Ram Saran @ Balli vs State
2011 Latest Caselaw 1584 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                     Reserved on: 4th March, 2011
                                                Date of Decision: 21st March, 2011
+    CRL. A. 19/1998

        RAM SARAN @ BALLI                       ...APPELLANT
                      Through: Mr. K.L.Chaudhary, Advocate

                                      Versus
          STATE                                      ...RESPONDENT
                               Through: Mr. Lovkesh Sawhney, APP for the State.

        CORAM:
        HON'BLE MR. JUSTICE S. RAVINDRA BHAT
        HON'BLE MR. JUSTICE G.P.MITTAL

        1. Whether reporters of local papers may be
           allowed to see the Order?                               Yes
        2. To be referred to the Reporter or not?                  Yes
        3. Whether the Order should be reported
           in the Digest?                                          Yes

                                JUDGMENT

G.P. MITTAL, J.

1. Appellant Ram Saran @ Balli impugns the judgment dated 31.07.1997 and the order on sentence dated 04.08.1997, whereby he was convicted for the offence punishable under Section 302 of the Indian Penal Code („IPC‟) and was sentenced to undergo imprisonment for life and to pay fine of `500/-. In default of payment of fine, the Appellant was sentenced to undergo further Rigorous Imprisonment for one month.

2. The gravamen of the charge against the Appellant is that on 01.01.1995 at about 10.30 P.M. near Holy Cross School, Opposite Petrol Pump, Nangloi Road, Najafgarh, he had inflicted stab injuries on the person of Jaggu Ram (the deceased) with the intention of causing his death.

3. According to the prosecution version, the Appellant and the deceased were neighbours. On 01.01.1995 at about 10:20 P.M., the deceased felt

disturbed by the high volume of the sound of a tape recorder, played by the Appellant Ram Saran oblivious of the fact that it was going to be his last sleep. The deceased woke up and objected to the Appellant playing the tape recorder at a high volume as it disturbed his sleep. The Appellant did not take it kindly; rather he took offence to it and slapped the deceased. The deceased felt humiliated and, therefore, accompanied by his sons PW-2 Hari Kishan and PW-3 Prem proceeded to the Police Station to lodge a report against the Appellant.

4. At about 10:30 P.M. they reached near Holy Cross School (close to the Petrol Pump). The Appellant appeared from behind, armed with a knife. He (the Appellant) attacked the deceased with the said knife on his back, left shoulder and the leg and then escaped. The deceased fell down. PWs 2 and 3 removed their father (the deceased) to the nearby Primary Health Centre (PHC), Najafgarh for immediate medical attention. PW-8 Dr. Rajeev Sodhi found the patient (the deceased) "unconscious; gasping in state of shock with cold skin; cyanosis; the patient was put on dopamine drips and cardiopulmonary resuscitation attempted; intra nasal oxygen; high pressure was started; intra thoracic needle inserted at second intercostals space left side." But, in spite of these measures, the patient did not respond to the treatment and expired at 11:00 P.M.

5. PW-10 Inspector Jagmal Singh (IO) reached PHC, Najafgarh and found that Jaggu Ram had been declared dead by the doctor. He met Hari Kishan and Prem, sons of Jaggu Ram.

6. The IO recorded statement Ex.PW-2/A of PW-2 Hari Kishan regarding the incident and sent the rukka to the Police Station for registration of the case. He reached the spot; prepared rough sketch Ex.PW-10/A at the instance of PW-2 Hari Kishan; seized blood stained earth, control earth; conducted inquest proceedings; got the autopsy conducted on the dead body and completed other formalities during investigation of the case.

7. The Appellant pleaded not guilty to the charge under Section 302 IPC framed against him.

8. The prosecution, in order to prove its case, examined 11 witnesses including PW-2 Hari Kishan and PW-3 Prem, sons of the deceased and eye witnesses of the occurrence, PW-6 Dr. L.K. Barua, who conducted autopsy on the dead body, PW-8 Dr. Rajeev Sodhi, who had, in vain, tried to revive the deceased and PW-10 Inspector Jagmal Singh, IO of the case.

9. On close of the prosecution evidence, the Appellant was examined under Section 313 Cr.P.C. in order to provide him an opportunity to explain the incriminating evidence appearing in prosecution case.

10. The Appellant‟s case is of simple denial of the prosecution version. He took the plea that he had been falsely implicated in the case in connivance with the complainant. He did not cite any reason for his false implication. He declined to produce any evidence in defence.

