Chandra Prakash @ Prakash vs State Of U.P.
2017 Latest Caselaw 5371 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 14						            A.F.R.
 
								         Reserved
 
 
 
Case :- CRIMINAL APPEAL No. - 612 of 1997
 

 
Appellant :- Chandra Prakash @ Prakash
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Alok Kapoor
 
Counsel for Respondent :- Govt. Advocate
 

 

 
Hon'ble Sheo Kumar Singh-I,J.

1. The instant criminal appeal has been filed against judgment and order dated 24.9.1997 passed by Special Sessions Judge, Unnao in Session Trial No. 377 of 1995, P.S. Ajgain, District Unnao whereby and whereunder accused appellant Chandra Prakash @ Prakash was found guilty under Section 304 IPC and was sentenced to undergo rigorous imprisonment for 10 years.

2. The prosecution story as unfolded in the first information report is that on 19.2.1995 at about 4.00 P.M. some oral altercation took place between Smt. Pyara and her daughter with accused appellant Chandra Prakash @ Prakash and accused appellant abused the prosecution witnesses. At about 6.00 P.M. on 19.2.95 accused appellant Chandra Prakash came with lathi, at that time, Smt. Pyara Devi was sitting on her door. The accused appellant abused her and started to beat her with lathi. Her son Ram Khelawan and daughter Munni Devi came there with other persons and exhorted him and then accused appellant fled away. The family members arranged one bullock cart to carry but they saw that Smt. Pyara died due to injuries caused by the accused appellant.

3. The first information report was lodged and the investigation was started by Sri N.K. Pandey Station Officer who visited the spot and prepared the map and inquest report with challan lash, photo lash and other papers and sent the dead body for post mortem examination. After completion of investigation, he submitted charge sheet against the accused appellant. The case was committed to the court of session by learned Chief Judicial Magistrate where accused-appellant was summoned and charges were levelled against him for which he pleaded not guilty and claimed for trial.

4. In order to prove the prosecution case, PW-1 Bhola, PW-2 Km. Munni, PW-3 Dr. R.B. Tiwari, PW-4 S.O. Nand Kishore and PW-5 S.I. Brij Pal Singh were examined.

5. In the statement recorded under Section 313 Cr.P.C., the accused appellant stated that he has been falsely implicated in the present case.

6. I have heard Mr. Alok Kapoor, learned counsel for appellant and Zeba Islam Siddiqui learned Additional Government Advocate for State.

7. The prosecution story reveals that on 19.2.1995 at about 4.00 P.M. some dispute arose between Smt. Pyara and the accused appellant and the accused appellant abused the deceased. Later on accused appellant went to his house and came at about 6.00 P.M. with lathi and after abusing her, she started to beat by lathi and she died due to injuries caused by the accused-appellant. The dead body of deceased was taken to hospital where post mortem was conducted by Medical Officer Incharge by Dr. R.B. Tiwari on 21.2.1995 at about 2.30 P.M. who had stated on oath that following injuries were found on the body of deceased:-

(i) Contusion 8 cm x 6 cm on the right side of head. The temporal bone was found fractured. There was bleeding.

(ii) Contusion 10 cm x 8 cm on the right side of shoulders.

(iii) Abraded contusion on lateral aspect of left hand.

It has been stated by doctor in his hand and signature and Ex.Ka-2 has been proved by medical officer.

8. PW-1 is Bhola who have stated that on the point of certain hot discussion with the deceased, the accused appellant again returned with lathi at about 2.00 P.M. and abused the deceased and caused injuries by beating on her head and other part of the body. Due to those injuries, she died. It has also been stated by this witness that he has communicated this fact to the police station where a first information report was lodged and police came to investigate the offence.

9. PW-2 Muni was about 9 years at the time of recording the statement and she was examined by the court and had stated on oath that the accused appellant Chandra Prakash came at 6.00 P.M. and beaten her with lathi on the head. After that, she cried and died due to injuries. She was examined by the defence but nothing adverse has been found in the statement of this witness.

10. Learned counsel for the appellants has submitted that this witness is a child witness and her statement should be taken and considered with great caution.

11. Evidence of child witness cannot be rejected out rightly. It should be evaluated carefully with greater circumspection. Court has to ascertain whether it is free from influence. It on a careful scrutiny, the testimony of a child witness is found truthful, there can be no hindrance in the way of accepting the same and recording conviction of the accused on the basis of his testimony. ( Rameshwar Vs. State of Rejasthan; AIR 1952 SC 54, Nivrutti Pandurang Kokate and Ors. Vs. State of Maharashtra (2008 (12) SCC 565), Md. Kalam Vs. State of Bihar; 2008 (62) ACC 305, State of Karnataka Vs. Shantappa Madivalappa; AIR 2009 SC 2144, Acharaparambath Pradeepan Vs. State of Kerala; 2007 (57) ACC 293 (SC), Ratan Singh Vs. State of Gujarat; (2004) 1 SCC 64, Panchhi Vs. State of U.P. ; 1998 (37) ACC 528 (SC Three Judges Bench), Prakash vs. State of M.P.; JT 1992 (4) SC 594 , State of MP vs. Ramesh 2011 CRLJ 2297 SC, State of UP vs. Krishna Master AIR 2010 SC 3071)

12. The proviso to S.5, Indian Oaths Act, 1873 prescribes that:

"Provided that where the witness is a child under twelve years of age, and the Court or person having authority to examine such witness is of opinion that though he understands the duty of speaking the truth he does not understand the nature of an oath or affirmation, the foregoing provisions of this section and the provisions of S.6 shall not apply to such witness, but in any such case the absence of an oath or affirmation shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth."

