Karnataka High Court
Upendra vs State By Kodigenahalli Police Station on 11 January, 2023
Author: B. Veerappa
Bench: B. Veerappa
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY, 2023
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
CRIMINAL APPEAL No.1331/2016
BETWEEN:
UPENDRA
S/O. LATE NARAYANAPPA,
AGED ABOUT 40 YEARS,
R/AT BADAKANAHALLI VILLAGE,
PURAVARA HOBLI,
MADHUGIRI TALUK - 562 123. ... APPELLANT
(BY SRI SANDESH J. CHOUTA, SENIOR COUNSEL A/W
SRI SUNIL KUMAR S., ADVOCATE)
AND:
STATE BY KODIGENAHALLI POLICE STATION
REPRESENTED BY STATE PUBLIC
PROSECUTOR HIGH COURT OF KARNATAKA,
HIGH COURT COMPLEX,
BANGALORE - 560 001. ... RESPONDENT
(BY SRI K.S. ABHIJITH, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C BY THE ADVOCATE FOR THE APPELLANT PRAYING THAT
THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE
JUDGMENT AND ORDER DATED 01.07.2016 PASSED BY THE IV
ADDL. DIST. AND S.J., MADHUGIRI IN S.C.NO.5025/2015 -
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
P/U/S 302 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
THIS DAY, K.S.HEMALEKHA J., DELIVERED THE FOLLOWING:
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JUDGMENT
The accused has preferred the present appeal against the impugned judgment of conviction and order of sentence dated 01.07.2016 made in S.C.No.5025/2015 on the file of the IV Addl. District & Sessions Judge at Madhugiri (hereinafter referred to as the "Sessions Court" for short) convicting the accused for the offence punishable under the provisions of Section 302 of the Indian Penal Code (for short 'IPC) to undergo life imprisonment with a fine of Rs.10,000/- and in default, to undergo simple imprisonment for a period of one year.
2. It is the case of the prosecution that, on the basis of the complaint filed by P.W.8-mother of the deceased that on 18.03.2015 at about 8.30 p.m. the accused (Upendra) in the background of financial dispute between him and Suresh (deceased), picked up a quarrel on the road in front of petty shop run by P.W.9 (Satish), with an intention to kill, the accused -3- stabbed Suresh (deceased) on the right side of chest, right side of ribs and right side of the back with a Bharji (knife)-M.O.1 causing grievous bleeding injuries to Suresh (deceased) and caused his death. The charges were framed against the accused and the accused pleaded not guilty and opted for being tried.
3. The prosecution in order to prove the charges leveled against the accused has examined 28 witnesses as P.W.1 to P.W.28 and got marked 37 documents as Ex.P.1 to Ex.P.37 and also 09 Material objects as M.O.1 to M.O.9. After completion of the evidence of the prosecution witnesses the statement of the accused under Section 313 of Cr.P.C was recorded and the accused denied the incriminating evidence against him and he has not adduced any defence evidence.
4. The charge framed against the accused is under Section 302 of the IPC and within the -4- cognizance of Court of Sessions. The learned Sessions Judge framed the following points for consideration:
"(1) Whether the prosecution has proved that the deceased died of stab injuries? (2) Whether the prosecution has proved that deceased Suresh death is homicidal? (3) Whether the accused caused the stab injuries to the deceased resulting in his death and he did so intentionally to cause his death?"
5. The learned Sessions Judge, considering both oral and documentary evidence on record, recorded a finding that the prosecution has proved beyond all reasonable doubt that the deceased died due to stab injuries and the death of the deceased was homicidal and that the accused caused the stab injuries resulting in the death and has intentionally committed the offence and accordingly, sentenced the accused for the offence punishable under Section 302 of the IPC to undergo life imprisonment with fine of -5- Rs.10,000/- with default clause. Hence, the present appeal.
6. We have heard learned counsel for the parties to the lis.
7. Sri Sandesh J. Chouta, learned Senior counsel appearing for the accused would contend that the prosecution examined in all 28 witnesses and out of it, P.Ws.1, 2, 3, 4, 9 and 10 are the eye witnesses to the said incident. According to the learned Senior counsel P.Ws.2, 3, 4 and 9 have turned hostile to the case of the prosecution and P.Ws.1 and 10, who are the star witnesses to the case of the prosecution though have supported the case there is inconsistencies, contradictions and improvement in the evidence of P.Ws.1 and 10 and the said evidence would weaken the case of the prosecution. Learned Senior Counsel would emphasize that in the absence of the eye witness P.Ws.1 and 10 the offence and the -6- guilt against the accused would not be established. It is contended that P.W.1 is an interested witness and had a motive to falsely implicate the accused as P.W.1 admitted in his cross-examination about the accused having hit him on the earlier occasion, the presence of P.W.1 is not noted in the inquest mahazar at Ex.P.3 and it is very unlikely that the said witness P.W.1 would be an eye witness to the incident.
8. Learned Senior Counsel would further contend that P.W.1 though has stated that his statement was recorded on the same day itself, the records implicate that the statement was recorded on 21.03.2015 i.e., after three days of the incident. He would further contend that the presence of this witness would be doubtful for the reason that the witness did not speak the presence of other alleged witness i.e., P.Ws.2, 3, 4, 9 and 10, who have turned hostile. Insofar as P.W.10 is concerned, learned Senior Counsel would contend that P.W.10 is a tractor -7- driver and there is discrepancy in the version of P.W.10 regarding the mentioning of the names of the alleged eye witnesses, in relation to the time of spot mahazar and in relation to the seizure during the spot mahazar. Learned Senior Counsel would contend that the prosecution has miserably failed to bring home the charge against the accused considering the overall evidence on record and the learned Judge ought to have given the benefit of doubt to the accused. It is also contended that the material omission and contradiction in the statement of the prosecution witnesses has not been looked into by the learned Judge.
