Madhya Pradesh High Court
Premlal @ Prem Bahadur Kushwaha vs The State Of Madhya Pradesh on 6 December, 2018
Bench: Huluvadi G. Ramesh, Rajendra Kumar Srivastava
CRA 2175/2009
---1---
HIGH COURT OF MADHYA PRADESH: JABALPUR
(Division Bench)
Criminal Appeal No. 2175/2009
Premlal alias Prem Bahadur Kushwaha .........Appellant
Versus
State of Madhya Pradesh .......Respondent
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
CORAM:
Hon'ble Shri Justice Huluvadi G. Ramesh,
Hon'ble Shri Justice Rajendra Kumar Srivastava
------------------------------------------------------------------------------------------
APPEARANCE:
Shri Ayush Choubey, Advocate as Amicus Curiae for the Appellant.
Shri Aniruddh Pratap Singh, Government Advocate for the
Respondent/State.
------------------------------------------------------------------------------------------
Whether Approved for Reporting: Yes/No
Reserved on: 27.11.2018
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
JUDGMENT
(Pronounced on this 6th day of December, 2018) Per: Huluvadi G. Ramesh, J.:
The present appeal has been filed by the appellant against the impugned judgment of conviction and order of sentence dated 30.10.2009 passed by the learned Fourth Additional Sessions Judge (Fast Track Court), Satna in Sessions Trial No.42/2009 convicting the appellant under Section 302 of the Indian Penal Code, 1860 and sentencing him to suffer CRA 2175/2009
---2---
imprisonment for life and fine of Rs.500/-; in default of payment of fine, to further undergo R.I. for one month.
2. According to the prosecution, on 15.12.2008 at about 4:00 a.m., Munnalal (hereinafter referred to as "the deceased") left his home for irrigating his agricultural field situated at village Bharatpur Padri. On the way, one land before his agricultural field, the deceased met Bhagwandeen (PW-2) and Ramkesh (PW-5), who were watering their field that they had got on rent (Batai). Thereafter, the deceased went to his field and started watering his field from the bore. At about 4.45 a.m., Bhagwandeen and Ramkesh heard the sound of quarrel taking place with the deceased. On reaching the spot, they saw accused and deceased were arguing with each other. The accused was asking the deceased for supply of water to his field but the deceased was refusing to the same. Thereupon, accused-Premlal, who was carrying an Axe, gave an Axe blow on the head and face of the deceased. As a result, the deceased fell down at the spot. Upon shouting by Bhagwandeen (PW-2) and Ramkesh (PW-5), the accused abused them and ran away from the place by giving a threatening that they should not disclose the incident to anyone, else they will be killed. Upon hearing the hue and cry, Chunnilal (PW-1), brother of the deceased, Ramnaresh (PW-3) and other people reached there. Bhagwandeen (PW-2) and Ramkesh (PW-5) narrated the incident to them. Thereafter, they took the deceased to Satna Hospital by Jeep but the deceased succumbed to the injuries on the way to the hospital.
3. Chunnilal (PW-1), brother of the deceased informed the incident orally to the Police Station, Baraundha. Whereupon, Town Inspector N.P. Singh Chauhan (PW-11) registered the offence by preparing Marg report CRA 2175/2009
---3---
(Ex.P-1) and FIR (Ex.P-2) on the same date. After reaching the spot, the Investigating Officer N.P. Singh (PW-11) prepared a panchnama (Ex.P-4) with regard to taking the dead body of the deceased in possession in the presence of witnesses; sent the dead body for postmortem; prepared spot map (Ex.P-6); seized the blood stained earth and simple earth in separate packets; the clothes of the deceased were seized through Ex.P-7 and were sealed. The seized articles were sent to the Forensic Science Laboratory, Sagar vide Ex.P-11. Ex.P-12 is the postmortem report. Ex.P-13 is the request to Patwari to prepare the site plan. The accused was arrested vide Memo (Ex.P-15) on the same date. The statement of the accused was recorded under Section 27 of the Evidence Act vide Ex.P-16. The disclosure statement of the accused led to recovery of Axe from him vide Ex.P-17. During the course of investigation, the statements of Chunnilal (PW-1); Bhagwandeen (PW-2) and Ramkesh (PW-5) were recorded under Section 161 of the Criminal Procedure Code, 1973 (in short "the CrPC").
