view of the enmity some others came to the room of Kamal Monga and have assaulted. It is also in the cross examination that when he came outside the room he found PW2 - Smt. Surinder Kaur was sitting next to the door of Kamal Monga's room and shouting. The door of Kamal Monga room was open and that when he came out saw Kamal Monga was bleeding due to injuries. He has further stated that he noticed the blood on the wall and floor and stated that he did not see the fighting between the two. He has also admitted that when he shifted Kamal Monga to the auto there was profused bleeding and the accused helped him to shift Kamal Monga to the auto. Further stated that the accused Parminder Singh followed the auto till Genesys hospital. The doctor in the Manipal Hospital asked the Delhi address of Kamal Monga and also his father's name. Then the doctor declared Kamal Monga is dead.
11. Coming to the testimony of PW2 -Smt. Surinder Kaur evidences the fact that she know Parminder Singh and also Kamal Monga and she had rented a room to them and both of them were studying. She has further stated that on 13.10.2001 she was in the house and that room was at some distance. She heard sound and she came outside of her house. Both the accused Parminder Singh and Kamal Monga were in the room and she found that both of them were caught hold of each other and also noticed the blood on wall and shouted. Then Parvinder Deep Singh came. After securing the auto they took Kamal Monga to the hospital. It is also in her evidence that herself, PW1 -Parvinder Deep Singh went to the police Station and informed and stated that the injured had sustained with severe bleeding injuries and the doctor informed the police that the boy was dead.
Though there is lengthy cross examination nothing importance is elicited.
In the cross examination she has stated that the room of the deceased Kamal Monga was slightly opened and that the accused Parminder Singh as well as Kamal Monga were holding each other and she saw the blood on the wall as such she raised cries and shouted.
12. The evidence of PW3 - Ajay Katharia shows that he know Parminder Singh, PW2 - Smt. Surinder Kaur and Manpreeth Singh. He has stated that he had seen the accused Parminder Singh and both the accused Parminder Singh and Kamal Monga were residing in the same room and were studying and stated that on 13.10.2001 himself and PW1 - Parvinder Deep Singh were sitting in the room of PW1 - Parvinder Deep Singh and suddenly PW2 - Surinder Kaur shouted at about 12' O clock then they came out. As there was a dog at the door step of Kamal Monga's room he did not enter the room. It is also in his evidence that Kamal Monga tried to come out from the room but suddenly he fell down near the door. Then Manpreeth Singh came, himself and others shifted Kamal Monga to the hospital. When Kamal Monga was taken to Manipal Hospital the doctor declared him as dead.
In the cross examination he has admitted that when PW2 - Smt. Surinder Kaur shouted he thought something was wrong and till PW2 - Smt. Surinder Kaur gave a call he did not come out of his room and was inside his room by closing the door. When he came out of his room Manpreeth Singh was in upstairs. PW2 -Smt. Surinder Kaur, Parminder Singh, Kamal Monga and Parvinder Deep Singh were present and stated that the accused did not try to ran away from the place. It is also in the cross examination that on 13.10.2001 he first saw the accused Parminder Singh when PW1 -Parvinder Deep Singh's entering his room noticed one was combing the hair and another was polishing the shoe.
13. The evidence of PW4 - J. Uday Kumar shows that he came to know of the incident of murder later after he returned from his tuition. His evidence is of no importance. The other evidence available on record are of formal in nature.
14. As could be seen from the defence, the accused pleaded his absence at the time of incident. But the defence has negatived it by accepting the testimonies of PW1 - Parvinder Deep Singh, PW2 -Smt. Surinder Kaur and PW3 - Ajay Katharia, the accused Parminder Singh came to be convicted for the offence under Section 302 IPC.
15. On a careful scrutiny of the testimony of PW1 - Parvinder Deep Singh speaks of seeing the accused Parminder Singh holding the knife and there was profused bleeding from the person of Kamal Monga. The incident in question took place inside the room and also admitted that it is the accused Parminder Singh and the deceased Kamal Monga are the friends studying in the same college and were residing as tenants of PW2 - Smt. Surinder Kaur.
By the evidence of PW1 - Parvinder Deep Singh it establishes the fact that he did not witness the actual incident of assault, but the fact remains that the accused Parminder Singh and the deceased Kamal Monga were found caught holding of one another when they came out and saw. It also evidences the fact that he and another shifted Kamal Monga to hospital where he was declared dead.
