Criminal Appeal No. 580 of 2019 · The High Court
Case Details
2024:BHC-AUG:13738-DB Cri.Appeal No.580/2019:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.580 OF 2019Baburao s/o Yogaji ChotmalAge 43 years, Occ. Agriculture,R/o Issapur (Ramna), Talukaand District Hingoli… APPELLANTVERSUSThe State of Maharashtra (Copy to be served on Public Prosecutor, High Court ofBombay, Bench at Aurangabad)… RESPONDENT.......Mr. S.J. Salunke, Advocate for appellantMr. G.A. Kulkarni, A.P.P. for respondent....… CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.Date of reserving judgment : 4th July, 2024Date of pronouncing judgment : 9th July, 2024JUDGMENT (PER R.G. AVACHAT, J.) : The challenge in this appeal is to a judgment andorder of conviction and consequential sentence, dated23/4/2019, passed by the Court of learned Additional SessionsJudge, Hingoli in Sessions Trial, No.19/2016. Vide impugned
Legal Reasoning
Cri.Appeal No.580/2019:: 2 ::judgment and order, the appellant has been convicted for theoffence punishable under Section 302 of the Indian PenalCode and therefore, sentenced to suffer imprisonment for lifeand fine with default stipulation. 2.The facts in brief giving rise to the present appealare as follows :- The appellant, one Vitthal and Baban were threebrothers. Raju (deceased) was a son of Baban. Smt.Sayabai, the mother of the trio – appellant, Vitthal and Baban,was suffering from leprosy. She was, therefore, keptseparately in a house constructed on the field. Smt. Sayabaiwas being looked after by family of Baban. The family had 6acres of agricultural land. 3 acres thereof was standing in thename of Sayabai. The remaining was in the name of Baban. The house of the appellant was just near the houseof Baban. On 10/12/2015, by little past 8.30 p.m., theappellant started abusing Kalawatibai, wife of his brotherBaban. The reason for hurling abuses was that, Smt. Sayabaiwas not being taken care of properly. She was not fed well. Cri.Appeal No.580/2019:: 3 ::Even earthen pot was not filled with water, which was to beprovided as a drinking water for Sayabai. Raju (deceased)had returned home from work by 7.30 p.m. After taking dinner,he went out in the village and returned by 9.30 p.m. Theappellant had continued hurling abuses. Raju, therefore, tookhim to his (appellant’s) residence to reason with him. Theappellant made Raju fall down. The appellant then inflicted aknife blow on the neck of Raju and then gave second blow onhis stomach. The incident was witnessed by wife of Raju, hismother and even sister as well. Mother Kalawatibaiintervened. As a result, she suffered a knife injury to her palm.The relations and the neighbours rushed Raju to the hospital.Unfortunately, Raju breathed his last within an hour.3.Ashwini, widow of Raju approached the PoliceStation and lodged First Information Report (F.I.R. - Exh.55)against the appellant. Crime vide C.R. No.92/2015 came to beregistered at Basamba Police Station, District Hingoli for theoffences punishable under Sections 302, 323, 504 of theIndian Penal Code. 4.During investigation, crime scene panchanama Cri.Appeal No.580/2019:: 4 ::(Exh.46) was drawn. Inquest panchanama (Exh.36) andautopsy (Exh.82) were conducted on the mortal remains of thedeceased Raju. Clothes from the dead body of deceasedRaju, stained with blood, came to be seized. The appellantcame to be arrested vide arrest panchanama (Exh.26). Theappellant made disclosure statement, pursuant to which a knifewas seized. All the seized articles were sent to ForensicScience Laboratory, Aurangabad for analysis. Statements ofpersons acquainted with the facts and circumstances of thecase were recorded. Upon completion of investigation, chargesheet was filed before the Court of learned Judicial Magistrate,First Class, Court No.3, Hingoli, who in turn, committed thecase to the Court of Sessions, Hingoli. 5.The learned Additional Sessions Judge, Hingoliframed the Charge (Exh.7). The appellant pleaded not guilty.His defence was of false implication. The appellant placed onrecord his side of the story, in writing (Exh.85). According tohim, relations between him and the deceased Raju werefriendly. He has two brothers, namely Baban and Vitthal.Sayabai was their mother. They have ancestral land. It was inpossession of Baban, father of deceased Raju. Kalawatibai, Cri.Appeal No.580/2019:: 5 ::wife of Baban was opposed to effect partition of familyproperty. Since mother Sayabai was suffering from leprosy,she was staying alone in a house on the field. He wouldrequest Kalawatibai to take proper care of Sayabai. Due toconsistent requests by the appellant to take care of Sayabaiand give his share in the family property, Kalawatibai wasannoyed with him. 6.Raju had gone to Hingoli on the fateful day.Appellant took dinner with his family members and then waswatching Television programme. By 9.00 p.m., he heard anoise from outside. He, therefore, rushed out. He,Kalawatibai, Ashwini, brother Vitthal and others rushed there.They noticed Raju lying in a pool of blood in front of the houseof Vitthal. Raju had suffered two injuries. He was shifted tothe house of Vitthal. Then all of them including the appellantrushed him to the hospital. He was present at Civil Hospital,Hingoli until post mortem examination. The police brought himto the Police Station and arrested him falsely at the instance ofsay of Kalawatibai and her brother Vasanta. 