Karnataka High Court
Prashant Baburao Ugarkar, vs The State Of Karnataka on 25 October, 2018
Bench: B.Veerappa, H.T.Narendra Prasad
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 25 T H DAY OF OCTOBER 2018
PRESENT
THE HON'BLE MR.JUSTICE B.VEERAPPA
AND
THE HON'BLE MR.JUSTICE H.T. NARENDRA PRASAD
CRIMINAL APPEAL NO.100228/2014
BETWEEN:
PRASHANT BABURAO UGARKAR,
R/O:DHUPDAL, TQ: GOKAK,
DIST: BELGAUM.
AT PRESENT CONVICT PRISONER,
NO.2815, CENTRAL PRISION,
HINDALAGA, BELGAUM.
... APPELLANT/ACCUSED
(BY SRI SHIVAKUMAR S. BADAWADAGI,
ADVOCATE/AMICUS CURIAE.)
AND:
THE STATE OF KARNATAKA
... RESPONDENT
(BY SRI V.M.BANAKAR, ADDL. STATE PUBLIC
PROSECUTOR.)
THIS CRIMINAL APPEAL IS FILED BY
CONVICT/APPELLANT/ACCUSED PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE DATED 26.08.2014 &
27.08.2014 PASSED BY THE FAST TRACK COURT
AND ADDL. SESSIONS COURT, GOKAK, IN
S.C.NO.194/2012 AND TO RELEASE THE ACCUSED
ON BAIL ON SUCH TERMS AND CONDITIONS
WHICH THIS HON'BLE COURT DEEMS FIT AND
PROPER, ETC.,
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THIS APPEAL BEING HEARD IN PART, COMING
ON FOR FURTHER HEARING THIS DAY,
B.VEERAPPA J., DELIVERED THE FOLLOWING:
JUDGMENT
The present criminal appeal is filed by the accused against the judgment and order of conviction and sentence dated 26.8.2014 made in Sessions Case No.194/2012, on the file of Fast Track Court and Addl. Sessions Court, Gokak, convicting the appellant accused to undergo imprisonment for life for the offence punishable under section 302 of the Indian Penal Code.
2. It is the case of the prosecution that, on the basis of the complaint made by PW.13, the grandmother of the deceased, the jurisdictional police registered a case in Crime No.38/2012 for the offence punishable under section 302 of the Indian Penal Code. The deceased Preeti was working as a washer woman in PLN constructions in Hukkeri taluk. CW.23 :3: Shambhunath Razak, resident of Barigapu Jamujampur, State of Bihar was also working in the said company as driver of the light motor vehicle. The accused suspected the deceased Preeti regarding her character and harassed her. On 21.2.2012 at about 6.00 p.m. the deceased Preeti and CW.23 Shambhunath Razak were found in the kitchen of the house belonging to the accused at Mallapur PG village. The accused saw these two persons and suspected the character of the deceased. Thereafter, on the same day the accused at about 2.00 a.m. on 22.2.2012 caused the murder of Preeti by pressing her neck with the belt. The jurisdictional police after registering the case and after investigation collected sufficient material against the accused and filed the charge sheet. After holding detailed enquiry before the Addl. Civil Judge (Jr.Dn.) and JMFC, Gokak, the learned JMFC having taken :4: cognizance of the offence against the accused, registered the charge sheet in C.C.No.814/2012. Since the offence alleged against the accused punishable under section 302 of the Indian Penal Code is exclusively triable by the Court of Sessions, the learned JMFC committed the case to the District and Sessions Court, Belagavi.
3. On receipt of the committal records, the same has been registered as S.C.No.194/2012 by the Prl. District and Sessions Judge. Thereafter the case was made over to the Fast Track Court and Addl. Sessions Judge, Gokak by an order dated 29.1.2014.
4. In order to prove its case, the prosecution examined 24 witnesses as PW.1 to PW.24 and got marked the documents Exs.P.1 to P.35 and M.O.No.1 to 6. The statement of the accused as contemplated under section 313 of the Code of Criminal Procedure was recorded. :5: The accused has denied all incriminating circumstances and he did not choose to lead any defence evidence on his behalf. The Presiding Officer of the Fast Track Court and Addl. Sessions Judge, considering the entire oral evidence of PW.1 to PW.24 and material documents Exs.P.1 to P.35 and M.O.1 to 6, proceeded to pass the impugned judgment and order of conviction and sentence convicting the accused to undergo imprisonment for life and to pay a fine of Rs.50,000/- for the offence punishable under section 302 of the Indian Penal Code. Being aggrieved by the said judgment and order, the present appeal came to be filed by the accused.
5. This Court while admitting the appeal on 10.12.2014, the learned counsel Sri Shivakumar S. Badawadagi was appointed as Amicus Curiae to argue the matter on behalf of the appellant/ accused to assist the Court since :6: the appeal is filed by the prisoner from the jail authorities and nobody was representing him.