9. Learned Senior Counsel further contended that the conviction of the accused under Section 302 of IPC by the learned Sessions Judge is unsustainable, as the witnesses examined on behalf of the prosecution have not supported the case to the effect that there was an enmity prior to the incident and -8- thus would contend that the incident occurred due to a certain fight and falls under Exception IV to Section 300 of the IPC.
10. In support of his contention learned Senior Counsel relied upon the following judgments:
1. Ganesh Bhavan Patel and Another Vs. State of Maharashtra reported in (1978) 4 SCC 371 paragraph Nos.15, 29, 47 and 48
2. Shahid Khan Vs. State of Rajasthan reported in (2016) 4 SCC 96 [Shahid Khan] paragraph Nos.16, 18 and 20
3. Shivasharanappa and Others Vs. State of Karnataka reported in (2013) 5 SCC 705 [Shivasharanappa] paragraph Nos.19 and 22.
4. Narendar Kumar Vs. State (NCT of Delhi) reported in (2012) 7 SCC 171 paragraph Nos.20, 21, 30 and 31.-9-
5. Santhu @ Santosh Poojary Vs. State of Karnataka in Crl.A. No.880/2015 paragraph Nos.2, 52 and 53.
6. Arjun and Another Vs. State of Chhattisgarh reported in (2017) 3 SCC 247 paragraph Nos.19 to 24. (Exception IV to 300 of IPC).
11. Per contra, learned Additional SPP Sri. Vijayakumar Majage would vehemently contend that the prosecution had proved beyond reasonable doubt that the death of Suresh is a homicidal one and the death occurred due to the stab injuries caused by the accused and the accused knowing fully well has intentionally caused the death. Learned counsel would contend that the star witness P.W.1 who is an eye witness to the incident has categorically stated about the accused having assaulted the deceased and the deceased having succumbed to the injuries. It is contended that the eye witnesses P.Ws.2, 3, 4 and 9
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though have turned hostile, but have categorically admitted about the homicidal death of the deceased and the accused being present at the time of the incident. It is further contended that M.O.1-Bharji having recovered at the instance of the accused would clearly establish that the accused has stabbed the deceased with M.O.1 and the evidence of P.W.21 the doctor who has conducted the postmortem of the deceased as per Ex.P.13 has deposed that the stab injuries found on the body could occur if stabbed with M.O.1. Stating these grounds, that the prosecution has established the guilt of the accused and the appeal filed by the accused seeking for acquittal is not sustainable and liable to be dismissed.
12. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the points that arise for our consideration in the present appeals are:
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(i) Whether the learned Sessions Judge is justified in convicting the accused for the offence punishable under the provisions of Section 302 of IPC?
(ii) Whether the accused has made out a case to interfere with the impugned order of sentence and modify the same in the peculiar facts and circumstances of the present case?
13. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused entire material on record including the original records carefully.
14. This Court, being the Appellate Court, in order to re-appreciate the entire material on record, it is relevant to consider the evidence of the prosecution witnesses and the documents relied upon:
(i) PW.1-Chikkarangappa the star witness of the prosecution deposed that he knows P.W.8-
Nagamma the complainant, deceased Suresh, accused
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Upendra and P.W.9 Satish who has a petty shop. He deposed that Suresh is no more and the accused stabbed and killed the deceased. He further deposed that incident took place on 7 to 8 months back on the night of the Ugadi Festival at about 8.00 p.m. in front of P.W.9's petty shop, when he had been to the shop to purchase mosquito coil. He further deposed that when he was returning after purchasing the mosquito coil, the accused and the deceased were quarrelling and at that time when he tried to stop, the accused hit him on his back and with fear, he went away. According to this witness the accused stabbed the deceased on the right side of the chest and back side. He identified the weapon M.O.1-Bharji and further deposed that the deceased Suresh went to P.W.2's house asking for water and the deceased succumbed to the injuries at around 8.03-8.04 p.m. and further deposed that he had guessed the time as he does not wear watch. He further stated that he has given
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statement before the police and identifies the accused, who stabbed the deceased with M.O.1.
In his cross-examination he stated that his statement was recorded on the same day and after purchasing mosquito coil, he and one Thimmanna P.W.3 were sitting at Aralikatte, which is about 30 feet away from the shop of P.W.9 and that there is a road connecting Puravara-ID Halli Village in between the shop and the ashwathakatte. He denies the suggestion made that the road is 40 feet width but volunteers that it is 35 feet width road and also denies the suggestion that ashwathakatte is 15 to 20 feet away from the road but volunteers stated that but it is 10 feet away from the road and the shop is also 10 feet away from the road and he can see things from 50 feet away during the night hours. He admits that he and P.W.3 Thimmanna were sitting at Ashwathakatte and talking and says that he cannot exactly state at what time there won't be electricity in
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their village, at times, there won't be power supply at 8.00 p.m. and at times, there won't be power supply at 10.00 p.m. He admits that the daughter of his brother was given in marriage to the accused and when his grand-mother had sent him to give groundnuts and rice to the accused's house, the accused had hit him.
(ii) P.W.2-Venkataramanappa according to the prosecution P.W.2 is the eye witness to the incident. He deposed that about 9 months back, the deceased had come to his house bleeding and asked for water and the deceased succumbed to the injuries and that he informed the same to P.W.8-mother of the deceased, he has turned hostile to the case of the prosecution.
