High Court
Case Details
Crl.A. 112/2007 BEFORE HON’BLE MR. JUSTICE I A ANSARI HON’BLE MR JUSTICE P. K. MUSAHARY JUDGMENT AND ORDER (CAV) (Musahary, J) This appeal has been preferred against the judgment and order da ted 21.5.2007 passed by the learned Sessions Judge, Nalbari in Sessions Case No. 142 of 2004 arising out of GR Case No.531/04 convicting the appellant under Sect ion 302 of the IPC and sentencing him to undergo imprisonment for life and a fin e of Rs.1000/- and in default of payment of fine, to suffer further rigorous imp risonment for six months.
Legal Reasoning
2. Briefly stated the prosecution case is that on 5.6.2004 at aroun d 6 AM appellant stabbed Kudrat Ali, husband of the informant Safia Bibi, PW-1, by inflicting dagger blow on his chest while he was ploughing in the field and after the incident the appellant fled the scene. Informant’s husband was shifted to hospital in a thela (push cart) but he succumbed to his injuries. On receipt of the FIR the police registered a case being Ghograpar Police Station Case No. 44/04 under Section 302 IPC against the appellant. The I O took up the investiga tion, held inquest over the dead body, seized the crime weapon, blood stained cl oths of the deceased and arrested the accused and, thereafter, sent them for FSL examination. On completion of the investigation the I O laid the charge-sheet under Section 302 IPC against the appellant. The Magistrate concerned committed the case to the court of Sessions for trial and disposal. Accordingly, the learn ed Sessions Judge, on the basis of materials found on record, framed charge und er Section 302 IPC, which was read over and explained to the appellant, who plea ded not guilty and claimed to be tried. 3. In order to establish the above charge against the appellant the prosecution examined 11 witnesses including the Medical Officer, FSL expert and the I.O. The appellant was examined under Section 313 Cr.P.C. providing him a c hance to explain the incriminating material found against him in the evidence. H e denied all the evidence against him. In his statement under Section 313 Cr.P.C . the appellant stated that the deceased Kudrat on the date of occurrence starte d ploughing in the appellant’s field and when the appellant restrained him from ploughing, the deceased assaulted him and, thereafter, tried to stab him with a knife followed by a scuffle in which, the deceased received injuries. After the incident, the appellant went to the police station to inform the matter. From his statement, it is found that the appellant took the plea that the offence wa s committed by him on a sudden quarrel and in self defence. To substantiate his defence the appellant also examined four witnesses. 4. Smti Safia Bibi, wife of the deceased was examined as PW-1. She deposed that on the date and time of the occurrence she was loitering on the roa d. Her sister-in-law Nessa told her that accused Gambhir (husband of Nessa) kill ed Kudrat (husband of PW 1) and fled away from the place of occurrence. She ru shed to the field and found her husband dead and he was taken in a Thela. She s aw bleeding on the chest of the deceased. Police, on receipt of her FIR visited the place of occurrence and recorded the statement. In cross-examination, she s tated that she did not see the occurrence but she rushed to the field after hear ing the hulla. She found about 25 persons near the dead body of her husband and some persons took the dead body to the gateway of one Farzan Ali. She also state d that the Gaonburah, Jamir Ali lodged the FIR in the Police Station. Police too k the dead body and thereafter she also lodged an Ejahar. On being cross-examine d she stated that she did not state before the I O about her loitering on the ro ad. She denied the suggestion that she did not state before the I O that she saw bleeding from the chest of her husband and that Nessa did not tell her that Gam bhir killed her husband. 5. P.W.2, Md. Jamir Ali, a neighbour of the accused stated that he was working with some labourers in his bamboo groove. He heard hulla and saw acc used Gambhir coming declaring that he had finished some one. Thereafter he heard some people saying that Gambhir killed Kudrat. He went to the place of occurre nce and found Kudrat was lying with injuries on his breast with blood oozing out . The injured Kudrat died after about 15 minutes. He went to police station on a bike with one Majnur Ali and informed the police orally. At that time accused Gambhir who came on a bicycle, appeared in the police station and told the O.C . that he killed Kudrat. The O.C. detained him in the lock up. Police visited th e place of occurrence and enquired