The State vs Mallikarjuna @ Mallu

The State has preferred this appeal aggrieved by the judgment and order of acquittal passed by the learned Sessions Judge, Gulbarga, acquitting the respondent herein of the offence punishable u/s 302 of IPC.

The case of the prosecution in brief is as under:

The deceased - Satish, a student studying in II year PUC in M.S.I. College, Gulbarga, had developed love affair with one Jayashree, cousin sister of accused herein and as the deceased did not belong to the caste of accused, the accused was unhappy over the love affair between the deceased and Jayashree. In fact, the accused had even threatened the deceased on one occasion by telling the deceased that if the deceased does not stop his love affair with Jayashree, the accused would murder him. With this background, on 3.4.1996 at about 10.00 a.m., the deceased had taken his elder brother''s son so as to leave him for SSLC examination. Therefore, they proceeded to Vijaya Vidyalaya exam centre and after the deceased was just moving around the exam centre, at that time, the accused came there in an autorikshaw and asked the deceased to go alongwith him to have a cup of tea. The deceased in compliance of the said request sat in the same autorikshaw and they went towards V.G. Manila College road and when the autorikshaw came near the H K E Society''s office, the accused stopped the autorikshaw and both started walking towards nearby a hotel and suddenly the accused fell on the deceased by catching hold of his neck and punched on the stomach of the deceased with the hand and this was followed by the accused stabbing the deceased with a button knife on the left side of the rib of the deceased. After receiving the knife blow, the deceased fell down with the bleeding injuries and the accused ran away. The deceased managed to get up and noticed the accused in an autorikshaw having disappeared, but nevertheless the deceased managed to take another autorikshaw and came to inform his brother - PW.4 - Hanmantha. The incident had taken place at 1.30 p.m.

The deceased came to the video cassette shop, where his brother was sitting and informed PW.4 that he had sustained bleeding injuries on the left side of the stomach and on enquiry, it was revealed him that the accused had taken the deceased a party and thereafter the accused had assaulted the deceased with knife at H K E Society office, Gulbarga. Immediately PW. 4 took his brother to the District Hospital and informed his parents. PW.15 - Maruti, the PSI, working in Station Bazar Police Station, Gulbarga, received a MLC letter through a police constable, Rasool Patel at 2.45 p.m. and on the same day and visited the District Hospital at 3.00 p.m. PW.15 recorded the complaint of Satish as per Ex.P14 and the signature of Satish was also taken at Ex.P14 and thereafter he came to the Police Station at 4.00 p.m. and registered the case in Crime No. 71/1996 and sent FIR as per Ex.P15 to the court. Even in the complaint, Satish had mentioned about the incident of assault and the accused assaulting him with knife below the chest region. After recording the complaint, PW. 15 conducted spot panchanama as per Ex.P6 and recorded the statement of two eye witnesses - PWs. 1 and 2.

On 4.4.1996 early in the morning, the death information was reached the Police Inspector as per Ex.P16 and thereafter PW.15 by his letter as per Ex.P17 requested the Magistrate to permit adding Section 302 of IPC in the FIR. An inquest panchanama was held over the dead body of Satish as per Ex.P18 and postmortem examination was conducted by PW. 11 - Dr. Ghanate Nagannath and the said doctor opined that the cause of death due to hypovolemic shock due to extensive bleeding as a result of stab injury and issued post mortem examination report as per Ex.P12. According to the said doctor, the injury noticed on the dead body could be caused with the knife and the injury is sufficient to cause death in the ordinary course to cause death. The clothes of deceased were produced before the P.S.I, and they were seized as per MOs. l, 2, 5 and 6 as per panchanama of seizure - Ex.P7. Thereafter, MO.4 --black thread was also produced and it was seized as per panchanama of seizure - Ex.P19. On the very same day i.e. 4.4.1996, the accused with the police went to the house of Mahadevi and produced a button knife (MO.3) as well as a shirt - MO.7 and a jeans pant - MO.8 and all the objects were found blood stained and they were seized as per Ex.P21.

PW.10 - the CPI took over the further investigation and after sending the blood stained articles to the FSL for examination and receiving the wound certificate of Satish as per Ex.P4 from PW.5 - Dr. C. Rukminibai, who had treated the injured in the hospital and after receiving the sketch map of the place of offence as per Ex.P11 and on completion of the investigation, charge sheet was submitted.

