Shafique Ahmad vs State Of U.P.
2017 Latest Caselaw 4940 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 14
 
Case :- CRIMINAL APPEAL No. - 283 of 1997
 
Appellant :- Shafique Ahmad
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Virendra Bhatia
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Virendra Kumar-II,J.

1. This appeal has been preferred against the judgment and order dated 14.5.1997 passed by Additional Sessions Judge IIIrd, Lakhimpur Khiri in Sessions Trial No. 442 of 1995 arising out of Case Crime No. 128 of 1995, Police Station Kotwali Lakhimpur appellant Shafique Ahmad has been convicted and sentenced to undergo rigorous imprisonment for eight years for offence punishable under Section 304-II I.P.C.

2. It is pleaded in grounds of appeal that trial court has not considered that there are material contradictions in the statements of witnesses. No independent witness was produced on behalf of prosecution although incident is said to have taken place at bus stand. It is further pleaded that defence version was not properly appreciated by the trial court and findings recorded by the trial court are perverse. The conviction of appellant is warranted neither on facts nor on law. The prosecution has been failed to prove its case beyond reasonable doubt. The investigation conducted by the Investigating Officer is tainted. The punishment awarded is too severe.

3. On these grounds, it is submitted that appeal be allowed and conviction and sentence imposed by the trial court be set aside and appellant be acquitted.

4. Vide order dated 27.7.2017, it was found that Mr. Virendra Bhatia, learned counsel for appellant had expired. On the basis of facts mentioned in the grounds of appeal that accused appellant was granted bail on 6.2.1997 but he could not furnish bail bonds at that time, it was not clear that appellant was detained in jail or was on bail. A report was called for from C.J.M. Lakhimpur Kheri on following facts :-

(i) A report be called for from the Jail Superintendent, District Jail, Lakhimpur Kheri, regarding the detention period of appellant Shafique Ahmad S/o Basir Ahmad, convict in Sessions Trial No.442 of 1995 relating to Case Crime No.128 of 1995, Police Station Kotwali Lakhimpur Kheri, District Kheri. Total period of detention during the trial and after the trial be communicated to this Court.

(ii) In case he is in jail, Superintendent District Jail, Lakhimpur Kheri, be directed to produce him before this Court on 23.08.2017.

(iii) In case he is required to this offence for compliance of the order of the Sessions Court against the conviction dated 14.05.1997, he be taken into custody and produce before this Court on 23.08.2017."

5. In compliance of order dated 27.7.2017 C.J.M., Lakhimpur Kheri has reported that appellant Shafique Ahmad has served imprisonment of eight years imposed vide impugned judgment and order dated 14.5.1997. He has been released on 7.2.2001 from Central Jail, Bareilly.

6. Learned A.G.A. has submitted that no cross appeal is pending against impugned judgment and order passed by the trial court for enhancement of punishment.

7. I have perused record of Sessions Trial No. 442 of 1995 (State Versus Shafique Ahmad) arising out of Case Crime No.128 of 1995, under Section 302 I.P.C. Police Station Kotwali Lakhimpur Kheri.

8. As per prosecution version, on 15.3.1995 complainant Shri Ram Gulam Singh submitted a first information report at Police Station Kotwali Lakhimpur Kheri informing that on 15.3.1995 at about 3:00 p.m. his son Ramesh Singh was going after taking lunch from his house to his shop situated at Nighasan Road. When he reached at Palia-Bheera Bus Stand, one bus was standing there. Accused Shafique Ahamd was present near this bus. He was working at this bus stand. The appellant restrained deceased Ramesh Singh to use way of bus stand. The deceased raised objection and stated that this way was public way and he was entitled to use it. The appellant abused him and made a blow of knife in stomach of deceased. Witnesses Ramu Singh and Bhog Pal Singh witnessed this incident along with complainant. They tried to caught hold of appellant but he escaped towards Lalpur Sugar Mill. The complainant admitted his son at Hospital Lakhimpur Kheri, but he expired at about 4:00 p.m. during treatment.