6. We have heard the learned Counsel for the parties to the lis.
7. Sri Shivakumar S. Badawadagi, learned Amicus Curiae vehemently contended that the impugned judgment and order of conviction and sentence passed by the learned Sessions Judge convicting the appellant/ accused for the offence punishable under section 302 of the Indian Penal Code is without any basis and erroneous and contrary to the material on record. He would further contend that there is no consistency in the evidence of PWs.13, 14 and 16. The mother of the accused and CW.23-Shambhunathrazak were not examined to prove the case of the prosecution. He would further contend that there is no eye witness to the alleged incident. The entire case :7: of the prosecution is based on circumstantial evidence. Ex.P.15 the complaint by PW.13 would not disclose any earlier case against the accused either for assault or for any dowry harassment. The material on record clearly depicts that the circumstance lead the accused for the sudden provocation. No eye witness is examined, nor any material is produced by the prosecution to prove that he has committed the murder of the deceased.
8. He would further contend that the statement of the accused recorded under section 313 of the Code of Criminal Procedure does not deserve any value or utility if contains stray admissions. He would further contend that in view of the peculiar facts and circumstances of the case, it falls within the domain of Section 304 Part II of the Indian Penal Code and not under section 302 of the Indian Penal Code as convicted by the Sessions Court. Therefore the :8: trial Court was not justified in convicting the accused to undergo imprisonment for life. Hence he sought to allow the appeal by setting aside the impugned judgment and order of conviction and sentence punishing the accused for the offence under section 302 of the Indian Penal Code.
9. In support of his contentions the learned Amicus Curiae relied upon the following judgments.
1) State of Uttar Pradesh v. Lakhmi reported in (1998) 4 SCC 336
2) Surain Singh v. State of Punjab reported in (2017) 5 SCC 796;
3) Atul Thakur v. State of Himachal Pradesh and others reported in (2018) 2 SCC 496.
10. Per contra, Sri V.M.Banakar, learned Addl. State Public Prosecutor sought to justify the impugned judgment and order of conviction and sentence passed by the trial Court :9: convicting the accused for the offence punishable under section 302 of the Indian Penal Code to undergo imprisonment for life. He would contend that the marriage of the accused and the deceased was performed in the year 2009 and the death of his wife occurred in the year 2012 within 7 years of marriage. He would further contend that Exs.P.17 to P.20 photographs of the deceased clearly depicts that the death is caused by the accused. The evidence of PW.23, the Investigating Officer, clearly proves that recovery of M.O.3 belt is at the instance of the accused. PW.15, the doctor, who conducted autopsy on the dead body of the deceased opined that the death is due to strangulation and asphyxia. He would further contend that the appellant has not denied his presence at the scene of occurrence and has not discharged the initial burden under the provisions of Section 106 of the Indian Evidence : 10 : Act. While recording the statement under section 313 of the Code of Criminal Procedure, he has not taken any defence except denial to all the questions posed. Therefore he sought to dismiss the appeal.
11. In support of his contentions the learned Addl. SPP relied upon the following judgments.
1) Trimukh Maroti kirkan v. State of Mharashtra reported in (2006) 10 SCC 681 with regard to discharge of burden as required under the provisions of section 106 of the Indian Evidence Act.
2) Murugan v. State of Tamil Nadu reported in 2018 (2) Crimes 333 (SC) with regard to the law laid down by the Hon'ble Supreme Court under the provisions of Section 313 of the Code of Criminal Procedure
12. In view of the rival contentions urged by the learned counsel for the parties, the only point that arises for consideration in the present appeal is:
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"Whether the accused has committed the offence punishable under the provisions of section 302 of the Indian Penal Code with an intention and whether the appellant/ accused has made out any case for interference with the impugned judgment and order of conviction and sentence passed by the trial Court under the appellate jurisdiction of this Court under the provision of section 374 of the Code of Criminal Procedure?"
13. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record including the original records carefully.
14. The substance of the case of the prosecution is that the accused has caused the murder of the deceased Preeti on 22.2.2012 by pressing her neck with his belt suspecting the fidelity of the deceased when she was found along with CW.23 Shambhunathrazak in the kitchen of the house belonged to the accused on : 12 : 21.2.2012 at 6.00 p.m. The jurisdictional police, after investigation, filed the charge sheet and subsequently the same was registered as C.C.No.814/2012 and it was committed to the Court of Prl. District and Sessions Judge, Belagavi, wherein it was registered as Sessions Case No.194/2012 and made over the case to the Court of Fast Track and Addl. Sessions Judge, Gokak, by order dated 29.1.2014.
