Shri S.A. Salim - Appellant @HASH The State

Debi Prosad Dey, J. - This appeal is directed against the judgement and order of conviction passed by learned Sessions Judge, Andaman & Nicobar Islands, Port Blair dated 10/11.03.2015 whereby and where under learned Sessions Judge has convicted the appellant under section 147 and 302 IPC and thereafter sentenced the appellant to suffer simple imprisonment of one year and six months and to pay a fine of Rs. 2000/- in default for simple imprisonment of three months for the offence under section 147 of Indian Penal Code and further sentenced him to suffer life imprisonment and to pay a fine of Rs. 5000 in default to suffer simple imprisonment for six months for the offence under section 302 of Indian Penal Code. Both the sentences shall run concurrently.

Being aggrieved by and dissatisfied with such judgement of conviction and sentence the appellant has preferred this appeal under section 374 (2) of Criminal Procedure Code, 1973. The specific challenge to such judgement of conviction and sentence is that learned Sessions Judge has failed to consider that the witnesses did not corroborate each other in material particulars and thereby prosecution has failed to bring home the charges against the appellant. The appellant has further challenged such order of conviction on the ground that learned Sessions Judge did not discuss the evidences on record in it''s true perspective and thereby came to an erroneous decision in the case under reference.

We are duty bound to discuss the entire gamut of the case taking into account the evidences on record being first appellate court and therefore, it would not be out of place to mention in brief about the facts of the case including the evidences recorded by learned Session Judge.

The factual matrix as unfolded from the case of the prosecution is that on 14.02.2000 at 9.30 a.m. Shri K. Dilip lodged a written complaint at Aberdeen PS against Salim and others on the allegations that Salim had hit Raju with a sharp cutting weapon and thereby Raju has been seriously injured and was taken to hospital.

On the basis of that written complaint Aberdeen PS Case No. 126 of 2000 was started against Salim and others under sections 147/140/149/307/324 IPC.

Raju, however, succumbed to his injuries in hospital and accordingly 302 IPC was added. The investigation ultimately culminated in filing of charge sheet under sections 147/148/149/302/34 of Indian Penal Code against the Dinesh Rao, Simon Xaxa, Vikas Chandra Nath, Sanjib Kishor, Depish Ram, S.A. Salim and Satyavelu. Satyavalu absconded during trial and accordingly the case against Satyavelu was filed on 11.04.2007 by the Trial Court. Charges under section 147/148, 324/149 and 302/149 of Indian Penal Code were framed against the accused. The accused pleaded not guilty and claimed to be tried.

Leaned Session Judge acquitted all the accused persons from the charges under section 148/324/149 and under section 149/302 IPC except the convict Salim. The remaining accused persons have been convicted under section 147 only.

No appeal has been preferred on behalf of the State challenging the said order of acquittal by Learned Sessions Judge and accordingly we are not in a position to disturb the observation and decision of learned Sessions Judge on that score.

In the appeal under reference we shall confine our discussion as to how far the prosecution has been able to bring home the charge under section 147 and 302 of Indian Penal Code against the appellant.

The bedrock of the criminal prosecution is First information report, which sets the criminal law in motion and which is the earliest version in respect of the occurrence. The Apex Court has condemned time and again and raised suspicion in lodgement of FIR at a belated stage. Per contra, the Apex court has time and again appreciated the prompt lodgement of FIR on the ground that prompt lodging of FIR rules out the probability of embellishment or concoction of any case.

In the appeal under reference, we find that the place of occurrence is 5 Kms away from the Aberdeen PS and defacto complainant K. Dilip lodged the FIR within one hour. The Occurrence took place at 8.30 a.m. and the FIR was lodged at 9.30 a.m.

The dispute cropped up amongst two groups of students of class XI of Govt. Senior Secondary School over the issue of alleged supremacy of defacto complainant in Govt. Senior Secondary School situated at School Line. Scuffling took place in between defacto complainant and his friend with another student of the selfsame school on that issue. The said student reported the matter to the Principal of that school. In turn the Principal directed the defacto complainant and others to bring their fathers to the school.

The defacto complainant found that the said student was moving with Simon, Ranjit and Ankush. Seeing them the defacto complainant left the school and returned to the school along with Razak, Raja, Ravi and Raju and one Nepali boy from Austinabad junction. The defacto complainant slapped one Simon Xaxa, who was sitting at the junction. Thereafter they left the school and proceeded to their home. The defacto complainant also received a threatening call over phone in the evening of that day. The defacto complainant reported the matter to Raju on 13.02.2000 and Raju assured to accompany him to his school on the very next day. On the fateful date at about 7.30 a.m. the defacto complainant came to School Line School at about 7.30 a.m. being accompanied by Mukesh, Raju and Sanjay. On reaching there, they found Simon, Salim and other boys in front of the school. One Raju came there and tried to settle the dispute between defacto complainant and Simon. But Salim did not agree to his request and at that point of time one car No. AN-01/B-1040 came to the spot. Dinesh, Bepash and Sanjiv alighted from that car. Dinesh wanted to know about the matter and Salim then told him that though Rajive had given a proposal of compromise, but he was not agreeable to such proposal. Dinesh then challenged the defacto complainant to fight with him but the defacto complainant refused to fight with Dinesh. Raju tried to intervene but fighting between Dinesh and Raju was started. Salim stood behind Dinesh. Suddenly Salim brought out one knife and stabbed Raju in his abdomen. Thereafter Salim again attempted to stab Raju with that knife but Sanjay prevented him from doing so and as such Sanjay also sustained injury on his hand. Seeing injury on the person of Raju, the friends of Raju assaulted Salim by rod. Raju started crying with pain and accordingly Sanjay took him to the hospital and defacto complainant went to Police Station for reporting the matter to police. On the basis of that written complaint of K Dilip, the criminal law was set in motion against Salim and his friends. Ultimately learned Sessions Judge convicted Salim for the offence under section 147 and 302 of Indian Penal Code. The prosecution has examined as many as 15 witnesses in order to bring home the charges against the appellant. During his examination under section 313 of Criminal Procedure Code the appellant pleaded not guilty. No specific case has been introduced by the appellant during his examination under section 313 of Criminal Procedure Code and no witness has been examined on behalf of the defence.

The record reveals that the crime case no.126 of 2000 dated 14.02.2000 was investigated by the police and ultimately culminated in filing of charge sheet under section 147/148/149/302/324 of IPC against Dinesh Rao, Simon Xaxa, Viskash Chander Nath, Sajeev Kishor, Deepesh Ram, S.A. Salim and Satya Velu.

The prosecution has examined as many as 15 witnesses in order to bring home the charge against the appellant. 21 documents have been exhibited on behalf of the prosecution and the same have been marked as Exhibit-1 to Exhibit-21. Some materials have been marked as Mat Exhibit-I to Mat Exhibit-X. It would not be out place to mention here about the evidence adduced by the prosecution on record in order to appreciate the case of the appellant.

