Research › Search › Judgment

Kerala High Court · body

2018 DIGILAW 288 (KER)

Babu v. State of Kerala

2018-03-27

A.M.SHAFFIQUE, MARY JOSEPH

body2018
JUDGMENT : MARY JOSEPH, J. The judgment dated 30.06.2014 of Additional District & Sessions Judge-II, Pathanamthitta (for short 'the Court below) in SC No.575/2013, whereby Sri.Babu, S/o.Thomas, Kalathil Veedu, Adampadam Colony, Thirumoolapuram, Iruvallipra Muri, Kuttappuzha village, who is the sole accused in SC No.575/2013 was found guilty for the offence under Section 300 IPC and was convicted and sentenced for the said offence under Section 302 IPC, to undergo imprisonment for life, is under challenge in the captioned appeal. 2. The aforesaid Babu was charge-sheeted by the Sub Inspector of Police, Thiruvalla in Crime No.1402/2012 for the offence of murder punishable under Section 302 IPC. Charge was also framed against him by the Court below, for the same offence for which he was charge-sheeted by the Police. 3. The case of the prosecution in a nut-shell is relevant for the purpose of this appeal and accordingly is narrated hereinbelow: On 29.09.2012 at about 11.30 am. with the intention to kill one Sri.John C. Chacko, the accused Sri.Babu, attacked him with a broken soda bottle in front of a building bearing No.XIV/C-62/14 of Thiruvalla Municipality, situated on the eastern side of M.C. Road, near Thiruvalla-Kurisukavala. The accused stabbed Sri.John C. Chacko on his neck, which inflicted a fatal injury there and the latter succumbed to death on the very same day. Accordingly, the accused was alleged by the prosecution as committed the offence of murder punishable under Section 302 IPC. 4. The first information about the case was lodged at the Thiruvalla Police Station by one Sri.Thomas Chacko, the younger brother of Sri. John.C.Chacko and accordingly Crime No.1402/2012 was registered against Sri.Babu, the accused, by the S.I. of the said Police Station. Investigation was conducted by the C.I. Of Police, Thiruvalla Police Station and on concluding the same, a final report, charge-sheeting the said Sri.Babu, for commission of the offence of murder under Section 300 IPC, punishable under Section 302 IPC, was laid before the Judicial First Class Magistrate Court, Thiruvalla (for short 'the Magistrate'). The Magistrate by proceedings initiated as C.P. No.58/2013 committed the case to the Principal Court of Sessions, Pathanamthitta. The said court made over the case to the court below for trial. 5. The accused appeared on summons before the court below. Since the accused was not represented by a pleader, the court below had assigned a counsel for his defence at the expense of the State. The said court made over the case to the court below for trial. 5. The accused appeared on summons before the court below. Since the accused was not represented by a pleader, the court below had assigned a counsel for his defence at the expense of the State. The learned Public Prosecutor representing the prosecution and the learned counsel representing the defence were heard and the court below framed a charge against the accused, for the offence under Section 300 IPC, punishable under Section 302 IPC, based on the charge-sheet and the arguments advanced. The charge was read over and explained to the accused by the court below. The accused pleaded not guilty and thereupon the court proceeded with the trial. 6. On the side of the prosecution, witnesses were examined as PWs. 1 to 15, documents were marked as Exts.P1 to P12 and material objects as MO1 to 9. On closure of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. with reference to the incriminating circumstances brought in evidence by the prosecution. The accused denied all the incriminating circumstances put to him by the court and contended in addition that his name was implicated in the crime in question solely based on suspicion. It is also contended that Sri.John C.Chacko is one among his class-mates and a close friend and that he is totally innocent of the allegations levelled against him in the case. The court below upon appreciating the evidence of the prosecution and hearing the learned Public Prosecutor and the counsel representing the defence found total absence of grounds to enter into a finding of acquittal under Section 232 Cr.P.C. and accordingly posted the case for the accused to enter upon defence. The accused did not adduce any evidence. Thereupon, evidence was closed and the learned Public Prosecutor and the counsel representing the accused were heard. 7. On appreciation of the evidence of the prosecution and upon evaluation of the rival contentions put forth by the learned Public Prosecutor and the learned counsel for the accused, the court below found the accused guilty of the offence of murder and accordingly, convicted and sentenced him to undergo imprisonment for life by judgment dated 30.6.2014, which is now taken up in challenge in this appeal by the aggrieved accused. 8. 8. Smt.Sherly Mol Thomas, the learned counsel appointed by the Court to defend the accused and Sri.S.U.Nazar, the learned Public Prosecutor were heard in detail. 