Vikrambhai Hematabhai Khair vs State Of Gujarat on 31 July, 2025

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Gujarat High Court

Vikrambhai Hematabhai Khair vs State Of Gujarat on 31 July, 2025

Bench: Ilesh J. Vora

                                                                                                                 NEUTRAL CITATION




                              R/CR.A/77/2014                                   JUDGMENT DATED: 31/07/2025

                                                                                                                  undefined




                                       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 77 of 2014


                        FOR APPROVAL AND SIGNATURE:


                        HONOURABLE MR. JUSTICE ILESH J. VORA

                        and

                        HONOURABLE MR.JUSTICE P. M. RAVAL
                        ==========================================================

                                      Approved for Reporting                   Yes           No

                        ==========================================================
                                                     VIKRAMBHAI HEMATABHAI KHAIR
                                                                Versus
                                                          STATE OF GUJARAT
                        ==========================================================
                        Appearance:
                        MS. PAYAL M TUVAR(7055) for the Appellant(s) No. 1
                        MR LB DABHI APP for the Respondent
                        ==========================================================

                           CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
                                 and
                                 HONOURABLE MR.JUSTICE P. M. RAVAL

                                                           Date : 31/07/2025

                                                     ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)

1. This Criminal Appeal preferred by the appellant-

accused under Section 374(2)of the Cr.P.C is directed against the judgment of conviction and order of sentence dated 06.12.2013 passed by the Additional Sessions Judge, Palanpur in Sessions Case No. 10 of 2013, by which the appellant has been convicted under Sections 302 and 323 of the Indian Penal Code Page 1 of 21 Uploaded by P.S. JOSHI(HC00177) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 23:18:33 IST 2025 NEUTRAL CITATION R/CR.A/77/2014 JUDGMENT DATED: 31/07/2025 undefined and sentenced him to undergo life imprisonment and fine of Rs.500/-, in default thereof, further simple imprisonment of 10 days, whereas, under Section 323 of the Indian Penal Code, court has convicted him and sentenced to undergo 1 month simple imprisonment.

2. The case of the prosecution leading to the conviction of the appellant Vikram Hemta, is as follows:

The complaint of murder registered with Hadad Police Station, Deesa, Palanpur on 25.11.2012 against the four accused namely Kodar Kasna Gamar, Moti Kasna Gamar, Bachu Gamar and Vikram Hemtabhai Kher, resident of village: Sarkala, Dist.:

Palanpur. The said complaint came to be lodged by wife of deceased Vinaben Gamara (PW-7). According to prosecution case, on 25.11.2012, the complainant and her husband Kanjibhai went to attend religious function to be organized by one Bhoyalabhai and after attending the said religious function, she along with her husband Kanjibhai returning back towards his home, and at that time at about, 9-00 o'clock and they were passing near the house of Sakabhai, the accused in person 4 confronted them and without saying anything they started assaulting them by kicks and fist blows. The complainant (PW-7), requested not to beat her and husband, but they did Page 2 of 21 Uploaded by P.S. JOSHI(HC00177) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 23:18:33 IST 2025 NEUTRAL CITATION R/CR.A/77/2014 JUDGMENT DATED: 31/07/2025 undefined not heed the request and during the assault, the appellant Vikram Hemtabhai took out his knife and given a blow on the chest of the deceased Kanjibhai. The complainant made hue and cry, as a result, the brother of the deceased - Laxmanbhai and others rushed to the place of incident. The accused before someone could come to rescue, run away from the place of incident. The deceased was lying in the pool of blood and was taken to Ambaji Civil Hospital and then, he was referred to higher center at Himmatnagar, where he succumbed to his injuries at midnight. In such circumstances, the sole eye witness Vinaben Gamara (PW-7), lodged an FIR against the accused by name. On the basis of said complaint, the offence of murder came to be registered against the accused and others. The investigating officer - PW-15, during the course of investigation, drew the panchnama of place of incident and collected the necessary sample for chemical analysis, sent the dead body for postmortem, recorded the statements of witnesses, arrested the accused and seized and recovered the weapon knife allegedly used in the commission of offence by the appellant Vikram Kher, collected the statement case papers of injured Vinaben PW-7, sent the seized articles to the FSL and obtained the necessary examination reports from the FSL. The IO Page 3 of 21 Uploaded by P.S. JOSHI(HC00177) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 23:18:33 IST 2025 NEUTRAL CITATION R/CR.A/77/2014 JUDGMENT DATED: 31/07/2025 undefined PW-15 after completion of the investigation, found sufficient evidence against the accused for commission of offence murder and causing injuries to the witness and filed the chargesheet before the jurisdictional Magistrate. The case was committed to the court of Sessions at Palanpur.

