Allahabad High Court
Sunil Gilat vs State Of U.P. on 11 February, 2019
Equivalent citations: AIRONLINE 2019 ALL 1603, (2019) 107 ALLCRIC 583, (2019) 2 ALLCRIR 1825, (2019) 5 ADJ 423 (ALL)
Bench: Vikram Nath, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD 1 A.F.R. Court No. - 55 Case :- CRIMINAL APPEAL No. - 2798 of 2012 Appellant :- Sunil Gilat Respondent :- State Of U.P. Counsel for Appellant :- P.K. Singh Counsel for Respondent :- Govt. Advocate Hon'ble Vikram Nath,J.
Hon'ble Rajeev Misra,J.
(Dictated by Hon'ble Rajeev Misra, J.) Sunil Gilat the appellant before us is challenging the validity and legality of the judgment and order dated 25.10.2011/29.10.2011 whereby and whereunder the appellant has been convicted under Section 302 I.P.C. and consequently sentenced to life imprisonment along with a fine of Rs.20,000/-. Upon failure to deposit the amount of fine so awarded, the appellant is to further undergo rigorous imprisonment of four years. Both the sentences were to run separately. We have heard Mr. Sukhvir Singh, the Amicus Curiae, Mr. P.K. Singh, the learned counsel for the appellant and Mr. Amit Singh Chauhan, the learned A.G.A. along with Mr. Pradeep Kumar Shahi, Brief Holder for the State.
Briefly stated, the facts giving rise to the present criminal appeal portray that an unfortunate incident occurred on 31.08.2009 at 12.30 p.m., in which the appellant Sunil Gilat is alleged to have fired upon Rajesh Makara with a country made gun. As a result of the aforesaid Rajesh Makara sustained fire arm injury. The occurrence is alleged to have been witnessed by the brother of the injured, namely, Bhaiya Lal who is said to be present near the place of occurrence. Immediately after the incident took place, 2 Bhaiya Lal, the brother of the injured and two other persons, namely, Ritik and Rajesh reached the spot. Thereafter the assailant Sunil Gilat ran away from the place of occurrence, along with the country made gun with which he had fired upon Rajesh Makara. Bhaiya Lal immediately rushed his injured brother to Urasala Hospital for medical treatment where he was referred to Hallet Hospital. Immediately Bhaiya Lal took his injured brother to Hallet Hospital, where he was admitted at 1.40 P.M. in Emergency Ward as is evident from the Bed- Head Ticket of the injured (Ext. KA-13). After the treatment of the injured Rajesh Makara commenced, the brother of the injured i.e. Bhaiya Lal proceeded to Police Station Raipurwa to submit the report of the aforesaid occurrence. He (Bhaiya Lal the real brother of the injured) submitted the written report of the incident on 31.03.2009 at 4.30 P.M. (Ext. KA-1). On the aforesaid written report the check FIR dated 31.08.2009 was registered as Case Crime No.192/09 under Section 307 I.P.C. (Ext.A-3). The check FIR contains a categorical recital regarding the time of occurrence as well as timing of the FIR, the distance between the place of occurrence and the Police Station. It also details the manner of occurrence and the consequential events which took place. As such, the FIR clearly states the basic prosecution case in unequivocal terms. After the above mentioned FIR was registered the statutory investigation of the aforesaid Case Crime Number commenced in terms of Chapter XII CR.P.C. The Investigating Officer S.I. Ravindra Kumar (P.W.4) to whom the investigation was entrusted, proceeded with the investigation. Having completed the formalities, the Investigating Officer then recorded the statement of the first informant Bhaiya Lal. Thereafter, the Investigating Officer went to the place of occurrence. He prepared the site plan 3 of the place of occurrence dated 31.08.2009 (Ext. KA-6). He also recovered earth mixed with blood as well as plain earth from the place of occurrence and sealed it. He also visited the injured on 31.08.2009 to record his evidence. However, the statement of the injured could not be recorded as he was unconscious. He also visited the house of the accused Sunil Gilat to secure his arrest but the accused was not present at home as such no arrest could be made. This I.O. ultimately arrested the accused Sunil Gilat on 2.9.2009 and from his person recovered a country made gun of . 315 bore, one live cartridge and an empty of the same bore. He thereafter recorded the statement of the accused. He filled Parcha Nos. 2-11 of the case diary.
