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2009 DIGILAW 170 (GUJ)

FIROZ HABIBBHAI SAMA v. STATE OF GUJARAT

2009-03-17

JAYANT PATEL

body2009
JAYANT PATEL, J. ( 1 ) THE present appeal is directed against the judgement and order passed by the learned Sessions Judge in Sessions Case no. 46/2000, whereby the present appellants have been convicted for the offence under section 302 read with Section 120-13 as well as for the offence under Section 397 120b and Section 452-120b of IPC and the sentence has been imposed for life imprisonment with fine of Rs. 5,000/- on each of the appellants. It may be stated that the other co-accused were also sentenced for the other offence, however, as they have not preferred appeal, the said aspect is not required to be staled for the purpose of the present appeal. ( 2 ) AS per the prosecution case, on 5. 11. 1999 when the complainant Navalsinh naruba Vaghela was on duly, at about 10 o'clock after putting on the uniform, he had come out in the lobby and at that time on the second floor of Umesh Complex at the lobby, one Sobhrajbhai Sadhurambhai sonwani. who was running finance business, was shouting lhat he has been attacked with knife and his money was being taken away and, therefore, he shouted for catching those persons. Therefore, the complainant from the third floor of the said complex, inquired with Sobhrajbhai sadhurambhai Sonwani - the deceased about the happening and the complainant was told by the deceased lhat two unknown persons by giving knife blows had made the robbery of his money. Hence, the complainant saw one Mahavirsinh, who was also working in security service at the ground floor and told him that somebody by giving knife blows to Sobhrajbhai sadhurambhai Sonwani, has run away and, therefore, he may catch hold of. Hence, the complainant saw one Mahavirsinh, who was also working in security service at the ground floor and told him that somebody by giving knife blows to Sobhrajbhai sadhurambhai Sonwani, has run away and, therefore, he may catch hold of. Sobhrajbhai Sadhurambhai Sonwani deceased was shouting by taking support of the lobby in the second floor and he was also injured and, therefore, the deceased was carried in the lift at the downstairs and the complainant also came at the downstairs and saw that at the ground floor mahavirsinh had caught hold of one person and the other persons also had surrounded at the place and when the complainant reached there, upon the inquiry by mahavirsinh, the said person, who was caught, stated his name as Firoz Habibbhai sama - appellant - accused No. I herein and he also stated that he and Natubhai lavjibhai Lakhtariya, appellant No. 2 herein, both had come for taking loan at the second floor and in the office, one person was sitting and the bag of money was lying and since the said person was alone by throwing chilly powder and causing injuries with the knife, the said bag of money was taken away by Nalu - accused No. 2 herein and he has run away. Thereafter, the police had taken accused No. 1 - Firoz Habibbhai Sama in the police van and the Sobhrajbhai sadhurambhai Sonwani was taken to hospital and he had died. The complaint was filed with Pradyumannagar Police station at Rajkot by the said complainant. ( 3 ) THE police investigated into the complaint and ultimately filed charge-sheet against four accused namely; appellanl nos. I and 2 herein as well as against one vinod Girdharlal Rahiya and Hiteshbhai giridharlal Rahiya. The complaint was filed with Pradyumannagar Police station at Rajkot by the said complainant. ( 3 ) THE police investigated into the complaint and ultimately filed charge-sheet against four accused namely; appellanl nos. I and 2 herein as well as against one vinod Girdharlal Rahiya and Hiteshbhai giridharlal Rahiya. ( 4 ) THE prosecution, in order to prove the guilt of the accused, examined the following witnesses: - (a) Rajendra Shantilal Pandya - PW-1 (b) Rashmikant Mohanlal - PW-2 (c) Navalsinh Naruba Vaghela - PW-3 complainant (d) Sarvanand Saduram Sonwani - PW-4 (e) Nileshbhai Shivlal Gavande - PW-5 (f) Manubhai Vasudevbhai Tanna - PW-6 (g) Vijaybhai Chandubhai Katrecha -PW-7 (h) Ranjanben Ajaykumar Patel - PW-8 (i) Parshotam Thakarsi - PW-9 (j) Kantilal Natalal Majethia - PW-10 (k) Mahavirsinh Jiruba Jadeja PW-11 (l) Naranbhai Kababhai - PW-12 (m) Sunitaben Satishbhai Patel - PW-13 (n) Mahendrabhai Keshavlal Faldu - PW-14 (o) Sanmukhbhai Balchandbhai Gogiya - PW-15 (p) Balvantsinh Dolubha Jadeja - PW-16 (q) Bhaveshbhai Rameshbhai Tank -PW-17 (r) Sureshbhai Vasnatlal Mata - PW-18 (s) Nareshbhai Dayalal Ruparel- PW-19 (t) Kamlesh alias Kali Haribhai Makati- PW-20 (u) Narendra alias Hakabhai Babubhai Pathar - PW-21 (v) Vijaysinh Jillubha Jadeja - PW-22 (w) Rameshbhai Nanakram Madlani -PW-23 (x) Navalsinh Mansinh Gohile - PW-24 (y) Sirajbhai Karimbhai Vadodariya -PW-25 (z) Jahurhusein Hedarmiya Kadri- PW-26 (aa) Haribhai Mohanbhai - PW-27 (ab) Mahavirsinh Akubha Vaghela -PW-28 (ac) Chetanbhai Vinodbhai Parekh -PW-29 (ad) Amirdan Chandidan Gadvi - PW-30 (ae) Kashinath. Tamubhai Patil- PW-31 (af) Jagdishkumar Bachubhai Solanki -PW-32 (ag) Chandrasinh Natwarsinh Parmar -PW-33 (ah)Babubhai Gabhrubhai Parmar -PW-34 (ai)Shaileshbhai Babubhai Pipaliya -. PW-35 (aj) Digvijaysinh Mahendrasinh Vaghela - PW-36 (ak) Mittalbhai Mansukhbhai - PW-37 (al) Samatsinh Jalamsinh Jadeja - PW-38 ( 5 ) THE prosecution in support of its case also produced various documentary evidences, including that of the complaint, discovery panchnama, arrest panchnama, fsl report, etc. ( 6 ) THE learned Sessions Judger. thereafter, recorded the statements of the accused under Section 313 of Or. P. C. , in which the accused - appellant No. 1 herein denied the evidence against him and in the further statement, he has stated that since he was passing in the lobby and at that time, the deceased was in injured condition and the deceased dashed with him and thereafter when he went down, he was caught, but he has not committed any offence and he is innocent. So far as accused No. 2 - appellant No. 2 herein is concerned, he also denied the evidence against him and in the further statement, he stated that he is innocent. ( 7 ) THE learned Sessions Judge thereafter heard the matter and found that the prosecution has been able to prove the case against the accused Nos. 1 and 2 herein and, therefore, the learned Sessions Judge convicted both the appellants herein. The learned Sessions Judge also heard the appellants herein on the aspect of punishment and thereafter has imposed the sentence of life-imprisonment with the fine of Rs. 5,000/- for the offence and the accused have been convicted. It is under these circumstances, the present appeal before this Court. ( 8 ) WE have heard Mr. Sunil Mehta. learned Counsel for the appellant-accused and Mr. Raval, learned APP for the State. ( 9 ) THE evidences on record show that the complainant, Navalsinh - PW-3 has fully supported the case as stated in the complaint. He has also identified Firoz, who was present in the Court and he has admitted the signature on the complaint. In the cross-examination, the defence has not been able to prove to the contrary so far as the contents of the complaint are concerned from the deposition of the said witness. ( 10 ) THE say of the complainant is corroborated by the depositions of other witnesses namely; Rashmikant - PW-2, mahendra - PW-14" and other witnesses. Mahavirsinh, who was important witness has turned hostile, however, in the deposition of I. O. , the statement made by him and the factum of appellant No. 1 caught on the spot has come on record. The panchnama for the scene of offence shows the presence of chilly powder, blood stains, sandal supporting the case of the prosecution. The arrest panchnama of the accused No. 1 shows also for recovery of myan (cover of knife) from the pocket of accused No. 1. and one knife is also recovered from the scene of the offence. The recovery is also made of the money. which were taken of Rs. 2,26,000/- from the accused No. 2. The discovery of the knife is also made by the police at the instance of accused No. 2 by the panchnama - Ex. 71. and one knife is also recovered from the scene of the offence. The recovery is also made of the money. which were taken of Rs. 2,26,000/- from the accused No. 2. The discovery of the knife is also made by the police at the instance of accused No. 2 by the panchnama - Ex. 71. The FSL report shows that the deceased was having blood group of 'b' and the very blood group is found over both the knives, one which was recovered from the scene of the offence and another, which was discovered at the instance of accused no. 2. FSL report further shows that the myan, which was found from accused No. 1 was matching with the size of the knife, which was recovered and the knife, contained blood stain of the group of the deceased. ( 11 ) THE medical evidence supports the case of the prosecution by deposition of Dr. Rajendra Shantilal Pandya - PW-1, who has performed postmortem. As per the PM report, the injuries