16. Coining to the testimony of PW2 -Smt. Surinder Kaur evidences the fact that the accused Parminder Singh and the deceased Kamal Monga were residing as tenants in a room belonging to her and while she was in her house she heard screaming. On seeing the oozing of the blood from the person of Kamal Monga she shouted. It is then PW1 - Parvinder Deep Singh and PW3 - Ajay Katharia and others came to the spot. Her evidence also establishes the fact that both the accused Parminder Singh and Kamal Monga were caught hold of one another. But it establishes the fact that she did not witness the actual incident of assault whereas the presence of accused and the deceased is proved. It is relevant to note that the students have taken room on rent in her building and prosecuting their studies, likewise the deceased and accused were in one room, whereas PW1 - Parvinder Deep Singh had taken another room.
17. Coming to the testimony of PW3 - Ajay Katharia shows that on 13.10.2001 himself and PW1 -Parvinder Deep Singh were sitting inside the room and they heard the shouting of PW2 - Smt. Surinder Kaur and on coming outside saw the bleeding from Kamal Monga and that he did not enter the room as the dog was in front of the door.
18. From the testimonies of PWs1 to 3 i.e., Parvinder Deep Singh, Smt. Surinder Kaur and Ajay Katharia, it clearly evidences the fact that the accused Parminder Singh was holding the handle of the knife and the tip of the knife was held by the deceased Kamal Monga and both have caught hold of one another.
19. In the present case, it establishes the fact that on account of the injury suffered by the deceased Kamal Monga, it resulted in his death. But the question the Court has to consider is whether the accused Parminder Singh is entitled to claim the benefit of exceptions of Section 300 IPC so as to scale down the offence to one under Section 304 Part I or Part II as the case may be, when the accused has pleaded "alibi". It is with these backgrounds, we have to examine the rulings of the Apex Court sought to be relied by the learned Counsel for the appellant-accused and also for the prosecution.
20. Learned Addl. State Public Prosecutor Sri. N. Rudramuni firstly submitted that when the act of assault took place inside the room it is for the accused to explain as it is within his knowledge and that he has to discharge the burden as required under Section 105 of the Evidence Act.
21. Section 106 of the Evidence Act thus reads:
106. Burden of proving fact especially within knowledge: When any fact is especially within the knowledge of any person, the burden of proving that feet is upon him.
22. The reading of Section 106 makes clear that when certain fact is within the knowledge of the accused under the circumstances of the case the burden falls on him to explain, in the absence of it an adverse inference has been drawn. But in this case the crime is proved establishing the fact that on account of the injuries caused the deceased died. Therefore, the accused explaining in other circumstances as required under Section 106 of the Evidence Act does not arise. Therefore, the submissions of the learned Counsel is without any merits.
23. Learned Addl State Public Prosecutor Sri. N. Rudramuni submitted that while the accused was questioned under Section 313 Cr.PC Bets up a defence of "alibi" by stating that he was not present and therefore when the accused pleads alibi the benefit of Section 105 of the Evidence Act cannot be extended.
24. Section 105 of the Evidence Act thus reads:
108. Burden of proving that of case of accused comes within exceptions. When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code (XLV of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.
25. That in order to extend the benefit of General Exceptions available in the Indian Penal Code the accused has to show the existence of circumstances. If such circumstances are available on record naturally the accused is entitled for general exceptions. It has to be considered from the testimony of the prosecution witnesses and also by perusing the entire case papers including the voluntary statement of the accused and also the case dairy.
26. Learned Addl. State Public Prosecutor Sri. N. Rudramuni in support of his. contention brings to the notice of the Court in the case of Vijayee Singh and Ors. v. State of Uttar Pradesh dealing with Section 101 to 104 and 105 of the Evidence Act as to when the burden gets discharged if probability is proved or reasonable doubt of prosecution is made out. At para 32 thus observed:
32. At this stage we have to point out that these principles cannot be made applicable to a case where the accused sets up alibi. There the burden entirety lies on him and plea of alibi does not come within the meaning of these exceptions. Circumstances leading to alibi are within his knowledge and as provided under Section 106 of the Act he has to establish the same satisfactorily. Likewise in the cases where the statute throws special burden on the accused to disprove the existence of the ingredients of the offence, he has to discharge the burden, for example, in the cases arising under Prevention of Food Adulteration Act if the accused pleads a defence under Section 19, the burden is on him to establish the same since the warranty on which he relies is a circumstance within his knowledge. However, it may not be necessary to enumerate these kinds of cases as we are mainly concerned in this case only with the scope and application of Section 105 of the Evidence Act, We also make it clear that the principles laid down by us are only in respect of the said provision only. As we think that it would be appropriate and useful to set out the sum and substance of the above discussions regarding the scope of Section 105 and we accordingly state the same as follows.