7.The prosecution examined 12 witnesses and Cri.Appeal No.580/2019:: 6 ::produced in evidence certain documents.8.The Trial Court, on appreciation of the evidence inthe case, convicted and consequently sentenced the appellantas stated above. 9.Heard. Learned counsel for the appellant did notdispute involvement of the appellant in mounting assault on thedeceased. According to him, it would be at the most anoffence of culpable homicide not amounting to murder. Hewould further submit that, even if it is considered to be worstcase for the appellant, he would at the most be convicted forthe offence punishable under Part I or II of Section 304 of theIndian Penal Code. He took us through the evidence onrecord to submit that, there were thick and friendly relationsbetween the appellant and Raju. They used to dine together.The appellant was initially driver by profession. Raju wasunemployed. At the instance of appellant, Raju learnt driving.The appellant even secured Raju job of a driver. He wouldfurther submit that, while the incident took place, Raju was notthere. The appellant was annoyed since his mother Sayabaiwas not being taken care of. The entire 6 acres of land was in Cri.Appeal No.580/2019:: 7 ::possession of Baban (father of deceased Raju). 3 out of 6acres of land stood in the name of Sayabai. It was theresponsibility of Raju’s mother Kalawatibai to take proper careof her mother-in-law (Sayabai). Since Sayabai was a leprosypatient, she was kept in isolation, in a house on the field. Shewas not properly fed. Even a provision for her drinking waterwas not made. An earthen pot meant for storing drinking waterfor her had never been filled. While the appellant wasannoyed with this, he had a quarrel with Kalawatibai. In themeanwhile, Raju returned. A quarrel between the two tookplace. Since the appellant was annoyed and lost control, heassaulted Raju. The assault was without premeditation. Theincident took place in a spur of moment. The appellant did notact in a cruel manner. In short, according to learned Advocate,the case would fall within Exception (4) to Section 300 of theIndian Penal Code. In support of his contentions, he relied onthe following authorities :(1)Surinder Kumar Vs. Union Territory, Chandigarh(1989) 2 SCC 217(2)Rambir Vs. State (NCT of Delhi)(2019) 6 SCC 122(3)Mangesh Vs. State of Maharashtra(2011) 2 SCC 123 Cri.Appeal No.580/2019:: 8 ::(4)Ravishankar Tandon Vs. State of Chhatgisgarh2024 CRI.L.J. 2039(5)Darshan Singh Vs. State of Punjab2024 CRI.L.J. 160110.Based on the aforesaid submissions and theauthorities relied on, learned Advocate would submit forconverting the conviction of the appellant from the offence ofSection 302 to Section 304 Part II of the Indian Penal Code.According to him, the appellant is behind the bars for about 9years. He be set free imposing a sentence already undergone.11.The learned A.P.P. would, on the other hand,submit that, to bring the case within clause IV of Section 300 ofthe Indian Penal Code, the ingredients thereof need to bemade out. Burden to bring the case within Exceptionnecessarily lies on the appellant. He then took us through themedical evidence on record to suggest that the appellant hadmounted the first assault on the neck and cut over right side ofneck carotid vessels through and through. The same indicatesthe appellant’s intention to kill Raju. From reading of the entireprosecution evidence, no case of scuffle or even quarrelbetween the appellant and the deceased could be made out. Cri.Appeal No.580/2019:: 9 ::He relied on the judgment of the Apex Court in case ofPulicherla Nagaraju @ Nagaraja Reddy Vs. State of AndhraPradesh (2006 AIR (SC) 3010), to ultimately urge fordismissal of the appeal.12.Considered the submissions advanced. Perusedthe evidence on record. In view of the submissions made bylearned Advocate for the appellant, a limited question falls forconsideration in this appeal is, whether the offence in questionis a murder or culpable homicide not amounting to murder,under Part I or Part II of Section 304 of the Indian Penal Code.13.Let us, therefore, advert to the relevant evidenceon record and appreciate the same. Baburao (appellant),Baban and Vitthal are the three brothers. The trio wereresiding separately. Their mother Sayabai was alive. She wassuffering from leprosy. She was, therefore, residing alone in ahouse constructed on the field. There was ancestralagricultural land admeasuring 6 acres. 