Bombay High Court

Sahebrao Munjaji Ingole vs The State Of Maharashtra on 12 October, 2017

Bench: S.V. Gangapurwala

                                       (1)                           cri. appeal  120.01

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD


                     CRIMINAL APPEAL NO. 120 OF 2001


     Sahebrao Munjaji Ingole,
     Age: 27 years, Occ.: Agriculture,
     R/o Tembhurni, Taluka Basmath,
     District Parbhani.                                   ...      Appellant

                      Versus

     The State of Maharashtra                             ...      Respondent
     through APP High Court
     Bench at Aurangabad
                                  -----
Mr. S.S. Bora, Advocate for the Appellant.
Mrs. A.V. Gondhalekar, APP for respondent-state.
                                  -----

                                   CORAM :   S.V. GANGAPURWALA &
                                             MANGESH S. PATIL, JJ.

RESERVED ON : 18.08.2017 PRONOUNCED ON : 12.10.2017 ...

JUDGMENT: (Per Mangesh S. Patil, J.)

. This is an appeal by the accused against his conviction by the

learned Sessions Judge, Parbhani in Sessions Trial No. 200 of 2000,

whereby, the learned Sessions Judge has convicted him under Section

(2) cri. appeal 120.01

302 of the Indian Penal Code and sentenced to suffer life imprisonment

and fine of Rs. 1,000/- in default, further R.I. for one month. For the

sake of convenience the appellant is hereinafter referred to as the

'Accused' and the witnesses are referred by their names and numbers in

the Trial Court.

2. Shorn of details, the prosecution case is to the effect that the

deceased Vilas was resident of village Tembhurni. The accused is also

resident of the same village. Since about a year before the incident

there was dispute between both of them on the ground of control over

local Devasthan. On 05.06.2000, Vilas had gone to Basmath. At about

6.00 to 6.30 p.m. a quarrel ensued between him and the accused near

Golai Chowk situated in the vicinity of Nagar Parishad building of

Basmath. Sahadu (PW-2) and Kerba (PW-3) attempted to separate both

of them, but the scuffle continued in which, the accused, all of a sudden

took out a button knife from his pocket and stabbed deceased Vilas

number of times on the chest and abdomen region. The accused then

ran away with the knife. Vilas collapsed on the spot in the pool of blood.

He was shifted to the Rural Hospital at Basmath which was also nearby

the spot of incident.

(3) cri. appeal 120.01

3. Sahadu (PW-2) lodged a report in the police station at about

7.00 p.m. In pursuance thereof Crime No. 75 of 2000 was registered

under Section 307 of the Indian Penal Code. PSI Munde (PW-10) took

over the investigation.

4. Unfortunately, Vilas died in the Civil Hospital at Nanded. An

inquest panchnama was drawn and Dr. Kagne (PW-1) performed the

post-mortem examination, as per the Post-Mortem Report (Exhibit-8).

He certified the cause of death as shock due to stab injuries. He found

following injuries:

17. Surface wounds and Injuries- 1. Stab wound of 2 cm. x 1 cm. Their nature, position, dimensions Cavity deep (on dissection) (measured) and directions to be involving Rt. Upper lobe of lung. accurately stated - their probable age Located 4 cm above & lateral to and causes to be noted. nipple (Rt) betn. 2Nd & 3rd rib (2nd ICS). Oblique & directed medially downwards. Elliptical in shape.

Reddish.

If bruises be present what is the 2) Stab wound of 2 cm. x 2 cm. condition of the subcutaneous tissues? x cavity deep. Directed medially downwards. Located betn 5th & 6th (N.B.)- When injuries are numerous ribs (5th ICS); 4.5 cm. meidally and can not be mentioned - within the below Rt. Nipple, oblique, elliptical space available they should be in shape, involving the liver after mentioned on a separate paper which cutting pleura and diaphgram.

     should be signed).                     Reddish.

                                              3)    Incised wound of 2 cm. x 1
                                              cm. x muscle deep over Rt. Side of
                                              abdomen 12 cm. below injury no.2;





                                     (4)                               cri. appeal  120.01


                                       Reddish.

                                       4)      Incised wound at Right hand
                                       palmer aspect of middle & ring
                                       finger, transversly placed at
                                       1.5 cm x 0.5 cm x muscle deep
                                       1.5 cm x 0.5 cm x muschel deep.
                                       Reddish
                                       E/o venisection at left ankle medial
                                       aspect.

