IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1219 of 2006()
1. SHAJI @ ILLICKAL SHAJI,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.K.V.SABU
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :15/03/2010
O R D E R
R.BASANT & M.C. HARI RANI,JJ
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CRL.A. NO. 1219 OF 2006
============================
DATED THIS THE 15TH DAY OF MARCH 2010
JUDGMENT
Basant,J.
i) Is it safe to place reliance on the oral evidence
of PW1?
ii) Can the evidence about dying declaration and
recovery of MO.1 on the basis of disclosure
statement of the appellant be accepted and made
use of to draw inspiration for the oral evidence of
PW1?
iii) Is the court below justified in entering a
verdict of guilty conviction and sentence under
Section 302 of the Indian Penal Code?
These are the three questions that are raised before us for
consideration on the basis of the arguments advanced by Sri.
K.V.Sabu, Advocate for the appellant.
2. The appellant faces a verdict of guilty, conviction and
sentence for the offences punishable under Sections 302 and
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324 I.P.C. He faces the sentence of imprisonment for life under
Section 302 I.P.C. and rigorous imprisonment for a period of six
months under Section 324 I.P.C. The sentences are directed to
run concurrently. Set off under Section 428 Cr.P.C.is allowed.
3. The prosecution alleged that there was a dispute
between PW1, brother of the deceased, and the appellant herein
at about 8.15 p.m. on 27/7/2003 in a property belonging to one
Hariharan. That dispute was about the refusal/failure of PW1 to
give the appellant his bicycle when asked for the same. In the
course of that dispute, the deceased Shibu Kumar reached the
scene. He allegedly tried to save his brother PW1 from the
attack of the appellant. The appellant then drew out his knife,
MO.1 and inflicted injuries – one on the forehead and one on the
abdomen of the deceased. An injury with MO.1 was inflicted on
PW1 also. The accused allegedly went away from the scene of
the crime with MO.1. The deceased and PW1 were rushed to
the local hospital. The deceased was removed from one hospital
to other. He ultimately succumbed to his injuries on 30/7/2003.
The prosecution alleged that the appellant had thereby
committed the offences punishable under Section 324 I.P.C.
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(against PW1) and Section 302 I.P.C.(against the deceased).
4. Investigation commenced with Ext.P9 F.I. statement
which PW9 Head Constable had allegedly recorded from the
deceased while he was undergoing treatment as an inpatient at
the Medical Trust Hospital, Ernakulam on 28/7/2003 at 12.30
p.m. That F.I.R.(Ext.P10) registered by PW10, it is seen, had
reached the court on 29/7/2003 at 10.30 a.m. Investigation was
conducted by police officials including PWs.11 and 12. A
successor of them filed the final report/charge sheet against the
appellant before the learned Magistrate. The learned
Magistrate, after observing the legal formalities, committed the
case to the Court of Session. The appellant denied the offence
alleged against him and thereupon the prosecution examined
PWs.1 to 12 and proved Exts.P1 to P14. Mos.1 to 3 were also
marked.
5. The appellant-accused, in the course of cross
examination of prosecution witnesses and when examined under
Section 313 Cr.P.C. and still later while examining DWs.1 to 3,
took up a fairly specific and definite stand. He did not dispute
his presence at the scene of the crime. According to him,
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friends were having a good time on a holiday. They had
consumed alcohol. This spree of consumption of alcohol
continued into the late evening of 27/7/2003. There was a free
for all at about 8.30/9.00 p.m. In such free for all, the deceased,
PW1, the appellant and one Ramesh had suffered injuries. It was
not a case of deliberate infliction of injuries on PW1 and the
deceased by the appellant as the prosecution now alleges . In
some manner all the four had suffered injuries. The appellant
contended that at any rate the appellant is not responsible for
the fatal injury on the deceased. He examined DWs.1 to 3 on his
side. Exts.D1 to D3 were marked.
6. The learned Sessions Judge on an anxious evaluation of
all the relevant inputs came to the conclusion that the
prosecution has succeeded in proving beyond doubt all the
offences alleged against the appellant. Accordingly, the learned
Judge proceeded to pass the impugned judgment.
