Allahabad High Court
Gurnam Singh vs State Of U.P. on 15 October, 2019
Equivalent citations: AIRONLINE 2019 ALL 2559
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 48
Criminal Appeal No. 325 of 1990
Gurnam Singh ..........Appellant
Vs.
State of U.P. ...........Respondent
For Appellant : Mohd. Shahanshah Alam Ansari, Amicus
For Respondent : Sri J.K. Upadhyay, AGA
Hon'ble Pritinker Diwaker, J.
Hon'ble Raj Beer Singh, J.
Per: Pritinker Diwaker, J (15.10.2019)
1. This appeal arises out of impugned judgment and order dated 12.2.1990 passed by the IInd Additional District & Sessions Judge, Muzaffarnagar in Sessions Trial No. 8 of 1987, convicting the appellant under Section 302 of IPC and sentencing him to undergo rigorous imprisonment for life.
2. In the present case, name of the deceased is Santokh Singh, who had advanced Rs.4,000/- to appellant-Gurnam Singh on credit basis and on 29.9.1986, at about 11.30 am, when deceased demanded back his money, there was altercation between the two and then it is said that the appellant caused single gunshot injury to the deceased, resulting his death. Incident has been witnessed by Gurubachan Singh (PW-1), brother-in-law of the deceased, Jogendra Kore (PW-2), wife of the deceased and Shravan Singh (PW-3). On the basis of written report Ex.Ka.2 lodged by Gurubachan Singh (PW-1), FIR Ex.Ka.3 was registered at 02.15 pm against the appellant under Section 302 of IPC.
3. Inquest on the dead body of the deceased was conducted vide Ex.Ka.7 and the body was sent for postmortem, which was conducted vide Ex.Ka.6 on 30.9.1986 by Dr. B.K. Agrawal. As the postmortem report was admitted by the defence at the stage of trial, Autopsy Surgeon has not been examined. As per postmortem report, following injuries were found on the body of the deceased:
"(1) One gunshot wound of entry 6 mm x 6 mm x muscle deep on the (L) forehead 1 cm above eyebrow.
(2) Two gunshot wounds of entry 6 mm x 6 mm x muscle deep on the (R) side of nose and upper lip 4 cm away from each other.
(3) Multiple gun shot wound of entry in a area of 44 cm x 33 cm on the (R) neck (R) Chest (R) Abdomen. Each measuring 6 mm x 6 mm to 1 cm x 1 cm at varying distance of each other. All are skin to cavity - deep.
(4) Multiple gun shot wound of entry in a area of 45 cm x 9 cm on the outer frontal aspect of (R) upper limb. Each measuring 6 mm x 6 mm to 1 cm x 1 cm at varying distance of each other.
(5) Three gun shot wounds of entry on the top of (L) shoulder each measuring 6 mm x 6 mm x muscle deep in a area of 4 cm x 4 cm.
(6) Two gun shot wound of entry on the (L) Chest (one at level of (L) nipple laterally 1 cm away 9' O clock point and other one 8 cm above) Each measuring 6 mm x 6 mm x muscle deep.
Margins of all above injury are inverted blackening and tattooing absent. Direction from above downward backward."
According to Autopsy Surgeon, cause of death of the deceased was shock and haemorrhage as a result of injury described.
4. While framing charge, the trial judge has framed charge against the appellant under Section 302 of IPC.
5. So as to hold appellant guilty, prosecution has examined seven witnesses, whereas four defence witnesses have also been examined. Statements of the accused-appellant was recorded under Section 313 of Cr.P.C. in which, he pleaded his defence that the firearm injury was caused by his father and that too, while exercising the right of private defence.
6. By the impugned judgement, trial judge has convicted the appellant under Section 302 of IPC and sentenced him as stated in para no.1 of this judgement. Hence, this appeal.
7. Learned counsel for the appellant submits:
(i) that Gurubachan Singh (PW-1), Jogendra Kore (PW-2) and Shravan Singh (PW-3) are not reliable witnesses and they have falsely implicated the appellant.