In his cross-examination by the prosecution, he admitted that he called P.W.8-mother of the deceased through P.W.4 Rathnamma and admitted the
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suggestions that the accused with previous enmity picked up quarrel and stabbed the deceased. He states in the cross-examination by the defence that when he was having dinner, the deceased came to his house asking water and that they got back electricity supply by 8.30 p.m. on the day of the incident.
(iii) P.W.3-Thimmaiah is an eye witness to the incident as per the case of the prosecution. He admits in his cross-examination that as on the date of the incident there was no electricity supply in their village and they got back the power supply after 10.00 p.m.
(iv) P.W.4-Rathnamma deposed that she went to the house of the deceased and informed P.W.8- mother of the deceased about the incident upon instructions given by P.W.2-Venkataramanappa. She has turned hostile to the case of the prosecution and denies the suggestions put forth by the prosecution.
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(v) P.W.5-B.C. Shankar is the panch witness to the inquest mahazar at E.x.P.3 conducted on 19.03.2015 in the house of P.W.2-Venkataramanappa. He has turned hostile to the case of the prosecution and denies the suggestions put forth by the prosecution.
(vi) P.W.6-Raghavendra Prasad is the panch witness to the inquest mahazar at Ex.P.3 conducted on 19.03.2015 in the house of P.W.2- Venkataramanappa. He has turned hostile to the case of the prosecution and denies the suggestions put forth by the prosecution.
(vii) P.W.7-H. Rangappa is the panch witness to the inquest mahazar at Ex.P.3 conducted on 19.03.2015 in the house of P.W.2-Venkataramanappa and he has turned hostile.
(viii) P.W.8-Nagamma-compalainant-mother of the deceased deposed that her son(deceased) had
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gone to the shop to get tea powder and on information from P.W.4 Rathanamma that her son (deceased) and accused were quarrelling, she went to the spot and found that her son had succumbed to the injuries. She deposed that she knew the accused and her son quarreled twice earlier and identifies the complaint at Ex.P.4 and her signature at Ex.P.4(a). She deposed that M.O.1-Bharji was always carried by the accused and identified the photos of her son deceased at Exs.P.5 and 6 and identified the clothes worn by the deceased at M.Os.3 to 5. In her cross- examination, she admits that her brother Nagaraj has written the complaint and also admits that the accused used to carry M.O.1-Bharji to his farm every time.
(ix) P.W.9-Sathish-owner of petty shop-another eye witness according to the prosecution. He deposed that he knows P.W.8-mother and the deceased and they used to visit his petty shop and he knows P.Ws.1
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to 3. He denies the entire incident and turned hostile to the case of the prosecution.
(x) P.W.10-G. Ranganatha another eye witness to the case of the prosecution deposed that he was traveling back from Madhugiri on 18.03.2015 and at that time, there was quarrel between the accused and the deceased in front of P.W.9's petty shop and he deposed that the accused stabbed the deceased with M.O.1-knife. He further deposed that deceased went to the house of P.W.2 asking for water and succumbed to the injuries at around 8.40 p.m. He is the panch witness to the spot mahazar at Ex.P.8 conducted on 18.03.2015 at 10.00 p.m. and identified M.O.6-blood stained mud, unstained mud and blood stained cotton and partly supported the case of the prosecution.
In the cross-examination by the prosecution admitted that there are 10 to 15 women at the time of the incident in the spot.
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(xi) P.W.11-Ranganath-younger brother of the deceased is a hearsay witness and deposed that he got to know the incident from the people of the village and deposes that he got to know the quarrel between the deceased and the accused turned to intemperance and accused stabbed his brother.
(xii) P.W.12-Nagaveni wife of the deceased is a hearsay witness, deposed that she got to know the incident from P.W.3 and went to the spot and saw her husband was dead.
(xiii) P.W.13-Gangaiah is the panch witness to the inquest conducted on 19.03.2015 and deposed that he does not know the deceased nor he has seen the dead body nor has given statement before the police and has turned hostile to the case of the prosecution.
(xiv) P.W.14-Siddmallaih is the panch witness to the spot mahazar conducted on 20.03.2015 at
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Ex.P.10, the place shown by the accused where he got M.O.1-Bharji prepared and has partly turned hostile to the case of the prosecution.
(xv) P.W.15-Bhadrinath is the panch to the spot mahazar conducted on 19.03.2015 at Ex.P.8.
(xvi) P.W.16-K. Chowdappa .K is a panch witness to the seizure mahazar at Ex.P.11 dated 19.03.2015, the clothes belonging to the deceased.
(xvii) P.W.17-Narasegowda is a panch witness to the seizure mahazar at Ex.P.11 dated 19.03.2015, the clothes belonging to the deceased and has partly turned hostile to the case of the prosecution.
(xviii) P.W.18-Dyavanna is a panch witness to the recovery mahazar of M.O.1-Bharji dated 20.03.2015 and blood stained clothes at Ex.P.12.
(xix) P.W.19-Belada Rangappa is a panch witness to the recovery mahazar of M.O.1-Bharji
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dated 20.03.2015 and blood stained clothes at Ex.P.12.
(xx) P.W.20-Shivakumar is a panch witness to the spot mahazar at Ex.P.10 conducted on 20.03.2015, the place shown by the accused, where he got M.O.1-Bharji prepared.
(xxi) P.W.21-Dr. Savitha, who conducted autopsy of the deceased on 19.03.2015 has issued Ex.P.13-Postmortem report.
