Naresh @ Ram Naresh vs The State Of U.P.
2013 Latest Caselaw 5094 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 
Criminal Appeal No. 1801 of 2003
 
Naresh @ Ram Naresh Versus The State of U.P.
 

 
Hon'ble Ravindra Singh,J.

Hon'ble Arvind Kumar Tripathi(II),J.

(Delivered by Hon'ble Ravindra Singh,J.)

Heard Sri Shishir Pradhan learned counsel for the appellant, learned A.G.A. for the State of U.P.

This criminal appeal has been filed by the appellant Naresh @ Ram Naresh against the judgement and order dated 16.10.2003 passed by the learned Special Judge,( E.C.Act) Unnao in S.T. No. 280 of 2001 whereby the appellant has been convicted under section 302 I.P.C. and sentenced for life imprisonment.

The prosecution story in brief is that the F.I.R. of this case has been lodged by Sri Kamlesh Kumar, P.W. 1 on 18.5.2001 at 6.15 a.m. in respect of the incident occurred on 17.5.2001 at about 8.30 p.m. at P.S. Maurawan district Unnao in case crime no. 113 of 2001. The appellant Ram Naresh and Sukh Lal are named in the F.I.R. as accused, the alleged occurrence has occurred at the door of the first informant in village Shayampur, the distance of the police station was 8 km from the alleged place of occurrence. It is alleged in the F.I.R. that on 17.5.2001 the appellant and his father Sukh Lal were hurling abuses to the family of the first informant at about 7-8 p.m. but the dispute was ended, after half an hour of the above mentioned dispute i.e. at about 8.30 p.m. the appellant and the accused Sukh Lal again quarrelled at the door of the first informant, the deceased Santideen was caught hold by Sukh Lal and the appellant Ram Naresh used knife blows on his person. The first informant and others started shouting, on that shouting Smt. Raghurai( P.W.2) mother of the first informant and Om Raj, brother -in -law of the first informant came there who witnessed the incident. The deceased in a serious condition was taken to Devmai to provide medical aid from where his case was referred to the government hospital. The deceased in an injured condition was taken to Sagoli in a bullock cart, the deceased succumbed to his injuries on the way to Sagoli, thereafter, leaving the dead body, in front of the flour mills of village Chheetu Kheda, the first informant went to the police station to lodge the F.I.R. It has been clearly mentioned in the F.I.R. that the appellant Ram Naresh is the real cousin of the first informant. The accused persons left the place of incident by saying that in Terhawain of Baba Jagdhari, less money and below standard oil was provided, on this annoyance the deceased has been killed. After lodging the F.I.R. inquest report was prepared on 18.5.2001 from 7.00 a.m. to 8.50 a.m.,Thereafter, his dead body alongwith the relevant papers was sent to the mortuary. The post mortem examination was done on the dead body of the deceased on 18.5.2001 at 2.30p.m. According to the post mortem examination report the deceased was aged about 60 years,the duration of death was about ½ to one day old. The deceased sustained two ante mortem injuries in which injury no. 1 was incised wound, 1,1/2 cm x ½ cm x chest cavity deep on the left side of the chest, 7 cm from the left nipple at 3 O'clock position. Injury no. 2 was incised wound 2 cm x ½ cm x abdominal cavity deep on the left side of abdomen 7 cm from the umbilicus at 2 O'clock position.

During the course of investigation the site plan has also been prepared by the I.O. which has been proved and marked as Exhibit Ka-8. The sample of the blood stained earth and earth without blood was taken by the I.O. on 18.5.2001 and its recovery memo has been prepared on 18.5.2001, the same has been proved and marked as Exhibit Ka-9. On 18.5.2001 the appellant and the co-accused Sukh Lal were arrested by the police, they made confessional statements before the police and at the pointing out of the appellant the blood stained knife used in commission of the alleged offence was recovered from the bushes, the same was sealed and its memo was prepared on 18.5.2001 which has been proved and marked as Exhibit Ka-9. The blood earth and knife of the deceased were sent to the public analyst. The report of public analyst dated 9.1.2002 shows that there was human blood on the article sent for the analysis. The charge was read over and explained in Hindi to the appellant who pleaded not guilty and claimed to be tried.

