TaxTMI 
TaxTMI 
2004 (10) TMI 640
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.... commission of offences punishable under Section 302 and Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short the 'IPC'). Both were found guilty and accordingly convicted while death sentence was imposed on the former, life sentence was imposed on the latter. Reference was made to the High Court for confirmation of the death sentence and appeals were filed by the accused persons. By the impugned judgment High Court altered the sentence to life sentence for the former and directed acquittal of the latter. 2. Facts giving rise to the prosecution of the two accused are that the complainant Achhaiber Misra (PW-1) and both the accused are residents of Village Ledupur within the circle of police station Sarnath distr....
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....nd the dead bodies. Complainant Achhaiber Misra went to the police station Sarnath in district Varanasi and lodged a written report (Ex. Ka-1) there at about 8.15 A.M. On it G.D. entry was made at the police station and a case against the appellants was registered. The Investigating Officer, S.I. Sri Sita Ram Chaudhary (PW-6) reached the scene of occurrence. He inspected the site and prepared the site plan Ex. Ka-6. Thereafter he recorded the statements of the witnesses and took the sample and blood stained earth from the scene of occurrence and also prepared the Panchayatnamas of the dead bodies. The dead bodies were sent to District Hospital, Varanasi where post mortem examination was conducted on 4.11.1995 vide post mortem reports Ext. K....
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....el and, therefore, Section 302 IPC has no application. 6. In response learned counsel for the State submitted that the evidence of PWs 1 and 2 have described the incident in detail and same have been held to be cogent and credible. No infirmity has been noticed and the appellant has not been able to show any infirmity except describing PW-2 as a chance witness. The case is clearly covered under Section 302 IPC and Exception 4 to Section 300 IPC has no application. The cruel manner in which two persons have been brutally killed makes the said Exception non-applicable. In support of the appeal filed, it was submitted that on the selfsame evidence Sachchey Lal has been found guilty. No plausible reason has been indicated to discard it for acq....
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....he courts below have scanned the evidence of PW-2 in great detail and found it to be reliable. We find no reason to differ. 8. For bringing in operation of Exception 4 to Section 300 IPC it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. 9. The Fourth Exception of Section 300, IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. B....
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....thout the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300, IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two or more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a su....
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....of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. [See Bhagwan Singh and Ors. v. State of Madhya Pradesh 2002 (2) Sup 567 . The principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing mate....