Sri Nitul Saikia vs The State Of Assam And Anr
2021 Latest Caselaw 2189 Gua

                                                                    Page No.# 1/18

GAHC010098062020




                               THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : Crl.A./205/2020


            SRI NITUL SAIKIA
            S/O SRI MANGOLA SAIKIA, VILL-UTTAR PETBOHA, P.S.-RAHA, DIST-
            NAGAON, ASSAM, PIN-782460



            VERSUS


            THE STATE OF ASSAM AND ANR
            REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM

            2:TULAN SAIKIA
             S/O LATE BEJIA SAIKIA
            VILL-UTTAR PETBOHA
             P.S.-RAHA
             DIST-NAGAON
            ASSAM
             PIN-78246


Advocate for the Petitioner    : MR. N UDDIN

Advocate for the Respondent : PP, ASSAM

BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

JUDGMENT AND ORDER (Oral) Page No.# 2/18

Date : 13-09-2021

(Suman Shyam, J)

Heard Mr. N. Uddin, learned counsel appearing for the appellant. We have

also heard Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam, representing

the State/respondent No.1. None has appeared for the informant/respondent No.2.

2. The sole appellant Nitul Saikia was convicted under Sections 302/451 of the

Indian Penal Code (IPC) by the judgment and order dated 21.10.2019 passed by the

learned Additional Sessions Judge No.1, Nagaon, in Sessions (TJ) Case No.47/2018 for

committing the murder of Pori Saikia and sentenced to undergo rigorous

imprisonment for life and also to pay fine of Rs.1000/-, in default of payment of which,

to undergo rigorous imprisonment for further period of two months for committing the

offence under Section 302 IPC. The appellant was also sentenced to undergo

rigorous imprisonment for one year and to pay fine of Rs.500/- and in default, to

undergo rigorous imprisonment for further period of one month, for committing the

offence under Section 451 of the IPC. Both the substantive sentences were to run

concurrently.

3. The prosecution case, in a nutshell, is that on 20.07.2017, at about 10.40 p.m.

the accused/appellant came to the house of the deceased in the absence of her

husband and inflicted multiple stab injuries on her body with a knife. The victim was

immediately rushed to the Nagaon B.P. Civil Hospital by a 108 ambulance but next

morning she succumbed to her injuries while undergoing treatment in the hospital.

4. On 21.07.2017 at around 6.10 p.m., Sri Tulon Saikia i.e. the husband of the Page No.# 3/18

deceased had lodged an ejahar before the Officer-in-Charge, Raha Police Station,

reporting the incident. Based on the ejahar, Raha P.S. Case No.202/2017 was

registered under Sections 452/302 of the IPC. Thereafter, usual investigation was

carried out by the police whereby, statement of the witnesses were recorded, the

knife used in commission of the crime was seized along with a blood stained bed-

sheet from the place of occurrence, inquest was conducted on the dead body and

the body was sent for post-mortem examination. The I.O. had also arrested the

accused person and got his confessional statement recorded by the learned Chief

Judicial Magistrate, Nagaon under Section 164 Cr.P.C. On completion of

investigation, the I.O. had submitted charge-sheet against the appellant under

Section 302 of the IPC.

5. The learned trial court had framed charges against the accused under

Sections 452/302 of the IPC. The charges were read over and explained to him but

since the accused had pleaded not guilty and claimed to be tried, the matter went

for trial.

6. There is no eye-witness to the occurrence and the prosecution case is entirely

based on circumstantial evidence. In order to bring home the charges framed

against the accused/appellant, the prosecution had examined as many as nine

witnesses out of which, two witnesses viz. the Chief Judicial Magistrate, Nagaon (CW-

1) and a constable serving in the Raha Police Station (CW-2), were examined as

Court witnesses.

7. PW-1, Dr. Ajit Goswami was the SDM & HO on duty at Nagaon B.P. Civil Page No.# 4/18

Hospital on 21.07.2017 and he had conducted post-mortem examination on the

dead body of Pori Saikia. PW-1 has deposed that as per the post-mortem report, the

following injuries were found in the dead body :-

"On examination, I found the following :-

Multiple penetrating stab injuries by sharp weapon, two symmetrically placed on both side of the chest on the middle of the breast; 2"x 1"x 6" which are penetrating the lung tissue. Similar wounds on both upper thighs two symmetrically placed above the abdomen; right one is penetrating to the liver. Cut mark on right carotid artery stabbing in nature. Hemoperitoneum and blood found in the pleural cavity."

