SHAUKATversusSTATE OF UTTARANCHAL

                   (2010] 4 S.C.R. 873


                        SHAU KAT                                A
                             v.
                STATE OF UTTARANCHAL
            (Criminal Appeal No. 757 of 2005)
                     APRIL 22, 2010
                                                                B
      [J.M. PANCHAL AND DEEPAK VERMA, JJ.]

    Penal Code, 1860:

    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.
  His medical examination revealed that he sustained
0
  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
                                                                c
    witnesses, this Court finds that the version presented by
    them, before the Court inspires confidence. Though each
    of them was subjected to searching cross-examination,
    nothing could be brought on record to impeach
    credibility of any of them. The evidence of the eye- D
    witnesses further makes it clear that there are no major
    contradictions or omissions. In the circumstances, this
    Court is of the opinion that neither the trial court nor the
     High Court committed any error in placing reliance on the
     testimony of the three eye-witnesses for the purpose of E
     coming to the conclusion that the appellant was the
     author of the injuries sustained by the deceased and
     injured 'R'. [para 11] [885-D-G]

         2. As regards the plea of self-defence, the evidence F
    on record does not indicate that any assault was
    mounted either on the appellant or his father by the
    deceased or injured 'R'. On the contrary, the evidence
    shows that the appellant and his father 'S' went to the
    place where deceased was digging earth, and 'S' picked G
    up a quarrel with him. On the facts and in the
    circumstances of the case, this Court finds that plea of
    self-defence is not made out by the appellant. [para 15]
    [888-D-F]

J       3.1. Exception 4 to s.300 IPC would be attracted only   H
~
    876    SUPREME COURT REPORTS              [2010] 4 S.C.R.

A if four requirements are satisfied, namely, (1) it was a
   sudden fight; (2) there was no premeditation; (3) the act
  was done in a heat of passion; and (4) without the
   assailant having taken any undue advantage or acted in
  a cruel manner. This Court notices that several important
B aspects of the matter have been totally lost sight of and
  ignored by the High Court while recording conviction of
  the appellant u/ss 304 (part I) and 308 IPC. The facts of
  the instant case establish beyond doubt that there was
  premeditation between the appellant and his father to
c cause the death of the deceased and to execute the threat
  given by accused 'S' to the deceased near the mosque
  at about 5.30 in the morning. Both of them followed the
  deceased who had gone to the pond for the purpose of
  digging the earth. Further, the appellant carried with him
  lethal weapon like knife while following the deceased. The
0
  record amply establishes that motive for the crime was
  digging of earth by the deceased near the field of the
  appellant. There is nothing on the record even to
  remotely suggest that a sudden fight took place between
  the appellant and the deceased. Premeditation to cause
E death of the deceased stands proved by reliable evidence
  adduced by the prosecution. Nothing is brought on
  record to show that the act of mounting fatal attack on
  the deceased was done by the appellant in a heat of
  passion. The evidence adduced positively proves that
F the appellant took undue advantage while uelivering fatal
  blow to the deceased. The four requirements for
  applicability of Exception 4 to s.300 IPC are not satisfied
  at all. On the other hand, the facts proved bring the case
  of the appellant within four corners of clause 'Thirdly' of
G s.300 IPC and it will have to be held that the appellant
  committed murder of the deceased punishable u/s 302
  !PC.Therefore, the conclusion of the High Court that the
  appellant would be guilty u/s 304 (Part-I) IPC, being
  erroneous in law, is liable to be set aside. [para 16-17]
H [889-A-C; 890-A-G]                                            .....
       SHAUKAT v. STATE OF UTTARANCHAL                 877


     3.2. As far as conviction of the appellant for causing A
injuries to 'R' is concerned, the medical report indicated
six injuries on the person of 'R'. The medical officer has
stated that the~t two injuries sustained by the injured
were grievous in nature. This assertion has gone
unchallenged and was never disputed by the defence. s
Causing an incised wound 10 cm x 7 cm x bone deep
with fracture of left side rib with tear of pleura on the left
side chest, and another incised wound 6 cm x 4 cm bone
deep with fracture of under lying bone on left side of back
just at the iliac crest, cannot be regarded as bringing the    c
case of the appellant within the purview of s. 308 IPC.
There is no manner of doubt that the injuries were
caused to 'R' with a view to committing his murder. The
finding recorded by the High Court that the appellant had
caused injuries to 'R' in an attempt to escape, is not
                                                               0
borne out from the record of the case at all. Therefore,
this Court is of the firm opinion that the appellant could
not have been convicted u/s 308 for causing injuries to
injured 'R', but is liable to be convicted u/s 307 IPC. [para
 18] [893-F-H; 894-A-C-D].
                                                               E
      4. The appellant is held guilty u/s 302 IPC for
 commission of murder of the deGeased and u/s 307 for
 altempti-ng_ to commit murder of injured 'R'. The
sentences, as imposed-on the appellant by the trial court
are restored. [para 19] [894-E-F]                              F

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 757 of 2005.