about the crime weapon. Accused Gambhir first told the police that he handed over the dagger to his uncle Masfur Ali. But wh en the police asked Masfur, he denied that the dagger was even handed over to hi m. Police recovered the knife from the ’straw house’ of Gambhir and he was prese nt at the time of recovery of the said knife stained with blood. Police seized t he knife(M-Ext.1) per seizure list, in his presence and he put his signature (E xt.1(i). Police also recorded his statements. In cross-examination he stated tha t by the time he arrived at the place of occurrence, the injured Kudrat was take n in a Thela by Mohim Ali and others and his dead body was kept in front of the house of Kudrat Ali. Then he proceeded to the police station which is situated a t about 5 miles. He stated that police did not record his statement. However, a Magistrate recorded his statement on 26.7.2004. He denied the suggestion that he did not make statement before the police that he heard Gambhir saying that he f inished one person. He also denied the suggestion that he had boundary dispute w ith Gambhir since long and deposed falsely that accused Gambhir told police that he handed over the dagger to his uncle. He clarified that police did not seize anything except the dagger. The seizure list was prepared in the courtyard of ac cused Gambhir in presence of many people. PW-3 Md Sahnur Ali stated that he hear d from people that Kudrat was killed by accused Gambhir. He saw the dead body. T he Gaonburah informed the police about the occurrence. The police visited the pl ace of occurrence and took the dead body to the police station. After about 1 ‰ hours police apprehended Gambhir and went to the house of deceased Kudrat. Accus ed Gambhir led police and then to his house. A knife was found from the souther n house of accused Gambhir near the straw store. At that time he was present and the police seized the said knife in his presence. He put signature on the said seizure list Ext.1(2). Police held inquest on the dead body in his presence. On the inquest report (Ext.2), he put his signature, Ext.2(2). Police also recorde d his statement. In cross-examination he stated that he had no knowledge how the occurrence took place. He accompanied the police to the place of occurrence wit h many other persons. Police asked accused Gambhir where he kept the weapon. The knife was recovered from inside the house. He was in the courtyard of accused G ambhir when police recovered the knife. Only police and accused Gambhir entered the house and other persons were not taken inside. He denied the suggestion that the knife was not recovered from inside the house of Gambhir. 6. The Medical Officer, Dr. Nirendra Nath Bhuyan was examined as PW -4. He was serving as SDM & HO at Nalbari Civil Hospital at the relevant point o f time. He performed the post mortem examination on the dead body of Kudrat Ali on police requisition. His findings are as follows: (cid:28)A male body aged 35 years, average built, fair complexioned, mouth closed, eyes half opened,R/Mortis present, short black haired with mustache. On P.M. Examina tion the following injuries found in the body:1) A cut injury present in the lef t side of chest at the middle, 5 cm.below the left clavicle, size 5 cm 2 2 cm x 8 cm, deep (penetrating wound, ante mortem),2) Laceration in left upper love of lung, 3) laceration in left arium. Blood clots present in the thorasic cavity. I njuries are ante mortem in nature.. (cid:29) He opined that death was due to hemorrhage leading to shock and comma fo llowing injuries to vital organs, lung and heart, by sharp weapon. He proved th e post mortem report (Ext.3) and his signature Ext.3(1) on it. In cross examinat ion he clarified that there was only one injury. Injury No.2 and 3 are inside th e body. 7. PW-5 is Md. Tahid Ali. He deposed that on the date of occurrence he was ploughing in the filed and Kudrat was also ploughing in his field at a d istance of about one furlong from his field. One Masfur Ali was also seen presen t near Kudrat Ali. The accused Gambhir, deceased Kudrat and Masfur Ali are perso ns from same family. They had some conversation. He did not hear their conversat ion but he heard the cry of Masfur Ali stating that a man was killed. On hearing the cry he went near Kudrat and found him lying on the ground with injury and b lood coming out from the injury. Kudrat was lying dead on the road near the fiel d. Accused Gambhir then went to his house. Villagers brought one thela and took Kudrat to his house. He stated that the police recorded his statement. He stated in cross examination that he did not see how Kudrat Ali died and before he