5. Dr. Tambhade (PW-12) recorded history by making inquiry

with Vilas. With some difficulty Vilas stated that one Saheb Munjaji

Ingole - son of Pahilwan had caused the injuries by using Khatkyacha

Chaku (button knife). Dr. Tambhade (PW-12) recorded the statement in

the M.L.C. register (Exhibit-39). He then prepared case paper and

written the history narrated by Vilas thereon. When the police solicited

opinion from Dr. Tambhade (PW-12), about condition of Vilas in writing,

he certified that Vilas was not in a position to give statement. Dr.

Tambhade (PW-12) then referred Vilas to Civil Hospital at Nanded.

He also recorded that all these injuries were anti-mortem.

Since the incident had occurred within the jurisdiction of Basmath Police

Station, the inquest and the post-mortem report were forwarded to the

Basmath Police Station.

(5) cri. appeal 120.01

6. The Investigating Officer P.S.I. Munde (PW-10) went to the

spot on the next day i.e. 06.06.2000, drew the spot panchnama

(Exhibit-22). He then recorded the statement of Kerba (PW-3) and other

witnesses, seized the clothes of the deceased Vilas and arrested the

accused on the same day.

7. According to the prosecution, on 07.06.2000 the accused

produced his blood stained clothes which he was wearing at the time of

incident which were seized from his house at Tembhurni under a

panchnama. The accused then agreed to discover the knife used by him

in the crime. Accordingly his statement was recorded in presence of

panchas and he then discovered the knife from his hut in his field. The

knife was having blood-stains and it was also seized under panchnama.

8. All the articles were forwarded for chemical analysis. Further

investigation was carried out and the offence punishable under Section

302 of the Indian Penal Code was registered and in due course of time

the accused was charge-sheeted. Subsequently, the matter was

committed to the Sessions Court. After conducting the trial the learned

sessions Judge by his impugned judgment and order convicted and

(6) cri. appeal 120.01

sentenced the accused as mentioned herein-above.

9. We have heard the learned Advocate for the accused, as well

as, the learned Assistant Public Prosecutor, at sufficient length.

10. Before proceeding to discuss the evidence, it will not be out

of place to mention here that neither during the course of trial nor before

us any dispute has been raised as regards the cause of death, being

homicidal one. The evidence of Medical Officer Dr. Kagne (PW-1) and his

opinion in the post-mortem report (Exhibit -8), make it abundantly clear

that there were multiple incise injuries sustained by deceased Vilas and

he had succumbed to those injuries, which were all ante-mortem. We,

therefore, do not find it necessary to deal with this aspect of the matter

any more.

11. According to the learned Advocate for the accused Mr. Bora,

there is no sufficient and clinching evidence, as regards the actual

incident. The evidence as regards the spot of incident is also

inconsistent. Inspite of the fact that the incident having occurred in a

busy place, no independent witness was examined. The two eye

witnesses Sahadu (PW-2) and Kerba (PW-3) are related to the deceased

and Sahadu (PW-2) has turned hostile to the prosecution and except

(7) cri. appeal 120.01

admitting his signature on the F.I.R., he has not supported it. The

conduct of Kerba (PW-3) in not approaching the police or informing his

own family members about the incident improbabalises his presence at

the spot. The C.A. report is inconclusive. The discovery under Section

27 of the Indian Evidence Act has also not been duly established.

Additionally, the learned Advocate vehemently objected to the procedure

followed by the learned Sessions Judge in admitting the evidence in the

form of M.L.C. register (Exhibit-39), without there being any explanation

as to why such a clinching material was not gathered by the

Investigating Officer during the course of investigation. According to the

learned Advocate this circumstance needs to be totally discarded. Thus

according to the learned Advocate, the prosecution has miserably failed

to bring cogent and reliable evidence, to bring home the guilt beyond

reasonable doubt.

12. Per contra, the learned Assistant Public Prosecutor submitted

that though the complainant Sahadu (PW-2) has turned hostile to the

prosecution, he has admitted his presence at the spot as also his

signature on the F.I.R. (Exhibit-14). Besides Kerba (PW-3) has witnessed

actual incident and his subsequent conduct is compatible with the

conduct of a man of ordinary prudence. Except the fact that he is related

(8) cri. appeal 120.01

to the deceased Vilas, nothing could be brought on record to discredit his

version.