     From the Judgment & Order dated 24.12.2004 of the High
Court of Uttaranchal at Nainital in Criminal Appeal No. 1034   G
of 2001.

                           WITH
Criminal Appeal No. 758 of 2005.
                                                               H
    878      SUPREME COURT REPORTS                  [2010] 4 S.C.R.


A         Ujjal Singh, J.P. Singh, R.C. Kaushik for the Appellant.

          Abhay Prakash Sahay, J.K. Bhatia for the Respondent.

          The Judgment of the Court was delivered by

B         J.M. PANCHAL, J. 1. The appellant i11 Criminal Appeal
    No.757 of 2005 with his father Sabbir, son of llahi Bux was
    charged for commission of offences punishable under Section
    302 read with Section 34 Indian Penal Code (IPC) and Section
    307 read with Section 34 IPC for causing death of Wilayat and
c   attempting to commit murder of Rahmat. The learned Sessions
    Judge, Nainital by judgment dated September 18, 1982 passed
    in Sessions Trial No.17 of 1981 convicted the appellant under
    Sections 302 and 307 for causing murder of deceased Wilayat
    and for making attempt to murder Rahmat and sentenced him
D   to life imprisonment for commission of offence punishable
    under Section 302 as well as R.I. for ten years for commission
    of offence punishable under Section 307 IPC. His father Sabbir
    was convicted under Section 302 read with Section 34 IPC and
    Section 307 read with Section 34 IPC. Mr. SabblF was
E   sentenced to life imprisonment for commission of offence under
    Section 302 read with Section 34 IPC and R.I. for seven years
    for commission of offence under Section 307 read with Section
    34 IPC.

          2. Feeling aggrieved, the appellant and his father preferred
F   Criminal Appeal No.1034 of 2001 in the High Court of
    Uttaranchal at Nainital. During the pendency of the said appeal,
    Sabbir, who was father of the appellant, expired. Therefore, the
    appeal filed by the appellant was considered by the High Court.
    The Division Bench of the High Court, by judgment dated
G   December 24, 2004, held the appellant guilty for commission
    of offence of culpable homicide not amounting to murder
    punishable under Section 304 Part-I IPC and sentenced him
    to undergo R.I. for 10 years and a fine of Rs.5,000/- in default
    R.I. for one year. The High Court also found the appellant guilty
H   for commission of offence under Section 308 IPC and
        SHAUKAT v. STATE OF UTIARANCHAL                       879
                [J.M. PANCHAL, J.]
sentenced him to R.I. for two years and fine of Rs.1,000/- in        A
default R.I. for three months. Feeling aggrieved, the appellant
has filed Criminal Appeal No.757 of 2005 by Special Leave.

     3. As noticed earlier, the appellant was acquitted of the
offences punishable under Sections 302 IPC and Section 307
                                                                     B
IPC. Therefore, feeling aggrieved by the said acquittal, the State
of Uttaranchal has filed Criminal Appeal No.758 of 2005 by
Special Leave.

     4. Both the appeals arise out of the common judgment
dated December 24, 2004 rendered by the Division Bench of            C
the High Court of Uttaranchal at Nainital. Therefore, this Court
propos,es to dispose them of by this common judgment.

      5. The facts emerging from the record of the case lie in
narrow compass. The appellant is resident of Village Darauki         D .
Madhaia, P.S. Kichha, District Nainital. In the village, there is
a Panchayat pond. The length of the pond from east to west is
about 40 to 50 paces whereas its width from north to south is
about 25 to 30 paces. The said pond is meant for common use
of all the villagers. The people of the village used to take earth   E
from the said pond for maintenance of their houses and other
household purposes. The field of the appellant is located on the
southern side of the pond. Between the pond and the field of
the appellant, there is a palm tree. The boundary of the field
belonging to the appellant is extended upto the said palm tree
after which the boundary of the pond begins. On the western          F
side of the pond, there is a house of one Sagir and on the west
side' of the said house, there is a passage whereas on the west
side of the passage there is abadi of the village. Injured Rahmat
and depeased Wilayat were also residents of this very village.
From the place which is near to the field of the appellant,          G
deceased Wilayat used to dig and take earth from the pond.
This was not approved by Sabbir who was father of the
appellant and he used to object to the digging of soil from the
pond on the ground that the field belonging to him would get
damaged. The incident in question took place on October 13,          H
    880      SUPREME COURT REPORTS                   (2010] 4 S.C.R.


