Anil Kumar vs State Of U.P.
2022 Latest Caselaw 12924 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 44						AFR
 

 
Case :- CRIMINAL APPEAL No. - 922 of 2013
 

 
Appellant :- Anil Kumar
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Bhuvnesh Kumar Singh,Ashfaq Ahmed Ansari,Jai Shanker Malviya
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Nalin Kumar Srivastava,J.

(Per: Hon'ble Nalin Kumar Srivastava,J.)

1. The additional Sessions Judge, Court No. 9, Bijnor passed judgment and order of conviction dated 12.02.2013 against the accused/ appellant Anil Kumar in Sessions Trial no. 837 of 2010 (State Vs. Anil Kumar) under Section 302 I.P.C (arising out of case crime no.290/2010), P.S.-Mandawar, District-Bijnor and sentenced to him to undergo life imprisonment and further imposed fine of Rs.20,000/- and in default six months additional simple imprisonment, hence this appeal.

2. As per the case of prosecution deceased Archana, daughter of informant Jai Prakash, who had a betel shop, was married with accused-Anil Kumar about 15 years before the occurrence. Accused used to make a demand of Rs.5 lac for his business. On 18.8.2010 at about 5.00 p.m. when Archana went to the shop of accused to take a gas cylinder, a quarrel took place between the accused and the deceased and accused inflicted injury upon the deceased with Patal (a sharp edged weapon). Meanwhile Jai Prakash-informant, Jaiwati wife of informant and his son Govind Kumar came on the spot and the accused fled away with the murder weapon. A written report Ex.A-17 regarding the occurrence was given to the police station by the informant Jai Prakash on 18.08.2010 at 18.10 p.m. on the basis of which chick FIR Ex.A-8 was registered and G.D. Ex.A-9 was prepared and investigation of the case started. Smt. Archana died of the injuries during treatment. The I.O. recorded the statements of eye-witnesses, informant and other witnesses. The inquest report Ex.A-2 and the papers required for post mortem Ex. A-3 to A-7 were prepared by S.I. Ram Kishun Manik. During investigation the accused was arrested with the murder weapon, which was blood stained, by the I.O. The victim of the occurrence was examined by doctor Anuj Kumar at District-Ghaziabad on 18.08.2010, who prepared the injury report Ex.A-10 and found following injuries on the body of the deceased:

1. Incised wound starting from outer angle of left eye up to whole lenth of back of neck and root of neck about 50.0 x 10. cm. bone deep whole part of muscle and skin is visible. Bleeding present.

2. I.W. 7.0 x 3.0 cm. on joint of left shoulder. Bleeding present.

3. Left hand is chopped up from wrist joint, hand is not present. Bone and muscle are exposed at wrist joint. Bleeding Present.

4. I.W. 12.0 x 7.0 cm muscle deep over right breast joint above nipple. fat of breast is exposed.

5. I.W. 10.0 x 3.5 cm. over right abdomen 5.0 cm from umblicus 10 o'clock position. Bleeding present

6. I.W. 6.0 x 1.5 cm. on upper aspect of right upper arm.

7. I.W. 3.0 x 1.5 cm over back of right fore arm. 5.0 cm above wrist joint.

8. I.W. 10.0 x 6.0 x bone deep fist cut right knee joint over bone is also cut.

3. During examination the injured died on 18.10.2010 at 6.50 p.m. The doctor opined that injury no.3 and 4 were grievous in nature and rest of the injuries were simple injuries. The injuries were fresh and caused by sharp edged object.

4. The autopsy of the deceased was conducted by doctor Bhoj Raj Singh on 19.8.2010 at 2.00 p.m. who prepared autopsy report Ex.A-1 and found following anti mortem injuries on the body of the deceased:

1. I.W. Over left temporal area, above ear, extending downward and posteriorly up to occipital area, measuring 29.0 cm x 2.0 cm, bone deep.

2. I.W. over left side of root of neck, going back of neck and upto root of neck on right side, 5.0 cms below ears on both sides, measuring 32.0 x 3.0 cms bone deep.