13. As regards the statement of deceased Vilas recorded by Dr.

Tambhade (PW-12) is considered, according to the learned A.P.P., no fault

can be found with the Medical Officer in bringing on record such material

in the form of history of the patient recorded by him during the ordinary

course of his duties. Even if it can be said that the Investigating Officer

could have conducted the investigation in more prudent manner, any

lapses on his part cannot be taken aid of in dislodging this circumstance,

wherein, deceased Vilas had narrated the incident, wherein he attributed

authorship of the injuries to the accused. The learned A.P.P. also pointed

out that such evidence was allowed to be brought on record by the

accused without any objection. When the prosecution was leading

evidence and attempted to bring such documents on record, in the form

of extract of M.L.C. register, no objection was taken by the defense and it

is for the first time that the objection is being raised in this appeal.

Thus, according to the learned A.P.P., though, there are some infirmities

in the investigation and in the evidence brought on record, the evidence

which is available is sufficient enough to justify conviction.

(9) cri. appeal 120.01

14. As was done before the learned Sessions Judge, the learned

Advocate for the accused submitted that Sahadu (PW-2) having turned

hostile to the prosecution, his evidence is of no avail. True it is that

Sahadu (PW-2) has turned hostile to the prosecution and has not

supported it for proving the contents of the F.I.R. (Exhibit-14). But then

there is an entry in respect of such lodging of F.I.R. taken in the station

diary at the police station. The learned Sessions Judge has taken

necessary precaution in directing the prosecution, to produce the station

diary. After going through the extract of the station diary (Exhibit-47),

we can safely conclude that in fact the F.I.R. (Exhibit-14) was registered

at the instance of none other than Sahadu (PW-2) at about 7.00 p.m. on

the very date of incident which occurred only about half an hour prior

thereto. Therefore even though this witness has turned hostile to the

prosecution, to the limited extent of lodging of the F.I.R. (Exhibit-14)

under his signature on the above mentioned date and time stands duly

established.

15. This takes us to the other eye witness Kerba (PW-3). In

consonance to the prosecution case he has stated about having

witnessed the incident. He has stated that he had gone to Basmath for

purchasing seeds and he saw that a quarrel was going on between the

( 10 ) cri. appeal 120.01

accused and deceased Vilas at about 6.00 p.m. In that scuffle the

accused gave two to four stabs of knife on the chest and hand of Vilas.

He then stated about having accompanied Sahadu (PW-2) to the Police

Station and thereafter police having reached the spot and Vilas having

been shifted to the Government Hospital at Basmath. True it is that he

has admitted his relationship with deceased Vilas. However, it is trite

that simply because a witness happens to be related to the deceased or

victim one cannot ipso facto discard his evidence. What is necessary is,

his evidence has to be appreciated with circumspection and not with

cynicism. In this respect following cases were cited before the learned

Sessions Judge on the point of appreciation of evidence of an interested

witness:

1) Ram Ashrit vs. State of Bihar 1981 Cri. Law Journal, Page 484.

2) Krishna and others vs. State 2000 Cri. Law Journal, Page 4956.

3) Panda Nana vs. State of Maharashtra 1979 Cri. Law Journal, Page

640.

4) Anil Phukan vs. State of Assam 1993 Cri. Law Journal, Page 1796.

5) Ramaji Surjya vs. State of Maharashtra 1983 Cri. Law Journal, Page

1105.

Suffice for the purpose to observe that we are satisfied by the

( 11 ) cri. appeal 120.01

manner in which the learned Sessions Judge has borne in mind the

principles laid down in this decisions while appreciating the evidence of

Kerba (PW-3).

16. Incidentally, Kerba (PW-3) is the only eye witness, the

complainant Sahadu (PW-2) having turned hostile. Name of Kerba

(PW-3) appears in the F.I.R. as an eye witness. As is observed above

though Sahadu (PW-2) has disowned it, the station diary entry

clinchingly proves about the F.I.R. having been lodged promptly within

short span of time, within half an hour after occurrence of the incident.

There could not have been any possibility of any concoction or fabrication

having entered in lodging the F.I.R. Thus presence of Kerba (PW-3) on

the spot, at the time of incident has been established to be natural. His

conduct in not disclosing the incident to his family members and instead

rushing to inform the incident to the father of deceased Vilas, Babarao

(PW-4) is also quite natural.