stated in the PM report vide Col. No. 17 are confirmed by the doctor, who has performed postmortem. The doctor has also stated that the injury nos. 1 and 2 were sufficient enough to cause death of a human being in normal course. The injuries show that one was from the front side and the another was from the back side on the body of the deceased. The cause of death is confirmed by the doctor as stated in the PM report due to "haemorrhagic shock as a result of injury to splean and multiple stab injuries". The doctor in his deposition has stated that such injuries could be caused with the sharp cutting weapons like knives - muddamal. which were recovered by the police. In the cross-examination of the said doctor, the defence has not been able to bring about any contradiction to the injury caused on the body of the deceased, the cause of death and the factum of the said injuries could be caused with sharp-cutting instruments as that of knives, which were recovered/ discovered as per the case of the prosecution. In the cross-examination of the said doctor, the defence has not been able to bring about any contradiction to the injury caused on the body of the deceased, the cause of death and the factum of the said injuries could be caused with sharp-cutting instruments as that of knives, which were recovered/ discovered as per the case of the prosecution. ( 12 ) IT was contended by the learned counsel for the appellant-accused that it is a case of circumstantial evidence and the prime witness, Mahavirsinh has not supported the case of the prosecution inasmuch as of for identification of Firoz accused No. 1 as well as he has also not admitted the real identification parade for accused No. 2. It was, therefore, submitted that as the chain is not complete, the conviction held by the learned Sessions judge is erroneous. ( 13 ) WHEREAS on behalf of the State, it was submitted by the learned APP that the ' chain is complete inasmuch as the accused no, 1 was caught on the spot and the said aspect is corroborated by the evidence of other witness, including the complainant. It was also submitted that the knife was found from the scene of the offence and the myan is recovered from the accused No. 1 of the said knife. He also submitted that the money, which was taken away was also found from accused No. 2 and the knife with blood stain of the deceased was discovered by the police at the instance of accused no. 2. He submitted that the aforesaid shows that there is no chain missing even if the matter is to be considered as based on i circumstantial evidence. Therefore, the learned Sessions Judge has rightly convicted both the appellants for the alleged offence. ( 14 ) IT is true that there is no direct eyewitness to the incident and the case could be said to be based on circumstantial evidence. Therefore, the learned Sessions Judge has rightly convicted both the appellants for the alleged offence. ( 14 ) IT is true that there is no direct eyewitness to the incident and the case could be said to be based on circumstantial evidence. In a case of circumstantial evidence the chain must be complete, so as to prove the guilt of the accused, but while considering the said said chain, the Court is also required to take into consideration the incriminating material and the circumstances found during the course of investigation and if the accused is unable to furnish the probable explanation, it could be used as the material to consider the chain while considering the case of the prosecution in a case of circumstantial evidence. If the evidence on record is considered, it appears that the prosecution has been able to bring on record the material for completing the chain of the offence committed by the accused No. 1 as well as accused No. 2 inasmuch as the blood stains of the deceased are found at the scene of the offence, one Knife with blood stain was recovered from the scene of the offence. The accused No. 1 was caught on the spot at the ground floor and accused no. 1 has stated that the accused No. 2 had run away with the money, which has been robbed. In the arrest panchnuma the accused no. 1 was found to have possessed with the myan of the knife recovered from the scene of the offence. The knife contains the blood stain of the very group as that of the deceased. Therefore, so far as the accused no. 1 is concerned, the chain is complete. Even if the explanation gave in the further statement recorded under Section 313 of cr. P. C. , is considered, then also there is absolutely no explanation