Ravi vs State

P.R. Shivakumar, J.—The sole accused who was prosecuted for an offence punishable u/s 302 I.P.C., but was convicted for an offence u/s

304(ii) IPCand sentenced to undergo rigorous imprisonment for seven years in sessions case No. 11/2000 on the file of Additional Sessions

Judge, Pondicherry by judgment dated 07.11.2000, has broughtforth this Appeal u/s 374 of Criminal Procedure Code challenging the conviction

and sentence.

The case of the prosecution, in brief, can be stated as follows:

P.W.1, Selvaraj is the younger brother of deceased Ragu. Both of them went to Vambakeerapalayam arrack shop on 30.06.1999 at about 8.30

P.M.While they were consuming arrack purchased in the said arrack shop, the appellant/accused who had come to the said village as a guest of

one Velmurugan (P.W.6) came to the said arrack shop and asked the deceased to lend a match box to lit his cigaratte. The deceased Raghu

replied him that he was not having match box as he did not have the habit of smoking. On hearing the said reply, the appellant/accused abused him

with filthy language pursuant to which the deceased Raghu pushed the appellant/accused. The appellant/accused who fell on the ground took a

soda bottle which was lying there, broke it, stabbed the deceased on his neck, using the broken soda bottle and then ran away from the place of

occurrence. The above said occurrence was witnessed by P.W.1 - Selvaraj, P.W.2- Palani and P.W.3 Pappayee, both employed in the said

arrack shop and also by P.W.5 - Moorthy,Immediately after the occurrence, the injured Ragu was taken to the General Hospital, Pondicherry

(now Puducherry) by P.W.1 in a cycle rickshaw for treatment. However on arrival at the General Hospital, Pondicherry (now Puducherry) ,

P.W.10-Dr.Murali, the casualty medical officer of the said hospital examined the deceased at 9.00 P.M. on 30.06.1999, found him dead and

declared that he was brought dead. After sending intimation to the police under Ex.P4, the dead body of Ragu was sent to the mortuary by

P.W.10. After the deceased Ragu was declared brought dead by the casulty Medical Officer, P.W.1 went to Odiansalai Police Station and lodged

a complaint under Ex.P1. The oral statement given by him was reduced to writing by one Arumugam, Head constable, in the presence of P.W.12-

Thiru.Deivasigamani, the then Sub Inspector of Police, Odiansalai Police Station and P.W.1 affixed his signature in the said statement. P.W.12-

Thiru.Deivsigamani registered a case for an offence punishable u/s 302 IPC against the appellant/accused in Crime No. 156/1999 on the file of the

above said police station based on Ex.P1-complaint. Ex.P8 is the F.I.R. prepared by P.W.12 in the printed format for the registration of the case.

The fact of the registration of the said case was informed by P.W.12 to the circle Inspector of Police. On receipt of such information, P.W.13-Mr.

K.S.Ramalingam, the then Inspector of Police, went to Odiansalai police station at 10.00 P.M. received a copy of the FIR from P.W.12 and took

up the investigation of the case. He then visited the place of occurrence along with P.W.12, one Arumugam (Head Constable) and P.W.1-

Selvaraj. The statements of P.W.1, P.W.2 , P.W.3 and P.W.6 and other witnesses were recorded by P.W.13 in the place of occurrence.

Thereafter, P.W.13 went to the General Hospital, Pondicherry (now Puducherry) and conducted inquest on the dead body of Ragu in the

presence of Panchayatars on 01.07.1999 between 8.00 P.M and 10.30 P.M and prepared Ex.P9 inquest report. P.W.13 also gave a requisition

to the Resident Medical Officer for post mortem examination of the dead body of the deceased. P.W.11-Dr.R.Balaraman conducted an autopsy

and issued Ex.P5 postmortem examination report. During postmortem examination P.W.11, found the following injuries on the dead body of

deceased Ragu:

(i) an incised wound 4x 1/2 x 1/2 cms over the middle of the chin;

(ii) An irregular incised wound 5x1.5 cms, cutting trachea on the right side, present over the front of neck below thyroid cartilage. ( The injury had

cut blood vessels of the neck on the right side); and

(iii) an incised wound 1/2 x 1/2 cms over the right thumb on the palmar aspect.