PW-1 has also opined that the cause of death of the deceased was due to shock

and haemorrhage as a result of stab injury sustained.

8. PW-2, Sri Tulan Saikia is the informant in this case. PW-2 has deposed that the

occurrence took place on 20.07.2017 during the night hours and on that night he was

not at home as he was working as a security guard in a private company at

Meghalaya. According to the PW-2, on the night of the incident, at around 10.45

p.m. one Lukumoni Saikia of his village had telephoned him and told that his wife was

in a serious condition and he should immediately come home. On the same night

PW-2 returned from Meghalaya and on reaching the Nagaon B.P. Civil Hospital at

around 3.00 a.m. he had seen stab injuries on various parts of the body of his wife

who was undergoing medical treatment. PW-2 has further deposed that at that time

his wife was in a condition to speak and she told him that Nitul Saikia, son of Mangala

had caused stab injuries on her person. Although his wife was referred to the Page No.# 5/18

Guwahati Medical College & Hospital for better treatment, yet, she succumbed to

her injuries before she could be brought to Guwahati for treatment. PW-2 has also

stated that on 21.07.2017 he had lodged an ejahar (Ext-2) at the Raha Police Station

and Ext-2(1) was his signature. PW-2 has further stated that the ejahar was drafted by

someone under his instruction and that he was with the scribe at the time of writing

the ejahar. During his cross-examination, PW-2 has stated that he knew the scribe of

the ejahar but did not know his name. PW-2 has also stated that he did not tell the

police that Lukumoni Saikia of his village had informed him over telephone that his

wife was serious and he should come home immediately. He also did not say in his

previous statement before the police that his wife was in a speaking condition

because the police did not ask him nor did he tell them that his wife told him in the

hospital that Nitul Saikia, son of Mangala had caused stab wounds on her body.

9. PW-3, Sri Bishnu Prasad Saikia is a neighbor of the accused Nitul Saikia as well

as the informant Tulan Saikia. PW-3 has deposed to the effect that the occurrence

took place about a year back but he did not remember the exact date and time of

the occurrence but it was around 10.30/11 p.m. At that time he was about to go to

sleep after having dinner when Madhav Saikia and his wife knocked at the door and

asked him to go to the house of Pori Saikia as something had happened to her. He

then went to the house of Pori Saikia and found her lying in the courtyard in a pool of

blood. At that time some other villagers had also gathered there. Having seen the

injured he immediately rushed to the house of Renu Bora i.e. the village headwoman

(PW-4) and informed her about the incident. PW-3 has also stated that he had called

an ambulance (108) over telephone and took the victim to the Nagaon B. P. Civil Page No.# 6/18

Hospital. However, next day, at around 11/11.30 a.m. the victim succumbed to her

injuries at the hospital. PW-3 has also stated that when he had met the victim, she was

not in a position to talk. This witness was declared as hostile witness. During his cross-

examination by the prosecution side, PW-3 has stated that at the relevant time, when

he had reached the house of Pori Saikia, she was asking for water. PW-3 has,

however, denied that in his previous statement made before the I.O. he had stated

that when he reached the house of Pori Saikia she had said that she had been

assaulted by the son of Mangala i.e. the accused. During his cross-examination by

the defence side, PW-3 has stated that he had heard that the victim was asking for

water and when they were taking her to the hospital at Nagaon, she was vomiting

and till her death she could not speak anything.

10. PW-4, Smt. Renu Bora is the village headwoman. This witness has stated in her

deposition that at the time of the occurrence she was in her house. At that time, PW-3

and Kobi Saikia had gone to her house and informed about the incident by telling her

that somebody had assaulted Pori Saikia at her house and her husband was not there

at home. Then she, along with those persons, came to the house of Pori Saikia and

saw that she was lying just in front of the door of her house in a pool of blood and

there was heavy bleeding. PW-4 has deposed that she had asked Pori Saikia as to

who had assaulted her and she replied by saying that son of Mangala Saikia had

stabbed her with a knife. According to PW-4, the police had recovered the knife in

her presence by following the instruction of the accused Nitul Saikia and also seized

the same in her presence. Ext-3 was the seizure list and Ext-3(1) was her signature. PW-

3 has also stated that the knife was recovered from a torn bag kept in the backside Page No.# 7/18

of the house of accused Nitul Saikia.

