ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. The present appeal is directed against the judgement and order passed by the learned Additional Sessions Judge at Ahmedabad in Sessions Case No.96 of 2001, whereby the appellant accused has been convicted for the offence punishable under Section 302 of IPC and sentence of life-imprisonment has been imposed upon the accused appellant. 2. It appears that as per the Prosecution case, on 16.2.2001 at about 9.30 in the night, the complainant and his wife were at their residence, watching T.V. At that time, his brother Umang in a drunken condition came to his residence and told him that he had dispute with Pappu and the said Pappu had given threat of killing him. The deceased took out Katar/knife from the idol of Kodiyar Temple and at that time the complainant took away the Katar/knife and locked his brother deceased Umang in the room. Thereafter the complainant went to enquire about the dispute. At that time his friend Gopal informed him that the dispute was going on between his brother Umang and the accused. The complainant told Gopal that he had already locked his brother, but Gopal informed him that his brother was also there and the said dispute with pappu accused was going on. Therefore, the complainant went to enquire about the same in rickshaw. The complainant saw that his brother deceased Umang and Pappu were fighting physically with each other and the complainant with Ashok Marwadi separated them and the complainant took the deceased brother in a rickshaw and when it reached at Rajendra Park four-roads, the accused Pappu was standing nearby the lorry of Mustakbhai by hiding himself and he took out the knife. Therefore, the complainant wanted to run away in rickshaw by driving fast, but at that time, the rickshaw was stuck in the clay and Pappu came running and the brother of the complainant deceased Umang who was sitting in the back seat was given three blows by Pappu on his chest and the abdomen and thereafter the accused went away with the knife. The brother of the complainant Umang was carried to the hospital and at that time the doctor declared him dead. Thereafter the police recorded the complaint and the investigation was also made. After framing charge, the prosecution in support of the case, examined following witnesses:- Sr. Names PW Exh. The brother of the complainant Umang was carried to the hospital and at that time the doctor declared him dead. Thereafter the police recorded the complaint and the investigation was also made. After framing charge, the prosecution in support of the case, examined following witnesses:- Sr. Names PW Exh. 1 Manish Vinodchandra Suthar PW-1 5 2 Dr. Dipakkumar Champaklal Jagani PW-2 15 3 Yogesh Jagannath Joshi PW-3 17 4 Babubhai Keshavlal Chavda PW-4 18 5 Pramodbhai Ambalal Suthar PW-5 23 6 Ramswarupsinh Balusinh Puvar PW-6 24 7 Amrutbhai Punjabhai Head Constable PW-7 31 3. The Prosecution had produced, with the charge-sheet, the documents in support of its case. 4. The learned Sessions Judge thereafter has recorded the statement of the accused under Section 313 (4) of IPC and the accused has made denial. In the further statement the accused has stated that he was not knowing about anything and the police had beaten him, he was a poor man and he had sustained injury and the blood on his clothes was due to the injury caused by the corner of the bench. 5. The learned Sessions Judge, after hearing both the sides, ultimately found that the prosecution has been able to prove the case for the offence committed by the accused under Section 302 of IPC and, therefore, has convicted the accused. So far as the offence under Section 135 of Bombay Police Act is concerned, the learned Sessions Judge has found that the same is not proved. The learned Sessions Judge, thereafter, has also heard the accused for imposition of sentence and ultimately has imposed sentence for life imprisonment for the offence under Section 302 of IPC and has discharged the accused for the offence under Section 135(1) of B.P. Act. Under these circumstances, the present appeal before this Court. 6. We have heard Mr.Brahmbhatt with Mr.Solanki, learned Counsel for the appellant accused and Mr.Raval, learned APP for the State. 7. It appears that the eye-witness to the incident is Shri Manish Vinodchandra Suthar PW-1, who is also the brother of the deceased Umang (hereinafter referred to as 'deceased' for the sake of convenience). The said eye-witness has deposed that there was scuffle between his deceased brother and Pappu accused. He and one Ashok Marwadi had separated both the persons. The said scuffle between the deceased and the accused was at Vagjimaster's Chawl. The said eye-witness has deposed that there was scuffle between his deceased brother and Pappu accused. He and one Ashok Marwadi had separated both the persons. The said scuffle between the deceased and the accused was at Vagjimaster's Chawl. After the aforesaid incident of scuffle, as per the said witness, he took the deceased with him in rickshaw and when they stopped over for taking breakfast at the lorry of Mustaqbhai, the accused was in hidden condition at lorry of Mustaqbhai and he took out the knife and ran