Delhi High Court

Mannu vs The State on 29 April, 2014

Author: Kailash Gambhir

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                    Judgment delivered on: April 29, 2014
+       CRL.A. 512/2000

        MANNU                                            ..... Appellant
                           Through:    Ms. Nidhi Raman, Amicus Curiae

                           Versus
        THE STATE                                      ..... Respondent
                           Through:    Mr. Sunil Sharma, APP for the
                                       State

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MS. JUSTICE SUNITA GUPTA

                               JUDGMENT

KAILASH GAMBHIR, J

1. By this appeal filed under section 374 of Criminal Procedure

Code, 1973 (hereinafter referred to as 'Cr.P.C.'), the appellant seeks to

challenge the impugned judgment dated 29.05.2000 and order on

sentence dated 30.05.2000 whereby the Appellant - Mannu was

convicted for committing an offence punishable under Section 302 of the

Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and was

sentenced to undergo rigorous imprisonment for life, further to pay fine

of Rs.10000 and in case of default, to undergo simple imprisonment for a

period of six months.

2. The facts germane to the case of the prosecution are that -

PW-3 H.C Chander Bhan while on patrolling duty at the Chabutra of Gurudwara Bangla Sahib received information from a devotee that a quarrel had taken place in the NDMC Park. The criminal law machinery in this case was set in motion by DD No. 14A (Ex. PW 18/A). On 14.06.1995, ASI Dharam Singh (PW-

18) was on emergency duty from 8 a.m to 8 p.m at P.S Parliament Street. Pursuant to the receipt of the aforesaid information he along with Constable Bhagat Ram (PW-13) reached at the spot i.e Jai Singh Road. At the spot one PCR Van, H.C Chander Bhan (PW-3), Constable Nirmal Singh, injured Shera and the appellant Mannu met him. Subsequently, ASI Dharam Singh (PW-18) took the injured in the PCR Van to R.M.L Hospital where the doctor declared the injured as brought dead. Thereafter, he along with the Addl. S.H.O reached at the spot where H.C. Chander Bhan handed over to him a kirpan along with the cover. The kirpan and cover of the kirpan were recovered at the spot and was sealed by A.S.I Dharam Singh. Thereafter, the investigation was handed over to the S.H.O, Gurnam Singh Randhawa. The accused was detained at the spot and he recorded the statement of HC Chander bhan. The rukka was sent for registration of the case. The photos of the scene of occurrence were taken. The I.O. inspected the spot, site plan was prepared, 'Tat' which was lying at the spot in the park was sealed in a parcel, along with the sample soil was also taken into possession. The old turban lying at the spot was taken into custody. Thereafter, he came to Jai Singh road near quarter no. 2. Some blood was lying at the spot. He also took sample of concrete from the spot. The accused mannu who was detained at the spot was sent for medical examination by ASI Dharam Singh. He recorded the statement of eye witness Prakash Chander. He recorded the statement of other witnesses. After his examination, the accused was brought back to the NDMC park and was arrested. His personal search was taken and after interrogation of

the accused, they went back to the police station. All the exhibits were deposited in the malkhana on 15.06.95. Accused was medically examined on 15.06.1995. The post-mortem of the deceased was conducted and the exhibits were sent for analysis and after completion of the investigation challan was filed.

3. To prove its case the prosecution examined as many as 19

witnesses. After the completion of prosecution evidence, statement of the

accused person was recorded under Section 313 of Cr.P.C. wherein the

entire incriminating evidence was put to him and in reply he pleaded

innocence and false implication.

4. On behalf of the Appellant - Mannu, arguments were addressed by

Ms. Nidhi Raman, Advocate (Amicus Curiae). The State was led by Mr.

Sunil Sharma, Learned Additional Public Prosecutor.

5. Addressing arguments on behalf of the appellant, Ms. Nidhi

Raman, Advocate categorised her submissions under various heads, the

same are outlined as under:-

I. Gaps, infirmities, contradictions and lacunae in the prosecution:

6. As per the counsel for the appellant the genesis of the prosecution

case is shrouded in mystery and the two eye-witnesses have been

introduced to make out a semblance of a case. The infirmities, gaps and

contradictions which were pointed out by the counsel for the appellant are

detailed as under:

a) The MLC(Ex PW6/A) of the deceased mentions that an

"unknown" person with alleged history of being found

unconscious on Jai Singh Road was brought to the casualty

at 11:30 p.m. on the night of 14.06.1995, however in the

deposition of PW-3 , it has been categorically stated that

the deceased did tell his name while on his way to the

hospital.

b) The DD entry to show that PW-3 H.C Chander Bhan was

on patrolling duty at that time at Gurudwara Bangla Sahib

was not produced and proved by the prosecution. Therefore,

there is nothing substantive on record to prove the presence

of Constable Jai Ram Singh at the spot.

c) As per the case of the prosecution, the deceased was

brought to the hospital by the PCR officials, ASI Dharam

Singh (PW-18) and Ct Bhagat Ram (PW-13). However,

names of none of these persons including ASI Dharam

Singh who was the senior most official finds mention in the

MLC. PW-7 Prakash Chander also claims that the deceased

was well- known to him and he knew the name of the

deceased. Further ASI Dharam Singh (PW-18) who claims

to have accompanied the deceased to the hospital has stated

in his statement that the deceased informed him that his

name was Shera, yet no one informed the doctor in the

hospital.

d) In the MLC it is recorded that an "unknown" person had

been brought dead by Constable Jai Ram Singh of PCR Van

with the alleged history of being found unconscious on Jai

Singh Road. The two police officials (PW-13 and PW-18)

who were travelling in the same PCR Van with the

deceased to the hospital gave absolutely two different

versions in their respective statements.

e) As per the prosecution case, the place of occurrence was

NDMC Park but the DD Entry, MLC and the Post Mortem

Report, all show that the deceased was found unconscious

on Jai Singh Road which clearly demonstrate that the scene

of occurrence was Jai Singh Road, Gurudwara Bangla

Sahib and not NDMC Park.

f) PW-5, Dr Sanjeev Tandon deposed that Injury No.2 (stab

wound) had pierced the left lung and the anterior wall of the

heart, yet the deceased was able to walk from the Park to Jai

Singh Road which according to the prosecution was at a

distance of 230 mtrs .