7. Before us, Sri.K.V.Sabu, learned counsel for the
appellant has advanced his arguments. The learned Public
Prosecutor Sri. Noble Mathew has also advanced his arguments.
The learned counsel for the appellant assails the impugned
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verdict of guilty, conviction and sentence on the three grounds
that we have referred to in paragraph 1 of this judgment.
8. An appellate judgment is and must be read as a
continuation of the judgment of the trial court. We note that the
learned Sessions Judge has adverted to all the relevant
circumstances, evidence adduced as also all matters before him.
Specific reference has been made in the impugned judgment to
all the relevant inputs. We are, in these circumstances, satisfied
that it is unnecessary for us to attempt to re-narrate the
relevant facts, circumstances, materials and matters. We shall
advert to the relevant materials specifically as and when we
discuss the relevant aspects in the course of this judgment.
9. The prosecution primarily relied on the following pieces
of evidence.
1)Oral evidence of PW1,brother of the deceased,
who allegedly was present at the scene of the crime
and who had himself suffered injury allegedly at the
hands of the appellant with the same weapon, i.e.
MO.1
2) The alleged dying declarations made by the
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deceased to PW2, PW3, PW4,PW5 and PW9.
3) The evidence of recovery of MO.1 under Ext.P7
in the presence of PW7 on the basis of the
disclosure statement of the appellant marked as
Ext.P7(a) to PW12.
10. The question before us is whether the court below was
justified from the inputs available in coming to the conclusion
that the fatal injury was suffered by the deceased at the hands of
the appellant. It will also have to be considered whether the
case of the prosecution that PW1 also suffered injuries at the
hands of the appellant can be accepted.
11. In support of its case, the prosecution wanted to examine
two eye witnesses to the occurrence. PW1, the brother of the
deceased and PW2 a common neighbour/friend were examined by the
prosecution as eye witnesses. PW1 had suffered injuries also. Of this,
PW2 turned hostile to the prosecution. He was declared hostile and
was cross examined. In the course of such cross examination, Exts.P1
to P1(c), four case diary contradictions were marked. PW2
surprisingly did not subscribe to his version in the case diary before
court. But his evidence shows that the deceased
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and PW1 had suffered injuries at the spot identified by the
prosecution as the venue of the crime. His evidence further
shows that the deceased, PW1 and the accused were present
and available at the scene. His evidence further shows that he
arranged to take PW1 and the deceased to the hospital also from
the scene of the crime. He completely deviated from his version
in the case diary that he had actually witnessed the occurrence.
Instead, he advanced a version that he did not see the incident
but the deceased had stated to him that he had suffered the
injury at the hands of the appellant. The learned counsel for the
appellant contends that PW2 cannot be believed at all as he has
deviated substantially from his earlier version. He has now
spoken against the prosecution version that he was an eye
witness to the occurrence. To satisfy the prosecution, he has
now advanced this theory that the deceased had given a dying
declaration to him as to how he had suffered the injury. The
prosecution relied on the alleged cause narrated to PW3 and
recorded in Ext.P2 wound certificate by PW3 that it was the
appellant who inflicted injury on the deceased. The learned
counsel for the appellant points out and we note that the
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evidence of PW3 does not show that the alleged cause was
narrated to PW3 by the deceased in Ext.P2. Similarly, the
prosecution wanted to rely on the dying declaration made by the
deceased to PW4 in Ext.P4 wound certificate. But Ext.P4 wound
certificate does not reveal as to how – i.e. at whose hands, the
deceased had suffered the injury described in Ext.P4. In these
circumstances, counsel contended that the contents of Ext.P4
cannot be reckoned as a dying declaration.
12. The prosecution primarily relied on the dying
declaration made to PW5,Doctor and recorded by him in Ext.P5
wound certificate. Ext.P5 wound certificate prepared by PW5
shows that when PW5 examined the deceased at 10.30 p.m., he
found him to be conscious and well oriented. It is the specific
case of PW5 that the alleged cause was narrated to PW5 by the
deceased, i.e. the injured. The prosecution contends that the
oral evidence of PW5 that the deceased had narrated the alleged
cause recorded in Ext.P5 has got to be accepted and at any rate
the said dying declaration offers convincing assurance for the
version of PW1.