to rickshaw. Therefore, the said witness had driven the rickshaw in fast speed, however, as there was digging work going on on the road near Kalbhairav Temple, the rickshaw was stuck. At that time the accused gave three knife blows to the deceased on the chest as well as on the left side and right side and thereafter the accused ran away. The brother of the deceased PW-1 took the deceased to the hospital and thereafter, the deceased was declared dead by the doctor. The said witness has admitted the complaint given to the police as well as he also identified the accused, who was present in the Court. He has also identified his clothes, which were recovered by the police as well as the clothes of the deceased. He has also identified the knife, which was used for causing injury to his brother. In the cross-examination of the said witness no contradiction has been revealed to the contrary so far as his capacity as eye-witness to the incident, the injury caused by the accused to the deceased in his presence, and the earlier scuffle at another place of Vagjimaster's Chawl between the accused and the deceased. It also transpires from the deposition of the said witness that the distance between the place of first scuffle at Vagjimater's Chawl and the place of incident at the four roads of Rajendra Park, if by the road, which was used by the said witness comes to about 3 to 4 kms., but if the other road of a shorter distance is considered, it would be around half-a-kilometer. Nothing has come out in the cross-examination of the said witness to disbelieve the statement deposed by the said eye-witness. 8. The prosecution has examined Dr. Dipakkumar Champaklal Jagani PW-2 Ex.15, the doctor, who had performed postmortem and had submitted postmortem report. Nothing has come out in the cross-examination of the said witness to disbelieve the statement deposed by the said eye-witness. 8. The prosecution has examined Dr. Dipakkumar Champaklal Jagani PW-2 Ex.15, the doctor, who had performed postmortem and had submitted postmortem report. As per the said postmortem report, Ex.16, the injuries upon the body of the deceased were found as under:- Three stab wounds with bleeding and sharp edge found. (1) Stab wound hear Lt. Border of sternum over 4, 5, 6 Lt ribs region verticle elliptical anteroposterior size 4 x 2 x 6 cm. (2) Stab wound on Lt infra exillary region of chest at level of xyphoid precers in 9th intercostal space oblique sharp edge above downward anterior downward tappering posteriorly with abrasion 5 x 2 x ½ cm. (3) Stab wound on Lt side of umbilicus 10 cms lateral and 2 cm above level of umbilicus oblique above downwards and medial to lateral stab wound 2 x ½ x 1 cm blood clots present in all wounds. 9. As per the Postmortem report and admitted by the doctor, on the chest, two injuries were found directly to the heart on account of the stab as under:- (1) Verticle stab in anteriors pericardial wall 5 x ½ cms beneath 4, 5, 6 lt. ribs near aternum. (2) Verticle stab on anterior surface of heart 5 x 2 x 1 cms deep in lt verticle of heart causing illegible of heart as above. 10. The cause of death, as per the said doctor, is as under:- Due to multiple stab wounds leading to rupture of heart and haemorrhage. 11. The doctor has opined that the injuries were sufficient enough to cause death of a humane being in natural course. He has also opined that such injuries could be caused by any sharp-cutting instrument. The muddamal article No.16 is shown to him and the doctor has opined that such injuries could be caused with the said weapon. He has also stated that the injury No.1 is such a deep that the blow must have been given with more force. In the cross-examination, the defence has not been able to contradict any of the statements made by the doctor, nor the opinion express by him. 12. PW-3, Yogesh Jagannath Joshi Ex. 12, in his deposition, has admitted his signature in the inquest panchnama for the dead body of the deceased. 13. In the cross-examination, the defence has not been able to contradict any of the statements made by the doctor, nor the opinion express by him. 12. PW-3, Yogesh Jagannath Joshi Ex. 12, in his deposition, has admitted his signature in the inquest panchnama for the dead body of the deceased. 13. PW-4, Babubhai Keshavlal Chavda, who has been examined by the prosecution, though was declared as hostile, but in the cross-examination, has admitted the discovery of knife and he has also identified muddamal article 16 knife, which was recovered by the police. He has also admitted his signature in the panchnama for such discovery of knife. I.O., Shri Ramswarupsinh Balusinh Puvar PW-6, Ex-24, in his deposition, has identified the signature of the writer on the complaint having received the complaint, having received the report, preparation of the inquest panchnama, the recovery of the clothes of the accused, the deceased, the complainant, the discovery of knife, and other investigation, including for forwarding of muddamal to FSL and the receipt of the FSL report. 14. Amrutbhai Punjabhai Head Constable, PW-7, Ex-31 has supported the receipt of Vardhi from Sardaben Hospital, where the deceased was brought and has identified the signature of the Constable Savjibhai on the said Vardhi book. He has stated that the investigation thereafter was made by P.I. Ramswarupsinh Balusinh Puvar. 