Haji Syed Hussain, Hyd vs P.P., Hyd on 21 July, 2023

[Cites 9, Cited by 0]

Telangana High Court

Haji Syed Hussain, Hyd vs P.P., Hyd on 21 July, 2023

1. This Criminal Appeal is filed against the judgment dated 21.10.2014 in Sessions Case No.34 of 2001 on the file of the I Additional Metropolitan Sessions Judge, Hyderabad (hereinafter referred to as 'trial Court'), whereunder appellant/accused No.1 was convicted for the offence punishable under Section 302 of the Indian Penal Code, 1860 and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- and in default, to undergo simple imprisonment for a period of six months.

2. The case of the prosecution, in brief, is that deceased-Syed Raza Balooki was the proprietor of Red Rose Restaurant, situated opposite to Erramanzil Colony, Somajiguda, Hyderabad and accused No.1 was proprietor of Asiatic Café, situated near NIMS Hospital main gate on main road. The deceased purchased a new premises bearing No.6-3-662/A/4/A, near Urdu Academy, which is near to Urvasi Bar and Restaurant, Panjagutta, Hyderabad. The deceased was planning to open a new restaurant in the said new premises, which is near to the Asiatic Cafe belonging to accused No.1. The deceased and accused No.1 both belong to Iranian community. Accused No.1 2 demanded the deceased to give share in his new business, as the said business would affect his restaurant business. According to accused No.1, there was understanding in their community that no one shall open a new hotel in the vicinity, where a hotel is already being run by another person of their community. In this regard, several times, accused No.1 threatened the deceased.

3. On 16.06.2000 at about 11:00 PM, the deceased went to Metropolis Dhaba, which is owned by P.Ws.3 and 9, situated at Road No.1, Banjara Hills, Hyderabad. The deceased, accused No.1 and owners of Metropolis Dhaba were close friends. After sometime, accused No.1 also came to the said Dhaba along with accused No.2, who is his friend, and demanded the deceased to give share in his new business. When the deceased refused to do so, accused No.2 started abusing and threatening the deceased. Accused No.1 also threatened the deceased to kill him, if he does not give share in his new business. The owners of the said Dhaba tried to pacify the situation, but their efforts went in vain. After sometime, accused Nos.3 and 4 also joined accused Nos.1 and 2 and abused the deceased supporting accused No.1, for which, the situation became violent. Both the parties collected sticks and rods and started beating each other. In the said quarrel, accused No.1 sustained injuries to his left thigh and left lip 3 and accused No.2 sustained injuries to his right thigh and hip. Several people gathered on account of such quarrel.

4. On receipt of such information, P.Ws.1, 2 and 4 along with one driver Rehman reached the spot, and on seeing police, some people ran away. Accused Nos.1 to 3 and deceased were taken into custody and they were made to sit in the jeep with escort of P.Ws.1 and 4. P.Ws.2 and 21 stayed back at Metropolis Dhaba to disperse the gathered crowd and to pacify the situation. While shifting the deceased and accused Nos.1 to 3 along with escort of P.Ws.1 and 4, the deceased and accused No.1 were sitting opposite to each other in the back seats of jeep. The deceased started to abuse accused No.1 in filthy language for which accused No.1 took out his licensed revolver and fired two rounds on the deceased. When he was about to fire the third round, the escort people caught hold the hand of accused No.1 and the bullet went into air. Immediately, the escort police seized the revolver. The deceased along with accused Nos.1 to 3 were taken to the NIMS Hospital and intimation was given to higher officials about the incident. After admitting the deceased in hospital, accused Nos.1 to 3 were taken to police station. Accused Nos.1 to 3 were handed over to P.W.21, after lodging complaint under Ex.P-5. Basing on the above said complaint, after completion of investigation, charge sheet was filed for the offence punishable under Section 302 4 read with Section 34 of IPC and Section 27 of the Arms Act, 1959, against accused Nos.1 to 4.

5. The trial Court framed charge under Section 302 read with Section 34 of IPC against accused Nos.1 to 4. The accused denied the charge and claimed to be tried.

6. The prosecution, to support its case, examined P.Ws.1 to 23 and got marked Exs.P-1 to P-43 and M.Os.1 to 13. In support of defence, accused No.1 was examined as D.W.1, but no exhibits were marked.