27. It is in that context, learned Addl. State Public Prosecutor contended that the exception provided under Section 105 cannot be extended to the accused as he has set up a plea of alibi. While considering the proposition as to when the general exceptions are not available as mentioned under Section 105 of the Evidence Act the answer is at para 33 which reads as follows:
33. The general burden of establishing the guilt of accused is always on the prosecution and it never shifts. Even in respect of the cases covered by Section 105 the prosecution is not absolved of its duty of discharging the burden. The accused may raise a plea of exception either by pleading the same specifically or by relying on the probabilities and circumstances obtaining in the case. He may adduce the evidence in support of his plea directly or rely on the prosecution case itself or, as stated above, he can indirectly introduce such circumstances by way of cross examination and also rely on the probabilities and the other circumstances. Then the initial presumption against the accused regarding the non existence of the circumstances in favour of his plea gets displaced and on an examination of the material if a reasonable doubt arises the benefit of it should go to the accused. The accused can also discharge the burden under Section 105 by preponderance of probabilities in favour of his plea. In case of general exceptions, special exceptions, provisos contained in the Penal Code or in any law defining the offence, the Court, after due consideration of the evidence in the light of the above principles, if satisfied, would state, in the first instance, as to which exception the accused is entitled to, then see whether he would be entitled for a complete acquittal of the offence charged or would be liable for a lesser offence and convict him accordingly.
28. The principal laid down supra shows that the burden of proof stand by the prosecution even in respect of the cases covered under Section 105 of the Evidence Act, if the accused were to point out directly or indirectly the probability and other circumstances available on record, it is open for the accused independently to claim the exception provided under Section 300 IPC.
29. It is time and again the Apex Court has held that no case as a precedent in a criminal case that each case has to be examined on its own facts and circumstances and that no case will be of identical to that of another case. Similarly where the accused has pleaded guilty a strict proof is required for explaining the proof of alibi. While considering Section 11 of the Evidence Act in the case of Binay Kumar Singh v. State of Bihar observed:
it is basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi.
Therefore, a mere fact that the accused pleaded his absence at the place, the burden will never be shifted. The decision supra sought to be stated by the learned Counsel for the appellant to point out the burden proof never shift on the accused though accused pleaded alibi. It is relevant to note the plea of "alibi" is also like any other defence, muchless like the "pleading not guilty", therefore the entire burden is on the prosecution which never shifts on the accused.
30. But in light of the reasoning supra rendered in the case of Vijayee Singh and Ors. v. State of Uttar Pradesh reported in AIR 1990 Supreme Court 1469 it cannot be said that the accused who pleads alibi is not entitled to claim the benefit of exceptions provided under Section 300 IPC. Therefore, we hold that where in a case the accused take the defence of alibi nevertheless the offence proved is entitled for the benefit of exception of Section 300 IPC if the circumstances are brought out from the testimony of the prosecution witnesses and if it is manifest on the established facts.
31. Irrespective of the defence of the accused when he has been found guilty for any of the offences, if such evidence on record were to show that it comes under any of the exceptions of Section 300 IPC the accused as a matter of light entitled to claim such benefit and it is also the duty of the Court to scrutinize the records to find out whether any such circumstances are available entitling the accused to claim the benefit of general exceptions.
32. In light of the submissions of the learned Counsel for the appellant Sri. Hasmath Pasha, we have to see whether the act of the accused comes within any of the general exceptions of Section 300 IPC. In the case of State of Uttar Pradesh v. Ram Swarup and Anr. the general principals laid down at para 21 thus reads:
21. The respondents led no evidence to prove their defence but that is not necessary because such proof can be offered by relying on the evidence led by the prosecution, the material elicited by cross-examining the prosecution witnesses and the totality of facts and circumstances emerging out of the evidence in the case.