9. According to Smt. Sherly Mol Thomas, the counsel representing the accused, the prosecution failed to prove the guilt against the accused for the offence under Section 300 IPC beyond reasonable doubt and therefore, the order of conviction passed against the accused and the sentence imposed on him by the judgment under challenge suffers from illegality, impropriety and incorrectness and is only liable to be reversed. 10. It is contended by the learned counsel specifically that the evidence would disclose clearly that the petitioner and the accused were not in inimical terms, but in friendly terms since school days. According to her, the prosecution failed to establish the motive for the accused to commit the murder of Sri.John C. Chacko. According to her, even going by the final report, no allegation is there for the prosecution that the act, which caused the death of Sri.John C. Chacko, was a pre-meditated one. It is submitted by the counsel that even going by the versions of the ocular witnesses, who were examined before the court below as PWs.2 to 4, it is clear that the incident which led to the death of Sri.John C. Chacko was happened all on a sudden and without being provoked in any manner by the deceased. All the ocular witnesses examined by the prosecution have spoken a common case that they saw the accused and the deceased talking in front of a workshop immediately prior to the incident. It is also their common version that in the course of such conversation, the accused rushed towards the shop of PW4, took a soda bottle therefrom, broke it and blew the broken bottle at the neck of Sri.John C. Chacko, causing him to sustain an injury there. The evidence of the prosecution would also make it clear that, the Police was informed about the incident, they came to the spot and transported the victim to the hospital, and there, he died. The evidence of the prosecution would also make it clear that, the Police was informed about the incident, they came to the spot and transported the victim to the hospital, and there, he died. The learned counsel has also drawn our attention to the medical evidence available in the case on hand as spoken by PW9, the Casualty Medical Officer of Pushpagiri Medical College, who had examined Sri.John C. Chacko after the incident on 29.09.2012, PW13, the Assistant Police Surgeon and Lecturer in Forensic Medicines associated with Medical College Hospital, Kottayam and the documentary evidence of Ext.P6, the certificate of Postmortem examination, prepared by PW13, to contend that the deep wound sustained by Sri.John C. Chacko, on the left side of his neck was a fatal one and he succumbed to death due to that. According to the learned counsel, the said injury along with an abrasion have been found in the body of John C. Chacko and in the nature of the said injuries, those are unlikely to be caused in an incident as narrated by the prosecution. According to her, the version of the defence that Sri.John C. Chacko had, on the fateful day, consumed liquor from a near-by Bar namely, Panchami Bar, created a scene there, following which, he was pushed down by the employees of the Bar, wherefrom he got up and proceeded to the spot, reached there, conversed with the accused for some time, rushed to the shop of PW4, bought a Pepsi therefrom, fell down with the bottle under the influence of intoxication and sustained injuries, is more probable than the one narrated by the prosecution, especially in a circumstance when the prosecution thoroughly failed to establish the motive for the accused to commit the offence. According to her, the second antemortem injury, noted in Ext.P6 is an abrasion and there is every likelihood of the same to be caused in a fall by the victim on a rough surface. It is also the contention of the learned counsel that both the accused and the deceased had consumed alcohol on the same day and even if it is taken for granted that the accused himself did the alleged act, it could only be taken as done under the influence of intoxication and therefore, the benefit under Section 85 of the Indian Penal Code would be afforded to him. The last and final argument of the learned counsel was that the three ocular witnesses cited and examined by the prosecution had given statements highly inconsistent even on several material aspects, the court below erred in relying upon those to enter into a finding of guilt of the accused for the commission of the offence, with which he was charged and convicted and sentenced him, as per the judgment under challenge. According to her, the court below is highly unjustified in arriving at a finding on guilt of the accused, despite the availability of convincing evidence, indicative of his innocence in the matter and therefore, the impugned judgment is liable to be reversed. 