so far as the recovery of the myan from the accused no. 1. Further, the said explanation at the most could be accepted for the blood stain found from the clothes of accused No. 1. If the said explanation is considered that the deceased had dashed with the accused No. 1 and he received blood stain on his clothes, then also the factum of myan being recovered from the accused is not explained and the same is an incriminating material, being a part of commission of offence. If the said explanation is considered that the deceased had dashed with the accused No. 1 and he received blood stain on his clothes, then also the factum of myan being recovered from the accused is not explained and the same is an incriminating material, being a part of commission of offence. Further, the sandal of accused No. 1 are also found from the scene of the offence and the identity of the same is proved by the prosecution. Under these circumstances, the factum of existence of incriminating material being sandal found from the scene of the offence as that of the accused No. 1 and the incriminating material of myan (cover of knife)found from the possession of the accused No. 1 and the knife which was found from the scene of the offence and which was used for commission of offence, are not at all explained, nor any material has been brought about by the defence in the cross-examination of any of the witnesses. The aforesaid incriminating material found from the possession of accused No. 1 coupled with the circumstances that the accused No. 1 having been caught on the spot, shows that the chain for commission of offence involving accused No. 1, is complete and it is not a case based on, may be involvement of accused No. 1 in the commission of offence, but is a case of must be involvement of the accused No. 1 in commission of offence. ( 15 ) SO far as accused No. 2 is concerned, if the evidence on record is examined, accused No. 1 is said to have informed about running away of accused no. 2 with the money. Accused No. 2 thereafter was caught from Thangadh (a different town) with bag containing rs. 2,26,900/ -. Further. there is discovery of knife being incriminating material found at the instance of accused No. 2. The said knife contained blood stain, which is found, as per the FSL report, of the deceased. 2 with the money. Accused No. 2 thereafter was caught from Thangadh (a different town) with bag containing rs. 2,26,900/ -. Further. there is discovery of knife being incriminating material found at the instance of accused No. 2. The said knife contained blood stain, which is found, as per the FSL report, of the deceased. The explanation of such a huge amount of money being recovered from accused No. 2 as that of earning in gambling is, ex facie, unacceptable and not only that, but if the said explanation is considered in light of the depositions of other witnesses of stating the accused No. 2 had gone to Ahmedabad 5 and stayed with the family of Ajaykumar govindbhai with one bag and Ranjanben ajaykumar - PW-8 stated that the very bag was with accused No. 2 and accused had stayed at their place, shows that such an explanation of winning money in gambling is cooked up defence and not genuine one. In any event, so far as the incriminating material of discovery of the knife with blood stain at the instance of accused no. 2, remains totally unexplained, though fully proved by the prosecution as per the panchnama - Ex. 71. Under these circumstances, the chain even if considered. based on circumstantial evidence, is complete qua accused No. 2 also. Hence, we cannot accept the submission of the learned counsel for the accused that the chain based on circumstantial evidence is not complete for attributing the guilt to accused No. 1 or accused No. 2 and the error has been committed by the learned Sessions Judge in finding that the prosecution has been able to prove the case against accused No. 1 and 2 for the alleged offence under Section 302 read Section 397 of IPC. ( 16 ) AT this stage, we may refer to the decision in the case of Sanjay alias Kaka v. State (NCT of Delhi) reported in AIR 2001 sc 979 and more particularly, the observations made by the Apex Court in paras 27, 30 and 31, wherein, the view taken is that if the property is recovered consequent upon making of disclosure statement or if the recovery of the article is made based on the disclosure statement, the same can be considered in evidence under section 27 of the Evidence Act unless such disclosure is sufficiently explained, showing no incrimination against the accused and in such circumstances, the Court would be justified in drawing the inference under section 1 14 of the Evidence Act for presuming the involvement of the accused based on such recovery/discovery for the disclosure at the instance of the accused. ( 17 ) IT was next contended by the learned counsel for the appellant-accused that there is delay in filing of the complaint and such delay would be fatal to the case of the prosecution. He submitted that the incident had happened at about 10 O'clock in the morning on 05. 