11. By the impugned judgment, the Trial Court repelled the contention raised on behalf of the Appellant that PWs 2 and 3 (sons of the deceased) were not eye witnesses of the occurrence or that their testimony should not be believed being relatives of the deceased. The Trial Court found the testimony of the two eye witnesses to be reliable and credible. The Trial Court held the case of the prosecution had been established. Thus, the Trial Court convicted and sentenced the Appellant as indicated earlier.

12. We have heard Mr. K.L.Chaudhary learned counsel for the Appellant, Mr. Lovkesh Sawhney, learned Additional Public Prosecutor (APP) for the State and have perused the record.

13. It is argued by the learned counsel for the Appellant that the presence of PWs 2 and 3 at the spot at the time of occurrence is doubtful. PW-2 in his

statement Ex.PW-2/A made to the police on the basis of which the FIR was registered, had stated about infliction of just one injury whereas as per Post Mortem Report Ex.PW-6/A there were as many as three injuries on the person of the deceased. It is urged that as per PWs 2 and 3 they had carried their deceased father to PHC Najafgarh in their arms and their clothes were blood stained. If this were true, their blood stained clothes ought to have been seized by the IO. The non seizure of their clothes belies their presence at the time of the occurrence. In support of the contention, reliance is placed on 'State of Rajasthan v. Teja Singh', 2001 (3) SCC 147.

14. It is pleaded that as per PW-8, the patient was brought to PHC Najafgarh by a police personnel Hari Kishan. If, PWs 2 and 3 had accompanied the deceased to the hospital, their presence would have been recorded. This also shows that PWs 2 and 3 had not witnessed the occurrence.

15. It is further contended that the incident had taken place in the street, allegedly near a Petrol Pump. However, no public person was examined in support of the prosecution version. It is urged that it would be highly unsafe to rely upon the testimonies of the relatives who are interested witnesses.

16. It is true that in the first statement Ex.PW-2/A Hari Kishan (PW-2) has mentioned that Ram Saran came from behind and inflicted a knife blow at the back of his father. However, it has to be kept in mind that the incident had taken place at about 10:30 P.M. during winter (on the night of 01.01.1995). The deceased was immediately rushed by his two sons to PHC Najafgarh where despite the necessary medical aid the deceased could not be revived. The incident happened unexpectedly. PWs 2 and 3 who are the sons of the deceased must have been taken by surprise by the turn of events. They were shocked and somehow wanted to save the life of their father; without waiting for any conveyance they lifted their father

and took him to the PHC Najafgarh which was at a distance of half a kilometre. One can well imagine the state of mind of the two sons carrying their seriously injured father to a nearby Health Centre/Hospital in their arms just praying that he would somehow survive.

17. The statement Ex.PW-2/A was recorded immediately after his (PW-2‟s) father‟s death. He, therefore, could be expected to give all the details at that time. Moreover, the witnesses PWs 2 and 3 were not confronted with their previous statements. Had it been so, they might have come forward with some explanation for stating one injury being inflicted to the deceased in Ex.PW-2/A. .

18. The contention of the learned counsel for the Appellant that the deceased was removed to PHC Najafgarh, by police personnel Hari Kishan, in our opinion, is misconceived. It is true that PW-8 Dr. Rajeev Sodhi, who had medically examined the deceased at PHC Najafgarh, deposed that one police personnel had brought the patient Jaggu Ram, aged 45 years to the PHC. However, a perusal of the MLC Ex.PW-8/B shows that Jaggu Ram was "brought by Hari Kishan". It is nowhere stated in the MLC that any police personnel was present or had brought Jaggu Ram to PHC. It is further recorded on Ex.PW-8/B "Alleged h/o being stabbed on the back as stated by relatives". From Ex.PW-8/B it is clear that Jaggu Ram was brought by Hari Kishan and that the history of being stabbed was given by the relatives of Jaggu Ram. It seems that Dr. Rajeev Sodhi (PW-8) somehow mixed up the information sent to the police after five minutes of the arrival of Jaggu Ram with the initial words, "brought by Hari Kishan".

19. This view is also fortified by cross-examination of Dr. Rajeev Sodhi when he stated that "I do not remember if the police personnel Hari Kishan who brought Jaggu Ram injured to PHC was in police uniform or not". He also admitted that "I did not mention the belt number of the Constable Hari Kishan who had brought the patient in PHC." It is unfortunate that

the learned APP examining the witness also lost track of what was actually recorded in the MLC Ex.PW-8/B and did not seek any clarification from PW-8 Dr. Rajeev Sodhi.

20. Even if, it is assumed that Jaggu Ram was brought to PHC Najafgarh by a police personnel, the same is immaterial in view of the fact that the presence of the relatives is recorded.