A 1980. On that day, in the morning at about 5.00 a.m., Rahmat,
  with his deceased brother Wilayat and Chhote went for offering
  prayers in a mosque. After offering Namaz, they came out from
  the mosque at about 5.30 a.m. Rahmat and his brother Chhote
  were residing in the same house and the house of deceased
B Wilayat was situated leaving one house from their house. The
  appellant with his father was residing near the mosque. The
  appellant and his father stopped Wilayat and Rahmat and told
  that they had taken earth from the place near their field and if
  earth was again taken from the same place, they would be
c appropriately dealt with. Thereupon deceased Wilayat replied
  the appellant and his father that their field was upto the palm
  tree whereas pond was common for the villagers and he would
  bring soil from the pond even on that day. On hearing such
  reply, the appellant told Wilayat that he would see Wilayat on
  the spot. Thereafter, the three brothers came to their respective
0
  houses. Deceased Wilayat, after taking a spade, went towards
  the pond for bringing soil at about 5.45 a.m. After some time,
  Chhote came out from ~is house and witnessed that deceased
  Sabbir and the appellant were going speedily towards the
  pond. As Chhote saw the appellant and his father going speedily
E towards the pond, he decided to go to the place where his
  deceased brother Wilayat was digging the earth to see that
  nothing untoward happened to him. Chhote was also
  accompanied by his brother Rahmat. When they reached the
  pond, they saw that their brother Wilayat was digging earth in
F the pond from 10 to 12 paces away from the field of the
  appellant. Accused Sabbir forbade Wilayat from digging the soil
  but Wilayat continued digging the soil. Thereupon a scuffle
  ensued between accused Sabbir and deceased Wilayat. When
  scuffle was so going on, the accused Sabbir asked the
G appellant to kill Wilayat by saying as to what he was looking
  at. On this, the appellant who was already armed with a knife,
  took out the same from his pant's pocket and gave one blow
  on the back of Wilayat. On receipt of the knife blow, Wilayat
  immediately turned. Thereupon, the appellant inflicted another
H injury by knife on left side of chest of Wilayat from the front side.
       SHAUKAT v. STATE OF UTIARANCHAL                     881
               [J.M. PANCHAL, J.]

On sustaining injuries, Wilayat fell down in the mud. Rahmat tried A
to catch hold of the appellant but the appellant inflicted injuries
by knife on Rahmat also. Chhote also tried to catch hold of the
appellant but accused Sabbir caught hold of collar of the shirt
of Chhote and in the meantime the appellant made his escape
good from the place of incident. Because of the hubbub created B
by the incident; Ms. Banu Begum, Pattu Wilayat, Mohd. Yasin,
Bafati Shah etc. reached the place of incident. They found that
Wilayat had died on the spot. They also noticed that Rahmat
who had attempted to rescue his brother Wilayat was also
assaulted by the appellant with knife as a result of which c
Rahmat had fallen down. Accused Sabbir had also made
attempt to flee from the place of incident but Md. Yasin with
others had caught hold of the legs of Sabbir and, therefore,
Sabbir had also fallen down and dashed with another palm tree
and sustained superficial injuries. Thereafter, those people who 0
had gathered near the place of incident had tied Sabbir with
the tree. A cart was summoned at the place of incident and
 Chhote along with injured Rahmat had gone to Kichha where
 he had met Sayed Mohammed Saleem who had reduced the
 information into writing. After the complaint was scribed, Chhote E
 had put his thumb mark thereon and went to the Police Station.
 At the Police Station, the complaint was presented. In view of
 the contents of the First Information Report, offences punishable
 under Section 302 read with Section 34 IPC and Section 307
 read with Section 34 IPC were registered and investigation
 commenced. The Investigating Officer went to the place of F
 incident and held inquest on the dead body of Wilayat in the
 presence of Panchas. He also made arrangement for sending
 the dead body of the deceased to hospital for post mortem
 examination. He recorded the statements of those persons who
 were found to be conversant with the facts of the case. G
 Incriminating articles were seized from the place of incident.
 Injured Rahmat was referred to hospital for treatment. His
 condition was p'recarious and, therefore, his statement could
 not be recorded. The accused Sabbir was arrested from the
 spot. The appellant was also arrested on the same day. After H
    882     SUPREME COURT REPORTS                  [2010] 4 S.C.R.


A   investigation was over and chargesheet was submitted, the
    case was committed to the Court of learned Sessions Judge,
    Nainital for trial.

         6. The learned Sessions Judge framed charge against the
    appellant for commission of offences punishable under
8
    Sections 302 and 307 IPC and against accused Sabbir for
    commission of offences punishable under Section 302 read
    with Section 34 IPC and Section 307 read with Section 34 IPC.
    The charge was read over and explained to the appellant and
    his father. Both of them pleaded not guilty to the same.
C   Therefore, the prosecution examined witnesses and produced
    documents to prove its case against the appellant and his
    father. After recording of evidence of the prosecution witnesses
    was over, the learned Judge explained to the appellant and his
    father the circumstances appearing against them in the
D   evidence of prosecution and recorded their further statements
    as required by Section 313 of the Code of Criminal Procedure,
    1973. In their further statements, the appellant and his father
    pleaded that they were innocent. However, no witness was
    examined by ariy of them in support of their defence that they
E   were innocent.