g) As per the prosecution's version, no call was received by

the PCR van, still it failed to establish how it reached at the

spot. This is clear from the evidence on record including the

evidence of PW-3, H.C Chander Bhan who stated that he

did not send any intimation to the Police Station nor made

any call to the PCR.

h) That the deceased did not reveal the name of the accused to

PW-3 H.C Chander Bhan nor made any statement regarding

the incident although he had ample time and opportunity to

do so.

i) When a suggestion was put to PW-3 H.C Chander Bhan in

his cross examination that if the accused made any attempt

to run away on seeing H.C Chander Bhan, because as per

the normal human conduct, the appellant if he was actually

involved in the crime, could not have gathered the courage

of continuing to fight and stab the deceased in front of a

police officer.

j) The MLC of the accused show that it was recorded at 3:30

a.m. however, the incident allegedly took place at 10:45

p.m. Evidence on record suggests that till 3:15 a.m. the

accused remained on the spot. The SHO has himself said

that Mannu, the accused herein was taken to the hospital at

3:15 a.m. Thus, the medical examination of the accused was

conducted after 4.5 hours when he could have been sent

immediately with the injured and this fact further casts a

doubt on the prosecution case.

k) The exhibits were sent to CFSL after more than 20 days of

the incident. Even the Rukka was sent to the Police Station

at 12:50 a.m., however the incident occurred at 10.45 p.m.

Thus the counsel urged that the case of the prosecution suffers

from proven improbabilities, infirmities and contradictions and

does not inspire confidence.

II. Ocular Evidence:

7. The story of the prosecution is that PW-3 H.C Chander Bhan while

on patrolling duty at the Chabutra of Gurudwara Bangla Sahib received

information from a devotee that a quarrel took place in the NDMC Park.

Counsel submitted that this "devotee" has not been named or produced in

the witness box. Hence the Hon'ble Court should draw adverse inference

against the prosecution for non- examination of material witnesses in the

case.

8. It is a settled law that where there is a gap or infirmity in the

prosecution case which could have been supplied or made good by

examining a witness who though available but was not examined, the

prosecution case can be termed as suffering from deficiency and

withholding of such a material witness would oblige the Hon'ble Court to

draw an adverse inference against the prosecution.

9. The statement and evidence of the alleged eye- witness PW-7

Prakash Chander lacks credence and reliability and his presence at the

spot is also highly doubtful. A reading of his testimony and the testimony

of H.C Chander Bhan clearly show that they were not present at the place

of occurrence. The name of Prakash Chander (PW-7) does not find

mention in the Rukka and the FIR. According to PW-7 about a month

prior to the incident there was a quarrel between the accused and the

deceased in which the accused sustained head injuries. This is entirely

false as the material/evidence on record show that the quarrel took place

between one Deepak tea stall owner and the accused a month prior and

not between the accused and the deceased "Shera".

10. It is pertinent to state here that there is no mention of the deceased

Shera in this DD entry. This can be clearly seen from DD No 17-A dated

05.05.1995. (Ex PW4/A). The owner of Deepak Tea Stall could have

thrown some light on the incident and was a material witness but was

conveniently discarded from being examined by the prosecution.

11. Furthermore, PW-7 stated in his cross examination that in the

alleged quarrel between the accused and the deceased had caused head

injury to the accused with the help of a crutch of another person.

However, his statement is patently false as the MLC of the accused shows

that there was no such head injury. In respect of PW-7 Prakash Chander it

is also very surprising that at 10:45 p.m he could see the incident very

minutely in the darkness of the Park when he himself is blind from one

eye.

12. It is also very intriguing that PW-7 as per his deposition was

always present whenever the accused was being beaten up or when he

was supposed to beat anyone. He seems to be an omnipresent witness in

the present case.

13. That the glaring discrepancies would be noticed in the testimonies

of PW-3 H.C Chander Bhan and PW-7 Prakash Chander with regard to

the narration of the incident which affect the very core of the

prosecution case. The statement of PW-7 implicating the accused

suffers from improbabilities, does not inspire confidence and is not free

from suspicion. Its non-corroboration by other witnesses or evidence

makes it a weak piece of evidence.

14. In these circumstances the ratio laid down by the Hon'ble

Supreme Court in catena of judgements is that when the prosecution

relies upon the testimony of a sole eye-witness, then such evidence has

to be wholly reliable and trustworthy and if the evidence of the sole eye-

witness is in conflict with the other witnesses, it may not be safe to make

such a statement as a foundation for the conviction of the accused.

Counsel in this regard referred to the following judgements of the

Hon'ble Supreme Court:

(i) (2012)4 SCC 722: Govindaraju alias Govinda vs State

(ii) (2005) 10 SCC 196: Pohlu vs State

III. Medical evidence and other evidence in support:

15. The whole story about the accused having wiped the blood on the

kirpan with his hands is a fabricated one. This is corroborated by the

CFSL Report which says that no blood was found on the kirpan. In

similar circumstances i.e. when no blood was found on the weapon of

offence, the Hon'ble Supreme Court and a Division Bench of this

Hon'ble Court have set aside the conviction of the Appellant. Reference

in this regard was placed on the following judgements:

(i) (2010) 13 SCC 706: Shaike Bade vs State of A.P

(ii) ILR Delhi Series 1986 Volume II: Imtiaz Ahmed vs State

16. The prosecution has also been unable to produce the blood stained

clothes of the accused. A version has been put forth that the accused was

in his undergarments at that point of time. The undergarment (Kachha)

has also not been produced. If the accused was actually sitting on the

chest of the deceased and giving kirpan blows, the undergarment would

have been soaked with blood. The undergarment (Kachha) was

admittedly not sent to CFSL.

17. That PW-3 HC Chander Bhan stated that when he took the

deceased from the Park to the road, the deceased was leaning upon him.