The stomach contained blood stained fluid about 100ml. with smell of alcohol. The internal organs were preserved and sent for chemical analysis.

On receipt of Ex.P6, Chemical Analysis Report, P.W.11 gave his final opinion under Ex.P7 opining that death had occurred due to shock and

haemorrhage caused by the injury found on the neck and that the deceased was also found to have consumed alcohol.

The blood stained clothes of the deceased produced as M.O''s - 1 to 5 were recovered by the investigating officer(P.W.13) under Ex.P2

Seizure Mahazar in the presence of one Palanivel and P.W.8 - Ravi kumar. The crime details report prepared by the investigating officer in the

presence of P.W.9. - Remo and one Murugan is Ex.P3. The invetigating officer viz. P.W.13 arrested the appellant/accused on 13.09.1999 at

about 6.00 A.M. at the residence of his relative viz. P.W.6 - Velmurugan, recorded the confession statement given by the appellant / accused in

the presence of witnesses (Balamurugan and Jayakumar) and sent the accused to the Court for remand. Before completing the investigation

P.W.10 was transferred from Grand Bazaar circle and hence he handed over the case records to his successor viz. P.W.14 - Thiru. P.R.

Ramachandran, who took up the further investigation of the case, recorded the statement of the police photographer who had taken the

photograph of the deceased and seen of occurrence and recovered those photographs marked as M.Os. 6 and 7 and M.Os. 10 to 12 along with

their respective negatives marked as M.Os. 8 and 9, and M.Os. 13 to 15. After completing the investigation, P.W.14 submitted a final report

alleging commission of an offence u/s 302 IPC by the appellant / accused.

The final report was taken on file by the learned judicial first Class Magistrate Pondicherry (now Puduchery) as P.R.C. No. 2/2000. After

furnishing copies of the documents relied on by the prosecution to the appellant/ accused u/s 207 Cr.P.C and following the procedure for

committing cases for trial to the Court of Sessions, the learned judicial First class Magistrate, Pondicherry (now Puduchery) committed the case for

trial u/s 209(a) Cr.P.C to the sessions court, Pondichery.

The learned principal sessions judge, Pondichery took it on file as S.C. No. 11/2000 and made it over to the Court of the Additional Sessions

Judge (trial court) for disposal according to law. Necessary charge for an offence punishable u/s 302 I.P.C. was framed against the

appellant/accused in the trial court (the Court of Additional Sessions Judge, Pondicherry, now Puduchery). The appellant/accused pleaded not

guilty and wanted the case to be tried.

As many as fourteen witnesses were examined as P.Ws. 1 to 14, ten documents were marked as Exs.P1 to P10 on the side of the prosecution

in order to prove the charge framed against the appellant/accused. M.Os. 1 to 16 were also produced on the side of the prosecution. After

completing recording of evidence on the side of the prosecution, the accused was examined u/s 313(1)(b) regarding the incriminating materials

found in the evidence adduced on the side of the prosecution. The accused denied them as false and reiterated his stand that he was innocent. No

witnesses was examined and no document was produced on his side.

The learned Additional Sessions Judge, Puduchery (trial judge) heard the arguments advanced on either side, considered the evidence brought

before him in the light of such arguments and upon such consideration, came to the conclusion that the prosecution had proved that it was the

appellant/accused who caused the death of the deceased by stabbing him with a broken soda bottle on the neck beyond reasonable doubt.

However the learned trial judge held that said act of the appellant/accused in causing the death of the deceased Ragu would not amount to culpable

homiside not amounting to murder punishable u/s 302 I.P.C. and on the other hand, the same would amount to cupable homicide not amount to

murder punishable u/s 304(ii) IPC. Based on the said finding, the court below recorded a conviction for an offence punishable u/s 304(ii) I.P.C

and sentenced the appellant/accused to undergo rigorous imprisonment for a period of seven years for the above said offence without imposing any

fine.