         7. On appreciation of the evidence adduced by the
    prosecution, the learned Judge held that it was proved by the
    prosecution beyond reasonable doubt that the deceased
F   Wilayat had died a homicidal death. The learned Judge
    considered the eye-witnes& .. account tendered by the first
    informant Chhote, injured Rahmanrs WEilU-S!S witness Md. Yasin
    and found that their evidence was reliable. Plac~ reliance on
    the testimony of the abovementioned witnesses, the learned
    Judge held that the apraellant had committed murder of
G   deceased Wilayat and had made attempt to murder injured
    Rahmat and was, therefore, liable to be convicted under
    Section 302 and 307 IPC. The learned Judge further held that
    accused Sabbir had shared common intention with the
    appellant to cause death of the deceased Wilayat and had
H
       SHAUKAT v. STATE OF UTTARANCHAL                      883
               [J.M. PANCHAL, J.]
attempted to murder injured Rahmat and, therefore, he was           A
liable to be convicted for commission. of offences punishable
under Section 302 read with Section 34 IPC and Section 307
read with Section 34 IPC. Accordingly, the appellant and his
father were convicted. Thereafter, the appellant and his father
were heard on the question of___sentence. After hearing the         B
appellant and his father as well as learned Additional Public
Prosecutor and the defence counsel, the appellant was
sentenced to life imprisonment for commission of offence
punishable under Section 302 as well as R.I. for ten years for
commission of offence punishable under Section 307 IPC              c
whereas his father Sabbir was sentenced to life imprisonment
for commission of offence punishable under Section 302 read
with Section 34 IPC and RI. for seven years for commission
of offence punishable under Section 307 read with Section 34
IPC.
                                                                    D
     8. Feeling aggrieved, the appellant and his father preferred
Criminal Appeal No.1034 of 2001. During the pendency of the
appeal, the father of the appellant, i.e., Sabbir expired and,
therefore, the case of the appellant alone was considered by
the Division Bench of the High Court of Uttaranchal at Nainital.    E
The High Court found that there was no enmity between the
parties nor there was premeditation between the appellant and
his father for committing the crime. According to the High Court,
the quarrel took place suddenly under the heat of passion
because the time between the quarrel and the fight was stated       F
to be few minutes. The High Court was of the view that the
quarrel had taken place on account of sudden provocation in
which the appellant had caused injuries to the deceased with
knife and, therefore, the appellant had committed the. offence
of culpable homicide not amounting to murder punishable under       G
Section 304, Part I of the IPC. The appellant was accordingly
convicted and was sentenced to undergo R. I. for ten years and
a·fine of Rs.5,000/- in default R.I. for one year. The High Court
was further of the view that the injuries on the person of Rahmat
indicated that Rahmat had tried to apprehend the appellant          H
    884     SUPREME COURT REPORTS                  [2010] 4 S.C.R.

A when the appellant was trying to make his escape good from
  the place of occurrence and, therefore, it was natural for the
  appellant to inflict injuries on the person of Rahmat in order to
  make his escape good. The High Court, therefore, concluded
  that the appellant had, in fact, no intention to make an attempt
B to commit murder .of Rahmat and had committed offence
  punishable under Section 308 IPC. Accordingly, the High Court
  convicted the appellant under Section 308 IPC and sentenced
  him to R. I. for two years and a fine of Rs.1,000/- in default R.I.
  for three months by judgment dated December 24, 2004. The
c above judgment has given rise to the two appeals.
         9. This Court has heard learned counsel for the parties at
    length and considered the documents forming part of the appeal
    as well as original record summoned from the Trial Court.