(xxii) P.W.22-Raju, Police Constable deposed that he and P.W.25 apprehended the accused on 19.03.2015 at KSRTC bus stand, Bangalore.
(xxiii) P.W.23-Rangappa, Head Constable deposed that he sent M.Os.1 to 9 to FSL and identified M.Os.7 to 9-Lungi, Towel and shirt respectively and stated that the same belongs to the accused.
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(xxiv) P.W.24-Gangadhar, Head Constable is a scribe to spot mahazar at Ex.P.8.
(xxv) P.W.25-Ambarish, PSI deposed that he received the complaint from P.W.8-mother of the deceased on the spot on 18.03.2015 at about 10.15 p.m. and registered the FIR in Crime No.21/2015 at 10.45 p.m. He deposed that P.W.20 entrusted him and one Mutturaj to arrest the accused and they produced the accused before P.W.28 as per Ex.P.16.
(xxvi) P.W.26-R. Krishna, Head constable, scribe of voluntary statement of the accused as per Ex.P.17 and also scribe to recovery mahazar at Ex.P.12 and scribe to Ex.P.10 spot mahazar shown by the accused where he purchased M.O.1-Bharji.
(xxvii) P.W.27- K. Naganna deposed that he produced the sketch of the spot at Ex.P.18 to Investigating Officer.
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(xxviii) P.W.28-Girish Nayak .C, Investigating Officer took investigation from P.W.25 on 19.03.2015 and conducted further investigation and filed charge- sheet on 25.04.2015 before the Committal Court.
Based on the aforesaid oral evidence of the prosecution witnesses and the material documents, the learned Sessions Judge proceeded to pass the impugned Judgment of conviction and Order of Sentence, sentencing the accused to undergo imprisonment for life for the offence punishable under Section 302 of the IPC and to pay a fine of Rs.10,000/- and in default, to undergo simple imprisonment for a period of one year.
15. That, based on the complaint at Ex.P.4 by P.W.8-mother of the deceased, a criminal case came to be registered on 18.03.2015 at about 10.45 p.m. against the accused in Crime No.21/2015 for the offences punishable under Section 302 of the IPC.
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The sum and substance of the prosecution case is that, on 18.03.2015 at 8.30 p.m. at Badkanahalli Village within Kodigenhalli Police Station limits, in front of petty shop of P.W.9 (Satish) accused with previous enmity over the financial dispute picked up quarrel with Suresh (deceased) and stabbed with Bharji a kind of knife, kept with the accused on the right side of the chest, right side of ribs and right side of the back causing grievous injury to the deceased and that the deceased went to P.W.2- Venkataramanappa's house asking for water and succumbed to the death, thereby committed an offence punishable under Section 302 of the IPC.
16. The prosecution has examined 28 witnesses to prove the case of the prosecution. P.Ws.1, 2, 3, 4, 9 and 10 are the eye witnesses according to the prosecution. P.W.2- Venkataramanappa, P.W.3-Thimmaiah, P.W.4- Rathanamma, P.W.9-Satisha, who are the eye
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witnesses according to the case of the prosecution have turned hostile. Thus, the analysis of evidence of only P.W.1 and P.W.10, who are the eye witnesses, supported the prosecution case needs to be analyzed.
17. P.W.1 deposed that the accused has stabbed the deceased Suresh in front of P.W.9's petty shop. According to the said witness the statement was recorded on the same day and he claims to be an eye witness however, his presence is not noted in the inquest mahazar at Ex.P.3. In his examination-in-chief he deposed that, the accused had hit him on his back and he went away. Further, he continues the narration of event at the spot and thereafter at the house of P.W.6. The entire evidence of P.W.1 is inadmissible and unreliable as there is inconsistency and contradiction in his evidence. P.W.1 in his chief- examination deposed that, he was present on the spot of the incident. However in his cross-examination, he changes his version and states that he was sitting on
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Aralikatte which is about 55 feet away from the spot and that he did not go to the spot and thus, falsifying his version in his chief-examination about he being hit on his back by the accused. The conduct of the witness is totally unnatural after the incident as he neither goes to the house of P.W.6 nor makes any attempt to take the injured to the hospital nor he informs any of the friends or relatives of the deceased nor is he part of the inquest proceedings. Another important aspect in the evidence of P.W.1 is that he admits about there being no electricity supply during night times which was coupled with the evidence of P.W.3, who though turned hostile has stated that on the date and time of the incident there was no electricity supply. The statement of the eye witness P.W.1 and as per his version, his statement was recorded on the same day. However, the perusal of the evidence of P.W.28-Investigating Officer reveals that the statement was recorded after three days i.e.,
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21.03.2015. This caused a serious doubt about there being an eye witness of the occurrence. Delay of few hours, simplicitor, in recording the statement of eye witness may not, be itself amount to serious infirmity in the prosecution case. But it may assume such character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye witnesses to be introduced. In the present case, there is a delay of 03 days in recording the statement of P.W.1 and there is no explanation forthcoming as to why they were not examined for three days.