reac hed the place of occurrence some other persons had already gathered there. He di d not see the injury of Kudrat Ali by removing his cloths. PW-6, Md. Islam Ali deposed hat he was ploughing at 8. about 7 am on the date of occurrence like Kudrat Ali at a distance of 3 sickles i.e. about 5 tars from his field. Accused Gambhir came near Kudrat and then he h eard cries of Masfur Ali that a man was killed. He then went to the place of occ urrence and saw Gambhir running away with a knife in his hand and Kudrat lying o n the ground with injuries on his breast. Kudrat died on the spot and his dead b ody was taken home in a thela. His statement was recorded by police. In cross ex amination he stated that he was alone in the field and there was no other person near him. He did not see as to when Ghambir and Masfur came to the field. Some persons had already gathered before his arrival at the place of occurrence. He h ad no knowledge how Kudrat died. He denied that he stated before the I.O. that h e saw Gambhir running away with a knife in his hand. 9. PW-7 Md. Jamir Ali stated that at about 6 am on the date of occu rrence he was ploughing in his field. Kudrat was also ploughing at a distance of about 20 tars from him. Both Masfur and Gambhir came to the place of occurrence . He heard the cry of Masfur Ali that Gambhir had killed Kudrat. He then came to the place of occurrence and saw Gambhir running away with a knife in his hand w hile Kudrat was lying on the ground with injury on his person. Kudrat died on th e spot. His statement was recorded by police. In cross-examination he stated tha t he did not hear the conversation Masfur, Kudrat and Gambhir had amongst themse lves. He denied the suggestion that he did not state before the I.O. that he saw Gambhir running away with a knife. He admitted that he did not see how the occu rrence took place. He disclosed that Masfur is the elder brother of Kudrat’s fat her. 10. PW 8, Md. Mir Hussain deposed that on the date of occurrence he went to the field for grazing cow and saw accused Gambhir, Kudrat and Masfur tal king in the field. He could not hear what they were talking about but he heard t he cries of Masfur Ali that a man was killed. On hearing the cries, he went to t he place and saw Gambhir Ali running away with a knife in his hand. Kudrat Ali d ied at the spot and he was removed in a thela. Police recorded his statement. In cross examination, he stated that at the time of occurrence he was at a distanc e of about 20 ft. and he saw the scuffle between the deceased Kudrat and accused Gambhir. He, however, did not see the act of pushing of the knife into the body of Kudrat but he saw the removal of the knife from the body of Kudrat by Gambhi r and running away from the scene. The knife used was about 3/4\ long. He denied the suggestion that he did not state before the I.O. that Gambhir took away the knife from the body of Kudrat. 11. PW 9, Amitabh Sensowa is the I.O. of the case. On the date of oc currence he was attached to Ghagrapar P.S. On being entrusted by the O.C., he vi sited the place of occurrence, recorded statements of the witnesses, seized one blood stained knife from the place of occurrence produced by the accused Gambhir Ali. He also seized one blood stained ganji and sent both the knife and ganji f or FSL examination at Guwahati. He received the FSL report, Ext.4. He held the i nquest on the dead body of the deceased and saw a stab injury on the chest. He p repared the inquest report, Ext. 2, and put his signature, Ext. 2(3). The dead b ody was sent for post mortem examination and the post mortem report was collecte d by him. He completed the investigation but could not laid the charge-sheet as he was transferred to other place. He recorded the statements of the witnesses. He recorded the statements of accused Gambhir Ali, who stated before him that he concealed the blood stained knife in a deposite of straw. Ext.5 is the statem ent of accused Gambhir in regard to concealment of blood stained knife. In cross examination, he stated that he prepared a sketch map of the place of occurrence , which was a road near a paddy field. Near the place of occurrence there were t he paddy fields of Jamir Ali (PW 7) and Kudrat Ali. He also recorded the stateme nts of Ismail Ali (PW 6), Mir Hussain (PW 8), Ahid Ali and Jamir Ali in the padd y field. He further stated that he recorded the statements of Gaonbura, Jamir Al i(PW2). He testified that the knife was found from the straw store but it was no t mentioned so in the seizure list, Ext. 1. He denied the suggestion that accuse d did not state before him that he(accused) could see the weapon in the straw st ore.