3. I.W. over top of left shoulder, 5.0 x 2.0 cms, muscle deep.

4. I.W. over back of neck on right side, 4.0 x 2.0 cms ears, bone deep , 2.0 cms above injury N.O. 2.

5. I.W. over top of right shoulder , muscle deep, 4.0 x3.0 cms.

6. I.W. over right breast, 15.0 x 9.0 cms, bone deep with skin and muscles absent.

7. I.W. over outer aspect of right arm, 5.0 x 2.0 cms, muscle deep, 13.0 cms above elbow joint.

8. I.W. over post aspect (back) of lower part of right fore arm, 3.0. x 2.0 cms muscle deep, 6.0 cms above wrist joint.

9. I.W. over right lateral aspect of lower part of chest and anterior abdominal wall, 20.0 x 4.0 cms, muscle deep.

10. I.W. over anterior abdominal wall, 8.0 x 5.0 cms, 10. cms below injury no.9.

11. Left palm is separate from limb at wrist joint. I.W. over stump of upper limb at wrist joint, 8.0 x 5.0 cms. and over the stump of palm 8.0 x 6.0 cms.

12. I.W. over dorsum of left palm, 5.0 x 0.5 cm, skin deep, 1.5 cm above the roots of middle and ring finger.

13. I.W. over front of right knee joint, 17.0 x 4.0 cms. with cut of upper part of tibial bone, bone deep.

5. The doctor found that the rigor mortis was present in all four limbs, gases and fecal material in both intestine were present, liver was pale, gal bladder was empty, uterus empty, both sides of heart empty, both lungs pale, 200 gm food material present in stomach. The doctor opined that the death was caused due to shock and hemorrhage as a result of anti mortem injuries about one day ago.

6. The I.O. inspected the spot on pointing out of the informant and prepared site plan Ex.A-11, plain and blood stained earth were also collected from the spot by the I.O. and a memo Ex.A-12 was prepared. After investigation charge sheet A-14 was submitted into the Court.

7. The accused appeared before the Court and the case being a Sessions triable case, it was committed to the Court of Sessions. Charge under Section 302 I.P.C. was framed against the accused who denied of the charge and claimed to the tried.

8. To bring home the guilt of the accused the prosecution has examined P.W.1 Govind Kumar eye-witness, P.W.2 Smt. Jaiwati eye witness, P.W.3 Dr. Bhoj Raj Singh, P.W.4 Con. Vijay Pal, P.W.5 S.I. Ram Kishan Manik witness of the inquest report, P.W.6 Cons. Omkar Singh Scribe of the Chick FIR and G.D. P.W.7 Dr. Anuj Kumar, P.W.8 S.S.I. Sunil Kumar Sharma, P.W.9 Jai Prakash informant and P.W.10 Amit Kumar Scribe of the written report as oral evidence.

9. The documentary evidence produced consisted of autopsy report Ex.A-1, inquest report Ex.A-2, photo nash Ex.A-3, chalan nash Ex.A-4, letter to C.M.O Ex.A-5, letter to R.I. Ex.A-6, specimen seal Ex.A-7, chick FIR Ex.A-8, G.D. Ex.A-9, injury report Ex.A-10, site plan Ex.A-11, recovery memo, plain and blood stained earth Ex.A-12, memo of recovery of murder weapon Ex.A-13, charge sheet Ex.A-14, F.S.L reports Ex.A-15 and A-16 and written report Ex.A-17.

10. The statement of accused was recorded under Section 313 Cr.P.C. who claimed his false implication on the basis of forged story and has denied his any kind of involvement in the crime, however no evidence in defence has been adduced by the accused.

11. Heard learned advocates for the parties.

12. P.W.1 Govind Kumar is said to be the eyewitness of the occurrence. Corroborating the prosecution versions, he has stated in his deposition that his sister Archana was married to the accused Anil before 14-15 years. The accused used to live with them and had a betel shop. He had made a demand of Rs.5 lacs for his business and as money was not given, for this reason he was not happy with his sister. On 18.08.2010 at about 5.00 p.m. when Archana came to the shop of the accused to take gas cylinder, a quarrel started between the two. The accused inflicted injury to his sister by patal. He along with his mother Smt. Jaiwati reached there and saw the occurrence. He has further stated that when they tried to save Archana accused fled away leaving his sister in a bitterly injured condition, thereafter his father lodged the report of the occurrence.

13. P.W.2 Smt. Jaiwati, the mother of the deceased has also corroborated the deposition of P.W.1 and has clearly stated that at the time of the occurrence she was present on spot with his son Govind and they saw the accused inflicting injuries upon Archana by patal. The left hand palm of Archana was imputed and she had got injuries on various parts of her body. The occurrence happened in front of the shop of Syed Nai and the people assembled there.