15. PW1 the Panch witness signed on the Ex.P1, Inquest panchanama and signed on the Ex.P2 in the spot panchanama, but, PW1 turned hostile. PW2, the panch witness for seizure of the belt-M.O.3 has signed as per Ex.P4, but, turned hostile. PW3 and PW4 the panch witnesses for seizure of the belt -M.O.3 under Ex.P4 and 5. PW4, 5, 6 and 7 are the neighbours of the deceased and accused, have stated that there was frequent quarrel between the husband and wife, but, ultimately turned hostile. PW8 : 13 : the driver of the Ambulance who brought the deceased to the hospital on the basis of the request made by the accused has stated that the accused was also present on that day.
16. PW9, the security guard of the hospital stated that the accused also visited the hospital to take the Doctor to his home. PW10, the Police Constable who took the body of the deceased to the hospital for post mortem. PW11 who is Police constable who took the FIR to the JMFC Court.
17. PW12, the Medical Officer who visited the house of the accused along with PW8 and PW9 on the request made by the accused, has examined the deceased and declared as dead. PW13 is the complainant who is grand-mother of the deceased who has stated that she has received the information on 22.02.2017 about one and half year back at about 1.00 A.M. at : 14 : night when she was at Kagawad Village, at that time the accused telephoned and said that her daughter Preeti was chatting with Shambu, therefore, requested to come there. Again by telephonic call at about 5.00 A.M. the accused stated that the deceased had suffered heart attack and requested to come to his Village. On hearing the shocking news, along with CW11, CW2, CW9 and also with Arun, Vinayak and Santosh went to the house of the accused at Ghataprabha at about 10.00 A.M. saw the dead body lying on the corridor(Padasale) and when she keenly observed the dead body of Preeti, she found a black mark on the neck of Preeti. Hence, she suspected that the accused might have caused the death of Preeti. She further found that by suspecting the character of Preeti, the accused might have committed murder of the deceased Preeti. Therefore, she lodged a complaint as per Ex.P15 and Ex.P15(a) is her : 15 : signature. It is also stated that after completion of post mortem, the Doctor handed over the dead body to PW13 and also handed over the gold ornaments found on the dead body of Preeti. Photographs were taken at that time and marked at Ex.P17 to Ex.P20. The black mark on the neck of the deceased is visible on the photographs.
18. PW14 is the mother of the deceased Preeti who stated on oath that at about 01.30 A.M. at night on 22.02.2012 when she was in Kagawad village she received a phone call from the accused and informed that her daughter Preeti is chatting with Shambu and requested to come to see the same. Later, the accused again called at 5.00 A.M. and stated that her daughter suffered heart attack and requested to come early. Thereafter, she along with PW13, CW3, CW2 along with Arun, Vinayak and Santhosh went to Ghataprabha at 10.30 A.M., and saw the : 16 : dead body of Preeti, where it lying on corridor (Padasale). When they observed the dead body they found a black mark on the neck. Thereafter, they felt the accused unnecessarily suspecting the character of the deceased had caused the death of his wife.
19. PW15 is the retired Medical Officer, Gokak who conducted Autopsy/Postmortem, has stated that she has received a requisition letter from the CPI, Mudalagi along with a sealed cover which contains M.O.3 belt through PC 1609 of Ghataprabha Police Station with a request to examine the same and furnish opinion regarding the articles. She examined the M.O.3 belt which is a red colour belt with MM printed on it at regular distance with buckle at 1 end and metal bar at the another end which is in length about 25 inches and width about 1/4 t h inches and weigh about 34 grams. After examination of the dead body PW15 also stated as under:- : 17 :
"I] External Appearance : Body is that of an young adult f emale small built and moderately nourished with brown complexion with black hair. Bloody f orth present in both nostrils and bride registrain present on the lef t cheek. Rigor mortis present in all over the body except in f inger toes. Post mortem straining present on the back. Cyanosis of the f inger nail present.
II] External Injuries Fractures etc:
Abresation present in the f ront of the neck f rom a point on the right side of the neck 2 inches below the right ear and extending to a point on the lef t side of the neck at a point 4 inches below the lef t ear. Length of the abrasion 6 inches. Width of the abrasion wearing in size 1 inch vide at the videst part and ¼ inch vide at the narrowest part. The abrasion as an impression of the buckle mark in the f ront of the neck."
She further stated that "Mouth and pharynix: The thyryd bone fractured present on the left side on desption."
20. After careful examination of the material on record and on perusal of the PM report PW15 the Doctor has stated on oath that the injury mentioned in Ex.P23 PM report might : 18 : have been caused by the use of M.O.3 belt. The use of M.O.3 may have caused the injuries shown in the P.M. report on the dead body of the deceased. Further, she stated in her evidence that she can say definitely the injury mentioned in PM examination report cannot be caused by the hanging or strangulation by the use of rope or cloth, she has specifically mentioned the buckle bound of the injuries on the neck of the dead body of the deceased.