The accused stood the trial and the prosecution examined PWs.1 to 15 and the documents - Exs.P1 to 21 were marked. MOs. 1 to 8 were produced during the trial. On being questioned u/s 313 of Cr.PC, the stand of accused was one of total denial. The accused did not lead any defence evidence.

The learned trial Judge, after appreciating the evidence on record and in the light of the submission made before him, came to the conclusion that the complaint - Ex.P14 given by the deceased before PW.15 cannot be treated as dying declaration, because neither the said complaint - Ex.P14 revealed that the deceased was unconscious state of mind to make the statement and secondly there was no endorsement on the said complaint - Ex.P14 from the doctor with regard to the fitness of the deceased to make the statement and further more, the trial court found that the scribe -Ex.P14 was not examined in the court. All these defects in the prosecution case led to the trial court in rejecting Ex.P14. Secondly even the oral dying declaration made by the deceased before PW. 4 was not believed by the trial court only on the ground that the statement of PW. 4 was recorded not on the very day of the incident, but on the next day and as such the delay in recording his statement gives rise to doubt his testimony. The entire prosecution case is rested mainly on the complaint -Ex.P14, which following the death of Satish was sought to be treated as dying declaration by the prosecution and the oral dying declaration made before PW.4 as well as the evidence of PSI - PW.15 having been supported by the medical evidence of two doctors - PWs.5 and 11. However, the rest of the witnesses of prosecution did not support the prosecution case as much as two eye witnesses - PWs. 1 and 2 turned hostile and so also PW.6 the panch witness for the seizure of weapon i.e. MO.3, and MOs.7 and 8. Thus appreciating the evidence in the above said manner, the trial court gave benefit of doubt to the accused and acquitted him.

Aggrieved by the aforesaid order of acquittal, the State has come up in this appeal. We have heard the submissions made by learned High Court Government Pleader, Sri P M Nawaz as well as the argument advanced by learned Amicus Curiae, Sri A R Desai, appearing for the respondent.

Learned Government Pleader, Sri Nawaz, submitted that the prosecution had proved the case through Ex. P14, which though was the complaint at the initial stage became the dying declaration following the death of Satish and secondly the oral dying declaration made before PW.4 has been supported by the medical evidence of PWs.5 and 11 and finally by the testimony of PW. 15 - I.O. It was submitted that the trial court looked the entire case from different angle and instead of taking note of the facts and circumstances of the case, it found fault with Ex.P14 by observing that if Ex.P14 were to be dying declaration, then the same ought to have been recorded in the presence of doctors and there ought to have endorsement with regard to the mental fitness of the deceased. The trial court was also found fault with the prosecution evidence with regard to the prosecution having failed to examine the scribe - Ex.P14. Thus the approach of the trial court is totally erroneous. It was submitted that at the first instance PW.15 went to the hospital and the statement recorded by him was a complaint as per Ex.P14 and as such the requirement of either the presence of doctor or an endorsement with regard to the mental fitness of the deceased was not warranted at that stage. Therefore, Ex.P14, which though was the complaint at the initial stage, became the dying declaration soon after the death of Satish. In the light of the above circumstances, there was no defect in the prosecution case with regard to the dying declaration being not endorsed by either of the doctors and for not examining the scribe and this was the substance of argument of the learned Government Pleader.

As regards the other evidence on record is concerned, it was submitted by the learned Government Pleader that Ex.P14 is supported by the evidence of PW.4, who speaks the oral dying declaration made by the deceased before him, and the said witness has not been shown to be unreliable in the cross-examination. Hence, the evidence of PW. 4 supports Ex.P14. Apart from this, the evidence of PW. 15 - PSI, who is the IO in the instant case, is very natural and there is nothing in his evidence to disbelieve his version to hold that the accused had been falsely implicated in the case. The other evidence on record, which supported the above material, according to the learned Government Pleader, is the evidence with regard to the recovery of MO. 3 - knife as well as the shirt and pant of the accused, all which were found blood stained as per Ex.P10. All these facts, which appear from the material on record, leads to the conclusion that the prosecution has proved beyond all reasonable doubt the commission of crime committed by the accused.

In addition to the above, it was submitted that the accused did not reply to any of the questions put to him u/s 313 statement and there was total denial even in respect of his own clothes being found blood stained and recovered by PW.15 - IO. Therefore, it was submitted that all these facts go to show that the accused had committed the crime.

