JUDGMENT 1. - This appeal is directed against the judgment dated 02.12.1997, delivered by learned Sessions Judge, Kota, in Sessions Case No. 257/1994, State of Rajasthan v. Chhitar Lal , convicting and sentencing the accused appellant Chhitar Lal u/s. 302 IPC to suffer imprisonment for life. 2. The occurrence which was the subject matter of the charge against the accused appellant took place at about 7.30 p.m. on 26.04.1994, at village Kheda-Rasulpur. PW-1 Heeralal son of the deceased Latoor Lal, lodged a written report Ex.P/1, at Police Station Kaithun, district Kota at about 8.15 a.m. on the same day with the averments that his father Latoor Lal, aged 70 years, while going with his cows infront of one Madan Lal's house was given knife blow by accused Chittar Lal, resulting into his death on the spot. This incident was witnessed by PW-6 Nathu Lal, PW-5 Shiv Prakash and others. It was next stated that his mother PW-2 told that the accused Chhitar was coming to their house on which she closed the door of the house. When the informant Heera Lal went on the roof, he saw accused Chittar with knife in hand, who ran towards the hospital. Thereafter, he reached the spot and found his father dead. It is further stated that Moti Lal, father of the accused executed a will of one house in favour of her daughter Smt. Ganga, PW-16, who lateron sold this house to Bharat Kumar, PW-78, brother of the informant Heera Lal for a consideration of Rs. 35,000/- and hence the accused was having enimity. 3. Formal FIR Ex.P/2 was registered u/s. 302 IPC and after usual investigation, charge sheet was filed in the Court of learned Judicial Magistrate No. 3, Kota (North), who committed this case to the Court of learned sessions Judge, Kota. The accused pleaded not guilty of the charge u/s. 302 IPC and claimed the trial. 4. The prosecution examined 18 witnesses viz. PW-1, Heeralal, PW- 2 Pista Bai, PW-3 Dhan Raj, PW-4 Shiv Shankar, PW-5 Shiv Prakash, PW-6 Nathu Lal, PW-7 Shambhu Lal, PW-8 Bharat Kumar, PW-9 Nand Kishore, PW-10 Kajod Singh, PW-11 Jugal Kishore, PW-12 Satya Narain, PW-13 Uttam Chand, PW-14 Hem Raj, PW-15 Chandra Prakash, PW-16 Smt. Ganga Bai, PW-17 T. Guitey and PW-18 and Dr. Vinod Kumar Sharma. 5. PW-1, Heeralal, PW- 2 Pista Bai, PW-3 Dhan Raj, PW-4 Shiv Shankar, PW-5 Shiv Prakash, PW-6 Nathu Lal, PW-7 Shambhu Lal, PW-8 Bharat Kumar, PW-9 Nand Kishore, PW-10 Kajod Singh, PW-11 Jugal Kishore, PW-12 Satya Narain, PW-13 Uttam Chand, PW-14 Hem Raj, PW-15 Chandra Prakash, PW-16 Smt. Ganga Bai, PW-17 T. Guitey and PW-18 and Dr. Vinod Kumar Sharma. 5. Thereafter, the accused was examined as per Section 313 Cr.P.C. The accused denied the evidence of the prosecution and further stated that a false case has been made out against him on account of enmity. DW-1 Radhey Shyam was examined in defence. 6. We have heard learned counsel for the appellant, learned Public Prosecutor and have scanned the entire evidence. 7. Post-mortem on the dead body of Latoor Lal was conducted by PW- 18 Dr. Vinod Sharma on 26.04.1994, at 10.30 a.m. at Kaithun Hospital. He noted the following ante-mortem external injuries observed by him in the Post-Mortem Report Ex.P/20. 1. Stab wound 1" x 1/4" x deep 5" in pleural cavity alongwith fracture of mid sternum V arranged. 2. Stab wound 3/4" x 1/4" x deep into abdominal cavity 4", 2" left to umbilicus. On internal examination, it was observed that there is cut in mid sternum v. arranged . Pleurae congested. There is a cut in the pleura overlying the anterior aspect of right upper lobe. Right lung, left lobe is cut and vessels are cut and haemorrhage is seen in right pleural cavity and large intestine is pierced cut, contained blood in it. Mesentery is also cut and blakish. Spleenic flexure of descending colon is pierced. There is cutting of mesenting blood vessels. He further stated that injury Nos. 1 & 2 in the ordinary course of nature were likely to cause death. In his opinion the cause of death was fracture of sternum and injury to vital part of lungs and large intestine and haemorrhage in lungs and mesenteric vessels. 8. Keeping in view this medical evidence, learned Sessions Judge has rightly come to this conclusion that Latoor Lal died due to these injuries. 9. The next important question arises as to whether the accused appellant caused these injuries and if so, what offence, was committed ? 10. PW-1 Heera Lal, son of the deceased Latoor Lal, is not the eye witness of this occurrence. 9. The next important question arises as to whether the accused appellant caused these injuries and if so, what offence, was committed ? 