21. PW16, the panch witness to the Ex.P1 and 2 are the Inquest panchanama and the spot panchanama, who stated on oath that on 22.02.2012 himself and Madhumathi were present at the time of inquest panchanama. When they observed the dead body of Preeti they found that there was a black mark on the neck of the dead body. He himself signed on the inquest panchanama and Spot Mahazar. He further stated that the Police have drawn the : 19 : spot mahazar and recovered the pieces of bangles, hair pins and taken the photocopies.
22. PW17 the panch of Ex.P25 the mahazar M.O.4 to M.O.6 the clothes of the deceased with red colour blouse, pinck colour parkar, but, ultimately turned hostile. PW18 who is near relative of PW13 and 14 before whom the accused confessed that he has killed his wife. PW19 is the scribe of Ex.P15 complaint. Who stated that on 22.02.2012 at about 7.30 A.M. Vinayak came and told him that Preeti had died so he is going to Ghataprabha. He further stated that along with him Santosh Kavale went to the house of the accused and they saw the dead body of Preeti lying on the corridor (padasale) and they found a black mark on the neck of Preeti.
23. PW20 is the photographer, who has stated that he has taken the photograph of the : 20 : dead body of Preeti as per Ex.P17 to 20. He has also taken the photo at the time of spot panchanama as per Ex.P3. PW21, who is Police Sub-Inspector, who registered the crime in No.38/2012 under the provisions of Section 302 of the Indian Penal Code furnished the FIR to the Additional JMFC, Gokak through Police Constable 1483 of Ghataprabha Police Station. He also gave requisition to the Taluk Magistrate, Gokak to conduct inquest mahazar of the deceased and also recorded the statement of PW4, 5, 6, 7, CW16, CW17, and 18 and also recovered the clothes of the deceased under mahazar as per Ex.P25. PW22 is the panch of Ex.P25 mahazar and recovery of M.O.4 to M.O.6 the clothes of the deceased. PW23 who is the Investigating Officer, stated that on the enquiry made by him the accused shown the place where the belt was kept. The accused took PW23 to his house and produced the belt used for : 21 : commission of offence. It was seized in the presence of panchas. Again he brought the accused to the Police Station and thereafter recorded the statements of CW-23, CW-24 as per Ex.P28 and he received the report from P.C.1483. He has also recorded the statement of photographer on 06.03.2012 and received the P.M. report from the Government Hospital, Gokak on 17.04.2012 as per Ex.P23 and also opinion of the Doctor. PW24 who conducted the inquest panchanama as per Ex.P1. Based on the evidence of the said material witnesses, the trial Court has proceeded to convict the accused for the offence punishable under Section 302 of the Indian Penal Code.
24. The material on record clearly depicts that though the death was occurred within seven years of their marriage, but there are no eye witness to the incident. The grand mother of the deceased PW13 suspected that the accused : 22 : might have murdered. PW14 mother of the deceased stated that she feels that the deceased might have murdered suspecting his wife. The entire case of the prosecution is based on the circumstantial evidence. It is also not in dispute that before the incident occurred, there was no complaint against the accused with regard to assault on the deceased on any earlier occasion or harassment of the dowry. The prosecution has not examined the mother of the accused to the best reasons known to them and also not examined Shambunath on whose instance the accused suspected his wife on the ground that they are sitting in kitchen on 21.02.2012 night, which enraged the accused, who proceeded to act and committed the murder.
25. Though the PW15, who conducted the P.M. report, stated that death was due to strangulation and asphyxia as per Ex.P23 the P.M. report, there are no eye witness to depict : 23 : that the accused killed the deceased. The entire case of the prosecution is based on the complaint made by the grand mother-PW13 that the accused was suspecting his wife as she was sitting with one Mr.Shambunath who is a colleague of the deceased who works together in PLN Constructions, which might have provoked to take the extreme step. But, it was not intentional.
26. The material also clearly depicts that the fact that the deceased and Shambunath sitting together one day prior to the incident is not in dispute. On 21.02.2012 at 6.00 P.M., they were found in the kitchen of the house belonging to the accused and the deceased. It is also not in dispute that immediately after the incident occurred, the accused went to the private hospital and called the Doctor and he has also informed the neighbours. He has also called his mother, mother-in-law and grand : 24 : mother of the deceased and informed about the incident. If there was an intention to kill the deceased, he ought not have informed the grand mother and mother of the deceased and neighbours and would not have gone to the hospital immediately to call the Doctors.
