Judgment Date  01 Aug 2018                                                                                         Click Here To Read Digest
Deepak …… APPELLANT(S)



The Appellant assails the reversal of his acquittal, and
consequent conviction under Section 302 I.P.C. sentencing
him to life imprisonment.

2. On 27.08.1993 at about 8.30 a.m., irked by the loud
noise of the tape recorder being played by the deceased in
his house, the Appellant had a verbal altercation with the
deceased which culminated in a single sword blow by the
Appellant in the rib cage area of the deceased.

3. The M.L.C. of the injured was done at 8.45 a.m. by
PW.8 Dr. S.K. Prabhakar who found an incised wound of
2½ cm x 2 cm. The injured was deceased the same day.
The post mortem was done the same day at 3.30 p.m. by
Dr. P.K. Bhatnagar, who found
“Punctured wound 2 cm x 1 cm x cavity deep
just above upper border of the left lower rib on
lateral side of chest 9 cm away from umbilicus
at 2 O’clock position with surgical dressing”.

4. The Trial Court granted the benefit of doubt to the
Appellant. The High Court on reappreciation of the
evidence, particularly the testimony of PW4
Omwati, an injured witness, and other eyewitnesses
Babu Ram,
PW2 Ram Kumar and PW3 Kalu Ram, convicted the

5. We have considered the submissions made
respectively on behalf of the parties. The trial court has laid
exaggerated emphasis, by erroneous appreciation of
evidence, on minor omissions and contradictions in the
evidence of PW1,
and PW3
so as to doubt the
veracity of the entire prosecution case without any
discussion of the injured eye witness PW4.
The High Court
upon reappreciation of the evidence has correctly held that
the evidence of PW4
stands corroborated by the other three
prosecution witnesses.

6. It is manifest from the evidence of the prosecution
witnesses that the Appellant and the deceased lived
opposite each other across the road. Their houses were
separated by a distance of approximately 2025
feet by the
road inbetween.
The genesis of the occurrence was the
loud playing of a tape recorder in the house of the
deceased, objected to by the Appellant. A verbal argument
ensued. The Appellant rushed across to his house, came
back with a sword and delivered a single blow to the
deceased in the rib cage area and then ran away
threatening to see him later. The entire altercation is stated
to have lasted for 1½ to 2 minutes.

7. On consideration of the entirety of the evidence, it can
safely be concluded that the occurrence took place in the
heat of the moment and the assault was made without premeditation
at the spur of time. The fact that the Appellant
may have rushed to his house across the road and returned
with a sword, is not sufficient to infer an intention to kill,
both because of the genesis of the occurrence and the
single assault by the Appellant, coupled with the duration
of the entire episode for 1½ to 2 minutes. Had there been
any intention to do away with the life of the deceased,
nothing prevented the Appellant from making a second
assault to ensure his death, rather than to have run away.
The intention appears more to have been to teach a lesson
by the venting of ire by an irked neighbour, due to loud
playing of the tape recorder. But in the nature of weapon
used, the assault made in the rib cage area, knowledge that
death was likely to ensue will have to be attributed to the

8. In the entirety of the evidence, the facts and
circumstances of the case, we are unable to sustain the
conviction of the Appellant under Section 302 I.P.C. and are
satisfied that it deserves to be altered to Section 304 PartII
I.P.C. It is ordered accordingly. Considering the period of
custody undergone after his conviction, we alter the
sentence to the period of custody already undergone. The
Appellant may be released forthwith if not required in any
other case.

9. The appeal is therefore allowed in part with the
aforesaid modification of the conviction and sentence.

AUGUST 01, 2018

December 29, 2018

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