10. PW-1 Heera Lal, son of the deceased Latoor Lal, is not the eye witness of this occurrence. He has stated that on 26.04.1994, at about 7.00 a.m. His father left the house with cows and his younger brother Dhan Raj PW-3 was also going with his father. Thereafter Dhan Raj rushed back crying that Shri Chhitar Lal has killed father. At that time, he and his mother PW-2 were at their house and the place of occurrence was about 30-40 steps ahead of their house. He has further stated that he reached the spot just after the occurrence and found his father injured and dead on the spot. He saw the accused running with knife in his hand from the scene of occurrence and thereafter he lodged the first information report on the same day at about 8.15 a.m. at Police Station Kaithun. 11. PW-2 Smt. Pista Bai, wife of deceased is also not the eyewitness of the occurrence, though in., her cross-examination, she claims to be an eye-witness. However, PW-2 corroborates the statement of her son PW-1 Heera Lal. PW-3 Dhan Raj, aged 15 years, was present at the time of occurrence and is son of deceased Latoor Lal. PW-5 Shiv Prakash and PW-6 Nathu Lal have also been examined as eye-witnesses on behalf of the prosecution. Only PW-5 Shiv Prakash and PW-6 Nathu Lal have been named as eyewitnesses in the FIR but both of them have not supported the prosecution story, hence they were declared hostile. PW-17 T. Guitey was the Investigating Officer in this case and remaining witnesses are formal. PW-8 Bharat Kumar, son of the deceased states that Ex.P/9, the will is in the name of PW-16 Smt. Ganga Bai (sister of the accused) and Ex.P/8 is the sale-deed executed by Smt. Ganga Bai, in his favour. PW-16, Smt. Ganga Bai, though declared hostile, has supported the above statement of PW-8 Bharat Kumar. Both the documents are registered and dated respectively 28.04.1986 and 19.08.1993. This sale deed dated 19.08.1993, executed by Smt. Ganga Bai in favour of Bharat Kumar is said to be the cause of enmity between the parties. PW-16, Smt. Ganga Bai, though declared hostile, has supported the above statement of PW-8 Bharat Kumar. Both the documents are registered and dated respectively 28.04.1986 and 19.08.1993. This sale deed dated 19.08.1993, executed by Smt. Ganga Bai in favour of Bharat Kumar is said to be the cause of enmity between the parties. PW-1 Heera Lai, PW-2 Smt. Pista Bai and PW-3 Dhan Raj have also stated that on account of this sale deed, the accused was having enmity with them and there is no reason to disbelieve this evidence. Thus, the prosecution has proved that the accused appellant was having inimical terms with the deceased. 12. In view of this back ground, learned Sessions Judge, relying upon the sole testimony of PW-3 Dhan Raj has held the accused guilty of this offence of murder. Learned counsel for the accused appellant urged that the evidence adduced by the prosecution was not sufficient to find the guilty for offence, the accused had been charged with. It was contended that only two witnesses, named in the FIR have not supported the prosecution case and PW-3 Dhan Raj, has not been named in the FIR which was lodged just after the said occurrence and, therefore, PW-3 Dhan Raj was not a reliable witness. It was also contended that the presence of Dhan Raj on the spot was extremely doubtful as he left his house prior to 7.00 a.m. to appear on 6th class exam. while the deceased left his house at about 7.30 a.m. Learned counsel for the appellant has referred the evidence of PW-1 Heeralal, PW-2 Smt. Pista Bai and PW-3 Dhan Raj and contended that Dhan Raj appeared in 6th class exam. on that day at the time of occurrence and, therefore, he did not witness this occurrence and there is no other evidence to prove that the accused caused injuries to the deceased Latoor Lal and it was unsafe to convict the accused on the basis of sole testimony of PW-3 Dhan Raj. 13. Learned Public Prosecutor has supported the conclusion of the learned Sessions Judge on this aspect of the prosecution case. 14. We have carefully scanned the entire material available on the record. 13. Learned Public Prosecutor has supported the conclusion of the learned Sessions Judge on this aspect of the prosecution case. 14. We have carefully scanned the entire material available on the record. PW-3 Dhan Raj has stated that on the date of occurrence, he, alongwith his father was going from their house at about 7.30 a.m. When they reached infront of one Madan Lal's house, three persons Shiv Prakash PW-5, Nathu Lal PW-6 and accused Chittar Lal were sitting there. Accused Chittar Lal caught hold of his father and inflicted two blows on chest and abdomen with knife. Consequently his father fell down on the earth. It is further stated that he rushed towards his house and told this fact to his mother, who was standing outside the house. It is also stated that Chittar Lal was having sword as well and he threw sword there and ran away towards the hospital with knife in his hand. Thereafter, his mother and elder brother Heera Lal came to the spot and his father was dead by the time. He has been put to detailed cross-examination. He has denied the suggestion that the accused has been falsely implicated on account of enmity. Some omissions have also been pointed out in his police statement Ex.D/3. 