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Dharma @ Dharam Singh Vs. the State (Delhi Administration) - Court Judgment

LegalCrystal Citation
CourtDelhi High Court
Decided On
Case NumberCriminal Appeal No. 126 of 1979
Reported in21(1982)DLT22b
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 154; Indian Penal code, 1860 - Sections 299
AppellantDharma @ Dharam Singh
RespondentThe State (Delhi Administration)
Advocates: M.L. Jain and; D.R. Sethi, Advs
Cases ReferredJagrup Singh v. The State of Haryana
(i) criminal procedure code - section 154--delay in recording first information report--whether fatal to prosecution.; (ii) indian penal code - sections 209, 300 & 304--absence of premeditation--medical opinion--doctor examining the deceased, not examined--medical case-sheet of the deceased not placed on record--dimension of injuries not given--opinion not expressed whether injury sufficient in the ordinary course of nature to cause death--autopsy surgeon's opinion that injuries sufficient to cause death in the ordinary course of nature if enough--conviction under section 302 whether can be converted to conviction under section 304.; the appellant was convicted of offences under section 302 and 324 of indian penal code and also under section 27 of the arms act by the trial court for.....j.d. jain, j. (1) the appellant, who is a resident of a locality called 'welcome' (seelampur) has been convicted of offences under section 302 and 324, indian penal code (for short the code), as also under section 27 of the arms act, by an additional sessions judge vide his order dated 16th may, 1979. he has been sentenced to imprisonment for life on the first count and rigorous imprisonment turn 11/2 rears on the second count. further, he has been awarded rigorous imprisonment for two years under section 27 of the arms act. however, all the sentences have been made to run concurrently. feeling aggrieved he has come up in this appeal against his conviction and sentence. (2) the prosecution case may be briefly summerised as under. on march. 1978, which was a day of holi festival, ram.....

J.D. Jain, J.

(1) The appellant, who is a resident of a locality called 'Welcome' (Seelampur) has been convicted of offences under Section 302 and 324, Indian Penal Code (for short the Code), as also under Section 27 of the Arms Act, by an Additional Sessions Judge vide his order dated 16th May, 1979. He has been sentenced to imprisonment for life on the first count and rigorous imprisonment turn 11/2 rears on the second count. Further, he has been awarded rigorous imprisonment for two years under Section 27 of the Arms Act. However, all the sentences have been made to run concurrently. Feeling aggrieved he has come up in this appeal against his conviction and sentence.

(2) The prosecution case may be briefly summerised as under. On March. 1978, which was a day of Holi festival, Ram Kishan Public Witness 1. Madan Lal Public Witness 3, Sohan Lal Public Witness 4 and Padam Singh, deceased, all residents of new Seelampur, went to the locality called 'Welcome' (Seelampur) for playing Holi. They visited the house of Madho Singh, Public Witness 2. At about 11|11.30 A.M. while all of them including Madho Singh were returning to Seelampur from Welcome after playing Holi, they noticed some Purabias (people belonging to eastern Uttar Pradesh) coming from the direction of Jafrabad in a mood of Holi revelry. They were singing and dancing to the tune of a dholak (a kind of drum). On Nadu and Dharma, appellant, happened to be present at the Pulia (bridge) over the canal by the side of which Ram Kishan and others were going. Nandu tried to snatch the dholak from. the Purabias. This led to an altercation between Nandu and the Purabias. Padam Singh, deceased, tried to intervene and told Nandu not to snatch the dholak from the Purabias. However. Nandu resented his intervention and it led to exchange of hot words between Padam Singh, deceased and Nandu. Upon this the appellant. who was present close-by, moved forward holding an open knife in his hand and shoulted, 'I will tell vou how Holi. is played'. While saving so, he dealt a knife blow on the abdomen of Padam Singh which hit him near the navel. This he did despite Nandu's shouting that he should not do so. On receipt of the knife blow he staggered and fell down and the appellant took to his heels in the direction of Kabari Bazar (shops of junk dealers). Ram Kishan and his empoisons Madan Lal and Madho Singh chased Dharma, appellant, for some distance. Even Nandu tried to help him in the matter. Ram. Kishan was able to apprehend the appellant with the help of Nandu but the appellant managed to escape after inflicting a knife injury on the left hand of Ram Kishan. Thereupon, Ram kishan and his companions brought Padam Singh to Police Station Seelampur which is at a distance of about a furlong or so from the place of occurrence. They found an ambulance van parked inside the precincts of the Police Station and they took him to Lok Nayak Jai Prakash Narayan Hospital Police Station Seelampur which distractive of about a in the same. After examination in the Casualty, Padam Singh was admitted to the Hospital for surgical operation and treatment. However, he succumbed to his injury on the same evening at about 5.40 P.M.