Challenging the conviction and sentence, the appellant/accused has brought forth this Appeal on various grounds set out in the appeal petition.

The points that arise for consideration are as follows:

(i) Whether the finding of the court below that the appellant/accused was guilty of an offence punishable u/s 304(ii) is erroneous?

and

(ii) Whether the conviction recorded by the court below and sentence imposed on the appellant/accused for the offence punishable u/s 304(ii) IPC

should be set aside or in any way interfered with?

The arguments advanced on either side were heard. The entire materials available on record wre also perused by this Court. The sole accused,

who was prosecuted for an offence u/s 302 I.P.C. but convicted for lesser offence, namely an offence punishable u/s 304(ii) I.P.C. and sentenced

to undergo rigorous imprisonment for seven years, has come forward with this Appeal challenging the above said conviction and sentence.

Advancing arguments on behalf of the appellant/accused, Mr. V. Sairam, learned Counsel submitted that the judgment of the court below

convicting the appellant/accused for an offence punishable u/s 304(ii) I.P.C. and sentencing him to undergo rigorous imprisonment for seven years

was against law, weight of evidence and liable to be set aside, that the court below failed to note the material contradictions found in the evidence

of prosecution witnesses regarding the occurrence as well as investigation; that the court below failed to appreciate the fact that the first

investigating officer had not chosen to recover the blood stained earth from the alleged place of occurrence; that the presence of conflicting

versions given by prosecution witnesses as to whether the blood stains were found in the scene of occurrence at the time of inspection of the same

by the investigating officer; that the court below having arrived at a conclusion that there could have been no intention to kill the deceased, it should

have also come to the conclusion that not even the offence punishable u/s 304(ii) was made out and at the best, the offence would amount to an

offence punishable either under Sections 324 I.P.C. or u/s 326 I.P.C; that in any event the sentence imposed was excessive and disappropriate to

the criminality of the act of the appellant and that hence the appellant should be acquitted holding him not guilty of any offence or at least the

conviction should be modified as one for a lesser offence with a resultant reduction of the sentence.

Per contra, Mr. Thangavelu, the learned Public Prosecutor submitted that the well considered finding of the court below to the effect that it was

the appellant/accused who caused the death of the deceased by inflicting, stab injury on his neck using a broken soda bottle could not be said to

be discrepant capable of being interfered with in this appeal; that the prosecution proved beyond reasonable doubt the overt act of the part of the

appellant/accused; that infact the state could have come forward with an appeal because the court below had chosen to convict the

appellant/accused for a lessar offence, that the offence punishable u/s 302 had been proved beyond reasonable doubt by the prosecution by

adducing sufficient and proper evidence and that hence there was no scope whatsover for interfering with the judgment of conviction and order of

sentence of the court below at instance of the appellant/accused. As an alternative argument, it was contended by the Public Prosecutor that even

assuming that the facts would attract a lesser offence punishable u/s 326 I.P.C., the sentence awarded by the court below could not be termed

either excessive or harsh and that in any event, the sentence of imprisonment awarded by the court deserved confirmation.

This Court paid its anxious consideration to the submissions made on either side.