15. On careful consideration of the above statement, merely on the fact that the name of PW-3 Dhan Raj is not mentioned in the FIR is no ground to discard his testimony. The Hon'ble Supreme Court in Shri Bhagwan v. State of Rajasthan, reported in (2001) 6 SCC 296 observed that non-mention of the name of appellant accused in FIR which was lodged by member of the victim family was not material as the relative must have been in severe psychic trauma at the time of giving Ex.P/8 statement before the police and naturally he did not mention the name of the accused appellant to PW-23, Police Officer, who recorded his statement immediately thereafter and in that statement the name of the accused was mentioned as person last seen with the deceased. Here, in this case, the occurrence took place at about 7.30 a.m. and the FIR Ex.P/1 was lodged at the Police Station at about 8.15 a.m. i.e. just after 45 minutes of the occurrence by the son of the deceased. 16. Here, in this case, the occurrence took place at about 7.30 a.m. and the FIR Ex.P/1 was lodged at the Police Station at about 8.15 a.m. i.e. just after 45 minutes of the occurrence by the son of the deceased. 16. Thus, in view of the judgment of Hon'ble Supreme Court in Shri Bhagwan v. State of Rajasthan (supra) it is also necessary to mention here that the statement of PW-3 Dhan Raj u/s. 161 Cr.P.C. was recorded by the Investigating Officer on the same day i.e. 26.04.1994. Therefore, the statement of Dhan Raj can not be discarded only on this ground that his name does not find place in FIR. Another contention of learned counsel for the accused appellant is also not acceptable that the presence of Dhan Raj was extremely doubtful. As per learned counsel for the accused, it is mentioned in FIR Ex.P/1 that the deceased Latoor Lal left the house at 7.30 a.m. while PW-1 Heera Lal has stated in cross-examination that Dhan Raj left the house prior to 7.00 a.m. to appear in 6th class exam. It is also urged that Dhan Raj appeared in 6th class exam. on that very day at the time of occurrence and, therefore, his presence at the spot was extremely doubtful. Having considered this argument carefully in the light of FIR Ex.P/1 and the statement of PW-1 Heera Lal, PW-2 Smt. Pista Bai and PW-3 Dhan Raj, the presence of Dhan Raj on the spot does not appear to be doubtful at all as it is stated in FIR Ex.P/1 that the deceased left the house at about 7.00-7.30 a.m. PW-1 Heera Lal in his statement also stated that his father left the house at about 7.00 a.m. and his brother Dhan Raj left the house prior to 7.00 a.m. though no definite time has come in his statement. Similar is the statement of Pista Bai regarding this time. PW-3 Dhan Raj has also stated that the time was about 7.30 a.m. and he was going to appear in exam. and he was going with his father. Therefore, there is no material contradiction on the point of time when the deceased Latoor Lal and his son PW-3 Dhan Raj left house. However, difference of half an hour or so, according to villagers is not of much significance. and he was going with his father. Therefore, there is no material contradiction on the point of time when the deceased Latoor Lal and his son PW-3 Dhan Raj left house. However, difference of half an hour or so, according to villagers is not of much significance. It is also not acceptable at all that PW-3, Dhan Raj appeared in his examination on the date of occurrence. Dhan Raj has clearly stated in cross-examination that he could not go to school on that day and that he did not appear in the exam. on that day. It is also stated in cross-examination that he secured 20 marks in English paper but these marks were obtained by him in oral test, which took place three days prior to this incident. Thus the presence of PW-3 Dhan Raj on the spot at the time of occurrence is well-proved. 17. It was next argued by learned counsel for the accused that it is unsafe to rely upon the sole testimony of PW-3 Dhan Raj as he is also an interested witness. 18. Learned Public Prosecutor relying upon Vadivelu Thevar v. State of Madras, AIR 1957 SC 614 argued that conviction can take place on the sole testimony. We have considered this aspect in the light of the judgment of Hon'ble Supreme Court in Vadivelu Thevar, (supra). The relevant portion of this judgment is reproduced as under : "Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the Court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the Court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well-established rule of law that the Court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking oral testimony in this context may be classified into three categories namely : (1) Wholly reliable. (2) Wholly unreliable. (3) Neither wholly reliable nor wholly unreliable." 