PW-1 K. Dilip has lodged the FIR within one hour from the time of the occurrence. It is evident from the evidence of PW-1 that the dispute cropped up between two groups of student on 11.02.2000 and accordingly, Dilip reported such matter to his friends. On 14.02.2000, PW-1 went to the school, being accompanied by Raju, Sanjay and Mukesh. On reaching school, he found that Simon was present there along with some of his friends including the appellant. The dispute between the parties was almost settled at the intervention of one Rajiv and others but at that time one white coloured car arrived at the place and Dinesh, Vikash and one Satya alighted from the car. Salim told them that though the matter was compromised but he was not ready to concede to that type of compromise. Dinesh invited fight with the group of PW-1 and ultimately started fighting with Raju. Salim did not take part in the fight but he stood behind Dinesh. Suddenly, Salim brought out a knife which was kept behind his back and stabbed on the abdomen of Raju. Blood started oozing out from the wound of Raju and he was shouting for help. Salim again attempted to hit Raju with the knife, but he was prevented from doing so by Sanjay, as a result, Sanjay sustained cut injury on his right palm. All the accused then left the place. PW-1 returned to his house and thereafter went to PS Aberdeen and reported the entire matter in black and white. The written complaint submitted by PW-1 has been marked Exhibit-1. The blood stained wearing of apparels Raju were handed over to the Police in presence of PW-1 and Police seized such wearing apparels. PW-1 identified his signature on the seizure list vide Exhibit 2/1. PW-1 duly identified the wearing apparels of Raju including the shoes of Raju which were marked as Mat. Exhibit I & II. PW-1 also put his signature in another seizure list whereby the Ambassador car was seized vide exhibit 3/1.

On careful scrutiny of cross examination of PW-1, it is evident that except some minor discrepancy, the evidence of PW-1 with regard to such assault by S.A.Salim on Raju can safely be accepted. It is apparent from the evidence of PW-1 that there is absolutely no suspicion with regard to the presence of PW-1 at the scene of occurrence and PW-1 saw Salim to cause such injury with the help of a knife on the person of Raju. It is also apparent from such evidence of PW-1 that Sanjay sustained some injury in his right palm while protecting Raju from such second blow of Salim. The core testimony of PW-1 appears to be reliable and trustworthy. Nothing has been elicited in the cross examination of the PW-1 to show that PW-1 has had specific enmity with Salim and others so as to implicate them in a false case. There is absolutely no challenge in the cross examination of PW-1 with regard to his presence at the scene of occurrence. PW-1 admitted in his cross examination that the dispute between the parties was already settled when he reached the school on 14.02.2000. Admittedly, fighting was started between Dinesh and Raju despite the settlement of such issue. Suddenly Salim brought out a knife from his person and stabbed Raju into his abdomen causing grievous injury on the person Raju and ultimately Raju succumbed to such injury. The aforesaid fact has been well established from the evidence of PW-1. The core testimony of PW-1 remains unshaken despite such lengthy cross examination of PW-1.

PW-2 is Pandi Selvam. On account of his personal work, he went near the place of occurrence on 14.02.2000 at about 7.30/8.30 AM and found that talks of compromise were held between Dilip and Simon. PW-2, Pandi Selvam saw that suddenly Salim brought out a knife and pierced the same into abdomen of Raju. Salim attempted to give the second blow to Raju with the knife but he was prevented by one Sanjay. Raju was taken to hospital. Pandi Selvam, PW-2 went to the hospital to see him but, by that time Raju succumbed to injuries. The wearing apparels of Raju were seized in presence of PW-2. PW-2 signed on the seizure list and identified the articles vide Exhibit 2/2 and Mat Ext. I & II. PW-2 also accompanied the police when the knife was recovered at the instance of accused Salim. PW-2 also signed on such seizure list vide Ext. 4/1. The knife has been marked as Mat. Ext. III, at the instance of PW-2. It has been suggested to PW-2 that he did not see any such occurrence. PW-2 has admitted in his cross examination that such type of knife is definitely available in open market. It has been elicited in the cross examination of PW-2 that except Raju Singh, Sanjay had also received injury on his palm at the time of such incidence. I fail to understand as to why this fact has been elicited from PW-2 in his cross examination since by such cross examination it has been admitted that PW-2 saw such occurrence of assault on the person of Raju Singh and injury on the person of Sanjay.

We would like to deal with the criticism of learned advocate for the appellant in accepting the evidences of the aforesaid witnesses at the appropriate level. However, on careful consideration of the totality of the evidence of PW-2, we find that PW-2 has had no enmity with Salim and he has had no plausible reason to depose falsely against Salim and other accused persons. On the contrary it is apparent that he is the natural witness of the occurrence and he has got no hidden agenda to prosecute the appellant falsely.

PW-3 R. Balaji has had no knowledge of occurrence and we can certainly discard the evidence of PW-3.

PW-4 M. Sunder had been to school line for purchasing some materials on 14.02.2000 at about 7.30 AM and he noticed that there was exchange of hot words between Simon and Dilip. Being the man of the same locality, he had acquaintance with Dilip and Simon. PW-4 further noticed that Raju tried to pacify Simon and Dilip and at that time one white coloured Ambassador reached near the school. 3-4 boys alighted from the Ambassador by saying ''Maro Maro''. One of the said boys suddenly pierced the knife on the abdomen of Raju. That assailant attempted to give second blow on Raju but, he was prevented from doing so by Sanjay. Sanjay sustained injury on his right palm. PW-4 at that time caught hold of Raju and Simon then assaulted PW-4 over his left side of jaw by iron rod. PW-4 fell down on the ground out of pain. Raju was thereafter removed to hospital. PW-4 sustained injury on his person and he was accordingly treated at G.B. Pant Hospital by giving stitches on his injuries. Learned Sessions Judge, after seeing such mark of injury, on the left side of the head approaching downwards to jaw has duly noted such fact in the deposition of PW-4. PW-4 specifically stated that he had no knowledge about the name of such Salim at the time of such occurrence but, he could identify him by face. PW-4 accordingly identified Simon Xaxa as his assailant and also identified S.A. Salim amongst all other accused. PW-4 however could not identify other accused persons. In his cross-examination, PW-4 stated he did not interfere with the dispute between Dilip and Simon at the outset and he stood at least 10 steps away of them. Virtually, the presence of PW-4 at the place of occurrence admitted by such cross examination of PW-4. Admittedly, PW-4 had no acquaintance with Salim prior to such occurrence and he could not even name Salim as the assailant of Raju. Had he been tutored by the Police or by the interested persons, he would have named Salim and all the accused persons during his examination in chief. PW-4 went to the place of occurrence on account of his personal work and the said fact has been admitted in the cross examination of PW-4. PW-4 was injured on that occurrence and the said fact has also been admitted. Learned Sessions Judge also noticed such mark of injury on the person of PW-4 at the time of his deposition. Therefore, it may safely be stated that PW-4 saw such occurrence and he was injured by one of the accused at the time of such occurrence. PW-4 could not name Salim as the assailant but he has identified him in Court. PW-1 and 2 have specifically stated about the name of Salim as assailant. PW-4 though did not name Salim but corroborated in material particulars about the injury on person of Raju, Sanjay and himself. Therefore, PW-4 has corroborated about the occurrence under reference and his presence. There is no challenge in the cross examination of PW-4 that he did not sustain any injury on his person. There is absolutely no challenge in the cross examination about the presence of PW-4 at the time of such occurrence. On the contrary, it is apparent that the presence of PW-4 has been admitted in the cross examination and that there was no challenge with regard to sustaining of such injury on the person of PW-4 at the time of such occurrence.