The occurrence is said to have taken place on 30.06.1999 at about 8.30pm near the arrack shop at Vambakeerapalayam, within the

jurisdiction of Odiansalai Police Station, Puducherry. The appellant/accused is said to have caused the death of the deceased Raghu, a Rickshaw

puller by inflicting stab injuries on the neck of the deceased, using a broken soda bottle. According to the prosecution case, when the deceased

Raghu and his brother Selva Raj (P.W.1) were consuming arrack purchased from the above said arrack shop, the appellant/accused came there

and wanted the deceased to lend him his match box to lit his cigarette, for which the deceased Raghu replied in the negative stating that he did not

have the habit of smoking and hence no match box was available with him. It is the further case of prosecution that, besides commenting that it was

surprising to hear that the deceased was not having the habit of smoking, while he had the habit of taking alcohol, the appellant/accused abused the

deceased using unparliamentary and vulgar words, pursuant to which, the deceased pushed away the appellant/accused whereupon he fell on the

ground. Enraged by the same, according to the prosecution case, the appellant/accused took an empty soda bottle that was lying on the ground,

broke it and using the broken soda bottle, stabbed the deceased on his neck and escaped from the place of occurrence. The chase made by

P.W.1 and others proved ineffective as the appellant/accused disappeared in dark and hence could not be followed. Thereafter P.W.1 took the

deceased in a cycle rickshaw to the General Hospital, Puducherry where he was declared dead by the Medical Officer.

P.W.10, Dr. Murali was the Casualty Medical Officer, Government Hospital, Puducherry who examined the deceased when brought to the

hospital and declared him to have been brought dead. Besides, certifying that the deceased was brought dead to the hospital, P.W.10, sent an

intimation to the police in Ex.P4 regarding the death of the deceased Raghu and sent the dead body to be kept in the mortuary. According to his

testimony, the deceased was brought dead to the hospital at 9.00 p.m. Besides such intimation sent by the Medical Officer to the police, P.W.1

himself had gone to the Odiansalai Police Station and lodged a complaint at about 9.30p.m. He gave the complaint orally and same was reduced

to writing by one Arumugam, Head Constable. The said complaint, thus reduced to writing by the Head Constable and signed by P.W.1 is Ex.P1.

After the registration of the case, P.W.13, Inspector of Police, Grand Bazaar Circle, Puducherry, took up the investigation and conducted inquest

over the dead body of the deceased. After the inquest, based on the requisition given by the investigating Officer to the Resident Medical Officer,

P.W.11 Dr. Balaraman conducted autopsy and issued Ex.P5, Postmortem Report. After receiving the Chemical Analysis Report of viscera,

P.W.11 gave his final opinion under Ex.P7. The following injuries were found on the dead body of the deceased at the time of Postmortem

examination and noted down by P.W.11:

1) an incised wound measuring 4 x 1/2 x 1/2 cms over the middle of the chin,

2) an irregular incised wound measuring 5 x 1.5 cms, over the front of neck below thyroid cartilage, cutting trachea and blood vessels on the right

side of the neck.

and

3) an incised wound measuring 1/2 x 1/2 cms over the right thumb at the palmar aspect.

The Medical Officer, who conducted autopsy, based on his findings and after perusing the Chemical Analysis Report of viscera, gave a final

opinion that the deceased Raghu had died of shock and haemorrhage due to the injury found on the neck. From the evidence of P.W.11 and

Exs.P5 to P7, it is quite obvious that the injury found on the neck was the cause of the death of deceased Raghu. The said injury could not have

been a self-inflicted injury.

There is the clear evidence of P.W.11 that injury No. 2 was the fatal injury, which caused the death and that the same could have been caused

by a sharp and irregular weapon like a glass piece. The probable time of death has also been estimated by the Medical Officer to be more than 6

hours and less than 24 hours prior to autopsy. The Postmortem examination was commenced at 11.00a.m on 01.07.1999. Hence the probable

time of death shall be between 11.00a.m. on 30.06.1999 and 5.00a.m. on 01.07.1999. According to the prosecution case, the occurrence took

place at 8.30p.m. on 30.06.1999 and the deceased was brought dead to the hospital at 9.00p.m. itself. The same corresponds to the opinion of

the Medical Officer, who conducted autopsy. Though there was a suggestion put to the Medical Officer, P.W.11, that a fall on the ground making

the deceased coming into contact with irregular sharp edged weapon like glass piece would have caused the fatal injury namely, the injury No. 2,

the said suggestion was stoutly refuted by the Medical Officer. It was the evidence of the Medical Officer that in such an event the injury would

have been associated with abrasions. The injury Nos. 1 and 3, which were also incized wounds, according to the submissions made by the learned

Government Advocate (Criminal Side), alone were associated with the injury No. 2 and no such abrasion suggesting such fall with a force was

found on the dead body of the deceased.