4. In order to bring home the charges, the prosecution examined as many as 11 witnesses namely, Chunnilal Sen (PW-1), Bhagwandeen (PW-
2), Ramnaresh (PW-3), Shripal (PW-4), Ramkesh (PW-5), Saroj Sen (PW-6), Sonu Maravi - Constable No.679 (PW-7), Ramkesh - Constable (PW-8), Dr. S.K. Verma (PW-9), Gaivi Prasad Kol - Patwari Halka No.9 (PW-10) and N.P. Singh Chouhan, Sub-Inspector (PW-11).
5. Chunnilal Sen (PW-1) is the younger brother of deceased. According to him, he knew the appellant, as he belonged to same village. On the date of incident, he was sleeping at his home. At about 4.45 a.m., his mother Kantaliya (not examined) awakened him and asked him to rush to their field CRA 2175/2009
---4---
as a quarrel had taken place. On reaching the spot, he found Ramkesh and Bhagwandeen standing on the fence (Maid) of the field. They narrated the incident to this witness. He found that the deceased had five injuries on his face and the blood was oozing. The deceased was breathing but was unable to speak. He called Marshal Jeep of Maheep Pandey and took the deceased to Satna along with Shripal, Sanjay and Dadulal but the deceased died on the way. He reached the Police Station Baraundha and lodged the report Ex.P-1. He has deposed that there was no previous enmity with the appellant with regard to taking of water but two days before the incident, the deceased told him that appellant was asking for water. In cross-examination, he has stated that Ramkesh (PW-5) is his cousin being son of his uncle. Bhagwandeen (PW-2) is not his relative. Bhagwandeen had taken the agricultural field of Ganesh on rent (Batai). He has stated that the field of Ganesh is about 200 meters away from the place of occurrence. He has stated that if any quarrel takes place at the place of occurrence, the same could be heard from his house.
6. Bhagwandeen (PW-2) has stated that he knew the accused and the deceased. He has stated that at the time of incident, he was watering his field along with Ramkesh. They have taken the field of Ganesh on rent. Their field is situated near the house of deceased and is one field away from the field of deceased. The deceased had passed by their field at around 4.00 a.m. and after half-an-hour he heard the shouts. They reached the spot and saw appellant was hitting the deceased with Axe on his head and face. According to him, when they reached near, the appellant challenged and abused them. They shouted, whereupon, Chunnilal (PW-1), Ramnaresh (PW-3) and CRA 2175/2009
---5---
Ramkishore (not examined) etc. reached the spot. He has deposed that while beating the deceased, appellant was abusing the deceased saying that now he would see how the deceased does not give water. He is also the witness of seizure of Axe from the appellant. In cross-examination, he has stated that he sat outside the house of the appellant when appellant took out Axe from his house. The police party had gone inside the house with the appellant at the time of recovery. He has stated that the field which he has taken on rent (Batai) is 300 feet away from the field of appellant, which is adjacent to the field of deceased. He has, however, denied the suggestion that at the time of incident, due to darkness, nothing could be visible. He, however, stated that the incident took place at 4.45 a.m. and the Moon was out, so he could see. He denied the suggestion that when he and Ramkesh (PW-5) reached the spot, the deceased and appellant were talking to each other. He denied his statement made to the police in Ex.D-2 that when they reached the spot, the deceased and appellant were having a spat and then appellant attacked the deceased with an Axe.
7. Ramnaresh (PW-3) is the uncle of deceased. He knew the appellant. He has deposed that in the night of incident, he was sleeping in his house. At around 4.45 a.m. he heard the shouts emanating from the field of deceased. He rushed to the field of deceased where Chunnilal (PW-1) told him that appellant has run away after beating the deceased. The deceased had sustained injuries on his head, face and nose. He has admitted his signatures on Panchnama of dead body (Ex.P-4). He has also proved his signatures on spot map (Ex.P-9) and Panchnama (Ex.P-8). In cross-examination, he denied CRA 2175/2009
---6---
the suggestion that when he reached the place of occurrence, it was dark. He himself stated that visibility was clear.