11. PW-5, Sri Sonmoni Saikia is also a person belonging to the same village and he

has deposed that on the night of the incident, at around 10.30 p.m. while he was in

his bed, he had heard a hullah and came to the house of Pori Saikia. Then he found

Pori Saikia was lying in a pool of blood in the verandah of her house. PW-5 has also

deposed that Pori Saikia had told him that "Nitul Saikia, the son of Mangala, has

stabbed me with a knife". He then called 108 ambulance over telephone and

thereafter, injured Pori Saikia was taken to the hospital. On the next morning police

visited the house of Pori Saikia and seized one knife vide seizure-list Ext-3 in his

presence. PW-5 has also stated that the police has seized one blood stained bed-

sheet from the house of the victim in his presence and Mat. Ext-B is the seized bed-

sheet which was seized vide seizure-list Ext-4. This witness had proved his signatures in

both the seizure-lists as Ext-3(2) and 4(1) respectively. During their cross-examination,

nothing adverse could be elicited by the defence side so as to shaken the PWs-4 and

5 and both these witnesses had remained firm in their cross-examination.

12. PW-6, Sri Deba Kanta Saikia is a seizure witness and had proved his signature

Ext-3(3) in the seizure-list.

13. Sri Binoy Kumar Roy was posted at the Raha Police Station on 21.07.2017 as

Attached Officer and was examined by the prosecution side as PW-7. The PW-7 has

stated that on 21.07.2017, at about 5.10 a.m., the village headwoman of Uttar

Petboha village had informed him over telephone that last night i.e. on 20.07.2017 at

about 11.00 p.m. Nitul Saikia, son of Mangala Saikia of her village had stabbed one Page No.# 8/18

Pori Saikia, wife of Tulan Saikia causing multiple injuries on her person and the injured

had been shifted to B.P. Civil Hospital, Nagaon by 108 ambulance and the victim had

succumbed to her injuries while undergoing treatment. PW-7 has stated that upon

receipt of such information, G.D. Entry No.478 dated 21.07.2017 was made by the

Officer-in-Charge of Raha Police Station and he was directed to visit the place of

occurrence. Accordingly, he, accompanied by his staff, had rushed to the place of

occurrence, examined the witnesses, drew sketch map of the place of occurrence,

seized one blood soaked bed sheet from the house of the deceased vide seizure-list

No.4. He had also conducted inquest on the dead body of deceased Pori Saikia,

went to the house of the accused but he was not found there. The dead body of Pori

Saikia was then sent for post-mortem examination. On the same day, at around 6.20

p.m., a formal ejahar was lodged by Tulan Saikia i.e. the husband of the deceased

which was received and registered by Moloy Kumar Acharya, who was the Officer-in-

charge of Raha Police Station, as Raha P.S. Case No.202/2017 under Section 302 of

the IPC. The PW-7 has also stated that he was entrusted with the task of carrying out

investigation in the aforesaid case and while carrying out search for the accused, he

found him inside the jungle of village Uttar Petboha where he was apprehended by

the police and brought to the Police Station. Upon interrogating the accused had

confessed to have stabbed Pori Saikia with a knife and said that he had kept the

knife hiding inside a plastic bag on the backside of his house. The I.O. has also stated

that the accused had led him to his house and showed the knife and the bag in

presence of witnesses. Then he seized the knife vide seizure-list Ext-3 and Ext-3(4) was

his signature. Mat. Ext-A is the knife which he had seized on being shown by the Page No.# 9/18

accused. The I.O. (PW-7) had also confirmed that the accused was forwarded to the

court for recording his confessional statement and Mat. Exts-A and B were sent to the

FSL (Forensic Science Laboratory) for serologic test. The FSL report dated 22.09.2017

had shown that the samples had tested positive for human blood in both the Mat.

Exts-A & B. Upon completion of investigation he had submitted charge-sheet against

the accused Nitul Saikia under Section 452/302 of the I.P.C.