17. Some attempt was made on behalf of the accused to point

out that the evidence of Kerba (PW-3) as regards the spot of incident is

not compatible with the spot mentioned in the F.I.R. Even during the

course of trial a request was made on behalf of the defense to the

( 12 ) cri. appeal 120.01

learned Sessions Judge to personally inspect the spot of the incident.

The learned Judge conceded to the request and visited the spot, for

appreciating the evidence. He duly recorded notes of inspection and has

prepared a sketch. On the basis of such visit, the learned Sessions Judge

has duly appreciated the fact that apparently Kerba (PW-3) has stated

about the incident having occurred in front of Nagar Parishad Basmath

and the spot panchnama reads the place to be in front of Vaibhav Medical

Store. He has noticed that there is not much of distance between the

two places. The learned Judge has correctly appreciated that villagers

like Kerba (PW-3) would refer to the spot with reference to a more

renowned place rather than the names of stores or shops. We therefore

are satisfied in the manner in which the learned Sessions Judge has

appreciated these facts and has concluded that no capital can be made

out of such discrepancy.

18. We have independently scrutinized the evidence of Kerba

(PW-3) in the light of submission made before us and find no reason but

to concur with the observations and conclusions of the learned Sessions

Judge in accepting the testimony of Kerba (PW-3) while concluding that

his evidence is sufficient to attribute all the fatal injuries on the person of

deceased Vilas to the accused.

( 13 ) cri. appeal 120.01

19. This takes us to the principal argument advanced by the

learned Advocate for the accused, assailing the manner in which M.L.C.

learned Sessions Judge and the alleged statement recorded by Dr.

Tambhade (PW-12) wherein deceased Vilas allegedly made the

declaration attributing the injuries to the accused and which the learned

Sessions Judge has accepted as his dying declaration.

20. Indeed, this is the circumstance which needs a minute

scrutiny, for, without there being any basis in the investigation and

without any documents having been forwarded along with the charge-

sheet, these documents in the form of extract of M.L.C. register

(Exhibit-39) and the case papers (Exhibit-42) are brought on record

during the testimony of Dr. Tambhade (PW-12). Dr. Tambhade was

attached to the Rural Hospital Basmatnagar on 05.06.2000 . He has

deposed that at about 7.05 p.m. injured Vilas was brought to the hospital

and when he made enquiry for recording the history Vilas had disclosed

that the injuries were caused using kahtakcha chaku (button knife) by

Saheb Munjaji Ingole - son of Pahilwan. He has deposed about having

recorded statement of Vilas in his own hand writing on the M.L.C.

                                              ( 14 )                        cri. appeal  120.01

register (Exhibit-39).               He has stated about having maintained that

was brought on record during the course of trial and therefore one needs

to be very careful in scanning it. However, we find that during the course

of cross-examination of Dr. Tambhade (PW-12) nothing could be brought

so as to attribute some ulterior motive on his part, except the fact that

there is some over writing in mentioning the surname of the assailant

named by deceased Vilas. However, on the basis of such isolated

circumstance one cannot discard the evidence of such independent

witness in the form of a Medical Officer.

21. Certainly, there can be no justification and even no attempt was

made by the Investigating Officer PSI Munde (PW-10) as to why he failed

to collect such material evidence when it was available with the Medical

Officer. Some capital was sought to be made out for inaction of Dr.

Tambhade (PW-12) in not informing such history recorded by him to the

police. However, once we have found that the M.L.C. register (Exhibit-

39) was maintained in the ordinarily course of his duties and having

found that he has no axe to grind in the matter, we cannot attribute any

motive on his part for the inefficiency of the Investigating Officer. On the

( 15 ) cri. appeal 120.01

contrary, the very same argument would demonstrate as to how

independent this witness has been. If really he had some ulterior motive

in falsely implicating the accused, he would have obligated the

Investigating Officer by himself forwarding such clinching material

instead of keeping it lying in his hospital. We are, therefore, satisfied

that this piece of evidence has been brought on record at eleventh hour

but it was allowed to be brought on record without any demur and there

is no material to discredit it even otherwise.

22. The learned Advocate for the accused referred to the decision

in the case of State of Maharashtra vs. Ajay Dayaram Gopnarayan

and anr. 2014 (1) Mh.L.J (Cri.)293, wherein it has been laid down

that the documents which are not confronted to the defense by including

it in the list prepared under Section 294 of the Criminal Procedure Code

could not be exhibited. According to the learned Advocate, in view of

such observation, the evidence brought on record in the present case in

the form of M.L.C. Register (Exhibit-39) and the case papers (Exhibit-

42) through Dr. Tambhade (PW-12) should be discarded.