(3) Constable Ram Avtar (Public Witness 6) was on duty at the Casualty of Jai Prakash Narayan Hospital (for short Jpn Hospital ). He informed Police Station Seelampur on telephone about the admission of Padam Singh to the Jpn Hospital in an injured condition and an entry with regard to the same was made in the Daily Diary 'A' at Seriall No. 10. A copy of the said Daily Diary entry was delivered to Sub-Inspector Gurbax Lal at Jafrabad where he had gone in connection with his official duty. On receipt of the same, Gurbax Lal proceeded to Jpn Hospital and contacted the doctor attending upon Padam Singh. The latter was declared by the doctor to be unfit to make a statement, so he recorded statement of Ram Kishan, Public Witness 1, and sent the same to the Police Station under the endorsement for registration of a case. A formal First Information Report was recorded on its basis by the duty officer ; that is how the police machinery came into action. The appellant was arrested on 30th March, 1978. On interrogation he disclosed that he had kept a dagger-shaped knife concealed in his jhuggi (hutment) and he could get the same recovered. His disclosure was reduced to writing and pursuant there to he got knife Ex. P1 recovered in the presence of Shri Daulat Ram and Sohan Lal, Public Witness s. It was stained with blood. It is further the case of prosecution that the appellant was advised to keep his face muffled immediately on his arrest and he was produced before a Metropolitan Magistrate with his face muffled on the next following day for the purpose of arranging a test identification prade. However, the appellant declined to have the test identification on the plea that he was already known to the so-called eye witnesses.

(4) The prosecution story has been unfolded by Ram Kishan, PW1 ans had been duly corroborated by his companions, namely, Madho Singh Public Witness 2, Madan Lal Public Witness 3 and Sohan Lal PW4, in all essential particulars, Indeed, all of them have spoken almost in the same voice as to the circumstances under which the deceased sustained a fatal blow with dagger at the hands of the appellant. One Lachhman Dass, who happened to be present at the culvert at the time of this incident, has also lent support to the prosecution version as Public Witness 5. However, it may be noticed that only Ram Kishan, Madho Singh, Madan Lal and Sohan Lal went to the Police Station and from there to Jpn Hospital with the deceased whereas Lachhman Dass went to his house from the spot. Sohan Lal, Public Witness 18 and Daulat Ram, Public Witness 20, have corroborated the testimony of the Investigating Officer Shri Gurbax Lal, as regards the disclosure statement made by the appellant in consequence of which the knife Ex. P1 was recovered.

(5) The appellant has denied his participation in the commission of the crime in toto and he has expressed complete ignorance about the alleged incident. He has led no defense.

