Allahabad High Court
Ram Het And Others vs State Of U.P. on 10 July, 2020
Equivalent citations: AIRONLINE 2020 ALL 1834
Bench: Sunita Agarwal, Ajit Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on : 18.3.2020. Delivered on 10.07.2020 Court No. - 42 Case :- CRIMINAL APPEAL No. - 1085 of 2012 Appellant :- Ram Het And Others Respondent :- State of U.P. Counsel for Appellant :- Ghan Shyam Das,Hement Kumar,Jitendra Singh,Satya Prakash Rathor,Seema Shukla,Vinod Kumar Counsel for Respondent :- Govt. Advocate Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Ajit Singh,J.
(Delivered by Hon. Ajit Singh, J.) This criminal appeal has been filed against the judgement and order dated 24.1.2012 passed by Addl. Sessions Judge (Ex. Cadre), Mahoba in S.T. No. 115 of 2010 (Ram Het and others vs. State of U.P.), under Sections 302, 325 and 323 I.P.C., P.S. Charkhari, district-Mahoba, whereby the accused-appellants have been convicted for the offence under Section 302 IPC and sentenced to life imprisonment with fine Rs. 5,000/- and in default of payment of fine, the appellants have to undergo six months rigorous imprisonment; convicted for the offence u/s 325 IPC and sentenced to undergo three years R.I. with fine of Rs. 1,000/- and in default of payment of fine, the appellants have to undergo one month R.I.; and also convicted for the offence u/s 323 I.P.C. and sentenced to undergo six months rigorous imprisonment.
In brief, the case of the prosecution starts from the FIR lodged by complainant Smt. Puniya wife of Kamta, resident of Mohalla-Soharyab, Kasba and police station-Charkhari, district-Mahoba, alleging therein that on 15.10.2010 at about 6:00 p.m. at the doorstep of Nathu Prajapati, her husband Kamta, son Hariram and daughter Jaidevi and she herself were attacked with lathi-danda by Ramhet and Rameshwar sons of Maiyadeen Prajapati, residents of Soharyab, Kasba-Charkhari and two other persons namely son of Balli and son of Jaggu, residents of Village-Salat. It was also mentioned in that report that her husband received injuries in his head and became unconscious and she had brought her injured husband to the police station. The chick report of the FIR was scribed by constable Dashrath Singh, G.D. entries were made. Initially the report was lodged under Sections 308 and 323 I.P.C. as Crime no. 1702 of 2010 and when death of the complainant's husband had taken place, Section 304 I.P.C. was also added. After lodging of the report the investigation started and after completion of investigation, the Investigating Officer had submitted chargesheet against four accused persons namely, Ramhet and Rameshwar sons of Maiyadeen Kumhar, Rajesh and Ramhetu son of Brij Lal. The cognizance was taken by the Magistrate and considering that the case was triable by the Sessions Judge, it was committed to the Court of session. The sessions court charged the accused under Sections 302, 308 and 323 I.P.C. Accused Ramhet son of Brij Lal was declared juvenile and his case was separated and sent to the Juvenile Justice Board and trial of three accused namely herein, Ramhet, Rameshwar and Rajesh commenced.
The prosecution, in order to prove its case, examined nine witnesses. PW1 Puniya (informant), PW2 Jai Devi daughter of the complainant, PW3 Hari Ram son of the complainant, PW4 Dashrath Singh, PW5 S.I. Harbansh Singh (Investigating Officer), PW6 D.K. Sullere, PW7 Dr. Devendra Singh Rajpoot, PW8 Anurag Purwar and PW9 Ram Sukh Verma.
The prosecution has examined PW1 informant Puniya, wife of deceased Kamta who has deposed that on 15.10.2010 at about 6:00 p.m., her husband Kamta was sitting at the doorstep of Nathu Prajapati. Rameshwar asked Kamta that what was he seeing ('kya dekh rahe ho') and at the very time accused persons namely, Rameshwar, Ram Het sons of Bhaiyadeen, Rajesh and Ram Het sons of Brij Lal ran towards the deceased. They were armed with lathi. Rameshwar assaulted her husband with lathi on his neck, thereafter he hit on his head, as a result of which deceased fell down on the ground. Ram Het son of Bhaiyadeen and Ram Het son of Brij Mangal also attacked with lathies on the head of deceased. Rajesh attacked on his head with lathi. When the informant along with her daughter Km. Jagdevi and son Hari Ram reached at the spot to save her husband then all the accused persons also assaulted them with lathi-danda, as a result of which PW-1 sustained injuries in her head and also got fractured her both hands. Her daughter Km. Jai Devi and son Hari Ram also sustained injuries. In this incident her husband succumbed to the injuries on the spot. Thereafter she got scribed the report of the incident by Ramesh Pal Singh. When her husband was brought to the hospital, he was declared dead. Thereafter she went to the police station to lodge the first information report, which was registered at about 19:20 hours.