14. P.W.3 doctor Bhojraj has conducted the autopsy of body

of the deceased. He in his deposition has proved the proceedings of the post mortem, the injuries found on the body of the deceased and has proved the autopsy report Ex.-1. He opined that the cause of death was hemorrhage due to anti mortem injuries and it was caused about one day prior to the post mortem.

15. P.W.4 Cons. Vijay Pal carried the body of the deceased for post mortem along with HG Prem Chand, on 19.8.2010 at 11.30 pm. he has proved this fact in his evidence.

16. P.W.5 S.I. Ram Kishun Manik has deposed that he conducted the inquest proceeding on 19.8.2010 at 10 p.m. and also prepared the required documents for post mortem and had sent the dead body for the same. He has proved the inquest report and papers relating to autopsy as Ex.A-2 to A-7 respectively.

17. P.W.-6 Cons. Omkar Singh is the scribe of the FIR in his deposition he has proved this fact that on 18.8.2010 at 18.10 hours the informant Jai Prakash had come to P.S. Mandawar along with a written report written by Anil Kumar, on the basis of which he had lodged the FIR of this case and G.D. no. 36 was also prepared by him at the same time.

18. P.W.7 doctor Anuj Kumar was posted as C.M.O in the District Hospital Ghaziabad and on 18.8.2010 at 6.30 p.m. he had medically examined the deceased Smt. Archana then alive. This witness has proved the injury report Ex.A10 in his evidence and the injuries found on the body of the injured. He has also mentioned this fact that the general condition of the injured was very critical and she was in a gasping position, her pulse and b.p were missing. During examination at 6.50 pm she died.

19. P.W.8 Sunil Sharma has proved the F.S.L. report in his deposition as Ex.A-15 and A-16. He has also proved the murder weapon patal as material Ex.A-1 and also blood stained earth and plain earth as material Ex.-2 and Ex.-3 respectively. He has also proved the clothes of the deceased recovered from dead body as material Ex.-4 to Ex.-7. Other articles recovered from her body as material Ex.-8 to Ex.-14.

20. P.W.9 Jai Prakash is the informant of the case who is a deaf person. The question were asked to him in writing and he has replied thereof. He has proved the written report Ex.A-17. He has declared hostile by the prosecution. He has mentioned that at the time of the occurrence he was not present on the spot.

21. P.W.10 Amit Kumar is the scribe of the written report Ex.A-17, who has identified his hand writing over written report. He has also been declared hostile by the prosecution.

22. On the basis of the aforesaid evidence the learned trial Court found that the evidence adduced by the prosecution was cogent, consistent and reliable and the prosecution has succeeded to prove the guilt of the accused beyond reasonable doubt and accordingly he was convicted under Section 302 I.P.C.

23. The learned counsel for the appellant has assailed the impugned judgments on various grounds. It has been argued that the prosecution evidence rests upon the ocular version of P.W.1 and P.W.2, who are not reliable witnesses. They are interested witnesses and their presence at the place of occurrence is doubtful at the time of crime. It has been further argued that according to the FIR several persons reached at the spot but none was examined. It is next submitted that no recovery of murder weapon has been made from the possession of the accused and on this point the prosecution evidence is not reliable and does not find support from the version of any independent witness. The question has been raised upon the truthfulness of the medical evidence also. Learned counsel for the appellant has also argued that as per the prosecution story and the ocular version of the witnesses, it was not a pre-meditated murder and the offence, if any was caused in a spur of moment and in a heat of passion of the quarrel which suddenly took place between the deceased and the accused at the place of occurrence. It has been submitted that if the guilt of the accused is proved he may be convicted under Section 304 part I or part II I.P.C. instead of Section 302 I.P.C.

24. The submissions of the learned counsel for the appellant have been vehemently objected by learned A.G.A. for the State. It has been submitted that many injuries have been found by the doctor on the body of the deceased which show that it was a brutal murder at a public place. The murder weapon has been recovered from the possession of the accused. The ocular version of P.W.1 and P.W.2 is trustworthy and cogent and there was no necessity to get any corroboration of their evidence. It has been further submitted that the prosecution case is very well supported by the medical evidence and there is no contradiction in between the ocular evidence and the medical evidence. There was no chance of false implication of the accused, as he was the real son-in-law of the informant. It has been further submitted that there are no material contradictions in the statements of the witnesses. FIR is prompt and the place of occurrence is certain.