13. An omission to administer an oath, even to an adult, goes only to the credibility of the witness and not his competency. It is desirable that Judges and magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the Magistrate or judge really was of that opinion can, be gathered from the circumstances when there is no formal certificate [AIR 1952 SUPREME COURT 54 "Rameshwar Vs. State of Rajasthan"]

14. The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial judge who notices his manners, his apparent possession or lack of intelligence, and said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial Court may, however, be disturbed by the higher Court if from what is preserved in the records, it is clear his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make beliefs. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the Court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness. [AIR 2008 Supreme Court 1842 "Golla Yelugu Govindu Vs. State of A.P., AIR 2009 Supreme Court 2144 " State of Karnataka Vs. Shantappa Madivalapa Galapurji""]

15. In light of above facts, the statement of PW-2 though she is child witness but the perusal of statement shows that she has narrated the true version of the story and there is nothing to discredit her statement.

16. PW-4 Nand Kishore Pandey who was posted as Station Officer in the police station Ajgain on 20.2.1995 had stated that he started the investigation of the case and came to the spot and after preparing site map and the records relating to dead body, he sent the dead body to the medical hospital for post mortem and post mortem report was prepared by him and under his direction and after recording the statement of the witnesses, he has submitted the charge sheet against the accused. He has proved the formal documents.

17. Learned counsel for appellant has submitted that there were to wives to Bhola and there was certain dispute with regard to property and accused appellant was aggrieved by this fact, he had been falsely implicated in this case. The narration of he defence as sated above has no relevancy for want of any evidence. Where there is direct evidence on the point, the imaginary question raised by the defence can not be trusted upon. Further the property dispute is another matter and that relales to the sons and daughter of Bhola from two wives. The prosecution story in the present case reveals that there was certain altercation with the deceased and the accused appellant and aggrieved by this, the accused appellant went to his house and came with all preparedness with lathi and caused injuries directly on the head of the deceased and she died.

18. PW-5 SI Brij Pal Singh is formal witness and was examined to prove the chick F.I.R. and other documents. DW-1 Shiv Ram was examined on the fact that Smt. Pyara had one male and one female issues. There was dispute with regard to the division of the property which was to be done by Smt. Pyara, the deceased and Bhola was in favour of Pyara and that was reason the accused-appellant has been falsely implicated in the present case.

19. It is admitted by the defence witness that Smt. Pyara died due to injuries but he had stated that he had no direct knowledge how she was injured. On the other hand, prosecution witnesses had stated that the accused appellant had caused injuries on the head of the deceased and she died.

20. Learned counsel for appellant has submitted that there was delay in lodging the first information report. He had submitted that the incident took place at about 6.00 P.M. on 19.2.1995 while the first information report was lodged on 20.2.1995. The prosecution witnesses has explained the reason that it was night and they arranged the bullock cart to carry the body of the deceased and it was night and the complainant's sight was week, thus he lodged the first information report on the next date. Thus in the light of above facts, it can not be said that there was delay in lodging the first information report.

21. The grounds regarding delay in the first information report which have been pressed by the learned counsel for the appellant were also raised before the learned trial court. I have gone through the impugned judgment and fully satisfied with the view taken by the learned trial court and the finding that the first information report was not ante-timed.

22. A prompt F.I.R. lends credence to the prosecution case because a prompt F.I.R. eliminates all the chances of cooking up of a false story. Hon'ble the Apex Court in the case of Meharaj Singh v. State of U.P. reported in (1994) 5 SCC 188 while emphasizing the importance of recording a prompt FIR the Supreme Court observed as under:-

"FIR in a criminal case and particularly in murder case is a vital and valuable piece of evidence for the purpose of appreciating evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eye witnesses if any. Delay in lodging FIR often result in embellishment, which is a creature of an afterthought. On the account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version of exaggerated story."

23. In Thulia Kali v. State of Tamil Nadu reported in (1972) 3 SCC 393 the Supreme Court observed as under:-

"............ first information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be overestimated from the standpoint of the accused."

24. Similarly in Kishan Singh through LRs v. Gurpal Singh and others reported in (2010) 8 SCC 775 the Supreme Court held that "Prompt and early reporting of the occurrence by the informant with vivid details gives assurance regarding truth of its version. In case there is some delay in recording the FIR the complainant must give an explanation for the same. Undoubtedly, delay in lodging FIR does not make the complainant's case improbable when such delay is properly explained.

25. Law expects a prompt first information report because it eliminates all the chances of coming up of a coloured version. On this point, reliance may be placed on the pronouncement of Hon'ble the Apex Court in the case of Nanhe Vs. State of Uttar Pradesh reported in 1973 (3) SCC 317.

26. The injuries found on the person of deceased and the fact that deceased was injured in the same occurrence lends assurance to his testimony that he was present at the time of the occurrence. The evidence of an injured witness is entitled to a greater weight and the testimony of such a witness is considered to be beyond reproach and reliable. Firm, cogent and convincing ground is required to discard the evidence of an injured witness. It is to be kept in mind that the evidentiary value of an injured witness carries great weight. In Mano Dutt and another v. State of Uttar Pradesh - (2012) 4 SCC 79, it was held as under:

"31. We may merely refer to Abdul Sayeed v. State of M.P. - (2010) 10 SCC 259 where this Court held as under:

"28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. ''Convincing evidence is required to discredit an injured witness.' [Vide Ramlagan Singh v. State of Bihar -(1973) 3 SCC 881, Malkhan Singh v. State of U.P. - (1975) 3 SCC 311, Machhi Singh v. State of Punjab - (1983) 3 SCC 470, Appabhai v. State of Gujarat - 1988 Supp SCC 241, Bonkya v. State of Maharashtra -(1995) 6 SCC 447, Bhag Singh v. State of Punjab -(1997) 7 SCC 712, Mohar v. State of U.P.-(2002) 7 SCC 606, Dinesh Kumar v. State of Rajasthan-(2008) 8 SCC 270, Vishnu v. State of Rajasthan -(2009) 10 SCC 477, Annareddy Sambasiva Reddy v. State of A.P.-(2009) 12 SCC 546 and Balraje v. State of Maharashtra- (2010) 6 SCC 673.]