Even PW-7 Prakash Chander stated the same. However, even though the

deceased was bleeding profusely, surprisingly H.C Chander Bhan's

clothes not smeared in any blood stains casts a doubt on the prosecution

story. Thus it is manifest that PW-3 H.C Chander Bhan does not seem to

be a witness to the crime at all and has reached there only after

everything was over. To support this argument counsel placed reliance

on the following judgments:

(i) Khima Vikamshi & Ors vs State of Gujarat: (2003) 9 SCC 420 23(1983) DLT 478: Man Singh & Anr vs the State

(ii) ILR Delhi Series 1986 Volume II: Imtiaz Ahmed vs State

(iii) 52 (1993) DLT 351: Rishi Pal & Ors vs State

IV No motive

18. Counsel also submitted that the prosecution has failed to prove

any motive for the crime. According to the prosecution the dispute this

time was over a gunny bag. It is inconceivable that over a small piece of

'tat' and that too after the accused had already snatched it from the

deceased as per the testimony of PW-7, he ran after the deceased to kill

him.

V Conversion of sentence from 302 IPC to 304 (I) or (II) IPC

19. Lastly, it was submitted by the Learned Counsel that even if the

case of the prosecution is accepted at its best, it is a case covered under

Part II of Section 304 of the Indian Penal Code keeping in mind the

below mentioned significant features:

i. Admittedly there was a sudden fight which allegedly

happened between the Accused and the Deceased over a

piece of gunny bag.

ii. There was no pre-meditation: The accused was not carrying

any weapon with him and is alleged to have taken the

kirpan of the deceased to stab him.

iii. The alleged act has been committed in a fit of rage.

iv. The accused has not taken any undue advantage or acted in

a cruel manner.

v. Admittedly as per PW-3 HC Chander Bhan the accused did

not apprehend or know that the injured would die.

vi. The accused made no attempt to run away from the spot.

vii. There are no other criminal cases pending against the

accused in any other Court

Counsel submitted that reference in this regard could be made

to the following judgments of the Hon'ble Supreme Court:

(i) (2009)15 SCC 635: Gurmukh Singh vs State of Haryana

(ii)JT 2013(12) SC 28: Chandera @ Chandera Ram vs State of Chhattisgarh The counsel thus urged and prayed for the discharge of the

Appellant/accused to meet the interests of justice.

20. Per contra, learned APP for the State vehemently refuted the said

submissions of learned counsel for the appellant and contended that the

case of the appellant is an open and shut case based on the testimony of

two eye witnesses and both the testimonies remained coherent, cogent

and clinching throughout. They are also duly supported by the medical

and forensic evidence leaving no space for any doubts. Learned APP also

submitted that the learned trial court went into each and every aspect of

the material placed on record by the prosecution and the defence raised

by the accused at the time of recording of his statement under Section 313

of Cr. P.C. and counsel for the appellant has not been able to point out

any illegality or perversity in the reasoning given by the learned trial

court to convict and sentence the appellant for committing an offence

punishable under Section 302 IPC. Learned APP thus strongly urged that

the appeal filed by the appellant is devoid of any merit and the same may

be dismissed.

21. We have heard learned counsel for the parties at considerable

length and given our thoughtful consideration to the arguments advanced

by them. We have also perused the records of the learned Trial Court.

22. The incident took place near a devout place of worship, known for

its purity and religious beliefs, Gurudwara Bangla Sahib. Gurudwara

Bangla Saheb is the most prominent Sikh Gurudwara and is known for its

association of 8th Sikh Guru - Guru Harkishan Singh. The victim in the

present case was a sevadar at the Gurudwara Bangla Sahib. God creates,

we destroy, how true that is in our society that for some psychological

satisfaction, a human develops a tendency, an urge, fear or anxiety to rip

off a person's life in seconds and at that spur even forgets the outcome

that he would have to suffer at the hands of law, and that there can be no

escape from the clutches of law. Such was the fate of the deceased in the

present case, who was slaughtered by the accused. The incident took

place in the NDMC maintained park which adjoins the said Gurudwara.

As per the case of the prosecution, the tussle between the accused and the

victim was over a piece of gunny bag (taat) which was given by the

Management of the Gurudwara to the sewadars for sleeping purpose. The

night of 14th June 1995, was the peak of summers and probably due to

this reason, the accused was only wearing an underwear and there was no

other cloth on his body. HC Chander Bhan (PW-3) and Prakash Chander

(PW-7) are the star witnesses of the prosecution as they themselves had

seen the actual occurrence of crime on the night of 14 th June 1995 in the

NDMC Park of Gurudwara Bangla Saheb.

23. It is a settled legal principle that if the evidence of an eye witness is

found cogent, truthful and reliable then, his sole testimony can lead to the

conviction of an accused person (Ref: Sunil Kumar v. Sate of Govt. of

NCT of Delhi(2003) 11 SCC 376). The evidence of an eye witness

before whom the crime is committed is the best person to give a true and

correct account of the incident and therefore, the testimony of an eye

witness if found reliable and trustworthy has to be placed at a higher

pedestal to prove the case of the prosecution. In assessing the value of eye

witness, two things are to be considered; whether in the circumstance of

the case, it is possible to believe his presence at the scene of the

occurrence and; second, whether there is anything inherently improbable

or unreliable in his evidence. (Ref: AIR 1980 SC 3073; AIR 1997 SC

234; AIR 1994 SC 826).

24. The maxim 'falsus in uno falsus in omnibus' is not applicable to

criminal trials in India, however it is a moral duty of the court to

disengage the truth from falsehood to shift the grain from the chaff

instead of taking an easy course of rejecting the evidence in its entirety,

merely based on few infirmities. Minor contradictions, variations,

omissions, discrepancies and improvements in the evidence of any

witness cannot be attached undue importance to discard the entire

prosecution case if otherwise on vital aspects or on core of the

prosecution case, the testimony of such witness or witnesses is found

truthful, reliable and trustworthy. It is also settled legal position that it is

the duty of the prosecution to prove its case beyond any shadow of doubt

and no person accused of an offence can be convicted based on mere

probabilities or assumptions. Moreover, the legal dicta is well settled on

the point that more serious the crime, greater the responsibility of

scrutinizing the evidence adduced by the prosecution as well as the

defence, and this onerous task should be adhered to in the most

meticulous and objective manner before arriving at any final conclusion.

25. With the legal dicta as discussed in the foregoing paras, let us now

examine as to whether the counsel for the appellant succeeds in throwing

any serious doubts on the prosecution case particularly to discredit or

impeach the testimonies of the two eye witnesses i.e. HC Chander Bhan

(PW-3) and Prakash Chander (PW-7).