3. The Additional Sessions Judge, Palanpur framed the charges against the appellant and three other accused.

4. In order to prove the charge, the prosecution examined as many as 16 witnesses and exhibited 31 documents.

Oral evidence PW1 - Exh.11 PW2 - Exh.22 PW3 - Exh.23 PW4 - Exh.27 PW5 - Exh.28 PW6 - Exh.30 PW7 - Exh.32 PW8 - Exh.33 PW9 - Exh.34 PW10-Exh.35 PW11-Exh.36 PW12-Exh.37 PW13-Exh.38 PW14-Exh.44 PW15-Exh.46 id="span_8">Uploaded by P.S. JOSHI(HC00177) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 23:18:33 IST 2025 NEUTRAL CITATION R/CR.A/77/2014 JUDGMENT DATED: 31/07/2025 undefined PW16-Exh.69 Snehal Jayanandbhai Pandav Documentary evidence Panchnama of recovery of clothes of accused Signed slip kept in inventory Panchnama of place of offence Signed slip kept in inventory PM Note Complaint Kanjibhai Sankadabhai Medical Certificate Veenaben Kanjibhai Medical Certificate List of treatment to Veenaben Index FSL Preliminary report Report for PM Letter written by MO Himmatnagar to PSI Himmatnagar regarding MLC case List to Magistrate regarding filling of Inquest List of crime scene mapping List of persons who obtained medical certificate from MO Ambaji Forwarding notes Receipt of articles by FSL Reminder regarding crime scene mapping FSL report Serological Report Letter to register the complaint Application made by brother of accused Maljibhai Hemtabhai Khair to PSI and other authority for impartial investigation Letter by DYSP Bhutaya to applicant Medical Certificate Transfer form of Ambaji and Vadali Hospital Page 5 of 21 id="span_10">Uploaded by P.S. JOSHI(HC00177) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 23:18:33 IST 2025 NEUTRAL CITATION R/CR.A/77/2014 JUDGMENT DATED: 31/07/2025 undefined X-ray report MLC Case no. 5285/12 OPD form Medical case record 2 pages 3 X-ray of Deceased

5. After closure of the prosecution evidence, the statement of the appellant accused and others under Section 313 of the Cr.P.C, were recorded, to which, they pleaded their false involvement.

6. After hearing the parties and upon appreciation of evidence, the trial Court acquitted the accused nos. 2 to 4 giving them benefit of doubt whereas, appellant accused - No. 4, found guilty for the offence of murder and causing voluntary injury to PW-7 Vinaben and accordingly, has been sentenced as mentioned hereinabove.

7. Being aggrieved and dissatisfied with the impugned judgment of conviction and order of sentence, the accused - appellant has come up with the present appeal.

8. We have heard Ms. Payal Tuvar, learned counsel appearing for the appellant accused and Mr. L. B. Dabhi, learned Additional Public Prosecutor for the respondent-State.

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9. Ms. Payal Tuvar, learned counsel while assailing the judgment of conviction and order of sentence, has submitted that, the prosecution miserably failed to prove the charge of murder against the accused; that the presence of PW-7 at the place is doubtful; that the parties are tribal and as per their custom, if any murder committed by the any person of their community, then, it is precedent to pay the amount of compensation to the family of the deceased by the accused party and the amount whatever decided by the community leader would be bind to the accused; in the facts of the present case, as per the custom, the dead body was allegedly kept near the house of one Andubhai and after some days, the funeral takes place; therefore, if accused could have committed the offence, then the dead body could be found near the house of the accused; thus, the accused has been falsely implicated by PW-7, who had illicit relations with Andubhai; the trial Court, has believed the said story and custom of the community, despite of this, the appellant found guilty by the trial Court, which is nothing but misreading of evidence and the findings are contrary to the evidence and admitted facts of the case and therefore, the conviction and sentence are not sustainable in eye of law.