PW-5 Moolchand Yadav filled up the formal FIR on the basis of the written complaint filed by the defacto complainant. PW-5 being a formal witness has simply recorded the FIR no.126/2000 dated 14.02.2000 against Salim and others vide Ext. 5.

PW-6 Rajeev could not say anything about the occurrence and the evidence of PW-6 may also be discarded for the purpose of this case.

PW-7 Dr. Lakshmi Narashiman examined one Raju son of Rajinder Singh on 14.02.2000 at about 9.15 hours at G.B. Pant Hospital and found the following injuries on his persons.

(i) Abdominal injury with a sharp object.

(ii) Exposure of intestine due to stab on abdominal wall.

(iii) Patient was conscious.

In order to manage such injury the patient was shifted to surgical ward. Dr. P.G. Lall, surgeon operated the patient in order to manage such injuries. The surgeon found the following injuries on the person of the injured.

2" vertical incised wound in the right paramedian line 2" below the right sub-coastal area. Loops of intestine came out of the stab wound.

Right lobe of liver teared about 2�"

Infra heptic part of Inferior venacava vessel was ruptured.

Haemorrhage was present, which was massive quantity.

As per the observation of the surgeon, the nature of injury was grievous and the injuries detected on the person of injured was sufficient to cause death of a person. The surgeon was further opined that sharp cutting weapon was used for causing such injury. The injury report has been marked as Ext. 6. Police sent a requisition at that time for recording the statement of Raju. But, PW-7 did not allow the police to record the statement of Raju as his condition was critical. PW-7 has marked his endorsement on the requisition vide Ext.7/1. PW-7 has also identified accused Dinesh Rao as the person, who was examined by PW-7 on 14.02.2000. PW-7 found linear abrasion about 3 cm in length from Adam''s apple and downward on the person of Dinesh Rao and the said injury report of Dinesh Rao has been admitted in evidence in Ext.A. The cross examination of PW-7 does not establish that PW-7 had no occasion to examine Raju at the outset. On the contrary, it is crystal clear from evidence of PW-7 that Raju was examined by PW-7 at the outset and Raju sustained severe injury on his person which tore apart the liver of Raju and finally Raju succumbed to such injuries.

PW-8 Abraham is a close neighbour of PW-1. He accompanied PW-1 on 11.02.2000 and PW-1 then slapped Simon. PW-8 corroborated the statement of PW-1 in material particulars. On 14.02.2000 at about 7.45 am, he found Salim and other boys at the time of such occurrence. PW-8 found that when the matter was almost compromiised between the parties, Dinesh and Raju started fighting with each other. Salim stood silently behind Dinesh. Suddenly Salim brought out one knife and gave a blow to Raju in the right side of the abdomen. Salim attempted to give the second blow in the domain of Raju but, Sanjay Yadav somehow caught hold the knife of Salim and as a result of which Sanjay got cut and bleeding injury on his right palm. PW-8 also accompanied the police when the Mat Ext.III i.e. the knife was recovered at the instance of Salim and he has put his signature on the statement recorded by police under section 27 of the Evidence Act vide Ext.8/1. PW-8 also put his signature on another seizure list vide Ext.8/2. PW-8 gave statement before the learned Magistrate and he has proved such statement and his signature thereupon, vide Ext.9, 9/1 & 9/2. The statement of PW-8 has been admitted in evidence with objection. PW-8 has admitted in his cross examination that he had no acquaintance with Salim from before the occurrence. Some contradictions have been taken in the cross examination of PW-8 in respect of his statement made under section 164 of CrPC. PW-8 also did not mention before the learned Magistrate that such offending weapon was recovered at the instance of Salim.

PW-9 Deepak Kumar Sarkar has had no personal knowledge about the incident and accordingly his evidence may be discarded.

PW-10 Dr. Mrs. Gulsan Bibi, examined PW-2 M.Sunder on 14.02.200 at 9.40 am in G.B. Pant Hospital. On examination in the surgical outpatient department, she found following injuries in his person.

Incised would 2�" length � cm in breadth deep to the skin level only placed at the left side of scalp.

Incised would 2" in length � cm in breadth deep to the skin level only placed at the left side of face extending from front of the ear to the cheek.

The wound was simple in nature. It was fresh, which might have been caused by any sharp cutting weapon.

The injury report has been marked as Ext.10. In his cross examination, PW-10 has stated that such injury was caused by sharp cutting weapon and could not be caused by iron rod.

PW-11 Dr. K.L. Jordhar examined Simon Xaxa. On 14.02.2000, and found some subconjunctibal Hemorrhage at the right eye of the patient. The nature of injury was simple, which might have been caused by hard and blunt substance. The injury was not fresh. The medical report has been marked as Ext.11. PW-11 also examined one Salim on 14.02.2000 at 10.00 am in G.B.Pant Hospital and on examination, he found a lacerated wound skin depth 1� inch in length at left shoulder and also a lacerated wound � x � inch x � at left gluteal region and also a bruise injury about 10 inches length at left side of his back along with another bruise about 3 inches at label region. The nature of injuries were found simple which might have been caused by blunt object and injuries were fresh. The injury report of Salim has been marked as Ext. 12. Doctor examined Salim and identified Salim as a person who was examined by the Doctor on 14.02.2000. PW-11 has thus proved that Salim sustained some injuries on his person on 14.02.2000. PW-11 had no any animosity with either Salim or Simon. In no stretch of imagination it can be accepted that such injury reports were manufactured in order to establish that Simon Xaxa and Salim were injured in such occurrence/sustained some injuries at the occurrence under reference.

PW-12 Traffic Constable Mr. P. Balasubramiam went to the spot or place of occurrence immediate after such occurrence. PW - 12 has heard about such occurrence and as such the evidence of PW-12 has had no bearing in the merit of the case.

PW-13 Dr. Wazid Ali Shah conducted post mortem examination and the dead body of one Raju Singh. The dead body was identified by one Sandeep Sunkawa and Sanotsh Toppo to PW-13 Dr.Wazid Ali Shah. Dr.Shah found the following external injuries.

Incised wound above umbilicus spindle shaped measuring 4" x

2" x approx 5-6" damaging underlying viscera and vessels.

On dissection of the body, PW-13 found the following injuries.

Inferior venacave was injured.

Incised injury above umbilicus cavity filled with blood.

Incised injury measuring 3" x 1" x 1" in left lobe of liver.

Injury in small intestine.

Inferior venacave was also injured.

The cause of death as per the opinion of Dr.Shah was due to hemorrhagic shock following injuries to inferior venacave liver and intestine caused by incised stab injury over abdomen by sharp weapon which was homicidal in nature. All the injuries were ante mortem in nature. The post mortem report has been marked as Ext.13. The Doctor has further admitted that such injuries may be caused by Mat.Ext.III i.e. the knife which was recovered at the instance of the appellant. It has been suggested to the Doctor that such injury on the person of deceased could not be caused by Mat. Ext.III.

Mr. Tarseem Singh PW-14 was posted as Station House Officer, PS Aberdeen on 14.02.2000. The FIR was recorded by M.C. Yadav. And PW-14 also proved such FIR vide Ext.5/1 & 5/2. He has also proved the signature of Yadav vide ext.5/3. He entrusted the investigation of such case to Mr. R.S. Rathore. PW-14 Mr. Tasram Singh is a formal witness. He simply directed M.C. Yadav to record the FIR and thereafter to Mr. R.S. Rathore to investigate the case.