18. The Apex Court in the case of Shahid Khan stated supra held at paragraph Nos.16, 18 and 20 as under:
"16. It is relevant to point out that PW 9 Anwar and PW 19 Anil Kumar Jain, who on intimation rushed to the occurrence place, did not state that they saw PW 25 Mirza Majid Beg
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and PW 24 Mohamed Shakir in the occurrence place. It is only PW 19 Anil Kumar Jain with the help of PW 9 Anwar and PW 20 Lal Chand lifted injured Ashok Kumar and put in the Maruti vehicle and took him to Jhalawar hospital, where he was declared dead. Thereafter PW 19 Anil Kumar Jain went to the Police Station and lodged the written complaint. In the said complaint, the names of the assailants are not mentioned and also the names of the persons who were present during the occurrence are not mentioned.
x x x
18. The High Court in the impugned judgment has concluded that the presence of PW 25 Mirza Majid Beg is established in view of the fact that his Maruti van was used for shifting the injured to the hospital. There was nothing on record to show that the Maruti vehicle used for transporting Ashok Kumar to the hospital belonged to PW 25 Mirza Majid Beg. In fact PW 19 Anil Kumar Jain in his cross-examination has stated that he did not know the registration number of the Maruti van in which Ashok Kumar was taken to the hospital and he also did not know whose vehicle it was. In other words, nothing stood
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established by the use of this Maruti vehicle for transporting the injured to the hospital and in any event this will not clinch the presence of PW 25 Mirza Majid Beg at the time of occurrence. PW 25 Mirza Majid Beg and PW 24 Mohamed Shakir slipping away unnoticed by the others particularly after the alleged attack is utterly unbelievable. It appears unreal. They are not strange to expect and they did not render any help for shifting the injured to the hospital nor had the courtesy to go inside the hospital to ascertain the condition and also did not inform the occurrence to the police. The aspect of fear is without any foundation and is not supported by any evidence of act or conduct. This plea does not impress us.
x x x
20. The statements of PW 25 Mirza Majid Beg and PW 24 Mohamed Shakir were recorded after 3 days of the occurrence. No explanation is forthcoming as to why they were not examined for 3 days. It is also not known as to how the police came to know that these witnesses saw the occurrence. The delay in recording the statements casts a serious doubt about their being eyewitnesses to the occurrence. It may suggest that the
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investigating officer was deliberately marking time with a view to decide about the shape to be given to the case and the eyewitnesses to be introduced. The circumstances in this case lend such significance to this delay. PW 25 Mirza Majid Beg and PW 24 Mohamed Shakir, in view of their unexplained silence and delayed statement to the police, do not appear to us to be wholly reliable witnesses. There is no corroboration of their evidence from any other independent source either. We find it rather unsafe to rely upon their evidence only to uphold the conviction and sentence of the appellants. The High Court has failed to advert to the contentions raised by the appellants and reappreciate the evidence thereby resulting in miscarriage of justice. In our opinion, the case against the appellants has not been proved beyond reasonable doubt."
19. Another circumstances what has to be considered in the evidence of P.W.1 is the conduct of the said witness being unnatural as in his chief- examination he states about the accused hitting him on his back and in the cross-examination changes his
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version stating that he was sitting on the Aralikatte about 55 feet away and thus, creates a doubt regarding the presence of the said witness on the spot. The Apex Court in the case of Shivasharanappa stated supra held at paragraph Nos.19 and 22 as under:
"19. In Gopal Singh v. State of M.P. this Court did not agree with the High Court which had accepted the statement of an alleged eyewitness as his conduct was unnatural and while so holding, it observed as follows: (SCC p. 413, para 25) "25. We also find that the High Court has accepted the statement of Feran Singh, PW 5 as the eyewitness of the incident ignoring the fact that his behaviour was unnatural as he claimed to have rushed to the village but had still not conveyed the information about the incident to his parents and others present there and had chosen to disappear for a couple of hours on the specious and unacceptable plea that he feared for his own safety."
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x x x
22. Thus, the behaviour of witnesses or their reactions would differ from situation to situation and individual to individual. Expectation of uniformity in the reaction of witnesses would be unrealistic but the court cannot be oblivious of the fact that even taking into account the unpredictability of human conduct and lack of uniformity in human reaction, whether in the circumstances of the case, the behaviour is acceptably natural allowing the variations. If the behaviour is absolutely unnatural, the testimony of the witness may not deserve credence and acceptance."
20. It is also relevant to note that the witness has not stated about the presence of other witnesses i.e., P.W.2, 3, 4 and 9, who have turned hostile to the case of the prosecution.
21. The evidence of P.W.10, who is another eye witness to the incident, does not disclose about the details of the incident and the nature of quarrel and the manner of assault nor the said witness had
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rendered any medical treatment to the deceased despite there being a tractor at his disposal. The said witness states about the deceased having gone to house of P.W.2 and asking for water, but does not state anything about the measures taken by him or any attempt made to take the deceased to the hospital. The version of P.W.2 is again unnatural, inconsistent, discrepancy, improvements made by this witness in his evidence from that of his 161 statement. The cross-examination of this witness reveals that there is no previous enmity between the witness and the accused.
22. P.W.8-mother of the deceased, who lodges the complaint states that she was informed by P.W.4- Rathnamma about her son and the accused quarrelling and by that time, she visited the spot and her son had already succumbed to death. She categorically deposed in the cross-examination, that the accused used to carry M.O.1-Bharji to his farm
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every time. Prior enmity between the deceased and accused is not stated either by P.W.1, P.W.2 and even for that matter P.W.8. The star witness of the prosecution case P.Ws.1, 2 and 8 have deposed about the quarrel that took place on the day of the incident i.e., on 18.03.2015 at 8.30 p.m., though the complainant states about the previous enmity the same is not spoken to by either of the witnesses. On the other hand, P.Ws.1 and 2 have stated about the quarrel that took place between the accused and the deceased in front of P.W.9's petty shop and the carrying of Bharji by the accused as stated by P.W.8 on all the occasions. Though the contentions of the learned Senior counsel for the accused that the incident has occurred without premeditation in a sudden fight, a quarrel without offender taking undue advantage and would only be a culpable homicide not amounting to murder and would come under Exception IV of Section 300 of IPC is not acceptable
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and the same would fall under Exception I of Section 300 of IPC and not under Exception IV. Thereby, the case clearly falls under Exception I to Section 300 of IPC, which reads as under:
"Section 300. Murder.-
xxx xxx xxx Exception 1.-When culpable homicide is not murder.-Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident."
