Madrasi Champia vs State of Orissa

S.K. Sahoo, J.—The appellant Madrasi Champia @ Nayak faced trial in the Court of learned Addl. Sessions Judge, Talcher in S.T. Case No. 126/02/95/02 for offence punishable under section 302 of Indian Penal Code for committing murder of Lochan Batudi (hereafter ''the deceased'') on 24.03.2002 at Lingaraj Township in a newly constructed quarters.

The learned trial Court found the appellant guilty under section 302 of Indian Penal Code and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 2000/-, in default, to undergo R.I. for six months more.

The prosecution case as per the First information report (Ext. 8) presented by Santosh Kumar Agarwala (P.W.6) on 25.03.2002 before the officer in-charge, Colliery Police Station, Talcher is that the informant who was a contractor had taken the construction work of ''B'' and ''C'' type quarters of M/s. Mahanandi Coalfields Ltd., Lingaraj area at Lingaraj Township. The appellant and the deceased who were the labourers were staying in one uncompleted quarters bearing quarters No. 121 of Block No. 21 of ''B'' type. It is the further prosecution case that on 25.03.2002 finding both the labourers absent from the work site, the supervisor of the informant namely Ramesh Chandra Pradhan (P.W.2) in order to ascertain the reason for their absence went to the quarters in which they were staying and found the same to be locked from the outside but noticed that the window of the quarters was opened. Peeping through the window, P.W.2 found the deceased lying dead in a pool of blood sustaining injuries on his body. P.W.2 immediately informed the informant who also came to the work site and found the deceased lying dead and blood was oozing out from his body. Suspecting that the appellant might have committed murder of the deceased and fled away after locking the door, the First Information Report was lodged.

On the basis of the First Information Report, Sri Prahalad Chandra Mallik (P.W.12), Sub-Inspector of Police, Colliery Police Station registered Colliery P.S. Case No. 48 dated 25.03.2002 under section 302 of Indian Penal Code in the absence of the officer-in-charge and himself took up investigation.

During course of investigation, P.W.12 examined the informant and other witnesses, visited the spot and prepared spot map Ext. 13. On 26.03.2002 the scientific team and police dog squad visited the spot and detected some physical clue materials. The I.O. held inquest over the dead body of the deceased on 26.03.2002 in presence of the Executive Magistrate and sent the dead body for post mortem examination. He seized one lock, one pair of Chappals under seizure list Ext. 2. He also seized sample gauge cloth, saline extract of blood stains, portion of blood stained mosquito net, portion of blood stained plastic rope, sample extract of blood stained gauge under seizure list Ext. 4. He also seized one blood stained blue check lungi, one deep colour half banyan stained with blood, one underwear stained with blood, one stripe lungi, one plastic mat, one brass made ring, one wooden pidha and command certificate under seizure list Ext. 7. He arrested the appellant on 01.04.2002 and seized one white cotton lungi stained with blood, one full cotton white shirt stained with blood, one napkin stained with blood on being produced by the accused under seizure list Ext. 5. While the accused was in police custody, he gave information about the concealment of the weapon of offence i.e. crow bar in a bushy forest and basing on such information and on being lead by the appellant, the I.O. seized one crow bar on the production by the accused under section 27 of the Evidence Act under seizure list Ext. 1. The appellant was forwarded to Court on 02.04.2002. On 07.04.2002 the Circle Inspector of Police, Talcher took over charge of investigation from P.W.12. The wearing apparels of the appellant and the deceased, weapon of offence, sample blood and other materials which were collected were sent SFSL, Rasulgarh, Bhubaneswar through Court for chemical analysis. After completion of investigation, the Circle Inspector of Police submitted charge sheet on 26.07.2002 against the appellant under section 302 of Indian Penal Code.

After submission of charge sheet, the case was committed to the Court of Session for trial after observing due committal procedure where the learned Trial Court charged the appellant under section 302 of Indian Penal Code on 21.12.2002 and since the appellant refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt.

During course of trial, in order to prove its case, the prosecution examined twelve witnesses.

P.W.1 Naresh Nayak is a witness to the seizure of crow bar at the instance of the appellant under seizure list Ext. 1.