In support of the above submissions with regard to treating Ex.P14 or dying declaration, the learned Government Pleader placed reliance on the decisions reported in Jai Prakash and Others Vs. State of Haryana, .

On the other hand, learned Amicus Curiae Sri Desai, appearing for the respondent, supported the view taken by the trial court and contended that in the MLC letter - Ex.P5, there is no mention of the name of the accused and nothing has been prevented PW.4 or the deceased to have mentioned the name of the accused in the MLC letter - Ex.P5, which was sent to the police. Secondly the statement of PW. 4 was recorded after the delay of one day and this also gives rise to doubt the oral dying declaration alleged to have been made before PW.4 by the deceased. As far as Ex.P14 is concerned, it was submitted that it cannot be treated as dying declaration, because there is no endorsement by the doctor on Ex.P14 with regard to the mental fitness of the deceased and further more the said complaint - Ex.P14 can be treated only as complaint and not as dying declaration and as such the trial court was right in not placing the reliance on Ex.P14. Referring to the medical evidence, it was submitted that it was doubtful that the deceased had sustained bleeding injury and the conduct on the part of PW.15 in not recording Ex.P14 in the presence of doctor also gives rise to doubt the prosecution case. As such, the trial court''s reasoning cannot be termed as perverse. Hence, no interference is called for in this matter as the prosecution case rests mainly on the alleged dying declaration made before PW.4. If these two are taken out of consideration, there is nothing on record to implicate the accused person with the commission of crime. The learned Amicus Curiae submitted that the FIR was reached the Magistrate after considerable delay. Therefore, this aspect of the matter has to be taken into account while appreciating the entire evidence on record. He placed reliance on the decisions reported in Sukhar Vs. State of Uttar Pradesh, .

Thus having heard both sides and having perused the entire material evidence on record including the trial court''s order of acquittal, the only point for consideration is whether the State has made out the case for interference with the order of acquittal.

The prosecution is required to prove that Satish died a homicidal death. In regard to this aspect of the matter, the evidence of the two doctors, P.W.5 and P.W. 11 will have to be looked into. P.W.5 - Dr. Rukmini Bai examined Satish at 2.30 p.m. on 3-4-96 and noticed one injury, namely, incised wound of size 4 cm. x 1 cm. and depth upto intraperitoneal region. According to the said doctor, the above said injury was a grievous one and also fatal. Ex. P. 4 is the injury certificate issued by this doctor and she has also opined that the said injury could be caused by the knife - M.O.3. There is nothing in the cross examination of this doctor to disbelieve the above evidence.

P.W. 11 - Dr. Ghanate Naganath conducted the post mortem examination and it is in his evidence that on 4-4-96, he conducted the post mortem examination on the dead body of Satish and noticed the following external injuries:

1) A stitched vertical wound over the abdomen from the 9th rib anteriorly through the just beside left side of the umbilicus measuring 6 and 1/2".

2) Rigor mortis is set up in all the four extremities head, neck and trunk.

He has further deposed that, after dissection, he noticed the following internal injuries:

Abdomen:

A longitudinal stitched wound over the outer curvature of the stomach with blood oozing from the gaping wound with clots and blood fluid present in stomach and abdominal cavity.

Chest Cavity:

There is plenty of fluid present in the chest cavity.

According to the doctor, the cause of death in his opinion is due to hypovolemic shock due to extensive bleeding as a result of stab injury and doctor has put the time since death between 12 to 24 hours prior to post mortem examination and it is also in his evidence that the injury mentioned in the post mortem report - Ex. P. 12 could have been caused due to assault with the knife -M.O.3 and further the said injury is sufficient in the ordinary course to cause death.

The above medical evidence placed on record leaves no doubt as to the cause of death of the deceased and this fact is further confirmed by the inquest report -Ex.P. 18 placed on record and as spoken to by P.W.15 -P.S.I. Thus, so far as the homicidal death of Satish is concerned, the evidence is above board and we have no hesitation in agreeing with the submission made by the learned Government Pleader that Satish died a homicidal death. In fact, trial Court has also opined at para 8 of its judgment that prosecution has proved the death of Satish as homicidal due to external violence.

