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PETITIONER: KHANJAN PAL

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT03/08/1990

BENCH: FATHIMA BEEVI, M. (J) BENCH: FATHIMA BEEVI, M. (J) KULDIP SINGH (J)

CITATION:  1990 SCR  (3) 606        1990 SCC  (4)  53  JT 1990 (3)   359        1990 SCALE  (2)167

ACT:     Indian   Penal  Code,  1860:  Sections  300,   302   and 304--Injury    afflicted   without   intention   to    cause death--Acting     on     spur     of     moment      without pre-meditation--Resulting   in  death--Conviction   thereof- Applicability of Section 304.

HEADNOTE:     The appellant was charged with the murder of a co-worker at  the factory in which they were working. The Trial  Court discarded  the testimony of eye-witnesses and other  circum- stances  and  acquitted  the appellant, by  giving  him  the benefit of doubt.     On appeal, the High Court accepted the testimony of  the eyewitnesses  and convicted the appellant under Section  302 IPC and sentenced him to undergo life imprisonment. This appeal is against the High Court’s judgment. Allowing the appeal in part,     HELD: 1. The High Court had interfered with the order of acquittal for cogent reasons and that the conclusion of  the High  Court that the appellant has caused the death  of  the deceased, by stabbing with a knife in the manner alleged  by the  prosecution is unassailable. The approach by the  trial court  was  clearly wrong and the finding is  perverse.  The testimony of the two independent eye-witnesses had not  been properly appreciated. Their presence at the scene could  not at  all be doubted in the light of what P.W. 3 has  deposed. They  are  probable  witnesses and there had  not  been  any infirmity in their evidence. [608F-G]     2.  However, the offence is not murder punishable  under Section 302 IPC, and that the act of the appellant as proved would  fail only under Section 304 Part-II, IPC. The  appel- lant had admitted that there had been an altercation between the  two and the deceased received the injury in the  course of  a  scuffle. The evidence clearly  established  that  the whole incident was a sudden development and that the  appel- lant  had  acted at the spur of the moment and  without  any pre-meditation. 607 There  had  been no ill-will or enmity between  the  two.  A casual  remark made by the appellant provoked  the  deceased and the altercation ensued which culminated in the  stabbing

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with  knife. The appellant used the knife only once and  did not act in any cruel manner. It was in the sudden quarrel in heat  of passion that the appellant inflicted the injury  on the deceased without any intention to cause death but having knowledge that such act was likely to cause the death of the deceased. [609B-D]     3.  The conviction is altered to one under Section  304, Part-II,  IPC. Appellant had already undergone  imprisonment for over one year. He had been released on bail by order  of this Court. The appellant, a young man who had been at large for over nearly 12 years, cannot be committed to prison  for any further period at this stage. [609E]     4. To meet the ends of justice, it is directed that  the appellant should pay a fine of Rs.50,000 in addition to  the term  of imprisonment he has already suffered.  This  amount would be paid to the father of the deceased and other  legal heirs. In case of default in payment of fine, the  appellant should undergo further imprisonment for six months. [609F-G]

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 328 of 1979.     From the Judgment and Order dated 2.1.1979 of the  Alla- habad High Court in Government Appeal No. 663 of 1973. Pramod Swarup for the Appellant.     Manoj  Swarup, Prashant Choudhary and  Dalveer  Bhandari for the Respondent. The Judgment of the Court was delivered by     FATHIMA  BEEVI, J. Khanjan Pal, the appellant, was  con- victed  by the High Court for the offence  punishable  under Section  302, I.P.C. and sentenced to  undergo  imprisonment for  life, in reversal of the order of acquittal  passed  by the Sessions Judge, Agra. The brief facts of the case are as under:     The  appellant,  Khanjan  Pal, and  the  deceased,  Deep Singh,  were working in the bangles welding factory of  Data Ram  in Mohalla Rajputana, Thana Firozabad. The  prosecution case  was  that while working in the factory at  about  2.30 P.M. on 8.4.1972, the appellant 608 said  to the deceased that he had illicit relationship  with one Tara. Deep Singh said that he considered Tara to be  his sister. The altercation ensued between the appellant and the deceased and in the course of the altercation, the appellant stabbed  the  deceased with a knife and  this  incident  was witnessed  by P.W. 2, Ram Pratap Singh, and P.W. 4,  Maharaj Singh  besides Umrao Singh, P.W. 1. The injury sustained  by the  deceased was a punctured wound penetrating  into  chest cavity. The occurrence was reported at the police station by Umrao  Singh, father of the deceased at 3.00 P.M.  the  same day. In the course of the investigation, blood-stained shirt was seized from the appellant and sent for chemical examina- tion. The certificate was to the effect that it was  stained with human blood.     The  trial court acquitted the appellant discarding  the testimony  of the eye witnesses mainly for the reasons  that the  occurrence could not have happened at the alleged  time and  place as the place of occurrence was not  mentioned  in the first information report, the postmortem report referred to  the  presence of undigested food in the abdomen  of  the deceased,  the presence of Umrao Singh (P.W. 1), Ram  Pratap Singh  (P.W. 2), and Maharaj Singh (P.W. 4) was doubtful  in the light of the conduct of P.W. 3, Data Ram and that  since