8. Shripal (PW-4) in his statement has deposed that he knew the appellant and deceased. After the incident when he came to know that deceased died then he reached the place of occurrence where Chunnilal (PW-1) informed him that appellant has killed his brother and run away. He is witness to Naksha Panchayatnama (Ex.P-4). He is also witness of seizure of Axe through Ex.P-17. In cross-examination, he has stated that deceased was his cousin brother. He has admitted that there was no dispute between appellant and deceased prior to the date of incident. He has also admitted that he stood outside the house of accused when the accused brought out Axe from his house. He has admitted that it is common that the farmers keep Axe.
9. Ramkesh (PW-5) has also deposed that he knew both appellant and deceased. At the time of incident, he was watering his field along with Bhagwandeen (PW-2). He saw the deceased going towards his field at around 4.00 a.m. After some time, he heard appellant threatening the deceased that if he does not give water, he will be chopped off. Upon the call of the deceased, he and Bhagwandeen ran to intervene. On reaching the place of occurrence, he saw that appellant was giving Axe blow on the head and face of the deceased. On seeing the witness, the appellant also challenged him. Thereupon, he and Bhagwandeen shouted and hearing their shout, Chunnilal (PW-1) and others reached the place of occurrence. The deceased was taken to hospital. He has denied the suggestion that when they were watering the field, it was dark. He also denied that it was difficult to CRA 2175/2009
---7---
see from one field to another. He has stated that he had given statement to police that accused was threatening the deceased that if water is not given to him, he will be cut. He cannot say why this version is missing from his statement Ex.D-4.
10. Saroj Sen (PW-6) is wife of deceased. She has deposed that at the time of incident, her mother-in-law awakened him. She rushed the spot and saw the deceased in injured condition. She became unconscious. In cross- examination, she stated that the incident occurred at around 5 a.m. and due to fog nothing could be seen.
11. Dr. S.K. Verma (PW-9) has performed the postmortem examination on the dead body of the deceased. The report is Ex.P/12. The opinion of the doctor is that incised wounds are by sharp and heavy object. He found the following injuries on the dead body of the deceased:
1. Incised wound on head left side frontal region 9 cm x 3cm x 3cm deep,
2. Incised wound on left occipital region size 9 ½ cm x 2 cm x 3 cm deep with clotted blood,
3. Incised wound with clotted blood on mouth region and nose left side 9 cm x 1cm x 2 cm deep
4. Lacerated wound with swelling 4 cm x 3 cm on the left eye
5. Lacerated wound on the face right side, size 3 cm x 3 cm, both the lacerated wounds are caused by hard and blunt object.
12. Gaivi Prasad Kaul (PW-10) is the Patwari. He stated that he had made the Nazri Naksa (map) of the place of occurrence. He stated in cross- examination that the distance between the land of accused and place of occurrence is about 300 meters and the distance of field of Ramkesh (PW-5) CRA 2175/2009
---8---
is about 500 meters. He also stated that there was no source of light anywhere near the place of incident so he did not mention it in the map.
13. N.P. Singh Chouhan (PW-11) is the Investigating Officer. He has deposed that he visited village Padri and prepared the spot map Ex.P/6; arrested the accused and prepared Panchanama Ex.P/15, seized the blood- stained earth (Article A), simple earth (Article B), and clothes of the deceased vide seizure memo Ex.P/7. An Axe (Article D) was recovered from the house of the appellant on the information given by the appellant vide Ex.P/17. He stated that statements of the witnesses under Section 161 Cr.P.C. were also recorded.
14. The articles seized during investigation were sent for FSL examination (Ex.P/11). FSL Report (Ex.P-18) is to the effect that though there is a human blood on Article D (Axe) but no grouping of the blood- stains could be done due to insufficiency of the blood found on the Axe.
15. We have heard learned counsel for the parties and find that the present appeal deserves to be allowed in part.
16. The learned Trial Court has found the appellant guilty of committing murder. However, the questions which arise for consideration are:
(i) Whether the prosecution has been able to prove that deceased had died of a homicidal death?
(ii) Whether the Trial Court is justified in holding that the accused committed the murder of the deceased with an intention and with the knowledge to cause his death?