21. As per the prosecution case, the deceased had suffered three injuries and blood had fallen at the spot. Blood stained earth and control earth were also lifted from the spot. There is no gainsaying that if the deceased was removed to PHC Najafgarh by PWs 2 and 3 in their arms, as is the prosecution case, their clothes were bound to be bloodstained. Admittedly, their clothes were not seized by the IO.

22. It is true that seizure of blood stained clothes was an important aspect of the investigation; the same however, does not affect the prosecution case because the factum of PWs 2 and 3 carrying their deceased father to PHC is established by the MLC Ex.PW-8/B. 'State of Rajasthan v. Teja Singh', relied upon by the learned counsel for the Appellant is not relevant in this case and is distinguishable because there was no other evidence in that case, to establish the presence of the eye witness who had allegedly carried the injured to the hospital. Statement of one of the eye witnesses was recorded after five days of the incident though he was available in the village. The other eye witness had not even mentioned the name of the assailants to DW-1 Ram Pratap. It was in such circumstances that the Supreme Court held that the High Court was justified in not placing any reliance on the evidence of three eye witnesses without any independent corroboration.

23. It is argued that the prosecution has examined two eye witnesses in this case. Both these witnesses i.e. PWs 2 and 3 are sons of the deceased. They are interested witnesses. It would be unsafe to rely upon their

testimony without corroboration from any independent witness in a serious offence like the present one.

24. As stated earlier, the incident had taken place on a wintery night at 10:30 P.M.. Normally, people are in-doors on chilly nights at this hour. It is therefore, reasonable to presume that no public person had seen the incident.

25. In „State of A.P. v. S. Rayappa & Ors.', 2006 (4) SCC 512, it was observed

that merely because the witnesses were related to the deceased, they cannot be

called interested witnesses and on that ground, their testimonies cannot be

discarded. It was held as under:-

"7..............The relative witness is not necessarily an interested witness. On the other hand, being a close relation to the deceased they will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against somebody and screen the real culprit to escape unpunished. The only requirement is that the testimony of the relative witnesses should be examined cautiously.........."

26. Similarly, in „Dharindhar v. State of U.P. & Ors', 2010 (7) SCC 759, the Supreme Court observed that a relation witness cannot be said to be an interested witness because he has no axe to grind against an accused. It would be appropriate to extract the observations of the Supreme Court hereunder:-

"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".

While referring Ram Bharosey v. State of U.P. (2010) 1 SCC 722, the Supreme Court further observed in Para 13:-

"13. ............ 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............"

27. It is canvassed by the learned counsel for the Appellant that according to prosecution version while proceeding to the Police Station for making a complaint against the Appellant the deceased was accompanied by his two sons PWs 2 and 3. Admittedly, the Appellant was all alone. It is urged that it is highly improbable that PWs 2 and 3 would neither intervene nor try to apprehend the culprit.

28. As per prosecution version, the incident had taken place very swiftly. The dispute was on a small issue of playing the tape recorder by the Appellant at high volume. The injuries were sustained by the deceased before PWs 2 and 3 could react. Once their father had sustained injuries, they must be interested only in saving their life than in apprehending the Appellant or any such thing. Thus, there is nothing unnatural in PWs 2 and 3s‟ conduct in removing their father to a nearby hospital than indulging in anything else. Moreover, the Appellant was armed with a knife whereas the deceased and PWs 2 and 3 were empty handed. The natural conduct of the PWs 2 and 3 would be not try to apprehend the Appellant, to avoid any further injury to their father or to themselves.

29. It is contended on behalf of the Appellant that there is contradiction in the statements of PWs 2,3,5 and 7 in the manner the dead body was removed to the Mortuary. PW-2 testified that from the hospital (PHC Najafgarh) they accompanied the dead body of their father to Mortuary, Subzi Mandi in a government vehicle. SI Tirath Ram and Constable M.L. Meena also accompanied them in the Jeep to the Mortuary. PW-3, on the other hand, stated that he and his brother Hari Kishan went to the Mortuary from the hospital in a three wheeler scooter. Later, he stated that one Police Gypsy

had brought them to the mortuary. PW-7 deposed that he did not know who had paid fare for the Tata vehicle in which they had gone to the Mortuary. Again PW-5 stated that the dead body was taken to the Mortuary, Subzi Mandi in a Police Gypsy. In our view, this discrepancy in the evidence of the two eye witnesses and police witnesses cannot be said to be material. It is not in dispute that Jaggu Ram had been declared dead on 01.01.1995 at 11:00 P.M. in PHC Najafgarh because of the injuries inflicted with a sharp object. It is also not disputed that the dead body was removed to the Mortuary, Subzi Mandi where postmortem examination was conducted by PW-6 Dr. L.K. Barua on 02.01.1995. Thus, if two sons of the deceased or the two police officials were at variance on the time or on the vehicle in which the dead body was carried, the same is immaterial. Rather, this shows that some variations are bound to occur in the testimony of truthful witnesses.