14. Sri Subrangshu Dhar, who was posted as the Chief Judicial Magistrate, Nagaon

and had recorded the confessional statement of the appellant under Section 164

Cr.P.C. was examined as CW-1. From the testimony of CW-1 it appears that the

accused was produced by the I.O. before him on 22.07.2017 for recording his

confessional statement and he was sent to judicial custody for reflection. The

accused was in judicial custody from 22.07.2017 till 24.07.2017. Eventually, the

confessional statement of the accused was recorded on 24.07.2017 at about 10.30

a.m. in his chamber and at that time, no police man was present. From the evidence

of CW-1 we find that all the procedural formalities before recording the confessional

statement of the accused was complied with in this case and his statement was also

recorded by the learned Chief Judicial Magistrate only upon reaching a satisfaction

that the same was being made by the accused voluntarily. CW-1 has also proved the

confessional statement Ext-5, which he had recorded in his own handwriting

15. CW-2, Sri Chandan Das is the Constable posted at Raha Police Station, who

had submitted G.D. Entry No.478 dated 21.07.2017 before the court as per the

instruction of the Officer-in-Charge of Raha Police Station. This witness has stated that Page No.# 10/18

Ext-Z was the Raha P.S. G.D. Entry No.478 dated 21.07.2017 which was made on the

basis of information received at 5.00 a.m. on that day from the village headwoman

of Petboha village.

16. We also find from the record that on 24.07.2017 the accused Nitul Saikia had

recorded his confessional statement before the learned Chief Judicial Magistrate,

Nagaon, wherein he had stated as follows :-

"I have been in Nagaon Jail for the last two days. I have had a meal before coming to the court today. Pari Saikia is the wife of Tulan Saikia. Their house is adjacent to my house. We are the inhabitants of the same village Uttar Petboha. The marriage between Pari and Tulan took place around 8/10 years ago. Two years ago, I had a altercation with Pari and Tulan in connection with a boundary. Pari lodged a police case against me regarding this issue that I had assaulted and abused Pari and Tulan. I had to obtain bail from the court. Afterwards, I had been in a love affair with Pari Saikia for the last 1 ½ years. She always invited me to her house at night over phone in order to sleep with her (meaning sexual relation). I indulged in sexual relationship with Pari as per her wish (means sexual intercourse).

But, it has been a year since we do not have any sexual relationship. But, occasionally Pari took money from me in order to withdraw the criminal case against me.

Around 10:00 p on 20/07/2017, I went to the house of Pari Saikia to ask her why she had not withdrawn the police/criminal case lodged against me even after taking money from me. Then, Pari told me that she would not withdraw the case and then she pushed me out of the house. At that time, Tulan was not at home.

Then I got angry. I engaged in an altercation with Pari. Then I Page No.# 11/18

stabbed Pari in her abdomen with a knife that was hung on a wall. She fell on the ground. I did not think that she would die. I returned home and fell asleep. Commotion arose in the morning and I came to know that Pari had died. Thereafter, I fled to a jungle in fear. I remained in the jungle till the evening. Later, I thought that I had made a huge mistake and therefore, I wanted to confess. I have committed a sin. I should be imposed with punishment. I surrendered before police by appearing at the police station."

17. While recording his statement under Section 313 Cr.P.C. the

accused/appellant had denied all the incriminating circumstances put to him

including the confessional statement recorded on 24.07.2017 but the defence side

did not lead any evidence.

18. Referring to the materials available on record, Mr. N. Uddin, learned counsel

for the appellant, submits that the conviction of the appellant is based on the

testimony of PWs-3, 4 and 5 which includes a hostile witness as well as the

confessional statement of the accused. The prosecution has also failed to examine

key witnesses Madhab Saikia and his wife and there is no explanation for not doing

so. The learned counsel, therefore, submits that there is no cogent evidence on

record to sustain the conviction of the appellant. Alternately, Mr. Uddin has argued

that the confessional statement of the accused clearly indicates that there was an

altercation between the accused and the victim immediately before the occurrence

as a result of which, the accused, in a heat of passion and having lost his sense of self-

control, had struck the victim. Contending that the knife seized by the police is a Page No.# 12/18

common article found in every household and that there was no pre-meditation on

the part of the accused, Mr. Uddin submits that there is no evidence to suggest that

the accused had the intention to cause death to the victim. As such, submits Mr.

Uddin, the conviction of the appellant under Section 302 of the I.P.C. be set aside

and he be convicted under section 304- Part-II of the I.P.C. In support of his above

argument, the learned counsel for the appellant has relied upon the decisions of the

Supreme Court rendered in the case of State of U.P. vs. Indrajeet alias Sukhatha

reported in (2000) 7 SCC 249 and in Mavila Thamban Nambiar vs. State of Kerala

reported in (2009) 17 SCC 441.