D        10. The fact that deceased Wilayat died a homicidal death
  is not disputed before this Court. The said fact stands amply
  proved by the testimony of PW9, Dr. S.C. Mishra. According
  to the Medical Officer, Haldwani, he had conducted autopsy on
  the dead body of deceased Wilayat on October 14, 1980 and
E found a stab wound measuring about 8 cm x 4 cm x cavity deep
  over left side of chest about 2 cm below left nipple and one
  incised wound measuring about 6 cm x 2 cm x muscle deep in
  left luminar region about 8 cm above head of femur. The injuries
  mentioned by Dr. Mishra are also noted in the post mortem
F report prepared by him and produced on the record of the case
  at Exhibit KA-19. It is nobody's case that the deceased
  received the abovementioned injuries accidentally. Nor it is the
  case of anyone that the deceased had received those injuries
  in an attempt to commit suicide. On the facts and in the
G circumstances of the case, this Court is of the definite opinion
  that the fact that the deceased had died a homicidal death is
  firmly established.
      11. The evidence of the three eye-witnesses, namely,
  Chhote, who was the first informant as well as that of injured
H Rahmat and witness Md. Yasin would indicate that when the
        SHAUKAT v. STATE OF UTTARANCHAL                      885
                [J.M. PANCHAL, J.]
  deceased was digging earth, he was prevented from doing so A
   by accused Sabbir whereupon a scuffle had ensued between
  the deceased and accused Sabbir. All the witnesses have
  specificall.y stated that accused Sabbir had told his son, i.e.,
  the appellant not to be a passive spectator and kill the
   deceased. According to the witnesses, the appellant had B
   thereupon taken out knife from his pant's pocket and inflicted
   first blow on the back of the deceased. Their evidence further
   shows that on receipt of the blow on his back, the deceased
   had immediately turned and, therefore, another blow was
   inflicted by the appellant on the chest of the deceased c
   whereupon the deceased had fallen down on the ground and
  died on the spot. The eye-witness account further establishes
   that injured Rahmat had tried to save his brother Wilayat but
   the appellant had also injured him with the knife. As per the
   medical evidence on record, injured Rahmat had received as 0
   many as six injuries. This is amply proved by PW4, Dr. Yogesh,
   Mishra, who was the then surgeon, Primary Health Centre,
   Kichha. On reappraisal of the testimony of the three witnesses,
   this Court finds that the version presented by them before the
   Court inspires confidence. Though each of them was subjected
   to searching cross-examination, nothing could be brought on E
   record to impeach credibility of any of them. It is relevant to
   notice that one of the eye-witnesses was injured Rahmat
 . himself. Therefore, his presence at the place of incident can
   hardly be doubted. He being real brother of the deceased and
   he himself having received injuries, would not allow the real F
   culprit to go scot free and involve innocent persons falsely. The ·
• evidence of the eye-witnesses further makes it clear that there
   are no major contradictions or omissions. Under the
   circumstances, this Court is of the opinion that neither the Trial
   Court nor the High Court committed any error in placing reliance G
   on the testimony of the three eye-witnesses for the purpose of
   coming to the conclusion that the appellant was the author of
   the injuries sustained1by the deceased and injured Rahmat.

      12. The learned counsel for the appellant in Criminal         H
    886      SUPREME COURT REPORTS                [2010] 4 S.C.R.


A Appeal No. 757 of 2005 argued that the accused Sabbir had
  received two injuries whereas the appellant had sustained one
  injury and, therefore, injuries having been caused to the
  deceased in exercise of right of self-defence, the conviction of
  the appellant under Section 304, Part-I for the death of the
B deceased and under Section 308 IPC for causing injuries to
  Rahmat should be set aside. On the other hand, the learned
  Additional Public Prosecutor vehemently argued that the Trial
  Court had given cogent and convincing reasons for the purpose
  of coming to the conclusion that the appellant is guilty under
c Section 302 IPC for causing murder of the deceased Wilayat
  and under Section 307 for attempting to commit murder of
  injured Rahmat and the High Court was not justified in coming
  to the conclusion that the appellant had committed offence
  punishable under Section 304, Part I IPC as far as murder of
0 the  deceased was concerned and offence punishable under
  Section 308 IPC for causing injuries to injured Rahmat.

      13. In order to determine whether the appellant is guilty
  under Section 302 for causing murder of the deceased and
  under Section 307 for attempting to commit murder of injured
E Rahmat, it would be necessary to consider the relevant facts
  which have emerged from the record of the case.

       14. The learned counsel for the appellant would argue that
  the injuries sustained by the appellant and his father would
F indicate that the appellant had murdered deceased Wilayat and
  injured witness Rahmat, in exercise of right of self-defence as
  a result of which conviction under Section 304, Part-I for murder
  of the deceased and under Section 308 IPC for causing injuries
  to the injured Rahmat should not be interfered with by this Court
G in State appeal. While considering these submissions, this
  Court finds that PW4, Dr. Yogesh Mishra had examined
  accused Sabbir on October 13, 1980 and had found the
  following injuries :

          "(i)   Contusion 2 cm x 1 cm present on the noce, Yi cm
H                below the bridge of nose.
        SHAUKAT v. STATE OF UTTARANCHAL                     887
                [J.M. PANCHAL, J.]
     (ii)   Contusion 2 cm x 3 cm present on the right of face       A
            1 cm below the right eye."

     The testimony of Dr. Yogesh Mishra further makes it very
clear that on the same day he had also examined the appellant
and found following injury :                                         B

      (i)   Incised wound 3 cm x 0.5 cm x skin deep present
            on the right palm on middle side 6 cm above ulnar
            styloid process."