13. The incident took place on 27/7/2003. F.I. statement,
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Ext.P9 was lodged and the F.I.R., Ext.P10, was registered on
28/7/2003. The same had reached the court at 10.30 a.m.on
29/7/2003. Thereafter, the deceased had expired on 30/7/2003.
The appellant herein was arrested by PW12 on 2/8/2003. He was
allegedly interrogated and in the course of the said
interrogation, the appellant allegedly gave Ext.P7(a)confession
statement. On the basis of the confession statement,PW12
proceeded to the house of DW3 and recovered MO.1 which was
concealed outside the house by the side of the outer wall under a
bag. The prosecution examined PW7, an attestor to Ext.P7. PW7
admitted his signature in Ext.P7 and was not declared hostile.
However, in the course of cross examination, PW7 stated that he
had not seen the accused taking the knife from its place of
concealment and handing it over to PW12.
14. While the learned Public Prosecutor contends that the
conclusion of the court below are perfectly justified by the oral
evidence of PW1 which is duly supported by the dying
declarations made by the deceased to PW2, PW5 and PW9 as
also the recovery of blood stained MO.1 used for commission of
the crime on the basis of the disclosure statement, Ext.P7(a) of
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the appellant, the learned counsel argues that these
circumstances cannot be believed at all.
15. We shall now proceed to consider the relevant
circumstances.
16. PW1 was present at the scene of the crime. He had
suffered an injury which, in a telltale manner, corroborates his
version that he was present at the scene of the crime. It is
crucial to note that even the accused does not dispute the
presence of PW1, the deceased as also the appellant at the scene
of the crime. The version of PW1 that he and the deceased had
suffered injuries at the hands of the appellant is convincingly
corroborated by the alleged cause narrated to PW3 by PW1 and
recorded by PW3 in Ext.P3 wound certificate. That certificate
was issued by PW3 after examination of PW1, on that night.
Thus, inherently and on broad probabilities, we find absolutely
nothing to doubt or suspect the version of PW1. PW2, of course,
has turned hostile. Notwithstanding his hostility, it is seen that
he had spoken about the alleged dying declaration made by the
deceased to him. PW2, it is evident, is not a witness, who went
out of his way for supporting the prosecution. If he were so
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inclined, he could easily have tendered evidence in tandem with
the case diary statement (contradictions) marked as Exts.P1 to
P1(c). Cross examination of PW2 does not at all suggest that
PW2 is an unworthy witness. Be that as it may, we shall not, in
this appeal, make use of the evidence of PW2 about the alleged
dying declaration made by the deceased to him for any purpose.
This is not to say that we reckon PW2 as a witness who had
perjured about the dying declaration. We intend only to say
that we do not think it necessary to place reliance on the oral
evidence of PW2 for any purpose considering the nature of the
other evidence available in the case.
17. PW5 is the Doctor, who examined the deceased at the
Medical Trust Hospital and issued Ext.P5 wound certificate. We
find entries in Ext.P5, which shows that the appellant was
conscious and oriented. It is in the wake of such record made in
Ext.P5 that PW5 asserts that it was the deceased who narrated
to him the alleged cause recorded in Ext.P5. There is not a
semblance of data which can persuade the court to doubt the
alleged dying declaration made by the deceased to PW5
recorded in Ext.P5 that the deceased suffered the injuries at the
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hands of the appellant herein. We cannot afford to ignore that
PW5 is an unbiased and independent Medical Officer. We find
no interest for PW5 to falsely assert before the court that it was
the deceased who narrated the alleged cause to her. In fact, we
note that the prosecution had not brought in this evidence
during chief examination and it is only in the course of cross
examination that it was asserted by PW5 that the alleged cause
was narrated to her by the deceased who was conscious and
oriented as per Ext.P5. We do, in these circumstances, find the
oral evidence of PW5 about the alleged dying declaration of the
deceased recorded in Ext.P5 to be absolutely acceptable.
