Allahabad High Court
Asha Ram And Another vs State Of U.P. on 16 September, 2019
Equivalent citations: AIRONLINE 2019 ALL 1714
Bench: Pritinker Diwaker, Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No.48
Criminal Appeal No. 1349 of 1989
1. Asha Ram
2. Komal Appellants
Vs
State of U.P. Respondent
For Appellant : Sri Sri Jai Singh Yadav, Advocate
For Respondent : Sri Amit Sinha, AGA
Hon'ble Pritinker Diwaker, J.
Hon'ble Raj Beer Singh, J.
Per: Pritinker Diwaker, J (16.9.2019)
1. The present appeal arises out of impugned judgement and order dated 7.6.1989 passed by the Sessions Judge, Lalitpur in Sessions Trial No.25 of 1988, convicting the appellants under Sections 302/34 and 323/34 of IPC and sentencing them to undergo imprisonment for life under Section 302/34 and six months rigorous imprisonment under Section 323/34 of IPC, with a direction that both the sentences shall run concurrently.
2. As per prosecution case, on 15.10.1987, at about 9:00 p.m., deceased Pooran Singh had gone to the house of accused persons to say that on the next morning his agricultural field may also be sowed by them. It is said that accused persons replied that they did not have sufficient seed and, therefore, they may not sow his filed. Hearing this, some altercation took place between the accused persons and the deceased. They started abusing each other and then it is said that the accused appellants caused injuries to the deceased by clubs, axe and Kholiya (an agricultural weapon which has pointed edge). Accused Asha Ram and Komal both were carrying clubs with them and accused Komal and Prabhu also suffered injuries. Further case of the prosecution is that Sita Ram (PW-2) eyewitness to the occurrence had also suffered injuries. By the time, efforts were being made to shift deceased Pooran Singh to the hospital, he expired. On 16.10.1987 at 3:15 a.m., on the basis of written report lodged by Vishwanath (PW-1), FIR Ex.Ka.5 was registered against four accused persons, namely Komal, Asha Ram, Prabhu and Ram Prasad under Section 302 of IPC.
3. Inquest on the dead body of the deceased was conducted vide Ex.Ka-7 on 16.10.1987 and the body was sent for post-mortem, which was conducted on the same day vide Ex.Ka.3 by Dr J.C. Gupta (PW-5). As per post-mortem report, following injuries were noticed on the body of the deceased:
"1. Lacerated wound on the right side of head 5cms x 1cm x Bonedeep, 8cms above Rt Eyebrow. Fracture of Both Parietal Bones seen. Haematoma present on Rt side of Head.
2. Contusion 4cms x 1.5cms on Rt side of neck.
3. Multiple contusions in an are of 9cms x 5cms on Lt sdie of abdomen, 2.5cms above deguinal region.
4. Contusion 9cms x 2.5cms vertically pleced on front of Lt. thigh.
5. Lacerated wound 8cms x .75cms x bonedeep on Rt leg; 13cms above Right Ankle joint"
According to autopsy surgeon, cause of death of the deceased was due to coma, as a result of ante-mortem head injury.
4. While framing charge, the trial Judge has framed the charge under Sections 302/34 and 323/34 of IPC against the four accused persons.
5. So as to held accused persons guilty, prosecution has examined ten witnesses. Statements of all the four accused persons were recorded under Section 313 of Cr.P.C. in which they have pleaded their innocence and false implication.
6. By the impugned judgement, the Trial Judge has acquitted accused Prabhu and Ram Prasad of all the offences, whereas appellants Asha Ram and Komal have been convicted and sentenced as stated in paragraph no. 1 of this judgement. Hence, this appeal.
7. Learned counsel for the appellants submits:
(i) that two witnesses Vishwanath (PW-1) and Sita Ram (PW-2) are not reliable.