     The doctor has stated in his testimony that the two injuries    c
sustained by accused Sabbir were simple and could have been
caused by dash with the palm tree. As far as injury sustained
by the appellant is concerned, it was mentioned by the same
medical officer that the injury could have been caused by sharp
weapon like knife or could have been self-inflicted. This medical    0
officer was cross-examined on behalf of the appellant and a
suggestion was made to him that the injury sustained by the
appellant could have been caused by a sharp side of the spade.
It may be mentioned that this suggestion was made because
according to the prosecution witnesses, the deceased was             E
digging earth with a spade. However, the medical officer has
in terms stated that the injuries sustained by the appellant could
not have been caused by the sharp side of a spade as it could
have been caused by a sharper weapon than spade and that
the spade was not sharp enough to cause the injury sustained
by the appellant. From the record, it is clear that the learned      F
Sessions Judge had put a question to the witness to elicit
answer from him as to whether the sharp edged spade used
by the deceased for digging the earth, produced as Exhibit-I
could have caused the injury sustained by the appellant. The
medical Officer, after looking to the spade, answered that its       G
sharpness was not such so as to cause injury sustained by the
appellant. The medical officer was further questioned by the
learned counsel for the appellant and it was replied by him that
if the spade had been used to cause injury to the appellant, it
would have caused an abrasion and not the incised wound.             H
    888     SUPREME COURT REPORTS                  [2010] 4 S.C.R.


A   After explaining the difference between incised wound and an
    abrasion, namely, that incised wound contains edge and also
    intermediary tissue and all those are clean cut whereas in case
    of an abrasion, skin tissues slough superficially, it was
    mentioned by the medical officer that Exhibit-I was not that
B   sharp so as to cause incised wound sustained by the appellant.
    It was suggested to the medical officer that Exhibit-I, spade,
    before it was opened in the court was kept at different places
    for a period of about 1~ years and, therefore, its edge might
    have become blunt, but this suggestion was emphatically
c   denied by him. As far as injuries sustained by accused Sabbir
    are concerned, it was mentioned by this witness in cross-
    examination that both the injuries sustained by Sabbir could
    have been caused by only one dash with any blunt object.

         15. A fair reading of the testimony of the medical officer
D   makes it abundantly clear that the accused Sabbir had
    sustained two superficial injuries when he had hit the palm tree
    whereas the injury sustained by the appellant was self-inflicted
    one. The evidence on record does not indicate that any assault
    was mounted either on the appellant or his father by the
E   deceased or injured Rahmat. On the contrary, the evidence
    shows that the appellant and his father had gone to the place
    where deceased was digging earth and accused Sabbir had
    picked up quarrel with him. On the facts and in the
    circumstances of the case, this Court finds that plea of self-
F   defence is not made out by the appellant and, therefore,
    contention that the finding recorded by the High Court that he
    is guilty under Section 304, Part-I IPC for causing death of the
    deceased and under Section 308 IPC for causing injuries to
    Rahmat should be sustained cannot be accepted.
G        16. As far as the High Court is concerned, this Court finds
    that the High Court has recorded a finding that there was no
    enmity between the appellant and his father on one hand and
    the deceased and the injured on the other nor was there
    premeditation on the part of the appellant and his father to
H
        SHAUKAT v. STATE OF UTTARANCHAL                       889
                [J.M. PANCHAL, J.]
 murder the deceased and as the quarrel had taken place all of        A
 a sudden under the heat of passion, the appellant would be guilty
 under Section 304, Part I IPC for causing death of the deceased
 and under Section 308 for causing injuries to injured Rahmat.
 However, this Court notices that several important aspects of
 the matter have been totally lost sight of and ignored by the High   B
 Court while recording abovementioned findings. To begin with,
 the reliable testimony of three witnesses has established that
 in the morning at about 5.30 a.m. on the date of the incident,
 the accused Sabbir and the appellant had asked the deceased
 not to dig earth from the place which was near their field           c
 whereupon the deceased had told him that pond was meant
 for general public and, therefore, he would dig the earth from
 the same place. Two brothers of the deceased, namely, Chhote
 and Rehmat have in1terms stated that the accused Sabbir had
 threatened that he would not spare the deceased. The evidence
                                                                      0
 of the witnesses would further show that the deceased had
 gone in the early morning to dig the earth and thereupon the
 appellant and his father had followed him. What is relevant to
 mention is that the appellant was carrying a knife in his pant's
 pocket and this fact was known to his father Sabbir, who had
 asked him to kill the deceased. As soon as the appellant was         E
 asked by his father to kill the deceased, he had taken out the
 knife from his pant's pocket and inflicted a blow on the back of
 the deceased. The evidence further establishes that on receipt
 of the blow, the deceased had turned and the appellant who
 was bent upon obeying directions of his father to kill the           F
 deceased had inflicted another blow on the chest of the
 deceased. The testimony of Dr. S.C. Mishra, who performed
 autopsy on the dead body of the deceased would indicate that
 during the internal examination, heart was found to be pale,
 empty and punctured whereas the fifth rib of the left side was       G
.found fractured. This establishes that the blow with knife on
 chest of the deceased was inflicted with a great force.
 According to the doctor, the puncture of heart and fracture of
 the fifth rib was corresponding to injury No.1. The doctor further
 mentioned that injury No.1 could have been caused by knife           H
    890       SUPREME COURT REPORTS                 [2010] 4 S.C.R.