(ii) that it is the deceased, who came to the house of the appellant and had burnt his hutment and in self defence, father of the appellant caused gunshot injury resulting unfortunate death of the deceased. Learned counsel submits that the appellant had nothing to do with the incident and he has been falsely implicated.
(iii) that even if the entire prosecution case is taken as it is, appellant cannot be convicted for committing the murder of the deceased and at best, he is liable to be convicted under Section 304 Part-I or Part-II of I.P.C.
8. On the other hand, supporting the impugned judgment, it has been argued by the State counsel that conviction of the appellant is in accordance with law and there is no infirmity in the same. He submits that there is absolutely no evidence on record to suggest that it is the father of the appellant, who caused gunshot injury to the deceased.
9. We have heard learned counsel for the parties and perused the record.
10. Gurubachan Singh (PW-1), is a brother-in-law of the deceased and the informant. He states that marriage of his sister Jogendra Kore (PW-2) was solemnized with the deceased and that since last five years, he was residing with his brother-in-law. There was a sale agreement between the appellant and the deceased, and the appellant had taken Rs.8,000/- as advance from the deceased. When appellant had not executed the sale deed, deceased demanded back his money but despite assurance, the same was refused. On the date of incident, at about 11.30 am, when he, his sister and the deceased were going towards the market, on the way, deceased met the appellant and demanded back his Rs.4,000/-. However, instead of giving the amount, appellant started abusing the deceased and returned back to his house and soon thereafter, he came out from his house along with his gun, climbed up on his terrace and then caused gunshot injury to the deceased resulting his death. In cross-examination, this witness remained firm and nothing could be elicited from him and rather he has reiterated that after altercation, the appellant went inside his house, returned back along with his gun, climbed up on his terrace and then caused gunshot injury to the deceased.
11. Jogendra Kore (PW-2) is a wife of the deceased. Her statement is almost similar to that of Gurubachan Singh (PW-1). She too has categorically stated that her husband demanded back his money from the appellant; there was altercation between them, the appellant went inside his house, came out along with his gun and strip of cartridges, climbed up on his terrace and then caused gunshot injury to the deceased. In cross-examination, she too remained firm. She has categorically denied the fact that any hutment of the appellant was burnt by anyone.
12. Shravan Singh (PW-3) is another eye-witness to the incident, has also supported the prosecution case and stated that there was altercation between the appellant and the deceased and when deceased demanded back his money. The appellant went on his terrace, exhorted from there and then caused gunshot injury to the deceased resulting his death.
13. Virendra Singh (PW-4) recorded the First Information Report. Satish Kumar (PW-5) took the body for post-mortem and Bharat Singh (PW-6), is a witness of inquest.
14. Rajendra Singh Yadav (PW-7) is the Investigating Officer, has duly supported the prosecution case. The Investigating Officer has also proved the recovery of gun seized from the possession of the appellant.
15. Sheoraj (DW-1) has stated that the hutment of the father of appellant was burnt by the deceased and in self defence, the firearm injury was caused by the father of the deceased.
16. Close scrutiny of evidence makes it clear that the appellant had taken some amount from the deceased for executing a sale deed and there was dispute between the two. The deceased used to demand his money back from the appellant, which was repeatedly refused by him and on the date of incident, in presence of Gurubachan Singh (PW-1), Jogendra Kore (PW-2) and Shravan Singh (PW-3), the deceased again demanded back his money, but instead giving the same, appellant went inside his house, came out along with his gun and strip of cartridges, climbed up on his terrace and after exhorting, caused gunshot injury to the deceased. All the three eye-witnesses, i.e. PW-1, PW-2 and PW-3 have duly supported the prosecution case. Postmortem report of the deceased also supports the prosecution case where number of pellet injuries have been found on the body of the deceased. Furthermore, at the instance of the appellant, gun was seized which has also been proved by the prosecution. Considering the statement of eye-witnesses, complicity of the appellant in commission of offence has been duly proved by the prosecution.