(ii) that it is the deceased, who came to the house of accused persons, had an altercation with them and then some incident of marpeet took place. In the incident, accused Prabhu and Komal have also suffered injuries and thus, even if the entire prosecution case is taken as it is, appellants cannot be convicted under Section 302/34 of IPC. At best, they are liable to be convicted under Section 304 Part-II of IPC.
8. On the other hand supporting the impugned judgment, it has been argued by the State counsel that conviction of the appellants is in accordance with law and there is no infirmity in the same.
9. We have heard learned counsel for the parties and perused the record.
10. Vishwanath (PW-1) is an eyewitness to the incident and the first informant. He has stated that accused appellants and the deceased Pooran Singh were residing in their village and at the time of occurrence, after hearing the commotion, when he had gone to the house of appellants, he saw the appellants and the deceased quarrelling over sowing of the agricultural field. He states that accused appellants were carrying clubs in their hands, whereas acquitted accused persons were having axe and Kholiya (an agricultural weapon which has pointed edge). He states that the accused persons had beaten the deceased and they had also caused injuries to Sita Ram (PW-2). In cross-examination, this witness remained firm and nothing could be elicited from him. He has clarified that there was sufficient source of light at the place of occurrence.
11. Sita Ram (PW-2) is an injured eyewitness to the incident. While supporting the prosecution case, he too has stated that accused persons were having clubs with them, whereas acquitted accused persons were having axe and Kholiya (an agricultural weapon which has pointed edge). The quarrel was going on between the appellants and the deceased over sowing of the agricultural field and then deceased was beaten and he too was subjected to assault by the appellants. In cross-examination, this witness also remained firm and has reiterated as to the manner in which the incident occurred.
12. Pritam (PW-3) and Anandi (PW-4) have turned hostile.
13. Dr. J.C. Gupta (PW-5) conducted the postmortem on the body of the deceased. Dr. Prakash Chandra Agarwal (PW-6) did the MLC of Sita Ram (PW-2). He also medically examined accused Prabhu and Komal.
As per Dr. P.C. Agarwal (PW-6) following injuries were found on the body of Sita Ram (PW-2):
"(1) Lacerated wound over left eye brow in lateral aspect 2.75cms x 1cm x muscle deep. Bleeding present. Margins irregular. Left eyes closed. Kept under observation. Referred to Ophthalmologist for opinion and treatment.
(2) Lacerated wound over left cheek just between left eye 1.5cms x .5cm x muscle deep. Margins irregular, 2cms away from left eye. Bleeding present.
(3) Oblique abraded contusion over the nipple 13cms x 3 cms. Reddish.
(4) Oblique abraded contusion just below injury no.3, 26cms x 2.5cms. Reddish.
(5) Oblique abraded contusion just below injury no.4, 8cms x 2.5 cms Redish.
(6) Oblique abraded contusion from umlicus to left thigh, 30cms x 3cms. Reddish.
(7) Left testicle is swollen and tender and abrasion over anterior aspect, 3 cms x 2.5 cms. Reddish.
(8) Abraded contusion present over right Rt knee medical aspect, 13 cms x 2 cms x Reddish."
14. Nar Singh Das (PW-7) is also an eye witness to the incident, has duly supported the prosecution case.
15. Amar Singh Bhadauria (PW-8) did initial part of investigation. Ashok Kumar Bajpai (PW-9) is a constable, who has assisted during investigation and J.K. Singh Chauhan (PW-10) is an Investigating Officer, who has filed the chargesheet.
16. Close scrutiny of evidence makes it clear that on 15.10.1987, deceased Pooran Singh had gone to the house of accused appellants and had a quarrel with them over sowing of his agricultural field. During altercation, accused appellants caused injury to the deceased and they also injured Sita Ram (PW-2). In the incident, accused Prabhu and Komal have also suffered injuries. The incident was witnessed by Vishwanath (PW-1), Sita Ram (PW-2) and Nar Singh Das (PW-7). All the three witnesses have duly supported the prosecution case. From their statements, it is apparent that the incident occurred all of a sudden and there was no premeditation on the part of the accused to commit the offence. Only one grievous injury has been found on the head of the deceased resulting his death. The said injury is said to have been caused by the clubs which were in the hands of accused persons. Undisputedly, it is the deceased who had gone to the house of the accused persons and then they had altercation resulting the occurrence. In the incident, accused Komal and Prabhu have also suffered injuries.