Taking into consideration the above said medical evidence and the oral testimony of P.W.11, this Court comes to the conclusion that the Trial

Court has arrived at a right conclusion that injury No. 2 resulted in the death of the deceased; that the said injury could have been caused by

another person and that hence the death of the deceased Raghu was homicidal and was neither suicidal nor accidental. There is no defect or

infirmity in the above said finding of the court below and the same deserves approval of this Court.

We have seen in the foregoing paragraph that the death of the deceased Raghu was neither suicidal nor accidental, but was homicidal. Then the

necessary question that arises shall be, who caused the death of the deceased? Totally four persons were examined on the side of the prosecution

as eye witnesses. They are P.Ws.1,2,3 and 5. Out of the above said 4 witnesses, P.W.3 has turned hostile and stated in his evidence that while he

was selling arrack in the above said arrack shop on 30.06.1999 at about 8.30p.m, he heard about the attack made by the appellant/accused on

the deceased Raghu with a broken soda bottle. He has not stated that he saw the occurrence. Therefore, he was treated hostile and during cross

examination on the side of the prosecution, he was successfully contradicted with reference to his statement u/s 161 Cr.P.C. wherein he had stated

that he saw the accused stabbing the deceased on the neck using a broken soda bottle; that there after the accused ran towards the cremation

ground and that subsequently he heard the news that the deceased succumbed to the injuries on the way to hospital when he was taken by P.W.1

in a rickshaw.

P.W.1 is the brother of the deceased who is said to have accompanied the deceased to the arrack shop. It is his clear evidence that while he

along with his brother was consuming arrack purchased from the arrack shop, the accused came there and wanted the deceased to lend him match

box to lit his cigarette and that the subsequent altercation resulted in the occurrence in which the appellant/accused took a soda bottle lying on the

ground, broke it and stabbed the deceased on his neck with the broken piece of the soda bottle. P.W.1 is the person who took the deceased in a

rickshaw to the Government Hospital, Puducherry where the Medical Officer in the Casualty department examined the deceased and certified him

to have been brought dead. His evidence to that effect gets corroboration from the evidence of P.W.10 Medical Officer. It is he who went to the

police station and gave Ex.P1-complaint. Soon after the Medical Officer declared the deceased to be dead and sent the dead body to mortuary,

P.W.1 proceeded towards the Odiansalai Police Station, where his oral statement was reduced to writing by the Head Constable. P.W.1 has also

signed the statement thus recorded by the Head Constable. The said evidence of P.W.1 is also corroborated by the evidence of P.W.12-Sub

Inspector of Police, who registered the case based on Ex.P1-complaint. Of course it is true that P.W.1 is a close relative of the deceased. The

mere fact that a witness happened to be a close relative of the deceased is not enough to discard his evidence as interested testimony. The same

shall be accepted after putting it to the test of careful scrutiny. If such a test is applied to the testimony of P.W.1, the said evidence could not be

discarded as unbelievable. His evidence is so cogent and natural without there being any exaggeration.

P.W.2 is a person who was employed in the arrack shop at Vambakeerapalayam at the time of occurrence. He has clearly narrated the

incident in accordance with the prosecution theory. He has also totally corroborated the evidence of P.W.1 by stating that his attention was drawn

by the sound of breaking the soda bottle; that thereafter he saw the appellant/accused stabbing the deceased on his throat using the broken soda

bottle; that after stabbing the deceased the appellant/accused ran away from the place of occurrence taking along with him the broken soda bottle

used in the occurrence; that they chased him in vain, as he disappeared in darkness and that thereafter P.W.1 took the deceased to the hospital in

a rickshaw.