27. PW8 the driver of the Ambulance who brought the deceased to the hospital stated that the accused was also present, when they went to his home to bring the deceased to the hospital. PW9 the Security guard of the hospital stated that the accused also visited the hospital to take the Doctor to his home. PW12 the Medical Officer who visited the house of the accused along with PW8 and 9 also stated that on the request made by the accused, he went to the house of the accused. The material on record clearly depicts that as per the evidence of PW13 and PW14 the complainant and the mother of the deceased might have assumed, that the : 25 : accused has committed the murder by seeing Shambunath and the deceased sitting together in the house of the accused on 21.02.2012 at 6.00 p.m. which provoked him and caused the death on 22.02.2012 at 2.00 A.M. night. The material clearly depicts that there was no intention on the part of the accused to murder the deceased without any premeditation in a sudden verbal fight between the husband and wife and in heat of passion the accused strangulated the decease with his belt, M.O.3 with out any intention of premeditation. Therefore, the trial Court was not justified imposing the punishment of life to attract provisions under Section 302 of the Indian Penal Code, instead of the provisions of Section 304 (Part II) of the Indian Penal Code.
28. Though the learned SPP sought to rely upon the judgment of Hon'ble Supreme Court in the case of Murugan V/s. State of Tamil Nadu, : 26 : reported in 2018(2) Crimes 333 (SC), wherein, it was held that merely because the appellant has not stated anything in Section 313 of the Code of Criminal Procedure statement that itself is not a ground to convict the accused under Section 302 of the Indian Penal Code for life, the facts of the said case are not applicable to the facts and circumstances of the present case. It was a case that two accused committed crime having common intention to murder. Appellant not explaining the circumstances against him apart from merely denying his involvement in the crime is not enough. Admittedly, in the present case, merely because the accused's denial in not explaining the circumstances of his involvement in the crime is not enough, unless, the chain of circumstances including last seen theory is proved by the prosecution is beyond reasonable any doubt. As already stated that there are no eye witness and the entire case of : 27 : the prosecution is based only on circumstantial evidence, which is not proved. Therefore, the said judgment is not applicable.
29. Insofar as another judgment relied upon by the learned SPP with regard to burden of proving the fact especially within knowledge under Section 106 of Evidence Act, it is true that though the death took place within 7 years from the date of the marriage, the fact remains that there was no earlier complaints either by assault, dowry or harassment against the accused to his wife, as stated by PW13 and 14, by the complainant and the grand mother of the deceased. It is also not in dispute that PW8 the driver of the Ambulance and the Security guard who have stated that the accused was also present throughout the circumstances where the Doctor was invited by the accused himself and he was suspected from the scene of the incident. In fact, he went to the Doctor and informed the : 28 : neighbours and called both the mother and the grand mother of the deceased clearly indicates that he has discharged his burden and he was present all along till the post mortem was conducted. Therefore, the judgment relied upon by the learned counsel in the case of Trimukh Maroti Kirkan V/s. State of Maharashtra reported in (2006) 10 SCC 681 has no application in the facts and circumstances of the case.
30. The Hon'ble Supreme Court while considering the provisions of Section 313 of the Code of Criminal Procedure, Sections 105 and 300 exception (Part I) of the Indian Penal Code in the case of State of Uttar Pradesh V/s. Lakhmi reported in (1998) 4 SCC 336 has held at para Nos.18 to 23 as under :
"18. In the above context, we deem it usef ul to ascertain wh at possibly would have prompted the accused to kill his wif e. The prosecution case as noted above, is that the accused was not well-: 29 :
disposed to his wif e as she was always speaking against his drinking habits. We are inclined to think that, while considering the manner in which he had suddenly pounced upon his young wif e who bore two children to him and smashed her head during the early hours, he would have had some other strong cause which probably would have taken place within a short time prior to the murder. Certain broad f eatures looming large in evidence help us in that line of thinking.
19. The def ence counsel put a def inite suggestion to PW-2 (Ramey), during cross-examination, that the incident was preceded by a liaison between Omvati, the deceased, and Ramey(PW-
2). The suggestion was, of course, rebuff ed by the witness. One of the def ence witnesses (DW1) was examined to say that the accused was working in his field till 4 a.m. on the night in question. As that version was not inconsistent with the prosecution story, the af oresaid evidence of DW 1 was not rejected by the trial court. If that version is correct, he would have gone back to his bedroom some time thereaf ter. In this connection, we ref er to the evidence of PW3 who said even during chief examin ation itself that when he saw the accused standing near the bedside of his wif e, the witness asked him what did he do, to which he snorted out that he would not spare Ramey(PW 2) also. That evidence of PW3 (Bhondia) was : 30 : binding on the prosecution which has a very signif icant impact on the plea based on the First Exception to Section
300. It indicates that the motive f or the accused to murder his wife had some nexus with Ramey(PW 2).
According to PW 4(Raje), he rushed to the house of the accused and saw PW2 scampering away and then saw the accused inside the bedroom muttering that Ramey had done f oul acts with his wif e and that he would murder him. Though the Public Prosecutor challenged that part of the witness's testimony, he did not treat the witness as hostile f or the prosecution.