7. After appreciating the evidence on record, initially, the trial Court convicted accused No.1 for the offence punishable under Section 304 Part II of IPC while acquitting accused Nos.2 to 4 for the offence punishable under Section 302 read with Section 34 of IPC. Challenging the said judgment, accused No.1 preferred an appeal before this Court vide Criminal Appeal No.167 of 2003. Whereas, the wife of the deceased preferred a revision before this Court vide Criminal Revision Case No.1114 of 2005. This Court by way of common judgment dated 17.10.2006 disposed of both appeal and revision upholding the acquittal of accused Nos.2 to 4 and remanding the case to the trial Court in respect of accused No.1 for fresh consideration, basing on the evidence and without influenced by 5 observations made in the said common judgment. Subsequent to such remand, the trial Court, on fresh disposal, convicted accused No.1 for the offence punishable under Section 302 of IPC and sentenced him as referred hereinbefore. Challenging the same, the present appeal is filed by accused No.1.

8. Heard both sides.

9. The case set up by the prosecution is that the motive for killing the deceased was refusal of the deceased to give share to accused No.1 in his new restaurant, which was near to the restaurant of accused No.1. The case of the prosecution is that initially, a quarrel took place at Metropolis Dhaba and the offence allegedly occurred in the jeep of the Police while accused Nos.1 to 3 and the deceased were being shifted to the Police Station from Metropolis Dhaba. The prosecution, to prove the motive for the offence, had examined P.W.5, who is the nephew of the deceased, and P.Ws.3 and 9, owners of Metropolis Dhaba.

10. P.W.5, in his examination, deposed that he was present along with the deceased when the incident had occurred at Metropolis Dhaba; that the deceased asked him (P.W.5) to go away from the place and that on enquiry, the deceased told him that accused No.1 was insisting him to give share in the new business. 6

11. This version of P.W.5 appears to be an improvement for the reason that the Investigating Officer, who examined P.W.5, did not support such a statement of P.W.5 with regard to motive for the offence, as P.W.5 did not state such a statement to the Investigating Officer.

12. P.Ws.3 and 9, who are the owners of Metropolis Dhaba, deposed that they know the deceased and accused No.1 and they both used to come to their hotel after closure of their business. They also stated that there was verbal quarrel between accused No.1 and the deceased in front of their hotel. While such quarrel was going on, the Police reached there and shifted accused Nos.1 to 3 and the deceased in their jeep to the Police Station. They did not state reason for such quarrel.

13. The prosecution also examined P.Ws.6 and 7. P.W.6 is the builder and P.W.7 is the owner of the land on which P.W.6 agreed to construct a new building. Their evidence shows that the deceased had purchased ground floor portion in the said building. This evidence is unimpeached. The evidence of P.Ws.6 and 7 shows that the deceased intended to establish a new restaurant in the said premises. However, there is no evidence to the effect that the 7 dispute occurred at Metropolis Dhaba was relating to the demand of accused No.1 to give share in the new business of the deceased.

14. P.W.2 is the Home Guard, who accompanied with P.W.21, Sub- Inspector of Police, to Metropolis Dhaba on receiving information about the quarrel. He stated that he along with P.W.21 went to Metropolis Dhaba; that accused Nos.1 to 3 and the deceased were shifted to the Police Station in the jeep and that he stayed there with P.W.21 to control the situation at Metropolis Dhaba. P.W.2 supports the incident of quarrel between accused No.1 and the deceased at Metropolis Dhaba.

15. P.W.8 is the witness for scene of observation panchanama under Ex.P.6, which was conducted in the jeep and seizure of M.Os.2 and 3, the blood stained t-shirt and pant of the deceased at the Apollo Hospital, Hyderabad, under Ex.P.7. The evidence of P.W.8 shows that he stood as a witness in 100 cases of the Police, Panjagutta. This admission clearly goes to show that he is a stock witness of the Police.

16. P.W.10 is the witness to inquest report under Ex.P.9. His evidence does not indicate the nature of injuries he observed on the body of the deceased. He just supports conduct of inquest. 8

17. P.W.11 is the witness for confession and recovery of stick under M.O.4 at the instance of accused No.4. Ex.P.10 is the disclosure statement of accused No.4. Ex.P.11 is the seizure report of M.O.4 from the bushes near Metropolis Dhaba. In the cross-examination, P.W.1 admitted that he does not know the contents of Ex.P.10, disclosure statement of accused No.4 prepared by the Police.