23. A careful reading of the said provision makes it clear that, culpable homicide is not murder if the offender, whilst deprived of the power of self- control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
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24. In the present case, the cause of the incident is not spoken to by any of the witnesses, however, P.Ws.1, 2 and 8 have categorically stated about the quarrel that took place on the date of the incident and the accused has stabbed the deceased with weapon M.O.1-Bharji which, he often carries along with him to his farm every time. Thus, it is a case, where the accused, in the heat of argument lost his self control and sudden provocation caused the death of the deceased and it is nothing but culpable homicide not amounting to murder and therefore, falls under Exception I of Section 300 of IPC. The Apex Court in the case of Dauvaram Nirmalkar Vs. State of Chhattisgarh reported in AIR 2022 SC 3620 at paragraph Nos.9 to 13 held as under:
"9. Exception 1 differs from Exception 4 of Section 300 of the IPC9. Exception 1 applies when due to grave and sudden provocation, the offender, deprived of the power of self-
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control, causes the death of the person who gave the provocation. Exception 1 also applies when the offender, on account of loss of self- control due to grave and sudden provocation, causes the death of any other person by mistake or accident. Exception 4 applies when an offence is committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel and the offender commits culpable homicide without having taken undue advantage of acting in a cruel and unusual manner. The Explanation to Exception 4 states that in such cases it is immaterial which party gives the provocation or commits the first assault.
9.300. Murder.--Exception 4.--Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. Explanation.--It is immaterial in such cases which party offers the provocation or commits the first assault.
10. Interpreting Exception 1 to the Section 300 in K.M. Nanavati v. State of Maharashtra, this Court has held that the conditions which
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have to be satisfied for the exception to be invoked are (a) the deceased must have given provocation to the accused; (b) the provocation must be grave; (c) the provocation must be sudden; (d) the offender, by the reason of the said provocation, should have been deprived of his power of self- control; (e) the offender should have killed the deceased during the continuance of the deprivation of power of self-control; and (f) the offender must have caused the death of the person who gave the provocation or the death of any other person by mistake or accident. For determining whether or not the provocation had temporarily deprived the offender from the power of self-control, the test to be applied is that of a reasonable man and not that of an unusually excitable and pugnacious individual. Further, it must be considered whether there was sufficient interval and time to allow the passion to cool. K.M. Nanavati (supra) succinctly observes:
"84. Is there any standard of a reasonable man for the application of the doctrine of "grave and sudden"
provocation? No abstract standard of reasonableness can be laid down. What
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a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values etc.; in short, the cultural, social and emotional background of the society to which an accused belongs. In our vast country there are social groups ranging from the lowest to the highest state of civilization. It is neither possible nor desirable to lay down any standard with precision: it is for the court to decide in each case, having regard to the relevant circumstances. It is not necessary in this case to ascertain whether a reasonable man placed in the position of the accused would have lost his self- control momentarily or even temporarily when his wife confessed to him of her illicit intimacy with another, for we are satisfied on the evidence that the accused regained his self-control and killed Ahuja deliberately.
85. The Indian law, relevant to the present enquiry, may be stated thus:
(1) The test of "grave and sudden"
provocation is whether a reasonable
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man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the First Exception to Section 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation."
11. K.M. Nanavati (supra), has held that the mental background created by the previous act(s) of the deceased may be taken into consideration in ascertaining whether the subsequent act caused sudden and grave
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provocation for committing the offence. There can be sustained and continuous provocations over a period of time, albeit in such cases Exception 1 to Section 300 of the IPC applies when preceding the offence, there was a last act, word or gesture in the series of incidents comprising of that conduct, amounting to sudden provocation sufficient for reactive loss of self-control. K.M. Nanavati (supra) quotes the definition of 'provocation' given by Goddard, C.J.; in R. v. Duffy, as:
"...some act or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self- control, rendering the accused so subject to passion as to make him or her for the moment not master of his own mind...[I]ndeed, circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious formulation of a desire for revenge means that the person had the time to think, to reflect, and that would negative a sudden temporary loss of self-
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control which is of the essence of provocation...".
12. The question of loss of self-control by grave and sudden provocation is a question of fact. Act of provocation and loss of self- control, must be actual and reasonable. The law attaches great importance to two things when defence of provocation is taken under Exception 1 to Section 300 of the IPC. First, whether there was an intervening period for the passion to cool and for the accused to regain dominance and control over his mind. Secondly, the mode of resentment should bear some relationship to the sort of provocation that has been given. The retaliation should be proportionate to the provocation. The first part lays emphasis on whether the accused acting as a reasonable man had time to reflect and cool down. The offender is presumed to possess the general power of self-control of an ordinary or reasonable man, belonging to the same class of society as the accused, placed in the same situation in which the accused is placed, to temporarily lose the power of self- control. The second part emphasises that the offender's reaction to the provocation is to be judged on the basis of whether the
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provocation was sufficient to bring about a loss of self-control in the fact situation. Here again, the court would have to apply the test of a reasonable person in the circumstances. While examining these questions, we should not be short-sighted, and must take into account the whole of the events, including the events on the day of the fatality, as these are relevant for deciding whether the accused was acting under the cumulative and continuing stress of provocation. Gravity of provocation turns upon the whole of the victim's abusive behaviour towards the accused. Gravity does not hinge upon a single or last act of provocation deemed sufficient by itself to trigger the punitive action. Last provocation has to be considered in light of the previous provocative acts or words, serious enough to cause the accused to lose his self-control. The cumulative or sustained provocation test would be satisfied when the accused's retaliation was immediately preceded and precipitated by some sort of provocative conduct, which would satisfy the requirement of sudden or immediate provocation.