25. On the basis of the above, the learned A.G.A. has prayed for the dismissal of this appeal.

26. We were taken through the evidence and the judgment delivered by the trial Court and the various aspects discussed therein.

27. A careful scrutiny of the evidence of P.W.1 and P.W.2 clearly shows that a quarrel took place at the place of occurrence on the date and time as claimed by the prosecution between the accused and deceased. The accused/ appellant with a patal (sharp edged weapon) hit the deceased, who got fatal injuries and subsequently succumbed to the injuries and died. There are no material contradictions in the evidence of P.W.1 and P.W.2 in material particulars. Their evidence is almost identical on the material points viz. place, date and time of occurrence, manner of assault, weapon used etc. It is true that P.W.1 during the course of very lengthy cross examination has given some contradictory statements probably in a state of confused mind as it some times happens with the witnesses particularly with village back ground and not very literate but it is a settled position of law that the evidence adduced of a witness should be taken as a whole. The law of evidence does not mean that if a witness makes one or two confusing or contradictory statements during his lengthy cross examination, the rest of his evidence may be discarded. P.W.1 is a labourer as he has stated in his deposition likewise P.W.2 is a illiterate lady as she has put her thumb impression over her deposition.

28. As a matter of fact, the evidence of P.W.1 and P.W.2 has been recorded in parts after a long gap from the date of occurrence. P.W.1 has been examined in pieces from 4.4.2011 to 8.1.2013 and P.W.2, an illiterate lady, was examined on 27.5.2011, 4.4.2011 and 22.1.2013.

29. Recourse may be taken of the case of Jaishree Yadav vs. State of U.P., (2005) 9 SCC 788 (F) wherein the Hon'ble Apex Court has held as follows:

"20.....These shortcomings in the evidence of this witness will have to be considered in the background of the fact that this witness was subjected to nearly 217 questions over a period of 14 months i.e. his cross-examination starting on 14-8-1994 and ending on 28-11-1995. Both the courts below have taken judicial notice of this fact, not only in regard to this witness but in regard to other witnesses also and have come to the concurrent conclusion that when a witness is subjected to such lengthy arduous cross-examination over a lengthy period of time there is always a possibility of the witnesses committing mistakes which can be termed as omissions, improvements and contradictions, therefore, those infirmities will have to be appreciated in the background of ground realities which make the witness confused because of the filibustering tactics of the cross-examining counsel".

30. The oral evidence adduced by the prosecution in the form of P.W.1 and P.W.2 find force from the above mentioned observations of the Hon'ble Supreme Court. Hence, we do not find force in the submissions of learned counsel for the appellant that P.W.1 and P.W.2 both have made statements in hostile terms and as such they are not reliable witnesses.

31. Emphasis has been laid down by the learned A.G.A. for the State on decision titled Ashok Kumar Chaudhary. Vs. State of Bihar 2008 (61) ACC 972 (SC) wherein it has been held that if the testimony of an eyewitness is otherwise found trustworthy and reliable, the same cannot be disbelieved and rejected because certain insignificant, normal or natural contradictions have appeared in the testimony. If the inconsistencies, contradictions, exaggerations, embellishments and discrepancies in the testimony are only normal and not material in nature, then the testimony of an eyewitness has to be accepted and acted upon. Distinctions between normal discrepancies and material discrepancies are that while normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so.

32. So far as the hostile witness is concerned, the law is settled that if the prosecution witness has turned hostile, the Court may rely upon so much of his testimony which supports the case of the prosecution and is corroborated by other evidence as held in Sidhartha Vashisht @ Manu Sharma Vs. State (NCT of Delhi) 2010 (69) ACC 833 (Supreme Court) and many other judgments.

33. It has been argued by the learned A.G.A. that patal is a sharp edged weapon, the deceased was attacked by patal and she has got incised wound over her body, which is evident from the evidence of P.W.3 who has prepared the autopsy report and P.W.7 who has got the opportunity of medical examination of the deceased when she was injured and brought before him for the first time in this way the prosecution finds support from the medical evidence.

34. We find force in the submission of the learned A.G.A. for the State and in our opinion the prosecution case is proved by the medical evidence also. A perusal of inquest report Ex.A-2 is also desirable wherein the panchas has also opined that death of the deceased was caused by inflicting serious injuries by a sharp edged weapon.