19. Ms. B. Bhuyan, learned Addl. Public Prosecutor, Assam, on the other hand, has

argued that the oral dying declaration brought on record by the prosecution through

PWs-2, 3, 4 and 5 finds due corroboration from the evidence available on record.

Moreover, the confessional statement of the accused in this case was recorded by

following due process of law. Relying on such materials available on record the

learned trial court had rightly convicted the appellant and sentenced him to

undergo the jail sentence. Under the circumstances, submits Ms. Bhuyan, there is no

justifiable ground for this Court to interfere with the impugned judgment and order of

the learned trial court.

20. We have considered the arguments advanced by the learned counsel

appearing for both the sides and have also carefully gone through the materials

available on record.

21. From a perusal of the impugned judgment we find that the conviction of the Page No.# 13/18

appellant/accused is primarily based on the testimony of PWs-3, 4 and 5, the Mat.

Exts-A & B as well as the confessional statement of the accused recorded under

Section 164 Cr.P.C.

22. The PW-2 i.e. the husband of the victim has deposed that his deceased wife

had told him in the hospital that it is the accused who had stabbed her. PW-2 was not

at home when the occurrence took place but it appears from the evidence on

record that he had reached back Nagaon from Meghalaya in the early hours of

21.07.2017 after receiving telephonic information regarding his wife's condition from a

co-villager. However, it has come out during his cross-examination that he had not

stated before the police about the oral dying declaration made before him by the

victim. There is also no evidence to show that the victim was conscious and was in a

position to speak while undergoing treatment in the B.P. Civil Hospital at Nagaon.

Rather, it appears from the testimony of PW-4 and the I.O. (PW-7) that the victim had

died in the early hours of 21.07.2017. Therefore, it is doubtful as to whether PW-2 had

actually heard his injured wife making a dying declaration. To that extent we are of

the view that the learned trial court has rightly not relied upon the testimony of PW-2

for convicting the accused.

23. In so far as the evidence adduced by PWs-4 and 5 is concerned, their

testimony is found to be consistent, free from contradiction and hence reliable. Both

these witnesses have clearly deposed that they had heard the victim say that the son

of Mangala Saikia (i.e. the accused) had stabbed her with a knife. Not only that PW-5

had even mentioned the dying declaration of deceased Pori Saikia in the exact Page No.# 14/18

words uttered by the victim. It has also come out from the testimony of PW-4 that the

knife was recovered by the police on being shown by the accused. The statement of

PW-4 finds due corroboration from the evidence of PW-7 (the I.O.). Therefore, the oral

dying declaration brought on record by the PWs-4 and 5 appears to be truthful, the

unalloyed truth and hence, had been rightly relied upon by the learned trial court.

24. Although PW-3 has been declared as a hostile witness, yet, this witness has also

stated that when he went to the place of occurrence he had seen Pori Saikia lying in

her courtyard in a pool of blood and some villagers had also gathered there. Having

witnessed the occurrence he immediately went to the house of PW-4 and informed

her and then called 108 ambulance and took the victim to the hospital. The aforesaid

testimony of PW-4 finds corroboration from the other evidence available on record.

25. It has been clearly established from the evidence adduced by the witnesses

examined by the prosecution that the incident took place at around 10.30 p.m. on

20.07.2017 in the house of deceased Pori Saikia when her husband (PW-2) was away

in connection with his employment. The fact that the deceased had died homicidal

death due to multiple stab injuries sustained in her body has also been duly

established from the medical evidence brought on record.

26. In so far as the retracted confessional statement of accused Nitul Saikia is

concerned, we have already noted that the statement of the accused was

recorded by the learned Chief Judicial Magistrate (CW-1) after adhering to all the

procedural norms. The accused was given sufficient time for reflection and was also

informed about the implication that his confessional statement might have in future.

Page No.# 15/18

Despite knowing the same and after sufficient time for reflection, the accused had

recorded his statement by giving a vivid description of the circumstances which had

led to the incident. From a reading of his statement recorded under Section 164

Cr.P.C. we are of the view that the confession was made by the accused voluntarily

and the same appears to be truthful. Therefore, merely because the

accused/appellant had subsequently retracted from his confession, that alone

cannot be a ground to interfere with his conviction recorded by the learned trial

court upon due appreciation of the entire evidence available on record.