33. It is clear that the accused Parminder Singh could rely on the prosecution evidence itself for his stand to claim the benefit of exceptions. Further in the case of Vijayee Singh and Ors. v. State of Uttar Pradesh at the end of the para 17 it is observed thus:
While holding that ratio laid down by the majority in parbhoo's case AIR 1941 All 402 is in conformity with law, however, observed that the reasoning in support of the conclusions is erroneous. Beg, J, was not prepared to go to that extent. The majority speaking through Shri. Mathur J., laid down that the dictum in parbhoo's case which is still a good law, can, however, be modified as follows:
In a case in which any General Exception in the Indian Penal Code, or any special exception or proviso contained in another part of the same Code, or in any law defining the offence, is pleaded or raised by an accused person and the evidence led in support of such plea, judged by the test of the preponderance of probability, as in a civil proceeding, fails to displace the presumption arising from Section 105 of the Evidence Act, in other words, to disprove the absence of circumstances bringing the case within the said exception; but upon a consideration of the evidence as a whole, including the evidence given in support of the plea based on the said exception or proviso, a reasonable doubt is created in the mind of the Court, as regards one or more of the ingredients of the offence, the accused persons shall be entitled to the benefit of the reasonable doubt as to his guilt and hence to acquittal of the said offence.
The decision supra are well established principles if a reasonable doubt were to be created in the mind of the Court as regards one or more of the ingredients of the offence, the accused shall be entitled to the benefit.
34. In the case of Pariasami and Anr. v. State of Tamil Nadu reported in AIR 1996(4) Crimea 39 (SC) at para 15 and 16 thus observed:
15. We shall now deal with the alternative contention advanced by Sri. Siva Subramaniam, learned Senior Counsel, that the offence would not go above Section 304 Part I of the IPC. This contention is made on the premise that deceased was the aggressor in the incident and hence appellant had initial right of private defence though they would have exceeded that right. We may point out that appellant have not stated, when examined under Section 313 of the Code, that they have acted in exercise of such right. Of course, absence of such a specific plea in the statement is not enough to denude them of the right if the same can be made out otherwise,
16. While dealing with the said alternative contention we have to bear in mind Section 105 of the Evidence Act. A rule of burden of proof is prescribed therein that the burden is on the accused to prove the existence of circumstances bringing the case within any of the exceptions "and the Court shall presume the absence of such circumstances". The said rule does not whittle down the axiomatic rule of burden (indicated in Section 101) that the prosecution must prove to prove that the accused has committed the offence charged beyond reasonable doubt applies in all criminal case except where any particular statute prescribes otherwise. The legal presumption created in Section 105 with the words "the Court shall presume the absence of such circumstances" is not intended to displace the aforesaid traditional burden of the prosecution. It is only where the prosecution has proved its case with reasonable certainty that the court can rest on the presumption regarding absence of circumstances bringing the case within any of the exceptions. This presumption helps the Court to determine on whom is the burden to prove facts necessary to attract the exception and an accused can discharge the burden by preponderance of operabilities' unlike the prosecution. But there is no presumption that an accused is the aggressor in every case of homicide. If there is any reasonable doubt, even from prosecution evidence, that the aggressor in the occurrence was not the accused but would have been the deceased party, then benefit of that reasonable doubt has to be extended to the accused, no matter he did not adduce any evidence in that direction.
This makes clear that even in the absence of specific plea if the material on record shows the preponderance of the probabilities for scaling down the offence, such benefit could be extended.
35. In the case of The State of Bihar v. Mohammad Khursheed reported in 1971 Supreme Court Cases (Cri.) 671 it is observed "when there is doubt as to the origin the benefit should go to the respondent".
36. In the case of Surendra and Anr. v. State of Maharastra reported in 2006 AIR SCW 4341 at para 27 observed:
27. The learned courts below committed a manifest error of law in opining that the Appellants had not discharged the initial burden which is cast on them. Even such a plea need not be specifically raised. The Courts may only see as to whether the plea of exercise of private defence was probable in the facts and circumstances of the case.
That cannot be undisputed in the principles laid down in the decision supra.
37. In the case of Smt. Sandhya Jadhav v. State of Maharastra reported in AIR 2006 (2) Crimes 5 (SC) it is observed:
to attract Exception 4 to 300 IPC it has to be established that act was committed without, premeditation in a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner.
38. To extend the benefit of exception 4 the act should not be coupled with any premeditation and the accused taking undue advantage of the weakness of the victim. This has to be looked into on the basis of the evidence available on record.