18. The main witnesses of the prosecution are P.Ws.1 and 4. P.W.1 is the Home Guard and P.W.4 is the Police Constable. They also accompanied P.W.21 to Metropolis Dhaba in jeep. They were escorting accused Nos.1 to 3 and the deceased when they were being shifted to the Police Station in the jeep driven by Rahman, however, Rahman was examined. The consistence evidence of P.Ws.1 and 4 shows that while shifting accused Nos.1 to 3 and the deceased in the jeep, after the jeep travelled 50 to 100 meters from Metropolis Dhaba, accused No.1 suddenly took out his revolver and fired two rounds, and when he is about to fire third round, they prevented him. In that process, the third bullet went in air and immediately, the said revolver was recovered. The evidence of P.W.1 shows that two rounds were fired in the chest of the deceased, whereas the evidence of P.W.4 shows that one bullet was fired on the right side of the face of the deceased and second bullet was fired on the right side. However, P.W.4 could not give details about which part of body the 9 second bullet went i.e., whether on the chest or abdomen. This inconsistency is only found in the evidence of P.Ws.1 and 4. The consistence evidence of these two witnesses shows that accused No.1 fired three rounds and two bullets went into the body of the deceased and third round bullet went into air. According to them, such firing was done from the licensed revolver of accused No.1. The defence of accused No.1 also shows that he fired first round in exercise of right of private defence and that P.Ws.1 and 4, while preventing him from firing, twisted his hands, for which, the second bullet fired. He did not claim about firing of third round. His contention was that if third round was fired in the jeep, it must have created a whole to the jeep and such a piece of evidence was not produced by the Police. According to him, the jeep in which the offence took place, has not been produced in the case.

19. Accused No.1 did not take consistent defence. At one stage, he says that bullets were fired when his hand was twisted by P.Ws.1 and 4 while trying to prevent him from firing and on the other hand, he says that bullets were fired in exercising right to private defence. According to accused No.1, who was examined as D.W.1, the deceased had been abusing him in filthy language. He had even uttered that wife of accused No.1 was prostitute and asked accused No.1 to send his wife to him. It is also alleged by accused No.1 that 10 the deceased also abused the mother of accused No.1 in filthy language. The deceased continued such abuses in spite of request of accused No.1 to stop the same. P.Ws.1 and 4 admitted that there were abuses by deceased to accused No.1. They also stated that accused No.1 was insisting the deceased to keep quiet and not to utter any words. The abuses were filthy as spoken by accused No.1 in his evidence. The evidence of P.Ws.1 and 4 does not show the nature of filthy abuses given by the deceased, but they supported that filthy abuses were given by the deceased.

20. P.Ws.1 and 4 did not support the claim set up by accused No.1 that while abuses were given, the deceased kicked accused No.1 on his testicles and as a result, accused No.1 lost his self control and fired on the deceased. According to the evidence of P.Ws.1 and 4, there was no incident of kicking on testicles by the deceased.

21. Accused No.1 stated that when the deceased kicked on his testicles his head hit back side and he received injuries. P.W.15 is doctor, who examined accused Nos.1 and 2. According to evidence of P.W.15, on examination of accused No.1, he found tenderness over left temporomandibular joint and abrasion/contusion over left lumber region and left thigh/hip. Ex.P.15 is the wound certificate of accused No.1.

22. P.W.20 is the doctor who examined the deceased in NIMS Hospital. P.Ws.12, 13 and 18 are the doctors who attended the deceased while he was under treatment in Apollo Hospital. Initially, the deceased was shifted to NIMS and later was shifted to Apollo Hospital.

23. The evidence of P.W.12 shows that he found two bullet injuries on the body of deceased i.e., one on the left parietal region and other on the left sub costal region in the abdomen. Both the injuries had no exit wound. They could able to control the bleeding and closed the abdomen. He also stated that the injuries which he treated were sufficient enough to cause death in the ordinary course of nature.

24. P.W.13 is also doctor from Appollo Hospital. According to him he found two penetrating wound injuries one over upper abdomen and other over Rt. Maxillary region of face near the mid-point of Nasolabial fold.