9. The Investigating Officer after conclusion of investigation submitted charge sheet against the appellant for offence punishable under Section 302 I.P.C. and charge was framed against appellant for offence punishable under Section 302 I.P.C.

10. The appellant pleaded not guilty and claimed to be tried.

11. The prosecution produced PW-1 complainant Ram Gulam Singh, and PW-2 Bhog Pal Singh as witness of facts and PW-3 to PW-7 were formal witnesses.

12. The statement of accused was recorded under Section 313 Cr.P.C. in which he has stated that due to theft committed at bus stand, the complainant was restrained by him so many times to use way of bus stand. The deceased also assaulted rickshaw puller on the date of incident. This rickshaw puller threatened the deceased of this case. Therefore, he has falsely been implicated in this case.

13. Witness DW-1 Jokhe Lal was produced on behalf of appellant.

14. I have perused statements of PW-1 and PW-2. From perusal of these witnesses, it is apparent that the complainant and his son Ramesh Singh was trying to use way of bus stand, which was situated on the land of bus stand and altercation took place between complainant, deceased and accused. In the meanwhile accused assaulted the deceased with knife in his stomach. PW-2 Bhog Pal Singh has corroborated the statement of PW-1 complainant Ram Gulam Singh and narrated the facts of the incident as mentioned in the F.I.R. He is eyewitness of the incident. He is named in the F.I.R. along with other witness Ramu Singh.

15. PW-5 Dr. Vijay Pratap Singh medically examined the deceased on 15.3.1995 at 3:25 p.m. He found following injury on the body of injured Guddu alias Ramesh Singh:-

(i) Incised wound of size 2.5 x 1 cm depth, up to stomach was found above 8 cm from novel. Bleeding was there in this wound and margins were fine cut.

16. Therefore, PW-5 has proved injury report Ex. Ka-7 and stated that this injury was sufficient to cause death in ordinary course of nature. PW-6 Dr. Wahidul Haq conducted autopsy on the body of deceased on 16.3.1995 at 2:15 p.m. He found following injury on the body of deceased:-

(i) Punctured wound of size 2.5 cm x 1 cm depth upto stomach.

17. He has proved postmortem report Ex. Ka-9.

18. The trial court has appreciated and analyzed the evidence of PW-1 complainant Ram Gulam Singh and PW-2 Bhog Pal Singh in correct perspective and recorded finding that both these witnesses were present at the time and place of occurrence. The evidence of these witnesses was supported by medical evidence also. Therefore, non-production of independent witnesses alleged to be present on place of occurrence is immaterial, as according to PW-1, nobody came there from shops or Karkhana.

19. PW-1 complainant has stated that after the incident, he admitted the deceased at the hospital and during treatment, his son expired, then he lodged F.I.R. at the police station. Therefore, the trial court has correctly recorded finding that there was no delay in lodging the F.I.R. Likewise, presence of PW-1 and PW-2 was established at the place of occurrence, therefore, finding of the trial court that other independent witnesses available on the place of occurrence were not produced during the course of trial was not so material. The finding recorded by the trial court cannot be termed as perverse.

20. On the point of delay of lodging of F.I.R., Hon'ble Apex Court in the case of Raghbir Singh Vs. State of Haryana reported in (2000) 9 SCCs 88 has held in paragraph nos. 3, 10, 11 and 14, which read as under:-

10. The grounds on which the credibility of the eye witnesses' account have been assailed before us are, (i) delay in informing the police by PW 1; (ii) the fact that the police did not find PW 1 or PW 2 when they went to Kaithal or Chandigarh and (iii) the non-mentioning of the names of PW 1 and PW 2 by the doctors or in the records of the Primary Health center, Kaul, General Hospital, Kaithal or the PGI, Chandigarh. These issues were specifically considered by both the Courts.

11. With regard to the delay in filing the FIR, both the Courts have found that there was no delay in filing the FIR. The Trial Court found that the rushing of the victim to the Hospital to save his life instead of first going to the police station was a satisfactory explanation for the delay in making the complaint. the view was affirmed by the High Court and we find no reason to interfere with the same.