35. So far as the topography of the place of occurrence is concerned, Ex.A-17 site plan has been prepared and proved by the P.W.8 the I.O. In the FIR it has been mentioned that the occurrence took place at the shop of the accused/ appellant. In the site map Ex.A-11 the place of occurrence is shown nearby the shop of the accused Anil. P.W.1 and P.W.2 both have categorically stated that when the deceased went to take a gas cylinder to the shop of the accused they had a quarrel and the offence was committed by the accused. P.W 2 has stated that the occurrence took place in front of shop of Saeed Nai. In the site plan EX. A-17, the same position has seen shown and the shop of the accused has also been shown nearby. P.W. 8 in his testimony has also stated that he has found the injured Archana from that very place of occurrence. The FIR also speaks the same, hence so far as the place of occurrence is concerned, the prosecution case is absolutely proved.

36. P.W.8 has also stated that when he got information about the accused surrounded by the public he immediately rushed to the place and arrested the accused with patal in his right hand and in presence of the recovery witnesses Namepal, Mahipal the murder weapon was recovered from the possession of the accused and recovery memo Ex.A13 was prepared, the memo of recovery Ex.A13 is on record which has been proved by P.W.8. Signatures of independent witnesses Mahipal and Nam Pal Singh have been obtained upon it. This recovery has been made on the very day of the occurrence. Although the learned counsel for the appellant has made it a ground to hit the prosecution case that recovery memo Ex.A13 has not been proved by any independent witness but in our view there was no necessity of corroboration of the statement of I.O. from any independent witness. P.W.8 in his deposition has clearly proved the factum of recovery of murder weapon from the accused and his arrest as well. He has named the witness Name Pal and Mahi Pal in his statement, who have endorsed there signatures upon the recovery memo.

37. Reliance has been placed by the learned A.G.A. on Mukesh Vs. State for NCT of Delhi & Others, AIR 2017 SC 2161 wherein it has been held that if any of the weapon etc. are recovered at the instance of the accused (under Section 27 Evidence Act) only in the presence of police party and there is no public witness to such recovery or recovery memo, the testimony of police personal proving the recovery and the recovery memo cannot be disbelieved merely because there was no witness to the recovery proceedings or recovery memo from the public particularly when no witness from public could be found by the police party despite efforts at the time of recovery.

38. The above mentioned case was a case of recovery under Section 27 of Indian Evidence Act but the present case is on a little different footing. Here the police arrested the accused on the basis of the information from an informer and recovered the murder weapon which he had taken with him and public witnesses were available to the police and their signatures were also obtained over the recovery memo.

39. Learned counsel for the appellant has assailed the testimonies of P.W.1 and P.W.2 on the ground that they are the witnesses related to the deceased being her brother and mother respectively and as such they are interested witnesses. It has also been argued that it has been stated in the version of P.W. 1 and P.W.2 that several other persons reached the spot at the time of occurrence but none of them was examined as prosecution witness.

40. Per-contra learned A.G.A. has vehemently argued that relationship is not a factor to discredit a testimony of a witness.

41. P.W. 1 in his cross examination has stated that the place of occurrence is situated at a distance of 15-20 steps from his house. He has also stated that he along with his mother reached the spot immediately. P.W.2 has also stated in her cross-examination that her house is situated at a distance of 20-25 steps from the place of occurrence. Hence the presence of P.W.1 and P.W.2 at the place of occurrence is natural and trustworthy.

42. In this context the Hon'ble Apex Court in Bhagwan Jagannath Markad Vs. State of Maharastra (2016) 10 SCC 537 has held that the testimony of a witness in a criminal trial cannot be discarded merely because the witness is a relative or family member of the victim of the offence. In such a case Court has to adopt a careful approach in analyzing the evidence of such witness and if the testimony of the related witness is otherwise found credible, accused can be convicted on the basis of the testimony of such related witness.

43. In Surinder Kumar Vs. State of Punjab (2020) 2 SCC 563 this principle has been reiterated by holding that merely because the prosecution did not examine any independent witness, would not necessarily lead to conclusion that accused was falsely implicated.

44. It is noteworthy that in the case in hand a careful scrutiny of the evidence of eye-witnesses P.W.1 and P.W.2 clearly shows that they are reliable and trustworthy witnesses and their evidence is found credible and acceptable.

45. Another submission made by the learned counsel for the appellant is regarding the genuineness of the FIR. To meet out this contention we carefully perused the contents of the FIR. The offence is said to have been committed on 18.8.2010 at about 5.00 pm and the FIR has been lodged about after 1 hour of the incident. On inquest report Ex.A-2 the case crime number has been clearly mentioned which again goes to show that at the time of inquest, FIR had been lodged.