Legal Reasoning
PW 10, Shri Sudhanya Suklabadhya is the police official who was 12. given the charge of investigation after transfer of PW 9. He forwarded witnesses Jamir Ali (PW 7) and Sahnur Ali(PW 3) for recording their statements on 26.07.2 004. He made no further investigation as the investigation was already complete, except recording of statements of the above witnesses. PW 11, Smti Arunima Baru ah is the Senior Scientific Officer, FSL, Kahilipara, Guwahati who testified tha t Ext.6 is the FSL report and Ext.6 (1) is her signature while Ext.7 is the forw arding letter with signature of the Director, Ext.7(1). As per the said report, the article contained human blood but the blood group could not be determined du e to inconclusive result of the test. 13. As against the above prosecution evidence, the accused examined 4 (four) witnesses. DW 1, Dr. Uday Das was a Medical Officer at the Ghograpar PH C. He deposed that he examined one Gambhir Ali on 5.6.2004 at about 8.10 P.M. Th e said Gambhir complained pain behind the left side of his neck. There was abras ion over the lateral aspect of the right leg, upper part which was 1/4’’ x 1/4’’ x 1/4’’ with tenderness which occurred within 24 hours. The cause of injury wa s due to fall or hit against rough surface. Nature of injury was simple. He issu ed a certificate, Ext.A with his signature, Ext. A(1) thereon. In cross examinat ion, he stated that the said injury might be caused by fall on rough surface. 14. DW 2, Md. Buzruj Ali deposed that on the date of occurrence he w as ploughing his land at about 7 A.M.. At that time Kudrat Ali(deceased) also st arted ploughing at the place of occurrence. The plot of land on which he and Ku drat were ploughing, belonged to accused Gambhir Ali. He was ploughing the land as an Adhiar(crop sharer). For last more than 5 years he was enjoying the land b y cultivating it. He was also enjoying the plot of land on which Kudrat started ploughing on the date of occurrence. Accused Gambhir is the brother of Kudrat a nd they are four brothers. They have been living separately. He reiterated that the plot of land situated at the place of occurrence and the plot of land on whi ch he was ploughing, belonged to accused Gambhir. Having come to know that Kudra t was ploughing the land, Gambhir came and prevented Kudrat. The accused Gambhir was accompanied by his grandfather Masfur Ali who was an old man. On being prev ented, Kudrat dealt lathi blows on Gambhir. Seeing the act of lathi blows accuse d Gambhir took away the lathi and threw it away. At this Kudrat said to Gambhir (cid:28)I will finish you today (cid:29) and chased away Gambhir. Kudrat was carrying a small k nife. Accused Gambhir caught the hand of Kudrat and a scuffle took place between them and then the grandfather who was present cried (cid:28)man is killed ! man is killed ! (cid:29) He ran to the place of occurrence. Some other people also arrived. Before they could arrive at the place of occurrence, there was no more scuffle a nd accused Gambhir was going towards his house but Kudrat was seen lying at the place where the scuffle took place in the field nearby the road. He testified th at he saw one knife on the chest of Kudrat. Someone brought out the said knife. The Gaonbura of the village arrived at the place of occurrence by then but Kudra t died already. As ordered by the Goanbura the dead body of Kudrat was taken to his house. He then returned to his place where he was ploughing. In cross examin ation he stated that he was ploughing for about 10/15 minutes after the said inc ident. He did not prevent Kudrat while he started ploughing on the land. He did not even enquire why he (Kudrat) was ploughing. He can not say who took out the knife from the chest of Kudrat. He cannot also say where the said knife was kept or what was done with it. After the incident he did not come to the house of Ku drat and Gambhir to know about them. He heard about the visit of police to the h ouse of Gambhir. He denied the suggestion that he had knowledge that the knife u sed in committing the crime was recovered on being shown by accused Gambhir. He clarified that after the occurrence that he did not visit the said plot of land . 