Now to the crucial question of who caused death of Satish. Prosecution has placed reliance mainly on Ex.P14, the complaint given by the deceased himself and therefore, in a sense, dying, declaration of the deceased, coupled with the testimony of P.W. 4 who speaks to the oral dying declaration made by the deceased and the recovery of the knife - M.O.3 at the instance of the accused, as well as the blood stained shirt and pant of the accused which were also seized from the house of Mahadevi, mother of P.W.3 - Jaishree.

So far as the complaint - Ex.P. 14 is concerned, it was given by the deceased and there is no dispute with regard to this. P.W. 15 - the P.S.I, who is also the I.O. in the instant case, has deposed in his evidence that after coming to know of Satish being taken to the hospital for treatment, based on the M.L.C. letter - Ex.P.5, he went to the District Hospital at 3.00 p.m. and recorded the complaint of Satish as in Ex.P.14 and he has further deposed that the signature of Satish on the complaint is at Ex. P. 14 (a) in Ex. P. 14 and based on the said complaint, case was registered and F.I.R. was sent to the Court. The contents of the complaint has been already referred to by us while mentioning the facts of the prosecution case itself. Nevertheless, it has to be mentioned at this juncture that, in the complaint it has been specifically stated by the deceased that he was stabbed on left portion of his body by the accused with knife and that led to bleeding injury and there afterwards, the deceased informed his brother and then was taken to hospital for treatment. He has further stated in the complaint that when he was assaulted by the accused with the knife, several persons witnessed the incident and it took place around 1.30 noon.

Therefore, it becomes clear that complaint - Ex.P. 14 was given by the deceased and he has particularly mentioned the name of the accused as well as the role played by the accused and the assault committed by the accused on the deceased. Since, P.W.15 has deposed in his evidence that he recorded the complaint of Satish as per Ex. P. 14, question of the said complaint carrying the endorsement of the doctor as to the fitness of the deceased does not arise and therefore, there was no requirement on the part of the I.O. to have called the doctor to be present when complaint was recorded. Hence, at the stage of recording of the complaint, the circumstances were such that there was no necessity on the part of the I.O. to have secured the presence of the doctor or for that matter to have an endorsement on the complaint itself that the deceased was in a fit state of mind. Therefore, the defect noticed in the complaint by the trial Court does not appear to us to be fatal to the prosecution case.

The question however is whether the complaint partook the nature of dying declaration, following the death of Satish on the very next day itself. The incident happened at 1.30 p.m. on 3-4-96 and the deceased died on the following day morning and the post mortem examination was also conducted at 10.40 a.m. on 4-4-96 and in fact the news of the death had come much earlier at 9.15 a.m. itself. Therefore, hardly within 12 hours of the incident, Satish succumbed to the injuries. Therefore, the contents of the complaint can be taken as the dying declaration made by the deceased. In this regard, we refer to the decision on which learned Government Header placed reliance, namely, Jai Prakash and Others Vs. State of Haryana, , wherein it has been observed by the Apex Court that, where the wife was taken to hospital with burns and her statement was recorded by the Police as complaint and on account of her death thereafter, the same was treated as dying declaration, the Court ruled that, merely because there was no endorsement on the statement by the doctor, because it was recorded as a complaint, that does not give room to doubt the genuineness of the dying declaration made by the deceased. The Apex Court at para 4 of the said judgment has observed that, ''as a Police Officer, he had recorded the complaint and it was not necessary for him to keep the doctor present or obtain any endorsement by the doctor.''

Similar is the situation before us in this case also. At the time when P.W.15 went to the hospital and recorded the complaint of the deceased, the I.O. could not have expected nor was it necessary on his part to keep the doctor present or to obtain the doctor''s endorsement on the complaint. Therefore, in the instant case, infirmity referred to by the trial Court, treating the complaint as if it was dying declaration recorded by the I.O. is wholly incorrect, as at the time of recording the complaint, it was not being recorded by the I.O. as a dying declaration and hence, absence of doctor''s certificate with regard to mental fitness or the absence of the doctor at that time will not give room to doubt the genuineness of the contents of the complaint as made by the deceased before the I.O. Apart from this, from the evidence of the I.O. itself, it becomes clear to us that the deceased made the statement as per Ex. P. 14 and that the deceased was in a fit state of mind is also spoken to by P.W.15 - the I.O. in the course of his evidence. Prom the cross examination of P.W. 15, one cannot draw any inference, even remotely, that the deceased was not in a fit state of mind when he made the complaint before the I.O. Hence, the complaint being treated as dying declaration of the deceased following his death becomes an important piece of evidence pointing to the guilt of the accused.