26. As per the deposition of Prakash Chander (PW-7), he himself was

serving as a sevadar in Gurudwara Bangla Saheb and he very well knew

both the accused and the victim. At the time of the incident, at 10.30 PM

on 14th June 1995, Prakash Chander (PW-7) was also lying in the same

NDMC Park along with a few others when he witnessed the quarrel to

have taken place between the accused and the victim over a gunny bag.

During the quarrel, Prakash Chander (PW-7) saw the accused snatching

the gunny bag from the victim and thereafter the victim running towards

the shop. The accused then caught him near a tree and took out a kripan

from the possession of the victim and started hitting him with the kripan

while sitting on him. He could not see how many blows were given by

the accused to the victim because accused sat with his back facing

towards him. He also saw PW-3 HC Chander Bhan to have reached at the

spot who took both the accused and the victim from the park towards the

road behind the toilet. In his cross-examination, he stated that he was

working as sevadar in the Gurudwara Bangla Saheb for the last five

years. He also deposed that at the time of the incident, 5-6 persons were

sleeping in the park and after the incident, seeing the police these persons

went away. He also deposed that he did not get up from his place as he

was under the apprehension of getting stabbed if he would interfere. He

also deposed that at the time of the incident, the accused was only

wearing an underwear (kachha) and he did not see any blood stains on his

body. He also deposed that he did not see any blood stains on the clothes

of PW-3 HC Chander Bhan. He also deposed that he could only see from

one eye. He also stated that even earlier, a quarrel had taken place

between the deceased and the victim on 5th May 1995. He also deposed

that when HC Chander Bhan took the victim Shera towards the road, he

could see that the victim was alive. The presence of PW-7 also cannot be

disputed because of the fact that his statement was recorded by the police

under Section 161 of Cr. P.C. while he was available at the spot and he

was also witness to the seizure memo of samples of the soil (Ex.PW-3/E)

collected from the spot, seizure memo of Pagri of the deceased (Ex.PW-

3/f), seizure memo of the old gunny bag (taat) and personal search memo

of the accused proved on record as Ex.PW-3/H. Despite a lengthy cross-

examination of this witness, we do not find that the defence could

succeed to create any dent to disbelieve his testimony. Many questions

were put to him to dispute his presence and even with regard to his

working as a sevadar in the Gurudwara Bangla Saheb but nothing could

be elicited by the defence to disbelieve his presence at the spot of the

crime or even his being a sevadar in the said Gurudwara Bangla Saheb.

27. HC Chander Bhan (PW-3) is the other important witness being the

eye witness of the crime, who was the first one to reach at the spot after

having come to know about some altercation to have taken place in the

NDMC Park. After he had reached the spot, he saw that there was a clean

shaven person and a Sardar who were grappling with each other. He also

saw that a clean shaven person pinned down the sardar on the ground .He

further saw that the clean shaven person was having a small kripan in his

right hand and was inflicting blows with the kirpan on the sardar who was

lying on the ground. He saw that he was being hit on the chest with the

kirpan. This witness tried to snatch the kirpan from the hand of clean

shaven person and in that process the clean shaven person had rubbed and

cleaned the blood from the kirpan. This witness had overpowered both

the persons and took both of them out of the park towards the road. The

injured person told his name as Shera to this witness while blood was

oozing out from his body. The victim sat near the police quarters on Jai

Singh road and fell down as he was suffering from pain. In the meantime

another constable Nirmal Singh had reached there and after handing over

both the said persons to the said constable, PW-7 started moving towards

Ashok Road in search of vehicle to remove the injured to the hospital.

But in the meanwhile a PCR Van had reached there. The PCR officials

alongwith ASI Dharam Singh and Bhagat Ram had removed the injured

to the hospital while PW-3 HC Chander Bhan and Constable Nirmal

Singh remained at the spot alongwith the accused. After sometime SHO

of Police Station Parliament Street, ASI Dharam Singh and SI also

reached at the spot and they were informed that the injured Shera had

expired. ASI Dharam Singh had recorded the statement of PW-3 Chander

Bhan which carried the endorsement of ASI Dharam Singh and then sent

the rukka (Ex.PW-18/B) to the Police Station for registration of the FIR.

He further deposed that he had handed over kripan to ASI Dharam Singh

and sketch of the Kirpan was drawn by ASI Dharam Singh which is

proved on record as Ex.PW-3/B, and also bears his signatures. PW-3 is

also the witness to the seizure and recovery of the gunny bag (Taat),

pagri, and blood stained earth sample which were lifted from the spot by

the police and sample of the soil and personal search memo of the

accused. He is also a witness to the sketch of the cover of kirpan. The

defence could not succeed to shatter his evidence despite his grueling

cross-examination. The testimonies of these two eye witnesses find

corroboration in the testimonies of PW-13 Bhagat Ram, PW-18 ASI

Dharam Singh and PW-16 - Inspector B.S. Rana and PW-19 Inspector

Gurnam Singh. The ocular evidence of this witness finds corroboration

by medical evidence and forensic evidence proved on record by the

prosecution.

28. Learned counsel for the appellant made a desperate but vain

attempt to find fault with the testimonies of prosecution witnesses

especially the two eye witnesses but nothing substantial was pointed out

to disbelieve the case of the prosecution. To say that no DD entry was

produced to show that PW-3 HC Chander Bhan was on patrolling duty at

Gurudwara Bangla Saheb; the names of PCR officials were not found

mentioned in the MLC of the deceased; failure of ASI Dharam Singh

(PW-18) to inform the name of the deceased to the doctor of the hospital;

PW-18 ASI Dharam Singh, Constable Bhagat Ram giving two different

versions about the disclosure/non-disclosure of his names by the victim -

Shera while he was being taken to the hospital in the PCR Van; variations

with regard to the place of occurrence; how the deceased received fatal

injury on the road which was at a distance of 230 sq. yds. and DD entry

was recorded after a gap of 15 minutes from the time of incident; PCR

Van reaching at the spot without receipt of any information about the

incident; non-disclosure of the name of the accused by the deceased to

HC Chander Bhan although he had ample time to disclose the same;

ample time for the accused to run away if he had actually committed the

crime; delayed medical assistance to the accused after a gap of 4-5 hours;

sending of exhibits to CFSL after more than 20 days of the incident; are

only the peripheral aspects of the case but in no manner the same can

corrode the credibility of the prosecution case. As already stated above,

Gurudwara Bangla Saheb is a prominent place of worship and thousands

of people almost round the clock pay visit to the gurudwara to seek

blessings and there is nothing unusual that PW-3 Chander Bhan was on a

patrolling duty in the vicinity of the said gurudwara. We also do not find

anything unusual that the PCR had reached at the Jai Singh road at its

own where the victim and the accused were brought by PW-3 - HC

Chander Bhan. The non disclosure of the name of Shera by PW-18 to the

doctor, who attended the deceased also cannot be held fatal to throw over

broad the case of the prosecution which is otherwise found reliable,

credible and trustworthy.