(iii) What offence, if any, the accused has committed?CRA 2175/2009
---9---
17. It has been argued by the learned counsel for the appellant that the incident in question took place on account of a sudden quarrel without any premeditation and the act of the appellant hitting the deceased was committed in the heat of passion upon a sudden quarrel without the appellant having taken undue advantage or acting in a cruel or unusual manner. It is contended that the appellant's case falls within the Exception 4 to Section 300 of the I.P.C., which reads as under:
"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 having taken undue advantage or acted in a cruel or unusual manner."
18. Learned Amicus Curiae appearing for the appellant submitted that though the axe recovered at the instance of the appellant was found stained with blood but since no grouping of the blood was received, it raises a strong suspicion and therefore, the accused deserves the benefit of doubt. He has relied upon a Division Bench judgment of this Court reported as 2005 (2) MPHT 1 (NOC) (Sakha Ram v. State of M.P.) and a Single Bench decision reported as 2005 (2) MPJR 511 (Aloknag Choudhary v. State of M.P.) to contend that if there is any serious doubt, the benefit of doubt shall be given to accused.
19. On the other hand, learned Government Advocate relies upon a Supreme Court decision reported as (2015) 4 SCC 387 (Sanjeev v. State of Haryana) to contend that to establish commission of murder by an accused, motive is not required to be proved. The relevant extract of the judgment reads as under:-
CRA 2175/2009
---10---
"16. It is settled principle of law that, to establish commission of murder by an accused, motive is not required to be proved. Motive is something which prompts a man to form an intention. The intention can be formed even at the place of incident at the time of commission of crime. It is only either intention or knowledge on the part of the accused which is required to be seen in respect of the offence of culpable homicide. In order to read either intention or knowledge, the courts have to examine the circumstances, as there cannot be any direct evidence as to the state of mind of the accused."
20. Bhagwandeen (PW-2) and Ramkesh (PW-5) are the key eye- witnesses to the incident. It is evident that on hearing the shout they reached the spot and saw that the appellant was assaulting the deceased over the issue of denial of supply of water to field of the accused. Chunnilal Sen (PW-1) is the brother of deceased who has lodged the FIR after the death of his brother. He stated that the field of the accused is adjacent to his field, where scuffle ensued. The witnesses have deposed that there was no previous enmity between the deceased and the accused.
21. We find considerable merit in the contention raised by the learned counsel for the appellant that the incident took place on account of a sudden quarrel without any premeditation and that the overt act was committed in the heat of passion without the appellant having taken undue advantage or acting in a cruel or unusual manner. We say so for three distinct reasons. Firstly, because even according to the prosecution version, there was no premeditation in the commission of the crime. There is not even a suggestion that the appellant had any enmity or motive to commit any offence against the deceased, leave alone a serious offence like murder. As per prosecution story, the incident is said to have taken place on 15.12.2008 at around 4:45 a.m. in winters on the spur of the moment. The accused was arrested on the same date on 15.12.2008 near a pond situate in village Padri. The CRA 2175/2009
---11---
eyewitnesses Bhagwandeen (PW-2) and Ramkesh (PW-5) were not there at the time of incident as all of them were working in their field, which is around 500 meters away from the place of incident. The version of Gaivi Prasad Kol (PW-10) Patwari, makes the statements of the eyewitnesses suspicious that though they may have heard the arguments between accused and deceased but how they were able to reach so fast and see the incident in the dawn hours of winter when it was dark and fog around. Saroj Sen (PW-
6) wife of the deceased in her cross-examination has stated that when she reached the place of incident at that time it was dark and fog was still there. From the evidence of Patwari - Gaivi Prasad Kol (PW-10) no source of light was found on the place of incident.
22. Still further, as per evidence on record the panch-witnesses have also not supported the recovery of murder weapon (Axe). Bhagwandeen (PW-2) is the witness of seizure of Axe. In cross-examination, he has not supported the description and size of Axe. Shripal (PW-4) is also another witness of seizure of Axe. He is the cousin brother of deceased Munnalal. He has also admitted that there was no previous enmity between accused and deceased. In cross-examination, he has stated he had not gone inside the house at the time of seizure of Axe. The accused had brought the Axe from his house and he was standing outside. He is unable to say from where the Axe was brought by the accused from his house. Thus, the recovery of the murder weapon is not proved. It has also come on record that such axe are very common to be found in every house of village.