The investigation of this case has been completed by Sri Suresh Chand Sharma P.W. 4 by submitting the charge sheet dated 20.6.2001 against the appellant and the co-accused Sukh Lal on which the learned magistrate concerned took cognizance on 5.7.2001, thereafter, the case of the appellant and co-accused Sukh Lal was committed to the court of sessions on 20.7.2001 by learned C.J.M. Unnao. The trial court framed the charge against the appellant Naresh @ Ram Naresh for an offence punishable under section 302 IPC on 3.8.2001 and on the same day the charge of an offence punishable under section 302/34 IPC was framed against co-accused Sukh Lal, the charge was read over and explained to the appellant in Hindi language, he pleaded not guilty and claimed to be tried.

In support of the prosecution version P.W. 1 Kamlesh, P.W. 2 Smt. Raghurai, P.W. 3 Dr. Sanjeev Ahuja and P.W. 4, Suresh Chandra Sharma have been examined. Certain documents including written report Exhibit Ka-3, site plan Exhibit Ka-8, recovery memo Exhibit Ka-9, the site plan of recovery of weapon Exhibit Ka-12, copy of report exhibit Ka-13 have been produced before the trial court. The statements of the accused appellant and co-accused Sukhlal have been recorded under section 313 Cr.P.C. In defence the injury report Exhibit Kha-1 has been produced and Dr. Ashok Kumar Dubey, has been examined as D.W. 1 who had examined injuries of the appellant Naresh @ Ram Naresh. According to the medical examination report of appellant Naresh @ Ram , he was medically examined by D.W. 1 Dr. Ashok Kumar Dubey on 19.5.2001 at 11 A.M. at PHC Maurawan, he was brought there by the constable 194 Subhash Chandra Yadav, P.S. Maurawan, District Unnao. According to the injury report (Exhibit Kha-1) of the appellant and the statement of D.W. 1 Dr. Ashok Kumar Dubey, the appellant had sustained two injuries in which injury No. 1 was traumatic swelling 8x7 c.m. on left hand dorsum side with wrist lower part, radish blue in colour, injury was kept under observation. The injury No. 2 was multiple linear abrasion with scab 3 c.m. to ½ c.m. on front of left shoulder, 7 c.m. below shoulder.

The injury No. 1 was simple caused by fraction, the injury No. 1 was caused by hard and blunt object, duration was about 1,1/2 to 2 days. The injury No. 2 was kept under observation, advised to X-ray and referred to district hospital, Unnao for X-ray and further treatment.

After evaluating the evidence adduced by the prosecution and the defence the trial court recorded the finding of the conviction against the appellant Naresh @ Ram Naresh, he has been convicted under section 302 IPC and sentenced for life imprisonment. The co-accused Sukh Lal has been acquitted for the offence punishable under section 302/34 IPC.

The written report dated 18.5.2001 lodged by Kamlesh Kumar, P.W. 1 and scribed by Jagdish Prasad has been proved by P.W. 1 Kamlesh Kumar which has been marked as Exhibit Ka-1.