Apart from the complaint - Ex. P. 14, which partook the nature of dying declaration following the death of the deceased, the prosecution has also placed on record the testimony of P.W. 4 in regard to the oral dying declaration made by the deceased. In the course of his evidence, P.W. 4 - Hanmantha, who is the brother of the deceased has stated on oath that, deceased Satish was having love affair with one Jaishree (P.W.3) and as P.W.3 did not belong to his caste (i.e. P.W.4''s caste) and as the accused was a close relative of Jaishree, the accused had warned Satish by stating that the accused would murder Satish if Satish did not atop his love affair with Jaishree. After deposing to the above effect, P.W. 4 has also deposed that, on 3-4-96 at 10.00 a.m. deceased Satish took another relative to Vijaya Vidyalaya for examination and when P.W.4 was sitting in the shop of his owner in a video cassette shop, at about 2.00 p.m., the deceased Satish came to the said Video shop with bleeding injury on left side of stomach and when enquired, Satish informed P.W. 4 that accused took him for tea and there afterwards accused assaulted the deceased with knife before H.K.E. Society''s office, Gulbarga. P.W. 4 has stated that he took Satish to District Hospital, Gulbarga and informed his parents and also says that on the very same night around 11.30 p.m., Satish had died in the hospital. This witness has also identified the pant M.O.1 and shirt M.O.2 worn by the deceased. In the cross examination of this witness, the defence has not been able to discredit this testimony in so far as the deceased making oral dying declaration before P.W. 4 about the assault committed by the accused with knife on the deceased is concerned doubt, it has been brought out in the cross examination that at the time of admission to the hospital, doctor enquired about the history of the injury sustained by Satish. He also states that Police recorded his statement on the following day.

Thus, from the evidence of P.W.4, the fact of the deceased on receiving injury coming to the shop where P.W. 4 was sitting and informing him orally about the accused assaulting with knife on the deceased has been proved. The evidence on the whole, of this witness, does not indicate any contrary view being taken in regard to the oral dying declaration made by the deceased before P.W.4.

Therefore, the complaint made by deceased as per Ex.P. 14 gets fully corroborated by the testimony of P.W. 4 and as such, the contents of the complaint gets further strengthened from the testimony of P.W. 4. Not only has the prosecution placed on record the dying declaration of the deceased as per the complaint - Ex.P14, but further, the oral dying declaration made by the deceased before P.W. 4 also stands proved beyond all reasonable doubt.

The medical evidence to which we have already made reference at the beginning, corroborates testimony of P.W.4 and testimony of P.W.15 as well as the dying declaration - Ex. P. 14 made by the deceased in the form of his complaint. The medical evidence does not contradict the evidence emerging from the dying declaration, both oral as well as the one made in the form of complaint - Ex. P.14, We are therefore of the considered opinion that the effect of testimony of P.W.4 coupled with complaint Ex.P. 14 and the evidence in regard to Ex. P. 14 clearly establishes the complicity of the accused in committing the murder of deceased Satish.

Apart from the above convincing evidence on record, prosecution has also placed evidence relating to recovery of knife - M.O.3 as well as the blood stained clothes of the accused. P.W.15, the I.O. in the course of his evidence has stated that on 4-4-96, he and the panchas were taken by the accused to the house of Mahadevi, the mother of Jaishree and accused produced button knife - M.O.3, a shirt M.O.7 and one jeans pant -M.O.8 and all these three material objects were found blood stained. This fact is reaffirmed in F.S.L. report produced at Ex. P. 10, which we have perused ourselves and we find that all the material objects sent to the F.S.L. were found blood stained, inclusive of the clothes of the accused as well as the knife - M.O.3. This is a very important circumstance against the accused and in his reply to 313 statement, accused has not denied the recovery of the material objects found in the house of Mahadevi and he has no explanation to offer as to how his clothes also became blood stained. The above material objects were seized under panchanama -Ex.P.21 and (sic) the panch witnesses have turned hostile, we do not see any good reason to disbelieve the version of the I.O. who is a Police Officer and there being nothing in the evidence of P.W.15 to show that he had an axe to grind against the accused. In fact, no such false implication is also suggested to P.W.15 in the course of his cross examination.