30. In „State of H.P. v. Lekh Raj', 2000 (1) SCC 247, the term „discrepancy‟ was distinguished from contradiction. It was held that minor discrepancies or variations in evidence will not make the prosecution case doubtful. In the normal course of human conduct some minor discrepancies are bound to occur which render credence to their depositions.

31. In a latest report in „Bhagwati Prasad v. State of M.P.', 2010 (1) SCC 697, the Supreme Court emphasized that much importance cannot be given to minor discrepancies in the statement of witnesses.

32. In our view, the testimony of two eye witnesses is consistent and trustworthy on the manner of inflicting injuries on the person of deceased Jaggu Ram. PW-2 categorically stated that the Appellant stabbed his father with a knife on his (deceased) back. He also stabbed his father on the left shoulder and the left leg. To the same effect is the testimony of PW-3 Prem. Thus, it is established beyond doubt that the three injuries

mentioned in Post Mortem Report Ex.PW-6/A were inflicted by the Appellant with a knife on the person of deceased Jaggu Ram.

33. Thus, we are of the view that the conclusion reached by the Trial Court that the injuries on the person of deceased Jaggu Ram were caused by the Appellant are based on proper appreciation of the evidence and is unassailable.

34. It is argued by the learned counsel for the Appellant that as per prosecution version, the quarrel had started as the deceased had taken offence to the playing of the tape recorder on a high volume by the Appellant. When the deceased made a grievance about the same, the Appellant slapped him. The deceased, therefore, wanted to make a complaint against the Appellant to the police and, therefore, proceeded to the Police Station along with PWs 2 and 3. The learned counsel for the Appellant argues that this further escalated the quarrel between the two. According to the learned counsel for the Appellant, there was no pre- meditation and the injuries were inflicted as a result of a sudden fight. The injuries were not inflicted on a vital part of the body. The doctor has not opined any particular injury or all the three injuries taken together to be sufficient to cause death in the ordinary course of nature. Rather, cause of death was opined to be "due to hemorrhagic shock resulted from the injuries". It is submitted that even if the prosecution case is accepted as it is, the case of the Appellant would be covered under Exception IV to Section 300 of the Code and he would be guilty of committing culpable homicide not amounting to murder.

35. In the scheme of the Penal Code, culpable homicide is genus and murder is species. All murders are culpable homicide but not vice versa. It is the knowledge or intention with which the act is done that makes difference in arriving at a conclusion whether the offence is culpable homicide or murder. The Supreme Court very aptly drew the distinction between

culpable homicide and murder in 'State of A.P. v. Rayavarapu Punnayya' (1976) 4 SCC 382, which was relied in a number of later judgments. It would be apt to extract the relevant paragraphs of the report in „Ruli Ram & Anr. v. State of Haryana' (2002) 7 SCC 691 as under:-

"9. 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 key words used in the various clauses of Sections 299 and

300. The following comparative table will be helpful in appreciating the points distinction between the two offences.

Section 299 Section 300 A person commits culpable Subject to certain exceptions homicide if the act by which culpable homicide is murder if the death is caused is done - the act by which the death is caused is done-

                                       INTENTION
                (a) with the intention of     (1) with the intention of causing
                    causing death; or             death; or
                (b) with the intention of     (2) with the intention of causing
                    causing such bodily           such bodily injury as the
                    injury as is likely to        offender knows to be likely
                    cause death; or               to cause the death of the
                                                  person to whom the harm is
                                                  caused; or
                                              (3) with the intention of causing
                                                  bodily injury to any person
                                                  and the bodily injury
                                                  intended to be inflicted is
                                                  sufficient in the ordinary
                                                  course of nature to cause
                                                  death; or

                                       KNOWLEGE

(c)with the knowledge that (4) with the knowledge that the the act is likely to cause act is so imminently dangerous death. 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.

10. 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.

12. 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 intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant v. State of Kerala, AIR 1966 SC 1874 is an apt illustration of this point.

13. In Virsa Singh v. State of Punjab, AIR 1958 SC 465, Vivian Bose, J. speaking for the Court, explained the meaning and scope of Clause (3). It was observed that the prosecution must prove the following acts before it can bring a case under Section 300, "thirdly". First, it must establish quite objectively, that a bodily injury is present; secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeded further, and fourthly, it must be proved that the injury of the type just described made up the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender".