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10. In alternate, Ms. Tuvar would urge that, as per the medical evidence, it is a case of single blow and having regard to the nature of injuries and the manner in which the blow was given, there was no intention to cause death, as before the incident, the dispute arose between the brother of the deceased and the accused and during said dispute, the brother of the deceased hurled abusive on the accused, which was the motive behind the murder and therefore, the counsel Ms. Tuvar urge that, the act of the accused cannot be said to have intended to causing death of the deceased and the offence would not fall under definition of murder but it would fall under Section 304 Part I or II - culpable homicide not amounting to murder. In such circumstances, Ms. Tuvar would submits that, the appellant has undergone 12 years and having regard to the background facts of the case, instead of Section 302, he may be convicted and sentenced under Section 304 Part I of the Indian Penal Code.

11. On the other hand, Mr. L.B. Dabhi, learned Additional Public Prosecutor opposing the appeal, contended that, the trial Court, has not committed any error either on facts or on law, while convicting the appellant for the act of murder as defined under Section 300 of the Indian Penal Code. The deceased Page 8 of 21 Uploaded by P.S. JOSHI(HC00177) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 23:18:33 IST 2025 NEUTRAL CITATION R/CR.A/77/2014 JUDGMENT DATED: 31/07/2025 undefined was unarmed and in the first incident, he was not party to the dispute and therefore, without any reason, he was killed. The medical evidence shows that the injuries on the body of the deceased found on the vital part and as per the opinion of the doctor, the injuries were sufficient in ordinary course of nature to cause death and therefore, third clause of Section 300 in the present case is attracted. In such circumstances, the prosecution has successfully proved the ingredients of murder as defined under Section 300 of the Indian Penal Code and therefore, having regard to the conduct of the accused, the weapon used in the offence and the manner in which the injuries were caused, the inference would arise that, the act was done with intention of causing death. In such circumstances, the learned Additional Public Prosecutor prays that there being no merits in the appeal, and same may be dismissed.

12. Before dealing with the rival contentions of the parties, for a limited purpose, it would be useful to analyze the evidence of material witnesses:

(a) Vinaben Gamar - PW-7, who is the wife of the deceased, has stated on oath that, on 25.11.2012, due to death of one Jitendrabhai, the religious program was held in the village and to attend the said program, Page 9 of 21 Uploaded by P.S. JOSHI(HC00177) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 23:18:33 IST 2025 NEUTRAL CITATION R/CR.A/77/2014 JUDGMENT DATED: 31/07/2025 undefined she along with her husband Kanjibhai went to the house of deceased Jitendra and after half and hour, they left the place and proceeded towards her house and while reaching near the house of Sakabhai, the accused Kodar Kasna, Moti Kasna, Bachu Ananda and Vikram Hemta, came into their way and started to assault them by kicks and fist blow. The witness has further stated that she requested the accused not to beat her husband but they did not stop there and during the assault, the appellant Vikram took out his knife and stabbed her husband and thereafter, due to hue and cry, the accused ran away from the place.

During the cross-examination of the witness, nothing brought on record by the defense that she was not present at the place and falsely involved the accused. The witness has denied the suggestion that the dead body of her husband was kept near the house of Chandu Ananda. The witness has admitted the custom of the community that those who killed the person, are responsible for blood money to be determined by the community persons. She has also admitted that, the funeral was held after 4 days of the incident.

(b) The other witnesses referred in the aforesaid schedule of list of witnesses, are not witness of the incident and therefore, the individual testimony of the witnesses does not require to refer.

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(c) Dr. Sejal Pandav (PW-16), being a Medical Officer, Himmatnagar Government Hospital, has stated that on 26.11.2012, at about early morning 5.21 the deceased was brought before her through refer note of Ambaji Hospital and during the treatment, the patient was died at about 11.45. The treatment case papers and necessary certificates produced by the prosecution at Exh. 70 to 76. According to opinion of the Doctor, there was a chest injury and the patient was in critical condition.