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the  attendance register was not produced, it  was  doubtful whether  the  factory  was opened on that day  or  not.  The appellant  was therefore given the benefit of doubt  by  the trial court.     The  High  Court  on a careful analysis  of  the  entire evidence dislodged the finding of the trial court,  accepted the  testimony of P.W. 2 and P.W. 4 and concluded  that  the prosecution  had established the charge against  the  appel- lant.  We  have been taken through the  judgments’  and  the relevant records of the case. We are satisfied that the High Court had interfered with the order of acquittal for  cogent reasons  and that the conclusion of the High Court that  the appellant has caused the death of the deceased, Deep  Singh, by stabbing with a knife in the manner alleged by the prose- cution is unassailable. The approach by the trial court  was clearly wrong and the finding is perverse. The testimony  of the  two  independent eye witnesses had  not  been  properly appreciated. Their presence at the scene could not at all be doubted  in the light of what P.W. 3 has deposed.  They  are probable  witnesses and there had not been any infirmity  in their evidence as rightly pointed out by the High Court. The evidence of P.W. 1, rejected by the trial court was also not accepted  by  the High Court. The reasoning adopted  by  the trial  court, in our opinion, was so perverse that the  High Court was justified in upsetting the finding and 609 arriving  at an independent conclusion which is  fully  sup- ported by the evidence on record. We do not, therefore,  see any merit in the contention advanced on behalf of the appel- lant that the conviction is wrong.     We.  however,  agree with the learned  counsel  for  the appellant that on the basis of the facts proved, the offence is not murder punishable under Section 302, I.P.C., and that the  act  of the appellant as proved would fail  only  under Section  304 Part-II, I.P.C. The appellant had in  statement under Section 3 13, Cr.P.C., admitted that there had been an altercation  between the two and the deceased  received  the injury  in  the course of a scuffle.  The  evidence  clearly established that the whole incident was a sudden development and  that the appellant had acted at the spur of the  moment and  without any pre-meditation. There had been no  ill-will or  enmity  between  the two. A casual remark  made  by  the appellant  provoked the deceased and the altercation  ensued which  culminated in the stabbing with knife. The  appellant used  the knife only once and did not act in any cruel  man- ner.  It was in the sudden quarrel in heat of  passion  that the  appellant inflicted the injury on the deceased  without any intention to cause death but having knowledge that  such act  was likely to cause the death of the deceased. In  such circumstances.  the act of the appellant falls under  Excep- tion  4 to Section 300, I.P.C., and the appellant is  liable to be convicted only under Section 304, Part-II, I.P.C.     We accordingly alter the conviction to one under Section 304,  Part-II,  I.P.C. We are told that  the  appellant  had already  undergone  imprisonment for over one year.  He  had been  released  on bail by order of this Court  dated  16.7. 1979.  The appellant, a young man who had been at large  for over nearly 12 years, in our opinion, cannot be committed to prison  for  any further period at this stage. To  meet  the ends  of justice, we direct the appellant to pay a  fine  of Rs.50,000  in  addition to the term of imprisonment  he  has already  suffered. We, thus modify the sentence  awarded  by the  High Court. We also direct that the fine, if  realised, shall  be  paid to P.W. 1, Umrao Singh, the  father  of  the deceased  and  other legal heirs of Deep Singh. In  case  of

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default  in  payment of fine, the  appellant  shall  undergo further  imprisonment  for one year. The  appeal  is  partly allowed. G.N.                                         Appeal   partly allowed. 610