11. On the contrary, Sri.S.U.Nazar, the learned Public Prosecutor has urged that the prosecution has appreciated the entire evidence on record in its proper perspective and correctly entered into a finding of guilt against the accused. According to him, based on the said finding that the accused was convicted and sentenced as per the impugned judgment. According to him, there is total want of evidence for the defence to base its contention that the victim and the accused had gone to a Bar on the fateful day, and consumed liquor therefrom. According to him, there is absolutely no evidence to support the contention of the defence that the victim had fallen down in front of the shop of PW4, out of intoxication and sustained injuries. According to him, the medical evidence available on record is not supportive to the case of the defence, since it did not say that the deceased was intoxicated at the relevant time. Learned Public Prosecutor pointedly argued on the basis of the medical evidence available on record that the major injury noted in Ext.P6 as the first antemortem injury was difficult to be caused on a fall on earth. The learned Public Prosecutor on the strength of these contentions canvassed that grounds are totally lacking to call for interference of this Court with the judgment under challenge and the only course open is to confirm the same. 12. In the backdrop of the rival contentions put forth, we ventured to appreciate the evidence of the prosecution to see whether any basis is there for the learned counsel on State Brief to canvas for an upturn of the findings of the court below. 13. 12. In the backdrop of the rival contentions put forth, we ventured to appreciate the evidence of the prosecution to see whether any basis is there for the learned counsel on State Brief to canvas for an upturn of the findings of the court below. 13. In the case on hand, the prosecution had examined 15 witnesses on it's side. Pws.2 to 4 are the witnesses cited by the prosecution as ocular witnesses. PW1 is the first informant, who lodged Ext.P1, the F.I.S. He is none other than the brother of the deceased. Based on Ext.P1, Ext.P5, the FIR was registered. As stated by him in Ext.P1, he reached the spot after the incident in which his brother was attacked and inflicted with injuries. He was at his work site at the relevant time and one Joy informed him about the incident at about 12 p.m. on the day. He rushed to the hospital in an auto-rickshaw and found his brother dead. Immediately he rushed to the place of occurrence and enquired about the incident with the people available there. Thereafter, he proceeded to the Police Station to lodge Ext.P1, the F.I.S. Therefore, it is convincingly clear that he had only hearsay information about the incident which culminated in his brother's death. Apart from the factum of lodging of the F.I.S., he had identified the chappals and the dress, the deceased had worn at the relevant time of incident and those were got marked in evidence as MO1 to MO4. The identification of those did not assume much relevance for the prosecution since the identity of the deceased was not a matter in dispute. 14. The learned counsel for the defence had put to PW1, during trial the twin versions regarding the incident spoken by him in a manner totally strange to the prosecution case, the first among which was that the deceased had a scuffle with the employees of a bar namely 'Panchami bar' after consuming alcohol therefrom, following which he was pushed aside by it's employees, fell down and sustained injuries in the fall. The second version put to him was that after consuming liquor together from the bar, the victim and the accused came to the spot, bought a 'pepsi' from CW4's shop, and while drinking pepsi, he fell down in the effect of intoxication on the road and accordingly, the broken glass pierced on his neck and thus inflicted injuries there. Despite questioning PW1 at length, an answer in favour in the manner as suggested by the defence, could not be procured by him from PW1. 15. Now, it is time to see the versions of ocular witnesses examined by the prosecution and those sought to be relied on by the court below and accordingly relied on. PW2, Mr.V.M.Varghese was a man conducting a workshop for repair works of scooters. He had acquaintance of both deceased and accused. According to him, he was standing outside his workshop at 11 a.m. on 29.9.2012 and found Sri.John.C.Chacko talking to Sri.Babu, the accused. At the very next moment, he saw Sri.Babu rushing to the shop of CW4, taking a soda bottle therefrom and stabbing at the neck of Sri.John.C. below his left ear. Thereafter, Sri.Babu went behind a shoproom situated on the eastern side, kept closed. He was the person, who had shown the place of occurrence to the Police. Sri.Babu was also shown to him by the Police at a later point of time and he identified him. He was cross-examined by the defence on every aspect of his version. The cross-examination did not succeed in bringing out anything liable to discredit him. PW3, Mr.V.M.Abraham was running a shop at Kurisukavala. He was inside his shop at the relevant time and watched the incident, which according to him, was occurred at about 11.30 a.m. According to him, Sri. John.C. and Sri.Babu are persons known to him and he saw the latter stabbing a broken soda bottle at Sri.John.C. The soda bottle was taken from a nearby shop and after breaking it, he stabbed Sri.John.C. After the incident, Sri.Babu proceeded towards Chengannur Bhagom and hide himself behind an old building situated therein. He had signed Ext.P2, Scene Mahazar prepared by the C.I. Of Police, Koodal Police Station on the day. The accused was also shown to him by the Police and identified by him. He had signed Ext.P2, Scene Mahazar prepared by the C.I. Of Police, Koodal Police Station on the day. The accused was also shown to him by the Police and identified by him. He has clarified during cross-examination that the incident was occurred within a time span of ten minutes after the arrival of Sri.Babu and Sri.John.C. at the place of occurrence. The lengthy cross-examination of the said witness also did not bring forth anything liable to discredit his version on material aspects of the incident. 