PW-15 Mr. M.S. Rathore being authorised to investigate, immediately proceeded to G.B.Pant Hospital and gave requisition for the recording of statement of injured Raju vide Ext.7 & 7/1. But, Doctor did not permit him to record such statement of such Raju. PW-15 found injured Sanjay in the outpatient department of such hospital. PW-15 went to the place of occurrence and prepared rough sketch (Ext.14). He has proved his signature thereon vide ext.14/1. PW-15 seized the shirt of victim Raju Singh, controlled Pitch and blood stained pitch from the place of occurrence under seizure list (ext.15) Signature of PW-15 marked as Ext.15/1. The wrapper of seized shirt has been marked ext.16 and the signature of PW-15 has been marked as Ext.15/1. The shirt has been marked as Ext.IV. The wrapper of blood stained pitch has been marked as Mat. Ext. V. Having received the information about death of Raju Singh PW-15 submitted prayer for adding section 302 of IPC before the learned court. PW-15 also seized the blood stained blue colour jeans pant of Raju Singh, one brown Chaddi and one pair of black colour shocks and one pair of shoes and one belt said to be of Raju Singh and as produced by the doctor vide Ext.2 (seizure list) and Ext.2/1 (signature of PW-15). The said articles have also been identified and proved by PW-15 vide Mat.Ext.VI, VII and VIII. PW-15 seized wearing apparels of the appellant who was then admitted in orthopedic ward in G.B.Pant hospital under seizure list vide Ext.18. The signature of the PW-15 has been marked as Ext.18/1. The wearing apparels of the appellant has also been proved by PW-15 vide Mat.Ext.IX and X. PW-15 held inquest over the dead body of Raju Singh. The inquest report and the signature of PW-15 have been marked ext.19 and 19/1. After completion of post mortem examination, PW-15 handed over the dead body to the brother of the deceased and prepared Supurdginama. The Supurdnignama and the signature of PW-15 have been marked as Ext.20, 20/1. The investigating officer has also seized the car by seizure list Ext. 3/2. PW-15 also recorded the statement of witnesses and kept Salim under guard in Orthopaeadic department of that hospital. Pursuant to the statement of Salim, the knife was recovered at the instance of Salim. The seizure list has been marked as Ext.4. The signature of PW-15 and Salim have been marked as Ext.4/3, 4/4 and 4/5. PW - 15 identified the knife i.e Mat.Ext.III. On 07.03.2000, the PW-15 sent the alamat for chemical examination in Central Forensic Science Laboratory. The CFSL report has been marked as Ext.21. PW-15 (identified all the accused on dock) thereafter submitted the charge sheet.

Learned advocate Mr. Binnu Kumar appearing on behalf of the appellant has assailed the judgement of conviction and sentence of learned Sessions Judge on the following grounds.

(a) Sanjay sustained injury at the time of occurrence but, Sanjay has not been examined by the prosecution. The evidence of Sanjay would have been fatal to the actual state of affairs and that is why the prosecution has suppressed the evidence of Sanjay. Non-examination of such important witness has definitely cast doubt in the veracity of the case of the prosecution.

(b) The persons named in the FIR have not been examined by the prosecution and non-examination of such persons has had telling effect upon the case of the prosecution.

(c) PW-1, 2, 4 and 8 have not corroborated each other in material particulars yet learned Sessions Judge has accepted their evidences as gospel truth and thereby erroneously convicted the appellant. On the contrary, the discrepancies in the evidence of the aforesaid witnesses will definitely entitle the appellant to get an order of acquittal on the ground of benefit of doubt.

(d) Curiously enough, PW-2 and 4 have been projected as eye witnesses of such occurrence and the investigating authority have also projected them as the witness of recovery of alleged knife at the instance of the appellant. The investigating officer did not find any other witness at the time of alleged recovery of such knife but, simply relied on PW-2 and 4 who have had inimical interest against the appellant, being close associate of the defacto complainant.

(e) The evidence of such witnesses with regard to recovery of such knife at the instance of the appellant does not tally with the site plan prepared at the instance of the investigating officer. The discrepancy in recovery of such knife in comparison with the evidences on record and the site plan make the alleged recovery of knife at the instance of the appellant doubtful and accordingly the said factum of recovery ought to have been disbelieved by the learned Sessions Judge.

(f) The prosecution has failed to explain the reasons for sustaining such injuries on the person of Salim and other accused person. That goes to show that the prosecution has suppressed the genesis of the occurrence and on that score only, the entire case of the prosecution becomes doubtful and the appellant is definitely entitled to get an order of acquittal on the ground of benefit of doubt.

(g) The report of the expert namely CFSL report viz; Ext.21 has been admitted in evidence without giving any opportunity to the appellant to cross examine the maker of such report and accordingly such report ought to be discarded and should not be relied on.

(h) The report reveals that mark of human blood was found on such knife i.e. Mat.Ext.3. No serological report has been filed by the prosecution to establish that the said blood is the blood of deceased and in absence of any such report it cannot be said that blood of the deceased was found in Mat.Ext.III.

(i) PW-8 and other star witnesses of prosecution had no acquaintance with the appellant prior to such occurrence yet they identified the appellant in court even after eight years of such occurrence. The prosecution did not pray for any test idenficiation parade of the appellant after such occurrence and accordingly it was not possible on the part of such witnesses to identify the appellant after eight years of such occurrence in open court. Accordingly, the evidence of such witnesses should not be believed.

(j) The appellant has not been properly examined by the learned Sessions Judge under section 313 of Cr.P.C. The contents of the documents were not explained to the appellant at the time of his examination under section 313 of Cr.P.C and thereby the appellant could not understand about the nature of such documents. The appellant has been prevented from explaining such documents and thereby the examination of the appellant under section 313 of Cr.P.C has been vitiated. The appellant is entitled to get an order of acquittal for not having appropriate opportunity for tendering his explanation under section 3131 of Cr.P.C and on that ground only the appellant is entitled to get an order of acquittal.

(k) Learned Sessions Judge did not discuss any of the circumstances argued by the learned defence lawyer and did not even consider any of the objections raised by the learned advocate for the appellant while delivering judgement against the appellant. It is apparent from the judgement that learned Sessions Judge did not even consider the cross examination of witnesses and after narrating the evidence on record has simply convicted the appellant without assigning any reasons about the acceptance of such evidences on record.

(l) Learned Sessions Judge even did not consider whether the offence comes under the purview of section 302 or under section 304 of IPC. There is absolutely no discussion in the judgment of the learned Session Judge about the ingredients under section 302 or 304 of IPC.

(m) Lastly, the investigation appears to be defective. The investigating officer depends upon some stock witnesses and that is why PW-2 and 4 have been cited as a witness to recovery of knife at the instance of the appellant. The I.O. also could not justify the site plan in accordance with the evidences on record. Perfunctory investigation leads to erroneous filing of charge sheet and the judgement of the learned Sessions Judge is bereft of proper appreciation of evidence which entitles the appellant with an order of acquittal at least on the ground of benefit of doubt.