25. P.W.14 is the doctor, who conducted post mortem examination of the deceased. He found the following injuries:

"(i) Entry wound of rifle fire arm over the right cheek fracturing the bone underneath with in tract that passing through the base of postural cranial fossa right cerebellam and brain stem to the left parietal lobe with a contusion of 5 X 3 cm.

(ii) sutured wound over the left upper abdomen which is on exploration passing posterirly and tracting in the mesentry.

(iii) Laceration over the front of middle of left thigh measuring 6X1 cm and skin deep."

26. He further opined that the above injuries found on the body of the deceased can be caused with M.O.1, which is revolver seized from accused No.1.

27. In the background of above facts, this Court has to consider whether the prosecution has made out a case for conviction of the appellant/accused No.1 for the offence under Section 302 of IPC. In this regard, it is relevant to refer to decision of Apex Court in the case of State of Andhra Pradesh v. Rayavarapu Punnayya1, wherein it has been held as follows:

"13. 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 gravest 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 1st 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.





1
    1977 (1) SCR 601
                                                         13



         Section 299                                             Section 300
A person commits culpable          Subject to certain exceptions culpable homicide is murder if the act by
homicide if the act by which       which the death is caused is done --
the death is caused is done --
                                                 INTENTION
(a)   With the intention of        (1)   With the intention of causing death; or
      causing death; or
(b)   With the intention of        (2)   With the intention of causing such bodily injury as the offender
      causing such bodily injury         knows to be likely to cause the death of the person to whom the
      as    is likely to  cause          harm is caused; or
      death; or

(3) 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 KNOWLEDGE

(c) With the knowledge that (4) With the knowledge that the act is so imminently dangerous that the act is likely to cause it must in all probability cause death or such bodily injury as is death likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.

14. The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has vexed the courts for more than a century. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the key words used in the various clauses of Sections 299 and

300. The following comparative table will be helpful in appreciating the points of distinction between the two offences.

15. Clause (b) of Section 299 corresponds with cls. (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under Clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the intentional harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the 'intention to cause death' is not an essential requirement of Clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of Clause (2) is borne out by illustration (b) appended to Section

300.

16. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under Clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular 14 person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given.

17. In Clause (3) of Section 300, instead of the words 'likely to cause death' occurring in the corresponding Clause (b) of Section 299, the words "sufficient in the ordinary course of nature" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real, and, if overlooked, may result in miscarriage of) justice. The difference between Clause (b) of Section 299 and Clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word "likely" in Clause (b) of Section 299 conveys the sense of 'probable' as distinguished from a mere possibility. The words "bodily injury...sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable"

result of the injury having regard to the ordinary course of nature.

18. For cases to fall within Clause (3), it is not necessary that the offender intended to cause death, so long as death ensues from the intentional-bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant and am. v. State of Kerala A.I.R. 1966 S.C. 1874 is an apt illustration of this point.

19. In Virsa Singh v. The State of Punjab MANU/SC/0041/1958 :

1958CriLJ818 Vivian Bose J. speaking for this Court, explained the meaning and scope of Clause (3), thus (at p. 1500) :

The prosecution must prove the following facts before it can bring a case under Section 300, 3rdly'. First, it must establish, quite objectively, that a bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations. It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and, fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely 15 objective and inferential and has nothing to do with the intention of the offender.

20. Thus according to the rule laid down in Virsa Singh's case (supra) even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point.

21. Clause (c) of Section 299 and Clause (4) of Section 300 both require knowledge of the probability of the causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that Clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general-as distinguished from a particular person or persons-being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.

22. 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 jade found in the affirmative, the stage for considering the operation of Section 300, 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, Penal Code.

23. The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of the court. But sometimes the facts are so inter-twined and the second and the third stages so telescoped into each other, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages."

28. In order to understand the presence of intention or knowledge, it is appropriate to refer to the decision of Apex Court in Visra Singh v. State of Punjab2, whereunder it is held as follows:

"The prosecution must prove the following facts before it can bring a case Under Section 300 '3rdly'. First, it must establish, quite objectively, that a bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations. It must be proved that there was an intention to inflict that particular injury, that is to say that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and, fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender."