Now coming to the contention put forward by the learned Amicus Curiae for the respondent, so far as the ruling referred to by him reported in Sukhar Vs. State of Uttar Pradesh, is concerned, we have carefully gone through the entire judgment in the said case and we find that the facts and circumstances in the said case are entirely different from the one with which we are concerned here. In the said case, there was no evidence as to when the injured Nakkal died nor was there any attempt made by the prosecution to establish as to how Nakkal died or how his death was in any way connected with the injuries sustained by him on the relevant date of occurrence and further more, even it was not known as to when Nakkal had died. Therefore, in our considered opinion, the above decision is not applicable to the case before us as the facts are entirely different.

So far as the decision cited by the learned Counsel with regard to delay in F.I.R. is concerned, in the instant case, the complaint was recorded at 3.00 p.m. in the hospital and the F.I.R. was handed over to P.W. 12 -Muttanna at 5.00 p.m. itself, but however, it reached the Magistrate at 9.15 p.m. on the very same day and this was due to the said Police Constable going to the residence of the S.P. at first instead of going to the residence of Magistrate and thus, there was delay. This is the evidence of P.W. 12 himself and as such, we do not find any infirmity in the prosecution case because, the delay in the F.I.R. reaching the Magistrate will not be fatal unless it is shown there was false implication of the accused. In the instant case, no such foundation of false implication has been laid by the accused and not even a suggestion has been put in this regard to the prosecution witnesses. As such, the delay in F.I.R. reaching the Magistrate is not a serious infirmity.

As far as the oral dying declaration is concerned, learned Amicus Curiae submitted that, statement of P.W.4 was recorded on 4-4-96 after a day''s delay and this gives rise to doubt the credibility of the testimony of P.W. 4. We fail to appreciate this contention of the learned Amicus Curiae. This is because, although statement of P.W.4 was recorded on 4-4-96, the day on which the deceased had died earlier in the morning, the fact is not in dispute that the name of the accused had been mentioned by the injured himself in his complaint which was recorded by P.W. 15 on the very day of the incident i.e. on 3-4-96 at 3.00 p.m. as per Ex.P.14. Therefore, the delay in recording the statement of P.W. 4 is not very fatal to the prosecution case. Apart from this, the prosecution had also examined two eye witnesses to the incident, but the said two eye witnesses, namely, P.W. 1 - Basavaraj and P.W.2 - Ambaji did not support the prosecution case. In so far as the oral dying declaration is concerned, as already examined by us, testimony of P.W. 4 appears to us to be trust worthy and reliable. His testimony fully corroborates the contents of the complaint - Ex.P.14 recorded by P.W.15, the I.O. in the hospital. The medical evidence also supports the above evidence placed on record. The contention that deceased could not have made the dying declaration as per Ex.P.14 also does not carry any force, because there is positive evidence of P.W. 15, the I.O. to the effect that the deceased was in a position to talk. Therefore, we do not find any serious infirmity in the prosecution case.

In this connection, the decisions referred to by the learned Government Pleader will have to be pressed into service. In the case of Paras Yadav and others Vs. The State of Bihar, , the Apex Court has observed that, ''where on facts it was found that the statement made by the deceased before Police Officer was taken as dying declaration following death of the deceased and where the evidence also established that the deceased was conscious while making such statement, omission on the part of the I.O. to record regular dying declaration of the deceased is immaterial, more so, when dying declaration and the prosecution version was corroborated by the medical evidence. Hence, the Court ruled that the accused is liable for conviction for the offence of murder."

In another decision, in the case of Ghanshyamdas v. State Of Assam reported in 2006 2 SCC 331, the Apex Court observed thus:

where the deceased made a oral dying declaration to his companion and uttered a few words that the accused "cut him" and then became unconscious and died on the way to hospital, the possibility of the deceased saying a few words before he became unconscious cannot be ruled out and further, where there was no reason as to why the prosecution witnesses would give false version to implicate the accused, the oral dying declaration was held to be reliable.

