LexSHAUKAT versus STATE OF UTTARANCHAL
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(2010] 4 S.C.R. 873 SHAU KAT v. STATE OF UTTARANCHAL (Criminal Appeal No. 757 of 2005) APRIL 22, 2010 [J.M. PANCHAL AND DEEPAK VERMA, JJ.] Penal Code, 1860: A B s. 300 'Thirdly', Exception 4, and ss. 302, 307, 304(part c 1) and 308 - Dispute regarding digging of earth from village pond by the victim - Scuffle between father of accused and the victim - On exhortation by the father, accused giving two knife blows to the victim resulting in his death - The witness who tried to save the victim sustained grievous injuries at the 0 hands of accused - Conviction by trial court u/ss 302 and 307 /PC - High Court holding Exception 4 to s. 300 applicable and substituting conviction of accused to one u/ss 304(part-I) and 308 - HELD: The record established motive for the crime - There is no evidence to suggest a sudden fight between · E accused and deceased or that the act was done by accused in heat of passion - Premeditation to .cause the death stands proved -Accused took undue advantage while delivering fatal blow to the deceased - Thus, ingredients of Exception 4 to s. 300 not satisfied - On the other hand, case falls within four corners of clause 'Thirdly' of s.300 - Conclusion of High F Court that accused was guilty uls 304(part I) is erroneous - Further, in view of grievous injuries sustained by the witness in the manner established by prosecution evidence, offence committed by accused falls u/s 307 and not u/s 308 /PC - Conviction and sentence u/s 304 (part I) and s. 308 as G recorded by High Court, set aside and that recorded by trial court u/ss 302 and 307 restored. The appellant in Criminal Appeal No. 757 of 2005 and 873 H 874 SUPREME COURT REPORTS (2010J 4 S.C.R. A his father 'S' were prosecuted for committing murder of one 'W' and attempting to commit murder of his brother, 'R'. The prosecution case was that the deceased used to dig earth from the village pond for maintenance of his house. This was objected to by the accused persons as B it would damage their land which was nearby. On the day of the incident, inspite of the protest by the accused persons, 'W' started digging earth from the pond. A scuffle ensued between 'W and 'S'. On the exhortation given by 'S', the appellant took out a knife and gave two c blows on the back and chest of 'W', who fell down and died on the spot. The appellant also injured 'R', who tried to save 'W'. The appellant managed to escape while his father was caught by the villagers who had meanwhile reached the scene. Injured 'R' was referred to hospital. 0 His medical examination revealed that he sustained grievous injuries. The trial court convicted the appellant u/ss 302 and 307 IPC. Accused 'S' was convicted u/ss 302/34 and 307/34 IPC. During the pendency of appeal before the High Court, accused 'S' died. The High Court convicted the appellant u/s 304 (part I) and 308 IPC. The E convict filed Criminal Appeal No. 757 of 2005; whereas the State filed Criminal Appeal No. 758 of 2005. Allowing the appeal filed by the State and dismissing that of the accused, the Court F HELD: 1.1. The fact that the deceased died a homicidal death is not disputed and has been firmly established. The said fact stands amply proved by the testimony of PW-9, the doctor who conducted the autopsy. The evidence of three eye-witnesses, including G the first informant and the injured, would indicate that when the deceased was digging earth, he was prevented from doing so by accused 'S' whereupon a scuffle ensued between the deceased and accused 'S'. All the witnesses have specifically stated that accused 'S' told his son, the H SHAUKAT v. STATE OF UTTARANCHAL 875 appellant, to kill 'W'. Thereupon the appellant took out a A knife from his pocket and inflicted a blow on the back and another on the chest of 'W' whereupon the victim fell down and died on the spot. The eye-witness account further establishes that 'R' tried to save his brother but the appellant also injured him with the knife. As per the B medical evidence on record as proved by PW4, the surgeon of the Primary Health Centre, injured 'R' had received as many as six injuries. [para 10-11] [884-D-E- G; 885-C-D] 1.2. On reappraisal of the testimony of the three eye witnesses, this Court finds that the version presented by them, before the Court inspires confidence. Though each c of them was subjected to searching cross-examination, nothing could be brought on record
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