14. On the third ground, we find that there was sufficient evidence to show that Arjun Singh was accompanied by some persons not only at Kaul but also at Kaithal and at the PGI, Chandigarh and, as correctly held by the High Court, it would be unreasonable to expect the doctors to name the persons accompanying the patients. Besides to infer the absence of PW 1 and PW 2 at the scene of occurrence only because their names might not have been noted by the doctors or in the medical registers of the places to which the deceased was taken for treatment, calls for an illogical inference which the High Court did not and indeed could not draw."

21. Learned A.G.A. has submitted that the trial court has converted this offence under section 302 I.P.C. for offence punishable under Section 304-II I.P.C. without any basis.

22. Hon'ble Supreme Court (Division Bench) in the case of Murlidhar Shivram Patekar vs. State of Maharashtra (2015)1SCC694 has observed as follows :-

28. The question however still remains as to the nature of the offence committed by the accused and whether it falls under Exception 4 of Section 300, Indian Penal Code.

23. In the case of Surinder Kumar v. Union Territory of Chandigarh AIR 1989 SC 1094, this Court has held as under:

7. To invoke this Exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) The assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this Exception provided he has not acted cruelly.

29. Further in the case of Arumugam v. State (2008) 15 SCC 590, at page 595 in support of the proposition of law that under what circumstances Exception 4 to Section 300, Indian Penal Code can be invoked if death is caused, it has been explained as under:

18. 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 Indian Penal Code is not defined in the Penal Code, 1860. 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 had 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 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'.

30. Further in the case of Satish Narayan Sawant v. State of Goa (2009) (17) SCC 724 this Court has held as under:

24. ...Section 300 Indian Penal Code further provides for the Exceptions which will constitute culpable homicide not amounting to murder and punishable Under Section 304. When and if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II.

28. ...Records clearly establish that there was indeed a scuffle between the parties with regard to the availability of electricity in a particular room and during the course of scuffle the Appellant also received an injury which was simple in nature and that there was heated exchange of words and scuffle between the parties before the actual incident of stabbing took place. There is, therefore, provocation and the incident happened at the spur of the moment. That being the factual position, we are of the considered view that the present case cannot be said to be a case Under Section 302 Indian Penal Code but it is a case falling Under Section 304 Part II Indian Penal Code. It is trite law that Section 304 Part II comes into play when the death is caused by doing an act with knowledge that it is likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as is likely to cause death.

31. Thus, if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not intention to cause murder and bodily injury then the same would fall Under Section 304 Part II. We are inclined to the view that in the facts and circumstances of the present case, it cannot be said that the Appellants/accused had any intention of causing the death of the deceased when they committed the act in question. The incident took place out of grave and sudden provocation and hence the accused are entitled to the benefit of Section 300 Exception 4 of Indian Penal Code.

32. Thus, in entirety, considering the factual scenario of the case on hand, the legal evidence on record and in the background of legal principles laid down by this Court in the cases referred to supra, the inevitable conclusion is that the act of the accused-Appellants was not a cruel act and the accused did not take undue advantage of the deceased. The scuffle took place in the heat of passion and all the requirements Under Section 300 Exception 4, Indian Penal Code have been satisfied. Therefore, the benefit of Exception 4 Under Section 300, Indian Penal Code is attracted to the fact situations and both the Appellants are equally entitled to this benefit.

33. Thus, considering the factual background and the legal position set out above, the inevitable conclusion is that the appropriate conviction of the Appellants would be Under Section 304 Part II Indian Penal Code instead of Section 302 Indian Penal Code. Hence, the sentence of imprisonment for 10 years would meet the ends of justice.