On 10.09.2009 the investigation was transferred to Station Officer Akhilesh Kumar (P.W.6). He visited the injured on 11.09.2009. However, the statement of the injured could not be recorded as he was lying unconscious. He thereafter examined the record at the Police Station and discovered that 7 cases have been registered against the accused Sunil Gilat. He again visited the injured on 16.09.2009 to record his statement but the injured was seen lying unconscious. Ultimately, the injured succumbed to the ante mortem fire arm injuries sustained by him, on 18.09.2009 at 10.20 a.m. This witness received the information regarding the death of the injured on 18.9.2009 itself. He thereafter prepared the memo of the same dated 18.9.2009 (Ext. KA-8). Thereafter this I.O. proceeded to receive the dead body of the deceased and then got the inquest of the deceased conducted on 18.9.2009. Accordingly he prepared the inquest report dated 18.09.2009. As per the Inquest Memo (Ext. 2), the inquest of the deceased commenced at 11.45 P.M. and concluded at 2.10 P.M. In the opinion of the Panch witnesses, the death of the deceased occurred 4 during the treatment of the fire arm injuries sustained by the injured. The Panch witnesses, however, could not categorically opine about the nature of the death of the deceased as to whether it was homicidal or suicidal. It may be noticed here that Bhaiya Lal the first informant as well as the brother of the deceased is also a panch witness. Thereafter, this Investigating Officer prepared the police scroll, i.e. (Ext.KA-9) Letter dated 18.9.2009 to the C.M.O. Kanpur Nagar for getting the post mortem of the body of the deceased. (Ext.KA-10) Memo of the seal specimen (Ext.KA-11) Police Form No. 33 i.e. the police challan for conducting the post-mortem of the dead body of the deceased (Ext.KA-12) Photograph of the dead body of the deceased. The Post Mortem of the body of the deceased was conducted on 18.09.2009 by Dr. D.K. Trivedi (P.W.2). The doctor who conducted the autopsy on the body of the deceased opined that the cause of death of the deceased is shock and septicaemia as a result of Anti Mortem fire arm injures. The Anti Mortem fire arm injuries found on the body of the deceased have been described by the aforesaid doctor as follows :-
1. Gun shot wound of entry 1.2 x 1 c.m. present on right lower chest 6 c.m. down to right nipple and 4 c.m. above right to epigastrium The margins of wounds inverted, lacerated.
Laceration of wounds present in an area of 10 c.m. x 10 c.m. under 7, 8, 9 Ribs. Parietal Pleura lacerated, lungs lacerated, right pleura cavity slough clotted blood.
2. Gun shot of exit of size 3 c.m. x 3 c.m. present in the right axilla situate 6 cm. lateral and above right nipple underneath rib 5 fractured................
3. Lacerated wound is present on posterior and lateral aspect of right chest of size 1 x 1 cm 9 cm lateral to thoracic vertebra. The wound is communicating to right pleural cavity. Subsequently vide order dated 19.09.2009 investigation of the above mentioned case crime number was transferred to S.I. Nirbhay Kumar Solanki (P.W. 5) vide order of the Circle Officer. This Investigating Officer filled Parcha Nos.12 and 13 of the case diary. This I.O. also went to the place of occurrence with the first informant. However, two witnesses namely Ritik and Rajesh whose names have been mentioned in the F.I.R. as witnesses did not meet this I.O.
On 25.09.2009 this I.O. converted the case under Section 302 I.P.C. The Investigation Officer on the basis of the material collected during the course of investigation formed an opinion to file charge sheet. Accordingly in line with the aforesaid, this Investigating Officer submitted a charge sheet dated 30.09.2009 (Ext.KA-7) under Section 302 I.P.C. against the accused appellant. A perusal of the said charge sheet shows that as many as 15 witnesses were nominated. Out of the 15 witnesses so nominated, 6 witnesses were produced and examined as P.W.1 to P.W.6. Upon submission of the aforesaid charge sheet dated 30.9.2009, cognizance was taken by the court concerned, vide cognizance taking order dated 14.10.2009. Thereafter the C.M.M. Kanpur Nagar committed the case to the court of Sessions, vide committal order dated 7.11.2009. Accordingly, S.T. No.1264/09 came to be registered in the court of Sessions Judge, Kanpur Nagar. The Sessions Judge, Kanpur Nagar vide order dated 18.11.2011 transferred the above mentioned S.T. Number to the 6 court of Additional Sessions Judge, Court No.4, Kanpur Nagar. The court below framed the charges against the accused appellant vide framing of the charge order dated 2.12.2009. Only one charge under Section 302 I.P.C. was framed against the accused appellant. However, the accused appellant denied the charge so framed and demanded trial.