Learned advocate Mr. Binnu Kumar, appearing on behalf the appellant contended that all the so called witnesses are chance witnesses and their evidences ought not to be relied on, on the ground that they are close associate of the defacto complainant and their identification of the appellant ought to be disbelieved. In support of his contention Mr. Kumar has relied on the following decisions reported in AIR 1992 SC page 1433 (Rajinder Singh @ Kada v. State of Punjab), AIR 1976 SC 2032 (Bahal Singh v. State of Haryana), 2001(2) Crimes (SC) 49 Sohan & Another v. State of Haryana, 1991(0) Supreme (SC) 1368, AIR 1998 (SC) 275 (Raju Alias Rajendra v. State of Maharastra), 2004(0) Supreme (Raj) 677 (Hirjinder Singh & Bhola v. State of Punjab, 2003(0) Supreme (Raj) p. 109 (Ramswaroop and another v. State of Rajasthan), 1992(2) Crimes (HC) 755 (Rajendran and another v. State) and 1996(1) Crimes (HC) 107 (Daulat Ram & Others v. State of Rajasthan).

Learned advocate appearing on behalf of the appellant has further contended that the court should not rely on the expert report (Ext.21). Learned Trial Judge has failed to consider the impact of non-examination of the independent witness. In support of his contention, the learned advocate for the appellant has relied on the following decisions reported in -

(a) 2005 (0) Supreme (SC) 519 (Hem Raj v. State of Haryana).

(b) 2010 (3) SCC (Cri) 1345 (Keshav Dutta v. State of Haryana.

(c) 2013 (0) Supreme (SC) 3 ( Mohd. Faizan Ahmad @ Kalu v. State of Bihar).

(d) 2015 (4) SCC 435 (A. Tajudeen v. Union of India).

(e) 1993 (0) Supreme (Raj) 291 (Sher Singh v. State of Rajasthan.

(f) 2010()) Supreme (P&H) 3212 (Piare Lall v. State of Punjab).

Learned advocate Mr.Binnu Kumar vehemently contended that learned Trial Judge has failed to consider that the case as unfolded by the evidences of the prosecution would come within the purview of section 304 par I of Indian Penal Code instead of 302 of IPC. Learned advocate further contended that the learned Sessions Judge did not consider that there was free fight between the parties and suddenly, without having any pre-meditation they appellant gave one blow of a knife which would come within purview of section 304 part I instead of 302 of IPC.

Learned advocate has advanced his alternative argument in order to justify that learned Sessions Judge did not consider the facts and circumstances of this case in its true perspective and thereby the judgement of the learned Sessions Judge being not in accordance with law ought to be set aside giving benefit of doubt to the appellant. In support of his contention, learned advocate appearing on behalf of the appellant has relied on a number of decisions. To avoid multiplicity in referring a number of judgments on the self same point of law, we would like to refer the following decisions referred by learned advocate for the appellant, which are set out hereunder:

(a) 2012 (6) SCC 581 ( Abdul Nawaz v. State of West Bengal)

(b) 2013 (6) SCC 770 ( Ankush Shivalee Gaikward v. State of Maharastra

(c) 2012(8) SCC 289 ( Rampal Singh v. State of Uttar Pradesh)

(d) 2011(2) SCC 123 ( Mangesh v. State of Maharastra)

(e) 2015(3) SCC 93 ( Ahmed Shah and another v. State of Rajasthan)

Learned Senior advocate Mr. S.K. Mandal contended that PW-1 Dilip is a natural witness of the occurrence. According to PW-1, Salim has stabbed Raju with a knife and as a result of which the death of Raju was occurred. The learned Public Prosecutor further contended that PW-2 Pandi Selvam having no enmity against the appellant has materially corroborated the evidence PW-1 with regard to such assault on the person of Raju Singh and the core testimony of PW-2 Pandi Selvam has not been shaken by such lengthy cross examination. PW-4 M. Sunder is not a chance witness but he was injured at the time of such occurrence. That goes to show that PW-4 is an injured witness and he has specifically corroborated the core testimony of PW-1. At best, we find from the evidence of PW-4 that Raju was assaulted by a person with a knife and PW-4 was assaulted by one Simon. PW-8 has also corroborated in material particular about the occurrence under reference and he has stated the occurrence before the learned Magistrate at the earliest opportunity. All these witnesses had no enmity against Salim i.e. the appellant.

The dispute, in fact, was cropped up in between Simon and PW-1 K. Dilip. Salim never took part in any sort of dispute between them. All these witnesses were either injured or had definite reason to remain present at the time of occurrence. Nothing has been elicited in the cross examination of the witnesses so as to discard their presence at the time the occurrence. Moreover, the evidence of PW-1 is sufficient to hold that Salim gave such fatal blow on the abdomen of Raju resulting in his death. The evidence of PW-1 has been fully corroborated by PW-7 Dr. A. Lakshmi Narashimman in respect of such injury sustained by Raju. The injury report of Raju has also been admitted in evidence. PW-13 Dr.Wazid Ali Shah has specifically observed in his post mortem examination report vide Ext. 13 that the cause of such death was due to hemorrhage shock following such injuries caused by incised stab injury by sharp cutting weapon and the death was homicidal in nature. Doctor has also corroborated that such injury may be caused by Mat. Ext.III.

Learned Public Prosecutor Mr. Mandal further contended that Sanjay has left these islands long before; and despite repeated attempt on behalf of prosecution, Sanjay could not be found for his examination in Court. Learned Public Prosecutor has drawn our attention to the lower court record in this regard in order to justify his submission. Learned Public Prosecutor further contended that natural witnesses have been produced and non-examination of Sanjay has had no bearing in deciding the actual state of affairs in the case under reference. It is submitted by Mr. Mandal that the evidences on record clearly show that there was a fight between the two groups of students or their associates outside the school gate and as a result some of the witnesses as well as accused sustained injuries on their person. Therefore, the prosecution has never suppressed the genesis of occurrence in order to make the case doubtful.

Mr. Mandal learned Senior Advocate invited our attention to section 80 of the Indian Evidence Act whereby the statement recorded by learned Magistrate may certainly be presumed to be true and as such no benefit can be derived by the appellant for marking the statement of PW-2 under section 164 of Cr.P.C. as exhibit.

Mr. Mondal Ld. Senior Advocate has further contended that the prosecution has tried its level best to produce all the evidence on record in order to bring home the charge under section 302 IPC against the appellant. The offending weapon has been recovered. The seized wearing apparels and the offending weapon had been sent to the CFSL expert. Human blood has been found in all such wearing apparels and offending weapon. However, mere absence of serological report will not nullify the aforesaid concrete evidences against the appellant.

Learned Public Prosecutor further contended that learned Sessions Judge has properly examined the appellant under section 313 of Cr.P.C. and all the incriminating materials were placed to the appellant but the appellant did not care to explain any of the circumstances. On that score, the examination of the appellant under section 313 of Cr.P.C cannot be challenged in appeal. Learned Public Prosecutor has further contended that defective investigation shall not be the sole ground for acquittal of the appellant and learned Sessions Judge after considering the facts and circumstances of the case under reference was completely justified in awarding the punishment of life imprisonment to the appellant. In support of his contention, Mr. Mandal has relied on the decisions reported in 2000 (2) SCC 646 (Ambika Prasad and another v. State Delhi Administration).