(6) Mr. M. L. Jain, Amieus Curiae, appearing on behalf of the appellant has assailed the conviction and sentence of the appellant on various grounds. He has, at the outset, canvassed with considerable fervour that there was inordinate delay on the part of the police in recording the First Information Report inasmuch as the statement of Ram Kishan which furnished the basis for registration of the case was recorded by Sub-Inspector Gurbax Lal at about 3.15 P.M. whereas the stabbing incident had taken place at about 11.30 A.M. and even Ram Kishan and his companions, on their own showing. had reached Police Station Seelampur at about 12.00 Noon Along with Padam Singh in injured condition. In this context he his invited our attention to the deposition of Constable Partap Singh, who was driver of the ambulance van in which the deceased was taken to Jpn Hospital from Police Station Seclampur. This witness admitted during cross-examination that the Station House Officer and two Sub-Inspectors were standing at the Police Station when the injured was brought by two or three members of the public and all of them said that the injured be taken to the hospital immediately. About 10 or 11 Constables too were present near the Station House. Officer and one of them was deputed by the Station House Officer to accompany the injured. Thus. the contention raised, is that it was imperative for the Station House Officer to ensure that First Information Report was recorded promptly i.e. at the earliest opportunity but he miserably failed to discharge his duty in this behalf even though he was well-seized of the gravity of the situation. On a consideration of the matter we do find some merit in this contention. No doubt, it would appear that the condition of Padam Singh was precarious and he was hanging between life and death. Hence, it was incumbent upon the Station House Officer to ensure that he was taken to the hospital at once rather than embark upon the investigation of the case. So, he adopted the right course in making available the ambulance van for this purpose. However, he seems to have taken the matter rather casually and faltered in his duty to make sure that investigation was launched without any loss of time. With this object in view he could have well sent some police officer competent to investigate the matter Along with the injured but for reasons best known to him he did not adopt such a course. On the contrary, the investigation of the case was entrusted to Sub-Inspector Gurbax Lal in routine on receipt of information from the Constable on duty at Jpn Hospital about the admission of Padam Singh to the Hospital. Indeed, it passed our comprehension why one of the Sub-Inspectors present at the Police Station when the injured was brought there was not entrusted with the investigation of the case and why copy of the Daily Diary entry should have been sent to Sub-Inspector Gurbax Lal, who happened to be on duty in the area of Jafrabad. Even if Sub-Inspector Gurbax Lal was considerd to bs a competent hand his services could have been secured even before the arrival of the telephonic message from. Jpn Hospital. Thus, we feel that there is a serious lapse on the part of the Station House Officer, in not acting with utmost promptitude having regard to the enormity of the situation. All the same, we do not find that the delay jn recording the first Information Report in the instant case can prove fatal to the prosecution case.

(7) True, the importance of a First Information Report being made promptly cannot be under-rated. This information when recorded serves as the basis of the case set up by the informant. People very often try to foist crime committed by some persons known or unknown on the personal enemies of the informant after consultation with relatives etc. and a lone delay in lodging the First Information Report may cast a cloud of suspicion on the very foundation of the prosecution case as the danger creeps in of the introduction of coloured version, exaggerated accounts or concocted story. All the same, such delay cannot by itself be held to be a reason for rejecting evidence which is otherwise fully entitled to credit. In order words, mere delay in lodging the First Information Report will not necessarily, as a matter of law, be fatal to the prosecution and it is only a circumstance which will put the Court on its guard. Reference in this connection may be made with advantage to Arpen Joseph alias Current Kunjukunju v. The State of Kerala, : 1973CriLJ185 and Ram Jag v. The State of U.P., : 1974CriLJ479 . That besides the delay in this case is negligible. Surely it is not attributable to any lapse on the part of the informant i.e. Ram Kishan, Public Witness , wh6se presence at the time and place of occurrence in question, as shall be presently seen, stands amply proved by cogent and reliable evidence. Even otherwise nothing has come on the record to suggest that the delay in recording the First Information Report on the part of the police officials was deliberate and conscious or that it Was actuated by some ulterior motive. Hence, much significance cannot be attached to it while appraising the prosecution evidence.

(8) The learned amices Curiae has drawn our attention to certain discrepancies appearing in the depositions of various ocular witnesses with regard to the following matters: (1) The exact place where the deceased was stabbed by the appellant. (2) The time of arrival of various witnesses at the Police Station as well as at the Jpn Hospital Along with the injured. (3) The time of arrival of the Investigating Officer at the Jpn Hospital and the time of arrival of the various witnesses at the spot Along with him, as also the time when their statements were recorded by the Investigating Officer under Section 161, Code of Criminal Procedure. (4) The distance for which the appellant was chased and apprehended by NandulRam Kishan. (5) The fact that Nandu was able to apprehend the appellant and make him over to Ram Kishan and so on and so forth.

(9) No doubt, certain discrepancies with regard to the above and some other matters have cropped in the depositions of various witnesses but the same are too minor to be taken in judicial notice of. Indeed, such like discrepancies are natural in the sense that they are bound to arise on account of difference in the power of observation, recollection and capability to describe the incident vividly on the part of various witnesses It was also pointed out that the story of Padam Singh having been taken to Police Station Seelampur on a cycle belonging to some passers-by was introduced at the stage of trial as an after-thought, the First Information Report being absolutely silent with regard to the same. However, we do not think that an omission like this can be exaggerated as an embellishment or improvement which may impair the credit-worthiness of the witnesses. After all the First Information Report is not supposed to be an Encyclopedia so as to incorporate every minor detail of the incident and the other attending circumstances.