19. The statement of PW-3 Dhan Raj has been wholly relied upon by learned Sessions Judge and rightly so in our view. Thus it is proved beyond reasonable doubt that these injuries were caused to the deceased Latoor Lal by the accused appellant Chittar Lal. 20. The next question, thus is what offence was committed ? 21. Learned counsel has argued that the offence is not of murder but culpable homicide, not amounting to murder. The argument is that in the opinion of PW-18 Dr. Vinod Kumar Sharma, the injury Nos. 1 and 2 were likely to cause death, meaning thereby that these injuries were not sufficient in the ordinary course of nature to cause death, hence the offence at the most does not travel beyond Section 304 Part II IPC. It is also contended that as per prosecution itself, this incident took place on the way when deceased Latoor Lal was going towards his field and thus it is not the case that the accused went to the house or field of the deceased to assault him. He has placed reliance upon Anda & Ors. v. The State of Rajasthan, AIR 1966 SC 148 and Jayaraj v. The State of Tamil Nadu, AIR 1976 SC 1519 . He has placed reliance upon Anda & Ors. v. The State of Rajasthan, AIR 1966 SC 148 and Jayaraj v. The State of Tamil Nadu, AIR 1976 SC 1519 . We have given our thoughtful consideration to this argument in view of the judgments of Hon'ble Supreme Court Court. Para Nos. 5 to 7 of the judgment of Hon'ble Supreme Court in Anda v. State of Rajasthan (supra) are relevant and thus are reproduced as under : (5) Section 300 tells us when the offence is murder and when it is culpable homicide not amounting to murder. Section 300 begins by setting out the circumstances when culpable homicide turns into murder which is punishable u/s. 302 and the exceptions in the same section tell us when the offence is not murder but culpable homicide not amounting to murder punishable u/s. 304. Murder is an aggravated form of culpable homicide. The existence of one of four conditions turns culpable homicide into murder while the special exceptions reduce the offence of murder again to culpable homicide not amounting to murder. We are not concerned with the exceptions in this case and we need not refer to them. We now refer to the circumstances which turn culpable homicide into murder. They read: "300. Murder. Except in the cases hereinafter excepted culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or 2ndly - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused or 3rdly, - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or 4thly - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid". Taking the four clauses one by one we find that under the first clause of Section 300 culpable homicide is murder when the act by which death is caused is done with the intention of causing death. Taking the four clauses one by one we find that under the first clause of Section 300 culpable homicide is murder when the act by which death is caused is done with the intention of causing death. This clause reproduces the first part of Section 299. An intentional killing is always murder unless it comes within one of the special exceptions in Section 300. If an exception applies, it is culpable homicide not amounting to murder. It is the presence of a special exception in a given case reduces the offence of murder to culpable homicide nor amounting to murder when the act by which death is caused is done with the intention of causing death. This clause reproduces the first part of Section 299. An intentional killing is always murder unless it comes within one of the special exceptions in Section 300. If an exception applies, it is culpable homicide not amounting to murder. It is the presence of a special exception in a given case which reduces the offence of murder to culpable homicide not amounting to murder when the act by which death is caused is done with the intention of causing death. (6) The 2ndly in Section 300 mentions one special circumstance which renders culpable homicide into murder. Putting aside the exceptions in Section 300 which reduce the offence of murder to culpable homicide not amounting to murder, culpable homicide is again murder if the offender does the act with the intention of causing such bodily injury which he knows to be likely to cause the death of the person to whom harm is caused. This knowledge must be in relation to the person harmed and the offence is murder even if the injury may not be generally fatal but is so only in his special case, provided the knowledge exists in relation to the particular person. If the