39. Learned Addl. State Public Prosecutor in support of his contention relied in the case of State of Uttar Pradesh v. Murali reported in (2006) 1 Supreme Court Cases (Cri) 636 at para 5 thus observed:
5. We noted with dismay the reasoning given by the High Court while altering the offence under Section 302 IPC into one under Section 304 Part I IPC. The High Court has agreed with all the findings recorded by the trial Court. The High Court, however, considered the submission of the accused that out of three injuries sustained by the victim only Injury 2 could be fatal. The High Court was also of he view that there was no evidence of intention to commit murder or culpable homicide amounting to murder. The High Court has taken this view on the ground that only one blow having been caused on vital part of the body, therefore, no knowledge that death, in all probability, shall be caused, could be assigned. This finding of the High Court, in our view, is perverse and contrary to the evidence on record. It is a clear case of the prosecution that wen the deceased was going to his filed he was attacked by the respondent along with other accused who came out from hideout armed with knife, handle of hand pump and with dandas in their hands. It is also in the evidence on record that the respondent herein gave a fatal blow to the deceased consequent upon which the deceased succumbed to injuries. From the analysis of the prosecution story and injury caused by the respondent, namely, Injury 2 by the knife the intention of the respondent to murder was clearly discernible. Therefore, in our view, the reasoning recorded by the High Court is totally unjustified.
In the case supra it is in the evidence that while the deceased was going to his field, he was attacked by the respondent alongwith other accused who came out and armed with knife. It is in that context it is held that the judgment of the High Court is totally unjustified. It is with these backgrounds, we have to Bee whether there are any material circumstances to scale down for the lesser offence or liable to confirm the conviction and sentence.
40. Learned Addl. State Public Prosecutor placed reliance in the decision in the case of State of Maharastra v. Krishnamurti Laxmipati Naidu at para 20 it is observed thus:
20. The dying declaration supports the substratum of the prosecution case as narrated by the eyewitnesses, that the accused had following an altercation with the deceased, stabbed the unarmed deceased twice in the abdomen, and caused such injuries as were sufficient in the ordinary course of nature to cause death, and did cause his death. It was therefore, for the accused to establish with a balance of probability circumstances which would bring his case within any Exception. Since the deceased was unarmed and the assault cannot be said to be sudden and unpremeditated, Exception II or any other Exception in Section 300 IPC will not apply. Since the accused had caused the injuries to the unarmed deceased before he received the stick blows given by Shivaji, it cannot be said that the deceased was the aggressor and that the accused caused those fatal injuries to the deceased to ward off any imminent apprehension of death or grievous hurt to himself.
By placing reliance on the decision supra it is Bought to be contended that the burden is on the accused to show that his act comes under any of the exceptions and are of sudden and un premeditated, then only the accused can seek the benefit of any of the exceptions under Section 300 IPC.
41. There cannot be any dispute regarding the principles laid down the burden is on the accused to establish under what circumstances the incident in question has taken place but at the same time the Court should not forget if the materials on record shows the circumstances that the act comes under any of the exceptions such benefit has to be extended to the accused.
42. It is time and again the judicial pronouncement have enlightened the Court as to how the matter has to dealt when sudden incident of assault have took place resulting in the death of a person. If the act of the accused were to come within 4 exceptions of Section 300 IPC, then it comes within the meaning of culpable homicide not amounting to murder
43. The principles laid down in the case of Abdul Waheed Khan @ Waheed and Ors. v. State of Andhra Pradesh reported in 2005 Supreme Court Cases (Cri) 1301, the Apex Court at para 11 has observed thus:
11. This brings us to the crucial question as to which was the appropriate provision to be applied. In the scheme of IPC culpable homicide is the genus and "murder", its specie. All "murder" is "culpable homicide" but not vice versa. Speaking generally, "culpable homicide" sans "special characteristics of murder is culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of the generic offence, IPC practically recognizes three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the greatest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided or the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.
In light of the above, we have to examine as to whether the offence does fall under Section 300 IPC or under Section 304 Part I or Part II of IPC.
44. It has clearly come in the evidence of PWs1 to 4 that the deceased Kamal Monga and the accused Parminder Singh are close friends studying in the same college in final year B.E, and were studying together by residing in one room having taken on rental basis from PW2 - Smt. Surinder Kaur. It is also forthcoming that the incident of quarrel ensued inside the room and none have witnessed as to how the quarrel started. There is also no evidence of previous enmity between the accused Parminder Singh and deceased Kamal Monga and that the accused Parminder Singh as well as deceased Kamal Monga were of good conduct and they did not have bad antecedents.