29. While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab-(2009) 9 SCC 719 where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under:

''28. Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of Karnataka-1994 Supp (3) SCC 235 this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.

29. In State of U.P. v. Kishan Chand-(2004) 7 SCC 629 a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana-(2006) 12 SCC 459. Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.'

30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."

27. The trial court judgment was fortified by the decisions of the Court in Pudhu Raja and another v. State Represented by Inspector of Police-40 (2012) 11 SCC 196, Jaswant Singh v. State of Haryana-(2000) 4 SCC 484 and Akhtar and others v. State of Uttaranchal-(2009) 13 SCC 722 on the law of material omissions and contradictions. Concurringly, the Court too observed that the defence had failed to demonstrate from the informant's testimony such discrepancies, omissions and improvements that would have caused the Court to reject such testimony after testing it on the anvil of the law laid down by this Court:

"325. ...Their throbbing injuries and the rigors of the weather coupled with the state of their minds must have at that point of time brought forth their instinct of survival and self preservation. The desire to have apprehended their assailants and to mete out just desserts to them could not have been their priority. ..."

28. In this context, I may fruitfully reproduce a passage from State of U.P. v. M.K. Anthony- (1985) 1 SCC 505:

"10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. ..."

29. In Harijana Thirupala v. Public Prosecutor, High Court of A.P.-(2002) 6 SCC 470, it has been ruled that:

"11. .... In appreciating the evidence the approach of the court must be integrated not truncated or isolated. In other words, the impact of the evidence in totality on the prosecution case or innocence of the accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses."

30. In Ugar Ahir v. State of Bihar-AIR 1965 SC 277, a three-Judge Bench held:

"7. The maxim falsus in uno, falsu in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest."

31. In Krishna Mochi v. State of Bihar-(2002) 6 SCC 81, the Court ruled that:

"32. .... The court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. I find that in recent times the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, the court should tread upon it, but if the same are boulders, the court should not make an attempt to jump over the same. These days when crime is looming large and humanity is suffering and the society is so much affected thereby, duties and responsibilities of the courts have become much more. Now the maxim "let hundred guilty persons be acquitted, but not a single innocent be convicted" is, in practice, changing the world over and courts have been compelled to accept that "society suffers by wrong convictions and it equally suffers by wrong acquittals". I find that this Court in recent times has conscientiously taken notice of these facts from time to time".

32. In Inder Singh (supra), Krishna Iyer, J. laid down that:

"Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes."

33. In the case of State of U.P. v. Anil Singh-1988 (Supp.) SCC 686, it was held that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform.

34. Learned trial court has examined this contention of the appellant and by discussing the case of State of U.P. vs. Paras Nath Singh reported in 1973 Cr.L.J. 850 held that in the circumstances under which the present incident occurred and was narrated by the witnesses during the examination before the Court it is not probable to involve the accused on false ground. Further in view of Sandeep vs. State of Haryana reported in AIR 2001 SC 1103 it was held that where the witnesses were known, both the victim and the accused, there evidence would be material and could not be criticized on the ground that he was an interested witness. In case of Ashok Kumar Chaudhary vs. State of Bihar - 2008 (61) ACC 972 (SC) it was held that if a witness examined in the Court is otherwise found reliable and trustworthy, the fact sought to be proved by that witness need not be further proved through other witnesses though there may be other witnesses available who could have been examined but were not examined.

35. Learned trial court has assessed the prosecution witnesses and found that nothing came out from the examination-in-chief or cross examination which may discredit the testimony of the witnesses.

36. In the case of Bhajan Singh @ Harbhajan Singh and Ors. vs. State of Haryana reported in (2011) 7 SCC 421 it was held that the evidence of the stamped witness must be given due weightage as his presence on the place of occurrence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else.

37. Learned counsel for appellants has submitted that there was no motive behind causing injury while learned counsel for State has submitted that there was a dispute with regard to division of share to whom the appellant was favouring. This was the cause of motive. It has further been submitted by learned counsel for state that there is direct evidence, in that case, motive loses its importance and the case has to be examined on the basis of evidence on record.

38. Motive is not a sine qua non for the commission of a crime. Moreover, it takes a back seat in a case of direct ocular account of the commission of the offence by a particular person. In a case of direct evidence the element of motive does not play such an important role so as to cast any doubt on the credibility of the prosecution witnesses even if there be any doubts raised in this regard. If the eye-witnesses are trustworthy, the motive attributed for the commission of crime may not be of much relevance. Failure to prove motive or absence of evidence on the point of motive would not be fatal to the prosecution case when the other reliable evidence available on record unerringly establishes the guilt of the accused. [Abu Thakir v. State; AIR 2010 SC 2119, State of U.P. vs. Nawab Singh; AIR 2010 SC 3638, Bipin Kumar Mondal v. State of West Bengal; 2005 SCC (Criminal) 33, Shivraj Bapuray Jadhav vs. State of Karnataka; (2003) 6 SCC 392, Thaman Kumar Vs. State of Union Territory of Chandigarh; (2003) 6 SCC 380, State of H.P. vs. Jeet Singh; (1999) 4 SCC370]