24. Hon'ble Supreme Court (Division Bench)in the case of Litta Singh and Anr. vs. State of Rajasthan (2015)15 SCC 327 has observed as follows:-

26. After analyzing the entire evidence, it is evidently clear that the occurrence took place suddenly and there was no premeditation on the part of the appellants. There is no evidence that the appellants made special preparation for assaulting the deceased with the intent to kill him. There is no dispute that the appellants assaulted deceased in such a manner that the deceased suffered grievous injuries which was sufficient to cause death, but we are convinced that the injury was not intended by the appellants to kill the deceased.

27. In the facts and circumstances of the case, in our considered opinion, the instant case falls Under Section 304 Part II Indian Penal Code as stated above. Although the appellants had no intention to cause death, but it can safely be inferred that the appellants knew that such bodily injury was likely to cause death, hence the appellants are guilty of culpable homicide not amounting to murder and are liable to be punished Under Section 304 Part II Indian Penal Code.

25. Hon'ble Supreme Court(Division Bench) in the case of Buddhu Singh vs. State of Bihar (Now Jharkhand)(2011 )14 SCC 471 has observed as follows:-

8. Considering the overall material, we are of the view that there is hardly anything on record which can be said against the accused Ledwa Singh and Balchand Singh though the common intention on their part could be attributed since they had done the over act of grappling with and pinning down the deceased. Now, seeing his father and brother had been grappling with the deceased, the accused Buddhu Singh dealt an axe blow which could not be said to be intended towards the head. It could have landed anywhere. However, it landed on the head of the deceased. Therefore, the element of intention is ruled out. Again the defence raised on behalf of the accused that there could not have been the intention to commit the murder of the deceased is justified by the fact that the accused Buddhu Singh did not repeat the assault. Under the circumstances, we feel that the prosecution has been able to establish the guilt of the accused persons under Section 304 Part II I.P.C.

9. We, accordingly, modify the finding of the High Court and convert the conviction of the accused from Section 302 IPC to Section 304 Part II IPC and sentence each of them to the period already undergone. Accused Buddhu Singh is stated to be in jail for the last five years whereas other accused persons namely; Ledwa Sngh and Balchand Singh are stated to be in jail for the last ten years. They be released from the jail forthwith unless they are required in any other case.

26. Hon'ble Supreme Court ( Division Bench)in the case of Dhan Singh vs. State of Haryana (2010)12 SCC 277 has observed as follows:-

27. ......PW 1 who had declared the condition of the deceased to be stable as well as certified that he was in a fit state of mind to make statement, which ultimately became the dying declaration. From the collective analysis and examination of the evidence on record, it appears that the appellant had no intention to kill the deceased and did not give him a blow with the intention to kill or with the knowledge that it was likely to cause death.

28. From these circumstances and in line with the judgments afore referred, we are of the considered view that the offence of the appellant could be altered from Section 302 to Section 304 Part II of the IPC. Consequently, we hold the appellant guilty of offence under Section 304 Part II and award him rigorous imprisonment for a period of 10 years with fine of Rs. 20,000/-. In default of payment of fine the accused shall undergo rigorous imprisonment for a period of six months.

27. Hon'ble Supreme Court( Division Bench) in the case of Gurmukh Singh vs. State of Haryana (2009)15 SCC 635 has observed as follows:-

12. There are significant features of the case which are required to be taken into consideration in awarding the appropriate sentence to the accused:

(1) Admittedly, the incident happened at the spur of the moment;

(2) It is clear from the evidence on record that the appellant was not using that path everyday.

(3)...............

(4)..............."

21. In the instant case, the occurrence had taken place at the spur of the moment. Only the appellant Gurmukh Singh inflicted a single lathi blow. The other accused have not indulged in any overt act. There was no intention or pre-meditation in the mind of the appellant to inflict such injuries to the deceased as were likely to cause death in the ordinary course of nature. On consideration of the entire evidence including the medical evidence, we are clearly of the view that the conviction of the appellant cannot be sustained under Section 302 IPC, but the appropriate section under which the appellant ought to be convicted is Section 304 Part II IPC.