15. The accused examined one Rustam Ali as DW-4. His house is locate d at a distance of ‰ a mile from the house of the accused Gambhir. He knows all the brothers of deceased Kudrat. On the date of occurrence, in the morning, he w as coming in a bicycle towards the place of occurrence to have a look at the cro ps. Gambhir by the side of the road near the plot of land belonging to the broth ers of the deceased. He saw a gathering of 20/22 persons at the place of occurr ence. He saw Kudrat lying on the ground and his grand father Masfur crying (cid:28) he has been killed, he has been killed. (cid:29) In cross examination he stated that he did not try to settle the quarrel between Gambhir and Kudrat. Nobody from the gathe ring told him who had killed Kudrat nor did he enquire about it from anybody. He did not stop at the place of occurrence and moved out straightway. He did not g ive any treatment to Kudrat although he (PW-4) was practising Kabiraji. 16. Learned trial court on the basis of the above evidence and mater ials on record and also upon hearing the learned counsel for the parties convict ed and sentenced the appellant as stated earlier. 17. I have heard Mr. B M Choudhury, learned counsel for the appellan t and Mr. Dhanesh Das, learned Addl. Public Prosecutor, Assam for the State of A ssam. In the memo of appeal the appellant has taken the following grounds: (cid:28)I) f the accused/ appellant under section 302 of the Indian Penal Code and as such, the conviction and sentence of the accused/appellant is liable to be set aside For that the evidence on record do not warrant conviction and sentence o and quashed. II) From the evidence on record it is crystal clear that deceased Kudrat Ali is the aggressor who attacked the accused/ appellant and being frightened the a ccused/ appellant exceeded his act of self defence inflicted blows on the deceas ed. Therefore conviction and sentence of the accused/appellant is liable to be s et aside and quashed. III) For that from the perusal of the evidence on record the learned Trial Ju dge has erred in law for not considering the fact that there was a ’marpit’ betw een the parties and out of provocation the accused/appellant gave one blow which resulted the death of the deceased and as such the conviction and sentence of t he accused appellant is bad in law and same is liable to be set aside and quashe d. IV) For that from the evidence of PW-4, the doctor that the victim receiving a single fatal injury and as such considering the other evidence on record thou gh not admitted at best an offence U/S 304 Part-II IPC may be attracted and as s uch the conviction and sentence of the accused/appellant U/S 302 IPC is liable t o be set aside and quashed. V) For that the impugned judgment and order dated 21.5.07 convicting the ac cused/appellant under Sec.302 of the Indian Penal Code does not promote the ends of justice and therefore the said impugned judgment and order is liable to be s et aside and quashed in the interest of justice. VI) For that in any other view of the matter, the impugned judgment and orde r dated 21.5.07 passed by the learned Sessions Judge, Nalbari may be set aside a nd quashed. (cid:29) 18. In his oral submissions Mr. Choudhury, learned counsel for the a ppellant submits that there was a mar-pit between the deceased Kudrat and the ap pellant which took place due to attack by the deceased Kudrat on appellant and the appellant being provoked and frightened, reacted in self defence but he exce eded in his act of private defence inflicting serious blows on the deceased for which the appellant is not liable to be convicted and sentenced under Section 30 2 IPC as awarded by the learned trial court. He, therefore, submits that the vic tim, having received only a single fatal injury, as per medical evidence, the ap pellant could be convicted, at the best, under Section 304 Pt-II IPC, with lesse r amount of punishment. 19. Mr. Das, learned Addl. Public Prosecutor, Assam does not agree w ith the above submissions. According to him, the appellant committed homicide by attacking the deceased on the vital part of the body by inflicting grievous inj ury and there was no occasion of taking recourse to action in private defence. A s per the evidence on record, there is no scope for converting the conviction fr om Section 304 IPC to 302 Pt-II IPC and imposing lesser punishment. 20. From the grounds taken by the appellant in the memo of appeal it is clear that the presence of the appellant at the place of occurrence and deal ing blow by a sharp weapon on the person of the deceased has not been denied. Th e appellant is also not denying the fact that the deceased received the grievous injury and he succumbed to his injury. The appellant’s stand is that he happene d to give a fatal blow on the person of the deceased in self defence as the dece ased suddenly attacked on him which takes the crime out of the bound of section 302 IPC. The appellant has admitted that there was a mar-pit between the partie s but it was due to provocation that came from the deceased himself. This claim of the appellant is to be examined and tested on the basis of available evidence on record. 