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REPORTABLE

   IN THE SUPREME COURT OF INDIA   CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2301 OF 2009  

BHAGIRATH                                          ...APPELLANT(S)                                 VERSUS

THE STATE OF MADHYA PRADESH                       ...RESPONDENT(S)

J U D G M E N T

R. BANUMATHI,J.

1. This  appeal  arises  out  of  the  judgment  of  the  High

Court of Madhya Pradesh in Criminal Appeal No. 309 of 2007 in and

by  which  the  High  Court  has  affirmed  the  conviction  of  the

appellant under Section 302 IPC and also the life imprisonment

imposed upon him.

2. The case of the prosecution is that on 19.08.2005 at about

10.00 p.m. the deceased-Bherulal was surrounded by the appellant-

Bhagirath (armed with  farsi) and other accused persons (since

acquitted) viz. Mangu, Sangita Bai, Suma Bai and Ramkunwar.  In

the wordy quarrel between the deceased and the appellant-accused

Bhagirath is said to have inflicted the farsi blow on the right

side of skull near ear. When PW-6 (Ramchandra) tried to save the

deceased, he also sustained injuries on his right hand. Further,

case  of  the  prosecution  is  that  all  other  accused  (since

acquitted) also inflicted injuries on the deceased-Bherulal. On

completion  of  investigation,  the  appellant-accused  and  other

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accused  were  charge-sheeted  for  the  offence  under  Sections

148/325/302 read with 149 IPC.

3. Relying upon the evidence of injured eye witness (PW-6),

the  Trial  Court  has  convicted  the  appellant-accused  under

Section 302 IPC and other accused under Section 302 read with

Section  149  IPC  and  sentenced  all  of  them  to  undergo  life

imprisonment. For the conviction under Section 325 read with

Section 149 IPC, they were sentenced to undergo R.I. for one

year.

4. In  the  appeal  before  the  High  Court,  the  High  Court

confirmed  the  conviction  of  the  appellant-accused  and  also

sentence of imprisonment as aforesaid. So far as the other co-

accused  are  concerned,  the  High  Court  acquitted  all  of  them

holding that the charges against them have not been established

beyond reasonable doubt.

5. We  have  heard  Mr.  P.C.  Agarwal,  learned  senior  counsel

appearing on behalf of the appellant, as well as Ms. Swarupama

Chaturvedi, learned counsel appearing on behalf of the State of

Madhya Pradesh, and also perused the impugned judgment and the

materials on record.

6. The case of the prosecution rests upon the evidence of PW-6

(Ramchandra),  an  injured  eye  witness,  who  has  deposed  about

quarrel between the deceased-Bherulal and the accused party. PW-6

has  also  spoken  about  the  infliction  of  farsi  blow  by  the

appellant-Bhagirath on the right side of the head near the ear of

the deceased. When PW-6 tried to rescue the deceased-Bherulal,

PW-6 (Ramchandra) also sustained injuries on his right hand. PW-6

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was also injured in the occurrence is supported by the medical

evidence and evidence of PW-2 (Dr. C.S. Gangrade). PW-6 being

injured  eye  witness,  his  evidence  stands  on  higher  footing.

Presence of injuries on the person of PW-6 lends assurance to his

testimony (See: Abdul Sayeed v. State of M.P. reported in (2010)

10 SCC 259 ). We do not find any convincing reason to disbelieve

the testimony of injured eye witness(PW-6).

7. The High Court acquitted all the other accused, since fatal

blow is attributed to the appellant-accused. The question falling

for consideration is to the nature of the offence. As pointed out

earlier, the occurrence was at about 10.00 p.m., when there was

wordy  quarrel  between  the  accused  party  and  the  deceased  –

Bherulal that there was a quarrel between them is established

from the evidence of PW-6 also. In the quarrel, the appellant-

accused has inflicted injuries on the right side of the head of

the deceased measuring 15x2 ½ x 3 c.m. Though there was another

injury found on the deceased it was one contusion measuring 10x2

cm  on  lower  portion  of  right  neck.  The  fourth  exception  to

Section  300  IPC  deals  with  death  committed  in  sudden  fight

without premeditation. The sudden fight implies the absence of

premeditation. Even as per the evidence of PW-6, there was a

wordy quarrel and in that quarrel the appellant inflicted farsi

blow on the head of the deceased. As the injuries inflicted on

the deceased in the sudden fight between the deceased and the

accused party. There was no premeditation. One injury was caused

to the deceased by farsi blow on the head which indicates that

the appellant has not taken undue advantage of the deceased. The

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manner the occurrence and the injury inflicted on the deceased

attract  Exception  4  to  Section  300.   In  the  facts  and

circumstances of the case, the conviction of the appellant is

modified under Section 304 Part-I IPC and the sentence is reduced

to the period already undergone.

8. In the result, the conviction of the appellant under Section

302 IPC is modified as conviction Section 304 Part-I IPC and

sentence  of  the  appellant  is  reduced  to  the  period  already

undergone  by   him.  The  appellant  is  ordered  to  be  released

forthwith if his presence is not required in any other case.

9. The appeal is, accordingly, allowed.

….......................J. [R. BANUMATHI]

…......................J. [INDIRA BANERJEE]

NEW DELHI 23RD OCTOBER, 2018