Even though existence of motive loses significance when there is reliable ocular testimony, in a case where the ocular testimony appears to be suspect the existence or absence of motive acquires some significance regarding the probability of the prosecution case [Badam Singh v. State of Madhya Pradesh; AIR 2004 SC 26]

The legal position regarding proof of motive as an essential requirement for bringing home the guilt of the accused is fairly well settled by a long line of decisions of the Court. These decisions have made a clear distinction between cases where prosecution relies upon circumstantial evidence on the one hand and those where it relies upon the testimony of eye-witnesses on the other. In the former category of cases proof of motive is given the importance it deserves, for proof of a motive itself constitutes a link in the chain of circumstances upon which the prosecution may rely. Proof of motive, however, recedes into the background in cases where the prosecution relies upon an eye-witness account of the occurrence. (Sheo Shankar Singh v. State of Jharkhand; 2011(74) ACC 159 (SC), Ravinder Kumar vs. State of Punjab; 2001 (2) JIC (SC), State of H.P. vs. Jeet Singh; (1999) 4 SCC 370; Pannayar v. State of Tamil Nadu by Inspector of Police; AIR 2010 SC 85)

It is true that in a case of circumstantial evidence motive does have extreme significance but to say that in the absence of motive, the conviction based on circumstantial evidence cannot, in principle, be made is not correct. Motive provides foundational material Absence of motive- Not of much consequence when chain of proved circumstances is complete. [G. Prashwanath v. State of Karnataka; AIR 2010 SC 2914, Jagdish vs. State of M.P.; 2009 (67) ACC 295 (SC), Ujjagar Singh v. State of Punjab; AIR 2008 SC (Supp) 190]

The prosecution case could not be denied on the ground of alleged absence or insufficiency of motive. Motive is insignificant in cases of direct evidence of eyewitnesses. Failure to prove motive or absence of evidence on the point of motive would not be fatal to the prosecution case when the other reliable, truthful & acceptable evidence is available on record sufficient to establish the guilty of accused persons. [Gopi Ram Vs. St. Of U.P.; 2006 (55) ACC 673 SC; State of U.P. vs. Nawab Singh; 2005 SCC (Criminal) 33, Shivraj Bapuray Jadhav vs. State of Karnataka; (2003) 6 SCC 392, R.R. Reddy V. State of A.P.; AIR 2006 SC 1656, Sucha Singh V. State of Punjab; AIR 2003 SC 1471, State of Rajasthan v/s Arjun Singh AIR 2011 SC 3380, Varun Chaudhry v/s State of Rajasthan AIR 2011 SC 72]

39. The motive as raised on behalf of the appellants is that the prosecution has failed to prove any motive for the commission of the crimed and in absence of clear and emphatic motive the order of conviction is liable to be set-aside and the accused persons are entitled to acquittal. This submission is, firstly, based on misreading of the record and secondly it is devoid of any merits. The evidence on record indicates that the relation between the parties were quite strained and the way the crime has been committed clearly indicates that they were unhappy with the dispute. Be that as it may, it is not always necessary for the prosecution to establish a definite motive for the commission of the crime. It will always be relatable to the facts and circumstances of a given case. It will not be correct to say as an absolute proposition of law, that the existence of a strong or definite motive is a sine qua non to holding an accused guilty of a criminal offence. It is not correct to say that absence of motive essentially results in the acquittal of an accused if he is otherwise found to be guilty. In Babu Lodhi vs. State of U.P. reported in (1987) 2 SCC 352, the Apex Court took the view that insofar as the adequacy of motive is concerned, it is not a matter which can be accurately weighed on the scales of a balance.

40. When there is a sufficient direct evidence regarding the commission of offence, the question of motive will not loom large in the mind of the Court, though motive is a double edged weapon and the key question for consideration is whether the prosecution had convincingly and satisfactorily established the guilt of all or any of the accused beyond reasonable doubt by letting in reliable and cogent evidence. But proof of the existence of a motive is not necessary for a conviction for any offence.

41. Learned counsel for the appellants has challenged the judgment on the ground that the alleged witnesses produced by the prosecution are family members, as such, they are interested witnesses. The conviction of the appellants is primarily based on the statement of these witnesses, which, as such, is liable to be set-aside. It has also been submitted that the prosecution has failed to prove its case beyond any reasonable doubt. The conduct and role of the accused/appellants as attributed by the prosecution is not only improbable but is impossible to be believed.

42. On the contrary, learned counsel appearing for the State has argued that there was sufficient evidence on record. The version of the eyewitnesses cannot be doubted. Their presence on the site was natural and they had no reason to falsely implicate all or any of the accused in the case. It is contended that the version of the eyewitnesses is fully supported by the evidence of the expert and the statement of the Investigating Officer.

43. In light of above facts, the natural witnesses who were present at the spot at the time of occurrence were examined by the prosecution. There is no hard and fast rule that family members can never be true witnesses to the occurrence and they will always depose falsely before the Court. It will always depends upon the facts and circumstances of a given case. In the case of Jayabalan vs. Union Territory of Pondicherry reported in (2010) 1 SCC 199, the Court took a view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim.

44. The only requirement to scrutinize the evidence of related witnesses, under law, is that their evidence should be scrutinized with extra care and caution but the same cannot be discarded only on the ground of their relationship. On this point, reference may be made to the pronouncement of Hon'ble the Apex Court in the case of Appa v. State of Gujarat, AIR 1988 SC 698, wherein Hon'ble Apex Court has observed that "Experience reminds us that civilized people are generally insensitive when crime is committed even in their presence. They withdraw from both, victim and vigilant. They keep themselves away from the Court. They take crime as a civil dispute. This kind of apathy of general public is indeed unfortunate but it is everywhere whether in village life or town and city. One cannot ignore this handicap. Evidence of witnesses has to be appreciated keeping in view such ground realities. Therefore, the Court instead of doubting the prosecution case where no independent witness has been examined must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any suggested by the accused".