46. P.W. 6 the scribe has proved the FIR and case registration G.D. as Ex.A-8 and Ex.A-9 in his evidence.

47. P.W. 10 has stated that when he wrote the written report as dictated by Jai Prakash it was not read over to him because he is a deaf person but when Ex.A-1 written report was shown to P.W.10 he admitted that the same was written on the dictation of P.W.9, Jai Prakash.

48. P.W.9 was declared hostile by the prosecution but his hostality hardly makes any difference because whatsoever has been narrated in the written report Ex.A.17, has been totally corroborated by P.W.10 the scribe of the written report and the contents of the written report have been mentioned in the FIR itself. The contents of the FIR have been proved by the ocular version of P.W.1 and P.W.2. Hence, the written report and FIR of the case are genuine documents. FIR is not after thought and it has been lodged without any delay after the occurrence.

49. Hence, we find no force in the contention of the learned counsel for the appellant so far as the genuineness of the FIR is concerned.

50. Our attention is drawn towards F.S.L report Ex. A-15 and A-16. The murder weapon patal, blood stained & plain earth and the clothes of the deceased recovered by the I.O. were sent to Forensic Science Laboratory for examination. All the aforesaid materials have been produced during course of evidence before P.W.8, I.O., who has proved them as Material Ex.A-1 to material Ex.A-14. The F.S.L. report Ex.A-15 and A-16 are also on record. A perusal of Ex. A-16 shows that human blood was found on the murder weapon as well as clothings and peace of earth in the serological examination. Ex.A-15 is the returning memo of the materials which were sent for examination. The aforesaid expert report Ex.A-16 also favours the prosecution case.

51. Considering the evidence of the witnesses and also considering the medical evidence including post mortem report, there is no doubt left in our mind about the guilt of the present appellant. However, the question which falls for our consideration is whether, on reappraisal of the peculiar facts and circumstances of the case, the conviction of the appellant under Section 302 of I.P.C. of the Indian Penal Code should be upheld or the conviction deserves to be converted under Section 304 Part-I or Part-II of the Indian Penal Code. It would be relevant to refer Section 299 of the Indian Penal Code, which reads as under:

"299. Culpable homicide: Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."

52. The academic distinction between ''murder' and ''culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts 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 of I.P.Code. 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.

INTENTION

(a) with the intention of causing death; or

(1) with the intention of causing death; or

(b) with the intention of causing such bodily injury as is likely to cause death; or

(2) with the intention of causing such bodily injury as the offender knows to be likely to

cause the death of the person to whom the harm is caused;

KNOWLEDGE

KNOWLEDGE

(c) with the knowledge that the act is likely to cause death.

(4) with the knowledge that the act is so immediately dangerous

that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.

53. The evidence available on record carries us to the conclusion that the incident was not a pre-motivated one. It was a result of a sudden quarrel. Whilst deprived of power of self control and sudden provocation, the accused offender caused the death of his wife when the deceased gave him provocation. The ocular evidence goes to show that when the deceased came to the shop of the accused a quarrel took place between the two and the accuded depriving of the power of the self control by grave and sudden provocation committed the crime with the intention of causing death of the deceased.

54. On overall scrutiny of the facts and circumstances of the present case coupled with the opinion of the Medical Officer and considering the principle laid down by the Apex Court in the Case of Tukaram and Ors Vs. State of Maharashtra, reported in (2011) 4 SCC 250 and in the case of B.N. Kavatakar and Another Vs. State of Karnataka, reported in 1994 SUPP (1) SCC 304, we are of the considered opinion that the offence would be one punishable under Section 304 part-I of the IPC.

55. In view of the aforementioned discussion, we are of the view that this appeal has to be partly allowed, hence, is partly allowed.

56. The conviction of the appellant under Section 302 of Indian Penal Code is converted to conviction under Section 304 (Part I) of Indian Penal Code and the appellant is sentenced to undergo 10 years of incarceration with fine, reduced to Rs.10,000/-. Default sentence is reduced to three months.

57. Appellant-accused is in jail. If ten years of incarceration is over, he shall be released forthwith, if not required in any other case. He would be entitled to all kind of remissions. The judgement and order dated 12.02.2013 shall stand modified accordingly.

Order Date :- 14.9.2022

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