The post mortem examination report dated 18.5.2001 has been proved by the Doctor Sanjeev Ahuja (P.W. 3), it has been marked as Exhibit Ka-2. According to the statement of Dr. Sanjeev Ahuja P.W. 3 and post mortem examination report dated 18.5.2001, the dead body of the deceased was brought to the mortuary by Constable Rajpal and Home Guard Ram Sewak in sealed cover, the sealed was verified and found correct and intact. The post mortem examination was done on 18.5.2001 at 2.30 p.m., the age of the deceased was about 60 years, duration of death was about half-one day , on external examination the dead body was average built, eyes and mouth were closed, rigor mortis was present in both upper and lower extremist. The ante mortem injuries shows that the deceased has sustained two ante mortem injuries in which injury no. 1 was incised wound 1 ½ cm x ½ cm x chest cavity deep on left side chest, 7 cm from the left nipple at 3 O'clock position, injury no. 2 was incised wound 2 cms. x ½ cm x abdominal cavity deep on the left side of the abdomen, 7 cm from the umbilicus at 2 O' clock position. Peritoneum and part of intestines protruding out from the wound, nothing abnormal detected in head, neck and throat, pleura was lacerated on left side, in larynx, trachea ,bronchi, lung , pericardium and vessels, nothing abnormal was detected, left lung was lacerated, right side of the heart was full, but left heart was empty, 500 ml of blood was present in the chest cavity. In abdomen petitoneum was lacerated, the cavity was having 500 ml blood, bucal cavity was having 16 x14 teeth, oesophagus, stomach was empty, small and large intestines were lacerated at places, gall bladder was full, spleen was lacerated, urinary bladder was empty, cause of death was due to shock and haemorrhage, as a result of ante mortem injuries.

The P.W. 1 Kamlesh deposed that appellant was cousin and co-accused Shukh Lal was his uncle. He supported the F.I.R. version by deposing that on 17.5.2001 at about 8.30 p.m. the appellant Ram Naresh and the co-accused were abusing his father (deceased), they were asked by the deceased not to abuse, he was caught hold by the accused Sukh Lal and the appellant Ram Naresh caused injuries by using knife blows, at the time of alleged incident he, his mother, his wife, his brother-in-law Om Raj were sitting near the place of incident and they witnessed the incident. Prior to causing the injuries by knife there had been an altercation on the same day, it has been specifically alleged that he had cut a tree and constructed his house the tree was a joint property, on the Terahwin of the grand father of the first informant, less payment has been done by the deceased and below standard oil was supplied, after causing the injuries to the deceased he was taken to the hospital on a bullock cart, first of all he was taken to Deomai, but Doctor referred his case to the Government Hospital, when the deceased was on way to Government Hospital, he succumbed to his injuries, leaving dead body in the bullock cart, near the Flour Mill of Chheetu Khera, he went to the police station to lodge the F.I.R., due to fear of the accused persons, he did not go to the police station to lodge the F.I.R. in night. The report was scribed by Jagdish at the flour mill of village Chheetu Kheda, after scribing, it was read over to him by Jagdish. The report was scribed at his dictation, written report has been proved by P.W. 1 which has been marked as Exhibit Ka-1, he went to the police station alongwith the written report, the same was handed over to the Moharrir of the police station and the F.I.R. was registered at the police station. In cross examination of P.W. 1 he had denied the suggestion that the appellant caused injury in exercise of the right of private defence. It has also been denied that in the said incident appellant Naresh and his wife were beaten. The suggestion given by defence that he was aggressor that is why he did not go to lodge the F.I.R. immediately, has also been denied, it has also been denied that the F.I.R. was lodged after great thought and consultation.

The deposition of P.W.2 Smt. Raghurai reveals that she was the wife of the deceased Santi, there had been a quarrel of her husband Santi, and son Kamlesh Kumar with the appellant Ram Naresh and Sukh Lal, at about 8.30 p.m., his husband the deceased Santi was caught hold by the accused Sukh Lal and the appellant Ram Naresh caused injuries on his person by using knife blows, her husband was taken to Deomai in a bullock cart to Bhairav Thakur who used to give medicine but Bhairav Thakur asked to bring the deceased to Maurawan because he was not able to provide proper medical aid, her husband succumbed to his injuries, near the village Sagoli, after leaving the bullock cart near the flour mill, information was given to the relatives at about 5.00 a.m., on that information they came there, the report was scribed by Jagdish, the same was taken by his son to the police station. She stated that one Neem tree was cut by all persons, its half share was cut by her, on it some quarrel has taken place, she stated that at the time of the alleged incident, one lantern was illuminating in the Verandah, at the time of the alleged incident she, her son, her daughter-in-law and her son's her brother-in-law (Sala) Om Raj were present, in cross examination, she stated that the accused Sukh Lal was his Jeth, who was residing in the old house,but other persons had to construct in a separate houses, but she denied the suggestion that some more money was spent by the accused Sukh Lal in the death anniversary of her grand father-in-law, she also denied the suggestion that on account of the dispute over a house she was having enmity with the deceased Sukh Lal, on the day of incident, the son of Sukh Lal by standing at his door, who hurling abuses the villagers came who intervened and pacify the dispute, otherwise murder would have taken place. The deceased had asked the appellant as to why he was abusing again and again, a quarrel between Naresh and Kamlesh had taken place but the dispute was settled by some persons. Thereafter, a second quarrel had taken place between the deceased and his son on one side and the appellant on other side, first of all, the appellant hit a danda on the head of the deceased, then his son used the danda blow on the person of the appellant Naresh, she could not see the oozing of the blood from the head of the deceased and from the body of the appellant Naresh, during the course of quarrel many persons of the locality gathered there, she saw that blood was coming out from the stomach and the mouth of the deceased, she denied the suggestion that the wife of the appellant also sustained injuries, she denied the suggestion that her husband had sustained injury in darkness, she also denied the suggestion that no lantern was illuminating at the time of the incident.