45. Reference may be made on the pronouncement of Hon'ble the Apex Court in the case of Sahabuddin & Anr. Vs. State of Assam passed in Criminal Appeal No. 629 of 2010. In this case Hon'ble the Apex Court has discussed the legal position on this point in paragraph no. 16. Relevant portion of the aforesaid judgment reads as under:-

"16. ................. At this stage, we may refer to the judgment of this Court in the case of Gajoo V. State of Uttarakhand [JT 2012 (9) SC 10], where the Court while referring to various previous judgments of this Court, held as under:-

We are not impressed with this argument. The appreciation of evidence of such related witnesses has been discussed by this Court in its various judgments. In the case of Dalip Singh v. State of Punjab [(1954) SCR 145], while rejecting the argument that witnesses who are close-relatives of the victim should not be relied upon, the Court held as under:-

26.A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts." Similar view was taken by this Court in the case of State of A.P. v. S. Rayappa and Others [(2006) 4 SCC 512]. The court observed that it is now almost a fashion that public is reluctant to appear and depose before the court especially in criminal cases and the cases for that reason itself are dragged for years and years. The Court also stated the principle that, "by now, it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons." This Court has also taken the view that related witness does not necessarily mean or is equivalent to an interested witness.

A witness may be called interested only when he or she derives some benefit from the result of litigation; in the decree in a civil case, or in seeing an accused person punished. {Ref. State of Uttar Pradesh v. Kishanpal and Others [(2008) 16 SCC 73]} In the case of Darya Singh & Ors Vs. State of Punjab [AIR 1965 SC 328], the Court held as under:-

6. ............ On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars."

46. It will be useful to make a reference of another judgment of Hon'ble the Apex Court, in the case of Satbir Singh & Ors. Vs. State of Uttar Pradesh reported in [(2009) 13 SCC 790], wherein Hon'ble the Apex Court has held as under:-

"26. It is now a well-settled principle of law that only because the witnesses are not independent ones may not by itself be a ground to discard the prosecution case. If the prosecution case has been supported by the witnesses and no cogent reason has been shown to discredit their statements, a judgment of conviction can certainly be based thereupon........."

47. Again in a recent judgment in the case of Balraje @ Trimbak v. State of Maharashtra [(2010) 6 SCC 673], Hon'ble the Apex Court has held that when the eye-witnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent person. The truth or otherwise of the evidence has to be weighed pragmatically. The Court would be required to analyse the evidence of related witnesses and those witnesses who are inimical towards the accused. But if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same.

48. The Hon'ble Apex Court, in the case of ''Pulicherla Nagaraju @ Nagaraja Reddy v. State of A.P.' (2007) 1 SCC (Cri) 500, has held in paragraph no.16 as under: -

"In this case, we find that the trial court had rejected the evidence of PW1 and PW2 merely because they were interested witnesses being the brother and father of the deceased. But it is well settled that evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or closely related to the deceased, if it is otherwise, found to be trustworthy and credible. It only requires scrutiny with more care and caution, so that neither the guilty escape nor the innocent wrongly convicted. If on such careful scrutiny, the evidence is found to be reliable and probable, it can be acted upon. If it is found to be improbable or suspicious, it ought to be rejected. Where the witness has a motive to falsely implicate the accused, his testimony should have corroboration in regard to material particulars before it is accepted. (Vide Hari Obula Reddy Vs. State of A.P., Ashok Kumar Pandey, Vs. State of Delhi, and Bijoy Singh Vs. State of Bihar). Nothing had been elicited in the cross-examination of PW1 and PW2 to discredit their evidence. Their evidence finds corroboration in Ex.P-1 and the evidence of the doctors (PW11 and PW12) and the MOs seized on the disclosures made by A-1 and A-3. Therefore, the High Court rightly held that the evidence of PWs1 and 2 could not be rejected, even though they were closely related to the deceased and inimically disposed towards the accused. There is no infirmity in the decision of the High Court by re-appreciating the evidence and reaching independent conclusions."

49. The Apex Court in the case of 'Dharnidhar Vs. State of Uttar Pradesh and others' reported in (2010), 7 SCC 759, in paragraph nos.12 to 14, has held as under:-

"12. There is no hard and fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court. It will always depend upon the facts and circumstances of a given case. In the case of Jayabalan v. U.T. of Pondicherry [(2010)1 SCC 199], this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim. The Court held as under:

" 23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim.

24. From a perusal of the record, we find that the evidence of PWs 1 to 4 is clear and categorical in reference to the frequent quarrels between the deceased and the appellant. They have clearly and consistently supported the prosecution version with regard to the beating and the ill-treatment meted out to the deceased by the appellant on several occasions which compelled the deceased to leave the appellant's house and take shelter in her parental house with an intention to live there permanently. PWs 1 to 4 have unequivocally stated that the deceased feared threat to her life from the appellant. The aforesaid version narrated by the prosecution witnesses, viz. PWs 1 to 4 also finds corroboration from the facts stated in the complaint."

13. Similar view was taken by this Court in Ram Bharosey v. State of U.P. [AIR 2010 SC 917], where the Court stated the dictum of law that a close relative of the deceased does not, per se, become an interested witness. An interested witness is one who is interested in securing the conviction of a person out of vengeance or enmity or due to disputes and deposes before the Court only with that intention and not to further the cause of justice. The law relating to appreciation of evidence of an interested witness is well settled, according to which, the version of an interested witness cannot be thrown over- board, but has to be examined carefully before accepting the same.