29. So far as the variation with regard to the place of occurrence as

pointed out by counsel for the appellant is concerned, the argument merits

outright rejection as indisputably the victim and the accused were brought

to the Jai Singh Road from the spot of the crime by HC Chander

Bhan(PW-3) and there is nothing wrong if the DD entry and the

postmortem entry records the name of the place where the victim was

found unconscious. This fact, will however not change the place of actual

occurrence of the site which will remain the NDMC Park adjoining the

Gurudwara Bangla Saheb.

30. So far the contention of counsel for the appellant that the accused

did not make any attempt to run away, had he been actually involved in

the crime or the fact that he would not have the courage to continuously

stab the victim in front of police officer, also do not cut much ice as HC

Chander Bhan(PW-3) had over powered the accused and it is not the

version of HC Chander Bhan(PW-3) that the accused kept on inflicting

blows after he had seen him. As per his testimony, he saw the accused

giving kirpan blows to the sardar who was lying on the ground and then

he tried to intervene to snatch the kirpan from his hand. The blows

therefore, were already inflicted by the accused on the victim before the

intervention of HC Chander Bhan. The other discrepancies pointed out by

learned counsel for the appellant are also totally inconsequential being of

very trivial and insignificant nature.

31. It is a settled legal position that the Courts are not to get swayed by

minor contradictions or insignificant discrepancies if otherwise testimony

of a witness is cogent, credible and trustworthy on the material aspects of

the case. No witness even the most genuine one would be in a position to

give the exact account of the scène of crime minutely or to describe what

preceded the incident and what exactly happened post incident. Some

minor discrepancies, variations and improvements are bound to occur due

to multiple factors governing the human behaviour and the background of

a particular witness under examination and, therefore, unless such

discrepancies and improvements affect the core of the prosecution case,

no undue importance should be given to such minor discrepancies,

variations and improvements which usually creep in the testimony of any

witness, due to multiple factors.

32. The Hon'ble Supreme Court in various judgments has time and

again held that unless there are vital improvements, they cannot by itself

affect the credibility of a witness and unless contradictions are of material

dimensions they should not be used to jettison the evidence in its entirety

and trivial discrepancies ought not to obliterate the otherwise acceptable

testimony of a witness. It was observed in Dhanvir and Others vs. The

State, 85 (2000) DLT 711, that human memory is not a mere computer

where memory can be fed or restored for all times to come and later on

when retrieved it would be verbatim the same. A human being, when he

describes some incident in a natural course, some variation is bound to

take place and so long as the variations are natural and minor, they ought

to be ignored.

33. In the recent case of Gangabhavani Vs. Rayapati Venkat Reddy

and Ors 2013(11)SCALE132, the Hon'ble Supreme Court while giving

the judgment categorically observed that:

"CONTRADITIONS IN EVIDENCE:

9. In State of U.P. v. Naresh: (2011) 4 SCC 324, this Court after considering a large number of its earlier judgments held:

In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.

Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.

Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited.

A similar view has been reiterated by this Court in Tehsildar Singh and Anr. v. State of U.P. : AIR 1959 SC 1012; Pudhu Raja and Anr. v. State, Rep. by Inspector of Police : JT 2012 (9) SC 252; and Lal Bahadur v. State (NCT of Delhi) : (2013) 4 SCC 557).

10. Thus, it is evident that in case there are minor contradictions in the depositions of the witnesses the same are bound to be ignored as the same cannot be dubbed as improvements and it is likely to be so as the statement in the court is recorded after an inordinate delay. In case the contradictions are so material that the same go to the root of the case, materially affect the trial or core of the prosecution case, the court has to form its opinion about the credibility of the witnesses and find out as to whether their depositions inspire confidence".

34. In the light of the aforesaid legal position, we are of the firm view

that the minor discrepancies, inconsistencies and variations pointed out

by the counsel for the appellant are not so material that the same can

create any dent on the truthfulness of the prosecution witnesses,

particularly the two eye witnesses - HC Chander Bhan (PW-3) and PW-7

Prakash Chander.

35. Dealing with the next contention raised by the learned counsel for

the appellant that the prosecution neither recorded the statement of

Constable Jai Ram Singh nor examined him as a witness although he was

the only person whose name was found to be mentioned in the MLC and

would have been the best person to depose about the incident and

similarly, non examination of Head Constable Sucheta, who went to

inform the PCR and likewise non-examination of the 'devotee' who had

informed HC Chander Bhan(PW-3) about the quarrel to have taken place

in the NDMC Park. Undoubtedly, the name of constable Jai Ram Singh

does find mention in the MLC of the victim Shera and he was one of the

police official who was present in the PCR. HC Chander Bhan (PW-3) in

his cross-examination has referred to the person - Constable Jai Ram

Singh in the PCR van. There were other police officials also in the PCR

Van including the driver of the PCR Van. One police official in the PCR

van was Constable Bhagat Ram and he was duly examined by

prosecution as PW-13. PW-18 - ASI Dharam Singh had also reached the

hospital and he also entered into the witness box to support the case of the

prosecution. Thus the examination of PW-13 - Constable Bhagat Ram

and PW-18 - ASI Dharam Singh who were present at the time of medical

examination of the victim, non-examination of Constable Jai Ram Singh

cannot have any bearing to affect the otherwise credible evidence of the

prosecution. On the same analogy, non-examination of HC Sucheta who

had informed the PCR, in no way can affect the case of the prosecution.

