SUPREME COURT OF INDIA

Before:-G.B. Pattanaik and S.N. Phukan, JJ.

Criminal Appeal No. 518 of 1997. D/d. 30.9.1999.

Bhera - Appellant

Versus

State of Rajasthan - Respondent

Indian Penal Code, 1860, Section 304 Pt. II or Section 302 - Murder - Absence of intention - Accused and deceased while quarrelling, accused in anger suddenly bringing out a knife and giving blow on chest of the deceased which resulted in his death - Held, on these facts, it is difficult to hold that the accused gave the blow with the requisite intention of causing murder of the deceased - In this view of the matter, the conviction of the appellant under Section 302 cannot be sustained - Accordingly accused convicted under Section 304 Pt. II and sentenced to 5 years' imprisonment.

[Para 2]

ORDER

G.B. Pattanaik, J. - The appellant has been convicted under Section 302 Indian Penal Code and has been sentenced to imprisonment for life by the High Court on setting aside the order of acquittal by the learned Sessions Judge. As per the prosecution case on 27-2-1976 there was a gathering in the house of one Bhana and both the accused and the deceased had attended the said gathering. At that place the accused is said to have demanded from the deceased to repay the loan the deceased had taken which the deceased denied. Shortly, thereafter the accused and deceased left the place and started moving for their respective houses. PWs 2 and 3 were following them closely. On the road there was a quarrel between the accused and the deceased and then the accused suddenly brought out a knife and gave the blow on the chest of the deceased. PW 1 lodged the report at 9.00 a.m. next day at the police station, on the basis of which the investigation started and ultimately on completion of investigation charge-sheet was submitted. On being committed, the accused stood the trial. Though the prosecution examined as many as 13 witnesses, but the two important witnesses are PWs 2 and 3, who were following the accused and the deceased and saw the actual stabbing being done by the accused on the chest of the deceased. PWs 4, 5, 6 and 7 are the post-occurrence witnesses, of whom PWs 4, 5 and 7 did not support the prosecution and were cross-examined by the Public Prosecutor. The learned Sessions Judge discussed the evidence of PWs 2 and 3 as well as PWs 4 to 7, but on account of infirmity in the evidence of PWs 2 and 3, did not accept the same to be reliable and ultimately came to the conclusion that the prosecution case has not been proved beyond reasonable doubt and acquitted the accused. The learned Sessions Judge, on the basis of medical evidence, came to the conclusion that the death was homicidal in nature and could be caused by a weapon like a knife, and that conclusion was not assailed in any forum including this Court. Against the order of acquittal, the State moved the High Court and the High Court on reappreciation of the evidence came to the conclusion that PWs 2 and 3 can be safely relied upon and nothing substantial has been brought out in their cross-examination to impeach their testimony. Believing the evidence of PWs 2 and 3 the High Court came to the conclusion that the prosecution case has been proved beyond reasonable doubt and as such convicted the appellant of the offence under Section 302 and sentenced him to imprisonment for life.

2. The learned counsel for the appellant contended before us that the learned Sessions Judge having disbelieved the evidence of the aforesaid two witnesses PWs 2 and 3 for the reasons indicated in the judgment, the High Court was not justified in believing those witnesses and in interfering with an order of acquittal. The learned counsel further stated that even if the evidence of PWs 2 and 3 is believed, taking into account the fact and scenario under which the alleged assault was given by the accused, the offence could not be under Section 302 but at the best would be under Section 304 Part II. So far as the first submission of the learned counsel for the appellant is concerned, we are unable to persuade ourselves to agree with the same and on going through the evidence of PWs 2 and 3 which is produced before us we are of the considered opinion that the High Court rightly relied upon the same which was erroneously discarded by the learned Sessions Judge. On the basis of the said evidence of PWs 2 and 3, the High Court, therefore, rightly came to the conclusion that on the relevant date the accused gave a stabbing blow on the chest of the deceased on account of which the deceased ultimately died. But so far as the second contention raised by the learned counsel for the appellant is concerned, we find sufficient force in the same. From the evidence of PWs 2 and 3 it is crystal clear that the accused and the deceased had some quarrel in the house of Bhana. On the road while they quarrelled with each other, suddenly the accused brought out the knife and gave the blow which struck the chest of the deceased. On these facts, it is difficult to hold that the accused gave the blow with the requisite intention of causing murder of the deceased. In this view of the matter, the conviction of the appellant under Section 302 cannot be sustained. Since in anger while quarrelling, the accused had given the blow which ultimately resulted in the death of the deceased, the offence would be one under Section 304 Part II. We, therefore, set aside the conviction of the appellant under Section 302 and instead convict him under Section 304 Part II and sentence him to 5 years.

3. The appeal is disposed of accordingly.

Appeal disposed of.