14. In the light of the above judgments, it is clear that the statements of the alleged interested witnesses can be safely relied upon by the Court in support of the prosecution's story. But this needs to be done with care and to ensure that the administration of criminal justice is not undermined by the persons, who are closely related to the deceased. When their statements find corroboration by other witnesses, expert evidence and the circumstances of the case clearly depict completion of the chain of evidence pointing out to the guilt of the accused, then we see no reason why the statement of so called `interested witnesses' cannot be relied upon by the Court."

50. As per the dictum of the Apex Court, it is now a settled position of law that the statements of the alleged interested witnesses can be safely relied upon by the court in support of the prosecution's story. But this needs to be done with care and to ensure that the administration of criminal justice is not undermined by the persons, who are closely related to the deceased. When their statements find corroboration by other witnesses, expert evidence and the circumstances of the case clearly depict completion of the chain of evidence pointing out to the guilt of the accused, then there is no reason as to why the statement of so-called 'interested witnesses' cannot be relied upon by the Court. It would be hard to believe that the close relatives shall leave the real culprit and shall implicate innocent persons falsely simply because they have enmity with the accused persons.

51. In the statement under Section 313 Cr.P.C. the accused appellants had stated that they have been falsely implicated due to enmity. There is direct evidence of eye witnesses that the appellant caused injury. Nothing has been stated in the statement as to under what circumstances the deceased died and why the eye witnesses are giving evidence against the appellant.

52. It is a settled principle of law that the statement made by the accused under Section 313 of the Cr.P.C. can be used by the Court to the extent that it is in line with the case of the prosecution. The same cannot be the sole basis for convicting an accused. In the present case, the statement of accused before the Court, to some extent, falls in line with the case of the prosecution and to that extent, the case of the prosecution can be substantiated and treated as correct by the Court. The legislative intent behind this section appears to have twin objects. Firstly, to provide an opportunity to the accused to explain the circumstances appearing against him. Secondly, for the Court to have an opportunity to examine the accused and to elicit an explanation from him, which may be free from the fear of being trapped for an embarrassing admission or statement.

53. The proper methodology to be adopted by the Court while recording the statement of the accused under Section 313 of the Cr.P.C. is to invite the attention of the accused to the circumstances and substantial evidence in relation to the offence, for which he has been charged and invite his explanation. In other words, it provides an opportunity to an accused to state before the Court as to what is the truth and what is his defence, in accordance with law. It was for the accused to avail of that opportunity and if he fails to do so then it is for the Court to examine the case of the prosecution on its evidence with reference to the statement made by the accused under Section 313 of the Cr.P.C.

54. In Hate Singh Bhagat Singh vs. State of Madhya Bharat [AIR1953 SC 468], while dealing with Section 342 of the old Cr.P.C. equivalent to Section 313 of the present Cr.P.C. observed that answer of the accused given can be used in other enquiries or trials for other offences.

55. In the case of Narayan Singh vs. State of Punjab [(1963) 3 SCR 678 a Three Judge Bench of this Court held as under:

"Under Section 342 of the Cr.P.C. of Criminal Procedure by the first Sub-section, insofar as it is material, the Court may at any stage of the enquiry or trial and after the witnesses for the prosecution have been examined and before the accused is called upon for his defence shall put questions to the accused person for the purpose of enabling him to explain any circumstance appearing in the evidence against him. Examination under Section 342 is primarily to be directed to those matters on which evidence has been led for the prosecution to ascertain from the accused his version or explanation if any, of the incident which forms the subject matter of the charge and his defence. By Sub-section (3), the answers given by the accused may "be taken into consideration" at the enquiry or the trial. If the accused person in his examination under Section 342 confesses to the commission of the offence charged against him the Court may, relying upon that confession, proceed to convict him, but if he does not confess and in explaining circumstance appearing in the evidence against him sets up his own version and seeks to explain his conduct pleading that he has committed no offence, the statement of the accused can only be taken into consideration in its entirety.

56. Following the law laid down in Narayan Singh's case (supra) the Apex Court in State of Maharashtra v. Sukhdeo Singh [1992 CriLJ 3454] further dealt with the question whether a statement recorded under Section 313 of the Cr.P.C. can constitute the sole basis for conviction and recorded a finding that the answers given by the accused in response to his examination under Section 313 of the Cr.P.C. of 1973 can be taken into consideration in such an inquiry or trial though such a statement strictly is not evidence and observed in paragraph 52 thus:

"Even on the first principle we see no reason why the Court could not act on the admission or confession made by the accused in the course of the trial or in his statement recorded under Section 313 of the Cr.P.C....."

57. Learned counsel for appellants has submitted that remaining witnesses or all the witnesses have not been examined by the prosecution.

58. In a criminal trial quality of evidence which is before the Court is required to be considered and not the quantity of number of witnesses. As per Section 134 of the Evidence Act, no particular number of witnesses is required to prove any fact. If the testimony of a sole witness is found reliable on the touchstone of credibility, accused can be convicted on the basis of such sole testimony. This has been followed in various pronouncements of Hon'ble the Apex Court like Vadivelu Thevar vs. State of Madras; AIR 1957 SC 614, Raj Narain Singh vs. State of U.P.; 2009 (67) ACC 288 (SC), Namdeo vs. State of Maharashtra; 2007(58) ACC 414 (SC), Ramjibhai Narasanghbhai vs. State of Gujarat; (2004) 1 SCC 184, and Ranjeet Singh vs. State of MP; AIR 2011 SC 255.