The prosecution in order to bring home the charge so framed against the accused appellant adduced the following documentary evidence :-
Ext. KA-1 - Written Report dated 31.08.2009 submitted by the first informant Bhaiya Lal brother of the injured. The same was proved by P.W. 1 Bhaiya Lal.
Ext. KA-2 - Panchayatnama/inquest of the deceased conducted on 18.09.2009 by S.I. Akhilesh Kumar P.W.6 and was proved by P.W.1 Bhaiya Lal the first informant/brother of the deceased and also a Panch witness.
Ext. KA-3 - FIR dated 31.08.2009 lodged by P.W.1 Bhaiya Lal the first informant. P.W.2 H.C. 140 Raj Keshwar who was posted as Head Clerk at the concerned Police Station and also the scribe of the F.I.R. has proved the same.
Ext. KA-4 - is the G.D. of Case Crime No. 192 of 2009, under section 307 I.P.C., P.S. Raipurwa, District Kanpur Nagar. Ext. KA-5 - is the Post Mortem Report dated 19.09.2009 of the deceased Rajesh Makara. Dr. D.K. Trivedi (P.W.3) is the doctor who conducted the autopsy on the body of the deceased. He proved the post mortem report.
Ext. KA-6 - is the site plan of the place of occurrence prepared by S.I. Ravindra Kumar (P.W.4) the first Investigating Officer. He 7 proved the same.
Ext. KA-7 - is the Charge Sheet dated 30.09.2009 prepared by Nirbhay Kumar Solanki, (P.W.5) Station House Officer, P.S. Raipurwa, Kanpur Nagar. He proved the same.
Ext. KA-8 - is the memo regarding information of the death of the injured Rajesh Makara on 18.09.2009. The same was proved by P.W. 6 Akhilesh Kumar Station Officer, P.S. Bajaria, Kanpur Nagar.
(Ext.KA-9) is the letter dated 18.9.2009 to the C.M.O. Kanpur Nagar by the Investigating Officer for getting the post mortem of the body of the deceased conducted. The same was prepared by P.W. 6 S.I. Akhilesh Kumar, who was posted as Station Officer, P.S. Bajaria, District Kanpur Nagar. He proved the letter dated 18.9.2009.
(Ext. KA-10) is the Memo of the seal specimen. The same was prepared by P.W. 6 S.I. Akhilesh Kumar, who was posted as Station Officer, P.S. Bajaria, District Kanpur Nagar. He proved the Memo of the seal specimen dated 18.9.2009.
(Ext. KA-11) is the Police Form No. 33 i.e. the police challan for conducting the post-mortem of the dead body of the deceased. The same was prepared by P.W. 6 S.I. Akhilesh Kumar, who was posted as Station Officer, P.S. Bajaria, District Kanpur Nagar. He proved the Challan Memo dated 10.9.2009.
(Ext. KA-12) is the Photograph of the dead body of the deceased. The same was prepared by P.W. 6 S.I. Akhilesh Kumar, who was posted as Station Officer, P.S. Bajaria, District Kanpur Nagar. He proved the Memo of the photograph of the dead body dated 18.9.2009.
8 (Ext. KA-13) is the Bed Head Ticket of the deceased of G.S.V. Medical College, Kanpur Nagar. The same was proved by P.W. 7 Jitendra Kumar.
(Ext. KA-14) is the Report of the Ballistic Expert, Forensic Laboratory Agra, dated 21.9.2009, which confirmed the use of the recovered country made gun from the accused-appellant in the commission of the crime.
The prosecution further produced the following witnesses to prove the case :-
P.W.1 Bhaiya Lal is the brother of the deceased and also the first informant. He has proved the written report dated 31.08.2009 (Ext.KA-1) on the basis of which the check F.I.R. was registered as Case Crime No. 192 of 2009 under section 307 I.P.C., P.S. Raipurwa, District Kanpur Nagar and the inquest report dated 18.9.2009 (Ext.KA-2). The basic prosecution case as set out in the FIR dated 31.08.2009 has been proved by this witness who is also an eye witness.