P.W.2 Ramesh Chandra Pradhan was the supervisor of P.D. Construction Company who stated to have marked the deceased lying dead on the floor of the quarters with bleeding injuries. He is also a witness to the seizure of a pair of chappals under seizure list Ext. 2 and a witness to the inquest over the dead body of the deceased vide inquest report Ext. 3.

P.W.3 Kartika Naik was the watchman under P.D. Construction Company and he has stated that the appellant and the deceased were staying together in quarter No. 121 of Block B/21 in separate rooms and he had seen both of them together in that semi-constructed quarter at about 11 O'' Clock in the night. He further stated to have seen the deceased lying dead in a pool of blood and Scientific Officer collecting materials which were seized by police under seizure list Ext. 4. He further stated about seizure of wearing apparels of the appellant under seizure list Ext. 5.

P.W.4 Binayak Jena stated about the seizure of one crow bar at the instance of the appellant which was seized under seizure list Ext. 1.

P.W.5 Madhaba Chandra Sahu was the Police Constable attached to Colliery Police Station who stated about the seizure of command certificate, wearing apparels of the deceased, wooden plank and one plastic mat under seizure list Ext. 7.

P.W.6 Santosh Kumar Agarwala was the contractor who had taken the construction work of the quarters in which the appellant and the deceased were working as labourers. He is the informant in the case who stated to have seen the deceased lying dead in a pool of blood in the room where he was staying.

P.W.7 Jamsed Alli is a witness to the seizure of one napkin, one lungi and one shirt of the accused under seizure list Ext. 5 so also the seizure of wearing apparels of the deceased under seizure list Ext. 7.

P.W.8 Durga Prasad Mohapatra was the Scientific officer who visited the spot on 26.03.2002 and collected certain incriminating articles from the spot which were seized by Police and subsequently sent for chemical examination.

P.W.9 Nirmala Chandra Pati was the Executive Magistrate, Talcher who was present at the time of inquest and signed the inquest report Ext. 3

P.W.10 Dr. Santilata Mohanty conducted post mortem examination over the dead body of the deceased on 26.03.2002. She opined the cause of death due to shock and hemorrhage resulting from the stab wound noticed on the deceased.

P.W.11 Suresh Nath was the constable who carried the dead body for post mortem examination and produced the wearing apparels of the deceased before the Investigating Officer after post mortem examination.

P.W.12 Prahalad Chandra Mallik is the Investigating Officer.

The prosecution exhibited fourteen documents. Exts. 1, 2, 4, 5 and 7 are the seizure lists, Ext. 3 is the inquest report, Ext. 6 is the statement of the appellant, Ext. 8 is the First Information Report, Ext. 9 is the report of Scientific Officer (P.W.8), Ext. 10 is the post mortem report, Ext. 11 is the command certificate, Ext. 12 is the dead body challan, Ext. 13 is the spot map and Ext. 14 is the chemical examination report.

The prosecution also proved six material objects. M.O.I is the crow bar, M.O.II is the contents of exhibit marked as ''B'', M.O.III is the packet containing clothes, M.O.IV is the packet containing portion of mosquito net, M.O.V is the packet containing portion of blood stained plastic rope and M.O.VI is the wooden pidha.

The defence plea of the appellant was one of denial and it was specifically pleaded that he had neither made any disclosure statement before police regarding concealment of weapon of offence nor gave recovery of any such weapon and that the police has foisted the case against him.

The learned trial Court has been pleased to held that the deceased and the appellant were staying in one quarters and on 25.03.2002 night the appellant assaulted the deceased by a crow bar causing injuries which are sufficient in the ordinary course of nature to cause death. The appellant used a crow bar which is a deadly weapon and assaulted on the vital part of the body i.e. neck of the deceased and after killing the deceased, he left the place of occurrence and that the appellant intentionally caused injury having the intention to kill the deceased and accordingly found the appellant guilty under section 302 of Indian Penal Code.

Adverting over the nature and cause of death of the deceased, we find that apart from the inquest report Ext. 3, the prosecution has also relied upon the evidence of P.W.10 Dr. Santilata Mohanty who conducted post mortem examination over the cadaver of the deceased on 26.03.2002 on police requisition at S.D. Hospital, Talcher. During post mortem examination, she noticed the following injuries:--

"One stab wound present in the left side extending from the base posterior triangle of neck upto the base of mandible (left) of size 6" x 3" x 3".

