The intention appears more to have been to teach a lesson by the venting of ire by an irked neighbour, due to loud playing of the tape recorder = On consideration of the entirety of the evidence, it can safely be concluded that the occurrence took place in the heat of the moment and the assault was made without premeditation at the spur of time. The fact that the Appellant may have rushed to his house across the road and returned with a sword, is not sufficient to infer an intention to kill, both because of the genesis of the occurrence and the single assault by the Appellant, coupled with the duration of the entire episode for 1½ to 2 minutes. Had there been any intention to do away with the life of the deceased, 4 nothing prevented the Appellant from making a second assault to ensure his death, rather than to have run away. The intention appears more to have been to teach a lesson by the venting of ire by an irked neighbour, due to loud playing of the tape recorder. But in the nature of weapon used, the assault made in the rib cage area, knowledge that death was likely to ensue will have to be attributed to the Appellant. In the entirety of the evidence, the facts and circumstances of the case, we are unable to sustain the conviction of the Appellant under Section 302 I.P.C. and are satisfied that it deserves to be altered to Section 304 Part­II I.P.C. It is ordered accordingly.

NON­REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
    CRIMINAL APPEAL NO.545 OF 2011
DEEPAK ....APPELLANT(S)
VERSUS
STATE OF UTTAR PRADESH
(NOW UTTARAKHAND)      ...RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
The Appellant assails the reversal of his acquittal, and
consequent conviction under Section 302 I.P.C. sentencing
him to life imprisonment. 
2. On 27.08.1993 at about 8.30 a.m., irked by the loud
noise of the tape recorder being played by the deceased in
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his house, the Appellant had a verbal altercation with the
deceased which culminated in a single sword blow by the
Appellant in the rib cage area of the deceased.
3. The M.L.C. of the injured was done at 8.45 a.m. by
PW.8 Dr. S.K. Prabhakar who found an incised wound of
2½ cm x 2 cm.  The injured was deceased the same day.
The post mortem was done the same day at 3.30 p.m. by
PW­5 Dr. P.K. Bhatnagar, who found
“Punctured wound 2 cm x 1 cm x cavity deep
just above upper border of the left lower rib on
lateral side of chest 9 cm away from umbilicus
at 2 O’clock position with surgical dressing”.
4. The Trial Court granted the benefit of doubt to the
Appellant.   The   High   Court   on   reappreciation   of   the
evidence, particularly the testimony of PW­4 Omwati, an
injured witness, and other eye­witnesses PW­1 Babu Ram,
PW­2   Ram   Kumar   and   PW­3   Kalu   Ram,   convicted   the
Appellant.
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5. We   have   considered   the   submissions   made
respectively on behalf of the parties. The trial court has laid
exaggerated   emphasis,   by   erroneous   appreciation   of
evidence,   on   minor   omissions   and   contradictions   in   the
evidence   of   PW­1,   PW­2   and   PW­3   so   as   to   doubt   the
veracity   of   the   entire   prosecution   case   without   any
discussion of the injured eye witness PW­4.  The High Court
upon reappreciation of the evidence has correctly held that
the evidence of PW­4 stands corroborated by the other three
prosecution witnesses.
6. It is manifest from the evidence of the prosecution
witnesses   that   the   Appellant   and   the   deceased   lived
opposite each other across the road. Their houses were
separated by a distance of approximately 20­25 feet by the
road in­between. The genesis of the occurrence was the
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loud   playing   of   a   tape   recorder   in   the   house   of   the
deceased, objected to by the Appellant.  A verbal argument
ensued.  The Appellant rushed across to his house, came
back   with   a   sword   and   delivered   a   single   blow   to   the
deceased   in   the   rib   cage   area   and   then   ran   away
threatening to see him later.  The entire altercation is stated
to have lasted for 1½ to 2 minutes.
7. On consideration of the entirety of the evidence, it can
safely be concluded that the occurrence took place in the
heat of the moment and the assault was made without premeditation
at the spur of time.  The fact that the Appellant
may have rushed to his house across the road and returned
with a sword, is not sufficient to infer an intention to kill,
both   because   of   the   genesis of   the   occurrence   and   the
single assault by the Appellant, coupled with the duration
of the entire episode for 1½ to 2 minutes.  Had there been
any intention to  do  away  with the life of the deceased,
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nothing   prevented   the   Appellant   from   making   a   second
assault to ensure his death, rather than to have run away.
The intention appears more to have been to teach a lesson
by the venting of ire by an irked neighbour, due to loud
playing of the tape recorder.  But in the nature of weapon
used, the assault made in the rib cage area, knowledge that
death was likely to ensue will have to be attributed to the
Appellant.  
8. In   the   entirety   of   the   evidence,   the   facts   and
circumstances of the case, we are unable to sustain the
conviction of the Appellant under Section 302 I.P.C. and are
satisfied that it deserves to be altered to Section 304 Part­II
I.P.C.  It is ordered accordingly.  Considering the period of
custody   undergone   after   his   conviction,   we   alter   the
sentence to the period of custody already undergone.  The
Appellant may be released forthwith if not required in any
other case.
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9. The   appeal   is   therefore   allowed   in   part   with   the
aforesaid modification of the conviction and sentence.
…………...................J.
[RANJAN GOGOI]
…………...................J.
[R. BANUMATHI]
…………...................J.
[NAVIN SINHA]
NEW DELHI
AUGUST 01, 2018
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