(10) As observed earlier the presence of Ram Kishan Public Witness at the time and place of occurrence is established by unimpeachable evidence. He was the person to accompany the deceased to the Hospital as would be evident from the medico legal certificate, Ex. Public Witness 15/A. The deceased was admitted at 12.15 P.M. i.e. soon after the occurrence in injured condition. Further, as deposed by him, he sustained an injury with a knife in the process of apprehending the appellant who then managed to escape. The said injury was noticed by the Medical Officer in the Casualty of Jpn Hospital on that very day vide. Out Patient Ticket, Ex. Public Witness 15/C. He was however, referred to Police Hospital for treatment etc. He was then examined by Dr, (Mrs.) S. Sharma at the Police Hospital on the next following day, viz. 26th March, 1978 and she too noticed an incised wound on the lateral side of his left hand which was, of course, skin-deep. She also noticed an incised wound on the interior surface of left thumb proximal phalanx. The duration of the injuries, according to her, was between 21 to 28 hours. Incidentally it coincides with the alleged time of occurrence. That besides nothing has come on the record to suggest that Ram Kishan or for that matter any other Public Witness was inimically diposed towards or harboured any grudge against the appellant. It may well be that they were friendly with the deceased but that in itself will not be a ground to warrant an inference that they would stoop so low as to falsely implicate an innocent person, on a charge of heinous crime, like murder. Even otherwise the testimony of Ram Kishan has a ring of truth and hs does not appear to have indulged in any discernible embellishment, improvement or exaggeration. The narration of facts by him is perfectly natural and his credit has not been shaken in any manner despite searching cross-examination. He has not made the slightest attempt to ascribe any motive to the appellant for killing the deceased. On a parity of reasoning, we see. no reason to disbelieve the other ocular witnesses even though certain discrepancies, to which reference has already been made, have cropped up in their depositions. Significantly, no plausible defense has been offered by the appellant and the only suggestion made to Public Witness 5 was that he had falsely implicated the appellant in order to save his friend Nandu, who was the real culprit and had inflicted injury to Padam Singh, deceased. No such suggestion was ever made either to Public Witness 1 or PW2. No doubt, it has come on the record that Nandu is a bad character of the area and that he was even known to the police prior to this occurrence on account of his involvement in some criminal cases. All the same, there is no shred of evidence to show that Ram Kishan or any of his companions was, in any way, interested in helping Nandu out of this case. An argument was advanced that Nandu was a material witness of the prosecution but he has not been examined. The fact is that he was given up on the ground of having been won over. Keeping in view that Nandu was present at the Pulia Along with the appellant and it was with a view to help him that the appellant came forward and dealt the knife blow to Padam Singh, the possibility of his having been won over cannot be altogether eliminated. Hence, the version of the prosecution that he had been won over cannot be brushed aside lightly. In sort, we find that the conviction of the appellant is founded on cogent and reliable evidence and we see no reason to disturb the same.

(11) A question of vital importance, however, arises as to what will be the nature of offence committed by the appellant. is it culpable homicide amounting to murder or culpable homicide simplicities Whereas Section 299 of the Code defines and offence of culpable homicide. Section 300 of the Code lays down special characteristics which aggravate the nature of offence into murder. In other words, to render culpable homicide murder the case must come within the provisions of clauses, 1, 2, 3 or 4 of Section 300 of the Code. Speaking generally, thereforee, 'culpable homicide' sans 'special characteristics of murder' is 'culpable homicide not amounting to murder'. The learned Additional Sessions Judge has relying upon Virsa Singh v. State of Punjab, Air 1953 S.C. 465, hold that this case squarely fails within clause 3rdly of section 300 of the Code and, as such the offence committed by the appellant is murder. The ingredients of clause 3rdly of Section 300 of the Code were brought out by Vivian Bose, J. (as he then was) in Virsa Singh's case (supra) in a lucid manner. His Lordship observed that:

'THE prosecution must prove the following facts before it can bring a case under Section 300, '3rdly'. First, it must establish, quite objectively, that a bodily injury is present. Secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.'