The deposition of P.W. 3 Dr. Sanjeev Ahuja reveals that on 18.5.2001, he was posted as pathologist in district hospital Unnao, he conducted the post mortem examination, on the dead body of the deceased Santi at 2.30 p.m. The sealed dead body was brought by the Constable Raj Pal of P.S. Maurawan the age of the deceased was about 60 years,duration of death was about half to one day old, the deceased was of average built, eyes and mouth were closed, rigor mortis was present in both upper and lower extremist. Two ante mortem incised wounds were found on the dead body, the nature of the injuries have been explained. The cause of death was due to shock and haemorrhage as a result of ante mortem injuries. According to him, the deceased could have died on 17.5.2001 at about 8.30 p.m. He proved the post mortem examination report, which was marked as Exhibit K-2.

The deposition of P.W. 4 Suresh Chand Sharma reveals that on 18.5.2001 he was posted as Officer-in-Charge of police station Maurawan in his presence case crime no. 113 of 2001 under section 302 I.P.C. was registered, the chik and written report were copied, he prepared the inquest report at Chheetu Kheda, the same has been proved by him which has been marked as Exhibit Ka-3. He also prepared photo nash, letter to R.I., letter to C.M.O. and challan nash in his hand writing, which were signed by him, the same were marked as Exhibit Ka-4,Ka-5,Ka-6 and Ka-7.After preparing the inquest report dead body was sealed and it was sent for autopsy through the constable Rajpal and Home Guard Ram Sewak. On the same day he recorded the statement of the first informant under section 161 Cr.P.C. and at his pointing out the spot inspection note and site plan were prepared, the same has been proved and marked as Exhibit Ka-8. He took sample of blood stained earth and plain earth, both were kept in separate containers were sealed, which have been marked as Exhibit I and II, its memo was prepared in his hand writing by putting his signature and the witnesses also put their signatures which has been proved and marked as Exhibit Ka-9. On 18.5.2001 he saw the appellant and co-accused Shukh Lal who were sitting behind a tree and bush, they tried to run away but they were surrounded and arrested at about 3.30 p.m. they disclosed their names and made the confessional statement before him and they assured to make the recovery of the weapon used in the commission of the murder and at the pointing out of the appellant the blood stained knife was recovered from the bushes in the presence of the public witnesses Sunder Lal and Bindra, its recovery memo was prepared, he put his signature and the witnesses also put their signatures, the same has been proved which is marked as Exhibit Ka-9. The site plan of the recovery of the blood stained knife was also prepared by him at the pointing out of the appellant Ram Naresh, the same has been proved and marked as Exhibit Ka-10. On 24.5.2001, he copied the inquest report in case diary and recorded the statement of its witnesses. He recorded the statement of the witnesses of recovery of blood stained and plain earth and witnesses of knife, on 1.6.2001, and on the same day, he recorded the the statement of some witnesses namely scribe Jagdish Prasad, Prabhu Singh, Smt. Raghurai, Urmila Devi and Om Ram Lodh, thereafter on 18.6.2001 he recorded the statement of constable Rajpal and Dr. Sanjeev Ahuja under section 161 Cr.P.C. On 20.6.2001 he sent the material to Vidhi Vighyan Prayogshala for analysis. He completed the investigation and submitted the charge sheet against the appellant and co-accused Sukh Lal which has been proved by him and marked as Exhibit Ka-11. In the cross examination he stated that the houses of the first informant and accused were in front of each other, both were separated by a Khadanza. It was told by the accused Ram Naresh to him that he and his wife had also sustained injuries but he was not remembering whether they were medically examined. It was told by the appellant Ram Naresh that he had sustained injuries in the maar-peet. He denied that suggestion that the accused and his wife had gone to the police station to lodge the FIR where they were challaned. He stated that the Exhibit-3 was knife, it was having the blood stains, he denied the suggestion that knife was not recovered at the pointing out of the appellant but he denied the suggestion that the Exhibit Ka 9 was prepared at police station. He stated that he reached at the place of occurrence, Smt. Raghurai did not meet him, her statement was recorded on 10.6.2001.