(d) Dr. Hasmukh Rathod (PW-5), who had conducted the postmortem and according to his version, on 26.11.2012, the dead body was brought before him for postmortem and during postmortem, he noticed three antemortum injuries on the body of the deceased, which he noted in column no. 17 of the PM report, Exh.

29.

External injuries:

(i) Abrasion on right chick (1x1 cm) and

(ii) Abrasion on left side of neck (3x1 cm);

(iii) Curved shape stab wound, upto posterior part of pericardial sac around 12 to 14 cm, Page 11 of 21 Uploaded by P.S. JOSHI(HC00177) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 23:18:33 IST 2025 NEUTRAL CITATION R/CR.A/77/2014 JUDGMENT DATED: 31/07/2025 undefined Internal injury :

(i) Corresponding to the external injury no. 3, the heart was punctured on anterial wall of 1.5 cm.

According to opinion of the doctor PW-5, the cause of death due to stab wound piercing left ventricle of the heart and the injuries found on the body of the deceased were sufficient in ordinary course to cause the death and the injuries could be possible by seized article knife.

(e) Mahendra Dahyabhai Parmar (PW-15), was entrusted the investigation of the case, as at relevant time, he was serving as PSI at Hadad Police Station. The IO in his testimony, has stated that the PW-7 being eye- witness of the incident, had disclosed her complaint before him, which he recorded in the words of the complainant. The IO has further stated that after registration of the offence, he was entrusted with the investigation and during the course of investigation, he prepared the inquest and sent the dead body for postmortem, drew the panchnama of place of occurrence, recorded the statement of witnesses, collected the medical case papers as well PM report, arrested the accused, seized and recovered the knife Page 12 of 21 Uploaded by P.S. JOSHI(HC00177) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 23:18:33 IST 2025 NEUTRAL CITATION R/CR.A/77/2014 JUDGMENT DATED: 31/07/2025 undefined from the appellant herein and after receiving the FSL report, he filed the chargesheet before the Court against the accused. In the cross-examination, nothing fruitful brought on record to substantiate the allegation of false involvement.

13. In the facts of the present case, it is not in dispute that the death of the deceased was homicidal. After careful examination of the eye-witness PW-7, we are thus satisfied that, the prosecution has beyond reasonable established the occurrence in the manner, as stated by the witness PW-7. The said witness has categorically stated that there was no ban to attend the religious function by the woman. On careful examination of her evidence, we have no any suspension or doubt about her presence at the spot, as when she intervened to save her husband, the simply injury being caused by the accused to her and same is proved by medical evidence. Thus, the sole testimony of PW-7 is wholly reliable and worthy of credence, as there is no reason or motive for her to falsely involve the accused. The tradition of blood money, though believed by the trial Court but merely admission of the witnessed that as per the tradition, if blood money is not paid by the accused, then, dead body has been kept near the house of the accused and on that basis, the evidence of eye-witness cannot Page 13 of 21 Uploaded by P.S. JOSHI(HC00177) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 23:18:33 IST 2025 NEUTRAL CITATION R/CR.A/77/2014 JUDGMENT DATED: 31/07/2025 undefined be discarded, which is otherwise trustworthy and reliable.

14. Now we examine the alternative prayer about whether the appellant accused is guilty of offence of murder as defined under Section 300 of the Indian Penal Code or death caused was culpable homicide not amounting to murder under Section 304 Parat-I or II?

15. In a charge of murder under Section 300 of the Indian Penal Code, the prosecution must prove certain elements to establish that, the offence is not merely a culpable homicide under Section 299 IPC but culpable homicide amounting to murder. It is required to be proved that, death is homicidal death and the act by which the death is caused is done with the intention of causing death or with the intention of causing such bodily injury as the offender knows is likely to cause death or it is done with the intention of causing bodily injury and the said injury intended to be inflicted is sufficient in ordinary course of nature to cause death or death is caused with the knowledge that the act is so imminently dangerous that it must in all probability cause death.