A which was produced as Exhibit-3 and that the said injury was
  sufficient in the ordinary course of nature to cause death of the
  deceased immediately. This assertion made by the medical
  officer was not challenged during his cross-examination at all.
  The evidence on record, thus, shows that before reaching the
B place of incident, the appellant had armed himself with a
  dangerous weapon and had caused injury by usin!} that weapon
  with such a great forCi:e on vital part of the body of t~e deceased
  that it had resulted into instant death of the deceased on the
  spot. It is not the case of the appellant that he had intended to
c inflict injury No.1 on other part of the body of the deceased and
  due to movement of the deceased, the blow had landed on the
  chest of the deceased which had punctured his heart and
  fractured his rib. The eye-witness account of assault on the
  deceased by the appellant read with medical evidence makes
0 it more than clear that the act of the appellant, by which the
  death of the deceased was caused, was done with the intention
  of causing such bodily injury to the deceased as found by
  medical evidence in this case and that the bodily injury intended
  to be inflicted was sufficient in the ordinary course of nature to
  cause death of the deceased. Thus the facts proved, bring the
E case of the appellant within four corners of clause Thirdly of
  Section 300 IPC and it will have to be held that the appellant
  had committed murder of the deceased punishable under
  Section 302 IPC.

F       17. As observed earlier, the High Court has held that there
  was no enmity between the parties nor there was premeditation
  on the part of the appellant and his father to murder the
  deceased and as the quarrel had taken place all of a sudden
  under the heat of passion, the appellant would be guilty under
G Section 304 Part I IPC. In view of this finding, it has become
  necessary for this Court to examine the question whether
  Exception 4 to Section 300 IPC would be applicable to the facts
  of this case.

          Exception 4 to Section 300 IPC would be attracted only if     ........
H
       SHAUKAT v. STATE OF UTTARANCHAL                      891
               [J.M. PANCHAL, J.]
four requirements are satisfied, namely, (1) it was a sudden A
fight; (2) there was no premeditation; (3) the act was done in a
heat of passion; and (4) the assailant had not taken any undue
advantage or acted in a cruel manner. The facts of the instant
case establish beyond pale of doubt that there was
premeditation between the appellant and his father to cause        s
the death of the deceased and to execute the threat given by
accused Sabbir to the deceased near the mosque at about
5.30 in the morning. Thus, both of them had followed the
 deceased who had gone to the pond for the purpose of digging
the earth and ultimately the appellant had murdered him. Further, c
 the appellant had carried with him lethal weapon like knife while
 following the deceased. The record would show that the father
 of the appellant had asked the deceased to stop digging the
 earth but the deceased had continued to dig the earth because
 the pond was meant for the benefit of all the villagers including
                                                                     0
 the deceased and thereupon a scuffle had ensued between the
 father of the appellant and the deceased. The evidence does
  not indicate at all that any scuffle had taken place between the
  appellant and the deceased. It is also established that the father
  of the appellant had asked the appellant not to look at the
  scuffle as a passive spectator and kill the deceased and E
  thereupon the appellant had first of all given blow with knife on
  the back of the deceased and thereafter on the chest of the
  deceased. If the intention of the appellant had not been to
  murder the deceased, the appellant would not have inflicted
  second blow with knife with such a great force on vital part of F
 the body of the deceased which resulted into puncture of heart
  and fracture of rib and ultimately into death of the deceased
  within no time. Further, the evidence of the injured, i.e., Rahmat
  would show that he had tried to save his brother but as many
  as six injuries were caused to him by the appellant. The record G
  amply establishes ~hat motive for the crime was digging of earth
   by the deceased near the field of the appellant. There is nothing
   on the record of the case to suggest even remotely that a
   sudden quarrel had taken place either between the appell~nt
   and the deceased or between the father of the appellant and H
    892          SUPREME COURT REPORTS               [2010] 4 S.C.R.