17. True it is, that present appears to be a case of single gunshot injury but the fact remains that after altercation, appellant had sufficient time to cool down. However, he went inside his house, came out from the same carrying a gun in his hands, climbed up on his terrace, exhorted from there and thereafter caused gunshot injury to the deceased. The Supreme Court in the case of K.M. Nanavati vs. State of Maharashtra1 held 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 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."
In Dhirajbhai Gorakhbhai Nayak vs. State of Gujarat2, the Supreme Court held as under:
"10. For bringing in its operation it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner.
11. The fourth exception of Section 300, IPC covers acts done in a sudden fight. The said Exception deals with a case of prosecution (sic 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 offender's 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 have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'."
In Bavisetti Kameswara Rao vs. State of A.P. Rep. by its Public Prosecutor High Court of A.P., Hyderabad3, the Supreme Court held as under:
"13. It is seen that where in the murder case there is only a single injury, there is always a tendency to advance an argument that the offence would invariably be covered under Section 304 Part II IPC. The nature of offence where there is a single injury could not be decided merely on the basis of a single injury and thus in a mechanical fashion. The nature of the offence would certainly depend upon the other attendant circumstances which would help the court to find out definitely about the intention on the part of the accused. Such attendant circumstances could be very many, they being (i) whether the act was pre-meditated; (ii) the nature of weapon used; (iii) the nature of assault on the accused. This is certainly not an exhaustive list and every case has to necessarily depend upon the evidence available. As regards the user of screw driver, the learned counsel urged that it was only an accidental use on the spur of the moment and, therefore, there could be no intention to either cause death or cause such bodily injury as would be sufficient to cause death. Merely because the screw driver was a usual tool used by the accused in his business, it could not be as if its user would be innocuous.
17. We also do not accept the contention of the learned counsel for the defence which was raised only by way of a desperate argument that the incident was sudden and it was without any premeditation, thereby the learned counsel wanted to bring the evidence under Section 304 Part I. In short the counsel aimed at Exception I of Section 300 IPC. Exception 4 was also sought to be relied upon. We do not think the evidence available would warrant the offence covered by Exception 1 as there was no such grave and sudden provocation on the part of the deceased. Similarly it was not a case of sudden fight in the heat of passion nor was it a case of sudden quarrel without the offender having taken undue advantage or acted in a cruel or unusual manner. There is evidence on record to suggest that there was a previous altercation and the accused persons were seething in anger to take the revenge of the incident which had taken place on 27th of the same month. Further, it was only after the deceased came in front of the shop of the accused on his motorbike, first there was an exchange of abuses and it was then that the incident took place where not only the accused but even the second accused is proved to have attacked the deceased. This could not, therefore, be a case of a sudden fight. Therefore, the question of application of Section 304 Part I is also ruled out."
In Guru Dev Singh vs. State of M.P.4, the Supreme Court held as under:
"26. With regard to law dealing with Exception 1 to Section 300 we may refer to K. M. Nanavati v. State of Maharashtra reported in AIR 1962 SC 605 in which this Court held that the following conditions must be complied with for the application of Exception 1 to Section 300 of the IPC:
"(1) the deceased must have given provocation to the accused, (2) the provocation must be grave, (3) the provocation must be sudden, (4) the offender, by reason of the said provocation, shall have been deprived of his power of self-control, (5) he should have killed the deceased during the continuance of the deprivation of the power of self-control, and (6) the offender must have caused the death of the person who gave the provocation or that of any other person by mistake or accident."
27. With regard to Exception 4 to Section 300 we may refer to Kulesh Mondal v. The State of West Bengal reported in (2007) 8 SCC 578 in which this Court held: (SCC p. 581, paras 12-13).
"12. The residuary plea relates to the applicability of Exception 4 to Section 300 IPC, as it is contended that the incident took place in course of a sudden quarrel.