He denied the suggestion that FIR of this case was written at his advise and consultation after preliminary investigation. He also denied the suggestion that he recorded the forged statement of the witnesses.

The statement of the appellant was recorded under section 313 Cr.P.C. he gave the reply of all the questions either in negative or he was not having any knowledge or he was falsely implicated, in last he gave the reply of question No. 9 that he had also sustained injuries, his wife had also sustained injuries, the quarrel had taken place at his door in which he and his wife had sustained injuries. He had gone to lodge the FIR, his FIR was not registered, his wife was not medically examined by the police and against him false case has been registered. The medical examination report of the appellant has also been proved by the D.W. 1 Dr. Ashok Kumar Dubey which has been marked as Exhibit Kha 1. The medical examination report of the appellant and the statement of the D.W. 1 Dr. Ashok Kumar Dubey reveal that the appellant was medically examined by Dr. Ashok Kumar Dubey at PHC Maurawan on 19.5.2001 at 11 A.M. He was brought to the PHC by constable 194 Subhash Chandra Yadav, P.S. Maurawan, District Unnao. On his person the injury No. 1 was traumatic swelling 8x7 c.m. On left hand dorsum side with wrist lower part, radish blue in colour and injury No. 2 was multiple linear abrasions with scab 3x1/2 c.m. on front of left shoulder 7 c.m. below the shoulder, were found. The injury No. 1 was caused by hard and blunt object, it was kept under observation and advised for X-ray. The injury No. 2 was simple in nature caused by friction. The duration of the injury was about one and half to two days. The patient was referred to district hospital Unnao for X-ray and further treatment, but no x-ray report or supplementary medical examination report of any document showing further treatment has been filed by the appellant.

After appreciating the evidence available on the record the trial court recorded the findings of the conviction of the offence punishable under section 302 IPC against the appellant. But the co-accused Sukhlal has been acquitted for the offence punishable under section 302/34 IPC.

The learned counsel for the appellant has made two fold submissions by submitting that the appellant and deceased belong to same family. There was no strong motive to commit the murder of the deceased. The alleged occurrence had taken place in a sudden quarrel and in the same incident the appellant and his wife also sustained injuries. The deceased had sustained only two incised wounds. The right of self defence was available to the appellant, though specifically such plea has not been taken before the trial court but the record reveals that in the said incident appellant also sustained injuries, it has been admitted by P.W. 2 Smt. Raghurai also before the trial court by submitting that in the second quarrel the appellant used the danda blow on the head of the deceased then her son also used a danda blow on the person of the appellant. The circumstances show that the deceased and appellant sustained injuries in a sudden quarrel, it was not pre-intended, even there is no evidence to show that the appellant was aggressor, the appellant was having right to cause injuries to the deceased, in exercise of right of self defence.

The second submission made by counsel for the appellant is that in case the reliance is placed upon the evidence adduced by the prosecution for the purpose of conviction of the appellant, he may not be convicted under section 302 I.P.C. because on the basis of evidence adduced, at the most, offence under section 304 Part -II I.P.C. is made out.