3 out of 6 acres of landstood in the name of Sayabai. Baban had undertakenresponsibility to maintain his mother Sayabai. Since Sayabaiwas not being maintained properly, the appellant was said to Cri.Appeal No.580/2019:: 10 ::have been annoyed.14.Admittedly the incident took place little past 9.30p.m. on 10/12/2015. Within an hour, Raju breathed his last.15.P.W.12 Dr. Swati was a Medical Officer, CivilHospital, Hingoli. She conducted autopsy on the mortalremains of Raju. She noticed following two injuries on theperson of Raju.(1)Incisional penetrating stab wound on the right side ofneck of size 4 x 2 x 6 cm. which was obliquely placed andwedge shaped. Its upper end was 8.5 cm. from right styloidprocess and lower end was 6 cm. from medial end of clavicleand 9 cm. medially from acromion process of right scapula.This stab injury was directed downwards medially cutting skin,superficial fascia, platysma, sub-cutaneouse tissue, cutting thecarotid vessels through and through, cut over carotid vesselsof 2 cm. obliquely placed and said injury was grievous innature.(2)Incised wound on left side of abdomen of size 4 x 2 x 1 Cri.Appeal No.580/2019:: 11 ::cm., wedge shaped, muscle deep, not penetrating into cavity,simple in nature, upper end 13 cm. from left nipple, lower end19 cm. from left illiac crest.16.The report of post mortem conducted by P.W.12Swati is at Exh.82. In her opinion, Raju died of stab injury overright side of neck cutting carotid vessels through and through.17.During cross-examination, it has been brought onrecord that, depth of the stab wound is always more thanlength and width of the wound. She, however, denied depth ofthe stab injury is always more than length of weapon. Sheadmitted that, there is distinction between profused bleedingand blood flow. It was suggested on behalf of the defence thatdue to Injury No.1, there was profused bleeding. 18.In view of Section 105 of the Evidence Act, when aperson is accused of any offence, the burden of proving theexistence of circumstances bringing the case within any of theGeneral Exceptions in the Indian Penal Code (45 of 1860), orwithin any special exception or proviso contained in any otherpart of the same Code, or in any law defining the offence, is Cri.Appeal No.580/2019:: 12 ::upon him, and the Court shall presume the absence of suchcircumstances. It is reiterated that, before the Trial Court verymany defences were raised. The appellant disowned ordenied to have been involved in the crime. He claimed to havebeen falsely implicated. Before this Court, submission asregards a case to have been covered by one of the exceptionto Section 300 of the Indian Penal Code has been averred.We are conscious of the legal position that even no expressdefence is raised in that regard and from the prosecution caseitself, the defence of the appellant is made out, he may beentitled thereto. It is not necessary for him to lead positiveevidence. 19.In the case at hand, the F.I.R. (Exh.55) was lodgedby Ashwini, widow of the deceased. The report lodged by herwas recorded by P.W.11 Sudhakar, Assistant Police Inspectorpresent at the Police Station at the relevant time. It is in hisevidence that, he recorded the F.I.R. lodged by Ashwini (P.W.1)as per her narration. It is at Exh.51. Unfortunately, P.W.1Ashwini did not stand by the prosecution. According to her,police simply obtained her signature below the report, she didnot narrate the contents of F.I.R. In her cross-examination, Cri.Appeal No.580/2019:: 13 ::she admitted that, appellant and others put Raju on cot andthereby clothes on their person were blood stained. LearnedA.P.P., in-charge of the case subjected her to a searchingcross-examination. She did not give in to any of the questionsput to her by learned A.P.P.20.P.W.2 Ashok is a panch witness to a disclosurestatement and consequential recovery of a knife and bloodstained clothes, pursuant to the disclosure statement made bythe appellant. The same also would be of little consequencesince P.W.10 Sudhakar, a witness to the crime scene testifiedthat, blood and knife were lying on the floor, how come then aknife came to be recovered pursuant to the disclosurestatement. Be that as it may. Although number of witnesseswere examined, close reading thereof indicate that, P.W.5, 6and 8) did not stand by the prosecution. In view of the issueinvolved in this appeal, we are least concerned with thosewitnesses not to have supporting the prosecution.21.The case is based on eye witness account. Firsteye witness is the mother of deceased Raju. She is P.W.3Kalawatibai. It is in her evidence that, she had two daughters Cri.Appeal No.580/2019:: 14 ::and a son – Raju. Anuradha and Archana were her daughters.Anuradha was married. Ashwini (P.W.1) was Raju’s wife. Shehad two brothers-in-law, Vitthal and Baburao. All of themreside separately. The house of Baburao (appellant) was inthe nearby of her residence. While Vitthal’s house was atsome distance away. The family had 6 acres of agriculturalland. 