A  the deceased. On the contrary, the evidence establishes that
   the appellant and his father had followed the deceased who had
   gone to the pond for the purpose of digging earth and after
   picking up quarrel with him, the appellant had murdered him.
   This cannot be said to be a sudden quarrel within the meaning
B of Exception IV to Section 300 IPC at all. Further, the appellant
   had taken disadvantage of the situation in the sense that after
   inflicting one blow on the back of the deceased, he was not
   contented and had caused another fatal injury on the chest as
  well and also caused as many as six injuries to injured Rahmat
c who had made attempt to save his brother. There is nothing
  on the record of the case even to remotely suggest that a
  sudden fight had taken place between the appellant and the
  deceased. Premeditation to cause death of the deceased
  stands proved by reliable evidence adduced by the
  prosecution. Nothing is brought on record of the case to show
0
  that the act of mounting fatal attack on the deceased was done
  by the appellant in a heat of passion. The evidence adduced
  positively proves that the appellant had taken undue advantage
  while delivering fatal blow to the deceased. The four
E requirements for applicability of Exception 4 to Section 300 IPC
  are not satisfied at all and, therefore, the conclusion of the High
  Court that the appellant would be guilty under Section 304 Part
  I IPC, being erroneous in law, is liable to be set aside.
  Therefore, the appellant will have to be found guilty under
  Section 302 IPC for causing murder of the deceased.
F
         18. As far as conviction of the appellant recorded under
  Section 308 IPC for attempting to commit culpable homicide
  by causing injuries on the person of Rahmat is concerned, this
  Court finds that the medical officer had found following six
G injuries on the person of the injured Rahmat when he was
  examined at 7.50 a.m. on October 13, 1980:
          "(i)    An incised wound 10 cm x 7 cm x bone deep with
                  fracture of left side ribs with surgical empty semi
H
      SHAUKAT v. STATE OF UTTARANCHAL                           893
              [J.M. PANCHAL, J.]
             with tear of pleura on the left side of chest, posturaly   A
             8 cm lateral to left nipple.

     (ii)    An incised wound 6 cm x 4 cm x bone deep with
             fracture of under lying bone present on left side of
             back just at the iliac crest.
                                                                        8
     (iii)   Incised wound 4 cm x 1 cm x bone deep present
             on the left hand 2 cm below the left index finger
             base.

     (iv)    An incised wound 2 cm x 0.5 cm x muscle deep               c
             present on the left thumb in the aspect 2 cm above
             the base of right thumb

     (v)     Incised wound 1 cm x 0.2 cm x skin deep present
             on the inner aspect of right thumb just at the nail
             ro~.                                                       D
      (vi)   An incised wound 4 cm x 2 cm present on the
             ventral aspect of left tercunum 6 cm above the left
             writ joint."
                                                                   E
      The medical officer has in terms stated that the first two
injuries sustained by the injured were grievous whereas injuries
3, 4, 5 and 6 were simple. According to the doctor, all the
injuries could have been caused by a sharp object. What is
relevant to notice is that the doctor had conducted operation F
of injured Rahmat with regard to injury No.1 and, for that
purpose, the injured was admitted in the hospital. The assertion
made by the doctor that injury Nos. 1 and 2 sustained by the
injured were grievous in nature has gone unchallenged and was
never disputed by the defence. Causing an incised wound 10
cm x 7 cm x bone deep with fracture of left side rib with surgical G
empty semi with tear of pleura on the left side chest, and
another incised wound 6 cm x 4 cm bone deep with fracture of
under lying bone on left side of back just at the iliac crest,
cannot be regarded as bringing the case of the appellant within
the purview of Section 308 IPC. There is no manner of doubt H
    894      SUPRl;ME COURT REPORTS                   [2010] 4 S.C.R.


A                                                            a
    that the injuries were caused to injured Rahman with view to
    committing his murder. The finding recorded by the High Court
    that the appellant had causeg~: :uries to Rahmat in an attempt
    to escape, is not borne out fr0.r1 the r~cord of the case at all.
    Even no suggestion was made to any of the eye-witnesses that
B   the appellant had caused injurie! .o injured Rahmat while
    making attempt to make his ( ::ipe good. On the contrary,
    reliable evidence of Rahmat '· tisfactorily proves that the
    appellant had caused injuri7~ t91 .1is witness when the witness
    had made attempt to save ..hi!\._'.lrother. Tra findings recorded
c   by the High Court are not onl~ r•Ot borne rut from the record of
    the case but are contrary to the pos         evidence on record.
    Therefore, this Court is of the firm or      ,fl that the appellant
    could not have been convicted under -=>L:ctio. 1 18 for causing
    injuries to injured Rahmat and is liable to be convicted under
D   Section 307 IPC.

          19. For the foregoing reasons, Criminal Appeal No. 757 of
    2005 filed by the appellant Shaukat is dismissed whereas
    Criminal Appeal No. 758 of 2005 filed by the State of
    Uttaranchal is accepted. The appellant is held guilty under
E   Section 302 IPC for commission of murder of deceased
    Wilayat and under Section 307 for attempting to commit murder
    of injured Rahmat. The sentences, as imposed on the appellant
    by the Trial Court for commission of offences under Sections
    302 and 307 IPC, are restored. Both the appeals accordingly
F   stand disposed of.

    R.P.                                      Appeals disposed of.