From the scrutiny of the evidence adduced by the prosecution it appears that the prosecution has successfully proved its case that the alleged occurrence has taken place on 17.5.2001 at about 8.30 P.M.at the door of first informant/deceased, its FIR has been lodged on 18.5.2001 at 6.15 A.M. The deceased had sustained two incised wounds and after completing the investigation the charge sheet has been submitted. The P.W.1 is son of the deceased, therefore, we are appreciating his testimony with caution, the alleged occurrence has taken place at his door, he was bringing the deceased to the Government Hospital to provide him proper medical aid, but he succumbed to his injuries on way to the hospital, his dead body was found in a bullock cart, he lodged the FIR at 6.15 A.M. on 18.5.2001, the proper explanation of delay in lodging the FIR by him has been given by deposing that due to fear of the accused persons, he did not go to the police station to lodge the FIR, in the night the dead body was found in a bullock cart in front of the Flour Mill of village Chheetu Kheda. On 18.5.2001 from 7.00 A.M. to 8.50 A.M., the inquest report was prepared and the written report was scribed by Jagdish Prasad at the dictation of the P.W.1 at the place of dead body. On the basis of that written report, the FIR has been registered at the Police Station Maurawan. Even no suggestion was given to P.W.1 that he was not present at the place of alleged incident and not witnessed the incident. The presence of the P.W.1 at the place of incident is natural, his deposition is corroborated by the post mortem examination report also, according to him the appellant caused injuries on the person of the deceased by using knife blows, according to the post mortem examination report and deposition of P.W.3 Dr. Sanjeev Ahuja, both the injuries may be caused by knife, there is no material discrepancy in his deposition, there is no cogent reason to disbelieve the testimony of P.W.1, the P.W.1 is a reliable witness.

The P.W.2 is Smt. Raghurai, who is wife of the deceased, according to her deposition there had been a quarrel of the appellant and the co-accused Sukh Lal with her husband and son Kamlesh Kumar, on the day of the incident at about 8.30 P.M., the deceased was caught hold by the co-accused Sukh Lal and the accused appellant Ram Naresh caused injuries by using knife blows, she disclosed the cause of incident also, her deposition has also been corroborated by medical evidence, the alleged incident had taken place in front of her house and no suggestion has been given to her by defence side that she was not present at the place of the incident and thee is no material discrepancy in her deposition. There is no cogent reason to disbelieve the testimony of PW.2 also her evidence is credible, she is also reliable witness, P.W.1 and P.W.2 are the eye witnesses, they have fully proved the prosecution story by deposing that the appellant caused injuries to the deceased by using the knife blows and the knife used in commission of the murder has been recovered by the police at the pointing out of the appellant from the bushes, it was having human blood as per Public Analyst Report. According to the defence also, it has been admitted by the appellant in his statement recorded under section 313 Cr. P.C. that in the same incident, he and his wife have sustained injuries. The prosecution has successfully proved its case against the appellant.

The prosecution has successfully proved its case against the appellant. The trial court has not committed any error in recording the finding of conviction againt the appellant. The benefit of doubt has been extended by the trial court to the co-accused Sukh Lal, father of the appellant mainly on the ground of old age to whom the role of catching hold was attributed, his case is not before us for consideration therefore we are not expressing any opinion on it.