The quality and not the quantity of the evidence is sufficient to prove the case of the prosecution. This principle of law has been enunciated by the Apex Court in very many decisions. The number of witnesses will not prove the case of the prosecution. Section 134 of Indian Evidence Act has clearly spelt out that no particular number of witnesses shall in any case be required for the proof of any fact. One credible witness may outweigh the testimony of number of witnesses in different character. It is needless to say that in order to sustain an order of conviction even on the basis of the testimony of a solitary witness, such evidence must be clear, cogent and convincing and should be of an unimpeachable character. The conviction of a person can be based on the solitary evidence provided such witness is reliable and trustworthy.

In the case under reference PW-1 had a quarrel with Simon and his friend on 11.02.2000 and it is apparent from the totality of such evidence on record that the PW-1 had even slapped Simon on 14.02.2000. PW-1 had been to the school being accompanied by Raju, Sanjay and Mukesh. PW-1 specifically stated that fighting was started in between Dinesh and Raju. Salim did not take part in such fight but suddenly he brought out a knife which was kept hidden behind his back and stabbed on the abdomen of Raju. Sanjay was also injured while protecting Raju from the second attempt of Stabbing by Salim. PW-1 lodged such FIR within one hour of such occurrence.

There is absolutely no delay in lodgment of the first information report by prosecution witness no.1. That goes to show that there is/was no chance of any embellishment or concoction of the actual state of affairs and virtually PW-1 has corroborated such fact in his deposition. Prompt lodging of First Information Report rules out the possibility of embellishment or concoction of the fact in issue. Moreover, there was absolutely no enmity in between the PW-1 and the appellant. Appellant did not take part in the fighting between Dinesh and Raju. Suddenly the appellant stabbed Raju. That goes to show that PW-1 narrated the bare truth in his first information report and he has corroborated the same in his evidence. There is absolutely nothing in the cross examination of PW-1 to show that PW-1 was telling falsely against the appellant. The evidence of PW-1 has been materially corroborated by PW-2, Pandi Selvam, PW-4 M.Sunder and PW-8 Abraham. It is true that PW-8 had no acquaintance with Salim from before the occurrence. PW-4 M. Sunder has also admitted that he had no acquaintance with Salim prior to such occurrence. PW-1 K. Dilip and PW-2 Pandi Selvam have however categorically stated that Salim gave such fatal blow to Raju. Immediately after such occurrence, PW-7 Dr. A. Lakshmi Narashiman examined Raju and found the injuries on his person. Raju was immediately operated by a Surgeon of G.B. Pant Hospital but, ultimately he succumbed to injuries. Therefore, the factum of such injury on Raju has been materially corroborated by medical evidence. PW-10 Dr. Gulsan Bibi found injury on the person M.Sunder and that goes to show the presence of M. Sunder at the scene of the occurrence cannot be ruled but had been corroborated by medical examination of PW-4. It is therefore crystal clear from such evidences adduced by the prosecution that Salim stabbed Raju and Raju died of such injury and the cause of death was homicidal in nature.

The presence of PW-1, 2 and 4 at the place of occurrence thus cannot be ruled out. Moreover, the evidence of PW-1, 2, 4 and 8 have at least corroborated to the extent that Salim actually assaulted Raju in Knife though in fact the quarrel took place in between two groups of students or their associates.

On careful scrutiny of the evidence of PW-2, we find that a free fighting took place in between both the groups immediately after such occurrence and as a result of such free fight, some of the persons from both side sustained injuries. Salim/appellant however fled away from the scene of occurrence.

It is the exclusive prerogative of the prosecution to examine the witnesses in order to bring home the charges against the accused. No one can compel the prosecution to prove all the witnesses unless the action of the prosecution amounts to miscarriage of justice. The I.O. definitely has examined the witnesses but the prosecution did not produce the said witnesses as the witnesses are not named in the charge sheet. It is expected that the prosecution should produce the faithful and trustworthy witnesses in order to bring home the charge against the accused. There may be very many reasons for non-production of witness by the prosecution. The peculiar feature of these islands is that the witnesses shift their residence to mainland and thereafter it will become next impossible to bring that witness to depose before the court of law. Sanjay, the injured witness has also left these islands and the prosecution could not produce Sanjay despite giving repeated summon to Sanjay.

In order to avoid such difficulty the investigating officer has thought it fit to cite the eye witnesses as witness at the time of recovery of the offending weapon at the instance of the appellant.

On careful scrutiny of the site plan, we find that the place of occurrence is almost adjacent to the place where from the offending weapon has been recovered by the investigating officer by the Ext. 14. The I.O. has shown a number of trees in a particular place wherefrom the offending weapon has been recovered. The witnesses may say that the offending weapon was recovered from a bush. The assembly of such trees clearly constitute a bushy area wherefrom the offending weapon was seized. It is therefore crystal clear that there was no contradiction or discrepancy in the statement of witnesses with regard to the place of recovery of such offending weapon. It is expected that some other persons should remain present at the time of recovery of offending weapon pursuant to the statement made by the accused but we hold that heaven will not fall by the presence of eye witnesses at the time of recovery of such offending weapon. On the contrary, the witnesses should be more particular to identify the said weapon. The persecution has even get the wearing apparels of the deceased and the offending weapon examined by forensic expert. The report of CFSL Ext. 21 reveals that stain of blood was found in such article. At best the prosecution has been able to show that the Raju sustained injury by sharp cutting weapon and the appellant is the author of such crime. The medical examination report supports such claim of the prosecution. The eye witnesses have also supported such contention of the prosecution even the expert found blood stain mark on the wearing apparels as well as on the offending weapon. The offending weapon has also been recovered at the instance of the appellant. Non-examination of the expert raises no doubt in the mind of the court since such report ext. 21 was admitted in evidence without any objection and by relying on specific provision of criminal procedure code.

On careful scrutiny of the examination of the appellant under section 313 of Cr.P.C, we find that all the incriminating materials and circumstances were put to the appellant and sufficient opportunity was given to the appellant to explain such circumstances. We do not find any sort of illegality in the examination of the appellant under section 313 of Cr.P.C.

It well settled principle of law that even non-examination of investigation officer will not give any benefit to the accused when the case of the prosecution has been proved on the strength of clinching evidences. Non-examination of the investigation officer cannot be a ground for holding that the injured witnesses should not be believed. Hon''ble Apex Court has specifically stated that in case of defective investigation it would not be proper to acquit the accused if the case is otherwise established conclusively. A criminal trial is meant for doing justice to the accused, the victim and the society so that law and order is maintained. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the judge has to perform. 2002 (2) SCC 646 Ambika Prasad and another v. State (Delhi Administration).

In the self same decision Hon''ble Apex Court has further been pleased to observe that non-examination of the independence witness cannot be ground for rejecting evidence of witnesses who were injured in that occurrence.

It is therefore crystal from the discussion made herein before that the appellant assaulted Raju with sharp cutting weapon resulting in his death and some eye witnesses and injured witnesses corroborated in material particulars about the occurrence. Such factum of the injury on the person of Raju has also been corroborated by doctors of G.B.Pant Hospital. Prompt lodging of FIR also goes in favour of the prosecution in establishing earliest version of this case.

