KHANJAN PALversusSTATE OF U.P.

                               KHANJAN PAL
A
                                    v.
                               STATE OF U.P.

                              AUGUST 3, 1990

B          [KULDIP SINGH AND M. FATHIMA BEEVI, JJ.]

           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.
c         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 circumstances and acquitted the
    appellant, by giving him the benefit of doubt.

D         On appeal, the High Court accepted the testimony of the eye-
    witnesses and convicted the appellant under Section 302 IPC and
    sentenced him to undergo life imprisonment.

          This appeal is against the High Court's judgment.

E         Allowing the appeal in part,

           HELD: 1. The High Court had interfered with the order of acquit-
    tal 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
F   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. l608F-G I

G         2. However, the offence is not murder punishable under Section
    302 IPC, and that the act of the appellant as proved would fall only
    under Section 304 Part-II, IPC. The appellant had ad111itted that there
    had been an altercation between the two and the deceased received the
    injury in the course of a scnme. The evidence clearly established that
    the whole incident was a sudden development and that the appellant
H   had acted at the spur of the moment and without any pre-meditation.

                                         606
                     KHANJAN PAL v. STATE OF U.P. [FATHIMA BEEVJ, J.J         607

1111... There had been no ill-will or enmity between the two. A casual remark        A
..-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 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. [6098-DI        13

..__.,__..        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
             youngman who had been at large for over nearly 12 years, cannot be
             committed to prison for any further period at this stage. [609EJ
                                                                                     c
            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
      decea•ed and other legal heirs. In case of default in payment of fine, the
      appellant should undergo further imprisonment for six months. [609f .(;I       D

                  CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
             No. 328 of 1979.

                  F\om the Judgment and Order dated 2.1.19'79 of the Allahabad
             High Court in Government Appeal No. 663 of 1973.                        E

                  Pra)llod Swamp for the Appellant.

                  Manoj Swamp, Prashant Choudhary and Dalveer Bhandari for
             the Respondent.
                                                                                     F
                  The.Judgment of the Court was delivered by

                   FATHIMA BEEVI, J. Khanjan Pal, the appellant, was convic-
             ted 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    G
             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
             Ra jputana, Thana Firozabad. The prosecution case was that while
             working in the factory at about 2.30 P.M. on 8.4. 1972, the appellant   H
    608                   SUPREME COURT REPORTS           I1990) 3 S.C.R.
    said to the deceased that he had illicit relationship with one Tara.
A
    I?eep Singh said that he considered Tara to be his sister. The alterca---41111
    lion 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
B   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 examination. The certificate was to the effect that it
    was stained with human blood.
c         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 occur-
    rence was not mentioned in the first information report, the post-
    mortem report referred to the presence of undigested food in the
D   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 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.
E
          The High Court on a careful analysis of the entire evidence dis-
    lodged 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 appellant. We have been taken through the judg-
    ments and the relevant records of the case. We are satisfied that the
F   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 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
G   been properly appreciated. Their presence a\ 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
H   perverse that the High Court was justified in upsetting the finding and
        KHAN.TAN PAL v. STATE OF U.P. [FATHJMA BEEVJ, J.]          609

arriving at an independent conclusion which is fully supported by the     A
evidence on record. We do not, therefore, see any merit in the conten-
tion advanced on behalf of the appellant 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 punish-
                                                                           B
able under Section 302, I.P.C., and that the act of the appellant as
proved would fall only under Section 304 Part-II, 1.P.C. The appellant
had in statement under Section 313, 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. c
There had been no ill-will or enmity between the two. A casual remark
made by the appellant provoked the deceased and the altercation en-
sued which culminated in the stabbing 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 in jury
on the deceased without any intention to cause death but having D
knowledge that such act was likely to cause the death of the deceased.
In such circumstances, the act of the appellant falls under Exception 4
to Section 300, I.P.C., and the appellant is liable to be convicted only
under Section 304, Part-II, l.P.C.

      We accordingly alter the conviction to one under Section 304,       E
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 youngman 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    F
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
default in payment of fine, the appellant shall undergo further impri-
sonment for one year. The appeal is partly allowed.                       G

G.N.                                             Appeal partly allowed.