So far as the non-examination of the devotee is concerned, PW-3 HC

Chander Bhan did not disclose the name of the devotee and in his cross-

examination he categorically stated that he did not note down the name of

the person who had informed about the quarrel in the NDMC Park as

many people had passed through that area to move towards the

Gurudwara side at that time.

36. It is a settled legal position that it is not the plurality or quantity of

the evidence, which ultimately decides the fate of any prosecution case.

The evidence is to be weighed and not counted. The general rule is that it

is not the numerical strength of witnesses but the inherent strength of any

witness which is the guiding factor for the prosecution to prove its case,

therefore, it is not that particular number of witnesses in a case will be

required to prove any particular fact if such a fact can be proved by any

single credible witness. We thus, do not find any force in the contention

raised by counsel for the appellant to disbelieve the prosecution version

due to non examination of the said three witnesses.

37. The next contention raised by counsel for the appellant was that

there was no blood found on the weapon of offence and therefore, the

story of the prosecution cannot be believed. PW-3 - HC Chander Bhan

was very categorical in stating in his examination in chief that the

accused person rubbed and cleaned the blade of the kirpan at the time

when he tried to snatch the kirpan from his hand. When such coherent

deposition of PW-3 is there, there was hardly any possibility of existence

of blood on the kirpan. Learned counsel for the appellant also argued that

no bloodstains were found on the clothes of the accused and also that of

PW-3 HC Chander Bhan. As per the admitted case of the prosecution, the

accused was only wearing the underwear and nothing else on his body

and therefore, it is not unusual that the underwear did not carry any stains

of blood. So far as non existence of any bloodstains on the clothes of PW-

3 HC Chander Bhan are concerned the explanation has been given by the

witness in his cross-examination where he had stated that he held the

accused Mannu by his hand while the deceased Shera was walking along

with him. He further clarified that his clothes did not get any bloodstains

from the injured Shera while he was talking to him and proceeding

towards the road. We find no reason to disbelieve the clarification given

by him that his clothes did not get any blood stains from the injured

Shera. Even otherwise, the statement of the witness is to be read as a

whole and once the court finds no reason to disbelieve his presence at the

spot and his narration of what he had seen in front of his eyes is credible,

we are not convinced to accept that his presence can be disbelieved

because his clothes were free from bloodstains of the deceased. We also

cannot loose sight of the fact that the presence of PW-3 HC Chander

Bhan at the spot of crime is duly corroborated by other prosecution

witnesses mainly PW-7 Prakash Chander, SHO, and others. Even the FIR

of the case was registered on the statement of PW-3 HC Chander Bhan.

38. Learned counsel for the appellant also argued that there is a clear

discrepancy between the medical and the ocular evidence as in the ocular

evidence, the case of the prosecution is that the deceased was inflicted

with injuries with kripan while in the post mortem report the opinion

given was that the injuries were caused by double edged weapon. The

answer to this argument has been given by the counsel for the appellant

herself by giving reference to the subsequent opinion of doctor proved on

record as Ex.PW-5/B wherein, he stated that the weapon has slightly

curved in the front portion and therefore, the injuries caused on the body

of the victim may be inflicted from a slightly curved weapon. The said

subsequent opinion given by PW-5 - Dr. Sanjiv Tandon, Senior Head of

Department of Forensic and Medical, Lady Harding Medical College

stating that the weapon examined by him was slightly curved is also in

consonance with the sketch of the weapon of offence proved on record as

Ex.PW-3/B which clearly shows that the kirpan was a curved one in the

front portion. In the light of the said medical evidence of PW-5, we do

not find any force in the aforesaid contention raised by counsel for the

appellant.

39. Learned counsel for the appellant also raised a contention that the

prosecution has failed to prove any motive on the part of the accused to

commit the said crime. Learned counsel for the appellant also argued that

it will be inconceivable that over a small piece of taat, the accused could

be provoked to the extent of eliminating the deceased. The case in hand is

based on eye witness account and therefore, failure of the prosecution to

prove motive on the part of the accused cannot throw over board the case

of the prosecution which is otherwise found to be of an unimpeachable

character. Motive assumes importance in cases wholly depending upon

the circumstantial evidence and where ocular evidence is very clear and

convincing and the role of accused persons in the crime can be clearly

established, the failure to prove motive for the crime is hardly of any

consequence. (Ref: Yunis @ Kariya etc. Vs. State of Madhya Pradesh,

AIR 2003 SC 539)

40. In the light of the above legal position, we are not persuaded to

accept the argument raised by learned counsel for the appellant that

failure of the prosecution to prove motive on the part of the accused can

result in demolishing the otherwise clear and convincing evidence of the

prosecution.

41. Learned counsel for the appellant has also referred to the

discrepancies in the testimonies of PW-3 and PW-7 particularly with

regard to the narration of the incident but this aspect has already been

dealt by us at a great length in the preceding paragraphs and therefore,

needs no further discussion.

42. Dealing with the last contention raised by learned counsel for the

appellant that even if the case of the prosecution is accepted as it is, then

at best the same can be covered under Section 304 Part II of IPC. To

examine this contention raised by counsel for the appellant, let us first

refer to the injuries sustained by the deceased on his person as per the

post mortem report proved on record in the evidence of PW-5 - Dr.

Sanjeev Tandon. The following anti mortem injuries were received by the

deceased as per the post mortem report:

a. Abrasion of 3X2 cm present on the right lateral centhus of

eye

b. Stab wound of 1.5X0.5 cm present on left side of the chest, 5

cm below left nipple & 124 cm above left heel left feet. The

wound is directed medically upward having fine border and

sharp edges.

c. Wound of 1.6 cm, 0.5 cm above left illiaccrest in mid

axillary lone. The wound is present 102 cm above left heel

wound is muscle deep.

d. Injury No.2 is piercing through left lung and anterior wall of

the heart.

43. The post mortem Report further states that it was the injury No.2

that pierced the left lung due to which the left lung had collapsed. It

further states that the injury No.2 had also pierced the heart on the

interior of body. Based on the aforesaid injuries, post mortem report

opined that the death of the deceased was because of shock due to

hemorrhage as a result of injury no.3 and 4 and stab wound No.2 was

individually fatal in ordinary course of the nature.

