NON­REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL    NO.545 OF 2011

DEEPAK ....APPELLANT(S)

VERSUS

STATE OF UTTAR PRADESH  (NOW UTTARAKHAND)      ...RESPONDENT(S)

JUDGMENT

NAVIN SINHA, J.

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

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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

PW­5 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 PW­1 Babu Ram,

PW­2 Ram Kumar and PW­3 Kalu Ram, convicted the

Appellant.  

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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, PW­2 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

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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 pre­

meditation 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,

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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

Appellant.   

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.

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9. The appeal is therefore allowed in part with the

aforesaid modification of the conviction and sentence.  

…………...................J. [RANJAN GOGOI]

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

…………...................J. [NAVIN SINHA]

NEW DELHI AUGUST 01, 2018

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