15. The FSL report shows that the blood groups on; (1) clay; (2) clothes of accused; (3) clothes of the deceased; and (4) knife; are of 'B' Group, which is the blood group of the deceased. Therefore, FSL report fully supports the case of the prosecution. Blood group of accused is 'A', which is also found on the clothes of the accused, which, as per the accused, was on account of the injury caused to him by the corner of the bench as stated in the further statement. 16. The learned Counsel for the appellant accused contended that the eye-witness is the brother of the deceased, who is interested witness and, therefore, unbelievable. It was submitted that there are serious contradictions in the deposition of the said eye-witness. It was submitted that if the contradictions are considered, the eye-witness is not trust-worthy to rely upon. There is no other eye-witness to the incident. It was alternatively submitted that as per the defence, the possibility of scuffle at once place and the sudden provocation cannot be ruled out. It was submitted that if the contradictions are considered, the eye-witness is not trust-worthy to rely upon. There is no other eye-witness to the incident. It was alternatively submitted that as per the defence, the possibility of scuffle at once place and the sudden provocation cannot be ruled out. The prosecution has tried to improve the case, which did not exist at all. As per the learned Counsel for the appellant accused, the accident happened at only one place and the prosecution has canvassed two different sites for demonstrating more seriousness of the incident against the accused. It was, therefore, submitted that, in any case, this Court may consider the offence as that of offence under Section 304 Part-II of IPC and it would not be a case for the offence under Section 302 of IPC. It was also submitted that keeping in view the facts and circumstances, this Court may reduce the sentence. 17. Whereas on behalf of the State, the learned APP contended that the place of scuffle and the place at which the deceased was killed are different. In any event there was a long distance and this shows that the accused had followed the deceased with an intention to kill him. The injuries inflicted were so serious to cause death of any humane being and, therefore, it was a case for the offence under Section 302 of IPC and not as that of sudden provocation under Section 304 Part-II of IPC. 18. It is true that PW-1, who is eye-witness is the brother of the deceased, but merely because the eye-witness is the brother of the deceased would not be a sole ground to discard the deposition of the said witness. At the most while considering the testimony of such witness, a care and caution is required to be kept in mind by the Court, but if the deposition of such witness is such, which appears to be not only natural, but is also supported by other corroborative evidence, such deposition cannot be discarded on the ground as sought to be canvassed by the learned Counsel for the appellant accused. 19. Merely because there is some contradiction in the statement of any witness to the aspect, which is not at all relevant to the incident for commission of offence, would not be sufficient ground to discard the whole deposition of such witness. 19. Merely because there is some contradiction in the statement of any witness to the aspect, which is not at all relevant to the incident for commission of offence, would not be sufficient ground to discard the whole deposition of such witness. The attempt on the part of the Court would be to consider as to whether such contradiction, if any, is having direct relevance to the incident for commission of the offence and if yes, it may stand on different footing, but if such contradiction is not having any direct relevance to the commission of offence, it may be excluded by the Court for scanning the deposition of the witness for the purpose of finding out the case for the prosecution in establishing as to whether the offence is committed or not. 20. If the deposition of PW-1, Manish Vinodchandra Suthar is examined, keeping in view the aforesaid, there does not appear to be contradiction, which is having direct relevance to the incident for commission of offence. The contradictions, if any, are for the distance between the place of earlier scuffle at Vagjimaster's Chawl and the place of the incident at four roads of Rajendra Park. The said witness has stated that if a long route is opted, which was used by him, the distance would be 3-4 kms., but if the shorter route is opted, it would be ½ a kilometer. Such contradiction would not make material difference to the prosecution case, nor would dislodge the total natural say for the accused having given blow upon the chest of the deceased with knife. Even if it is considered that the distance is ½ km., then also it appears that after the incident of the earlier scuffle at Vagjimaster's Chawl, the accused had followed the deceased, who was going in a rickshaw and when the rickshaw was halted, the accused