Rajeev Gupta, J.
1. Appellant Prem Nepali @ Prem Bahadur stands convicted under Section 302, IPC with sentence of imprisonment for life, vide impugned judgment dated 30-11-91 passed by 1st Additional Sessions Judge, Bhopal, in Sessions Trial No. 201/88.
2. The appellant has been found guilty of causing injuries on the right thigh of deceased Guddu @ Shahzad by means of knife, in the evening of 26-8-88, leading to his death the same night.
3. At the trial, accused Prem Nepali @ Prem Bahadur abjured hisguilt and pleaded false implication to the charge framed by the Trial Court under Section 302, IPC.
4. The charge of 'murder' against the accused was sought to be proved on the evidence of Bhole Shafiq (P.W. 1), Mohd. Nazir (P.W. 2), Dr. Abdul Hakeem (P.W. 3), Rameshwar Pandey (P.W. 4), Ram Palat Pandey (P.W. 5), Brijwasi Prasad (P.W. 6), Laxman Singh (P.W. 7), Dr. Suneet Kaur (P.W. 8), Dr. Daryav Singh Badkur (P.W. 9), J.P. Garg (P.W. 10), Abdul Majid (P.W. 11), Vishnu Prasad Tiwari (P.W. 12), Noshe @ Majju (P.W. 13), Habib Khan (P.W. 14), Vijay Singh (P.W. 15), Uma Shanker (P.W. 16), Kalideen Gupta (P.W. 17), Haseen Khan (P.W. 18), Ilias (P.W. 19) and Narayan Prasad (P.W. 20). The accused did not examine any witness in his defence.
5. The Trial Court on the ocular and medical evidence led by the prosecution at the trial held it proved that deceased Guddu @ Shahzad sustained external injuries on his right thigh, in the evening of 26-8-88, and died a homicidal death on account of those injuries. Relying upon the eye-witness account of Mohd. Nazir (P.W. 2), the Trial Court held accused Prem Nepali @ Prem Bahadur guilty of causing those injuries on the thigh of the deceased which resulted in his death. On the above findings, the Trial Court convicted and sentenced accused Prem Nepali @ Prem Bahadur as mentioned above.
6. Ku. Neena Khera, the learned Counsel for the appellant, vehemently argued that the Trial Court has erred in relying upon the solitary eye-witnesses account of Mohd. Nazir (P.W. 2), whose evidence suffers from serious infirmities.
7. Shri R.K. Verma, the learned Panel Lawyer, on the other hand supported the impugned judgment of conviction and contended that the evidence of Mohd. Nazir (P.W. 2) does not suffer from any infirmity whatsoever and, therefore, the Trial Court has not committed any illegality in recording the appellant's conviction on his evidence.
8. The facts that deceased Guddu @ Shahzad sustained external injuries on his right thigh by means of a knife, in the evening of 26-8-88, and died a homicidal death on account of those injuries were neither in dispute at the trial nor are under challenge before us in this appeal. Even otherwise, there is sufficient ocular and medical evidence on record to establish the above facts beyond any shadow of doubt. We, therefore, uphold the findings recorded by the Trial Court in that behalf.
9. True, the other eye-witness Ilias (P.W. 19) did not support the prosecution case at all and the appellant's conviction is founded on the solitary eye-witness account of Mohd. Nazir (P.W. 2). In his evidence in the Court Mohd. Nazir (P.W. 2) has categorically deposed that on the fateful day somewordy quarrel took place between the appellant and the deceased and it was during this quarrel that the accused suddenly took out a knife and dealt blows on the thigh of the deceased. It is further in his evidence that at this juncture deceased Guddu @ Shahzad also dealt a stick blow on the head region of the deceased. In his cross-examination, he frankly admitted his relationship with the deceased. He stood firm in his cross-examination and his evidence could not be shaken at all. It appears that this witness was examined by the prosecution and cross-examined by the defence on 4-1-89, and was re-examined and cross-examined again after 6 months on 19-7-89. This gap of 6 months appears to have resulted in some minor discrepancies in his evidence. We do not find any material in his cross- examination which may render his evidence unworthy of credence. To us, he appears to be a truthful witness and his evidence can safely be acted upon.
10. On a close scrutiny of the evidence of Mohd. Nazir (P.W. 2), we are satisfied that the Trial Court has rightly believed his evidence in holding appellant Prem Nepali @ Prem Bahadur guilty of causing those injuries on the right thigh of the deceased which resulted in his death.
11. The next question which crops up for consideration in this appeal is about the nature of the offence proved against the appellant.
12. The learned Counsel for the appellant placing reliance on the dictum of the Apex Court, in the case of Krishna Tiwari and Anr. v. State of Bihar, reported in JT 2001 (3) SC 331, submitted that as there was no prior ill-will between the deceased and the appellant; that the deceased came to sustain injuries at the hands of the appellant during the course of a sudden quarrel; and, that the appellant dealt blows on the thigh (a non-vital part of the body) of the deceased, the offence against the appellant would not be one of 'murder', punishable under Section 302, IPC.