P.W.2 H.C. 140 Raj Keshwar, is the Scribe of the FIR dated 31.08.2009. He has proved the check FIR dated 31.08.2009 (Ext.KA-3) P.W.3 Dr. D.K. Trivedi, is the doctor who conducted the autopsy on the body of the deceased on 19.09.2006. He proved the Post Mortem Report dated 19.09.2009 (Ext. KA-5), the probable time of occurrence, the cause of death of the deceased as well as also the ante mortem injuries found on the body of the deceased. (P.W.4)- S.I. Ravindra Kumar is the first Investigating Officer. After the FIR dated 31.08.2009 was registered, the investigation of the same was entrusted to Sub-Inspector Ravindra Kumar, (P.W.4). 9 He recorded the statement of the first informant and thereafter on the pointing out of the first informant, he prepared the site plan of the place of occurrence (Ext. KA-6) dated 31.8.2009. He also recovered earth soaked with blood and also plain earth from the place of occurrence and sealed the same. This witness also visited the injured on 31.8.2009 for getting his statement recorded, but as the victim was lying unconscious, the statement of the victim could not be recorded. This witness also secured the arrest of the accused on 2.9.2009 and from his person recovered a country made gun of .315 bore, a live cartridge and an empty of the same bore. This I.O. has filled Parcha Nos. 2 to 11 of the case diary. (P.W. 5) is Inspector Nirbhay Singh Solanki. He is the third Investigating Officer. The investigation of the case was transferred to this I.O. on 29.9.2009. He filled parcha Nos. 12 and 13 of the case diary. On the basis of the material contained in the case diary, he concluded the investigation on 30.9.2009 and submitted the charge sheet dated 30.9.2009 (Ext. KA-7) against the accusedappellant under section 302 I.P.C.
(P.W. 6) Akhilesh Kumar was the Station Officer, P.S. Bajaria, Kanpur Nagar. He is the second Investigating Officer. The investigation of the case was transferred to him on 10.9.2009. He visited the injured on 11.9.2009. However, the statement of the injured could not be recorded, as he was lying unconscious. This witness further discovered that from the police record, it was revealed that against the accused-appellant, seven criminal cases have been registered. He again visited the injured on 16.9.2009 to record his statement, but the same could not be recorded as the injured was lying unconscious. While the investigation was being conducted by this witness, information was received by him on 10 18.9.2009 regarding the death of the injured. He, accordingly, prepared the memo of the same on 18.9.2009 (Ext-KA 8). Thereafter, this witness recovered the dead body of the deceased from G.S.V. Medical College, Kanpur Nagar and got the inquest of the deceased conducted on 18.9.2009. He thereafter prepared the police scroll i.e. (Ext. KA-9, KA-10, KA-11, KA-12) and sent the dead body of the deceased for post-mortem. He thereafter obtained the post-mortem report of the deceased dated 19.9.2009 (Ext. KA 5). On 25.9.2009, this witness converted the case under section 302 I.P.C.
(P.W. 7) Jitendra Kumar and (P.W. 8) Dr. R.K. Verma came to be produced as witnesses on the basis of the order dated 22.7.2011 passed by the Court below on an application (Paper No. 23 C) filed by the A.D.G.C. (Criminal) to summon the aforesaid witnesses as prosecution witnesses.
(P.W. 7) Jitendra Kumar is the Clerk Medical Record Section G.S.V. Medical College, Kanpur Nagar. He has proved the Bed Head Ticket of the deceased (Ext. No. KA 13).
(P.W. 8) Dr. R.K. Verma is the doctor who had attended the injured on 31.8.2009 in the Emergency Ward of G.S.V. Medical College, Kanpur Nagar. He had operated upon the injured to insert I.C.D. Tube. He further confirmed the death of the injured on 18.9.2009 at 10.20 a.m. After the prosecution evidence was over all the incriminating material and the adverse circumstances were disclosed to the accused, to be explained by him in terms of Section 313 Cr.P.C. The accused appellant denied all the questions one by one by repeatedly saying that it is false or he has been falsely implicated. However, in reply to question no. 8 which 11 relates to the recovery of country made gun alleged to be used in the commission of crime along with a live cartridge and an empty cartridge resulting in S.T. No.1265/09 under Section 25 Arms Act the accused appellant simply denied the same without giving any version of the same. It may be mentioned here that the accused appellant stands convicted in the aforesaid Sessions Trial as is evident from the recital contained in the body of the judgment impugned.
The defence further adduced two witnesses namely D.W. 1 Rajesh and D.W. 2 Rinki alias Ritik, who have been named as a witness in the F.I.R. However, both these two witnesses have categorically stated that they have not seen the occurrence. Therefore, their testimony is not only unreliable but is also irrelevant.