20. The above f eatures positively suggest that the accused would have seen something lascivious between his wif e and PW 2 just when he entered the house f rom the f ield.
21. There can be little doubt that if the accused had witnessed any such scene, his mind would have become suddenly deranged. It is not necessary that a husband should have been hot-tempered or hypersensitive to lose his equanimity by witnessing such scenes. Any ordinary man with normal senses of even sang-f roid would be outraged at such a scene.
22. We are, theref ore, inclined to afford to the respondent-accused benefit of Exception I to Section 300 of the Indian Penal Code. As the corollary, we f ind the respondent guilty only : 31 : under Section 304(Part I) of the Indian Penal Code.
23. In the result, we allow this appeal and set aside the judgment of the High Court, but in alteration of the conviction passed by the Sessions Court, we convict him under Section 304(Part I) of the Indian Penal Code. We sentence him to undergo rigorous imprisonment f or a period of six years. We direct the Sessions Judge, Meerut to take steps to put the accused in jail for undergoing the remaining portion of the imprisonment term in accordance with the sentence imposed on him now."
31. Hon'ble Appellate Court in the case of Surain Singh V/s. State of Punjab reported in (2017) 5 SCC 796 at para Nos. 14, 18, and 21 to 25 held as under :
"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 f ight 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 "f ight"
occurring in Exception 4 to Section 300 of the Indian Penal Code is not def ined in Indian Penal Code. It takes two to make a f ight. Heat of passion requires : 32 : that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a f ury on account of the verbal altercation in the beginning. A f ight 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 f acts of each case. For the application of Exception 4, it is not suff icient to show that there was a sudden quarrel and there was no premeditation. It must f urther be shown that the off ender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unf air advantage".
18. Now, we have to consider the facts of this case on the touchstone of Section 300 Exception 4 in order to f ind out whether the case f alls under the same or not. During the course of hearing, the learned counsel f or the appellant- accused strenuously contended bef ore this Court that the High Court recorded a categorical f inding that "an inescap able conclusion that can be drawn is that it was a case of sudden f ight where the attack was without premeditation". He f urther contended that despite holding so, the High Court erroneously convicted the appellant- accused under Section 302 of the : 33 : Indian Penal Code instead of Section 304 Part II on the ground that the appellant-accused had acted in cruel manner and had caused injuries to six persons and a death.
21. In the instant case, it is evident f rom the materials on record that there was bitter hostility between the warring f actions to which the accused and the deceased belonged. Criminal litigation was going on between these f actions. It is also proved f rom the material on record that the attack was not premeditated and preplanned. Both the parties were present in the Court of Executive Magistrate, Faridkot at the relevant time with regard to the proceedings under Sections 107/151 of the Code. When the appellant-accused objected to the presence of a member of the opposite side, the scuffle started between the parties which resulted into death of two persons. The conduct of the appellant-accused that he at once took out his kirpan and started giving blows to the opposite party proves that the attack was not premeditated and it was because of the spur of the moment and without any intention to cause death. The occasion f or sudden f ight must not only be sudden but the party assaulted must be on an equal footing in point of defence, at least at the onset.
22. The weapon used in the f ight between the parties is kirpan which is used by "Amritdhari Sikhs" as a spiritual tool. In the present case, the kirpan used by : 34 : the appellant-accused was a small kirpan. In order to f ind out whether the instrument or manner of retaliation was cruel and dangerous in its nature, it is clear f rom the deposition of the doctor who conducted autopsy on the body of the deceased that stab wounds were present on the right side of the chest and of the back of abdomen which implies that in the spur of the moment, the appellant-accused inf licted injuries using kirpan though not on the vital organs of the body of the deceased but he stabbed the deceased which proved f atal. The injury intended by the accused and actually inf licted by him is suff icient in the ordinary course of nature to cause death or not, must be determined in each case on the basis of the f acts and circumstances. In the instant case, the injuries caused were the result of blow with a small kirpan and it cannot be presumed that the accused had intended to cause the inf licted injuries. The number of wounds caused during the occurrence is not a decisive f actor but wh at is important is that the occurrence must have been sudden and unpremeditated and the off ender must have acted in a f it of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. It is clear f rom the materials on record that the incident was in a sudden f ight and we are of the opinion that the appellant-accused had not taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks : 35 : up a weapon which is handy and causes injuries, one of which proves f atal, he would be entitled to the benef it of this Exception provided he has not acted cruelly.