Relying on Ext.D2 case diary contradiction of PW5, it is argued
that PW5 is not a trustworthy witness. The deceased had
injuries. He had to be operated upon immediately. He and his
relatives were not able to raise the requisite money. That is why
the operation was not done at the hospital of PW5. That is why
the deceased had to be referred later to the Medical College
Hospital. In these circumstances, PW5 has an animus against
the appellant -accused to save the hospital from the blame of
not attending to the surgery immediately, contends the learned
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counsel for the appellant. We find this theory is absolutely
unjustifiable. We have gone through the oral evidence of PW5
in detail.
18. Ext.D2, according to us, is only on the assessment of
PW5 as to whether immediate surgery was necessary or not
when she examined the deceased. Ext.D2 cannot persuade a
prudent mind to doubt or suspect the version of the independent
and the unbiased Medical witness (PW5) about the alleged
cause narrated to her by the deceased recorded by her
contemporaneously in Ext.P5. That dying declaration, we are
satisfied, is absolutely inspiring and can be accepted and acted
upon.
19. We have evidence of PW9, the Head Constable about
the statement of the deceased, which he recorded in Ext.P9 F.I.
statement. The deceased was in the I.C.U.at that time and PW9
appears to have recorded Ext.P9 on 28/7/2003 not in the
presence of any Medical officer or Para Medical personnel. It is
argued in these circumstances that this F.I. statement, Ext.P9
does not deserve to be accepted. In the wake of the dying
declaration made to PW5 in Ext.P5, which we have already
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chosen to accept , we find it unnecessary to embark on a more
detailed discussion as to whether the oral evidence of PW9
about the F.I. statement recorded by him from the deceased can
or need be accepted. Suffice it to say that inherently and on
broad probabilities, we find no reason not to accept and act
upon the oral evidence of PW9 about the genuineness of the
dying declaration made to PW9 by the deceased.
20. The prosecution attempts to offer final assurance to
the version of PW1 by the evidence of PW12 about the recovery
of MO.1 on the basis of the confession/disclosure statement
Ext.P7(a) given by the appellant to PW12 under Ext.P7. In the
absence of support from the attesting witnesses, of which PW7
is one, we have gone through the oral evidence of PW12 in
detail. Inherently and on broad probabilities, we find no reason
to doubt or discard the evidence of PW12. It is true that PW12 is
a police official. The fact that he is a police official cannot
certainly persuade us to approach his testimony with any
amount of doubt, suspicion or distrust. The version of PW12
about the disclosure statement and the recovery of MO.1 on the
basis of such statement of the appellant is convincingly
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corroborated by the contents of the contemporaneous Ext.P7
seizure mahazar. PW7, a witness who did not support the
contents of Ext.P7 in greater detail admitted that he had signed
as an attestor in Ext.P7. In these circumstances, we are
satisfied that the convincing corroboration offered by the
contents of contemporaneous Ext.P7 seizure mahazar can be
used by us to draw inspiration and support for the oral evidence
of PW12.
21. The learned counsel for the appellant submits that two
witnesses cited by the prosecution as charge witnesses have
been examined by the appellant as DWs. 2 and 3. They were
cited to be examined by the prosecution as eye witnesses to the
occurrence. Those witnesses when examined as defence
witnesses had not supported the prosecution case. They, like
the appellant, have no specific case that the deceased and PW1
suffered injuries in any other specific manner. They, i.e. the
defence witnesses have no case that the appellant suffered
inconsequential injuries described in Ext.D3 proved by DW1 at
the hands of the deceased or PW1. They have no specific
explanation as to how the appellant suffered the inconsequential
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injuries referred to in Ext.D3. Ext.D3 does not give details of
injuries. There is no allegation that it was a medico legal case or
that the accused had suffered the injuries at the hands of any
other. Suffice it to say that the oral evidence of DWs.2 and 3 or
the oral evidence of DW1 and Ext.D3 do not in any way generate
any distrust or suspicion against the prosecution’s case. They
are insufficient to generate any reasonable doubt in our mind
against the version of the prosecution.