She found that the cervical fourth and fifth vertebra was separated and the spinal cord was also severed. On dissection, she found common carotid internal jugular vein and internal carotid on the left side neck was cut. She opined the cause of death due to shock and hemorrhage and the injuries found on the body of the deceased were sufficient in ordinary course of nature to cause death. She proved the post mortem report Ext. 10. She stated that she found only one stab injury on the body of the deceased which is possible by weapon like farsa having 6" in the blade portion.

The learned counsel for the appellant has not challenged the evidence of P.W.10 or the findings in the postmortem report Ext. 10. The learned trial Court has also discussed about the nature of death of the deceased with reference to the evidence of doctor P.W.10 and post-mortem report Ext. 10 and came to hold that the death of the deceased was homicidal in nature.

After perusing the evidence on record, the postmortem examination report Ext. 10 and the statement of P.W.10 Dr. Santilata Mohanty, we are of the view that there is no infirmity in the findings of the learned trial Court regarding the nature of death of the deceased to be homicidal in nature and accordingly we concur with such findings.

The learned counsel for the appellant Mr. Soroj Kumar Dash contended that when there is no direct evidence in the case and the case is based on circumstantial evidence and the circumstances brought on record by the prosecution are not clinching and they do not from a complete chain, it was not proper on the part of the learned trial court to hold the appellant guilty under section 302 of Indian Penal Code. It is his further contention that though it is the prosecution case that one crow bar was seized at the instance of the appellant but the doctor conducting the post mortem examination has stated that the stab injury noticed on the person of the deceased is possible by farsa having 6" length in the blade portion and therefore the crow bar cannot be said to be a weapon of offence. He further contended that the wearing apparels of the appellant and seized crow bar were sent for chemical analysis but no blood was found on the same which proves the innocence of the appellant. It is further contended that even though the appellant and the deceased were stated to be staying in one quarters but they were occupying two separate rooms and therefore merely because the deceased was found dead with bleeding injury in his room and the appellant was found absconding from the quarters, it cannot be said that he is the author of the crime and accordingly benefit of doubt should be extended in his favour. The learned counsel put forth an alternative argument that there was no motive behind the commission of crime and materials are there that both the appellant and the deceased used to quarrel with each other under intoxication and therefore the possibility of quarrel between them on the night of occurrence cannot be ruled out and if during such quarrel, one blow was given even on the vital part of the body, it cannot be said that the ingredients of offence under section 302 of Indian Penal Code was made out rather it may at best be a case under section 304 Part-I of Indian Penal Code.

Mrs. Saswata Patnaik, on the other hand contended that when during the late night on the date of occurrence, both the appellant and the deceased were last seen together inside the quarters and there was none else in that quarters except those two and on the next date morning, the deceased was found lying dead with bleeding injury and the appellant was found absconding from the spot house and the door was locked from outside, it is the appellant who was to explain under what circumstances the deceased died. Having failed to discharge his burden of proof which was especially within his knowledge in view of the provision under section 106 of Evidence Act, it can be held that it is none else but the appellant who was last seen in the company of the deceased is the author of the crime. The learned counsel for the State further contended that apart from the last seen theory, there are materials like absconding of the appellant as well as leading to discovery of the weapon of offence which completes the chain of circumstances. The learned counsel for the State pointed out that during course of investigation, the I.O. sent the weapon of offence to the doctor (P.W.10) who on examination answered that the injuries sustained by the deceased can be possible by such weapon and therefore the hypothetical argument raised on behalf of the appellant that M.O.I is not the weapon of offence cannot be accepted. Learned counsel for the State submits that since there is no infirmity in the impugned judgment and the order of conviction, the appeal should be dismissed.

We have thoughtfully considered the rival contentions vis-�-vis the evidences on record.

There is no dispute that the entire prosecution case hinges on circumstantial evidence. It is aptly said that "man may tell lies, but circumstances do not". Circumstantial evidence is evidence of relevant facts from which, one can, by process of intuitive reasoning, infer about the existence of facts in issue or factum probandum. While assessing the case based on circumstantial evidence, the Court has a duty to see that the circumstances on which the prosecution relies must be proved beyond all reasonable doubt and such circumstances must be capable of giving rise to an inference which is inconsistent with any other hypothesis except the guilt of the accused. It is only in such an event that the conviction of the accused, on the basis of the circumstantial evidence brought by the prosecution, would be permissible in law. However the Court should be alert as the circumstances can be created/concocted/planted in order to falsely entangle a person on mere suspicion.