59. The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely (1) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable, nor wholly unreliable. In first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. What is required to be considered is as to whether the testimony of the sole witness is reliable, trustworthy and can be believed or not. In light of the facts of the present case where the presence of sole eyewitness on spot when the incident took place was not doubtful and his evidence was found to be credible and corroborated, in spite of the plea that other witnesses were also present or other witnesses were not produced before the Court in spite of the fact that they were named in the first information report, the testimony of sole witness cannot be rejected. [Journail Singh vs. State of Punjab reported in 2009 (1) Supreme 224]. Reference on this point may be made to the pronouncement of Hon'ble the Apex Court in the case of (i) Manga alias Man Singh Vs. State of Uttarakhand reported in 2013 (7) SCC 629, (ii) State of Haryana Vs. Shakuntala and others reported in 2012 (5) SCC 171 and (iii) Prathipal Singh etc. Vs. State of Punjab and another etc. reported in 2012 (1) SCC 10. We would like to quote paragraph no. 49 of the judgment of Prithvipal Singh's case (supra), which reads as under:-

"49. This Court has consistently held that as a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act. But if there are doubts about the testimony, the court will insist on corroboration. In fact, it is not the number or the quantity, but the quality that is material. The time- honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value, weight and quality of evidence, rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. (See: Vadivelu Thevar v. The State of Madras : AIR 1957 SC 614; Sunil Kumar v. State Govt. of NCT of Delhi (2003) 11 SCC 367; Namdeo v. State of Maharashtra (2007) 14 SCC 150; and Bipin Kumar Mondal v. State of West Bengal AIR 2010 SC 3638)."

60. As a general rule, a Court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character. Unless corroboration is insisted upon by statute, Courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon. The contention of the learned counsel that in a heinous offence like murder plurality of witness is required, cannot be accepted. The deposition of PW-1 as recorded by the learned trial court comes within the category of wholly reliable evidence.

61. Learned counsel for appellants has submitted that there are certain contradictions and discrepancies.

62. Learned counsel for the State, has submitted that though there are no contradictions, even if there are certain discrepancies, these are normal discrepancies which did not corrode the credibility of the prosecution case as laid down in the following cases:-

"72. In State Represented by Inspector of Police v. Raravanan and another - JT 2008 (11) SC 290, reiterating the principle, the Court held:

"18. .... it has been said time and again by this Court that while appreciating the evidence of a witness, minor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the court to reject evidence in its entirety. Further, on the general tenor of the evidence given by the witness, the trial court upon appreciation of evidence forms an opinion about the credibility thereof, in the normal circumstances the appellate court would not be justified to review it once again without justifiable reasons. It is the totality of the situation, which has to be taken note of. Difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if present, that itself would not prompt the court to reject the evidence on minor variations and discrepancies."

73. In Mahendra Pratap Singh v. State of Uttar Pradesh- JT 2009 (3) SC 120, the Court referred to the authority in Inder Singh and another v. State (Delhi Administration) 1978 (4) SCC 161 wherein it has been held thus:

"2. Credibility of testimony, oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect."

74. In Sunil Kumar Sambhudayal Gupta and others v. State of Maharashtra - JT 2010 (12) SC 287, while dealing with the issue of material contradictions, the Court held:

"30. While appreciating the evidence, the court has to take into consideration whether the contradictions/ omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The trial court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate court in normal course would not be justified in reviewing the same again without justifiable reasons. (Vide State v. Saravanan)

31. Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and the other witness also makes material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. (Vide State of Rajasthan v. Rajendra Singh.)

32. The discrepancies in the evidence of eyewitnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that the prosecution proved its case beyond reasonable doubt." (Vide Mahendra Pratap Singh v. State of U.P. )"

And again:

"35. The courts have to label the category to which a discrepancy belongs. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so." (See Syed Ibrahim v. State of A.P.22 and Arumugam v. State)"

63. Learned counsel for appellant has further submitted that there was sudden quarrel between the parties and the injuries were caused without any per-planning and there was no intention to cause death.

64. Learned counsel for appellant has submitted that benefit of doubt should be given to accused appellant for the reasons that there was no intention to kill the deceased and the offence does not come within the purview of Section 304 Part I or Part II.

65. In the scheme of the IPC culpable homicide is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not viceversa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder is culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognize three degrees of culpable homicide. The first is, what may be called, 'culpable homicide of the first degree'. This is the gravest form of culpable homicide, which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of Section 304. Then, there is 'culpable homicide of the third degree'. Culpable homicide and the punishment provided for it is also is the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304. The academic distinction between 'murder' and 'culpable homicide not amounting to murder has always vexed the Courts. The confusion is caused, if Courts start losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Section 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences.

Section 299

Section 300

A person commits culpable homicide if the act by which the death is caused is done-

Subject to certain exceptions culpable homicide is murder is the act by which the death is caused is done.

Clause (b) of section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the 'intention to cause death' is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by illustration (b) appended to section 300. Clause(b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. In clause (3) of Section 300, instead of the words 'likely to cause death' occurring in the corresponding clause (b) of Section 299, the words 'sufficient in the ordinary course of nature' have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause(3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the

degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word 'likely' in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words "bodily injury..." sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the internal bodily injury or injuries sufficient to cause death in the ordinary course of nature.

66. In support of the appeal learned Counsel for the appellant submitted that the background facts projected by the prosecution clearly show that the assault was given in the course of a sudden quarrel. There was no pre-mediation and the accused did not take advantage and had also not acted in a cruel manner. Only one blow by lathi was allegedly given by picking up a lathi. Prior to that he was not armed. In any event only one blow was given. In essence it was submitted that Section 302 IPC has no application and in essence Fourth Exception of Section 300 IPC applies. Per contra, learned Counsel for the respondent-State supported the judgment of the High Court. The pivotal plea relates to the applicability of Exception 4 of Section 300 IPC. For bringing in its operation it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner.