22. The learned counsel for the appellant submits that PW1
is not a trust worthy witness. Going by his version, PW1 was
examined by the police official on 28/7/2003 itself even before
the F.I.S., Ext.P9, was recorded. The counsel builds up an
argument that Ext.P9 is not the real F.I.S. and there must have
been an earlier F.I.S. This argument is built up on the
statement of PW1 that the police had examined him on
28/7/2003. No police officer has a case that PW1 was examined
on 28/7/2003. It is transparently evident that PW1 is getting
confused about the date on which he was actually seen by the
police official for recording his statement. That innocuous
inaccuracy in the oral evidence of PW1 about the date on which
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the police officer contacted him does not at all persuade us to
reject the oral evidence of PW1. The oral evidence of PW1,
according to us, gets convincing assurance from the dying
declaration given by the deceased to PW5 and recorded by PW5
in Ext.P5. The final assurance for the version of PW1 is offered
by the recovery of MO.1 on the basis of Ext.P7(a) disclosure
statement under Ext.P7 in the presence of attestors like PW7 by
PW12. We are satisfied, in these circumstances, that the oral
evidence of PW1 can safely be accepted. We are unhesitatingly
concur with the conclusion of the court below on that aspect.
23. The learned counsel for the appellant argues that in
Ext.P9, F.I.S., the deceased had not made a specific statement
that the injury,which was attempted to be planted on his chest
which he avoided and which fell ultimately on his abdomen had
actually landed on his abdomen. Much is attempted to be
made out of this omission in Ext.P9. Exts.P9 and P10 read
together clearly reveals that such a statement had actually been
made by the deceased to PW9 and it was only a human
error/inadequacy in the recording of the statement by PW9.
PW9 does not bring credit to himself or the police force of which
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he is a member by stating that he omitted to specifically record
the same. But all the same, we are of the opinion that sinister
significance cannot be attached to that innocuous
omission/inadequacy on the part of PW9 while recording Ext.P9
F.I. Statement. The deceased had suffered the injury on his
abdomen. He had stated that he suffered it at the hands of the
appellant. He did state that he was attacked with a weapon.
The injury, he alleged was attempted to be inflicted on his chest.
He tried to escape and avoided the injury on the chest. But he
omitted to state specifically that the stab landed on the abdomen.
We do, in these circumstances, reckon that omission to be
insignificant.
24. The learned counsel for the appellant argues that no witness
had been examined who occupies the house of DW3 from the
compound of which MO.1 was recovered. We note that the recovery
was not from inside the house. It was concealed outside the outer
wall of the house. DW3 was not available in the house. The mere fact
that the womenfolk in the house were not arrayed as witnesses in
Ext.P7 is, according to us, too unsatisfactory a circumstance to doubt
or suspect the evidence of PW12 about the recovery of MO.1.
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25. We are, in these circumstances, satisfied that the
evidence of PW1 deserves acceptance. Notwithstanding the fact
that he is an injured and the brother of the deceased, we are
satisfied that the evidence of PW1 supported convincingly by the
dying declarations made in Exts.P5 and P9 particularly in Ext.P5.
Final assurance of the version of PW1 is available from the
recovery of MO.1 on the basis of the confession/disclosure
statement of the appellant which led to the recovery of MO.1
under Ext.P7. We are satisfied in these circumstances that the
final conclusion of fact that PW1 and the deceased suffered
injuries with MO.1 at the hands of the appellant does not
warrant interference at all.
26. The learned counsel for the appellant argues that one
of the Doctors(PW5) to whom the deceased was taken after the
incident had recorded that he was smelling alcohol. The
learned counsel argues that this is in tandem with the version
of the appellant that all of them including PW.1, the deceased,
the appellant and DW3 were consuming alcohol at the scene of
the crime. The mere fact that the deceased was smelling alcohol
is no guarantee for the probability of the version of the appellant
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that all of them were consuming alcohol at that scene. The very
specific version of PW1 is that the deceased had come to the
scene while the appellant was engaged in the altercation with
PW1. If the deceased who came from outside was found to have
consumed alcohol, that is no guarantee or the assurance for the
version advanced by the appellant that all of them were
consuming alcohol at the scene. All witnesses including the
hostile witnesses had adamantly refused that there was any
such spree of drinking at the scene on that day.