In the case of Sharad Birdhichand Sarda Vs. State of Maharashtra, , their Lordships have laid down five golden principles so as to constitute "Panchasheel" in the proof of a case based on circumstantial evidence which are as follows:--

"1. The circumstances from which the conclusion of guilt is to be drawn should be fully established;

The facts so established should be consistent only with the hypothesis of the guilt of the accused that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

The circumstances should be of a conclusive nature and tendency;

They should exclude every possible hypothesis except the one to be proved, and

There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

In the case of Jaharlal Das Vs. State of Orissa, , it is held as follows:--

"The Court has to bear in mind a caution that in cases depending largely upon circumstantial evidence, there is always a danger that the conjecture or suspicion may take the place of legal proof and such suspicion however so strong cannot be allowed to take the place of proof. The Court has to be watchful and ensure that conjectures and suspicions do not take the place of legal proof. The Court must satisfy itself that the various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused".

In case of Budhuram Vs. State of Chhattisgarh, , it is held as follows:--

"The law relating to proof of a criminal charge by means of circumstantial evidence would hardly require any reiteration, save and except that the incriminating circumstances against the accused, on being proved, must be capable of pointing to only one direction and to no other, namely, that it is the accused and nobody else who had committed the crime. If the proved circumstances are capable of admitting any other conclusion inconsistent with the guilt of the accused, the accused must have the benefit of the same."

In case of Kanhaiya Lal Vs. State of Rajasthan, , it is held as follows:--

"Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances."

Coming to the materials available on record, it is very clear that the prosecution has failed to establish any motive on the part of the appellant to commit the crime rather it is apparent that both the appellant and the deceased were not only labourers working under the same construction company but they were also staying together in one of the quarters. Except some evidence that sometimes they were quarreling with each other under intoxication, nothing more has been established. In a case based on circumstantial evidence, motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasoning in such a case. The absence of motive, however, puts the Court on its guard to scrutinize the circumstances more carefully to ensure that suspicion and conjecture do not take place of legal proof. The learned trial Court however observed that though there is no clear and cogent evidence with regard to the motive for the offence but there existed ill feeling between the two and it is only the perpetrator of the crime who knows as to what circumstances prompted him to a certain course of action leading to the commission of crime. The learned trial Court seems to have relied on the evidence of P.W.3 who has stated that the appellant and the deceased were quarreling with each other on different times under intoxication. We are afraid that from this one line statement of P.W.3, it cannot be conclusively held that there was ill feeling between the two. Drunkards'' intermittent quarrel under the influence of liquor cannot be said to be an ill-feeling between them. Thus, in view of the available materials on record, we are of the view that the prosecution has failed miserably to establish any kind of motive on the part of the appellant to commit the crime.

Since the prosecution has failed to establish any motive on the part of the appellant, we are to scrutinize the other circumstances available on record more carefully to see whether the guilt of the appellant is established or not.

The next important circumstance against the appellant is the last seen theory. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.

Coming to the case in hand, P.W.2 has stated that both the appellant and the deceased were staying together in one of the half constructed quarters of the company which is quarters No. 121 in Block No. B/21 in Lingaraj Township. P.W.3 has also stated that the appellant and the deceased had been staying together in quarters No. 121 in Block No. B/21. He has further stated that they were cooking separately and occupying separate rooms and he had seen both of them in the semi constructed quarters on the date of occurrence at about 11 p.m. in the night. P.W.6 has stated that the appellant and the deceased had been staying together in one of the quarters in Block No. 21. The appellant has denied staying together with the deceased in quarters No. 121 in Block No. B/21 in his statement recorded under section 313 Cr.P.C. but in view of the categorical evidence of P.W.2, P.W.3 and P.W.6 relating to last seen which has not been shaken in the cross-examination, we are of the view that the prosecution has successfully established that on the occurrence night, the appellant and the deceased were together in the spot quarters and there was none else in it.

Similarly it is established through the evidence of P.W.2, P.W.3 and P.W.6 that on the next day morning of the occurrence, the deceased was found lying dead inside his room in a pool of blood and the appellant was found absconding and the room was locked from outside. Nothing has been brought out in the cross-examination to discard this aspect of the prosecution evidence.