27. The recovery of the knife on being lead by the accused as well as the seizure

of a blood stained bed sheet from the house of the victim, the FSL report testing

positive for human blood and the fact that the accused was arrested from the jungle

under circumstances narrated by the I.O. have been duly proved by bringing proper

evidence on record. These circumstances, viewed in the light of the testimony of the

prosecution witnesses as well as the confessional statement of the accused person

recorded under section 164 Cr.P.C. leaves no room for doubt that the prosecution

has succeeded in establishing beyond doubt by leading cogent evidence that it was

none other than the accused/appellant who had caused multiple stab injuries on the

person of the victim Pori Saikia leading to her death.

28. Having held as above, let us now examine the plea of the appellant's counsel

seeking conversion of the conviction of the appellant on the ground that the incident

took place under grave and sudden provocation and without any pre-meditation.

29. As noted above, the confessional statement of the accused clearly shows that Page No.# 16/18

the victim had told him that she would not withdraw the pending criminal case and

pushed the accused out of her house which had enraged the accused. Then an

altercation took place with the victim which had resulted into the accused stabbing

her in the abdomen with a knife which was hanging on the wall. It has also come out

from the confessional statement that the accused was having an illicit relationship

with the victim and on assurances that the criminal case instituted by her against the

accused would be withdrawn, the victim also used to take money from the accused.

Under such circumstances, the behaviour of the victim, in suddenly refusing to

withdraw the case and pushing the accused out of her house would naturally cause

anger to any person who had expectation of a completely different behaviour from

the victim.

30. The accused has also mentioned in his confessional statement that by

assaulting the victim he had made a huge mistake and had committed a sin. That is

why he had made the confession. The aforesaid statement of the accused also

shows remorse on his part and lends further assurance to this Court so as to assume

that the assault on the victim by the accused was a sudden reaction on the face of

provocation coming from the victim. There is also no evidence to show that the

accused had acted with pre-meditation inasmuch as even the knife used in the

incident was not brought by the accused but was hanging in the wall of the house of

the victim.

31. The confessional statement of the accused has been relied upon for his

conviction. The confession of the accused has to be read in its entirety and any Page No.# 17/18

bifurcation of such statement would not be permissible. If the entire statement of the

accused recorded under section 164 Cr.P.C. is taken on its face value, then it would

be apparent that the victim had in fact provoked the accused just before the

occurrence. Therefore, we find force in the submission of Mr. Uddin that the incident

took place under grave and sudden provocation from the victim and the

accused/appellant had acted in a heat of passion, having lost his sense of self-

control. We are, however, unable to agree with the submission of the learned counsel

for the appellant that there was no intention to cause death in this case. The multiple

injuries caused by a sharp weapon (knife) on the vital parts of the body would be

sufficient to presume that the accused had assaulted the victim with the intention to

cause death to her.

32. In the case of Indrajeet alias Sukhatha (supra) only two injuries were inflicted

on the deceased by an implement which is normally used in carpentry and one of

the two injuries was found to be sufficient to cause death. No motive for committing

the murder could either be alleged or proved. It was under such facts and

circumstances that the Apex Court has held that there was neither any intention to

cause death nor knowledge that death would inevitably be caused on account of

such injury. Accordingly, the conviction of the accused under section 302 was

converted to one under Section 304 Part-II of the IPC.

33. Likewise, in the case of Mavila Thamban Nambiar (supra) death was caused

due to the single injury caused on the chest with a pair of scissor. Taking note of the

facts and circumstances of that case, the Supreme Court had held that it would be Page No.# 18/18

reasonable to infer that the accused had the knowledge that the injury might result

into death but the intention to cause death cannot be inflicted upon him.

34. Coming to the case in hand, as noted above, the motive to assault the victim

has been established and the multiple stab injuries on the vital parts of the body of

the victim leaves us convinced that the appellant did have the intention to cause

death of the deceased. In view of the above, we are of the unhesitant opinion that

the present would be a case coming within the ambit of Section 304 - Part-I of the

IPC.

35. For the reasons stated herein above, we convert the conviction of the

appellant/accused from Section 302 IPC to one under Section 304 - Part-I of the IPC

and award him sentence of 10 years of rigorous imprisonment. The jail sentence of

the accused/appellant would, however, stand adjusted against the sentence of

imprisonment already served by the appellant. In so far as the conviction of the

appellant under Section 451 IPC and the fine imposed by the learned trial court is

concerned, the same would remain undisturbed.

The appeal is allowed to the extent indicated above.

Send back the LCR.

                               JUDGE                            JUDGE



Comparing Assistant