13. For bringing it in operation it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner."
28. In Babulal Bhagwan Khandare & Anr. v. State of Maharashtra reported in (2005) 10 SCC 404, this Court detailed the law relating to Exceptions 1 and 4 to Section 300 IPC in the following terms: (SCC pp. 410-11, paras 17-19) "17. The Fourth Exception to Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution (sic 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 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 in such cases could the whole blame be placed on one side. For if it were so, the exception more appropriately applicable would be Exception 1.
18. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's 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. Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is out of all proportion, that circumstance must be taken into consideration to decide whether undue advantage has been taken. In Kikar Singh v. State of Rajasthan reported in 1993 4 SCC 238, it was held that if the accused used deadly weapons against the unarmed man and struck a blow on the head it must be held that by using the blows with the knowledge that they were likely to cause death he had taken undue advantage".
In Dhirendra Kumar @ Dhiroo vs. State of Uttarakhand5, the Supreme Court held as under:
"15. Question whether a case falls under Section 302 or 304 has to be decided from case to case depending on factors like the circumstances in which the incident takes place, the nature of weapon used and whether weapon was carried or was taken from the spot and whether the assault was aimed on vital part of the body; the amount of force used; whether the deceased participated in the sudden fight; whether there was any previous enmity; whether there was any sudden provocation; whether the attack was in the heat of passion; whether the person inflicting the injury took any undue advantage or acted in a cruel or unusual manner. The list of circumstances is not exhaustive and there may be several other circumstances with reference to individual cases. Applying these tests to the present case, we are unable to accept the defence on behalf of the appellant. It was a case of previous enmity and the nature of injury suggests intention to cause death or a fatal injury on a vital part of the body with full force sufficient to cause death. In these circumstances, we do not find any ground to interfere."
In The State of Uttar Pradesh vs. Faquirey6, the Supreme Court held as under:
"9. According to Exception I to Section 300 IPC, culpable homicide is not murder if the offender causes the death of the person who gave the provocation, whilst deprived of the power of self-control by grave and sudden provocation. It would be relevant to refer to the First Proviso to Exception I which provides that the provocation should be one which is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. No overt act is alleged against the deceased by which it can be stated that the Respondent was provoked. From the proved facts of this case it appears that the provocation was voluntary on the part of the offender. Such provocation cannot come to the rescue of the Respondent to claim that he is not liable to be convicted under Section 302 IPC."
18. It is thus clear that entire chain of events did not occur in a spur of moment or during sudden quarrel. Though there was sudden quarrel between the two, but thereafter there was ample time for the appellant to cool down. However, the appellant prepared himself, took his gun and strip of cartridges from his house, climbed up on his terrace and then after exhortation ¼[kM+s jgks vius iSls ysdj tkuk½, caused gunshot injury to the deceased. Moreover, the deceased never provoked the appellant and he simply demanded his Rs.4000/- from him. There is absolutely no evidence on record to suggest that it is the deceased who initiated any hot-talk. Demanding back his due from the appellant would under no circumstance be termed as quarrel on the part of the deceased or provocation from his side. Instead returning the due amount to the deceased or giving him any assurance, the appellant adopted a drastic approach and killed him. Considering the evidence available on record, under no circumstance, the deceased can be faulted with. Taking the entire evidence as it is, the case of the appellant would not fall under any Exception of Section 300 of IPC and, therefore, we are of the view that the trial court was justified in convicting the appellant under Section 302 of IPC and his case would not fall for any lesser offence.
19. Considering all aspects of the case, trial court appears to be justified in convicting the appellant. The appeal has no substance and the same is, accordingly, dismissed. The appellant is reported to be on bail, he be taken into custody forthwith to serve the remaining sentence.
20. We appreciate the assistance rendered by Mohd. Shahanshah Alam Ansari, Amicus and direct the State Government to pay Rs.5,000/- to him as his remuneration.
Date: 15.10.2019
RK/Ravi Kant
(Raj Beer Singh, J) (Pritinker Diwaker, J)