22. Before we part with the case, we would like to clearly observe that we are not laying down that in no case of single blow or injury, the accused cannot be convicted under Section 302 IPC. In cases of single injury, the facts and circumstances of each case has to be taken into consideration before arriving at the conclusion whether the accused should be appropriately convicted under Section 302 IPC or under Section 304 Part II IPC.

23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under:

a) Motive or previous enmity;

b) Whether the incident had taken place on the spur of the moment;

c) The intention/knowledge of the accused while inflicting the blow or injury;

d) Whether the death ensued instantaneously or the victim died after several days;

e) The gravity, dimension and nature of injury;

f) The age and general health condition of the accused;

g) Whether the injury was caused without pre-meditation in a sudden fight;

h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;

i) The criminal background and adverse history of the accused;

j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock;

k) Number of other criminal cases pending against the accused;

l) Incident occurred within the family members or close relations;

m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment?

These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused.

24. The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused.

25. When we apply the settled principle of law which has been enumerated in the aforementioned cases, the conviction of the appellant under Section 302 I.P.C. cannot be sustained. In our considered view, the accused appellant ought to have been convicted under Section 304 Part II I.P.C. instead of under Section 302 I.P.C.

26. We accordingly convert the conviction and sentence of the appellant Gurmukh Singh from Section 302 IPC to one under Section 304 Part II IPC and sentence him to suffer rigorous imprisonment for seven years. The fine as imposed by the trial court and as upheld by the High Court is maintained. The appellant would be entitled to get benefit of Section 428 of the Code of Criminal Procedure.

28. Hon'ble Supreme Court (Division Bench)in the case of Hari Prasad vs. State of U.P. (2003) 9 SCC 60 has observed as follows:-

2. The facts in brief are that the wife and son of the deceased informed him when he returned home at about 7.00/7.30 p.m., that the appellant had broken their cakes of cow dung in the afternoon between 11.00 to 1.00 p.m. The deceased went to the house of the appellant to complain about it. He was accompanied by his son Kishan Lal (PW2). There the accused abused the deceased and removed the gun that was hanging on the door of his house. Seeing this the deceased with his son left the house of the appellant. The accused went after the deceased. Again there was altercation on road. The accused was carrying the gun with him. He shot the deceased in the abdomen and ran thereafter. As a result of the gun shot injury the deceased died on the spot. The appellant was charged for the offence under Section 302 IPC. He has been convicted by the trial court. His conviction has been upheld by the High Court.

3. Mr. A.K. Chitale, learned counsel for the appellant contends that it was an altercation on account of trivial matter of breaking of the cow dung cakes by the appellant. The submission is that over a trivial incident of this type a single gun shot was fired and it is not a case of pumping of the bullets by the appellant into the body of the deceased and thus it is evident that the appellant had no intention to kill the deceased. In this view, learned counsel contends that the conviction of the appellant under Section 302 IPC is not sustainable and it deserves to be converted into one under Section 304 part II IPC.

5. ......The present is a case where the land which earlier belonged to the appellant was used by the deceased for making of cow dung cakes. After the appellant was deprived of the use of the land, it vested in the gaon sabha. The deceased was using the land for about 3/4 years for the aforesaid purpose. The use of the land by the deceased had earlier too resulted in dispute between the appellant and the deceased. It was thus a dispute over land and not a trivial dispute over breaking of cakes of cow dung. Further the deceased and his son left the house of the appellant after altercation when they found that the appellant had taken in his hands the gun. The appellant followed them on the road. Again altercation took place and at this stage the deceased was shot by the appellant.

10. In the present case, it is not possible to hold, on the facts noticed above that the appellant had no intention to kill the deceased. It is not possible to hold that every case of single injury would show the absence of intent to kill. It would depend on facts of each case. The type of weapon used would also be one of the important aspect to be kept in view. The submission that is generally made in such cases that it is a case of a single injury resulting in death and, therefore, the offence deserves to be converted from one under Section 302 IPC to one under Section 304 IPC cannot be accepted as a broad proposition of law. One may severe the head of the deceased by a single injury or may kill him by a single gun shot on a vital part, as in the present. It cannot be said that because of a single injury the offence under Section 304 IPC is only made out and not under Section 302 IPC.