His Lordship then amplified the third ingredient in the following words:

'IT does not matter that there was no intention to cause death, or that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (there is no real distinction between the two) or even that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to the present is proved, the rest of the enquiry, is purely objective and the only question is whether, as a matter of purely, objective inference, the injury is sufficient in the ordinary course of nature to cause death.'

(12) The learned amices curiae has canvassed with great fervour that the circumstances of the case do not warrant an inference that the accused had any intention to cause death or to cause an injury sufficient in the ordinary course of nature to cause death inasmuch as the assault was committed by the appellant impulsively as a result of sudden excitement. It is urged that the appellant bore no malice or ill-will towards the deceased and it was in the Course of sudden fight that the appellant acting on the spur of the moment in heat of passion inflicted the knife blow which was nothing but a kitchen knife and it was by rash and silly act that he gave a rather forceful blow. Thus, the injury inflicted on the deceased cannot be E termed as premeditated or calculated. Hence, the case will squarely fall within the IInd Part of Section 304 as at best knowledge that the injury was likely to cause death may be attributed to the appellant.

(13) However, Saving regard to the totality, of circumstances, we do not think that the particular' injury sustained by the deceased was unintentional or accidental. The intention is a question of act which is to be gathered from the acts of the parties. The law looks as regards, intention to the natural result of a man's act and not to the condition of his mind. So, when a normal man does an act he should be credited with the intention of doing that which is inevitable consequence of his act. Further, the nature of intention has to be gathered from various circumstances, for instance, the kind of weapon used, the part of the body hit. the amount of force employed and the circumstances attending upon death. No doubt, there was a sudden quarrel but that was between Nandu and the deceased. The latter gave no provocation to the appellant. He was unarmed and it may well be argued that the appellant had no intention to cause death of Padam Singh, nothing has come on the record to suggest that the appellant intended to cause some other injury, i.e., not the one actually sustained by the deceased. Abdomen is a very delicate and vulnerable part of human body and the appellant may well be presumed to be aware of this fact. He has offered no Explanationn, whatsoever, for inflicting an injury with a sharp weapon on a vital part of the deceased. His bare denial is of no consequence. Hence, in the absence of any indication or circumstance to show that the particular injury inflicted by the appellant was accidental or unintentional or that some other kind of injury was intended to be inflicted, the presumption would be that the very injury suffered by the deceased was intended. Mere absence of premeditation will not be enough to displace this presumption. Thus, the ingredients (1) and (3) postulated in Virsa Singh's case (supra) stand amply proved.

(14) We then proceed to examine whether the injury to the deceased can be said to be sufficient in the ordinary course of nature. As observed by Vivian Bose. J., this part of the inquiry is purely objective and we have to be guided by the medical evidence in this respect. The Autopsy Surgeon, Dr. Bharat Singh (Public Witness 13), who conducted the post mortem on the body of the deceased on 25th March. 1978, inter alia, found the following injury:

'STITCHED wound over the left para medical line 6' long. There was no infection over and around the wound. All the stitches were intact.'