11. 1999 and the complaint is registered on 06. 11. 1999 at 2. 30 PM and that too after the inquest panchnama was prepared of the dead body at 1 PM on 06. 11. 1999. It was also submitted that after the incident when the accused No. 1 as per the prosecution case was caught on the spot. the complaint could have been registered immediately, more particularly when the police station was at the nearest distance of half a kilometer. But no attempt has been made for registration of the complaint and after a delay of about 4-5 hours, the complaint has been registered. He submitted that such delay would be fatal to the case of the prosecution and accused would be entitled to the benefit of such delay. ( 18 ) WHEREAS, on behalf of the State, the learned APP submitted that it is not an absolute proposition that if there is delay in registration of FIR, it would be fatal in every case. It may vary from facts to facts. ( 18 ) WHEREAS, on behalf of the State, the learned APP submitted that it is not an absolute proposition that if there is delay in registration of FIR, it would be fatal in every case. It may vary from facts to facts. He submitted that if there is sufficient explanation for delay and the said explanation is acceptable, such would not be fatal to the case of the prosecution, more particularly when it is not a case of the accused that during the period of delay. some concoction or fabrication of the record was made. ( 19 ) BEFORE we advert to the factual aspects, reference to the case law on the said point may be relevant. The Apex Court in the case of Sahebrao v. State of maharashtra reported at 2006 (9) SCC 794 . extracted the observations made in its earlier decision in the case of Amar Singh v. Balwinder Singh and Ors. reported at 2003 (2)SCC 5 18 at para 9 inter alia as under: "there is no hard and fast rule that any delay in lodging the FIR would automatically render the prosecution case doubtful. It necessarily depends upon facts and circumstances of each case whether there has been any such delay in lodging the fir which may cast doubt about the veracity of the prosecution case and for this a host of circumstances like the condition of the first number of victims, the efforts made to provide informant, the nature of injuries sustained, the medical aid to them, the distance of the hospital and the police station, etc. have to be taken into consideration. There is no mathematical formula by which an inference may be drawn either way merely on account of delay in lodging of the FIR. " Ultimately, in the said case, the Apex court found that simply because the FIR was lodged with some delay, the allegations in the FIR were unworthy of credence or that PW 1 had falsely implicated the accused-appellant in the commission of crime. ( 20 ) IF the facts of the prosecution case is examined, it does appear that as per the deposition of Jagdishkumar Bachubhai solanki, P. W. 32, extract of the station diary is produced and the documents at Exh. 83 of the entry in the Control Room at 22-00 hrs. ( 20 ) IF the facts of the prosecution case is examined, it does appear that as per the deposition of Jagdishkumar Bachubhai solanki, P. W. 32, extract of the station diary is produced and the documents at Exh. 83 of the entry in the Control Room at 22-00 hrs. shows that upon the information received on phone from one Bhanubhai, the investigation staff had proceeded. Further, it appears from the deposition of another witness Chandrasinh Natvarsinh Parmar, p. W. 33, who has produced the Log-sheet note No. 25-37 of the Police Control Room that the process in this regard were already initiated. The Log-sheet produced at Exh. 85 shows that after the police proceeded at 22. 15 Hrs. on 05. 11. 1995, there was halt upto 22. 20 Hrs. at Umesh Complex, which was the place at which the offence was committed. At 22. 30 hrs. , it was reported that there was robbery and accused No. 1 is caught and accused No. 2 has run away. The accused No. 1 was being taken to pradyumannagar police station and the injured was taken by somebody to the hospital. The instructions were also passed over at 22. 