21. The appellant having admitted that there was a mar-pit and scuf fle between himself and the deceased, it is felt expedient to find out whether d eceased Kudrat came to the place of occurrence with intention to attack the appe llant. As per the evidence of PW-5, Kudrat Ali(deceased) was ploughing in his fi eld at about 7 am on the date of occurrence and his grand father Masfur Ali was also present near Kudrat Ali. As per his evidence appellant Gambhir came to the place from his house. They have some conversation among themselves followed by t he incident of killing of Kudrat Ali. PW-7 also deposed in the same manner corro borating the evidence of PW-5 in respect of presence of appellant Gambhir with h is grand father Masfur and Kudrat being seen lying dead with injuries the groun d, at the spot. The circumstances under which the appellant came to the place of occurrence and how the incident of killing took place has been narrated by DW-2 . What is found from the evidence of DS-2 is that he is the Adhiar and he was pl oughing on a portion of the plot of land of Gambhir on the date and time of the occurrence. At that time deceased Kudrat came and started ploughing on a portion of the plot of land belonging to appellant Gambhir. Having come to know about it, Gambhir came to the said plot of land with his grand father Masfur Ali. Acco rding to the evidence of DW-2 it was Kudrat who dealt the blow first on appellan t Gambhir, who snatched and threw away the lathi but Kudrat chased Gambhir with determination to ’finish’ him (Gambhir). Kudrat, as per evidence of DW-2, was c arrying a small knife and in the scuffle the knife pierced into the chest of Kud rat. At that time the grand father of the deceased and the appellant were presen t at the place of occurrence. This defence witness could see the said scuffle an d also saw the knife piercing into the chest of Kudrat. But he could not say who removed the knife from the chest of Kudrat.DW-3 who is the brother of the accus ed and the appellant testified that after the death of their father, their mothe r was living with accused Gambhir and the share of land given for cultivation to DW-2 who used to cultivate the same as Adhiar. Kudrat, on the date of occurrenc e, started ploughing on the plot of land of their mother and the occurrence took place on the said plot of land. The act of ploughing by Kudrat was protested by Gambhir who was enjoying the said plot of land along with his mother who was li ving with him. While cross-examining DW 2 and 3 the prosecution put no suggesti on to them that deceased Kudrat did not plough the land in question which was be ing enjoyed by appellant Gambhir as he was looking after the mother on behalf of all the brothers. The very act of ploughing the land suddenly by Kudrat provoke d the appellant and ensued sudden mar pit between Kudrat and Gambhir leading to death of Kudrat. This piece of evidence of DW 2 and 3 could not be impeached by prosecution. 22. The admitted factual position is that the appellant Gambhir came to the place of occurrence with his grand father Masfur. This clearly indicates that he came to the place of occurrence along with his grand father to protest the unwarranted act of Kudrat and settle the matter in presence of the head of the family and no ill motive could be attributed to Gambhir’s visit to the place with grand father. No inference could be drawn that Gambhir came with intention to attack or kill Kudrat. If he had such intention or ill motive to attack or a ssault Kudrat, he would not have come with his grand father. The evidence is tha t the appellant Gambhir did not come with any weapon. The knife which was used f or committing the assault belonged to the deceased Kudrat and in the scuffle it pierced into his chest, may be accidentally, which usually happens in scuffle. 