23. Thus, if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not intention to cause murder and bodily injury then the same would f all under Section 304 Part II. We are inclined to the view that in the f acts and circumstances of the present case, it cannot be said that the appellant-accused had any intention of causing the death of the deceased when he committed the act in question. The incident took place out of grave and sudden provocation and hence the accused is entitled to the benef it of Section 300 Exception 4 of the Indian Penal Code.
24. Thus, in entirety, considering the f actual scenario of the case on hand, the legal evidence on record and in the background of legal principles laid down by this Court in the cases ref erred to supra, the inevitable conclusion is that the act of the appellant-accused was not a cruel act and the accused did not take undue advantage of the deceased. The scuff le took place in the heat of passion and all the requirements under Section 300 Exception 4 of the Indian Penal Code have been satisf ied. Theref ore, the benef it of Exception 4 under Section 300 of the Indian Penal Code is : 36 : attracted to the f act situations and the appellant- accused is entitled to this benef it.
25. Thus, considering the f actual background and the legal position set out above, the inevitable conclusion is that the appropriate conviction of the appellant-accused would be under Section 304 Part II of the Indian Penal Code instead of Section 302 of the Indian Penal Code. Hence, the sentence of imprisonment f or 10 years would meet the ends of justice.
32. Considering the very judgment of Surain Singh V/s. State of Punjab, the latest judgment of the Apex Court in the case of Atul Thakur V/s. State of Himachal Pradesh and others reported in (2018) 2 SCC 496 at para Nos.8, 9, 11, 12, 13, 15, 16, 17 has held as under :
"8. Notably, the evidence on record plainly establishes that a sudden f ight took place between the appellant and Hitesh Thakur and in the heat of passion, the appellant assaulted Hitesh Thakur causing serious bodily injuries. There is no shred of evidence, much less even a remote suggestion that the appellant had assaulted Hitesh Thakur with an : 37 : intention to cause his death. Though the High Court f ound the appellant guilty, it has not held that the bodily injuries caused by the appellant were with an intention to cause the death of Hitesh Thakur. The High Court overturned the finding recorded by the trial court regarding the nature of off ence, principally on the ground that the appellant gave repeated knife-blows to Hitesh Thakur and Hitesh Thakur could not def end himself as he was unarmed. Thus, the appellant was found guilty of offence punishable under Section 302 of the Indian Penal Code.
9. In other words, the controversy in these appeals boils down to the nature of off ence and the sentence to be awarded in that behalf . As af oresaid, the evidence on record, as held by the two courts below and with which f inding we are in f ull agreement, is that the appellant gave six knif e-blows to Hitesh Thakur on the fatef ul night to which he succumbed. Thus, it is a case of homicidal death. However, there is no evidence that the injuries inf licted by the appellant were with an intention to cause the murder of Hitesh Thakur. On the other hand, the evidence clearly establishes that the appellant assaulted Hitesh Thakur without any premeditation. The whole incident took place suddenly and, in the heat of passion a sudden quarrel started as Hitesh Thakur, while smoking, blew smoke on the f act of the appellant. Resultantly, the appellant got enraged. He told him that he was senior in age : 38 : and thus should not smoke in his presence much less blow the smoke towards him. Then a sudden physical f ight started between them, in which the appellant, in heat of passion, gave six knif e-blows to Hitesh Thakur on different parts of his body.
10. xxxx
11. Taking into account the events as unf olded, it leaves no manner of doubt that the appellant had no intention to cause the death of Hitesh Thakur. The incident happened without any premeditation in a sudden f ight between Hitesh Thakur and the appellant and in heat of passion the appellant inf licted six knif e-blows on Hitesh Thakur. On the contrary, af ter realizing his mistake, he immediately off ered water to Hitesh Thakur and also took him to hospital and stayed there till his last rites were perf ormed. PW 2, f ather of deceased Hitesh Thakur also corroborates the position that the appellant had contacted him to inf orm that Hitesh had been brought to the hospital in serious condition.
12. Taking overall view of the matter, the f acts of the present case warrant invocation of Exception 4 to Section 300 of the Indian Penal Code. For, it is a case of culpable homicide not amounting to murder inasmuch as the incident happened on account of sudden f ight between the f riends who had gathered for a drink party arranged at the behest of Hitesh Thakur. There was no : 39 : premeditation and the act done by the appellant was in the heat of passion without the appellant taking any undue advantage or acted in a cruel manner. The number of wounds caused by the appellant, it is a well-established position, by itself cannot be a decisive f actor. The High court committed manif est error in being inf luenced by the said f act. What is relevant is that the occurrence was sudden and not premeditated and the off ender acted in the heat of passion. The evidence supports the case of the appellant in this behalf . The f act that the appellant used weapon such as knif e, is also not a decisive f actor to attract Section 302 of the Indian Penal Code. Neither the use of a knif e in the commission of off ence nor the f actum of multiple injuries given by the appellant would deny the appellant of the benef it of Exception 4.