In her cross-examination, informant PW-1 Puniya has accepted that before this incident there was no enmity between her deceased husband and the accused persons. Although she has also deposed that her husband Kamta was tried for the murder of Bhaiyadeen father of Rameshwar along with one co-accused Rakesh and was acquitted and that is why the accused appellants were having enmity. She has also deposed that her residence is beside the house of accused persons.
PW-2, Jai Devi, daughter of the deceased has deposed that on 15.10.2010 at about 6:00 p.m. her father was sitting at the doorstep of Natthu. She herself was sitting along with her mother, then Rameshwar, Ram Het, Rajesh and another Ram Het, who were having lathi in their hands came and started hurling abuses at her father and asked as to why was he looking at them (kya dekh rahe ho). Her father did not reply and then, all the accused persons started assaulting her father. Rameshwar assaulted with lathi on his neck and head, as a result of which her father fell down on the ground. Thereafter, Ram Het had made repeated lathi blows on the head of the deceased causing serious injuries on his person. Rajesh attacked on his head and chest with lathi and another Ram Het also attacked on the neck, head and chest of the deceased. The moment all the accused persons were assaulting her father, she along with her mother and elder brother Hari Ram had reached on the spot. The accused persons also assaulted the PW-2, her mother and brother with lathi-danda, causing serious injuries to them. After Marpeet, the accused persons ran away from the spot. Her father succumbed to injuries on the spot but he was rushed to the hospital where he was declared brought dead. She also reiterated the same facts in her cross-examination. In her cross-examination, PW-2 has accepted and gave a vivid narration of the incident that accused Ram Het had asked his father why was he looking at him (Meri Taraf Kya Dekh Rahe Ho) which led to the altercation between Ram Het and her father. In her cross-examination she supported the prosecution case and affirmed that she has given statement before Daroga Ji that Rameshwar and Ram Het sons of Bhaiyadeen had made blows with danda on the head of her father as well as Ram Hetu and Rajesh assaulted with danda on his back and also beaten her mother. She has deposed that due to the assault made by accused persons with lathi upon her father, her father had fallen on the ground but her mother did not. It has also been stated in her statement that at the time of the quarrel her uncle Kadorey and her father's friend Ramesh Pal Vakeel Sahab came up on the spot. Then, Ramesh Pal took her injured father, her mother and her along with Hari Ram in a Tempo to the government hospital and she came back from the hospital after eight days. She had denied that she was tutored by anyone to give false evidence against the accused persons. She also denied the suggestion that she was not present at the place of incident. She has stated that blood stains of the injuries of her father were seen by her on the Chabutara of Natthu Prajapati. However, she has deposed that she could not count as to how many lathi blows were made by the accused persons on her father as they all were assaulting together. She has also denied that her father had taken liquor on the date of incident or her father used to consume liquor outside. About the time and place of the incident or about the involvement of the accused appellants, her statement remained unshaken in the cross-examination.