29. It is also apt to refer to the decision of the Apex Court in Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra Pradesh3, whereunder it is held as follows:

"29. Therefore, the Court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls Under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no 2 [1958] SCR 1495 3 (2006) 11 SCC 444 17 premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the Accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable Under Section 302, are not converted into offences punishable Under Section 304 Part I/II, or cases of culpable homicide not amounting to murder are treated as murder punishable Under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances;

(i) nature of the weapon used;

(ii) whether the weapon was carried by the Accused or was picked up from the spot;

(iii) whether the blow is aimed at a vital part of the body;

(iv) the amount of force employed in causing injury;

(v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight;

(vi) whether the incident occurs by chance or whether there was any premeditation;

(vii) whether there was any prior enmity or whether the deceased was a stranger;

(viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation;

(ix) whether it was in the heat of passion;

(x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner;

(xi) whether the Accused dealt a single blow or several blows.

The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention."

30. In the present case, the evidence of P.Ws.1 and 4 clearly shows that accused No.1 fired bullets from his revolver. He fired two rounds on to the deceased and the third round missed as the escort police attempted to prevent accused No.1, as such, the third round was fired into air. The case of accused No.1 is that he fired only one round out of loss of his control, on account of grave and sudden provocation and the second round accidentally hit when P.Ws.1 and 4 tried to twist his hands to recover the revolver from his hands. The evidence of P.Ws.1 and 4, with regard to case where the bullets hit are varied. According to P.W.1, it only hit on the chest of the deceased. According to P.W.4, the first bullet hit on the face and the second one hit on the right side, but he did not indicate where it actually hit on the body. The evidence is also lacking as to whether the bullet injury on the face is first fired one or second fired one. Similarly, the injury on the abdomen is from the first fired bullet or second fired one. The fatal injury was only on the face of the deceased i.e., on the right cerebellum and brain stem of the left parietal lobe. According to P.W.12, the abdomen injury with the bullet was treated by arresting blood flow and such bullet injury to the face is aggravated condition.

31. The Apex Court in the case of Rayavarapu Punnayya (supra), had indicated the stage involved in proof of murder or culpable 19 homicide not amounts to murder, relevant part of the same reads as under:

" So that whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amount 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 state would be whether the accused has done an act by doing which he has caused the death of another. Proof of such casual 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, 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 amount to murder', punishable under the first part of Section 304 of, Penal Code.'

32. A reading of the above judgment would indicate that at first stage it has to be proved that whether the accused has done any act by doing which he has caused the death of another.

33. In this case, the evidence clearly indicates that the death of the deceased was on account of firing by accused No.1. Therefore, this part is proved by prosecution. The second part is act of the accused amounting to homicide or not. If the answer is affirmative, whether, it falls under 3rd Clause of Section 300 of IPC. If this is also proved, 20 the Court has to look into whether such an act falls under the exceptions of Section 300 of IPC.

34. In Pulicherla Nagaraju's case (supra), the Apex Court indicated parameters to decide pivotal question of intentions that will decide whether a case falls under Section 302 or Section 304 Part I or II of IPC.

35. A close scrutiny of the above judgment, it is clear that while considering intention, the Court is required to see the nature of weapon used; whether the weapon was carried with him; whether the act was result of sudden quarrel or fight; whether it is by chance or there was any premeditation or whether there was enmity, whether it is on account of grave and sudden provocation and whether the accused gave single blow or several blows.

36. In the present case, the manner of incident shows that initially verbal exchange of words was done between the deceased and accused No.1 at Metropolis Dhaba and that dispute aggravated on account of gathering of persons from both sides. There was exchange of blows from both the parties. The fire injuries were not inflicted at the Metropolis Dhaba. At the initial stage, accused Nos.1 and 2 and the deceased were present, but later followers of both parties have arrived and quarrel enlarged and aggravated. At that stage also, 21 accused No.1 had pre-meditated intention to kill, he would have killed the deceased at Metropolis Dhaba only, but accused No.1 attempted to resolve the dispute with the deceased.

37. The evidence of P.Ws.1 and 4 shows that after accused Nos.1 to 3 and the deceased were made to sit in the jeep to go to police station, the deceased had continuously abused accused No.1 in filthy language. The case set up by the prosecution is that accused No.1 fired at the instance of accused Nos.2 and 3. However, this claim of the prosecution is not proved, since accused Nos.2 and 3 were acquitted for the charge under Section 302 of IPC. Therefore, such a claim is brushed aside.