16. In the facts of the present case, admittedly, on the day of incident i.e. 25.11.2012 at about 7-00 o'clock Page 14 of 21 Uploaded by P.S. JOSHI(HC00177) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 23:18:33 IST 2025 NEUTRAL CITATION R/CR.A/77/2014 JUDGMENT DATED: 31/07/2025 undefined evening the accused and brother of the deceased Shravan, had an altercation and according to say of the accused, Shravan hurled abuses and as per the prosecution case, the accused gave a slap to Shravan on trivial issue as by wearing a blanket, the accused no. 1 threatened Shravan, which led the Shravan to hurled abusive. On the same day, at about 9-00 o'clock deceased Kanjibhai and his wife, after attending the religious function, they were on the way, the accused met them and after knowing that it is the Kanjji, brother of Shravan, they started to beat him by kicks and feast blow and while intervening by PW-7, she also beaten up by the accused and in that process, the present appellant - accused no. 4, took out his knife and gave a single blow on the left side of the chest. In such circumstances, the incident happened at the spur of moment. The single knife blow on the chest proved fatal. The other accused did not indulge in overt act and therefore, except the appellant, 3 accused have been acquitted by the trial Court. It is evident from the medical evidence that, the knife blow was not given with full force, otherwise, depth of injury no. 3 would have been more than just "cavity'. The entire incident was without premeditated or pre-planed and it is not the prosecution that, as a pre-plan the accused in waiting of the deceased. Therefore, after seeing the deceased, the accused Page 15 of 21 Uploaded by P.S. JOSHI(HC00177) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 23:18:33 IST 2025 NEUTRAL CITATION R/CR.A/77/2014 JUDGMENT DATED: 31/07/2025 undefined reminded the earlier incident of hurled abusive by the brother of the deceased, which resulted into serious fatal incident. The appellant did not have any undue advantage. Undoubtedly the fatal injury on the vital part of the body but having regard to the circumstances, as referred above, it cannot be said that it has been caused with an intention to cause death. In order to prove causing death with intention or knowledge, a graver form of culpable homicide with higher intention or knowledge is required to be established.

17. On the issue whether the act of the accused is a murder or culpable homicide not amounting to murder, the Supreme Court, time and again in so many cases, deliberated upon the crucial question of distinction between Section 299 and 300 of the IPC. The difference between murder and culpable homicide not amounting to murder has been succinctly explained in the case of State of A.P. Vs. Rayavarapu Punnayya (1976 (4) SCC 382) in the following words:

"12. In the scheme of the Penal Code, culpable homicide is genus and murder its specie. All murder is culpable homicide but not vice-versa. Speaking generally, culpable homicide sans 'pecial characteristics of murder, is culpable homicide not amounting Page 16 of 21 Uploaded by P.S. JOSHI(HC00177) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 23:18:33 IST 2025 NEUTRAL CITATION R/CR.A/77/2014 JUDGMENT DATED: 31/07/2025 undefined to. murder. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degreess of culpable homicide. The first is, what may be called, culpable homicide of the first degree. This is the gravest 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 for the three grades. Culpable homicide of this degree is punishable under the second Part of Section 304."

18. After referring the aforesaid decision, the difference between murder and culpable homicide not amounting to murder was further elucidated in Rampal Vs. State of U.P. (2012 (8) SCC 289). Paras-16 and 21 of the judgment reads thus:

"16. that the safest way of approach to the interpretation and application of Section 299 and 300 IPC is to keep in focus the key words used in various clauses of the said sections. Minutely comparing each of the clauses of Sections 299 and 300 IPC and drawing support from the decisions of the Court in Virsa Singh v. State of Punjab [AIR 1958 SC 465: 1958 Cri. LJ 818] and Rajwant Singh v. State of Kerala [AIR 1966 SC 1874 : 1966 Cri LJ 1509], speaking for the court, R.S. Sarkaria, J.

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NEUTRAL CITATION R/CR.A/77/2014 JUDGMENT DATED: 31/07/2025 undefined neatly brought out the points of distinction between the two offences, which have been time and again reiterated. Having done so, the Court said that wherever the court is confronted with the question whether the offence is murder or culpable homicide not amounting to murder, on the facts of a case, it [would] be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to culpable homicide as defined in Section 299. If the answer to this question is in the negative, the offence would be culpable homicide not amounting to murder, punishable under the First or Second part of Section 304, depending respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the cases come within any of the Exceptions enumerated in Section 300, the offence would still be culpable homicide not amounting to murder, punishable under the first part of Section 304 IPC. It was, however, clarified that these were only broad guidelines to facilitate the task of the court and not cast-iron imperative."