23. We have carefully gone through the decision but to our mind

the principle laid down therein is in altogether different context. In

( 16 ) cri. appeal 120.01

paragraph 28 following observations have been made:

"Let us now turn to the case at hand. The case at hand is typical example of such lapse on the part of the Presiding Officer as well as ministerial staff of the Sessions Court. The documents Exh.-87 and 88 were never included in the list Exh.-22 submitted by the prosecution under section 294 (1) of the Criminal Procedure Code that was given to the accused for admission or denial. We have carefully perused the list, which was prepared and submitted to the Court by the prosecution with a notice to the accused for admission and denial under section 294, Criminal Procedure Code but we find that the documents Exh.-87 and 88 (two pages) are not to be found in the list. Perusal of the record clearly shows that the Presiding Officer or the ministerial staff of the Court exhibited Exhs.-87 and 88 without verifying whether Exh.-87 and 88 were included in the list filed by the prosecution merely because counsel for the accused admitted Exhs.-87 and 88. Thus, there is a blatant violation of the aforesaid procedure elucidated by us above. It is said, the prosecution is a 'handmaid' of justice. In our opinion, that is not always so, as in the instant case, the provisions of section 294 (1) and (2) being mandatory. To sum up, we hold that Exhs.-87 and 88 cannot be read in evidence as contemplated by section 294 (3) and, therefore, we reject these documents Exh.-87 and 88."

As is apparent from the facts in that case that though the

documents were forwarded along with the charge-sheet and were

( 17 ) cri. appeal 120.01

available on the record those were not included in the list for recording

admission or denial as contemplated under Section 294 of the Code of

Criminal Procedure. It appears that only during the course of evidence,

documents purported to be papers to identify blood groups of the the

accused persons were got admitted from defense and those were not

included in the list submitted for recording admission and denial under

Section 294 of the Code of Criminal Procedure before the evidence of the

prosecution began. These documents were admitted by the learned

Advocate for the accused and were thus exhibited. On the basis of such

peculiar facts and circumstances, it was held that those documents which

had not been part of the list furnished while recording admission or

denial under Section 294 of the Code of Criminal Procedure could not be

exhibited by causally putting the documents for admission before the

Advocate for the accused.

24. With respect, the decision does not come to the aid of the

accused in the matter before hand. It nowhere prohibits any additional

material / evidence to be brought on record except through/ by following

the procedure prescribed under Section 294 of the Code of Criminal

Procedure. Section 294 of the Code of Criminal Procedure is not the only

gateway for a document to come on the record during a trial. The

( 18 ) cri. appeal 120.01

prosecution can in a fit case seek to produce a document on record. The

only precaution that needs to be taken is that it does not cause any

prejudice to the accused. As is observed earlier, in the matter before

hand, the M.L.C. register (Exhibit-39) and the case papers (Exhibit-42)

were brought by Dr. Tambhade (PW-12) and were duly proved by him.

Accordingly those were exhibited by the learned Sessions Judge, without

there being any objection raised by the defense. Therefore this decision

does not come to the rescue of the accused.

25. Once we have concluded that the evidence of Dr. Tambhade

(PW-12) is believable and even history recorded by him is quite natural

and believable, we see no reason not to accept the observations and the

conclusions of the learned Sessions Judge in convicting the accused on

the basis of such evidence. The learned Sessions Judge has correctly

appreciated the evidence available on record and has come to the right

conclusion in convicting the accused.

26. It is true that there are certain lapses in the investigation and

deficiencies in the evidence. The Investigating Officer P.S.I. Munde

(PW-10) has not collected the material which was available with Dr.

Tambhade (PW-12) and has not promptly recorded the spot panchnama.

( 19 ) cri. appeal 120.01

The panch witnesses have turned hostile and discovery sought to be

established under Section 27 of the Indian Evidence Act has also not

being duly proved. The question is not as to what ideally should be the

evidence. What is to be ascertained is as to whether whatever evidence

that is brought on record is cogent, reliable and sufficient to attribute

authorship of the crime to the accused. In the facts and circumstances,

we hold that there is no illegality and infirminty in the conclusion drawn

by the learned Sessions Judge in holding the accused guilty of the

offence.