29. Hon'ble Supreme Court (Division Bench)in the case of State of U.P. vs. Hasan Ali alias Chhannan and Ors. (2005 )10 SCC 278 has observed as follows:-

4. From a bare perusal of the judgment of the High Court, it appears that the only ground which weighed with the High Court for converting the conviction under Sections 302/149, I.P.C. into Sections 304, Part II/149 was that the parties were close neighbours and they are of the same family. In our view, this could not have been a ground for converting the conviction into Sections 304, Part II/149, I.P.C. The victim received as many as ten injuries on different parts of the body and out of the same, two injuries were on the head. The accused were armed with dangerous weapons and they inflicted injuries thereby. It is opined that the injuries were sufficient to cause death in the ordinary course of nature. In view of these facts, we are of the view that the High Court has committed an error in converting the conviction of the Respondents from Sections 302/149, I.P.C. into Sections 304, Part II/149, I.P.C. In our view, the trial court was quite justified in convicting the Respondents under Sections 302/149, I.P.C.

5. Accordingly, the appeal is allowed, the impugned order rendered by the High Court converting the conviction of the Respondents from Sections 302/149, I.P.C. into Sections 304, Part II/149, I.P.C. is set aside and conviction and sentence imposed by the trial court against the Respondents under Sections 302/149, I.P.C. are restored.

30. Hon'ble Supreme Court (Division Bench) in the case of Sitaram Besra and Ors. vs. State of Bihar (2007 )15 SCC 583 has observed as follows:-

3. ......It is now well settled that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.

4. Admittedly, in the factual context the land was vacant and if the prosecution party had gone there to plough the land then that would not entitle the owners of the land, being the accused persons herein, to take recourse to brutally assault them resulting in the death of three persons as noticed hereinbefore.

6. .......The aggressors had started ploughing the field and the appellants had time to go and report the matter to the appropriate agencies provided under the law but instead of doing so they took the law in their own hands and started brutally assaulting the other party on the land - this is not permissible in a civilised society in the 21st century. Rule of law ought to be the guiding factor. The law is crystal clear on this score and reference may be made to Section 97 read with Section 99 and Section 105 of the Indian Penal Code.

7. The High Court considering the aforesaid view in a very detailed judgment came to the conclusion that the appellants had no right of private defence and as such question of exercise of such a right or in excess of such a right does not arise warranting the interference of this Court in converting the conviction under Section 302 to Section 304 part II....."

31. On the basis of exposition of law propounded by Hon'ble Supreme Court, I have given anxious consideration to facts and circumstances of this case and evidence adduced on behalf of the prosecution.

32. The trial court has considered contention of learned counsel for appellant in this regard and found that there was no old enmity between complainant and accused/appellant. There was an altercation on the date, time and place of occurrence on the basis of dispute regarding use of way, which was going through bus stand, where accused appellant worked. The accused during this altercation assaulted the deceased only once in fit of rage due to this dispute. There was no motive for the accused to commit this offence. The incident of this case occurred during scuffle and altercation between the deceased, complainant and accused.

33. The trial court recorded finding that both the parties abused each other on the basis of dispute regarding use of way situated in the land of bus stand. This incident has occurred all of sudden. The appellant had no intention to cause death of the deceased, therefore, charge framed for offence under Section 302 I.P.C. was not proved on the basis of evidence adduced on behalf of the prosecution. Therefore, the trial court has rightly found accused appellant guilty of offence punishable under Section 304-II I.P.C. The trial court has adequately punished the accused by imposing rigorous imprisonment for eight years.

34. On the basis of above discussion, facts and circumstances of the case, since the accused has served sentence/ imprisonment imposed against him and he has been released on 7.2.2001 from Central Jail, Bareilly, therefore, this appeal has also become infructuous.

35. This appeal is liable to be dismissed and the same is accordingly dismissed.

Order Date :- 4.10.2017

Virendra