23. The indisputable fact is that all the three persons gathered at the place of occurrence, belong to the same family and there was no fourth perso n with them. Masfur, being an old man and guardian of both the accused and the d eceased, is not supposed to engage himself in the scuffle. Moreover, the scuffle was unexpected and it took place suddenly. Both the accused and the appellant b eing young men fought between themselves and Masfur could not do anything to pre vent his grand sons from physical fighting. There is, of course, no evidence tha t Gambhir voluntarily assaulted Kudrat causing his death but the circumstances u nder which Kudrat received injury on his person, unerringly leads to a conclusio n that the assault could not be made, except by the appellant Gambhir and none e lse because of the proved fact that Kudrat all of a sudden came and started plou ghing the land of Gambhir causing grave provocation and also ensuing a sudden ma rpit in the field. For the said marpit the deceased himself was responsible. The deceased Kudrat, as his intention was to grab or at least to enjoy the plot of land in question, pre-empted resistance from Gambhir and a resultant situation o f fight, which indeed took place, made him, quite naturally, to carry a knife. A s per the evidence, Kudrat, in fact, used the said knife which he brought and as saulted Gambhir with the said knife. A situation was created by deceased Kudrat where appellant Gambhir had to resort to self defence and in the scuffle the sai d knife hit the deceased Kudrat. The theory of private defence adopted by the ap pellant cannot be disbelieved under the said circumstances. If one believes the said story, there would be no reason to disbelieve the plea of the defence that the deceased received the knife injury in the scuffle and the knife pierced into his chest. 24. The prosecution, admittedly, did not examine Masfur, grand fathe r of the deceased and the appellant, although during investigation, the I.O. fou nd that the occurrence took place in his presence. The grand father Masfur was t he eye witness to the whole incident of scuffle and murder. Inspite of that, sur prisingly, while submitting the charge-sheet, the I.O. did not cite him as a pro secution witness. Masfur, being the person who witnessed the whole incident in h is own eyes, is the best witness in this case. Why the prosecution did not exami ne this eye witness has not been made known by it. The prosecution has not expla ined the reasons thereof. The fact remains that the prosecution has withheld thi s important eye witness. 25. The prosecution evidence has firmly established that Masfur was an eye witness and it was incumbent upon the prosecution to produce him as a wi tness. But it has not even cited him as a witness. The prosecution is never deba rred from making a request to the court for calling the eye witness during trial in the interest of justice so as to unfurl the truth by narrating what he saw. The prosecution is, of course, not bound to call all the witnesses but in the pr esent case since Masfur was the only eye witness, he should have been examined t o tell the court the truth. The prosecution, as it appears, from the beginning, tried to withhold this important material witness deliberately or keeping him ba ck unfairly. In Narain and ors. -vs-State of Punjab; AIR 1959 SC 484, it has bee n held that the test is whether a witness is material for the purpose of establi shing the charge and not whether he would have given evidence in support of the defence. The test is whether he is a witness essential to unfolding of the narra tive on which the prosecution is based. Whether evidence is so essential or not would depend on whether he could speak to any part of the prosecution case or wh ether the evidence led disclosed that he was so situated that he would have been able to give evidence of the facts on which the prosecution relied. 26. The prosecution, most probably, took note of the fact that the k iller and the killed are brothers and the eye witness Masfur is their grand fath er and the prosecution most probably thought that in order to save the killer gr and son (appellant), the grand father would not speak the truth or whatsoever he saw although he is an eye witness. The prosecution presumed that the grand fat her would not support its case, which happens so in many a cases where the accus ed and the victim are related. The related witness usually, although at the init ial stage supports the prosecution, refuses to support it at the later stage for obvious reasons as a measure of afterthought or second thought to save the rela ted accused. The old man Masfur, who lost one grand son, did not like to see the other grand son incarcerated in jail. The old man, although we are not sure, de liberately or in collusion with the I.O., got his name dropped as a prosecution witness while submitting the charge-sheet. But the deliberate omission of the I .O. in citing the name of Masfur as a witness in the charge- sheet gives rise to an inference that the prosecution had apprehension that if he was examined, he would not have supported it and in that case, the appellant could easily be acq uitted. 