(15) On cutting the sutures of the aforesaid injury on internal examination he found that there was an incised wound one angle of which could be identified and was on the left side of the major stitched wound as shown by him in the diagram in his post mortem examination report Ex Public Witness 13 A. This wound, according to him, was probably caused by a sharp weapon and had been included in the operational wound. Further, there was one stitched wound over the small bowel involving half of its circumference of the wall. There was also one stitched wound on the mesentery on the side of the stitched wound on the small bowel. There were two stitched wounds, one situated 2' away from the ilea cal junction (proximal). Thus, according to him, injury No. 1 was operational in which primary wound has also been included. In his opinion, the injuries to small intestine and mesentry were possible by sharp weapon and were sufficient to cause death in the ordinary course of nature. Thus, a direct casual connection between the act of the appellant and death of Padam Singh is established. Nothing has come on the record to suggest that any factor such as peritonitis, saturnine or gangrene etc. supervened. The offence would surely amount to murder if we accept the opinion of Dr. Bharat Singh as quite safe and sound. However, we have our own serious doubts about the matter as if has been brought to our notice that the doctor who had initially explored the injury and performed, the operation on the deceased has not been examined. Even the case sheet of the patient has not been placed on the record. Of course, there is evidence of Dr. Beena Chowdhary (Public Witness 28) who was working as Registrar in the Emergency Ward of J.P.N. Hospital on the relevant date. According to her the injuries suffered by the deceased were cuts of the intestine and the aerta. Bleeding was controlled post-operatively at 3.00 p.m. The patient improved somewhat but he developed cardio respiratory arrest at at 5.40 p.m. and he could not be revived despite best efforts. She claimed to be one of the doctors who attended upon the patient on his being brought to the Casuality. Significantly, however, she has not given the dimensions of the injurices, nor has she expressed any opinion as to whether the injury was sufficient in the ordinary course of nature to cause death. Thus, we are left guessing about the dimensions of injuries as also whether the out wound on the aorta and mesentry was dangerous enough to result in the death of Padam Singh who died nearly five hours after the stabbing incidence. There cam be no two opinions that the doctor who performed the surgical operation had the initial advantage of examining the. deceased and observing the nature of the injuries. No doubt, the Autopsy Surgeon too had performed dissection of the dead-body but then the original wound had been sutured at various places and as found by him the primary would had been included in injury No. 1 which was operational. The evidence of medical expert is merely, an opinion. Human knowledge is limited and imperfect. So, in the absence of first information we cannot look upon the opinion, of the Autopsy Surgeon as infallible. It is well settled that where the case is on the border line between murder and culpable homicide not amounting to murder, the accused is entitled to the benefit of any reasonable doubt and in that case he can be convicted for the offence of culpable homicide not amounting to murder, and punished under Part I of Section 304 of the Code. In other words, the appellant can be attributed with the intention, of causing such bodily injury to the deceased as was likely to cause death, Section 304, Part I, of the Code covers, inter alia, a case when the injury caused is not of the higher degree of likelihood which is covered . by the expression 'sufficient in the ordinary course of nature to cause death' but is of a lower degree of likelihood which is generally spoken of as an injury 'likely to cause death' and the case does not fall under Clause (2) of Section 300 of the Code.

(16) The legal position has been lucidly set. out in State of 'Andhra Pradesh v. Ravavarapu Punnavva and another, : 1977CriLJ1 , Sarkaria J., (as he then was), speaking for the Court, has explained the difference in the two situations as below:

'IN Clause (3) Of Section 300, instead of the words likely to cause death' occurring in the corresponding clause (b) of Section 299, the words 'sufficient in the ordinary course of nature' have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real, and, if overlooked, any result in miscarriage of justice. The difference between clause (b) of Sec. 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word 'likely' in clause (b) of Section 299 conveys the sense of 'probable' as distinguished, from a mere possibility. The words 'bodily injury............ sufficient in the ordinary course of nature to cause death' mean that death will be the 'most probable' result of the injury, having regard to the ordinary course of nature.'

(17) For these reasons we feel inclined to convert the conviction of the appellant from one under Section 302 to that under Section 304 (Part 1) of the Code.

(18) Before parting with this case, we deem it fit to advert to Jagrup Singh v. The State of Haryana, : 1981CriLJ1136 , on which reliance has, inter alia, been placed by the learned amices curiae. On going through the facts we find that the said case is clearly distinguishable in as much as it was found therein by the High Court that something had happened on the spur of the moment which resulted in the infliction of injury by the appellant on the person of the deceased. Taking note of this finding, the Supreme Court held that the High Court manifestly erred in applying Clause Thirdly of Section 300 of the Code. On the finding that the appellant when he struck the deceased with the blunt side of the gandhala in the heat of the moment, without premeditation and in a sudden fight, the case was held to be covered by Exception 4 to Section 300 of the Code. It was not suggested that the appellant had taken undue advantage of the situation or had acted in a cruel or unusual manner. Evidently the case was decided on its own peculiar facts and there is no parallel between the said case and the case in hand.

(19) To sum up, thereforee, we hold that the appellant is guilty of an offence under Section 304 (Part 1) of the Code. Hence, his conviction for offence under Section 302 of the Code is set aside and it is converted into one under Section 304 (Part 1) of the Code. His sentence is accordingly reduced from imprisonment for life to rigorous imprisonment for ten years, which, in our opinion, shall meet the ends of justice. His conviction as well as sentence on other counts, however, does not call for any interference. This appeal is disposed of accordingly.

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