PW-3 Hari Ram son of the deceased has deposed that at around 6 o'clock in the evening, the incident had taken place in front of the house of Natthu about ten months ago. He was sitting with his father on the platform (chabutra) of Natthu. At that time, Ram Het, Rameshwar, Rajesh and another Ram Het who were carrying lathies in their hands came and asked his father why was he looking at them (kya dekh rahe ho). Thereafter, accused Ram Het, Rameshwar, Ram Hetu and Rajesh started assaulting his father with lathi-danda. All the accused persons had given lathi blows on the head of his father, as a result of which he became unconscious and fell down on the ground and died on the spot. When the accused persons were assaulting his father, he along with his mother and and sister Jai Devi ran to save him. He also stated that this incident was witnessed by his mother and sister. Thereafter, police reached and took his father to the hospital, who had died. He also sustained injuries on his shoulder. The accused persons had also assaulted him with lathis and his sister too sustained injuries. He has also deposed that his mother was also assaulted by the accused persons with lathis on her head. PW-3 in his cross-examination has accepted that the incident had taken place at the spur of moment and the accused appellants were not having any weapons in their hand at the very beginning of the quarrel and they brought the same thereafter, which reads as under:-
"जब हम लोग बैठे थे अभियुक्त रामेश्वर अपने घर से निकलकर नत्थू के चबूतरे से होकर जा रहा था । तब हमारे पिता जी ने कहा कि हमारी तरफ क्या देख रहे हो । तो इस पर वो गली गलौज देने लगा और मेरे पिता ने उसे गली देने से मना किया था और मेरे पिता जी ने गली नहीं दी थी। जब ये बातचीत मेरे पिता से हो रही थी तो रामेश्वर हाथ में कुछ नहीं लिए था। बातचीत के बाद हमारे पिताजी व रामेश्वर में गुत्था गुत्थी नहीं हुई थी । फिर रामेश्वर अपने घर पर वापस चला गया था । फिर तुरंत रामेश्वर लाठी लेकर घर से आया था । फिर कहा कि चारो लोग आ गए थे । जब मुल्जिमानगण चबूतरे पर आये तो मेरी माँ व बहिन जय देवी घर के अंदर थी। फिर हमारे पिता जी को मारा पीटा गया । मेरे पिता जी मारपीट के बाद मर गए थे । और बेहोश नहीं हुए थे । मेरी माँ व बहन जय देवी बचाने दौड़ कर आयी थी । मैं व मेरे पिता जी चिल्लाये नहीं थे । मेरी माँ व बहन स्वयं घटना देखकर मौके पर आयी थी।"
PW-4, Constable Dashrath Singh, has deposed that on 15.10.2010 he was posted as head Constable at police station-Charkari and on that day he prepared the chik FIR on the basis of the complaint filed by one Puniya. He has proved that chik FIR as Ext. Ka-1. He further deposed that on that day he had mentioned the institution of this case at rapat no. 44, which is marked as Ext. Ka-3.
PW6 Dr. D.K. Sullere, Medical Officer, had conducted the postmortem of dead body of the deceased Kamta on 16.10.2010. He found the following ante-mortem injuries on the body of the deceased :-
(i) Lacerated wound of 4cm x 2cm x bone deep right parietal region of scalp 5cm above from right ear with fractured underlying bone right parietal.
(ii) Lacerated wound of 4.5cm x 2cmx bone deep at right occipital region of scalp.
(iii) Lacerated wound 6cm x 2cm at middle of scalp 13cm above from left ear.
(iv) Lacerated wound 3cm x 2cm muscle deep at post oricular region at face on right side.
(v) Abraded contusion 4cm x 2cm at back of right shoulder 3cm below from lateral end of right clavicle.
(vi) Contusion 19cm x 3cm at back of chest on right side just below spine of right scapula.
(vii) Contusion 13cm x 3cm at back of chest on right side 3cm below from injury no. 6.
(viii) Contusion 9cm x 3cm at back of chest on right side 4cm below from injury no. 7.
(ix) Contusion 8cm x 3cm at back on right side 5cm below from injury no. 8.
(x) Abrasion 4cm x 3cm at lower part of abdomen just above anterior-superior iliac spine.
(xi) Abraded contusion 4cm x 3cm at left knee just below patella.
(xii) Abraded contusion 5cm x 3cm at left leg 6cm below from injury no. 11.
According to the postmortem report, the cause of death of the deceased was heamorrhage and shock due to antemortem injuries.
PW-7 Dr. Devendra Singh Rajpoot, Medical Officer, had performed medico-legal examination of injured Puniya on15.10.2010 at about 8:05 p.m. and prepared medico-legal injury report. He found four injuries on the body of Puniya :-
(i) A lacerated wound of 4 x 1 cm x bone deep on left parietal region of scalp 14 cm above from tragus of left ear.
(ii) A contusion of 5 x 2cm on top of right shoulder and upper arm.
(iii) A contusion of 3x2cm on back of right wrist surrounded by swelling in the area of 8x5cm.
(iv) Abraded contusion of 2x2cm on back of left forearm 5cm above from the wrist joint surrounded by swelling of 6x4cm.
According to him, all the injuries were caused by hard and blunt object and were fresh in duration. Injury no. 2 is simple in nature. Injury nos. 1,3 and 4 were kept under observation.
PW-9, S.I. Ram Sukh Verma, was the Investigating Officer in this case, who had proved the inquest report, spot inspection report and stated in his testimony that he had visited the spot and recorded the statements of witnesses, collected evidences and thereafter, charge sheet was submitted by him, which is marked as Ext. Ka- 21. He had proved documentary evidence like chik FIR etc. The Court after prosecution evidence examined the accused under section 313 Cr.P.C. and the accused submitted that they have been falsely implicated in the present case due to enmity. The accused-appellants have produced two persons namely, Kallu son of Abdul and Dhanpat son of Dhunnu as DW-1 and DW-2.