23. Keeping in view the FSL report Ex.P/18, the blood found on Axe cannot be grouped and matched with the deceased due to insufficiency of CRA 2175/2009
---12---
blood. The minor contradictions are there in the versions of the witnesses, which are not to be believed. However, the prosecution has not been able to prove any motive. It is not uncommon in the villages that such quarrel takes place over petty issues of water and irrigation of field. As such in the instant case, incident has taken place only on account of sudden quarrel between the deceased and the accused over giving of water.
24. While marshalling the evidence it is found that the prosecution is able to establish that deceased died a homicidal death on account of head injuries. Though the Trial Court has arrived at a conclusion that the accused committed an offence of murder but it is evident that the incident occurred without there being intention and premeditation and all of a sudden in the early hours of the day. There is no background of previous enmity or previous quarrel between the appellant and the deceased and all of a sudden incident has taken place and that too having lost the control the appellant assaulted the deceased. The very overt act of the accused at the most would fall within the definition of Section 304 Part I of IPC, which reads as under:-
"304. Punishment for culpable homicide not amounting to murder.
-- Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.
CLASSIFICATION OF OFFENCE Part I: Punishment - Imprisonment for life, or imprisonment for 10 years and fine - Cognizable - Non-bailable - Triable by Court of Session - Non-compoundable.CRA 2175/2009
---13---
25. Though there are decisions on the point that no premeditation is necessary for commission of the crime and it could be developed on the spot itself but the fact remains that in the present case there is no previous enmity and also that the quarrel took place at the time of watering of the field in the dawn hours without there being anticipation.
26. It is also necessary to refer to a few judgments where in similar circumstances the Court has held the Exception 4 to Section 300 of the I.P.C. to be applicable and converted the offence from murder to culpable homicide not amounting murder. In a judgment reported as (2003) 3 SCC 528 (Ghapoo Yadav and Ors. v. State of M.P.), the Supreme Court held that in a heat of passion there must be no time for the passion to cool down and that the parties had in that case before the Court worked themselves into a fury on account of the verbal altercation in the beginning. Apart from the incident being the result of a sudden quarrel without premeditation, the law requires that the offender should not have taken undue advantage or acted in a cruel or unusual manner to be able to claim the benefit of Exception 4 to Section 300 IPC. Whether or not the fight was sudden, was declared by the Court to be decided in the facts and circumstances of each case. The following passage from the decision is apposite, which reads as under:
"10. ......The help of Exception 4 can be invoked if death is caused; (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and
(d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300.
IPC is not defined in the Indian Penal Code. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without CRA 2175/2009
---14---
weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'.
11. ........After the injuries were inflicted the injured had fallen down, but there is no material to show that thereafter any injury was inflicted when he was in a helpless condition. The assaults were made at random. Even the previous altercations were verbal and not physical. It is not the case of the prosecution that the accused appellants had come prepared and armed for attacking the deceased.........This goes to show that in the heat of passion upon a sudden quarrel followed by a fight the accused persons had caused injuries on the deceased, but had not acted in cruel or unusual manner. That being so, Exception 4 to Section 300 IPC is clearly applicable..."
27. In a decision reported as (2011) 6 SCC 343 (State of Rajasthan v. Islam and others), the Supreme Court has said that all the three elements are required to be proved to attract Exception 4 to Section 300 of the Indian Penal Code and it is not sufficient to prove only some of them. In the case in hand, all the three elements are present as the incident in question occurred without there being any intention and premeditation and all of a sudden in heat of passion over giving of water to irrigate the field. There is nothing to show that the accused had taken undue advantage and acted in a cruel or unusual manner.
28. In the facts of a judgment of the Apex Court reported as (2012) 13 SCC 663 (Budhi Singh v. State of Himachal Pradesh), the accused arrived carrying Tobru (small axe) in his hands and hit it twice on the head of the deceased. The deceased died due to injuries inflicted upon him. The incident took place on the spur of moment and there was no sudden and grave provocation by the deceased, which would bring the offence within the CRA 2175/2009
---15---
ambit of Section 304 Part I, Exception 1 of Section 300 of IPC. In the case in hand, at the dawn around 5 O'clock the incident is said to have been witnessed by Bhagwandeen (PW-2) and Ramkesh (PW-5) from a distance of 300 meters though the witnesses are familiar with the deceased and the assailant i.e. the appellant. It appears that the incident had taken place on the spur of moment without premeditation by the appellant. Though the version of the witnesses is that the appellant was quarrelling with the deceased but it can be inferred that he has committed culpable homicide not amounting to murder. The incident had occurred all of a sudden on account of irrigating the land and sharing of water and all of a sudden the quarrel ensued. The appellant assaulted on the head of the deceased with an axe and the deceased died due to injuries sustained by him. In these circumstances, it would bring the offence under Section 304 Part I of IPC.