3 out of 6 acres of land stood in the name of Sayabai,her mother-in-law. Sayabai was a leprosy patient. She was,therefore, residing in a house on the agricultural field. It isfurther in her evidence that, treatment to her mother-in-law wasbeing extended. The appellant was abusing them in filthylanguage. The appellant was telling them that they did notkeep water in big earthen pot and did not provide medicaltreatment to Sayabai. It was also the grievance of theappellant that she (Kalawatibai) did not make any arrangementfor her. Raju (deceased) was a driver on a private vehicle.22.It is in her evidence that, the incident took place on10 December 2015. By 7.00 p.m. Raju came home. He tookdinner and went in the village. Her husband Baban, aftertaking dinner, went for sleeping in the field. By 9.00 p.m.,appellant started abusing in filthy language. In the meantime, Cri.Appeal No.580/2019:: 15 ::Raju returned home. He tried to give appellant understanding.He took appellant to his (appellant’s) residence. The appellantmade him fall on bed and assaulted on his neck with a knifeand then on abdomen. Raju bled profusely. As sheintervened, she too suffered injury with knife. Exh.43 is herinjury certificate. Raju was, therefore, brought in the courtyard.He, however, fell down due to giddiness. Brother-in-law Vitthaland others gathered. Raju was rushed to the hospital. Hedied within an hour. She referred to her statement recordedunder Section 164 of the Cr.P.C. It is at Exh.19. The samereinforces her evidence before the Court.23.Our attention was drawn to her cross-examination,wherein she testified that Raju returned home by 9.15 p.m.She admitted that, the appellant’s house is just in front of herhouse while Vitthal’s residence is somewhat away. She wenton to admit that, the appellant and Raju used to live as friends.Non-vegetarian food was not cooked or eaten at herresidence. Raju and appellant, therefore, used to take non-vegetarian food at his appellant’s residence. Since Raju wasuneducated, he learnt driving and secured a Driver’s job. Wedo not propose to refer to her further cross-examination which Cri.Appeal No.580/2019:: 16 ::relates to suggesting the appellant’s altogether non-involvement in the crime. She admitted to have not seen as tohow Baban fallen Raju down on the cot. It was suggested toher that a cot on which Raju was lying was on east-westdirection. It is further in her evidence that, Baburao hadpenetrated knife in the neck of Raju. Her evidence furtherindicates that, Baban was left handed. She, however, couldnot state with which hand Baban assaulted. Considering thenature of injury suffered by deceased, we must state that, theassault must have been made with a knife in left hand.24.On the same lines is the evidence of P.W.4Archana, sister of deceased Raju. We, therefore, do not referto the same in extenso. Her evidence indicates that, theincident took place little past 9.30 p.m. on 10 December. Shereiterated what has been stated by P.W.3 Kalawatibai aboutthe appellant to have hurled abuses on account of his motherSayabai to have not been properly looked after. It is further inher evidence that, Raju, after taking dinner, had gone to thevillage. He returned home. He asked the appellant that heshall not abuse in filthy language. Raju gave appellantunderstanding. Thereupon the appellant questioned him, “तत Cri.Appeal No.580/2019:: 17 :: ककयमलकसमजततघकलतत". Raju had taken the appellant to hisresidence. The appellant made him fall on bed and gave twoblows with a knife. One blow on neck and the other onstomach. Raju came out of the house. He fell on the ground.She too referred to her statement recorded under Section 164of Cr.P.C. (Exh.22). The same reinforces her evidence beforethe Court.25.Our attention was drawn to certain evidenceappearing in her cross-examination. It was brought on recordthat, the appellant had joined the others to rush Raju to thehospital. 26.Considering the submissions made by learnedAdvocate for the appellant, it is now an admitted fact that, dueto assault made by the appellant, Raju died. It is true that,while the incident took place, Raju was not there. Theappellant had every reason to pick up quarrel with his sister-in-law, wife of his real brother Baban since his mother Sayabaiwas allegedly not being properly taken care by Kalawatibai(P.W.3). The evidence on record also indicates that, both theappellant and Raju were thick friends. The learned Advocate Cri.Appeal No.580/2019:: 18 ::for the appellant, therefore, may have reason to contend thatthe appellant did not intend to eliminate Raju. According tohim, the case falls within Exception (4) to Section 300 of theIndian Penal Code. We, therefore, need to advert to Section300 of the Indian Penal Code first and then its relevantexception. Section 300 of the Indian Penal Code reads :-300. Murder:- Except in the cases hereinafterexcepted, culpable homicide is murder, if the actby which the death is caused is done with theintention of causing death, or —2ndly.