17. The question, which arises for consideration of this Court is as to whether the act of accused appellant would fall within the definition of 'murder' or it would be 'culpable homicide not amounting to murder'.
18. Before proceeding further, it is relevant to refer to the provisions of Section 300 of IPC, which read as under:
"300. Murder. - Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-
Secondly. - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or -
Thirdly. - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -
Fourthly. - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1. - When culpable homicide is not murder. - Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above Exception is subject to the following provisos:-
First. - That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly. - That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly. - That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation. - Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
Exception 2. - Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
Exception 3. - Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
Exception 4. - Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Explanation. - It is immaterial in such cases which party offers the provocation or commits the first assault.
Exception 5. - Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent."
Exception 4 to Section 300 of the IPC applies in the absence of any premeditation. This is very clear from the wordings of the Exception itself. The exception contemplates that the sudden fight shall start upon the heat of passion on a sudden quarrel. The fourth exception to Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of provocation 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. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1, but the injury done is not the direct consequence of that provocation. In fact, Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon an equal footing. A "sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor could in such cases the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) without the offenders 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 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 had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and 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 sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage".
19. The Apex Court in State of A.P. vs. Rayavarapu Punnayya and Another1 while drawing a distinction between Section 302 and Section 304 of IPC held as under:
"12. In the scheme of the Penal Code, "culpable homicide" is genus and "murder" its specie. All "murder" is "culpable homicide" but not vice-versa. Speaking generally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the greatest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.
21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is "murder" or "culpable homicide not amounting to murder", on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of "murder" contained in Section 300. If the answer to this question is in the negative the offence would be "culpable homicide not amounting to murder", punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be "culpable homicide not amounting to murder", punishable under the first part of Section 304, of the Penal Code."
20. In Budhi Singh vs. State of Himachal Pradesh2, the Supreme Court held as under:
18. The doctrine of sudden and grave provocation is incapable of rigid construction leading to or stating any principle of universal application. This will always have to depend on the facts of a given case. While applying this principle, the primary obligation of the court is to examine from the point of view of a person of reasonable prudence if there was such grave and sudden provocation so as to reasonably conclude that it was possible to commit the offence of culpable homicide, and as per the facts, was not a culpable homicide amounting to murder. An offence resulting from grave and sudden provocation would normally mean that a person placed in such circumstances could lose self-control but only temporarily and that too, in proximity to the time of provocation. The provocation could be an act or series of acts done by the deceased to the accused resulting in inflicting of injury.
19. Another test that is applied more often than not is that the behaviour of the assailant was that of a reasonable person. A fine distinction has to be kept in mind between sudden and grave provocation resulting in sudden and temporary loss of self-control and the one which inspires an actual intention to kill. Such act should have been done during the continuation of the state of mind and the time for such person to kill and reasons to regain the dominion over the mind. Once there is premeditated act with the intention to kill, it will obviously fall beyond the scope of culpable homicide not amounting to murder....."