Thus from the materials available on record, it is established that not only the appellant and the deceased were staying together in one of the quarters of P.D. construction company in Lingaraj Township but they were seen together in the late hours of night on the date of occurrence and on the next day morning, the dead body of the deceased was found in a pool of blood and the appellant was found absconding and the room was locked from outside. This piece of evidence is very clinching against the appellant and the appellant is the best person who was supposed to know in what manner and under what circumstances, the deceased met his end but since the appellant has failed to discharge his burden of proof and give a cogent, probable and satisfactory explanation as to how the deceased died and under what circumstances and why he absconded from the spot, that itself would provide an additional link in the chain of circumstances.

The provisions of section 106 of the Evidence Act are unambiguous and categoric in laying down that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by section 106 of the Evidence Act. When the accused fails to throw any light upon facts which are especially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation as additional link which completes the chain.

In case of Ajitsingh Harnamsingh Gujral Vs. State of Maharashtra, , it is held as follows:--

"29. The evidences of PW.3, PW 4 and PW 5, which we see no reason to disbelieve, thus fully establish that the Appellant was last seen with his wife at about midnight and was in fact quarrelling with her at that time.

The incident happened at 4 or 4.30 a.m. and hence there was a time gap of only about 4 hours from the time when the Appellant was seen with his wife (deceased) and the time of the incident. Thus he was last seen with his wife and there was only a short interval between this and the fire.

The last seen theory comes into play where the time gap between the point of time when the accused and deceased were last seen alive and when the deceased is found dead is so small that the possibility of any person other than the accused being the author of the crime becomes impossible, vide Mohd. Azad @ Samin Vs. State of West Bengal, and State Vs. Mahender Singh Dahiya, , Sk. Yusuf Vs. State of West Bengal, .

In our opinion, since the accused was last seen with his wife and the fire broke out about 4 hours thereafter it was for him to properly explain how this incident happened, which he has not done. Hence this is one of the strong links in the chain connecting the accused with the crime.

The victims died in the house of the accused, and he was there according to the testimony of the above witnesses. The incident took place at a time when there was no outsider or stranger who would have ordinarily entered the house of the accused without resistance and moreover it was most natural for the accused to be present in his own house during the night".

In case of Babu Vs. Babu and Another, , it is held that

"14. The second important circumstantial evidence against the accused is that the accused and the deceased were last seen together. To put it tersely, both of them slept together by retiring to the room that night. Last seen together in legal parlance ordinarily refers to the last seen together in the street, at a public place, or at any place frequented by the public. But here, the last seen together is much more than that. The last seen together here is sleeping together inside the bolted room. It is in the evidence of PW-3 and PW-6 that they had dined together and the accused and the deceased were closeted in a room at about 8.30 p.m. Therefore, on the fateful day the accused and the deceased were closeted in a bedroom at about 8.30 p.m. is undisputed and it is for the accused alone to explain as to what happened and how his wife died and that too on account of strangulation.

xx xx xx xx

Now the question which remains to be considered is, who is responsible. As already noticed, the accused and the deceased were closeted inside the room. There is no evidence of an intruder. In such a situation, the circumstances leading to the death of the deceased are shifted to the accused. It is he who knows in what manner and in what circumstances the deceased has met her end and as to how the body with strangulation marks found its way into the nearby well. All the aforesaid circumstances, taken together cumulatively lead and unerringly point only to the guilt of the accused".

In Trimukh Maroti Kirkan Vs. State of Maharashtra, , the Apex Court held that:

"12. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties......Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of S. 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation".

In case of State of Rajasthan Vs. Kashi Ram, , the Apex Court held that:

"19.....whether an inference ought to be drawn under Section 106 Evidence Act is a question which must be determined by reference to facts proved. It is ultimately a matter of appreciation of evidence and, therefore, each case must rest on its own facts".

The Court further held that:

"23..... The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain".

The occurrence in this case took place in the intervening night of 24th and 25th of March, 2002. The Investigating Officer searched for the whereabouts of the accused and only on 01.04.2002 he was arrested and forwarded to the Court on the next day. It is no doubt true that absconding by itself is not conclusive either of guilt or of a guilty conscience inasmuch as a person may abscond on account of fear of being involved in the offence or for any other allied reason. Absconding of accused leads no decisive implication, nevertheless it has utility to form a link concatenate the full chain.