38. The evidence of accused No.1 shows that the deceased persistently abused accused No.1 in filthy language, in spite of repeated requests of accused No.1 to keep quite. Even then, the deceased abused that the wife of accused No.1 as a prostitute and asked accused No.1 to send his wife to him. The deceased also abused the mother of accused No.1.

39. P.Ws.1 and 4 also supported that the deceased abused accused No.1 in filthy language. They also support that accused No.1 had been insisting the deceased to keep quiet, but the deceased continued to abuse accused No.1 in filthy language. P.Ws.1 and 4 did 22 not say the exact words of filthy language used by the deceased. However, accused No.1, in his evidence, clearly stated that the deceased used the words touching the character of his wife and mother. According to accused No.1, he tolerated to such bad words, but when the deceased kicked him on his testicles, he lost self-control and took his revolver and fired one round. According to him, the second round of fire was misfired on account of twisting of his hands by P.Ws.1 and 4.

40. On the contrary, the evidence of P.Ws.1 and 4 shows that accused No.1 fired two rounds of gunshot and they prevented him from third round. The fact is that it is P.Ws.1 and 4 who were sitting by the side of accused No.1 and the deceased was sitting opposite to accused No.1. If accused No.1 took up his revolver and fired first round, immediately the same must have been seen by P.Ws.1 and 4. There is a probability of defence set up by accused No.1 that when accused No.1 fired first round, the second round was prevented by P.Ws.1 and 4, as such, it might have misfired to the deceased. However, the evidence of prosecution in this regard is not clear whether first round of gunshot was done on the face or on the abdomen. The defence of accused No.1 is that he fired only one round having lost self-control, and when he attempted to fire second round, P.Ws.1 and 4 prevented him and twisted his arms, due to 23 which, accidently the second round was fired and he did not fire third round.

41. The prosecution also failed to establish that the third round of fire went through the jeep top or not. If really, the third round was fired either accidentally or intentionally, the body of the jeep would have indicated the fire of third round. In the present case, the jeep was not produced and there is nothing in the scene of observation panchanama with regard to firing of third round, but they simply stated that the third round was fired in the air. Even if it was fired in the air, it would affect the body of the jeep. No such details are mentioned in the present case.

42. Therefore, the defence of accused No.1 in this regard is also probable for two reasons. The first is that the accused was admitted in NIMS after 40 minutes of the incident and the evidence of P.W.1 shows that P.W.21, Sub-Inspector of Police, who issued FIR, came to Police Station at 8.00 AM of next day morning, whereas the FIR shows that P.W.21 issued FIR immediately after the incident in the intervening night of the incident. However, this is contrary to the evidence of P.W.1, who stated that P.W.21 came to the Police Station only next day morning at 8.00 AM and issued express FIR and this was reached to the concerned Magistrate on the next day in the evening. This shows that some deliberations were made before the FIR was 24 issued. This is also one more circumstances which can create corroboration to the defence set up by accused No.1 that there was misfiring on account of P.Ws.1 and 4 preventing accused No.1 from using the weapon for second or third round.

43. The conduct of accused No.1, if closely examined, from the initial incident till the firing was done, keeping in view the repeated requests made to the deceased not to abuse him, demonstrates that he had no intention to kill the deceased. However, there is evidence on record that first round firing was done by accused No.1 with intention to inflict injury which is sufficient in the ordinary course of nature to cause death. The act of firing of accused No.1 at the deceased falls under clause-3 to Section 300 of IPC. The prosecution could able to prove that accused No.1 has committed the acts as contemplated under Section 300 of IPC.

44. Now, the question is whether the defence, as set up by accused No.1, has been established from the evidence on record, which is one of the exceptions to Section 300 of IPC so as to fall under culpable homicide not amounting to murder to convert the conviction from Section 302 IPC to Section 304 Part I IPC.

45. The consistent evidence of P.Ws.1 and 4 clearly demonstrates that the deceased started abusing accused No.1 in filthy language in 25 the jeep. Unfortunately, they could not able to give the details of such abusive words uttered by the deceased and no attempt has been made by the prosecution to rebut the same. On the contrary, the evidence of the defence shows that the deceased was uttering that the wife of accused No.1 is a prostitute and asked accused No.1 to send his wife and he also used abusive words towards the mother of accused No.1.