48 Hrs. for tracing the another accused Natu who had run away since the information was received that he was staying in the Vegetable Market and the watch was to be sent for tracing him. Then there was further inquiry and it was repotted at 22. 59 Hrs. that the cabin is closed and therefore, the inquiry was 10 be made at the residence. The message was also passed over in this regard and it was reported at 23. 35 hrs. that the accused No. 2 is not found at his residence and thereafter, the police came back at the Pradyumannagar police Station at 23. 53 hrs. The reporting in the station diary was also made at 0. 45 hrs regarding the alleged incident. The same is apparent from document at F -. xh. 77 produced with the deposition of Kashinath jamubhai Patil. P. W. 31, who was on duty as PSO in Pradyumanngar Police Station. 53 hrs. The reporting in the station diary was also made at 0. 45 hrs regarding the alleged incident. The same is apparent from document at F -. xh. 77 produced with the deposition of Kashinath jamubhai Patil. P. W. 31, who was on duty as PSO in Pradyumanngar Police Station. ( 21 ) APART from the above, it has come on record that after the injury received by the deceased, he was at the first instance taken to the Government hospital and thereafter taken to Gondia Hospital which is a private hospital for treatment and thereafter, he was again taken back to Civil hospital. ( 22 ) UNDER these circumstances, it cannot be said that there is no sufficient explanation for the delay in registration of fir. Moreover, it is not the case of the defence nor any suggestion has been put to any of the witness that there was any concoction or the evidence after the incident until the FIR was registered, was contrary or there was fabrication or concoction of any record. The delay under these circumstances, cannot be said as fatal to the case of the prosecution as sought to be canvassed by the learned counsel for the appellants-accused and hence, the said contention cannot be accepted. ( 23 ) THE reliance placed by the learned counsel for the appellants-accused upon the decision of the Apex Court in the case of ramesh Baburao Devaskar and. Ors. v. State of Maharashtra reported at 2007 (13) SCC 501 . is ill-founded inasmuch as in the case before the Apex Court, there were two peculiar circumstances different than the present one before this Court. One was that it was a case of group fight and another was that there was a delay of 4 days and no explanation came on record for such delay. Such is not the fact situation in the present case. It was on account of the peculiar facts and circumstances of that case, the Court took the view that the requirement of section 157 of CRPC was not satisfied. Hence, the said decision is of no help to the appellants. Such is not the fact situation in the present case. It was on account of the peculiar facts and circumstances of that case, the Court took the view that the requirement of section 157 of CRPC was not satisfied. Hence, the said decision is of no help to the appellants. ( 24 ) IT may be recorded that the learned counsel for the appellants also put heavy reliance upon the aforesaid decision of the apex Court for substantiating his contention that the inquest was prepared earlier than the registration of (he FIR in the present case and therefore, since the inquest was made earlier than the registration of the fir, this Court may take the view that such does not meet with the requirement of law and as there was delay in registration of fir, it may be treated as fatal to the case of the prosecution and the benefit be made available to the appellants. ( 25 ) AS observed earlier, the facts of the case as was considered by the Apex Court while examining the requirement of the law was different than the present one to be considered by this Court. Further, as observed earlier, it is not the case of the defence nor the suggestion has been put to any of the witness that because of such delay there is any alteration of the evidence or concoction or fabrication of evidence by the prosecution. Same is coupled with the circumstance that delay is sufficiently explained and the police machinery was in motion for the very incident. Under these circumstances, it is not possible to accept the contention of the learned counsel for the appellants that merely because the inquest was made earlier than the registration of fir, it should be treated as fatal o the case of the prosecution so as to endure the benefits to the accused, more particularly when such delay is already explained. ( 26 ) IT was next contended by the learned counsel for the appellants-accused that identification Parade was not showing the genuine identification so tar as accused no. 2 is concerned. He submitted that mahavirsinh Jilubha Jadeja, PW 11, has not admitted the genuineness of the identification parade. He submitted that as per the deposition of Mahavirsinh Jilubha jadeja, PW 11, since the indication was given to him, he had accordingly identified. 