Allahabad High Court
Harbir vs State Of U.P. on 16 October, 2019
Bench: Pritinker Diwaker, Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. 48 Criminl Appeal No. 709 of 1986 1. Harbir 2. Bijendra 3. Devendra Singh 4. Karan Singh ----- Appellants Vs. State Of U.P. ----- Respondent For Appellants : Shri Rajesh Kumar Singh, Amicus For Respondent/State : Shri J.K. Upadhaya, A.G.A. Hon'ble Pritinker Diwaker, J.
Hon'ble Raj Beer Singh,J.
Per: Pritinker Diwaker, J (16.10.2019)
1. This appeal arises out of impugned judgment and order dated 28.02.1986 passed by II Additional Sessions Judge, Aligarh in Sessions Trial No. 336 of 1985 convicting the accused Harbir and Karan Singh under Section 302/34 of IPC and sentencing them to undergo imprisonment for life. The trial court has further convicted accused Bijendra, Devendra Singh and Karan Singh under Section 307/34 of IPC and sentenced accused Bijendra and Karan Singh for seven years rigorous imprisonment, whereas accused Devendra Singh has been sentenced for three years rigorous imprisonment. Accused Harbir has been acquitted of the offence under Section 307/34 of IPC. The sentences awarded to the accused Karan Singh and Harbir Singh shall run concurrently.
2. In the present case, name of the deceased is Mukhtiar Singh, father of PW-2 Autar Singh and PW-3 Onkar Singh. It is said that there was some dispute between accused Karan Singh and the deceased over fencing of the land and on the date of incident i.e. 20.02.1985, accused Karan Singh had asked the deceased to remove the said fencing. When deceased had refused to remove the fencing, accused Karan Singh with the help of his two sons Harbir and Bijendra and grandson Devendra Singh caused single injury to the deceased by spear (Ballam) resulting his death. In the same incident, PW-3 Onkar Singh also suffered injuries and his MLC is Ex.Ka.1 conducted by PW-1 Dr. H.C. Goel. On the basis of written report Ex.Ka.2, lodged by PW-2 Autar Singh on 20.02.1985, FIR Ex.Ka.5 was registered against all the four accused persons under Sections 302 and 307 of IPC.
3. Inquest on dead body of the deceased was conducted vide Ex.Ka.7 and the body was sent for postmortem, which was conducted on 21.02.1985 vide Ex.Ka-4 by PW-6 Dr. M.L. Walecha. As per Autopsy Surgeon, following single ante mortem injury was found on the chest of the deceased:
"Incised wound 6 cm x 3 cm x chest cavity deep on left side of chest on upper part 11 cms above the nipple at 10' clock position. Wound extends to left shoulder. Direction of wound is down wards and back wards. Margins clear cut."
The cause of death of the deceased was due to shock and haemorrhage resulting from injuries described.
4. While framing charge, the trial judge has framed charge against all the accused persons under Sections 302/34 and 307/34 of IPC and against accused Harbir, separate charge under Section 302 of IPC was also framed.
5. So as to hold accused persons guilty, prosecution has examined nine witnesses whereas one defence witness has also been examined. Statements of the accused persons were recorded under Section 313 Cr.P.C. in which they pleaded their innocence and false implication.
6. By the impugned judgement, the trial judge has convicted the appellants as mentioned in paragraph no. 1 of this judgment. Hence, this appeal.
7. Learned counsel for the appellants submits:-
(i) that the trial judge has erred in law in convicting appellants Harbir and Karan Singh under Section 302/34 of I.P.C. He submits that even if the entire prosecution case is taken as it is, at best, these accused persons can be convicted under Section 304 Part II of IPC. In respect of other accused persons Bijendra, Devendra Singh and Karan Singh, it has been argued that offence under Section 307 of IPC is not made out against them.
8. On the other hand, supporting the impugned judgment, it has been argued by State Counsel that the conviction of the appellants is in accordance with law and there is no infirmity in the same.
9. Heard learned counsel for the parties and perused the record.
10. PW-1 Dr. H.C. Goel has proved the injury report vide Ex.Ka.1 sustained by injured PW-3 Onkar Singh and has found the following injuries on his body.
"1. Incised wound 1cm x ¼ cm x muscle deep present left side upper arm outer and upper part. Margins clean cut.
2. Incised wound 1½ cm x ¼ cm x chest deep present left side chest upper and laterally kept uo, Advised X Ray.
3. Contusion 1¼ cm x ½ cm present left side back of chest middle part.
4. Contusion 2 cm x ½ cm present Rt. side back of chest middle part.
5. Contusion 1 cm x ¼ cm present of left ankle outer side."
He has stated that the incised wound sustained by the victim could have been caused by 'Ballam' or by some other sharp edged weapon.