46. The evidence of P.W.1 shows that apart from uttering abusive words, the deceased kicked on the testicles of accused No.1, as a result of which, accused No.1 lost his self-control and took his licensed revolver and fired on the deceased.

47. In this regard, the decision of the Apex Court in K.M.Nanavathi v. State of Maharashtra4 is relevant and the relevant portion reads as under:

"84. Is there any standard of a reasonable man for the application of the doctrine of "grave and sudden" provocation? No abstract standard of reasonableness can be laid down. What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values etc.; in short, the cultural, social and emotional background of the society to which an Accused belongs. In our vast country there are social groups ranging from the lowest to the highest state of civilization. It is neither possible nor desirable to lay down any standard with precision: it is for the court to decide in each case, having regard to the relevant circumstances. It is not necessary in this case to ascertain whether a reasonable man placed in the position of the Accused would have lost his self-control momentarily or even temporarily when his wife confessed to him of her illicit intimacy with another, for we are satisfied on the evidence 4 1962 AIR 605 26 that the Accused regained his self-control and killed Ahuja deliberately.

85. The Indian law, relevant to the present enquiry, may be stated thus: (1) The test of "grave and sudden" provocation is whether a reasonable man, belonging to the same class of society as the Accused, placed in the situation in which the Accused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an Accused so as to bring his act within the First Exception to Section 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation."

48. The test of sudden provocation in respect of accused No.1 is whether a reasonable man belonging to the same class of society to which accused No.1 belongs, placed in the situation in which he was placed would be so provoked as to lose self-control. In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused, so as to bring his act within the first exception to Section 300 of the IPC.

49. The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation.

50. In the present case, the evidence of prosecution clearly demonstrates that there is persistent abuse by using filthy language by the deceased to accused No.1. The deceased was sitting opposite to accused No.1, which is also not seriously disputed. P.Ws.1 and 4 also supported that the deceased uttered abusive words as claimed by D.W.1 (accused No.1). However, they themselves did not give the nature of filthy language used by the deceased. In the absence of such details of filthy abuses uttered by deceased, the claim set up by accused No.1 regarding utterance of filthy language by the deceased has to be taken into consideration.

51. Accused No.1 was examined by P.W.15 and on examination, the doctor observed tenderness on the left temporo-mandibular joint. The injury is not clear whether the contusion/abrasion is on the inner portion or outer portion of thigh. If inner portion of thigh is taken, the evidence set up by accused No.1 that having abused accused No.1 in filthy language, the deceased also kicked on the testicles of accused No.1. These injuries to some extent probablize the defence, however, accused No.1 claimed that on kicking, his head hit back side in the jeep and as such he received injuries. However, such injuries are not found. The defence failed to prove that the injuries of accused No.1 particularly on the lumbar region and thigh portion were inflicted in the incident occurred at Metropolis Dhaba. The allegation 28 shows that accused No.1 sustained injuries on left thigh and left hip in the scuffle.

52. The prosecution does not refer that injury No.1 on the left temporo-mandibular joint was sustained by accused No.1 in the first incident at Metropolis Dhaba. If accused No.1 had not suffered the said injury in the first incident, there is possibility of sustaining such injury in the second incident, since the first injury is on the left temporo-mandibular joint, which injury is parietal region, which is part of the head. In the absence of evidence for proof of injury on the left side of the lumbar region and left thigh in the first incident, probablizes the plea set up by accused No.1 that the deceased gave kick on his testicles. If such a kick is made, there is possibility of left thigh getting injured and when the back portion hit to the jeep such an injury is possible on lumbar region. Merely, because the injuries are absent on the back of the head, it cannot be said that the deceased had no occasion to kick accused No.1. In fact, the position of both accused No.1 and deceased probablizes plea set up by accused No.1 that deceased kicked him. The persistent abuses by deceased at accused No.1, in spite of accused No.1 requests to cool down would also demonstrate that the frustrated mind of the deceased and in that process there is a chance of losing temper and kicking accused No.1. This evidence, if closely examined, there is 29 probability of the plea set up by accused No.1, with regard to kicking on his testicles.