2 is concerned. He submitted that mahavirsinh Jilubha Jadeja, PW 11, has not admitted the genuineness of the identification parade. He submitted that as per the deposition of Mahavirsinh Jilubha jadeja, PW 11, since the indication was given to him, he had accordingly identified. Otherwise, he was unable to identify the accused No. 1 or accused No. 2 and therefore, it was submitted that the same being a major chain missing in the case of the prosecution, the accused cannot be held guilty for the alleged offence. ( 27 ) IT deserves to be recorded that though the deposition of Mahavirsinh jilubha Jadeja, PW 11. is not fully supporting the case of the prosecution, the prosecution has examined Naval sinh M gohil. PW 24, Executive Magistrate who conducted the Identification Parade. In his deposition, he has confirmed the genuineness of the Identification Parade and the proceedings of the Identification Parade has also come on record at Exh. 58. It has been rightly observed by the learned sessions Judge that the said witness is an independent witness and he has no animosity against any of the accused. Merely because Mahavirsinh Jilubha Jadeja, pw 11, is not fully supporting the case of the prosecution on the aspects of identification of accused Nos. 1 and 2. it would be a case to discard the deposition of navalsinh M. Gohil, P. W. 24, nor would be a case of discarding the proceedings of the identification Parade which has come on record at Exh. 58. Further Navalsinh - PW-3 has fully supported the case of the prosecution for identification of accused no. I. found and caught on the spot. Under these circumstances, the contention as sought to be canvassed accepted. ( 28 ) IT was next contended by the learned counsel for the appellants that it would be a case falling under Section 304 Part II and not under Section 302 of the IPC- In furtherance to the submission, the learned counsel contended that their appears to have some scuffle at the lime when the accused visited the place of the deceased for loan purpose. It is on account of the resistance by the deceased, the possibilities of scuffle cannot be ruled out. It was therefore submitted that the incident could be said to be on account of sudden provocation and not with u premeditation tor committing offence under Section 302 of the IPC. It is on account of the resistance by the deceased, the possibilities of scuffle cannot be ruled out. It was therefore submitted that the incident could be said to be on account of sudden provocation and not with u premeditation tor committing offence under Section 302 of the IPC. It was therefore submitted that this Court may after the conviction, even if the other contentions are not accepted by convicting the accused under Section 304 Part-II of ipc. ( 29 ) WE cannot accept the said contention for the simple and obvious reason that no evidence whatsoever has come on record for the alleged scuffle between the accused and the deceased. Further, if the attempt is made by the accused to take away money belonging 10 the deceased and any resistance is made by the deceased to such an action of the accused, it cannot be termed as scuffle so as to attract the sudden provocation falling under Section 304 Part-II of the Indian penal Code. If any person within his lawful. right has resisted the illegal action and the accused have gone to the extent of throwing chilly powder and giving knife blows, and thereafter, have taken huge money of the deceased, it cannot be at all termed as on ; account of sudden provocation as sought to be canvassed by the learned counsel for the accused. Even otherwise, one sided self provocation would not be available as benefit for treating the case as falling under. Section 304 Part II and therefore the said contention cannot be accepted. ( 30 ) IN view of the aforesaid, we find that the appeal is meritless and hence, the same is dismissed. (AY) (Appeal dismissed.)