21. In Kikar Singh vs. State of Rajasthan3 the Apex Court held as under:
"8. The counsel attempted to bring the case within Exception 4. For its application all the conditions enumerated therein must be satisfied. The act must be committed without premeditation in a sudden fight in the heat of passion; (2) upon a sudden quarrel; (3) without the offender's having taken undue advantage; (4) and the accused had not acted in a cruel or unusual manner. Therefore, there must be a mutual combat or exchanging blows on each other. And however slight the first blow, or provocation, every fresh blow becomes a fresh provocation. The blood is already heated or warms up at every subsequent stroke. The voice of reason is heard on neither side in the heat of passion. Therefore, it is difficult to apportion between them respective degrees of blame with reference to the state of things at the commencement of the fray but it must occur as a consequence of a sudden fight i.e. mutual combat and not one side track. It matters not what the cause of the quarrel is, whether real or imaginary, or who draws or strikes first. The strike of the blow must be without any intention to kill or seriously injure the other. If two men start fighting and one of them is unarmed while the other uses a deadly weapon, the one who uses such weapon must be held to have taken an undue advantage denying him the entitlement to Exception 4. True the number of wounds is not the criterion, but the position of the accused and the deceased with regard to their arms used, the manner of combat must be kept in mind when applying Exception 4. When the deceased was not armed but the accused was and caused injuries to the deceased with fatal results, the Exception 4 engrafted to Section 300 is excepted and the offences committed would be one of murder.
9. The occasion for sudden quarrel must not only be sudden but the party assaulted must be on an equal footing in point of defence, at least at the onset. This is specially so where the attack is made with dangerous weapons. Where the deceased was unarmed and did not cause any injury to the accused even following a sudden quarrel if the accused has inflicted fatal blows on the deceased, Exception 4 is not attracted and commission must be one of murder punishable under Section 302. Equally for attracting Exception 4 it is necessary that blows should be exchanged even if they do not all find their target. Even if the fight is unpremeditated and sudden, yet if the instrument or manner of retaliation be greatly disproportionate to the offence given, and cruel and dangerous in its nature, the accused cannot be protected under Exception 4...."
22. All the above three cases were considered by the Apex Court in Surain Singh v The State of Punjab4 and ultimately, it has been held by the Apex Court in that particular case, that the accused was liable to be convicted under Section 304 Part II of IPC and not under Section 302 of IPC.
23. If we apply the above principle of law in the present case, what emerges from the evidence, is that the incident occurred over sowing of the agricultural field of the deceased. The deceased himself had gone to the house of accused appellants and had a quarrel with them over aforesaid matter. During altercation, accused appellants caused injury to the deceased and they also injured Sita Ram (PW-2). Accused Prabhu and Komal have also suffered injuries in the incident. The incident was witnesses by Vishwanath (PW-1), Sita Ram (PW-2) and Nar Singh Das (PW-3). All these three witnesses have duly supported the prosecution case and from their statements, it transpires that incident occurred all of a sudden and there was no premeditation on the part of the accused to commit the offence. Only one grievous injury has been found on the head of the deceased resulting his death which is said to have been caused by the clubs which were in the hands of accused persons. Undisputedly it is the deceased who had gone to the house of the accused persons and there they had altercation resulting the occurrence.
24. In view of above, according to us, case of the appellants would thus fall under Exception 4 of Section 300 of IPC and it can be safely held that the appellant is liable to be convicted for committing 'culpable homicide not amounting to murder'.
25. Considering all the aspects of the case, we are of the view that the appellants cannot be convicted under Section 302/34 of IPC and they are liable to be convicted under Section 304 Part-II/34 of IPC. However, conviction of the appellants under Section 323/34 of IPC for assaulting Sita Ram (PW-2) is affirmed.
26. The next question which arises for consideration of this Court is as to what would be the appropriate sentence. Considering the fact that the incident occurred in the year 1987, we are of the view that the sentence of seven years rigorous imprisonment would be sufficient to meet the ends of justice. Accordingly, while convicting the appellants under Section 304 Part-II/34 of IPC, they are sentenced to seven years rigorous imprisonment.
27. Appeal is partly allowed. The appellants are reported to be on bail. Their bail bonds stand cancelled and they be taken into custody for serving the remaining sentence.
Order Date: 16.9.2019
RK/Mohit Kushwaha
(Raj Beer Singh, J) (Pritinker Diwaker, J)