53. While considering the grave and sudden provocation, the court has to see whether the act of the deceased triggered the ire of the accused, which lead to loss of self control as a result of grave and sudden provocation. While considering grave and sudden provocation, the Courts must make an endeavour to investigate whether the offender acted reasonably or normally or properly, as an average person in the position and circumstances of the offender may be expected to do, until the point of time at which the offender is actually deprived of his power of self-control. Once his power of self- control has been lost, it would be futile to expect him to retain such a degree of control over himself as to exercise a choice over the weapon used by him for an attack.

54. In the present case, the deceased had continuously abused accused No.1 in filthy language and accused No.1 persistently asked the deceased to keep quiet. When such persistence was continuing, giving sudden kick by the deceased to accused No.1 may cause any reasonable person to trigger his ire so as to lose his self-control on account of such act.

55. In this case, accused No.1 lost his self-control on account of the acts of the deceased, which resulted in firing from his revolver. The evidence is also lacking whether the first round of firing hit the head of the deceased or not. There is doubtful nature of evidence with regard to second round of firing i.e., whether immediately after the first round, accused No.1 fired second round or such firing was misfiring result of attempts of P.Ws.1 and 4 while preventing accused No.1 from firing second round.

56. All the above things clearly demonstrate that accused No.1 lost self-control on account of grave and sudden provocation by the deceased. There is no evidence on record to show that such a provocation was voluntary. No material is on record to show that provocation is given while exercising right of private defence by the deceased. Therefore, this Court feels that this case falls under exception to section 300 IPC and punishable under Section 304 Part I IPC, but not under Section 302 IPC.

57. In the result, the appeal is partly allowed and the conviction awarded by the I Additional Metropolitan Sessions Judge, Hyderabad in S.C.No.34 of 2001, dated 21.10.2014, for the offence punishable under Section 302 IPC, as against the appellant/accused No.1, is set aside. Instead, the appellant/accused No.1 is convicted for the 31 offence punishable under Section 304 Part I IPC. Consequently, miscellaneous petitions, if any, pending shall stand closed.

____________ M.LAXMAN, J ______________________________ SMT.G.ANUPAMA CHAKRAVARTHY, J Date: 21.07.2023 TJMR Hearing on quantum of sentence:

58. When the appellant/accused No.1 is heard on quantum of sentence, he stated that he has already undergone imprisonment for a total period of four years; that he is suffering with liver ailment and has to undergo liver transplantation; that he is suffering from high blood sugar levels apart from other ailments which require constant medication; that he has undergone mental agony for 23 years on account of long pendency of criminal proceedings; that he is having wife, three sons and two unmarried daughters; and that he has to perform the marriages of two daughters. In the circumstances, he prayed to take a lenient view.

59. Considering the background of the case, it is clear that the incident occurred in grave and sudden provocation without pre-meditation on the part of the appellant/accused No.1. When the trial Court convicted the appellant under Section 304 Part II, this 32 Court remanded back the matter to the trial Court for fresh consideration, upon which, the trial Court found the appellant guilty for the offence under Section 302 IPC, against which the present appeal arises, as such, the appellant underwent mental agony for 23 years, due to the long pendency of criminal proceedings. The appellant was made to suffer 23 years, which itself is greater punishment than the ordinary punishment imposes by the Court. That apart, the medical records produced by the appellant disclose that he requires to undergo liver transplantation and constant medication. According to the appellant, he has to perform the marriages of his two unmarried daughters.

60. Considering the above, we are inclined to take a lenient view regarding imposition of quantum of sentence. In the circumstances of the case, we direct that the sentence of imprisonment already undergone by the appellant/accused No.1 is sufficient to meet the ends of justice. The appellant/accused No.1 shall be set at liberty forthwith unless he is required in connection with any other case. However, the appellant/accused No.1 is directed to pay fine of Rs.1,00,000/-. Out of that Rs.75,000/- shall be payable to the family members of the victim and Rs.25,000/- to the State, within thirty (30) days from today. If the appellant/accused No.1 fails to deposit 33 the said amount as directed, he shall undergo simple imprisonment for a period of three months.

____________ M.LAXMAN, J ______________________________ SMT.G.ANUPAMA CHAKRAVARTHY, J Date: 21.07.2023 TJMR

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