The accused-appellant in his statement under section 313 Cr. P. C. has stated that he has been falsely implicated on account of enmity. He has also denied the occurrence. However, the accused-appellant has not come forward with his version of the occurrence nor he has deposed before the Court below as a witness to explain the alleged enmity on account of which he alleges to have been falsely implicated. There is another aspect of the matter, which also requires to be taken note of. The occurrence which took place on 31.8.2009, resulted in causing injury to Rajesh Makara. Once there is a fire arm injury and the same is denied by the accused, then the burden shifts upon the accused himself to explain how the injuries have been caused. No attempt has been made by the accused-appellant to explain the occurrence in which 12 according to the accused-appellant the injured Rajesh Makara sustained fire arm injuries. There is another corollary of the matter which also requires to be taken note of. The occurrence which took place on 31.8.2009 resulted in causing injury to Rajesh Makara by the use of a fire arm. As such the incident left an injured. Once the accused denies the injury of the injured as per the prosecution version of the occurrence, the burden shifts upon him to explain as to how the injuries were caused to the injured. As already noted above, there is no other version of the occurrence except the prosecution version, therefore, the defence put forward by the accused-appellant that he has been falsely implicated is an half hearted attempt to overcome the conviction which may be rendered against him.
Having taken note of the prosecution case, as set out in the F.I.R., the documentary evidence adduced by the prosecution to establish its case and the oral testimony of the prosecution witnesses who have not only supported the prosecution case, but have also proved the documentary evidence and have also corroborated the prosecution case as set out in the F.I.R. including the subsequent events which have occurred after the lodging of the F.I.R., the Trial Court concluded that the prosecution has succeeded in proving the basic prosecution case it set out to prove. The corroboration of the injuries on the body of the deceased with the post-mortem report and the proof of such injuries on the body of the deceased as noted in the post-mortem report by the Doctor who conducted the autopsy on the body of the deceased compelled the Court below to convict the present accused-appellant for an offence under section 302 I.P.C. Consequently the Court below 13 sentenced him to life imprisonment along with a fine of Rs. 20,000/-. Upon failure to deposit the amount of fine so awarded, the appellant is to further undergo rigours imprisonment of four years. Both the sentences are to run independently. Feeling aggrieved by the judgement and order dated 25.10.2011/29.10.2011, the appellant has now come to this Court challenging the same by means of the present criminal appeal. Mr. Sukhvir Singh, the learned Amicus Curiae and Mr. P.K. Singh, the learned counsel for the appellant jointly submit that the conviction and sentence awarded to the appellant by the Court below is liable to be set aside and the accused-appellant is further liable to be acquitted of the charge alleged against him. They jointly submit that there is no eyewitness of the occurrence. As such, the case in hand is a case of circumstantial evidence. Consequently the conviction of the accused-appellant as awarded by the Court below has to be judged by this Court in accordance with the parameters well recognized by now regarding a case based upon circumstantial evidence. Since the prosecution has failed to prove the motive behind the occurrence, the entire chain of events and also the link in the chain of events the conviction awarded by the Court below cannot be sustained and therefore liable to be set aside. It is then submitted that the first informant in the F.I.R. has clearly stated that after the occurrence took place, the victim was rushed to Ursala Hospital for treatment from where he was referred to Hallet Hospital/G.S.V. Medical College, Kanpur Nagar. The F.I.R. further contains a recital that after the brother of the injured i.e. the first informant had got the victim admitted in the Emergency Ward of the aforesaid Hospital and the treatment commenced that the first informant came to the 14 police station to submit the written report of the occurrence. He then invited the attention of the Court to the Bed Head Ticket of the deceased (Ext. KA-13) and on the basis of thereof submits that the recital contained in the same clearly falsified the prosecution story as unfolded in the F.I.R. As such, the documentary evidence does not support the prosecution case and the doubt as noted above being unexplained in the testimony of P.W. 1, the first informant as well as Dr. R.K. Verma (P.W. 8), the appeal is liable to be allowed.