To deal with the submission made by the learned counsel for the appellant that the right of self defence was available to the appellant, the evidence available on record reveals that about half an hour prior to the incident, in which the deceased sustained injuries, there had been a quarrel between the appellant and his father co-accused Sukh Lal on one side and P.W. 1 Kamlesh and the deceased, on other side, but that dispute was pacified, thereafter, the appellant and the co-accused Sukh Lal hurled the abuses to the deceased at his door, they were asked by him not to abuse then he was caught hold by the co-accused Sukh Lal and the injuries were caused by the appellant by using the knife blows. According to the post mortem examination report, the deceased had sustained two incised wounds in which injury no.1 was on the left side chest and injury no. 2 was on the left side abdomen both the injuries were on vital part of body, the injuries had damaged the internal vital organ of the body also, the peritoneum and part of intestines were protruding out, the pleura, left lung, petitoneum small and large intestines were lacerated at places and the spleen was also lacerated. There was a repetition of the knife blows in causing injuries to the deceased. The medical examination report of the appellant shows that he had sustained traumatic swelling on the left hand dorsum with wrist lower part and multiple linear abrasion with scab in front of the left shoulder. No F.I.R. has been lodged from the side of the appellant even no specific plea has been taken before the trial court that the appellant caused injury to the deceased, in exercise of the right of self defence, contrary to it, it has been admitted that in the said incident the appellant and his wife also sustained injuries, by taking such plea the presence of the appellant at the time of the place of incident has been admitted but P.W. 2 categorically stated that in the second part of incident, the appellant used lathi blow on the head of the deceased then his son P.W 1 Kamlesh Kumar used danda blow on the person of the appellant. The injury sustained by the appellant has been explained by P.W. 2, on the basis of the evidence adduced no inference may be drawn that the appellant caused injuries to the deceased in exercising the right of self defence, such benefit may not be extended to the appellant.

To deal with the submission made by the learned counsel for the appellant that on the basis of the evidence adduced the appellant may not be convicted under section 302 I.P.C. at the most he may be convicted under section 304 (part II)because the alleged occurrence has taken place in a spur of moment because the appellant was not having any intention and knowledge that by using knife blows death was likely to be caused. The section 300 I.P.C. is reproduced for convenience.

"300. Murder --Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--

Secondly -- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--

Thirdly -- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--

Fourthly -- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

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.

The above exception is subject to the following provisos: --

First -- That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly -- That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

Thirdly -- That the provocation is not given by anything done in the lawful exercise of the right of private defence.

Explanation -- Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

Exception 2 -- Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.

Exception 3 -- Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.

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.

Explanation -- It is immaterial in such cases which party offers the provocation or commits the first assault.

Exception 5 -- Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent."

The evidence reveals that on the same day about half an hour prior to causing injuries to the deceased, there had been quarrel between the appellant and his father co-accused Sukh Lal on one hand and on the other hand the deceased and his son Kamlesh Kumar but it was pacified by the people of the locality. but immediately after half an hour, the appellant and his father Sukh Lal came at the door of the deceased, they hurled the abuses, who were asked not to abuse, then the deceased was caught hold by the co-accused Sukh Lal, and the appellant caused injuries by using the knife blows causing two incised wounds on the left side of the chest and abdomen, both the injuries were cavity deep causing internal damage to some vital parts of body, consequently, the deceased succumbed to his injuries on the way to hospital. This act has been done by the appellant with the intention to cause death of the deceased and having the knowledge that in all probability, the injuries caused by him were likely to cause death. There was repetition of the knife belows in causing the injury to the deceased, the alleged incident had not taken place in a spur of moment or sudden quarrel, the act done by the appellant is not covered with any exception of section 300 I.P.C. The evidence adduced is constituting the offence of murder punishable under section 302 I.P.C. The trial court has not committed any error in recording the finding of conviction, for the offence punishable under section 302 I.P.C.,the submission contrary to it is having no substance.

In view of the above discussions, we are satisfied that the prosecution has successfully proved its case beyond reasonable doubt against the appellant its case punishable under section 302 IPC. We are in entire agreement to the conclusion arrived by the trial court, convicting the appellant. There is no good ground to interfere with the findings of the conviction and sentence awarded by the trial court. The trial court has not committed any error in recording the findings of conviction, for the offence punishable under section 302 IPC and awarding the sentence of the life imprisonment to the appellant. Therefore, the prayer for quashing the impugned judgement and order dated 16.10.2003 passed by learned Special Judge (E.C. Act), Unnao in S.T. No. 280 of 2001 is hereby refused.

The appellant is in jail, he shall serve the sentence awarded by the trial court.

In the result, we find no merit in this appeal, accordingly it is dismissed.

Dt: 16.08.2013

NA/RPD/SU