45. PW1 - Parvinder Deep Singh in his complaint Ex.P1 has stated as follows:
I am residing at the above address since 20.11.2000 in my Aunty's house and studying in H.E.A. college in Ist year Diploma Computer Science. Mr. Parminder Singh and Kamal Monga were staying in my opposite room in the same building since from four months. Parminder Singh and Kamal Monga studying in MVJ College of Engineering, White Field. They were very close friends.
This day i.e., on 13.10.2001, I was sitting in my room alongwith my friend Ajay Katharia, at about 12.15 p.m. my aunty called as (Mrs. Surinder Kaur) called us to come outside. When we came outside and we saw that Mr. Parminder Singh and Kamal Monga fighting. We saw that Parminder Singh was holding knife from one side and Kamal Monga was holding knife from another side. Them Parminder Singh left the knife, I have taken knife from Kamal Monga's hand and thrown on bed. Kamal Monga felt down and he was bleeding, we have taken into Auto at 12.20 and we reached Manipal Hospital at 12.30 were Doctor's declared Kamal Monga brought dead. I saw 4-5 injury on Kamal Monga's body.
Hence, I request to take action against the responsible person.
This shows that when he came out from his room alongwith his friend PW3 - Ajay Katharia, PW2 -Smt. Surinder Kaur was also present. Then they noticed the accused Parminder Singh and deceased Kamal Monga fighting. They saw the accused Parminder Singh was holding the knife from one side and Kamal Monga was holding the knife from another side. This shows that the accused Parminder Singh and deceased Kamal Monga were fighting. The reasons for alleged quarrel and the genesis of the crime is not proved by the prosecution.
46. But in the voluntary statement recorded on 15.10.2001 reads as follows:
From the statement of the accused Parminder Singh it could be extracted the reasons ensuing for the quarrel. It is seen that the accused Parminder Singh had taken a loan of Rs. 5,000/- from the deceased Kamal Monga and was pestering him to return the amount. As he did not refunded the amount the deceased Kamal Monga was abusing him, It also shows that on the night of 12.10,2001 a mosquito coil which was burning fell on the rug of the deceased Kamal Monga and a portion of the rug was burnt. On account of the said fact and also on account of the money, on 13.10.2001 at about 12.15 p.m. the deceased Kamal Monga picked up quarrel with him and gave a slap. It is then the accused Parminder Singh stabbed with knife all over his body. This shows that as the deceased Kamal Monga abused and gave a slap resulted in a fight and ended in the death of Kamal Monga.
47. The accused Parminder Singh and deceased Kamal Monga being close friends having spent morethan 4 years studying in B.E. in the same college and there being no evidence regarding their previous enmity it can be easily said that the act of the accused Parminder Singh is without premeditation and in a sudden quarrel, without taking undue advantage the incident took place for which we are of the opinion that it falls under exception 4 of Section 300 IPC.
48. It is no doubt true that the act of the accused Parminder Singh is so brutal but it is not the number of injuries that are to be taken note of. On a careful scrutiny of the testimonies of PWs1 to 4, the complaint Ex.P1 and the voluntary statement there exists a circumstances to show that the offence does fall under Section 304 Part I IPC.
49. We haw heard the learned Counsel for the appellant Sri. Hasmath Pasha and the learned State Public Prosecutor Sri N. Rudramuni regarding the sentence.
50. The act of the accused' in assaulting the deceased is so severe with knowledge but not with any intention. Therefore, we are of the opinion that it comes within the ingredients of Section 304 Part I IPC for which the accused is liable to be convicted.
51. For the foregoing reasons, the appeal is allowed in Part convicting the accused for the offence under Section 304 Part I IPC sentencing him to undergo imprisonment for a period of ten years and to pay a fine of Rs. 25,000/- in default of payment of fine to undergo rigorous imprisonment for a period of one year.
Out of Rs. 25,000/-, an amount of Rs. 20,000/- be paid to CW5 - Smt. Veena Monga, the mother of the deceased Kamal Monga.
The conviction and sentence for the offence under Section 302 IPC is set aside.
The accused is entitled for set off as required under Section 428 Cr.PC.