IMPORTANT POINT
When courts below take a possible view, no interference would be warranted.
Injury caused with force with intention to kill attracts section 302 IPC.

JUDGMENT

ADARSH KUMAR GOEL, J.

1. This appeal has been preferred against the judgment and order dated 17th November, 2007 passed by the High Court of Uttarakhand at Nainital in Criminal Appeal No.158 of 2007 upholding the conviction of the appellant under Section 302 of the Indian Penal Code and sentence to undergo life imprisonment.

2. Case of the prosecution is that the appellant caused the death of Surat Singh deceased with a stone at 8.30 P.M. on 1st April, 1983 at Village Jantanwala. On 2nd April, 1983 at 9.05 A.M., Mani Ram father of the deceased (who died during pendency of proceedings before the trial Court) lodged FIR to the effect that on 28th March, 1983, the deceased had gone to the house of the accused to celebrate holi. In the night, the accused came to the house of the complainant to assault the deceased alleging that he had knocked the door of his aunt Kumari Sunita in the night with evil intention when she was alone in her house. With the intervention of Mani Ram and PW 7 Raj Kumari, wife of the deceased, the accused was prevented from dragging the deceased out of the house but the accused left the house with a threat. On 1st April, 1983 when the deceased went to the nearby Dehradun city, he did not return home at the night. In the morning PW2 Lal Singh told him that the deceased was seen with the accused at 7.30 P.M. in the night. Further, Lakhi Ram PW 4 and Bahadur Singh PW 3 told him that the accused was seen beating the deceased with a stone at 8.30 P.M. One Jagdish Singh told him that he had seen the dead body near the bank of the river near the field of Ratan Singh.

3. After registering the FIR, the investigation was conducted by SO Rajpal Singh PW 11. Post mortem was conducted by Dr. I.F. Nath PW6. After completing the investigation, the accused was sent up for trial.

4. The prosecution examined as many as 12 witnesses. The accused in his statement under 313 Cr.P.C. took the plea that he was falsely implicated as he was member of Yuvak Gram Kalyan Samiti and he had made complaint to the District Magistrate against illegal distillation of liquor which made the police inimical to him. He had also made a complaint against illegal dealings of the contractors in selling Government cement which had made contractors inimical to him. He examined his brother, DW 1 Vijendra Kumar Sharma in support of his version.

5. After considering the evidence on record, the trial Court convicted and sentenced the appellant which has been affirmed by the High Court.

6. We have heard learned counsel for the parties.

7. Main contention urged on behalf of the appellant is that the evidence of Bahadur Singh PW 3 and Lakhi Ram PW 4 as eye witnesses is not reliable as if they had seen the occurrence as claimed, they could not have kept quiet in the night. It was further submitted that the alleged motive was far fetched and could not be believed. It was finally submitted that the case was covered by Exception 4 to Section 300 as it was a case of sudden fight in which both the parties threw stone at each other and thus the case falls under Section 304 Part II. Reliance has been placed on judgment of this Court in Ankush Shivaji Gaikwad vs. State of Maharashtra, 2013 (6) SCC 770.

8. We have given due consideration to the rival submissions and perused the record.

9. As far as reliability of evidence on record is concerned, we are of the view that re-appreciation of evidence is not called for in an appeal under Article 136 of the Constitution in absence of patent illegality or perversity merely because a different view could also be taken. In the present case, both the courts below have found the evidence of PW 3 Bahadur Singh and PW 4 Lakhi Ram to be reliable. Evidence of PW 7 Raj Kumari widow of the deceased has also been believed with regard to the earlier incident furnishing motive to the accused. PW 2 Lal Singh has also corroborated the version given by the eye witnesses by stating that he had seen the accused and deceased together just befor