13. Dealing with a somewh at similar situation, in Surain Singh V. State of Punjab, this Court has restated the settled legal position about the purport of Exception 4 to Section 300 of the Indian Penal Code. Even in that case, the accused had repeatedly assaulted the deceased with a kirpan and caused injuries resulting into death. Af ter restating the legal position, the Court converted the off ence to one under Section 304 Part II instead of Section 302 of the Indian Penal Code. Following the same legal principle and keeping in mind the f actual position as unf olded, the view taken by the trial : 40 : court of convicting the appellant f or the off ence punishable under Section 304 Part II, is unexceptionable.
14. xxxx
15. As af oresaid, the High court overturned this f inding of the trial court on the question of nature of offence, by mainly observing that the appellant had caused repeated blows with a weapon like knif e, causing six serious injuries to Hitesh Thakur to which he succumbed. We are of the opinion that neither the f actum of use of knif e by the appellant during the assault nor the multiple blows (six) given by the appellant can be the sole basis to deny the appellant of the benef it available under Exception 4 to Section 300 of the Indian Penal Code. The Court is obliged to take an overall view of the matter on the basis of the established f acts. This principle is restated in Surain Singh case.
16. The next question is whether the appellant is right in his persuasive argument to restore and revive the decision of the trial court on the quantum of sentence. The trial court awarded the sentence of rigorous imprisonment f or f ive years only f or off ence under Section 304 Part II of the Indian Penal Code and f ine of Rs.10,000 and in def ault, to undergo rigorous imprisonment f or a f urther period of one year. For that no special reason has been recorded by the trial court. Considering the nature of offence and the trivial reason f or which the : 41 : appellant got enraged and assaulted Hitesh Thakur, that too by a knife and also gave multiple blows, does not warrant a light punishment. We would, however, accept the argument of the respondents that in the f act situation of the present case, the sentence period should not be less than 10 years imprisonment with f ine. That would meet the ends of justice.
17. Accordingly, we partly allow these Criminal Appeals Nos. 75 and 227 of 2015 f iled by original Accused I Atul Thakur. We modif y the impugned judgment of the High Court against the appellant in respect of nature of off ence and instead restore the order of the trial court in that behalf . The appellant is held guilty f or an off ence punishable under Section 304 Part II of the Indian Penal Code and is sentenced to undergo rigorous imprisonment f or a period of 10(ten) years with f ine of Rs.10,000/- (rupees ten thousand), in default to undergo f urther imprisonment for one year. Needless to mention that the appellant shall be entitled to set off under Section 428 of the Code of Criminal Procedure."
33. In view of the reasons stated supra, the point raised in the present appeal has to be held in negative holding that the trial Court was not justified in passing the impugned judgment and order by convicting the appellant to undergo : 42 : life imprisonment and as the accused has made out a case to reduce the punishment and in the facts and circumstances, the case has to be treated as one under the provisions of Section 304 (Part II) of the Indian Penal Code and not under Section 302 of the Indian Penal Code. It is also not in dispute that the accused is having a child aged about 9 years, and his mother aged about 80 years and he has already undergone punishment for a period of 06 years 07 months and 20 days. Taking into consideration the entire material on record, the prosecution has not made out a case to punish the accused under Section 302 of the Indian Penal Code, but, has made out a case to punish the accused under the provisions of Section 304 (Part II), of the Indian Penal Code.
34. For the reasons stated above, we allow the criminal appeal in part. The impugned judgment and order passed by the Sessions : 43 : Court is modified. The appellant-accused is held guilty for the offence punishable under the provisions of Section 304(Part II) of the Indian Penal Code.
35. Taking into consideration the peculiar facts and circumstances of the present case, we are of the considered opinion that the accused is held guilty for an offence punishable under the provisions of Section 304(Part II) of the Indian Penal Code and is sentenced to undergo rigorous imprisonment for a period of 08(eight) years with a fine of Rs.10,000/- (Rupees ten thousand only), in default, he has to undergo further imprisonment for one year. It is needful to mention that the accused-appellant is entitled for set off as contemplated under Section 428 of the Code of Criminal Procedure. Accordingly, the appeal is disposed off.
36. We appreciate the sincere efforts made by both the counsel Sri. Shivakmar S. : 44 : Badawadagi, Advocate/Amicus curiae and Sri. Banakar the learned SPP to come to the just and reasonable conclusion by this Court to do justice between the parties to the lis. The same is placed on record.
37. The State Government is directed to pay a sum of Rs.10,000/-(Rupees ten thousand only) to the amicus curiae towards professional fee for effective arguments advanced by him within a period of two months from the date of receipt of a copy of this order.
Ordered accordingly.
SD/-
JUDGE SD/-
JUDGE Mrk/Pg .1-11 Mns/Pg.12-43