There is clinching evidence that at the instance of the appellant, the weapon of offence was recovered. It is the contention of the learned counsel for the appellant that the seized crowbar is not the weapon of offence as the doctor has stated that injury found on the body of the deceased was possible by weapon like farsa having 6" length in the blade portion.

It appears from the records that during course of investigation, the weapon of offence i.e. crowbar was sent by Circle Inspector of Police, Talcher Circle to P.W.10 Dr. Santilata Mohanty for examination and opinion as to whether the injuries detected on the body of the deceased can be caused by such weapon or not. P.W.10 examined the crowbar on the very same day and found that the length of the crowbar is 61", weight is 9 kg., diameter is 1" and circumference is 3" and it is made of iron and one end is circular and the other end is rough and flat with ragged border. She has opined that the injuries caused on the deceased can be caused by the produced weapon and it can cause death of the person.

Unfortunately this opinion has not been proved during course of trial by the public prosecutor though it is very much available on record. It was not only the duty of the public prosecutor to bring this document to the notice of the Medical Officer as well as the trial Court and mark it as an exhibit but also to show the seized weapon to the Medical Officer in Court to get a positive statement that the very weapon was produced before her to give the opinion.

In case of Sidhartha Vashisht @ Manu Sharma Vs. State (NCT of Delhi), , it is held that a public prosecutor has a wider set of duties than to merely ensure that accused is punished, the duties of ensuring fair play in the proceedings, all relevant facts are brought before the Court in order for the determination of truth and justice for all the parties including the victims. It must be noted that these duties do not allow the prosecutor to be lax in any of his duties as against the accused. The Court must ensure that the prosecutor is doing his duties with utmost level of efficiency and fair play. In case of Joshinder Yadav Vs. State of Bihar, , it is held that in a criminal trial, the Investigating Officer, the prosecutor and the Court play a very important role. The Court''s prime duty is to find out the truth. The Investigating Officer, the prosecutor and the Courts must work in sync and ensure that the guilty are punished by bringing on record adequate credible legal evidence. If the Investigating Officer stumbles, the prosecutor must pull him up and take necessary steps to rectify the lacunae. The criminal Court must be alert, it must oversee their actions and, in case, it suspects foul play, it must use its vast powers and frustrate any attempt to set at naught a genuine prosecution.

In view of the opinion given by P.W.10, the contention of the learned counsel for the appellant that crowbar is not the weapon of the offence cannot be accepted.

The non-finding of the blood stains either on the crowbar or on the wearing apparels of the appellant is not very material in view of the time gap between the date of occurrence and arrest of the appellant and its seizure. The possibility of cleaning and removing the blood stains by the appellant cannot be ruled out.

Thus we are of the view that it is none else but the appellant who is the author of the crime. The facts so established by the prosecution are consistent with the hypothesis of the guilt of the appellant and the chain of evidence is complete and the incriminating circumstances unmistakably and inevitably lead to an irresistible conclusion regarding the guilt of the appellant.

Coming to the alternative argument, the learned counsel for the appellant contended that since no motive for the commission of crime has been established and possibility of sudden quarrel between the parties cannot be ruled out so also the occurrence happening on the spur of the moment and the appellant committing the act, whilst deprived of the power of self-control by grave and sudden provocation can also not be ruled out, it would not attract the ingredients of the offence under section 302 Indian Penal Code. The learned counsel further contended that P.W.3 has categorically stated that sometimes the appellant and the deceased were quarreling with each other under intoxication. It is further contended that since a single blow has been inflicted, in facts and circumstances of the case, the appellant may be liable for commission of offence under section 304 Part-I of Indian Penal Code.

Learned counsel for the State conversely argued that there is no universal rule that infliction of a single blow could not attract section 302 IPC rather it depends on the manner in which the blow is inflicted and the surrounding circumstances. It is further argued that a stab wound of size 6" x 3" x 3" has been caused on the neck with a crowbar which has caused separation of cervical 4th and 5th vertebra and severance of spinal cord, internal jugular vein and internal carotid on the left side neck was cut and injuries have been opined to be sufficient in ordinary course of nature to cause death. The learned counsel further urged that in absence of any material to show that the case is covered under any of the five exceptions as enumerated under section 300 Indian Penal Code, it cannot be a case of culpable homicide not amounting to murder falling either under section 304 Part-I or 304 Part-II of Indian Penal Code.