16. PW4, Mr.Iype Thomas was also running a cool bar and stationery shop at Kurisuvakavala. He has also acquaintance with Sri.John.C. and Sri.Babu. According to him, the incident was on 29.9.2012 at about 11.30 a.m. On that day, he opened his shop and placed empty soda bottles outside the shop. He saw Sri.John.C. and Sri.Babu talking outside his shop and after talking for about 10-20 minutes, Sri.Babu rushed to the shop, took a soda bottle, broke it and stabbed at his neck below left ear. Thereafter, Sri.Babu dropped the broken soda bottle at the place itself and rushed towards Chengannur direction. Sri.John.C. fell down. Police was informed. They came and transported Sri.John.C. to the hospital. The Police brought the accused to the place of incident and he identified him. According to him, the C.I. of Police seized the broken soda bottle from the place of occurrence, which was identified by him and marked in the court in evidence through him as MO4. He had also identified the dress worn by Babu at the relevant time of incident and those got marked through him in evidence as MO5 and MO6. The accused was also identified by him. Despite the lengthy cross-examination, the defence thoroughly failed in its venture to make him incredible on material aspects of the case. 17. Therefore, the prosecution has successfully established the factum that Sri. John.C. was stabbed by Sri.Babu at Kurisukavala, a place near to the shops of Pws.2 to 4, in their presence. The accused was also identified by him. Despite the lengthy cross-examination, the defence thoroughly failed in its venture to make him incredible on material aspects of the case. 17. Therefore, the prosecution has successfully established the factum that Sri. John.C. was stabbed by Sri.Babu at Kurisukavala, a place near to the shops of Pws.2 to 4, in their presence. The prosecution has also successfully established through the version of those witnesses, the identity of both Sri.John.C. and Sri.Babu, that Sri.John.C. had sustained a deep injury at his neck below left ear due to stabbing with a broken soda bottle by the accused and that Sri.John.C. was transmitted to the hospital in a jeep by the Police, who came to the spot on receiving the information about the incident. 18. The prosecution had examined PW9, who is Dr.Mercy Rachel Mathew associated with Pushpagiri Medical College Hospital, Thiruvalla, who had the occasion to examine Sri.John.C., the injured, when he was brought to the hospital, inflicted with injuries. She had found on examination of Sri.John.C. that he was brought there, dead. She noticed a deep wound on his neck and declared his death. 19. Inquest was conducted in the body of John.C., on 29.9.2012 by PW15, Sri.Binu Varghese, the S.I.of Police of Edamulakkal Police Station immediately after declaration of death by PW9. Ext.P4 is the inquest report. In Ext.P4, the injury on the neck below the left ear was stated as a fatal one received by Sri.John.C.in the attack by Sri.Babu. 20. Thereafter, the body of John.C. was sent for postmortem examination. PW13 Dr.Jiju.V.S. who was the Assistant Police Surgeon and Lecturer in Forensic Medicines, Medical College Hospital, Kottayam, had conducted the postmortem examination and issued Ext.P6, the certificate of postmortem examination. The injuries found on the body of the deceased were also taken note of in Ext.P6 as follows:- “1. Punctured lacerated wound 4x2.6x4 cm. obliquely placed on left side of front of neck, its upper inner end 1 c.m. below the angle of jaw bone, lower outer end 3 c.m. below ear lobule. The upper portion of sterno-cleido-mastoid muscle, internal carotid artery and jugular vein were severed, with surrounding soft tissue infiltration. 2. Punctured lacerated wound 4x2.6x4 cm. obliquely placed on left side of front of neck, its upper inner end 1 c.m. below the angle of jaw bone, lower outer end 3 c.m. below ear lobule. The upper portion of sterno-cleido-mastoid muscle, internal carotid artery and jugular vein were severed, with surrounding soft tissue infiltration. 