DW-1 Kallu has deposed that the incident had taken place fifteen months ago. It was 2:30 to 3:00 o'clock in the afternoon. At that time he was in his house. Quarrel was going outside the door of Kamta. All the accused persons who were quarreling with Kamta, were outsiders. Kamta was in a drunken state. All the accused persons were demanding wages from Kamta who was a contractor of bricks and all the accused persons were his labourers. Kamta told them that he had no money and he would pay them later whenever he have the money, he would pay. Kamta was abusing them. This quarrel went on for 10-15 minutes. Thereafter, all unknown persons started assaulting Kamta with lathi-danda, as a result of which he sustained injuries. This incident had taken place at the door of Kamta. In the injured condition Kamta ran towards Chabutra of Natthu and fell down there. After committing offence, all unknown persons fled away from the spot. He further deposed that at that time Puniya, wife of Kamta reached behind the house of Natthu Prajapati and after catching the accused persons, asked their names. Accused persons in their defence also assaulted her with lathi-danda. He also deposed that he along with his wife reported the matter to the police, thereafter police reached at the spot. He deposed that at the time of incident, Rameshwar, Ram Het and brother-in-law of Rameshwar were not present there. He also deposed that Rameshwar and others had not committed any offence and they have been falsely implicated.
DW-2 Dhanpat has deposed that the houses of Natthu Prajapati, Kamta son of Tiriya, Rameshwar and Ram Het sons of Bhaiyadeen are across the road. He deposed that at about fifteen months ago, Kamta was murdered. At about 2:30 to 3:00 o'clock in the afternoon he saw that 3-4 unknown persons came and they were demanding money from Kamta and Kamta was abusing them in drunken condition and he was not giving them their money. Thereafter, all the persons started assaulting Kamta with lathi-danda in front of his house and after that Kamta ran away in injured condition and fell down on 'chabutra' of Natthu. After hearing the noise, Puniya, wife of Natthu reached there and caught the assailants and asked their names, then all unknown persons assaulted her too with lathi-danda. After committing the offence, all unknown persons ran away. He also deposed that he had not seen the son and daughter of Kamta at the place of occurrence. He also deposed that Rameshwar, Ram Het and his brother-in-law (saale) were not the assailants.
After examining the entire evidence, the trial court convicted the accused-appellants by the impugned judgement of conviction. Aggrieved by the said judgement, the present appeal has been preferred by the accused persons.
We have heard Sri Vinod Kumar, learned counsel for the appellants, Sri L.D. Rajbhar and Sri Prem Shankar Mishra, learned A.G.A. for the State.
The submissions of learned counsel for the appellants are :-
(i) All the witnesses are family members of the deceased and they are thus interested and partisan witnesses and their evidence is unreliable. No independent witness has been examined by the prosecution to prove its case.
(ii) There is contradiction regarding place of occurrence as the site plan shows different place of incident whereas the witnesses have deposed different place of occurrence in their statements before trial court.
(iii) It is contended that initially the matter was registered under Sections 323 and 304 I.P.C. but the chargesheet was submitted under Sections 304, 308, 325 and 323 I.P.C. but the trial court has framed charge under Section 302 instead of Section 304 I.P.C.
(iv) In any case, there was no intention on the part of the accused persons to kill the deceased and there was no premeditation or preplanning on the part of the appellants. The incident had taken place due to sudden altercation between the deceased and accused at the spur of moment and the accused persons have not acted in a cruel manner.
In support of his contentions the learned counsel for appellants has placed reliance upon the judgment of the Apex Court pronounced in the case of Subhash Gangadhar Jadhav Vs. State of Maharashtra, 2018 (4) Crimes (SC) 569: Criminal Appeal No. 1576 of 2018.
So far as the argument of the learned counsel for the appellants that the prosecution witnesses are interested witnesses and they are closely related to the deceased, it is well settled that a natural witness may not be levelled as an interested witness. Interested witnesses are those who want to derive some benefit out of the litigation/case. In this case, the circumstances reveal that all the witnesses were naturally present at the place of the occurrence and had witnessed the incident. Their deposition cannot be discarded merely on the ground of being closely related to the deceased. Generally close relations of the victim are unlikely to falsely implicate others in place of real culprits and the mere relationship of the witnesses with the deceased is not sufficient to discredit their evidence.