13. Thus, the gravity of the provocation can be assessed by taking into account the history
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of the abuse and need not be confined to the gravity of the final provocative act in the form of acts, words or gestures. The final wrongdoing, triggering off the accused's reaction, should be identified to show that there was temporary loss of self-control and the accused had acted without planning and premeditation. This has been aptly summarised by Ashworth13 in the following words:
13. 1975 Criminal LR 558-559, and George Mousourakis's elucidation in his paper 'Cumulative Provocation and Partial Defences in English Criminal Law'.
"[T]he significance of the deceased's final act should be considered by reference to the previous relations between the parties, taking into account any previous incidents which add colour to the final act. This is not to argue that the basic distinction between sudden provoked killings and revenge killings should be blurred, for the lapse of time between the deceased's final act and the accused's retaliation should continue to tell against him. The point is that the significance of the deceased's final act
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and its effect upon the accused - and indeed the relation of the retaliation to that act - can be neither understood nor evaluated without reference to previous dealings between the parties."
Exception 1 to Section 300 recognises that when a reasonable person is tormented continuously, he may, at one point of time, erupt and reach a break point whereby losing self-control, going astray and committing the offence. However, sustained provocation principle does not do away with the requirement of immediate or the final provocative act, words or gesture, which should be verifiable. Further, this defence would not be available if there is evidence of reflection or planning as they mirror exercise of calculation and premeditation."
25. Thus, the evidence of the eye witnesses P.W.1 and P.W.2 being silent about the enmity between the accused and the deceased and the witness being unable to state about the quarrel between the accused and the deceased and there being lapse on the part of the witnesses to state about
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the premeditation and the accused taking disadvantage about the situation, the case falls under Exception I of Section 300 of IPC and applying the provocation exception, we would convert the conviction of the appellant from Section 302 to Part I of Section 304 of IPC. The said aspect has not been considered by the learned Sessions Judge while convicting the accused.
26. Thereby, in the peculiar facts and circumstances of the present case and for reasons stated, the case falls under Exception I to Section 300 of IPC and therefore, attracts punishment under Section 304 Part I of IPC. The learned Sessions Judge, while convicting the accused, has lost sight of these aspects and erroneously convicted the accused for the offence punishable under Section 302 of the Indian Penal Code.
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27. On meticulous reading of the entire material on record, it clearly depicts that the unfortunate incident took place at the spur of moment when Accused lost self control in the quarrel and it cannot be said that the accused had intention to kill the deceased or had the knowledge that his act would cause the death of the deceased.
28. The Hon'ble Supreme Court while considering provisions of Sections 299, 300, 302, 304 of the Indian Penal Code, in the case Rampal Singh vs. State of Uttar Pradesh reported in (2012) 8 SCC 289, at paragraphs 11, 14, 29 and 30, held as under:
"11. Sections 299 and 300 of the Code deal with the definition of "culpable homicide"
and "murder", respectively. In terms of Section 299, "culpable homicide" is described as an act of causing death: (i) with the intention of causing death, or (ii) with the intention of causing such bodily injury as is likely to cause death, or (iii) with the knowledge that such an
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act is likely to cause death. As is clear from a reading of this provision, the former part of it, emphasises on the expression "intention" while the latter upon "knowledge". Both these are positive mental attitudes, however, of different degrees. The mental element in "culpable homicide", that is, the mental attitude towards the consequences of conduct is one of intention and knowledge. Once an offence is caused in any of the three stated manners noted above, it would be "culpable homicide". Section 300, however, deals with "murder" although there is no clear definition of "murder" in Section 300 of the Code. As has been repeatedly held by this Court, "culpable homicide" is the genus and "murder" is its species and all "murders" are "culpable homicides" but all "culpable homicides" are not "murders".
x x x
14. Section 300 of the Code proceeds with reference to Section 299 of the Code.
"Culpable homicide" may or may not amount to "murder", in terms of Section 300 of the Code. When a "culpable homicide is murder", the punitive consequences shall follow in terms of Section 302 of the Code while in other
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cases, that is, where an offence is "culpable homicide not amounting to murder", punishment would be dealt with under Section 304 of the Code. Various judgments of this Court have dealt with the cases which fall in various classes of Firstly, Secondly, Thirdly and Fourthly, respectively, stated under Section 300 of the Code. It would not be necessary for us to deal with that aspect of the case in any further detail. Of course, the principles that have been stated in various judgments like Abdul Waheed Khan v. State of A.P., Virsa Singh v. State of Punjab and Rajwant Singh v. State of Kerala are the broad guidelines and not cast-iron imperatives. These are the cases which would provide precepts for the courts to exercise their judicial discretion while considering the cases to determine as to which particular clause of Section 300 of the Code they fall in.
x x x
29. From the above statement of this witness, it is clear that there was heated exchange of words between the deceased and the appellant. The deceased had thrown the appellant on the ground. They were separated by Amar Singh and Ram Saran. She also
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admits that her husband had told the appellant that he could shoot at him if he had the courage. It was upon this provocation that the appellant fired the shot which hit the deceased in his stomach and ultimately resulted in his death.