had given serious blows on the chest of the deceased, who was sitting in the rickshaw on the back seat. The blood stains found in the rickshaw as well as found at the site, both, were matching with the blood group of the deceased. The blood stains found in the rickshaw as well as found at the site, both, were matching with the blood group of the deceased. Therefore, the action of the accused of following the deceased after the earlier scuffle at Vagjimaster's Chawl up to four roads of Rajendra Park, which even if it is considered at a distance of ½ km, can be said to be with an intention to kill the accused with the circumstances that the blows were given with the knife in such a manner with force, which were sufficient to cause death to any human being in its natural course. Therefore, the contradiction as sought to be relied upon by the learned Counsel for the accused in the deposition of Manish Vinodchandra Suthar PW-1, who is the eye-witness, would not be sufficient to record a different conclusion than the offence under Section 302 of IPC. As observed earlier, the chain of incident has been proved. The deposition of the complainant, who was also eye-witness has been corroborated by the medical evidence, the discovery of clothes, knife and the FSL report. Therefore, we are of the view that merely because the said witness happens to be the brother of the deceased, such evidence can neither can be discarded, nor can be said as unreliable. 21. The attempt on the part of the learned Counsel for the accused to contend that it was a case of sudden provocation cannot be countenanced because for the reasons as mentioned hereinabove it has transpired that the accused had followed the deceased, in any case, for half-a-kilometer and the same reflects his intention to kill the deceased, coupled with the circumstance of causing blow on the chest, which had raptured the heart and three blows were given, which could be said, as per the opinion of the doctor, sufficient enough to cause death of any humane being in a natural course. 22. At this stage, we may extract the observations of the Apex Court in case of Pulicherla Nagaraju alias Nagaraja Reddy v. State of Andhra Pradesh, reported in AIR 2006 Sitaram Corporation, 3010, wherein the Apex Court had an occasion to consider the relevant circumstances for gathering the intention to cause death. It was, inter alia, observed by the Apex Court at paragraph 18 as under:- 18. It was, inter alia, observed by the Apex Court at paragraph 18 as under:- 18. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under section 302, are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre-meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may. 23. If the aforesaid circumstances are taken into consideration with the facts of the present case, we cannot agree with the learned Counsel for the accused that it was a case falling under Section 304 Part-II of IPC and not under Section 302 of IPC. 24. Once the Court finds that it was a case for the offence under Section 302 of IPC, any leniency shown in imposition of the sentence may not only lose its efficacy, but would dilute the deterrent effect of the Code for convicting and sentencing the offender, of a serious offence. 25. The Apex Court had, in the case of Siriya alias Shri Lal v. State of M.P., reported in AIR 2008 Sitaram Corporation, 2314, an occasion to consider the question as to whether any leniency in the sentence is called for or not. It was, inter alia, observed by the Apex Court at paragraphs 6, 7, 8, 9, and 10 of the said judgement as under:- 6. The next question is whether any lenience in sentence is called for. 7. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a corner-stone of the edifice of "order" should meet the challenges confronting the society. Friedman in his "Law in Changing Society" stated that, "State of criminal law continues to be - as it should be - a decisive reflection of social consciousness of society". Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. 8. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. This position was illuminatingly stated by this Court in Sevaka Perumal etc. v. State of Tamil Nadu ( 1991 (3) SCC 471 ). 9. The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. Inevitably these considerations cause a departure from just desert as the basis of punishment and create cases of apparent injustice that are serious and widespread. 10. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle MCGDauth v. State of Callifornia (402 US 183: 28 L.D. 2d 711) that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished. 26. This being a case where the accused after scuffle at a different place, having followed the deceased had an intention to kill the deceased, which can be gathered from his conduct and also the injuries caused to the deceased. Therefore, no leniency is called for in the sentence by reduction than as has been imposed by the learned Sessions Judge. Hence, the contention of the learned Counsel for the accused appellant to treat the case as under Section 304 Part II of IPC and thereby to reduce the punishment cannot be accepted. 27. In the result, the appeal is meritless. Hence, dismissed