Yet another eye witness, namely P.W.5 has also narrated the occurrence in a cogent manner. He is said to have travelled along with his wife in

the rickshaw of the deceased to Vambakeerapalayam, prior to the occurrence. It is his further version that after leaving his wife in his house at

Vambakeerapalayam, he went to the arrack shop, where he saw the deceased and P.W.1 consuming arrack and also witnessed the occurrence

taking place. His narration of the occurrence is in tune with the prosecution story and also the testimonies of P.Ws.1 and 2. There is no reason,

whatsoever, to disbelieve the evidence of P.W.2 and P.W.5. The evidence of the above said eye witnesses stand unasailed and there is no

discrepancy or inherent infirmity in their testimonies making them unreliable or unbelievable. Therefore, this Court is convinced that the eyewitness

P.Ws.1,2 and 5 have given clear and cogent evidence to the effect that it was the appellant/accused who caused the injury to the deceased using a

broken Soda bottle which ultimately resulted in his death.

Subsequent to the registration of the case, the investigating officer visited the place of occurrence and prepared Ex.P3, Crime Details Form. Of

course there are some minor discrepancies as to whether the blood stains in the place of occurrence got erased due to rain. In Ex.P3, it has been

noted that there was rain on the date of occurrence during night hours and due to the same the blood stains had disappeared from the place of

occurrence. At the same time P.W.2, in his cross examination stated that the investigating officer saw the blood stains at the place of occurrence

and that there was no rain on the date of occurrence. P.W.2 is an employee of the arrack shop in which the occurrence is said to have taken place.

The investigating officer in the Crime Details Form prepared within a few hours from the time of occurrence, has noted that the blood stains on the

earth had disappeared due to rain. The evidence of P.W.1, regarding the time at which the police reached the place of occurrence is almost as

found in Ex.P3. When he was examined after one year from the date of occurrence P.W.3 stated that there was no rain on the date of occurrence.

On the other hand, the investigating officer in his Crime Details Form prepared on the same day, has noted that there was rain and the blood stains

on the earth had disappeared. The above said discrepancy shall not be enough to disbelieve the prosecution theory. The said discrepancy is

insignificant, not capable of causing any reasonable doubt in the story of the prosecution. Further, P.W.9, one of the attesters of the Crime Details

Forms has made it clear in his evidence that there had been rain on the date of occurrence; that the place of occurrence was found muddy and

hence they could not find any blood stains. M.Os. 10 to 15 are the photographs of the scene of occurrence and the corresponding negatives. They

lend support to the testimonies of P.Ws.9, 13 and Ex.P3.

There are more concrete evidence to prove that such an occurrence took place and it was the appellant/accused who caused the death of the

deceased. In Ex.P1-complaint itself P.W.1 has stated in clear terms that at the time of occurrence, he did not know the name and other particulars

of the accused and that soon after the occurrence at the place of occurrence itself he was informed that the assailant was one Ravi of Chennai, who

had visited Vambakeerapalayam, as a guest of one Velmurugan. If at all P.W.1 did have any animosity against the appellant/accused, he would

have straight-away alleged that he personally knew the accused who had come to Vambakeerapalayam as a guest of Velmurugan. The fact that

P.W.1 has chosen to state that on enquiry alone he came to know that the accused had come there as a guest of Velmurugan, will show that

P.W.1 has spoken the true and nothing but truth. P.Ws.2 and 5, the other eyewitnesses have clearly identified the appellant/accused to be the

assailant.

Apart from the evidence of the above said witnesses, there is a clinching evidence in the form of the testimony of the above said Velmurugan,

who was examined as P.W.6. It is his clear evidence that on 30.06.1999, the appellant/accused came to the house of P.W.6 at

Vambakeerapalayam as his guest; that the appellant/accused who went out from the house of P.W.6, returned at 9.30p.m and that at that time

P.W.6 noticed stains in the shirt of the appellant/accused. It is his further evidence that the appellant/accused demanded money from him and when

the demand was not met, he caused damage to the stove and went out. P.W.6. is admittedly a close relative of the appellant/accused. No motive

or ill-will is attributed to P.W.6 to depose falsely against the appellant/accused. Clear evidence has also been adduced to the effect that the

appellant/accused was arrested at Vambakeerapalayam, when he again came to the house of P.W.6., Velmurugan. P.W.4 has spoken to the said

effect.