On scrutiny of the materials on record as well as the evidences on record, we find that the prosecution never tried to suppress the genesis of occurrence. PW-1 K. Dilip has elaborately stated as to how Raju was injured. PW-1 Dilip further stated about his previous dispute with Simon and that''s why his friends accompanied him to the school. Secondly, PW-4 M. Sunder stated that at that time Simon assaulted him. Naturally, PW-4 M. Sunder sat down out of pain and it was not possible for him to state in detail as to what happened thereafter. PW-1 K. Dilip further stated that Salim was assaulted by some persons.

The prosecution has also produced the injury report of the appellant vide Ext.12 wherefrom it transpires that the prosecution has never suppressed the genesis of the occurrence. Reasonable explanation is available regarding such injuries on the person of Salim. The prosecution did not suppress anything about such injuries on Salim and other accused.

We would discuss the impact of such injuries on the appellant and other accused at the time of dealing with section 147 of the Indian Penal Code. The argument on that score accordingly fails.

PW-4 M. Sunder was treated by doctor and no challenge has been made against such injuries sustained by PW-4 M. Sunder. He was immediately treated at G.B. Pant Hospital. Therefore, the status of PW-4 is that of an injured witness. The claim of the learned advocate for the appellant that PW-4 M. Sunder is a chance witness cannot be accepted in view of the fact that M.Sunder PW-4 was injured in that occurrence. Though PW-4 had acquaintance with Salim but, he saw the occurrence and he can remember the face of Salim since Salim gave a fatal blow which resulted in death of Raju. PW-4 M. Sunder did not virtually identify the appellant in Court but, out of six accused persons, he identified Salim in Court. In that view of this case, the evidence of PW-4 M. Sunder cannot be brushed aside on the ground that he is a chance witness.

Ext.21 i.e. the report of an expert, has been admitted in evidence without any objection from the defence. It is apparent from the Ext.21 that serologist report will follow from concerned unit but the investigating officer did not collect the serologist report. The specific case of the defence is that the appellant is not the author of the injury inflicted upon Raju. Such document has been admitted in evidence without any objection. Had there been any such objection on behalf of the defence, the Court would have called the expert in order to admit the said report in evidence. Therefore, the appellant will not be permitted to raise objection about the document which has already been admitted in evidence without any objection of the appellant. Moreover, the prosecution has at least been able to show about the presence of human blood in the articles seized by the prosecution. The report of the serologist would have given extra mileage to the case of the prosecution in order to establish conclusively the presence of the blood of the deceased in the offending weapon. In the alternative even if we discard such Ext.21 from our consideration, till then, it is apparent from the evidence on record coupled with medical report that the prosecution has been able to prove beyond all shadow of doubt that the appellant, who gave such fatal blow on the person of the deceased Raju and such fatal blow is the cause of the death of Raju. In that view of this case, the argument regarding admission of Ext.21 pales into insignificance.

It is well settled principles of law that defective investigation will not entitle the accused to get the benefit of doubt when the case of the prosecution has been proved by eye witness /injured witness and the same has been corroborated by medical evidence.

We have minutely gone through the decisions referred by the learned advocate for the appellant. It appears from the aforesaid decisions that the learned advocate for the appellant has referred at least eight decisions on the principles of chance witness namely:

(1) AIR 1992 SC page 1433 (Rajinder Singh @ Kada v. State of Punjab)

(2) AIR 1976 SC 2032 (Bahal Singh v. State of Haryana)

(3) 2001(2) Crimes (SC) 49 (Sohan & Another v. State of Haryana)

(4) 1991(0) Supreme (SC) 1368, AIR 1998 (SC) 275 ( Raju Alias Rajendra v. State of Maharastra

(5) 2004(0) Supreme (Raj) 677 (Hirjinder Singh & Bhola v. State of Punjab

(6) 2003(0) Supreme (Raj) p.109 (Ramswaroop and another v. State of Rajasthan)

(7) 1992(2) Crimes (HC) 755 (Rajendran and another v. State)

(8) 1996(1) Crimes (HC) 107 (Daulat Ram & Others v. State of Rajasthan)

On scrutiny of such decisions, we find that the Hon''ble Apex Court has specifically observed that presence of witness was doubtful and no reliance can be placed on such chance witness.

At the risk of repetition, we would like to state that it would be very difficult to apply the factual aspect of the aforesaid decisions in the given facts and circumstances of this case, since the facts and circumstances of this case are altogether different from the facts of the decisions referred to herein above. We accept that no case shall be finalised on the basis of evidences of chance witness. PW1 K. Dilip has been to the place of occurrence along with his friends and in no stretch of imagination, PW1 can be termed to be a chance witness. PW4, M Sunder was injured on that occurrence and, accordingly, PW4 M.Sunder can also be not termed as a chance witness. We are afraid that the aforesaid decisions are not applicable in the given facts and circumstances of this case, since the facts and circumstances of this case are altogether different from the cases referred to herein above.

The decision reported in 2010 (3) SCC (Cri) 1345 (Keshav Dutt v. State of Haryana) relates to a hand writing expert and does not relate to the CFSL report. The court has simply admitted the CFSL report in order to establish that human blood was found in the articles seized by the investigating officer. Therefore, the aforesaid decision is also not applicable in the case under reference.

The decision reported in 1993 (0) Supreme (Raj) 291 (Sher Singh v. State of Rajasthan) discloses the principle of criminal jurisprudence and we have no dispute with the principle enunciated by Hon''ble Apex court in that decision.

In the decision reported in 2010 (0) Supreme (P&H) 3212 (Piare Lal v. State of Punjab) the Hon''ble Court noticed absence of a bottle which was seized and sent for analysis. Accordingly, doubt cropped up in the mind of the court and ultimately the accused was acquitted.

We have pointed out that there is no dispute in between the site plan and evidences on record. Admittedly, the offending weapon was recovered from the bushy area as per the evidences on record and that was also corroborated to the effect that the offending weapon was recovered from near Ashoka Tree. The site plan reveals bushy consisting of some trees and, therefore, we do not find any discrepancy in the matter of recovery of offending weapon at the instance of the appellant. On that score, the argument regarding site plan also fails.

It is, therefore, apparent from the discussion made in the forgoing paragraphs that the appellant is the author of such injury on the person of Raju and ultimately Raju succumbed to his injuries. The witnesses have clearly pointed out that the appellant is the author of such injury and the medical report has fully corroborated about the nature of injury and cause of death of Raju. In that view of this case we have no hesitation to say that the prosecution has been able to bring home charge under section 302 of IPC beyond all shadow of doubt against the appellant.

Learned advocate Mr. Binnu Kumar appearing on behalf of the appellant contended that the learned Trial Judge without discussing any materials on record has simply convicted the appellant under section 147 of IPC and under section 302 of IPC. Mr. Kumar further contended the case would squarely come within the purview of section 304 part I instead of section 302 IPC. In support of his contention, learned advocate has referred the following decisions wherein the case under section 302 IPC was converted into section 304 IPC.

(1) Abdul Nawaz v. State of West Bengal reported in 2012 (6) SCC 581

(2) Ankush Shivalee Gaikwad v. State of Maharastra reported in 2013 (6) SCC 770.

(3) Sudhakar v. State of Maharastra reported in 2012 (9) SCC 725.

(4) Rampal Singh v. State of Uttar Pradesh reported in 2012 (8) SCC 289.