The above two decisions are also applicable to the case on hand and the oral dying declaration made by the deceased before P.W. 4 is amply supported by the medical evidence of the two doctors and the evidence of the I.O. -P.W. 15 both with regard to the recording of the complaint - Ex.P. 14 as well as the recovery of the weapon M.O.3 and the shirt and pant of the accused, all of which were found blood stained and as such, in our view, the prosecution has proved its case beyond all reasonable doubt. We have no hesitation in coming to the conclusion that the evidence on record clearly establishes that it was the accused who has committed the murder of Satish by stabbing him with the knife - M.O.3 and thus, the injury caused was fatal enough leading to death of deceased.

We therefore opine that the trial Court has totally misread the evidence on record and its appreciation of evidence is contrary to the well established principles of law and as such, the view taken by the trial Court is not only unreasonable, but is also perverse and as such, interference by us with the order of acquittal, in this appeal becomes inevitable. In this regard, we also place reliance on the decision of the Apex Court in the case of Anil Kumar v. State of U.P. reported in 2005 SCC (Cri.) 178, wherein the Court made the following observations:

The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not.

We therefore hold that the trial Court was in error in acquitting the accused person and as such, we set aside the order of acquittal passed by the trial Court and convict the accused for the offence of murder punishable u/s 302 of the IPC.

We have heard learned Counsel for the parties on the question of sentence. Learned Amicus Curiae, Sri. A.R. Desai submitted that, as this Court has come to the conclusion that the accused had committed the crime in question, yet in view of the facts and circumstances of the case, the act of the accused at the most may attract offence u/s 304 part II of the IPC, but not one u/s 302 of the IPC and further, he submitted that, as ten years have elapsed from the date of incident, much development must have taken place in the life of the accused and this fact may also be taken into account while considering the sentence. On the other hand, learned Government Pleader, Sri. Nawaz submitted that the act of the deceased squarely falls within Section 300 of the IPC, because the accused had the knowledge that the injury that is caused by him will lead to death of the deceased and as the doctor has opined that the injury noticed was fatal in nature and was sufficient in the ordinary course to cause death, question of 304 part II coming into play will not arise and as far as the offence is concerned, in view of the fatal blow given to the vital part of the body, maximum sentence as prescribed by law be imposed upon the accused - respondent.

Having heard both sides as above, and on a careful examination of the pros and cons and particularly taking note of the contents of the complaint - Ex.P. 14, as well as the testimony of P.W.4 and the medical evidence on record and the further fact that the accused had once warned the deceased that he would take away the life of the deceased if the deceased had continued his love affair with P.W.3 - Jaishree, the manner in which the accused has done the act, does not give an impression that the case falls within Section 304 part II of the IPC, but in our view, it is a case which falls squarely within the ambit of murder punishable u/s 302 of the IPC.

In this connection, we also placed reliance on the latest decision of the Apex Court. In the case of Settu and Ors. v. State Of Tamil Nadu AIR 2006 SCW 4113 dealing with Section 300 and 304 part I of the IPC, the Apex Court has observed thus:

Under clause thirdly of Section 300, IPC, culpable homicide is murder, if both the following conditions are satisfied: i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury, which in the ordinary course of nature, was sufficient to cause death, viz., that the injury found to be present the injury that was intended to be infected. Thus, even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder''

In the result, we proceed to pass the following order:

ORDER

The State appeal is allowed.

The judgment and order of acquittal passed by the trial Court acquitting the accused - respondent herein is set aside.

We convict the respondent - accused for the offence of murder punishable u/s 302 of the IPC and he is sentenced to undergo imprisonment for life and in addition, he shall also pay a fine of Rs. 10,000/- and in default of payment of fine, to undergo further R.I. for a period of one year.

The fine amount if collected, shall be paid to either of the parents of the deceased as compensation u/s 357 of the Cr.P.C.

We direct the accused to forthwith surrender before the trial Court to undergo the sentence imposed upon him as above.

In the event of his failure to do so, we further direct the trial Court to take immediate and effective steps to secure the presence of the accused - respondent, so as to ensure that he serves out the sentence imposed upon him as above.

The respondent - accused is also entitled to set off as per Section 428 of the Cr.P.C.

We also place on record our appreciation for the effective assistance rendered by the learned Counsel Sri. A.R. Desai as Amicus Curiae for the respondent and we therefore fix his fee at Rs. 5,000/- and we direct the Registry to make arrangements to pay the fee at the earliest.

It. is ordered accordingly.