27. The learned counsel for the appellant argues finally
that at any rate, the appellant must be saved of a verdict of
guilty, conviction and sentence under Section 302 I.P.C.
Detailed arguments have been advanced.
28. That the deceased sustained the fatal injury, i.e. injury
No.11 in Ext.P6 postmortem certificate is clearly established.
Death followed as a result of that injury. Offence under Section
299 I.P.C. is thus clearly established. Even assuming that a very
prompt and better medical attendance might have saved the
deceased from death, that is not a defence considering
Explanation (2) of Section 299 I.P.C. Offence defined under
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Section 299 I.P.C. is thus clearly established.
29. The learned counsel for the appellant argues that in
any view of the matter, it cannot be assumed that the appellant
had any intention to cause the death of the deceased. Therefore,
the offence of murder under Section 300 I.P.C. is not attracted at
all, contends the counsel. We are unable to agree. To convert
an offence of culpable homicide under Section 299 I.P.C. to an
offence of murder defined under Section 300 I.P.C, it is very
trite that it is not necessary that the offender must have the
intention to cause the death of the deceased. Any one of the four
circumstances in Section 300 I.P.C. can transform/exalt an
offence under Section 299 I.P.C. to one under Section 300 I.P.C.
In the instant case, the oral evidence of PW6 clearly shows that
the injury No.11 inflicted with MO.1 was sufficient in the
ordinary course of nature to cause death. It was a serious injury
inflicted with MO.1 and the evidence of PW6 shows that the
weapon must have been thrust into the abdomen to cause that
injury. It involved the kidney and the intestine. PW6 stated that
the said injury was individually capable of causing death in the
ordinary course of nature to cause death. Clause Thirdly of
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Section 300 comes into play. The fatal injury was objectively
sufficient in the ordinary course of nature to cause death. That
injury, the evidence shows, was intentionally inflicted. There is
nothing to assume that the injury that resulted was not the
injury, that was intended. In these circumstances, clause Thirdly
of Section 300 I.P.C. comes into play and the offence committed
by the accused falls within the offence of murder defined under
Section 300 I.P.C. The learned counsel for the appellant argues
that it has to be held that the offence can slide back to Section
299 I.P.C. by the play of Exception 4 to Section 300. According
to the learned counsel for the appellant, it was a sudden quarrel
that led to a sudden fight. The fight was without pre-meditation
and the injury was inflicted in the heat of passion. The counsel
argues that the appellant, at any rate, must be held to have not
taken undue advantage or acted in a cruel or unusual manner.
We are unable to accept this contention also. Even going by the
version of the appellant, all those who were present there, were
very friendly persons. It is in the course of such quarrel between
friendly persons that the appellant is shown to have drawn out a
knife like MO.1 and thrust the same into the abdomen of the
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deceased. Evidence of PW6 shows that only a forcible thrust of
MO.1 weapon could have caused the injury. Any person who in
the given circumstances used such a weapon against an unarmed
deceased must be held to have acted in a cruel and unusual
manner. In any view of the matter, we are not hence persuaded
to agree that Exception 4 can rescue/save the appellant from the
offence of murder committed by him.
30. It follows from the above discussions that the verdict of
guilty and conviction under Sections 302 and 324 I.P.C. do not
warrant any interference. Sentence imposed on the appellant
also, we find, is absolutely reasonable and just. The same does
not warrant any interference.
31. In the result,
a)this appeal is dismissed.
b)The impugned verdict of guilty and conviction and
sentence under Sections 302 and 324 I.P.C.are
upheld.
R. BASANT, JUDGE
ks. M.C. HARI RANI, JUDGE
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ks.
R. BASANT, JUDGE
M.C. HARI RANI,JUDGE
ks.
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