2. Abrasion 3x4.5 cm., horizontal on front of left thigh 14 cm above knee.” PW13 has opined that the death of Sri.John.C. was due to the injury sustained to his neck, which was noted by him in Ext.P6 as antemortem injury No.1. When cross-examined about the possibility of the first antemortem injury to be caused in a fall on a road with a glass bottle after consumption of liquor, the witness answered in the negative stating that it is very difficult to be caused. Moreover, the witness has also stated to have noticed, neither any smell of alcohol in the mouth of the deceased nor any symptom on him of consumption of alcohol. Therefore, it is well established from the evidence that Sri.John.C. died due to the fatal injury received on his neck, below left ear, which is well described by PW13 in Ext.P6 as antemortem injury No.1. In the said circumstances, the prosecution can only be said to have successfully established that Sri.John.C. succumbed to the antemortem injury noted in Ext.P6 Postmortem Certificate by PW13 as number 0ne, which as per the version of the ocular witnesses examined by the prosecution, evidenced as inflicted on him by Sri.Babu, the accused with MO4, the broken soda bottle. The irresistible conclusion follows is that Sri.John.C. died in the attack of Sri.Babu, the accused with MO4, the broken soda bottle. Therefore, the factum of death of Sri.John.C. due to the fatal injury received by him from Sri.Babu, who attacked him with a broken soda bottle on 29.9.2012 at 11.30 a.m. is established beyond reasonable doubt. 21. Then the question comes for consideration is that whether Sri.John.C. was murdered by Sri.Babu or that whether Sri.Babu can be found fault with for committing the offence of murder of Sri.John.C. under Section 300 I.P.C., liable to be punished under Section 302 IPC. 22. For attracting an offence under Section 302 I.P.C., it is inevitable on the part of the prosecution to establish that the accused had the intention to kill the victim. 22. For attracting an offence under Section 302 I.P.C., it is inevitable on the part of the prosecution to establish that the accused had the intention to kill the victim. Therefore, whether the prosecution had succeeded to establish the intention of Sri.Babu to kill Sri.John.C. is relevant for consideration. In this regard, the versions of PWs. 2 to 4 need appreciation. As already stated, all three of them were ocular witnesses. Their versions on material aspects of the case corroborate each other. As rightly contended by the learned counsel representing the accused, the prosecution has thoroughly failed to establish the motive behind the commission of the offence. Whether motive is required to be established by the prosecution in the case on hand wherein direct evidence of PWs.2 to 4, regarding the occurrence, is available for it to establish the guilt of the accused. It has been held by the Apex Court that motive is irrelevant and is not required to be established by the prosecution in a case wherein direct evidence regarding the occurrence is available for the prosecution to establish its case. In a case wherein the prosecution is proposing to establish its case on circumstantial evidence alone, it is mandatory and inevitable to establish the motive, the accused had for the commission of the offence. Since in the case on hand, the entire case of the prosecution is built upon the oral evidence of PWs.2 to 4, who were present at the scene of occurrence at the relevant time of commission of the offence by Sri.Babu and have deposed as seen the incident, the argument advanced by the learned counsel for the defence that the prosecution case is liable to fail on account of the failure of the prosecution to establish the motive is devoid of any merit and is only liable to be discarded. 23. The next point to be considered in the circumstances of the case on hand is to see whether Sri.Babu had the intention to commit the murder of Sri.John.C. PWs.2 to 4 had given consistent versions that prior to the incident in question, they saw the accused and the victim engaged in a conversation at a place near to the shops conducted by them. PW3 is the only ocular witness who had spoken about the duration of the talk, as lasted for ten minutes. PW3 is the only ocular witness who had spoken about the duration of the talk, as lasted for ten minutes. According to the three witnesses, who have been examined by the prosecution, the subject on which their talk was based, was not known to them. None of the witnesses have a case that the deceased and the accused were exchanging words in a heat of passion or that they were quarreling. They have not even a case that each of them was speaking aloud. Lest, their version was that both the accused and the deceased were persons known to them and were friends. The versions of ocular witnesses are consistent and corroborative with that of others especially when they speak that the accused rushed to PW4's shop, took an empty soda bottle therefrom, broke it and blew it at the neck of the victim and in the impact, a fatal injury was received by him, which turned fatal and ended in his death. 24. An attempt was made by the defence to establish that Sri.Babu had consumed alcohol at the relevant time and the act was committed under the influence of intoxication. With reference to that aspect, the version of PW1 was that xxx xxx 25. The version of PW2 on that aspect is also relevant and is extracted hereinbelow:- xxx xxx Version of PW4 is also to the same effect and is extracted hereunder:- xxx xxx 26. Therefore, none of the ocular witnesses support the case attempted to be established by the defence that the accused under the influence of intoxication had committed the acts. 27. With regard to the genesis of the incident, all ocular witnesses are consistent in their versions that it happened all on a sudden. All of them have given identical version about the arrival of the deceased and accused together to the spot and regarding