21 Sections 302 and 304 of the Code are primarily the punitive provisions. They declare what punishment a person would be liable to be awarded, if he commits either of the offences. An analysis of these two sections must be done having regard to what is common to the offences and what is special to each one of them. The offence of culpable homicide is thus an offence Page 18 of 21 Uploaded by P.S. JOSHI(HC00177) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 23:18:33 IST 2025 NEUTRAL CITATION R/CR.A/77/2014 JUDGMENT DATED: 31/07/2025 undefined which may or may not be murder. If it is murder, then it is culpable homicide amounting to murder, for which punishment is prescribed in Section 302 of the Code. Section 304 deals with cases not covered by Section 302 and it divides the offence into two distinct classes, that is (a) those in which the death is intentionally caused; and (b) those in which the death is caused unintentionally but knowingly. In the former case the sentence of imprisonment is compulsory and the maximum sentence admissible is imprisonment for life. In the latter case, imprisonment is only optional, and the maximum sentence only extends to imprisonment for 10 years. The first clause of Section 304 includes only those cases in which offence is really murder, but mitigated by the presence of circumstances recognized in the Exceptions to Section 300 of the Code, the second clause deals only with the cases in which the accused has no intention of injuring anyone in particular. In this regard, we may also refer to the judgment of this Court in the case of Fatta v. Emperor [AIR 1931 Lah 63]"

19. Recently, in the case of Chunni Bai Vs. State of Chhattisgarh (AIR 2025 Supreme Court 2370), the Supreme Court, after referring the observations made in the case of Rayavarapu Punnayya and Rampal Singh (supra), in Para-21, observed thus:

"21. From the above extracts, it can be understood that one of the criteria to determine, in any given case, as to whether the act amounts to murder or culpable homicide not amounting to murder is the presence or absence of intention of the offender. If the intention to cause death or to Page 19 of 21 Uploaded by P.S. JOSHI(HC00177) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 23:18:33 IST 2025 NEUTRAL CITATION R/CR.A/77/2014 JUDGMENT DATED: 31/07/2025 undefined cause such bodily injury as is likely to cause death or the knowledge, which obviously has to be a conscious one, 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, comes out aloud and clear in the case, it would be most appropriate to categorize it as a case of murder under Section 300 IPC in which event, penal provision of Section 302 IPC would be attracted. On the other hand, if the "intention" in causing the death or to causing such bodily injury is not so clear, the case will fall under the less stringent category of "culpable homicide not amounting to murder" as punishable under Section 304 IPC."

20. In the facts of the present case, the first quarrel with the brother of the deceased was trivial in nature and after two hours of the incident, when the accused had an opportunity to see the brother of the deceased, the appellant herein wielded a weapon like knife and landed a blow in the chest. Thus, the circumstances under which the blow given by the accused is indicative of lack of intention to cause death, however, it is a permissible inference that, the appellant could be imputed with a knowledge that he was likely to cause injury which was likely to cause death. Therefore, in our opinion, the conviction of the appellant cannot be sustained under Section 302 but Page 20 of 21 Uploaded by P.S. JOSHI(HC00177) on Thu Jul 31 2025 Downloaded on : Thu Jul 31 23:18:33 IST 2025 NEUTRAL CITATION R/CR.A/77/2014 JUDGMENT DATED: 31/07/2025 undefined his act would certainly fall under Section 304 Part-I of the Indian Penal Code.

21. In the result, the appeal is allowed in part. The conviction and sentence under Section 302 is set aside and instead thereof, the appellant is convicted for the offence punishable under Section 304 Part-I of the Indian Penal Code. The accused, as on date has undergone 11 years of his jail term and therefore, the appellant is accordingly sentenced of the period already undergone along with the fine, as imposed by the trial Court. The appellant may be released forthwith, if he is not wanted in any other criminal offence. R&P, if any, be sent back to the concerned court.

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