—If it is done with the intention ofcausing such bodily injury as the offender knowsto be likely to cause the death of the person towhom the harm is caused, or—3rdly.—If it is done with the intention ofcausing bodily injury to any person and the bodilyinjury intended to be inflicted is sufficient in theordinary course of nature to cause death, or—4thly.—If the person committing the actknows that it is so imminently dangerous that itmust, in all probability, cause death, or such bodilyinjury as is likely to cause death, and commitssuch act without any excuse for incurring the riskof causing death or such injury as aforesaid.Exception (4):- Culpable homicide is not murder ifit is committed without premeditation in a suddenfight in the heat of passion upon a sudden quarreland without the offender having taken undueadvantage or acted in a cruel or unusual manner.” Cri.Appeal No.580/2019:: 19 ::27.To bring the case within Exception 4, following factsneed to be proved. (i)There must be a sudden fight;(ii)There was no premeditation;(iii)The act was committed in a heat of passion; and(iv) The offender had not taken any undue advantage oracted in a cruel or unusual manner.28.Intention to commit murder can be gathered fromthe following facts :-Nature of injury caused,Kind of weapon used,Vital part of the body on which the assault is made.29.The first blow with an assault was made on theneck of deceased Raju. The appellant did not stop at that. Hegave second blow on the abdomen with knife. We reiterate,the deceased died of stab injury over right side of neck cuttingcarotid vessels through and through. As per the suggestiongiven on behalf of the appellant itself, there was a profused Cri.Appeal No.580/2019:: 20 ::bleeding. Raju died within an hour of the incident. Theappellant joining others to take the deceased in the hospitalwould in no way be considered that he did not intend toeliminate Raju, considering the nature of assault. Closereading of the evidence on record indicates that there wasneither quarrel nor scuffle between the two i.e. appellant andRaju. The appellant was abusing Raju’s mother Kalawatibaifor about half an hour. When Raju returned home, he tried toreason with the appellant and take him to his (appellant’s)residence, wherein the appellant mounted the attack. Thecrime scene panchanama indicates that, it is the residence ofthe appellant. Although the evidence on record may indicatethe appellant to have had not premeditated an assault, all theingredients of Exception (4) have not been made out. 30.We have carefully gone through the authoritiesrelied on by learned Advocate for the appellant. There can beno two views over what has been observed therein. It isreiterated that, criminal case is to be decided on the facts andcircumstances of each case. In paragraph No.7 of thejudgment in case of Surinder Kumar (supra), it has beenobserved :- Cri.Appeal No.580/2019:: 21 ::“7.To invoke this exception four requirements mustbe satisfied, namely, (i) it was a sudden fight; (ii) therewas no premeditation; (iii) the act was done in a heatof passion; and (iv) the assailant had not taken anyundue advantage or acted in a cruel manner. The causeof the quarrel is not relevant nor is it relevant whooffered the provocation or started the assault. Thenumber of wounds caused during the occurrence is nota decisive factor but what is important is that theoccurrence must have been sudden andunpremeditated and the offender must have acted in afit of anger. Of course, the offender must not havetaken any undue advantage or acted in a cruel manner.Where, on a sudden quarrel, a person in the heat of themoment picks up a weapon which is handy and causesinjuries, one of which proves fatal, he would beentitled to the benefit of this exception provided he hasnot acted cruelly. In the present case, the deceased andPW 2 had entered the room occupied by Sikander Laland his family members and had demanded vacantpossession of the kitchen. When they found that theappellant was disinclined to handover possession ofthe kitchen, PW 2 quarrelled and uttered filthy abusesin the presence of the appellant's sister. On theappellant asking him to desist he threatened to lock upthe kitchen by removing the utensils, etc., and that ledto a heated argument between the appellant on the oneside and PW 2 and his deceased brother on the other.In the course