27. As a last resort, the learned Advocate for the accused

submitted that since the incident had occurred pursuant to a scuffle

between the deceased Vilas and the accused, there was no pre-

determination and the incident had occurred due to sudden quarrel, the

accused may be given benefit of Exception 4 of Section 300 of the Indian

Penal Code by altering the sentence awarded to the one under Section

304 Part II. The learned Advocate in support of his submission referred

to the decision in the case of K. Ravi Kumar v. State of Karnataka

(2015) (2) SCC 638.

28. We have carefully gone through this decision wherein earlier

( 20 ) cri. appeal 120.01

decisions of the Supreme Court on the point of extending the benefit of

Exception 4 to Section 300 of the Indian Penal Code has been laid down.

These earlier cases are, Surinder Kumar V. Union Territory,

Chandigarh (1989) 2 SCC 217, Ghapoo Yadav & Ors. v. State of

M.P. (2003) 3 SCC 528, Sukbhir Singh v. State of Haryana (2002)

3 SCC 327, Mahesh v. State of M.P. (1996) 10 SCC 668 and recent

judgment in the case of Ankush Shivaji Gaikwad v. State of

Maharashtra (2013) 6 SCC 770.

29. We have gone through all these decisions. As has been

observed in the matter of K. Ravi Kumar (supra) whether an accused is

entitled to derive benefit of Exception 4 of Section 300 of the Indian

Penal Code mostly depends upon the facts and circumstances of each

case. The broad requirements for deriving the benefit can be

summarized as under :

                      a)       It was a sudden fight,
                      b)       There was no premeditation,
                      c)       The act was done in the heat of passion
                      d)       The accused has not taken undue advantage or
                               acted in cruel manner.

30. Applying these principles to the facts of the case before the

Supreme Court, the following observations have been made in the

( 21 ) cri. appeal 120.01

paragraph no.14 in Ravi Kumar's case (supra):

"14] Keeping in view the approach of this Court for giving benefit of Exception 4 to Section 300 Indian Penal Code in cases mentioned above and applying the same to the facts of this case, we are inclined to give benefit to Exception 4 to Section 300 Indian Penal Code to the Appellant by altering his sentence awarded to the Appellant punishable Under Section 304 Part II Indian Penal Code. This we say so in the facts of this case for more than one reason. Firstly, even according to the prosecution, there was no premeditation in the commission of crime. Secondly, there is not even a suggestion or we may say conclusive evidence that the Appellant had any predetermined motive or enmity to commit the offence against the deceased leave alone a serious offence like murder. Thirdly, incident that occurred was due to sudden quarrel which ensued between the Appellant-accused and the deceased-Padma on the issue of going to village Mandya to see the ailing Appellant's father. The Appellant, on receiving this news, had become upset and, therefore, his insistence to see his ailing father immediately was natural and at the same time, Padma's refusal to leave could lead to heated exchange of words between them. True, it is that it reached to its extreme inasmuch as the Appellant in heated exchange of words lost his mental balance and poured kerosene on Padma setting her to burn. However, the fact remains that it was an outcome of sudden outburst and heated exchange with no predetermined motive per se to kill her. Fourthly, no conclusive evidence was adduced by the prosecution to prove any kind of constant quarrel ever ensued in the last 9 long years between the couple and that too for a cause known to others which could lead to killing Padma or whether any unsuccessful attempt was ever made by the Appellant to kill her in past and lastly, we have not able to see from the postmortem report that any stab injury on Padma's body was caused nor prosecution was able to prove that any blood stained knief from the place of occurrence was recovered at the instance of the Appellant or of any witness."

( 22 ) cri. appeal 120.01

Ex facie, it is apparent that in the peculiar facts and circumstances

in the matter of obtaining the accused was extended the benefit of

Exception 4 of Section 300 of the Indian Penal Code and his conviction

was altered to Section 304 part II of the Indian Penal Code.

31. In the matter before hand, even by applying the principles

laid down by the Supreme Court in the aforementioned cases, we find no

sufficient and justifiable reason to follow the same course that was

followed in the case of K. Ravi Kumar (supra). In the matter at hand, as

is appearing from the post-mortem report (Exhibit-8), there were as

many as three stab/incised injuries including on the chest and abdomen

and some of which were so deep as to have punctured vital organ like

lung, liver such injuries would certainly show the intensity with which

these are caused and also sufficiently demonstrate the intention of

causing those. We have no hesitation in holding that the accused had

acted in a cruel manner. Besides unless there would have been

premeditation, the accused would not have carried a weapon like the