44. To satisfy whether the offence in the facts of the present case fall

under 'murder' or culpable homicide not amounting to murder, we must

see whether the case is squarely covered within clause thirdly of Section

300 of IPC. The legal position in this regard has been most appropriately

summed up in Virsa Singh v. State of Punjab reported in (1958) 1 SCR

1495, laying down the guidelines which the prosecution must prove

before the case can be brought under third exception of Section 300 of

IPC and the same are as under:-

"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 prove that there was an intention to inflict that particular bodily 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 proceeds further and,

Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is 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."

45. After laying down the aforesaid guidelines, the Hon'ble Judge

further went on to observe as under:-

"Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under Section 300 'thirdly'. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature ( not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of

nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional."

46. As would be seen from the above observations and tests laid down

by the Apex Court, the determinative factor in Section 300 (thirdly) is an

intentional injury which must be sufficient to cause death in the ordinary

course of nature and it would be immaterial whether the offender had

knowledge that the act of that kind will result in death. To find out

whether the offender had intention to cause such fatal injury which in the

ordinary course of nature was sufficient to cause death, the factors which

are required to be kept in mind are -

a) The force with which the blow has been dealt with;

b) The type of weapon used

c) Vital or organ or the particular part of the body attracted;

d) Nature of injury caused;

e) Origin and genesis of the crime and the circumstances attending upon the death. (Referred to Jagrup Singh vs. State of Haryana, (1981) 3 SCC 616: 2001 AIR SCW 1021)

47. Reverting back to the facts of the present case, it would be seen

that the accused was seen sitting on the chest of the deceased hitting with

the deadly weapon like kirpan on the vital part of his body which in fact

has pierced through his left lung and the heart as well. The said injury

was held to be sufficient to cause death of the victim in the ordinary

course of the nature. The stab injury as caused by the accused on the

chest of the deceased was not accidental or unintentional. The act of the

accused is squarely covered by section 300 (thirdly).

48. Now the moot question is whether the case of the appellant is

covered by exception 4 of Section 300 of IPC or not. Exception 4 to

Section 300 would be attracted when four requirements, as are envisaged

in the said exception 4 are satisfied, namely -

        a)      It was a sudden fight.

        b)      There was no pre-meditation

        c)      The act was done in a heat of passion.
        d)      Without the offender having taken undue advantage or acted
                in a cruel or unusual manner.

49. The existence of all the four requisites must be adjudged in all

probabilities and in absence of the existence of any of the four requisites,

exception 4 will have no application.

50. The Apex Court in a recent case in Ankush Shivaji Gaikwad vs.

State of Maharashtra, reported in (2013) 6 SCC 770, has reiterated the

principles where the accused can be given benefit of Exception 4 to

Section 300 IPC after giving reference to many previous judgments of the

Apex Court on the same subject. The relevant paras of the judgments are

reproduced as under:

9. It was argued that the incident in question took place on a sudden fight without any premeditation and the act of the Appellant hitting the deceased was committed in the heat of passion upon a sudden quarrel without the Appellant having taken undue advantage or acting in a cruel or unusual manner. There is, in our opinion, considerable merit in that contention. We say so for three distinct reasons. Firstly, because even according to the prosecution version, there was no premeditation in the commission of the crime. There is not even a suggestion that the Appellant had any enmity or motive to commit any offence against the deceased, leave alone a serious offence like murder. The prosecution case, as seen earlier, is that the deceased and his wife were guarding their Jaggery crop in their field at around 10 p.m. when their dog started barking at the Appellant and his two companions who were walking along a mud path by the side of the field nearby. It was the barking of the dog that provoked the Appellant to beat the dog with the rod that he was carrying apparently to protect himself against being harmed by any stray dog or animal. The deceased took objection to the beating of the dog without in the least anticipating that the same would escalate into a serious incident in the heat of the moment. The exchange of hot words in the quarrel over the barking of the dog led to a sudden fight which in turn culminated in the deceased being hit with the rod unfortunately on a vital part like the head. Secondly, because the weapon used was not lethal nor was the deceased given a second blow once he had collapsed to the ground. The prosecution case is that no sooner the deceased fell to the ground on account of the blow on the head, the Appellant and his companions took to their heels - a circumstance that shows that the Appellant had not acted in an unusual or cruel manner in the prevailing situation so as to deprive

him of the benefit of Exception 4. Thirdly, because during the exchange of hot words between the deceased and the Appellant all that was said by the Appellant was that if the deceased did not keep quiet even he would be beaten like a dog. The use of these words also clearly shows that the intention of the Appellant and his companions was at best to belabour him and not to kill him as such. The cumulative effect of all these circumstances, in our opinion, should entitle the Appellant to the benefit of Exception 4 to Section 300 of the Indian Penal Code.

10. Time now to refer to a few decisions of this Court where in similar circumstances this Court has held Exception 4 to Section 300 of the Indian Penal Code to be applicable and converted the offence against the Appellant in those cases from murder to culpable homicide not amounting murder. In Surinder Kumar v. Union Territory, Chandigarh: (1989) 2 SCC 217, this Court held that if on a sudden quarrel a person in the heat of the moment picks up a weapon which is handy and causes injuries out of which only one proves fatal, he would be entitled to the benefit of the Exception provided he has not acted cruelly. This Court held that the number of wounds caused during the occurrence in such a situation was not the decisive factor. What was important was that the occurrence had taken place on account of a sudden and unpremeditated fight and the offender must have acted in a fit of anger. Dealing with the provision of Exception 4 to Section 300 this Court observed:

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

(Emphasis supplied)

11. We may also refer to the decision of this Court in Ghapoo Yadav and Ors. v. State of M.P. : (2003) 3 SCC 528, where this Court held that in a heat of passion there must be no time for the passions to cool down and that the parties had in that case before the Court worked themselves into a fury on account of the verbal altercation in the beginning. Apart from the incident being the result of a sudden quarrel without premeditation, the law requires that the offender should not have taken undue advantage or acted in a cruel or unusual manner to be able to claim the benefit of Exception 4 to Section 300 Indian Penal Code. Whether or not the fight was sudden, was declared by the Court to be decided in the facts and circumstances of each case. The following passage from the decision is apposite:

...The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight:

(c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300. Indian Penal Code is not defined in the Indian Penal Code. 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'.

xxx xxx xxx

...After the injuries were inflicted the injured has fallen down, but there is no material to show that thereafter any injury was inflicted when he was in a helpless condition. The assaults were made at random. Even the previous altercations were verbal and not physical. It is not the case of the prosecution that the accused Appellants had come prepared and armed for attacking the deceased....This goes to show that in the heat of passion upon a sudden quarrel followed by a fight the accused

persons had caused injuries on the deceased, but had not acted in cruel or unusual manner. That being so, Exception 4 to Section 300 Indian Penal Code is clearly applicable...