29. Chunnilal (PW-1) brother of the deceased and Shripal (PW-4) cousin of the deceased have admitted that there was no previous enmity between the deceased and the appellant. Thus, the prosecution has failed to establish any motive associated with the appellant to kill the deceased. In (2016) 16 SCC 192 (Pankaj vs. State of Rajasthan), the Supreme Court stated that benefit of doubt in failure of prosecution to prove any motive goes in favour of accused. The following passage from the decision is apposite:
"24.............. Moreover, the prosecution is not able to prove the motive clearly. Though motive is not sine qua non for the conviction of the Appellant-accused, the effect of not proving motive raises a suspicion in the mind. In the present case, it appears that the theory behind motive has been given after much thought process.CRA 2175/2009
---16---
30. The Apex Court in its decision reported as (2017) 3 SCC 247 (Ar- jun and another Vs. State of Chhattisgarh) has held that when and if there is intent and knowledge, then the same would be a case of Section 304 Part I IPC and if it is only a case of knowledge and not the intention to cause mur- der and bodily injury, then the same would be a case of Section 304 Part II IPC. Keeping in view the said decision, in the present case, the incised wounds caused on the head of the deceased on frontal region, left occipital region, on mouth and nose and lacerated wound on the eye and face indicate that the appellant had intention and knowledge to cause the injuries and thus, it would be a case falling under Section 304 Part I IPC not under Section 302 of IPC. It is further seen that when the deceased was watering his agricul- tural land, the appellant is said to have asked for supply of water to his field. Thereupon, there was exchange of words and during the said quarrel, the ap- pellant attacked the deceased. Thus, the incident occurred due to a sudden fight which falls under Exception 4 of Section 300 of IPC because there is no premeditation, motive, knowledge or intention of the appellant.
31. We are of the opinion that the though the learned trial Court has analysed the evidence but the fact remains that the manner in which the incident and death took place on the spur of the moment it is to be inferred in the circumstances that it is not a gruesome murder. On appreciating the evidence on record, we are of the view that the prosecution has failed to establish its case beyond reasonable doubt to bring the offence under Section 302 of IPC but looking to the commission of offence definitely it is a case of culpable homicide not amounting to murder. There is cogent evidence on record to hold the accused guilty of the offence but not under Section 302 of CRA 2175/2009
---17---
IPC but for 304 Part I IPC. All that can be said is that the appellant had the knowledge/intention that the injury inflicted by him was likely to cause the death of the deceased. Thus, the case would, therefore, more appropriately fall under Section 304 Part I of the IPC.
32. For the reasons stated hereinabove, the conviction of the appellant under Section 302 of IPC is altered to that of conviction under Section 304 Part I of IPC.
33. Consequently, the appeal filed by the appellant is partly allowed. The conviction of the appellant under Section 302 of IPC is modified as conviction under Section 304 Part I of IPC and he is sentenced to suffer R.I. for 10 years and fine of Rs.5000/-; in default of payment of fine, to further undergo S.I. for two months. The appellant is in custody since 15.12.2008 and for nearly about 10 years he has served the jail sentence. The appellant would be entitled to get benefit of set off in view of Section 428 of Cr.P.C. Accordingly, the appellant be set at liberty, if not required in any other case.
34. Before parting, we put on record our appreciation for the assistance rendered by learned Amicus Curiae in this case. The High Court Legal Services Committee shall remit fee of Rs.4,000/- to the learned Amicus Curiae for assisting the Court.
(HULUVADI G. RAMESH) (RAJENDRA KUMAR SRIVASTAVA)
Judge Judge
S/
SACHIN CHAUDHARY
2018.12.07 16:50:46 +05'30'