36. Thus, it is to be seen that where an act is done with the intention of causing such bodily injury as is likely to cause death, it would be culpable homicide, but where the offender knows:-

(1) That his act is likely to cause death of a person to whom the harm is caused, or (2) Where the bodily injury is caused to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, the act would amount to murder.

37. A perusal of the testimony of two eye witnesses shows that the first injury was inflicted at the back, another injury on the shoulder and the third one on the leg. A perusal of the postmortem report and the testimony of PW-6 reveals that there was no injury on the leg. Perhaps injury No.2 "on the left inguinal placed obliquely" was presumed by PWs 2 and 3 to be on the left leg of the deceased. No injury was inflicted either on the neck or on the chest or even in the abdomen. PW-6 Dr. L.K. Baruwa after describing the injuries has stated that death was "due to hemorrhagic shock resulting from the injuries". Admittedly, neither any particular injury nor all the three injuries taken together were opined to be sufficient to cause death in the ordinary course of nature. Thus, in our opinion, the Appellant can be saddled with the intention of causing such bodily injury as is likely to cause death.

38. Even otherwise, we are of the view that the Appellant‟s case is covered under Exception IV to Section 300 of the Code.

39. To invoke Exception IV to Section 300 of the Code, the accused has to show that "(i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner."

40. The cause of quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is also not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner.

41. In „Smt. Sandhya Jadhav v. State of Maharashtra, (2006) 4 SCC 653, the Court held as under:

"9. ............. 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".

42. In 'Surinder Kumar v. Union Territory, Chandigarh, (1989) 2 SCC 217;

it was observed that, "where, on a sudden quarrel, a person in the heat of

the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly."

43. In Surinder Kumar (supra) there was a heated argument between the parties followed by utterance of filthy abuses. The appellant/accused got enraged, picked up a knife from the kitchen and gave one blow on the neck of the witness and three knife blows, one on the shoulder, the second one on the elbow and the third one on the chest of the deceased. The Supreme Court convicted the appellant under Section 304 of IPC.

44. In Prakash Chand v. State of H.P., 2004 (11) SCC 381, there was a quarrel between the deceased and the accused when the accused‟s dogs entered the deceased‟s kitchen. Consequent to the verbal altercation that ensued, the accused went to his room, took out his gun and fired a shot at the deceased, as a result of which pellets pierced the chest of the deceased, resulting in his death. It was held by the Supreme Court that proper conviction of the accused would be under Section 304 Part I of IPC and not under Section 302 thereof.

45. In Shaikh Azim v. State of Maharashtra, 2008 (11) SCC 695, the deceased and his son were present at their house alongwith other family members. They noticed some filth thrown in the backyard of their house from the side of the house of the accused and expressed their displeasure in this regard. The family members of the accused also abused them. One of the accused holding a stick, the other holding an iron rod and the third accused holding the stick, came out of their house and gave blows on the head of the deceased. When his son rushed to his rescue, the accused also gave injuries to him with iron rod and sticks. The deceased succumbed to the injuries caused to him. It was held that the appropriate conviction of the appellant/accused would be under Section 304 Part I of the IPC.

46. It is not the prosecution case that there was any previous enmity between the Appellant and the deceased or between the two families. There was an altercation between the Appellant and the deceased. The Appellant perhaps thought that the deceased had no right to object to his playing the tape recorder at his will and, therefore, slapped the deceased. It was at this moment that the Appellant followed the deceased, unbeknown and caused injuries on the person of deceased. Of course, three injuries were inflicted on the person of the deceased. Yet, considering that the injuries were not inflicted on the vital parts of the body, it cannot be said that the Appellant had taken undue advantage or had acted in a cruel manner.

47. In view of the foregoing discussion, we are of the view that the Appellant is liable to be convicted under Section 304, Part-I IPC instead of Section 302 IPC.

48. In the circumstances, of the case, the punishment of imprisonment for life is also altered to the Rigorous Imprisonment for seven years. Thus, the Appellant Ram Saran @ Balli is sentenced to undergo Rigorous Imprisonment for seven years and to pay fine of ` 500/- or in default of payment of fine to undergo Simple Imprisonment for one month.

49. Appellant is directed to surrender before the Trial Court on 6th April, 2011 to serve the remaining sentence. A copy of the order be sent to the Trial Court for information and necessary action.

(G.P. MITTAL) JUDGE

(S. RAVINDRA BHAT) JUDGE MARCH 21, 2011 vk