of this heated argument it is theappellant's case that PW 2 took out a knife from hispant pocket. This part of the appellant's case seems tobe probable having regard to the antecedents of PW 2.It is on record that PW 2 was convicted at Narnaul ontwo occasions under Section 411, IPC and his namewas registered as a bad character at the local policestation. It was presumably because of this reason thathe had shifted from Narnaul to Chandigarh a couple ofyears back and had started to live in the premisesrented by PW 4. When the appellant found that PW 2 Cri.Appeal No.580/2019:: 22 ::had taken out a pen knife from his pocket he went intothe adjoining kitchen and returned with a knife. Fromthe simple injury caused to PW 2 it would appear thatPW 2 was not an easy target. That is why the learnedSessions Judge rejected the case that Amrit Lal hadheld PW 2 to facilitate an attack on him by theappellant. It further seems that thereafter a scufflemust have ensued on Nitya Nand intervening to helphis brother PW 2 in which two minor injuries weresuffered by the deceased on the left arm before thefatal blow was inflicted on the left flank at the level ofthe 5th rib about 2" below the nipple- It mayincidentally be mentioned that the Trial Court came tothe conclusion that the injury found on the neck of PW2 was a self-inflicted wound and had thereforeacquitted the appellant of the charge under Section307, IPC, against which no appeal was carried. Wehave, however, proceeded to examine this matter onthe premise that PW 2 sustained the injury in thecourse of the incident. From the above facts, it clearlyemerges that after PW 2 and his deceased brotherentered the room of the appellant and uttered filthyabuses in the presence of the latter's sister, tempers ranhigh and on PW 2 taking out a pen knife the appellantpicked up the knife from the kitchen, ran towards PW2 and inflicted a simple injury on his neck. It would bereasonable to inter that the deceased must haveintervened on the side of his brother PW 2 and in thecourse of the scuffle he received injuries, one of whichproved fatal. Taking an overall view of the incident weare inclined to think that the appellant was entitled tothe benefit of the exception relied upon. The HighCourt refused to grant him that benefit on the groundthat he had acted in a cruel manner but we do not thinkthat merely because three injuries were caused to thedeceased it could be said that he had acted in a crueland unusual manner. Under these circumstances, wethink it proper to convict the accused under Section304, Part I, IPC and direct him to suffer rigorousimprisonment for 7 years. In the result, this appealpartly succeeds. The order of conviction and sentence Cri.Appeal No.580/2019:: 23 ::passed under Section 302, IPC is set aside and thefine, if paid, is directed to be refunded. The appellantis convicted under Section 304 Part I, IPC and isdirected to suffer rigorous imprisonment for 7 years.” 31.We have perused the facts of the said case to findthat there was a scuffle. When P.W.2 in the said case took outa pen knife, the appellant Surinder Kumar picked up knife fromthe kitchen and ran towards P.W.2 and inflicted a simple injuryon his neck. The one who died had intervened on the side ofhis brother – P.W.2 and in the course of the scuffle he hadsuffered injuries, one of which proved fatal. This makes all thedifference.32.Same is the case in respect of judgment in case ofRambir (supra), wherein a reference to the judgment of theApex Court in case of Surinder Kumar (supra) has been made.Paragraph No.17 of the said judgment indicates that, theincident had occurred in a sudden fight. 33.We have also perused the judgment in the case ofMangesh (supra). In paragraph No.14 of the judgment, it hasbeen observed that, the appellant therein had lost self-controland in the hit of passion the appellant caused injury to thedeceased.
Decision
Cri.Appeal No.580/2019:: 24 ::34.At the cost of repetition, it is reiterated that, eachcase is to be considered on its own facts, however, taking aholistic view of the matter. On appreciation of the evidence inthe case, we found that all the four ingredients of Exception (4)have not been made out. It is reiterated that, there was neithera scuffle nor even a quarrel between the appellant and thedeceased. The injury No.1 suffered by Raju is self-speaking toindicate the appellant to have inflicted the same with anintention to eliminate Raju. It needs no mention that, intentionto kill can be developed within a shortest of time. Same is thecase hereat. It does not get covered by Exception (4) ofSection 300 of the Indian Penal Code. We find no reason tointerfere with the impugned order of conviction andconsequential sentence.35.In the result, the appeal fails. It is dismissed. (NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) fmp/-