element of knowledge be wanting the offence would not be murder but only culpable homicide not amounting to murder or even a lesser offence. Illustration (B) appended to this clause very clearly brings out the point. It reads : "(b) A, knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes him with the intention of causing bodily injury, Z dies in consequence of the blow. Illustration (B) appended to this clause very clearly brings out the point. It reads : "(b) A, knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes him with the intention of causing bodily injury, Z dies in consequence of the blow. A is guilty of murder, although the blow might not have been sufficient in ordinary course of nature to cause the death of a person in a sound state of health. But if A, not knowing that Z is labouring under any disease gives him such a blow as would not in the ordinary course of nature kill a person in a sound state of health, here A, although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death or such bodily injury as in the ordinary course of nature would cause death". (7) The third clause views the matter from a general stand point. It speaks of an intention to cause bodily injury which is sufficient in the ordinary course of nature to cause death. The emphasise here is on the sufficiency of the injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary way of nature and when this exists and death ensues and the causing of such injury is intended the offence is murder. Sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused and sometimes both are relevant. The determinant factor is the intentional injury which must be sufficient to cause death in the ordinary course of nature. If the intended injury cannot be set to be sufficient in the ordinary course of nature to cause death, that is to say, the probability of death is not so high, the offence does not fall within murder but within culpable homicide not amounting to murder or something less. The illustration appended to the clause 3rdly reads : (c) A intentionally gives Z a sword - cut or club - wound sufficient to cause death of a man in the ordinary course of nature. Z dies in consequence. The illustration appended to the clause 3rdly reads : (c) A intentionally gives Z a sword - cut or club - wound sufficient to cause death of a man in the ordinary course of nature. Z dies in consequence. Here A is guilty of murder, although he may not have intended to cause Z's death." The sufficiency of an intentional injury to cause death in the ordinary way of nature is the gist of the clause irrespective of an intention to cause death. Here again, the exceptions may bring down the offence to culpable homicide not amounting to murder." 22. Learned counsel has laid much emphasis on the third clause of Section 300 IPC that these injuries were not sufficient in ordinary course to cause death, hence offence u/s. 302 IPC is not made out. But this contention is not acceptable as the Hon'ble Supreme Court has laid down that the determinant factor is the intention of the accused. In view of this judgment of Hon'ble Supreme Court, provisions of Explanation 2 u/s. 299 and second clause of Section 300 IPC are attracted. In view of the provisions of Cl. 2 of Section 300 IPC, if the injuries are caused with intention to cause such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused is guilty of the offence of murder punishable u/s. 302 IPC. 23. In Jayaraj's case (supra) the accused stabbed the deceased with a bichchua (a small knife) in a sudden occurrence. The deceased died more than nine days after the receipt of the injury. During the period, he had been operated upon in the hospital. The injury was not caused either with the intention of causing death or with the intention of causing such bodily injury as was sufficient to cause death in the ordinary course of nature. At the most, the accused had, while giving the stab blow, knowledge that his act was likely to cause death. In these facts and circumstances, it was held that the act of the accused did not amount to murder and it falls under First Part of Section 304 IPC. At the most, the accused had, while giving the stab blow, knowledge that his act was likely to cause death. In these facts and circumstances, it was held that the act of the accused did not amount to murder and it falls under First Part of Section 304 IPC. But in the instant case the facts are quite different as the accused caused two stab wounds with knife upon the chest and abdomen of the deceased Latoor Lal and it is not a case of sudden fight. Therefore, this case comes within the Second clause of Section 300 IPC and thus the offence made out is the offence of murder punishable u/s. 302 IPC. 24. In the result, the appeal fails and is dismissed.Appeal dismissed. *******