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Judgment
Appellant has filed this appeal against the judgment dated04.02.2009 passed in Sessions Trial No.53/2008, by the Sessions Judge, Panna. Appellant
and another co-accused Rooplal were prosecuted for commission of offence punishable under Section 302/34 of IPC. Trial Court acquitted the
accused-Rooplal and convicted the appellant for commission of offence punishable under Section 302 of IPC and awarded a sentence for Life.
Prosecution story, in brief is that, on the date of incident i.e. 28.03.2008 at around 4 O’clock in the evening deceased and two accused persons
who had taken liquor came there. Appellant asked money from Surendra Singh [since deceased], he refused to give money. On this count, there was
a quarrel between deceased and appellant. Both had scuffled and in that event, appellant had inflicted blows by knife at the stomach of the deceased.
Father of the deceased came at the spot. He tried to snatch knife from the appellant. He also received injuries. Appellant ran away from the spot.
When deceased was on the way, report of the incident was lodged at the Police Station. Police conducted investigation and filed charge-sheet.
Appellant abjured his guilt during trial and pleaded innocence. Trial Court held the appellant guilty and awarded sentence as mentioned above.
Learned counsel for the appellant [amics-curiae] has submitted that evidence of prosecution witnesses is not sufficient to hold the appellant guilty
for commission of offence punishable under Section 302 of IPC. She further submitted that even if the evidence of prosecution is accepted as it is,
even then the offence committed by the appellant would fall under Section 304 Part-I of the IPC. She further submitted that sentence of the appellant
be modified to already undergone. In support of her contentions, learned counsel relied on the judgment of the apex Court in the case of Arun and
another vs. State of Chhatisgarh, reported in (2017) 3 SCC 247.
Learned counsel for the State has submitted that there is sufficient evidence to hold the appellant guilty for the offence of murder. He had inflicted
repeated blows on the vital part of the body of the deceased i.e. stomach. After some time, deceased was died hence, the trial Court has rightly held
the appellant guilty for murder of the deceased and awarded proper sentence.
(PW-1) Lallu Singh is the eye witness of the incident. He deposedthat at around 4 O’clock in the evening, I was at my Shop of Tea Stall.
Appellant and deceased both came to my shop, they were abusing to each other. I had kept them away from my Shop. When they covered a distance
of 20 feet, appellant had inflicted blows of knife to the deceased on the stomach. Thereafter, a bus came there, accused sat in the bus then, deceased
stopped the bus and alighted from the bus. There was a quarrel between them. Both were gripping with each other and went to another place.
(PW-2) Ram Das turned hostile. (PW-3) Kishore Prasad is another witness of the incident. He deposed that I was going to my field. I met with
appellant and deceased, both were laying on Chabutara. After some time I noticed that Surendra (since deceased) was in injured condition and
intestine came out from the stomach and thereafter, I want away.
Subsequently, I came to know that Surendra died.
(PW-4) Kishore Prasad and (PW-5) Ram Pal Singh turned hostile.
(PW-7) Dr. Hemendra Singh, Assistant Surgeon, posted at Community Health Center, Gunnor District Panna, performed autopsy of the deceased.
He deposed that I noticed following injuries on the body of the deceased.
“(1) Incised injury right side of the chest 5x1 cm caused by sharp edged weapon.
(2) Incised wound on stomach 4x1x6 cm. Intestine came out from the stomach. Except those injuries, I did not notice any injury. On internal
examination, I noticed that bones and ribs were cut. Right lung was also cut. Small intestine was also cut. Injuries were caused by sharp edged
weapon.â€
He further deposed that I examined injured Hanumat Singh and noticed following injuries:
“(1) Incised wound 1x1/4 cm on right hand and another is on left hand 2x1/4 cm.
(2) Abrasion 1x1/4 cm on left hand.
Injuries were caused by hard and sharp edged weapon.
(PW-11) Hanumat Singh, who is father of deceased. He deposed that persons told him that there was a quarrel between appellant and deceased.
(PW-12) M.S. Gavli, is the Investigating Officer. He deposed that complainant (PW-11) Hanumat Singh lodged the report which is Ex-P-16, I
signed the same. I seized plain earth and red earth and recorded statements of the witnesses. I prepared spot map which is Ex-P-17. Appellant was
arrested on 29.03.2018. On his memorandum Ex-P-13, Shirt, Trouser and knife were seized. Seized articles were sent to FSL.
(PW-1) Lallu Singh, is the eye witness. His presence on the spot is natural. He specifically deposed that appellant had inflicted blows on the
person of the body of the deceased. (PW-3) Kishore Prasad also corroborated the fact that there was a quarrel between appellant and deceased and
after some time he had seen that deceased was in injured condition and laying on the earth.
Hon’ble Supreme Court in the case of Deny Bora vs. State of Assam, reported in (2014) 14 SCC 42 has held that conviction can be based on
the sole testimony of single eye witness, if it inspire confidence of the Court.