11. PW-2 Autar Singh is a son of deceased and eye witness to the occurrence. He is also the lodger of FIR. He has stated that on account of putting fencing on the land, there was dispute between his father and the family of Karan Singh. Karan Singh had asked his father to remove the said fencing. There was hot talk between the two. Karan Singh went back to his house by saying that he would teach a lesson to his father and then all the accused persons came out from the house carrying 'ballam' and clubs with them and then they caused injuries to his father and also to him. In cross-examination, this witness remained firm and has reiterated the entire incident.
12. PW-3 Onkar Singh is another son of deceased and eye witness to the occurrence. His statement is almost identical to that of PW-2 Autar Singh. He too has categorically stated as to the manner in which Mukhtiar Singh was done to death by the accused persons and he was also assaulted.
13. PW-4 Ram Sanehi Lal is a police constable, assisted during investigation. PW-5 Manturi Singh is a neighbour of the deceased, who reached to the place of occurrence after hearing commotion between the parties. He states that the accused persons were carrying 'ballams' and clubs with them and they caused injuries to Mukhtiar Singh and Onkar Singh and Mukhtiar Singh had expired. PW-6 Dr. M.L. Walecha conducted postmortem on the body of the deceased. PW-7 Satya Prakash registered the FIR. PW-8 Kesri is another eye witness to the incident has also supported the prosecution case. PW-9 A.U. Siddiqui is an Investigating Officer of the case.
14. DW-1 Ravikaran Singh has stated that when he reached to the place of occurrence, there was heavy crowd and people were talking that some dacoits have committed the incident.
15. Close scrutiny of evidence, in particular the statements of PW-2 Autar Singh, PW-3 Onkar Singh, PW-5 Manturi Singh and PW-8 Kesri make it clear that on account of some fencing dispute, there was some quarrel between the deceased Mukhtiar Singh and Karan Singh and then Karan Singh with the help of other accused persons caused injuries to the deceased. All the accused persons were armed with either 'ballam' or club and when PW-3, Onkar Singh intervened in the matter, he too was beaten by the accused persons. Postmortem report of the deceased also supports the ocular version of the witnesses and likewise medical evidence of Onkar Singh also supports the statement of eye witness.
16. Considering the evidence available on record, complicity of the accused persons in commission of offence has been duly proved by the prosecution. The next question, which arises for consideration of this Court is as to whether the act of the accused Harbir and Karan Singh would fall within the definition of 'murder' or it would be 'culpable homicide' not amounting to murder.
17. Before proceeding further, it is relevant to refer to the provisions of Section 300 of IPC, which read as under:
"300. Murder. - Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-
Secondly. - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or -
Thirdly. - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -
Fourthly. - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1. - When culpable homicide is not murder. - Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above Exception is subject to the following provisos:-
First. - That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly. - That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly. - That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation. - Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
Exception 2. - Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
Exception 3. - Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
Exception 4. - Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Explanation. - It is immaterial in such cases which party offers the provocation or commits the first assault.
Exception 5. - Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent."
18. Exception 4 to Section 300 of the IPC applies in the absence of any premeditation. This is very clear from the wordings of the Exception itself. The exception contemplates that the sudden fight shall start upon the heat of passion on a sudden quarrel. The fourth exception to Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of provocation not covered by the first exception, after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1, but the injury done is not the direct consequence of that provocation. In fact, Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon an equal footing. A "sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor could in such cases the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner, and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage".
19. The Apex Court in State of A.P. vs. Rayavarapu Punnayya and Another; (1976) 4 SCC 382 while drawing a distinction between Section 302 and Section 304 of IPC held as under:
"12. In the scheme of the Penal Code, "culpable homicide" is genus and "murder" its specie. All "murder" is "culpable homicide" but not vice-versa. Speaking generally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the greatest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.
21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is "murder" or "culpable homicide not amounting to murder", on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of "murder" contained in Section 300. If the answer to this question is in the negative the offence would be "culpable homicide not amounting to murder", punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be "culpable homicide not amounting to murder", punishable under the first part of Section 304, of the Penal Code."
20. In Budhi Singh vs. State of Himachal Pradesh; (2012) 13 SCC 663, the Supreme Court held as under:
18. The doctrine of sudden and grave provocation is incapable of rigid construction leading to or stating any principle of universal application. This will always have to depend on the facts of a given case. While applying this principle, the primary obligation of the court is to examine from the point of view of a person of reasonable prudence if there was such grave and sudden provocation so as to reasonably conclude that it was possible to commit the offence of culpable homicide, and as per the facts, was not a culpable homicide amounting to murder. An offence resulting from grave and sudden provocation would normally mean that a person placed in such circumstances could lose self-control but only temporarily and that too, in proximity to the time of provocation. The provocation could be an act or series of acts done by the deceased to the accused resulting in inflicting of injury.