(Emphasis supplied)

12. In Sukbhir Singh v. State of Haryana : (2002) 3 SCC 327, the Appellant caused two Bhala blows on the vital part of the body of the deceased that was sufficient in the ordinary course of nature to cause death. The High Court held that the Appellant had acted in a cruel and unusual manner. Reversing the view taken by the High Court this Court held that all fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of Exception 4 of Section 300 Indian Penal Code. In cases where after the injured had fallen down, the Appellant did not inflict any further injury when he was in a helpless position, it may indicate that he had not acted in a cruel or unusual manner. The Court observed:

...All fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of not availing the benefit of Exception 4 of Section 300 Indian Penal Code. After the injuries were inflicted and the injured had fallen down, the Appellant is not shown to have inflicted any other injury upon his person when he was in a helpless position. It is proved that in the heat of passion upon a sudden quarrel followed by a fight, the accused who was armed with Bhala caused injuries at random and thus did not act in a cruel or unusual manner.

(Emphasis supplied)

13. Reference may also be made to the decision in Mahesh v. State of MP : (1996) 10 SCC 668, where the Appellant had assaulted the deceased in a sudden fight and after giving him one blow he had not caused any further injury to the deceased which fact situation was held by this Court to be sufficient to bring the case under Exception 4 to Section 300 of the Indian Penal Code. This Court held:

...Thus, placed as the Appellant and the deceased were at the time of the occurrence, it appears to us that the Appellant assaulted the deceased in that sudden fight and after giving him one blow took to his heels. He did not cause any other injury to the deceased and therefore it cannot be said that he acted in any cruel or unusual manner. Admittedly, he did not assault PW-2 or PW-6 who were also present also with the deceased and who

had also requested the Appellant not to allow his cattle to graze in the field of PW-1. This fortifies our belief that the assault on the deceased was made during a sudden quarrel without any premeditation. In this fact situation, we are of the opinion that Exception-4 to Section 300 Indian Penal Code is clearly attracted to the case of the Appellant and the offence of which the Appellant can be said to be guilty would squarely fall Under Section 304 (Part-I) Indian Penal Code...

(Emphasis supplied)

14. To the same effect are the decisions of this Court in Vadla Chandraiah v. State of Andhra Pradesh : (2006) 14 SCALE 108, and Shankar Diwal Wadu v. State of Maharashtra : (2007) 12 SCC 518.

51. In the facts of the present case, the prosecution has failed to prove

any motive on the part of the accused to carry out the murder of the

deceased although a feeble attempt was made towards this direction.

However the prosecution succeeded in proving the fact that an argument

had taken place between the accused and the deceased over a gunny bag

(taat), which led to a sudden fight between the two of them. The

prosecution has further proved that the accused was not carrying any

weapon of offence with him and in fact he snatched the weapon of

offence i.e. Kirpan from the deceased and from the same weapon he had

inflicted blows on his chest. It is also a matter of record that the deceased

could walk down from the spot to the main road himself without much

support from PW-3 - HC Chander Bhan and it is thereafter, that after

reaching the main road he became unconscious. It has also come in the

evidence of PW-3 HC Chander Bhan that the accused never thought that

the said injuries inflicted by him would result in the death of the

deceased. In our view in the facts of the present case, exception 4 of

Section 300 IPC is attracted as there was a sudden fight between the

accused and the deceased at the spur of the moment and there was no pre-

meditation on the part of the accused to carry out the murder of the

deceased and the act was done in a heat of passion and the offender not

having taken undue advantage or acted in a cruel or unusual manner.

52. Taking the cumulative view of the facts and circumstances of the

case and the legal position discussed above, we are of the view that the

case of the appellant does fall under Exception 4 of Section 300 IPC.

53. The next question as to whether the case falls under Section 304 of

Part I or Part II of IPC. The distinction between the two Parts of Section

304 of IPC was drawn up by the Apex Court in Alister Anthony Pareira

v. State of Maharashtra (2012) 2 SCC 648, in the following words:

..... For punishment Under Section 304 Part I, the prosecution must prove: the death of the person in question; that such death was caused by the act of the accused and that the accused intended by such act to cause death or cause such bodily injury as was likely to cause death. As regards punishment for Section 304 Part II, the prosecution has to prove the death of the person in question; that such death was caused by the act of the accused and that he knew that such act of his was likely to cause death....

54. It will also be useful to refer the decision of the Apex Court

in Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra Pradesh :

(2006) 11 SCC 444 wherein the Apex Court enumerated some of the

circumstances relevant in finding out whether there was any intention to

cause death on the part of the accused and observed as under:

...Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls Under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable Under Section 302, are not converted into offences punishable Under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable Under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre-meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion;

(x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other

special circumstances with reference to individual cases which may throw light on the question of intention...

55. Adverting back to the facts of the case in hand, we are of the

opinion that the accused was seen sitting on the chest of the deceased,

hitting with the deadly weapon like kirpan on the vital part of his body

which infact had pierced his left lung and the heart as well and as per the

post mortem report proved on record as Ex PW-5/A, this injury was held

to be sufficient to cause death of the victim in the ordinary course of the

nature. These circumstances in which injury was inflicted with the help of

a kirpan on the vital part of the body of the deceased with all force that it

led to piercing through his left lung and the heart as well, we cannot

subscribe to the contention raised by counsel for the appellant that the

case would fall under Section 304 Part II of the Indian Penal Code. We

are of the considered view that the appellant had the requisite intention