Considering the rival contentions raised at the bar and the evidences produced before the trial Court, it is apparent that not only the deceased and the appellant were working as labourers under the same contractor but they were also staying together in one quarters. Sometimes there use to be quarrel between them in a state of intoxication but in spite of such quarrel, they continue to stay together under the same roof, of course in two separate rooms. They were seen by P.W.2 preparing their respective foods in evening hours on the date of occurrence. They were also seen in the late night together by P.W.3. At that point of time there is no evidence of any quarrel between the two. Absence of any motive and in view of passed conduct of the parties quarreling with each other under influence of liquor suggests that on the date of occurrence also, the possibility of quarrel between the two in the late night cannot be ruled out. In all possibility, the quarrel escalated into a serious fight between the two and the appellant being deprived of power of self control and causing injury on the deceased by dealing a blow with a crowbar can also not be ruled out. The appellant must have got opportunity to inflict more than one injury but he did not do so.

In case of Surinder Kumar Vs. Union Territory, Chandigarh, , it was held that in order to invoke exception 4 section 300 IPC, four requirements must be satisfied, namely (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of quarrel is not relevant nor is it relevant who offered provocation or started assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proved fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.

The appellant has used a crowbar as the weapon of offence which must have been readily available at the construction site. He has dealt only one blow in spite of getting ample opportunity to deal more number of blows and the said single blow unfortunately has been proved fatal. Happening of the unforeseen occurrence during sudden quarrel and the appellant acting in a fit of anger and in an unpremeditated manner cannot be ruled out. We are of the considered view that even though the act of the appellant had resulted in the death of the deceased but it was caused not with the intention of causing death but causing such bodily injury as was likely to cause death. The intention is the state of mind which can be inferred from the facts and circumstances of each case particularly the nature of weapon used, whether the weapon was carried by the accused or was picked up from the spot, how it was used, the nature of injuries inflicted, whether there was any grave and sudden provocation, whether the accused had taken undue advantage or had acted in a cruel and unusual manner, whether the accused dealt a single blow or several blows. These are some of the special circumstances which with reference to the individual cases may throw light on the question of intention. Where direct evidence is not available, Court can still look into the surrounding circumstantial evidence to find out the intention aspect of the accused to commit the crime.

In case of Amrithalinga Nadar Vs. State of Tamil Nadu, , where the appellant caused injury on the left side neck of the deceased by a sharp edged weapon which was sufficient in ordering course of nature to cause death, the Hon''ble Supreme Court altered the conviction from one under section 302 IPC to 304 Part-I IPC. In case of Kulesh Mondal Vs. The State of West Bengal, where a fatal blow on the neck was given with a ''hasua'' the Hon''ble Supreme Court set aside the conviction of the appellant under section 302 Indian Penal Code and convicted him under section 304 Part-I Indian Penal Code and sentenced him to custodial sentence of ten years. In case of Arumugam Vs. State rep. by Inspector of Police, Tamil Nadu, where the appellant stabbed the deceased on his right neck with spike which pierced through the neck of the deceased and came out on the left side, Hon''ble Supreme Court altered the conviction from one under section 302 IPC to section 304 Part-I IPC.

Taking overall view of all these facts, we are of the view that the appellant has committed culpable homicide not amounting to murder and his act falls within part-I of section 304 of Indian Penal Code.

In the result, we set aside the impugned judgment and order of conviction of the appellant under section 302 Indian Penal Code and imposition of sentence of life imprisonment as well as payment of fine of Rs. 2000/-, in default to undergo R.I. for six months more as was imposed by the learned trial Court. On the contrary, we convict the appellant under section 304 Part-I Indian penal Code. It is stated at the Bar that the appellant is in custody since 02.04.2002 and in the meantime more than thirteen years have passed. We verified the records and found the statement made by the learned counsel for the appellant to be correct. Therefore while convicting the appellant under section 304 Part-I Indian Penal Code, we sentence him to the period already undergone. The appellant who is in jail custody shall be released forthwith if his detention is not otherwise required in any other case.

Accordingly, Criminal Appeal is allowed in part.

Lower Court records along with a copy of this judgment be sent down to the learned trial Court for necessary action.

Vinod Prasad, J.

I agree.