the conversation they had for sometime. The subject on which they were conversing was not heard by any one of them or known to them. However, none have given a version that there was a wordy altercation among them at the relevant time. If something of the nature was there, the witnesses would have spoken about that. Both the accused and the deceased were known to all the witnesses and they were not aware of any enmity among them. However, none have given a version that there was a wordy altercation among them at the relevant time. If something of the nature was there, the witnesses would have spoken about that. Both the accused and the deceased were known to all the witnesses and they were not aware of any enmity among them. In the specific words of PW4, the deceased was a silent type person. The versions of all the three ocular witnesses are not tainted with any discrepancy when they state that after arriving at the spot and talking for a while that the accused went to PW4's shop to take the empty soda bottle, broke it and blew the same at the deceased. The blow hit on the neck of the deceased below his left ear and inflicted an injury there, which turned fatal and resulted in his death. The said injury was identified by the Police Surgeon who had conducted the postmortem examination as fatal and opined as sufficient in the ordinary course of nature to cause death. The witnesses of the occurrence have also no case that the accused had blown the broken bottle severally at the deceased. As per their versions, there was only a single blow and in the impact, the deceased fell down. In the version of the witnesses, the accused immediately fled therefrom to hide somewhere. In the given circumstances, there is absolutely no reason even to consider that the accused had perceived a plan in his mind to commit the act. The conduct of the accused had to be viewed in the backdrop of a prudent man and in the circumstances of the case of which identical versions have been given by PWs.2 to 4 that the accused and the deceased were friends and do not have a tint of rivalry as existing among them, known even at least to people having acquaintance with them. As evident from the versions of PWs.2 to 4, they came to the spot together. They were not under influence of intoxication. The factum of non-intoxication of the deceased was medically declared by PW13 also. The subject matter of their talk though not known to any of the witnesses, none of them have a case that there had occurred a wordy altercation among the accused and the deceased immediately prior to the incident. They were not under influence of intoxication. The factum of non-intoxication of the deceased was medically declared by PW13 also. The subject matter of their talk though not known to any of the witnesses, none of them have a case that there had occurred a wordy altercation among the accused and the deceased immediately prior to the incident. Evidence is totally lacking to convince us that there had been exchange of words loudly or out of heat of passion. What have come out from the mouth of the witnesses was that there was a casual talk of the accused and the deceased. However, something happened during their talks so as to cause dislike to the accused and consequently, he rushed to PW4's shop to take the empty soda bottle, broke it then and there and stabbed the deceased. It is true that the prosecution failed to establish the mental element that prompted the accused to do so. In the circumstances of the case, when the ocular witnesses have no idea about what had been transpired among the accused and the deceased as it was not sufficiently clearer or louder for them to perceive, it is a difficult task for the prosecution to establish. The act from the side of the accused happened all on a sudden and in the absence of intoxication of accused at the relevant time and previous animosity among the accused and the deceased, it could be taken only as an outcome of a grave and sudden provocation. There was only a single blow and it hit on the neck of the deceased, a vital part of the body. 28. The only injury was also opined medically as the fatal one that caused the death. Yet another antemortem injury was identified by PW13 during the postmortem examination and reported in Ext.P6, but in the context on hand, when witnesses have not spoken about a second blow, the said injury cannot be taken to have inflicted by the accused. It being an abrasion, it is also unlikely to be caused with a broken soda bottle. The witnesses have consistent version that after the first blow itself, the deceased fell down and the accused left the place in a rush. It being an abrasion, it is also unlikely to be caused with a broken soda bottle. The witnesses have consistent version that after the first blow itself, the deceased fell down and the accused left the place in a rush. In the absence of a say from the ocular witnesses regarding a second blow by the accused on the deceased, and when evidence is there regarding the fall of the deceased after the first blow on the floor of a shop situated nearby, it can only be taken to have caused in the fall. In the nature of that injury, that alone can be the plausible cause of the same. If the accused