“14. As we find, the prosecution has otherwise not been able to establish the case against the appellant and, therefore, nonexamination of the
material witnesses cannot be regarded as inconsequential. As we find, the conviction wholly rests on the sole testimony of PW-14. It is well settled in
law that conviction can be based on the testimony of a singular witness. It has been held in Sunil Kumar v. State (Govt. of NCT of Delhi)
“9……….. as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal
impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But, if there
are doubts about the testimony the courts will insist on corroboration.â€
 The same principle has been reiterated in Namdeo v. State of Maharashtra[6] by stating that it is open to a competent court to fully and completely
rely on a solitary witness and record conviction, if the quality of the witness makes the testimony acceptable.â€
In our opinion, evidence of (PW-1) is reliable and trustworthy. There is corroboration by other evidence. From the possession of appellant knife
was seized. Blood stains cloths were also seized. Human blood was found on the articles seized from the possession of appellant. Hence, in our
opinion, the trial Court has rightly held that the appellant had killed the deceased. (PW-7) Dr. Hemendra Singh, who performed the post-mortem of the
deceased deposed that deceased received incised injuries and injuries could be caused by knife.
Next question for consideration that what offence appellant has committed. The Hon’ble apex Court in the case of Arjun and another vs.
State of Chhattisgarh, reported in (2017) 3 SCC 247 has held as under:
“19. The point falling for consideration is whether the conviction of the appellants under Section 302IPC is sustainable. As discussed earlier, the
evidence clearly establishes that while Ayodhya Prasad and other witnesses were cutting the trees, there was exchange of words which resulted in
altercation and during the said altercation, the appellants attacked the deceased. Thus, the incident occurred due to a sudden fight which, in our view,
falls under exception (4) of Section 300IPC.
To invoke this exception (4), the requirements that are to befulfilled have been laid down by this Court in Surinder Kumar vs. Union Territory of
Chandigarh(1989) 2 SCC 217, it has been explained as under:-
“7. 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…………..â€
Further in the case of Arumugam vs. State, Rrepresentedby Inspector of Police, Tamil Nadu, (2008) 15 SCC 590, in support of the proposition of
law that under what circumstances exception (4) to Section 300IPC can be invoked if death is caused, it has been explained as under:-
“9. …….“18. 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
300IPC is not defined in the Penal Code, 1860. 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 had 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’.â€
The accused, as per the version of PW-6 and eye witnessaccount of other witnesses, had weapons in their hands, but the sequence of events that
have been narrated by the witnesses only show that the weapons were used during altercation in a sudden fight and there was no pre-meditation.
Injuries as reflected in the post-mortem report also suggest that appellants have not taken “undue advantage†or acted in a cruel manner.
Therefore, in the fact situation, exception (4) under Section 300 IPC is attracted. The incident took place in a sudden fight as such the appellants are
entitled to the benefit under Section 300 exception (4) IPC.
When and if there is intent and knowledge, then the samewould be a case of Section 304Part I IPC and if it is only a case of knowledge and not
the intention to cause murder and bodily injury, then the same would be a case of Section 304Part II IPC. Injuries/incised wound caused on the head
i.e. right parietal region and right temporal region and also occipital region, the injuries indicate that the appellants had intention and knowledge to
cause the injuries and thus it would be a case falling under Section 304Part I IPC. The conviction of the appellants under Section 302read with Section
34IPC is modified under Section 304Part I IPC. As per the Jail Custody Certificates on record, the appellants have served 9 years 3 months and 13
days as on 2nd March, 2016, which means as on date the appellants have served 9 years 11 months. Taking into account the facts and circumstances
in which the offence has been committed, for the modified conviction under Section 304 Part I IPC, the sentence is modified to that of the period
already undergone.â€
In the present case, as per evidence of prosecution witness (PW-1) there was a quarrel between appellant and deceased. Both were abusing to
each other. They had taken liquor, they came to the Shop. This shows that there was no per-mediation and pre-planning. Incident had occurred all of a
sudden. Appellant had inflicted blows of knife in a heat of passion. 16. The next question is whether the appellant had taken undue advantage or acted
in a cruel manner. (PW-7) who performed the postmortem of the deceased, he noticed two incised injuries on the person of the deceased. In the
above quoted incident, there were three injuries on the temporal region of the deceased. Hon’ble Supreme Court has converted the offence under
Section 304-I of the IPC.
Looking to the nature of injuries and the act of appellant, in our opinion, it is not proved that appellant acted in a cruel manner or he had taken
undue advantage.
On the basis of above discussion, appeal filed by the appellant is partly allowed. His conviction and sentence awarded by the trial is hereby set
aside. Appellant is convicted for commission of offence punishable under Section 304-I of IPC. He is awarded a sentence of RI ten years and fine
amount of Rs.1,00/- failing which, further six months imprisonment. Appellant is in jail since 29.03.2008. He has completed more than 11 years actual
jail sentence i.e. more than the sentence awarded to him under this judgment. Hence, the appellant be released forthwith, if he is not required in any
other case.
We appreciate the assistance provided by learned amicuscuriae.