Having regard to the fact that a Court of Appeal in Criminal matters is the last Court of fact, we have ourselves carefully scrutinized the evidence on the record. The first informant in his testimony has categorically stated that at the time of occurrence, he was present near the place of occurrence as he was standing at a distance of 100 yards from the Tea shop. After the brother of the first informant had purchased tea and started leaving the tea shop, that a scuffle took place in between the two in which the accusedappellant fired at the brother of the first informant namely Rajesh Makara. A perusal of the statement in chief as well as the examination in chief of the testimony of the aforesaid witness will go to show that this witness has specifically and categorically stated in his statement in chief as to how he witnessed the occurrence. The defence specifically cross examined this witness on the aforesaid issue, but could not cull out any such fact or circumstance to doubt the testimony in chief or the credibility and reliability of this witness. Thus P.W. 1 after having gone through the furnace of cross examination remained static and consistent regarding the basic prosecution case as set out in the F.I.R. Thus, we have no hesitation to hold that P.W. 1 Bhaiya Lal, the first informant and also the brother of the deceased is a credible and 15 reliable witness and his testimony is worthy of credit. Coming to the next issue raised by the learned counsel for the appellant and the learned Amicus Curiae that while in the F.I.R. it has been stated that the first informant immediately took the victim to Urasala Hospital and thereafter to Hallet Hospital/G.S.V. Medical College, Kanpur Nagar for treatment. It is only after the victim was admitted in the Emergency Ward of G.S.V. Medical College, that the first informant Bhaiya Lal proceeded to submit the written report of the occurrence at the concerned police station. However, the Bed Head Ticket of the deceased shows that the deceased was got admitted at G.S.V. Medical College by some other person as the doctor has himself written in the Bed Head Ticket that according to the patient's attendant Ranvir Singh, the patient is alleged to have sustained fire arm injuries by unknown person. The argument so raised appears to be fanciful and creates a fanciful doubt. However, from the perusal of the Bed Head Ticket (Ext. KA-13) it is apparent that there is a clear recital contained in the Bed Head Ticket that the victim was brought by Bhaiya Lal, the first informant/brother of the deceased. Dr. V.K. Verma is the doctor who attended the deceased at the time of his admission at the aforesaid Hospital was produced by the prosecution as P.W. 8. The defence did not cross examine this witness on the said issue. Consequently, such an hypothesis cannot be allowed to be urged at the appellate stage. In view of our findings on the two issues raised before us the inescapable conclusion is that the prosecution has succeeded in establishing the case it set out to prove. Therefore, the conviction of the appellant by the Court below cannot be faulted with. However, we further find that the case in hand is a case of a 16 sudden quarrel. There is nothing on the record to show that there was any mens rea on the part of the present accused-appellant to commit the alleged crime or there was any such circumstance to establish the existence of a calculated mens rea to take revenge of any such act committed by the deceased or there was enmity between the two.
The law takes care of such a situation. Section 300 IPC lays down the exceptions to Section 299 IPC which deals with culpable homicide not amounting to murder. Any act done upon sudden and grave provocation is the 4th exception of Section 300 IPC. It would be worthwhile to refer to the judgment of the Supreme Court in the case of Surain Singh Vs. State of Punjab reported in 2017 (5) SCC 796, wherein paragraph 13 and 14 explain the law relating to the 4th exception, the same are reproduced below:-
13. Exception 4 to Section 300 of the Indian Penal Code 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 Indian Penal Code 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 selfcontrol, 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 17 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.
14. 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 Indian Penal Code is not defined in Indian Penal Code.
18 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".
In the entire testimony of P.W. 1 who is the brother of the deceased there is no whisper of any such fact that there was a long drawn enmity in between the deceased and the accused-appellant or there was an issue in between them resulting in hate and difference. The entire testimony of P.W. 1 clearly denotes that the occurrence took place out of an scuffle between the two at the Tea shop. The case in hand is not such a case where the accused has chased the deceased or has pre-planned the entire events resulting in the death of the deceased.
In the light of the above, we are of the view that the case in hand clearly falls within the exception as noted herein above. 19 Accordingly, we uphold the conviction awarded to the accusedappellant, but for the reasons noted herein above, we modify the punishment awarded to the accused-appellant. The appeal, accordingly, succeeds and is partly allowed. The conviction under Section 302 I.P.C. as imposed by the Additional Sessions Judge, Court No. 14, Kanpur Nagar under the impugned judgement and order dated 25th October, 2011 is converted into the conviction under Section 304 Part-I I.P.C. Upon completion of the sentence awarded herein above, the appellant shall be released after calculating the remission under the relevant provisions. The fine of Rs. 20,000/- as imposed by the court below is reduced to Rs. 10,000/-. In case of default in deposit of the fine of Rs. 10,000/-, the appellant shall further undergo one year rigorous imprisonment. The appellant is in jail. He shall serve out the sentence so awarded if not already completed.
Order Date :- 11.2.2019 HSM