27. In the backdrop of failure of the IO to cite Masfur as witness i n the charge-sheet and also failure of the prosecution to examine him as a witne ss during trial, what consequence would follow could be found from a decision of the Apex Court in Sarwan Singh and others-vs-State of Punjab, reported in AIR 1 976 SC 2304. It is held in the said case that (cid:28)the onus of proving the prosecuti on case rests entirely on the prosecution and it follows as a logical corollary that the prosecution has complete liberty to choose its witness if it is to prov e its case. The court cannot compel the prosecution to examine one witness or th e other as its witness. At the most, if a material witness is withheld, the cour t may draw an adverse inference against the prosecution. But it is not the law t hat the omission to examine any and every witness even on minor points would und oubtedly lead to rejection of the prosecution case or drawing of an adverse infe rence against the prosecution. The law is well settled that the prosecution is b ound to produce only such witnesses as are essential for unfolding of the prosec ution narrative. In other words, before an adverse inference against the prosecu tion can be drawn it must be proved to the satisfaction of the court that the wi tnesses who had been withheld were eye witnesses who had actually seen the occur rence and were therefore material to prove the case. (cid:29) 28. As stated earlier, the appellant, in his grounds of appeal, acce pted the position that Kudrat died at his hand in the scuffle and the knife carr ied by deceased Kudrat pierced into his chest. It is an admitted position that G ambhir had no intention to kill Kudrat but the unfortunate incident took place d ue to sudden scuffle/marpit at the provocation of the deceased himself. There wa s no pre-meditation on the part of the appellant to kill Kudrat inasmuch as a su dden fight took place when deceased himself, in a provocative manner, ploughed t he land and the knife he carried pierced into his chest resulting into his death . The evidence on record proved that Kudrat himself with a knife in his hand cha sed the appellant and the appellant tried to snatch the knife in the scuffle for self defence and it does not amount to taking undue advantage or acting in a cr uel or unusual manner. In the aforesaid fact and circumstances and also on the f ace of evidence on record, the act of the appellant comes under clause thirdly o f Section 300 IPC, inasmuch as the injury caused was sufficient to cause death in the ordinary course of nature. In any case intention to cause death has not b een made out. The appellant had, of course, knowledge that the injury he might h ave caused by the knife during scuffle was likely to cause death, but he had no intention to cause death or to cause such bodily injury as was likely to cause d eath inasmuch as the appellant did not carry the knife but he tried to protect h imself or prevent from being hit by the knife by Kudrat. This fact is sufficient for us to come to a conclusion that the act of the appellant was without any pr e-meditation and intention to cause injury which might cause death to Kudrat. Th is, in our considered view, brings the case to the fold of clause 3 of Section 3 00 IPC. Thus, we are bound to interfere with the impugned order of conviction an d sentence of R.I. for life under Section 302 IPC. The conviction under Section 302 IPC is liable to be converted to 304 Part-II IPC. In regard to sentence, we have given our serious thought over it and found that the purpose of sentence an d the ends of justice, in the aforesaid facts and circumstances of the case, wou ld be met if the appellant is sentenced to undergo R.I. for 7(seven) years in pl ace of R.I. for life. The appellant stands convicted under Section 304 Part-II I PC and sentenced to undergo R.I. for 7(seven) years. It is ordered accordingly. The period of sentence already undergone by the appellant would be set off. The appellant shall serve the rest period of sentence.
Decision
The appeal stands partly allowed and disposed of with modificati 29. on in the conviction and sentence passed by the learned Sessions Judge, Nalbari on 21.5.2007. Send down the record(s) forthwith.