had the intention to kill the deceased, he would not have been stopped with a single blow. Absence of repeated blows and lack of several injuries found on the body of the deceased are indicative of the fact that the accused at the relevant time of the commission of the Act had no intention to kill John.C. 29. In the given circumstances of the case, it cannot be said that the accused does not have the knowledge about the consequence of the act. The weapon used was an empty soda bottle. The accused broke the empty soda bottle and aimed a blow with that on the neck of the deceased. The neck is a vital part of the body. The accused being a man of normal reasoning power and in the absence of any evidence to establish that the exercise of his intellectual power in a usual and ordinary manner at the relevant time was restrained by any causative factors, it cannot be said that he had no knowledge of the consequence of a blow with a broken bottle on the neck of a person. In the case on hand, the entire incident happened on a spur of moment and therefore, it cannot be said to be a premeditated one also. Even otherwise, evidence of ocular witnesses clearly indicate that the accused and the deceased, who are friends, had arrived at the spot together and had friendly talk for sometime, which according to PW3 and PW4 lasted for a very short while. Therefore, it is clear from the evidence on record that there was no provocative act or words from the side of the deceased prior to the accused proceeded to commit the offence. Therefore, it is clear from the evidence on record that there was no provocative act or words from the side of the deceased prior to the accused proceeded to commit the offence. What had prompted or provoked the accused to be aggressive and to commit the act is not known to any of the witnesses of the prosecution. Something must have been originated during the conversation to provoke the accused, but that remained a matter solely confined to the knowledge of the accused and the deceased. Witnesses, PWs.2 to 4, have stated during examination that the conversation among the accused and the deceased was not heard by any of them. Therefore, the defence cannot be heard to contend that the prosecution has failed to establish the element that exists in the conversation among the accused and the deceased, which provoked the former from committing the act, that resulted in the death of the victim. Solely on the reason that direct evidence has not been adduced by the prosecution to establish the factor that provoked the accused from committing the act, the prosecution cannot be heard to have failed in establishing the guilt against the accused, especially in a case wherein direct evidence as to the commission of the offence by the accused is available. In the case on hand, the accused had turned aggressive during the conversation he had with the victim, in a spur of moment and the fact that he was provoked by something that has been transpired among them is inherent in his conduct itself. When the ocular witnesses had no occasion to hear the conversation on account of themselves being engaged in other activities, the prosecution cannot be condemned for not adducing positive evidence in that regard. In the case on hand, it can only be deduced from the evidence of Pws.2 to 4 that the accused had proceeded to attack the victim only based on some sudden provocation from the deceased, during the course of their conversation. It is pertinent to note that the prosecution has thoroughly failed to establish intention of the accused to commit the offence. Therefore, the court below was not justified in finding the accused guilty for the offence under Section 300 I.P.C. and convicting and sentencing him under Section 302 IPC. It is pertinent to note that the prosecution has thoroughly failed to establish intention of the accused to commit the offence. Therefore, the court below was not justified in finding the accused guilty for the offence under Section 300 I.P.C. and convicting and sentencing him under Section 302 IPC. The court below ought not to have found the accused guilty under Section 300 IPC and in the said circumstances, the conviction of the accused cannot fall under Section 302 IPC. At the most, a conviction under Section 304 Part II alone is possible in the case on hand. The impugned judgment on the said ground is only liable to be modified. In the result, the Criminal Appeal is allowed in part. The conviction of the accused under Section 302 is set aside. The accused is found guilty of the offence under Section 304 Part II of Indian Penal Code and he is convicted for that offence and thereby sentenced to undergo simple imprisonment for a term of five years. It is noticed from the proceedings of the case that the accused was never enlarged on bail after his arrest in the case on 30.9.2012. Therefore, he was in custody for the last more than five years and had undergone the sentence for the period. In the said circumstances, since the sentence of imprisonment is modified by us from life imprisonment to five years, the accused is ordered to be set at liberty forthwith taking into account the term of imprisonment already undergone by him. This appeal is allowed in part.