30. Another very important aspect is that it is not a case of previous animosity. There is nothing on record to show that the relation between the families of the deceased and the appellant was not cordial. On the contrary, there is evidence that the relations between them were cordial, as deposed by PW 1. The dispute between the parties arose with a specific reference to the ladauri. It is clear that the appellant had not committed the crime with any premeditation. There was no intention on his part to kill. The entire incident happened within a very short span of time. The deceased and the appellant had an altercation and the appellant was thrown on the ground by the deceased, his own relation. It was in that state of anger that the appellant went to his house, took out the rifle and from a distance i.e. from the roof of Muneshwar, he shot at the deceased. But before shooting, he expressed his intention to shoot by warning his brother to
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keep away. He actually fired in response to the challenge that was thrown at him by the deceased. It is true that there was knowledge on the part of the appellant that if he used the rifle and shot at the deceased, the possibility of the deceased being killed could not be ruled out. He was a person from the armed forces and was fully aware of the consequences of use of firearms. But this is not necessarily conclusive of the fact that there was intention on the part of the appellant to kill his brother, the deceased. The intention probably was to merely cause bodily injury. However, the Court cannot overlook the fact that the appellant had the knowledge that such injury could result in the death of the deceased. He only fired one shot at the deceased and ran away. That shot was aimed at the lower part of the body i.e. the stomach of the deceased. As per the statement of PW 2, Dr A.K. Rastogi, there was a stitched wound obliquely placed on the right iliac tossa which shows the part of the body the appellant aimed at."
29. The Hon'ble Supreme Court while considering Exception I Section 300, 302 and Section 304 Part I of the Indian Penal Code, in the case of
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Murli alias Denny vs. State of Rajasthan reported in 1995 Supp (1) SCC 39, at para 5 held as under:
"5. Having examined the circumstances on record, we are satisfied that it was the accused who inflicted injuries on the deceased person, as a result of which he died. But the learned Senior Counsel, Shri Sibal submits that there are any number of circumstances indicating that the accused acted on a grave and sudden provocation and, therefore, Exception 1 to Section 300 is attracted. We find considerable force in this submission. To start with, the prosecution evidence itself indicates that the deceased was a man of violent nature and had no regard for law and was creating terror and fear in the minds of common people. In such an aggressive mood, he must have gone to the shop of the accused. As to what exactly preceded the attack is not borne out by the evidence. However, there is a clear indication in the first statement given by the accused himself which formed the FIR in this case to the effect that the deceased in an aggressive manner went to the shop of the accused and showered virulent abuses. It may be mentioned here that we are not using the
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statement of the accused before the SHO for any purpose in favour of prosecution and against the accused. The only admission which we find in the statement in favour of the accused is being taken into account to examine whether the case falls under Exception 1 to Section 300 IPC, particularly, in view of the fact that there is no other evidence disclosing as to how the quarrel ensued and attack took place. Having carefully considered the entire material, we are of the view that Exception 1 to Section 300 is attracted in this case. The Exception lays down:
"Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident."
This Exception is no doubt subject to certain limitations. In the instant case, the provocation is not sought or provoked by the accused. The medical evidence also shows that most of the injuries were found on the hips and the possibility of having received injuries by
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the deceased during grappling cannot be ruled out. In such cases it cannot be said that the accused caused the injuries by way of an excuse for killing the deceased. Accordingly, we set aside the conviction of the appellant under Section 302, Indian Penal Code and imprisonment for life awarded thereunder and, instead, we convict him under Section 304 Part I, Indian Penal Code and sentence him to undergo rigorous imprisonment for 10 years."
30. For the reasons stated above, the first point raised for consideration in the present appeal is answered in the negative holding that the learned Sessions Judge was not justified in convicting the accused for the offence punishable under Section 302 of the IPC and the second point is answered partly in affirmative holding that the accused has made out a case to interfere with the impugned judgment of conviction and order of sentence and the appellant/accused is liable to be convicted for the offence punishable under Section 304 Part I of the IPC.
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31. In view of the above, we pass the following:
ORDER
i) The Criminal Appeal is allowed-in-part.
ii) The impugned judgment of conviction and order of sentence dated 01.07.2016 made in S.C. No.5025/2015 on the file of the IV Additional District and Sessions Judge at Madhugiri, convicting and sentencing the appellant/accused for the offence punishable under the provisions of Section 302 of IPC, is hereby modified.
iii) The accused is convicted for the offence punishable under the provisions of Section 304 Part I of IPC and sentenced to undergo simple imprisonment for a period of eight years and to pay a fine of Rs.1,00,000/- (Rupees One Lakh only) and
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in default of payment of fine, to undergo simple imprisonment for a further period of two years;
iv) On such deposit of fine amount of Rs.1,00,000/- (Rupees One lakh) by the accused, in view of the provisions of Section 357(3) of the Code of Criminal Procedure, amount of Rs.50,000/-
(Rupees fifty thousand only) shall be kept in fixed deposit in any of the Nationalized Bank in the names of each of the minor children of the deceased i.e., Kum. Prerana and Kum. Mythri, till they attain majority;
v) The appellant/accused is entitled to the benefit of set off under the provision of Section 428 of the Code of Criminal Procedure;
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vi) The jurisdictional Superintendent is hereby directed to release the accused on completion of eight years imprisonment (after calculation of sentence undergone by the accused/appellant) in accordance with law, if he is not required in any other case.
Sd/-
JUDGE Sd/-
JUDGE MBM