Though the appellant/accused is said to have given a confession statement in the presence of Balamurugan and Jayakumar, since no new fact

was detected and no material object was recovered based on the alleged information furnished by the accused in the confession statement, the

same shall not be admissible and shall not be useful to prove the prosecution case. The investigating agency was not in a position to recover the

weapon of offence namely, broken soda bottle. According to the evidence of P.W.13, though the accused was taken to the place of occurrence

and a search was made for the broken soda bottle used for the commission of offence, the accused was not able to trace and identify the same and

hence no recovery was made u/s 27 of the Evidence Act. Though there was no recovery of the weapon used for the commission of offence, when

the ocular evidence and the other circumstantial evidence are so clear and unambiguous, the mere fact that the weapon used for the commission of

offence has not been recovered, shall not be enough to hold that the prosecution has not proved its case beyond reasonable doubt. Over all

consideration of the evidence adduced on the side of the prosecution will make it obvious, without giving any room for any doubt, much less a

reasonable doubt, that it was the accused who stabbed the deceased on his neck with a broken soda bottle and caused his death. On a re-

appreciation of evidence, this Court comes to the conclusion that the prosecution has proved beyond reasonable doubt that it was the

appellant/accused who caused the death of deceased Raghu. This Court is able to find no defect or infirmity in the conclusion arrived at by the

court below in this regard. There is no scope, whatsoever, for interfering with the same.

Even though, the court below has arrived at a conclusion that the prosecution was able to prove that it was the appellant/accused who picked

up quarrel with the deceased and during the altercation stabbed him on the neck with a broken soda bottle and thereby caused his death,

nevertheless, it has come to a conclusion that the said act of causing death would not amount to the offence of murder as defined u/s 300 IPC and

on the other hand, the same would amount to culpable homicide not amounting to murder falling u/s 299 I.P.C. alone. In arriving at such a

conclusion, the learned Trial Judge has observed that the prosecution did not succeed in establishing that the accused had caused the death of the

deceased Raghu with an intention of causing his death or in such a manner as contemplated u/s 300 IPC, so as to make him liable for being

punished under 302 IPC. The court below has ruled out any intention of causing death, but made an observation that the accused might have had

knowledge that in stabbing on the neck with a broken soda bottle, he was likely to cause the death of the deceased. As against the finding that

there could not be any intention to cause death and on the other hand, there could have been a knowledge that by stabbing, he was likely to cause

death, and as against the conviction for a lesser offence than the one punishable u/s 302 I.P.C., no appeal or revision has been preferred by the

State. Therefore, this Court comes to the conclusion that the conviction recorded by the trial court for an offence u/s 304(ii) IPC deserves to be

confirmed.

So far as the punishment is concerned, the Court below has awarded a sentence of rigorous imprisonment for 7 years without imposing any

fine. The said sentence, according to the considered view of this Court, is quite reasonable and is not excessive. For all the reasons stated above,

this Court comes to the conclusion that there is no defect or infirmity in the Judgment of the Trial Court convicting the appellant/accused for an

offence punishable u/s 304(ii) and sentencing him to undergo rigorous imprisonment for a period of 7 years and that hence the same has got to be

confirmed. The learned Trial Judge has also made it clear that the sentence already undergone during investigation, inquiry and pending trial, should

be set off against the sentence of imprisonment awarded by way of punishment. There is no merit in the appeal and the same deserves to be

dismissed.

In the result, the Criminal Appeal is dismissed and the conviction recorded and the sentence imposed by the Trial Court are confirmed.