67. The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. 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 IPC. 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 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'.

68. It cannot be laid down as a rule of universal application that whenever one blow is given, Section 302 IPC is ruled out. It would depend upon the weapon used, the size of it in some cases, force with which the blow was given, part of the body it was given and several such relevant factors.

69. Considering the factual background of the case at hand, this court is of the view that the offence comes within purview of Section 304(II) of IPC and learned court below has correctly appreciated the evidence and statement of the witnesses and correctly found the appellant guilty under Section 304 IPC. This court is also of the view that the accused appellant has committed the offence. Learned counsel for appellant has relied on Pappu versus state of M.P. 2006(7) SCC page 391 and Misri Lal and others versus The State of U.P. Manu/UP/1548/2017.d an offence under Section 304(II) IPC and the charges have been proved by the prosecution beyond all reasonable doubt. The contention of the learned counsel for appellant that there was only one blow on the head and causing injuries to the deceased comes within the purview of fracture and not Section 304(II) IPC, is not acceptable. The accused appellant was in knowledge that in all probability, the injures on the head will cause death and in all probability the appellant caused death and actually the injured died.

70. Learned counsel for appellant had submitted that a lenient view should be taken on the point of sentence. Considering the death of the deceased and the nature of injuries and part of the body chosen for attack which caused death of the deceased and which was within knowledge of the accused appellant that by causing such injury on the head, it may cause death, thus the offence under Section 304(II) IPC is fully proved.

71. In State of Karnataka v/s Krishnappa AIR 2000 SC 1470 , a three- Judge Bench, while discussing about the purpose of imposition of adequate sentence, opined that protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence and the sentencing Courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence.

72. In Jameel v. State of Uttar Pradesh (2010) 12 SCC 532 , the trial court had convicted the appellant therein under Section 308 IPC along with another and punished them with two years rigorous imprisonment. In appeal, the conviction and sentence of the appellant were affirmed. By the time the matter came to be considered by Court, the Court observed as under: -

"In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime,the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence."

73. In Shyam Narain v/s State (NCT Learned counsel for appellant has relied on Pappu versus state of M.P. 2006(7) SCC page 391 and Misri Lal and others versus The State of U.P. Manu/UP/1548/2017.of Delhi) (2013) 7 SCC 77 , it has been ruled that primarily it is to be borne in mind that sentencing for any offence has a social goal. Sentence is to be imposed regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realize that the crime committed by him has not only created a dent in his life but also a concavity in the social fabric. The purpose of just punishment is designed so that the individuals in the society which ultimately constitute the collective do not suffer time and again for such crimes, for it serves as a deterrent. The Court observed, true it is, on certain occasions, opportunities may be granted to the convict for reforming himself but it is equally true that the principle of proportionality between an offence committed and the penalty imposed are to be kept in view. It has been further opined that while carrying out this complex exercise, it is obligatory on the part of the court to see the impact of the offence on the society as a whole and its ramifications on the immediate collective as well as its repercussions on the victim.

74. In Guru Basavaraj v. State of Karnata a (2012) 8 SCC 734, the Court, discussing about the sentencing policy, had to say this: -

"There can hardly be any cavil that there has to be a proportion between the crime and the punishment. It is the duty of the court to see that appropriate sentence is imposed regard being had to the commission of the crime and its impact on the social order. The cry of the collective for justice which includes adequate punishment cannot be lightly ignored."

75. In Rattiram v. State of M.P. (2012) 4 SC 516 though in a different context, it has stated that: -

"the criminal jurisprudence, with the passage of time, has laid emphasis on victimology which fundamentally is a perception of a trial from theLearned counsel for appellant has relied on Pappu versus state of M.P. 2006(7) SCC page 391 and Misri Lal and others versus The State of U.P. Manu/UP/1548/2017. viewpoint of the criminal as well as the victim. Both are viewed in the social context. The view of the victim is given due regard and respect in certain countries.... it is the duty of the court to see that the victim's right is protected."

76. It is seemly to state here that though the question of sentence is a matter of discretion, vague and unregulated benevolence. It is to be exercised a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in social life.

77. In Ramji Dayawala & Sons (P.) Ltd. v. Invest Import AIR 1981 SC 2085: -

"when it is said that a matter is within the discretion of the court it is to be exercised according to well established judicial principles, according to reason and fair play, and not according to whim and caprice. `Discretion', said Lord Mansfield in R.v. Wilkes, ((1770) 98 ER 327), `when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful, but legal and regular' (see Craies on Statute Law, 6 th Edn., p.273)."

78. In light of facts and circumstances of the case, this court is of the view that rigorous imprisonment of 5 years will be just and proper punishment. Consequently, the appeal is partly allowed. The conviction of appellant Chandra Prakash under Section 304(II) IPC is confirmed. Sentence is modified. He is sentenced to undergo rigorous imprisonment for 5 years and to pay fine of Rs. 10,000/-. In case of default of payment of fine, he have to further undergo imprisonment for one year. Out of the fine so deposited, Rs. 5000/- shall be paid to the complainant or his heirs.

79. Accused appellant is reported to be on bail. The learned Chief Judicial Magistrate Unnao is directed to take the accused appellant Chandra Prakash in custody and sent him jail to serve out remaining sentence. The period of detention in this case crime number will be set off in substantive sentence in accordance with the provisions as contained in Section 428 Cr.P.C.

80. Let a copy of this judgment and lower court record be sent immediately to the court concerned for compliance.

Order Date :- 12.10.2017

prabhat