19. Another test that is applied more often than not is that the behaviour of the assailant was that of a reasonable person. A fine distinction has to be kept in mind between sudden and grave provocation resulting in sudden and temporary loss of self-control and the one which inspires an actual intention to kill. Such act should have been done during the continuation of the state of mind and the time for such person to kill and reasons to regain the dominion over the mind. Once there is premeditated act with the intention to kill, it will obviously fall beyond the scope of culpable homicide not amounting to murder....."
21. In Kikar Singh vs. State of Rajasthan; (1993) 4 SCC 238, the Apex Court held as under:
"8. The counsel attempted to bring the case within Exception 4. For its application all the conditions enumerated therein must be satisfied. The act must be committed without premeditation in a sudden fight in the heat of passion; (2) upon a sudden quarrel; (3) without the offender's having taken undue advantage; (4) and the accused had not acted in a cruel or unusual manner. Therefore, there must be a mutual combat or exchanging blows on each other. And however slight the first blow, or provocation, every fresh blow becomes a fresh provocation. The blood is already heated or warms up at every subsequent stroke. The voice of reason is heard on neither side in the heat of passion. Therefore, it is difficult to apportion between them respective degrees of blame with reference to the state of things at the commencement of the fray but it must occur as a consequence of a sudden fight i.e. mutual combat and not one side track. It matters not what the cause of the quarrel is, whether real or imaginary, or who draws or strikes first. The strike of the blow must be without any intention to kill or seriously injure the other. If two men start fighting and one of them is unarmed while the other uses a deadly weapon, the one who uses such weapon must be held to have taken an undue advantage denying him the entitlement to Exception 4. True the number of wounds is not the criterion, but the position of the accused and the deceased with regard to their arms used, the manner of combat must be kept in mind when applying Exception 4. When the deceased was not armed but the accused was and caused injuries to the deceased with fatal results, the Exception 4 engrafted to Section 300 is excepted and the offences committed would be one of murder.
9. The occasion for sudden quarrel must not only be sudden but the party assaulted must be on an equal footing in point of defence, at least at the onset. This is specially so where the attack is made with dangerous weapons. Where the deceased was unarmed and did not cause any injury to the accused even following a sudden quarrel if the accused has inflicted fatal blows on the deceased, Exception 4 is not attracted and commission must be one of murder punishable under Section 302. Equally for attracting Exception 4 it is necessary that blows should be exchanged even if they do not all find their target. Even if the fight is unpremeditated and sudden, yet if the instrument or manner of retaliation be greatly disproportionate to the offence given, and cruel and dangerous in its nature, the accused cannot be protected under Exception 4...."
22. All the above three cases were considered by the Apex Court in Surain Singh v The State of Punjab; Criminal Appeal No.2284 of 2009, decided on April 10, 2017 and ultimately, it has been held by the Apex Court in that particular case, that the accused was liable to be convicted under Section 304 Part II of IPC and not under Section 302 of IPC.
23. If we apply the above principle of law in the present case, what emerges from the evidence, is that the incident occurred on a trivial issue between accused Karan Singh and deceased over fencing of the land. The accused persons have caused single injury on the chest of the deceased, there was no premeditation on the part of the accused persons, the incident occurred on a sudden provocation, in a heat of passion. Though there was sufficient opportunity for the accused persons to further assault the deceased but they did not do the same.
24. Considering all the above aspects, the case of the appellant would, thus, fall under Exception 4 of Section 300 of IPC and it can be safely held that the appellants are liable to be convicted for committing 'culpable homicide not amounting to murder'.
25. The next question is whether the appellant is liable to be convicted under Section 304 Part I or Part II of IPC. Considering the nature of injuries caused by him to the deceased, we are of the view that the appellants Harbir and Karan Singh are liable to be convicted under Section 304 Part I of IPC and not under Section 304 Part II of IPC.
26. So far as conviction of the appellants Bijendra and Devendra Singh under Section 307/34 of IPC is concerned, looking to the medical report of injured Onkar Singh and the statement of the doctor, the same appears to be correct and does not call for any interference. Accordingly, their conviction under Section 307/34 of IPC is maintained.
27. Yet another question, which arises for consideration of this Court is as to what would be the appropriate sentence to be imposed upon Harbir and Karan Singh. The incident occurred about 34 years back and therefore, ends of justice would be served if they are sentenced to seven years rigorous imprisonment. Order accordingly. Sentence of three years of accused Devendra under Section 307/34 of IPC is maintained. Sentence of Bijendra under Section 307/34 is reduced to three years rigorous imprisonment from that of seven years. Order accordingly.
28. The appeal is partly allowed.
29. The accused-appellants are on bail. They be taken into custody forthwith and be sent back to jail for serving the remaining sentence.
30. We appreciate the assistance rendered by Sri Rajesh Kumar Singh (Amicus) and we direct the State Government to pay Rs. 5000/- to him towards his remuneration.
Dated: 16.10.2019 SK/MK (Raj Beer Singh, J.) (Pritinker Diwaker, J.)