(5) Nangesh v. State of Maharastra reported in 2011 (2) SCC 123.

(6) Deepak Bhikaji Dharmale v. State of Maharastra reported in 2002 (0) Supreme (SC) 691.

(7) Dhananjay Singh v. State of Jharkhand reported in 2009 (0) Supreme (SC) 1604.

(8) Ram Kishan & other v. State of Rajasthan reported in 1997 (0) Supreme (SC) 1159.

(9) Krishna Tiwari & another v. State of Bihar reported in 2011 (4) Supreme 300.

(10) Nafe Singh v. State of Haryana reported in 2009 (0) Supreme (SC) 825.

(11) Sanjay Kumar v. State of Himachal Pradesh reported in 2007 (0) Supreme (HP) 83.

(12) Ahmed Shah and Another v. State of Rajasthan reported in 2015 (3) SCC 93.

(13) Balu S/o Onkar Pund and others v. State of Maharastra reported in 2015(3) SCC 409.

It is needless to say that slight difference in fact situation will altogether change the entire scenario in a criminal case. Therefore, there is no straight jacket formula to ascertain whether the instant case comes within the purview of section 304 part I of IPC taking the help of the aforesaid decisions. However, keeping in view of the principle enunciated in the aforesaid decisions, we may consider the submission of Mr. Binnu Kumar on the basis of the evidences on record.

Learned advocate appearing on behalf of the appellant further contended that the case of the prosecution as unfolded, revealed that without any premeditation during a free fight between two groups and without taking any undue advantage the appellant suddenly gave only one blow on the person Raju and thereby, the appellant did not act in cruel or unusual manner. Relying on the aforesaid decisions, learned advocate for appellant has tried to impress us that the action of the appellant would come within the purview of exception 4 of section 300 and, accordingly, learned Sessions Judge has erroneously convicted the appellant and sentenced the appellant under section 302 IPC instead of section 304 part I of the IPC.

Learned public prosecutor Mr. S.K. Mandal contended that the action of the appellant did not fall within the purview of exception 4 of section 300 of IPC since the appellant took undue advantage of the quarrel between Dinesh and Raju and the appellant in a cruel manner assaulted Raju with a knife. The appellant also attempted to assault Raju for the second time but he was prevented from doing so by Sanjay and the said Sanjay also sustained injury on his person.

It is apparent from the evidences on record that the dispute between the two groups was settled but the appellant did not care to accept that compromise. Dinesh came later on and came to know from the appellant that the matter was settled between the parties. However, the appellant did not care to accept such compromise. It is apparent from the evidences on record that both the parties were unarmed and no one was carrying any weapon with them. Salim brought out one knife hidden in his back and thereafter taking advantage of the quarrel between Dinesh and Raju, he suddenly gave fatal blow on the vital part of Raju resulting in death of Raju. The appellant did not stop there. He thereafter again tried to assault Raju with that knife but Sanjay prevented him from giving the second blow. In the given facts and circumstances of this case, it is crystal clear that the appellant with an ulterior motive took one knife with his person obviously with the motive of causing serious harm to PW1 K. Dilip or his associates.

Motive cannot be translated in evidence and motive has to be ascertained from the attending circumstances of the case. We cannot attribute any motive on the basis of evidences on record, but it has to be ascertained from the given facts and circumstances of this case under reference. What was the reason of carrying such deadly weapon with the appellant? Obviously the appellant had ulterior motive to cause serious injuries on the person of PW1 K. Dilip or any of his associates. That goes to show that there was definite motive on the part of the appellant in causing such serious injury on the person of any of the associates of Dilip. The intention of the appellant is, thus, obvious. While using that offending weapon, the appellant must have requisite knowledge that the use of such weapon may cause death of the injured person. Unfortunately the appellant committed such offence without any provocation. The evidence on record reveals that the appellant was not fighting with Raju. In fact, no one was fighting with the appellant. The appellant stood behind Dinesh calmly while Dinesh and Raju were fighting with each other. Taking advantage of the helplessness of Raju, he suddenly gave a blow with his knife on the vital part of Raju. Thereafter the appellant again tried to give another blow. That clearly shows that the appellant took undue advantage of the situation and he acted in such a cruel and unusual manner that Raju had to spare his life for such unusual cruel manner of assault on his person by the appellant.

In that view of this case we have no hesitation to say that the case under reference does not fall within the exception 4 of section 300 IPC. On the contrary, learned Trial Judge has rightly convicted the appellant for committing murder of Raju under 302 IPC. In the premises set forth above we have no hesitation to say that the decisions referred to herein above are not applicable in the given facts and circumstances of this case.

It is further submitted by the learned advocate for the appellant that the learned Trial Judge has failed to consider the facts and circumstances of this case and thereby has erroneously convicted the appellant under section 147 IPC.

Learned Public Prosecutor contended that the appellant and his associates being aggressor have been correctly sentenced under section 147 IPC.

It is apparent from the evidences on record that both the parties to such dispute were injured. Exhibit A is the injury report of one of the accused. Exhibit 12 is the injury report of Salim. Admittedly Salim was assaulted immediately after such occurrence that is why he was also treated in the hospital. It is well settled principles of law that when a quarrel ensued which ultimately resulted in a free fight between the parties, during the course of which both sides were injured, in such a situation as there is no scope for a pre-planned attack by the accused, the question of the accused persons forming an unlawful assembly having a common object to do any of the acts mentioned in the 5 clauses of section 141 does not arise for consideration. However, each of the accused persons would be held liable for the individual acts proved against them.

At the risk of repetition, we would like to mention here that definitely there was a fight amongst both the parties and both the parties sustained injuries on their persons. PW 4 M. Sunder was injured. Exhibit A reveals the injury on the person of one of the accused. Salim/appellant however, assaulted immediately after such occurrence and he did not take part in that fight between the parties. Therefore, Salim should be held liable for his individual act. In a decision reported in AIR 1973 SC 2505 (Lalji v. State of UP) the Hon''ble Supreme Court held that where a sudden quarrel arises between the parties as a result of remonstrance and counter remonstrance and an unpremeditated free fight takes place between them it cannot be said that the accused who were present there formed an unlawful assembly. In such a case each of the accused persons should be held liable for his own act and not vicariously liable for the acts of others.

In fact, evidences depicted that Dinesh and Raju were fighting. Participation of all other persons in such free fighting is also absent from the evidences on record. However, applying principles of law as enunciated by Hon''ble Supreme Court in the aforesaid decision, we are of considered view that the appellant should not be convicted under section 147 IPC. Moreover, the Trial Court has acquitted the accused persons from the charges of under section 149/324 of IPC. No appeal has been preferred against that decision of the learned Trial Judge by the prosecution.

Therefore, the prosecution has accepted that there was no common object amongst the persons charged under section 147 IPC. Failure to prove common object definitely entitles the appellant to be absolved of charge under section 147 IPC.

We, thus, set aside the conviction and sentence under section 147 IPC against the appellant maintaining the conviction and sentence against the appellant under section 302 of IPC.

The appeal is thus partly allowed in terms of the aforesaid direction.

A copy of this judgement be forwarded to the learned Sessions Judge for issuance of revised jail warrant in terms of our direction given herein above.

Harish Tandon, J. - I agree.