13. The Apex Court, in the case of Krishna Tiwari and Anr. v. State of Bihar (supra), while considering the offence proved against the accused in that case, observed in para 4 :--
'4. In our view, there is much substance in the contentions raised by the learned Senior Counsel for the appellants. From the evidence on record it is apparent that the incident took place all of a sudden. It has been admitted by the prosecution witnesses that prior to the incident relations between the brothers were cordial. It has been specifically stated by informant Anil Tiwari (P.W. 7) in his cross-examination that they were having best of relations with the accused prior to the incident. He has also denied the suggestion that there was property dispute between them. The witness has also admitted that the appellant KrishnaTiwari came empty-handed and that incident took place because they scolded Manoj Kumar and deceased removed him from the middle of the door. He has also stated that after coming down Krishna Tiwari caught hold of the collar of Paramhans and asked him why his cleaner was beaten. So, it is apparent that some quarrel took place between the deceased and Krishna Tiwari. At that moment, it is alleged that Krishna Tiwari uttered the word 'assault' and thereafter Dadan Tiwari inflicted two knife blows. It is true that the first knife blow proved fatal; with regard to the second knife blow, admittedly, it is a simple injury which is skin deep. From the record, it is apparent that the prosecution has suppressed the evidence of other witnesses, particularly that of Manoj Kumar who was the cause of quarrel. However, taking the prosecution case as it is, it is apparent that the role played by A-1 is absolutely limited. Therefore, the Trial Court has convicted him by resorting to Sections 109 and 111 of IPC. Further, it is admitted that relationship between the brothers and the family members were cordial prior to the incident. The incident took place all of a sudden and without any pre-meditation. Manoj, cleaner of the appellant was standing in the middle of the door and the ladies of the house were having obstruction in coming and going out from the house, therefore, he was scolded by deceased and removed from that place by use of force. It appears that he conveyed something, which has not come on record because Manoj is not examined, to the appellants. Appellants came down and the quarrel took place between deceased and Krishna Tiwari (A-1). In such a sudden quarrel and in the heat of passion, appellant No. 2 son of Krishna Tiwari (A-1), inflicted a fatal blow to the deceased. Further he has not acted in any cruel or unusual manner nor he has taken any undue advantage. Hence, at the most appellant No. 2 would be liable to be convicted for the offence punishable under Section 304 Part-I, IPC and the appellant No. 1 for the offence under Section 304, Part I, read with Section 109 and Section 111, IPC.....'
14. Now, reverting to the present case admittedly there was no prior ill-will between deceased Guddu @ Shahzad and appellant Prem Nepali @ Prem Bahadur. It was on account of the act of the deceased himself of snatching some amount from the appellant that a quarrel took place between the two. The appellant is said to have dealt knife blows on the thigh (a non-vital part of the body) of the deceased during this sudden quarrel. Admittedly, no blow was aimed at any of the vital parts of the body. In the same incident,the deceased also dealt a stick blow on the head region of the accused resulting in grievous injury. On a cumulative consideration of the above mentioned broad features of the case, we find it difficult to hold that appellant Prem Nepali @ Prem Bahadur while dealing knife blows on the thigh of the deceased had intended to cause his death. Thus, the above act of the appellant in our considered view would not amount to the offence of 'murder' punishable under Section 302, IPC. Nevertheless, the appellant cannot escape from the liability of his above act altogether. In the fact situation of the present case, the act of the appellant of causing knife blows on the thigh resulting in his death would certainly amount to the offence of 'culpable homicide not amounting to murder' and in the fact situation of the present case would be punishable under Section 304 (I), IPC.
15. As for the sentence on considering the background, nature and manner of the incident and the number and nature of the injuries found on the deceased, we are of the considered view that jail sentence of rigorous imprisonment for 10 years would be the sufficient punishment for the offences now found proved against the appellant under Section 304 (I), IPC and would meet the ends of justice.
16. For the foregoing reasons, the appeal filed by appellant Prem Nepali @ Prem Bahadur against his conviction and sentence is allowed in part. Appellant's conviction under Section 302, IPC and sentence of imprisonment for life are hereby set aside. Instead, the appellant is convicted under Section 304 (I), IPC and is sentenced to rigorous imprisonment for 10 years.
17. From the records, we gather that appellant Prem Nepali @ Prem Bahadur was arrested by the police, on 28-8-88 and since then he remained in jail till he was released on bail on 22-5-92, in pursuance of this Court's order dated 24-4-92. Thereafter, he was again taken into custody on 1-9-93 in execution of the warrant of arrest issued against him and since then the appellant is in custody. As such, the appellant now has been in custody for a total period of more than 10 years. The appellant thus has already served out whole of the jail sentence of rigorous imprisonment for 10 years now awarded on his conviction under Section 304 (I), IPC.
18. We, therefore, direct that appellant Prem Nepali @ Prem Bahadur be set at liberty forthwith, if not wanted in connection with any other case.