Relationship is not sufficient to discredit a witness unless motive to give false evidence to spare the real culprit and falsely implicate an innocent person is alleged and proved. A witness is interested only if he derives benefit from the result of the case or has hostility to the accused. In the case of State of Punjab Vs Hardam Singh, 2005, S.C.C. (Cr.) 834, it has been held by the Apex Court that ordinarily the near relations of the deceased would not depose falsely against innocent persons so as to allow the real culprit to escape unpunished, rather such a witness would always try to secure conviction of real culprit. In the case of Dilip Singh Vs State of Punjab, A.I.R. 1983, S.C. 364, it was held by the Supreme Court that the ground that the witnesses being close relatives and consequently being the partition witnesses would not be relied upon, has no substance. Similar view has been taken by the Supreme Court in Harbans Kaur V State of Haryana, 2005, S.C.C. (Crl.) 1213; and in State of U.P. vs. Kishan Chandra and others, 2004 (7), S.C.C. 629. The contention about branding the witnesses as 'interested witness' and credibility of close relationship of witnesses has been examined by the Apex Court in number of cases. A close relative, who is a very natural witness in the circumstances of a case, cannot be regarded as an 'interested witness', as held by the Supreme Court in Dalbir Kaur v. State of Punjab, AIR 1977 SC 472. The mere fact that the witnesses were relations or interested would not by itself be sufficient to discard their evidence straight way unless it is proved that their evidence suffers from serious infirmities which raises considerable doubt in the mind of the Court. Similar view was taken in case of State of Gujrat v. Naginbhai Dhulabhai Patel, AIR 1983 SC 839.
In the present case although it is correct that PW-1, Puniya, is wife of the deceased, PW-2, Km. Jai Devi, is daughter of the deceased and PW-3, Hari Ram, is son of the deceased but they appear to be natural witnesses of the incident. The alleged incident has taken place in the broad day light in the evening near their house. In such scenario the presence of these witnesses at the place of occurrence appears to be quite natural and probable. These witnesses have been subjected to cross examination but no such adverse effect has emerged to render the presence of these witnesses at the scene of offence doubtful. The testimony of PW-1 is amply corroborated by the testimony of PW-2 and PW-3 and their oral testimonies are fully in consonance with medical evidence.
A close scrutiny of the evidence shows that PW-1 who has reported this matter to the police has specifically deposed in her statement that her husband was attacked by accused persons and she along with her children was also attacked by all the accused persons. Evidence of PW-1 finds corroboration with the evidence of the PW-2, Jai Devi, who has specifically narrated the prosecution version that her father was attacked by the accused persons and she along with her mother and brother was also attacked by them. PW-3, Hari Ram, had also supported the prosecution version and he has specifically said that when he was sitting along with his father at the Chabutara of Natthu, then, accused persons namely Ramhet, Rameshwar, Rajesh and Ramhetu came there carrying lathi-dandas in their hands and said to his father, "what are you looking?" (Kya dekh rahe ho). This witness has also specifically stated that he also suffered injuries along with his mother and sister. The oral testimony of PW-1, PW-2 and PW-3 is supported by medical evidence.
On making a close scrutiny of the oral evidence of the witnesses, it is established beyond reasonable doubt that all the witnesses were present at the place of the occurrence and they have witnessed the incident and their statements are consistent about the narration of the incident, which are also supported by the medical evidence. So the contention of learned counsel for the appellants has no force.
Now, we take into consideration the contention of the learned counsel for appellants that the place of incident narrated by the prosecution witnesses is different as shown in the site plan. Regard being had to that aspect of the matter, we have gone through the material available on record and after having given a thoughtful consideration, it reveals that the incident took place on the 'Chabutra' of Natthu, which was in front of the house of Natthu. On the other hand, the Investigating Officer has shown the place of incident at point 'X' marked in the site plan, which is not the 'Chabutra' of Natthu. After considering this aspect and considering the statements of witnesses, it is apparent that the incident had taken place when the deceased was sitting in front of house of Natthu. PW-1 Puniya has specifically stated in her cross-examination that the incident had taken place when her husband was sitting at the 'Chabutra' of Natthu. She further stated in her cross-examination that the entire incident had taken place at the 'Chabutra' of Natthu. The oral testimony of PW-1 regarding place of occurrence finds corroboration from the evidence of PW-2 Jai Devi, who in her cross-examination has stated that the incident had taken place when her father was sitting in front of the house of Natthu. PW-3 Hari Ram has also specifically stated in his evidence that the incident had taken place in front of house of the Natthu when this witness was sitting along with his father at the 'Chabutra' of Natthu and the site plan also shows that 'Chabutra' of Natthu was lying at place 'A'. Deceased became unconscious at the place which is marked as 'A' in the site plan and this place is in front of house of Natthu. Thus if there is slight discrepancy in the site plan but as both the places where the accused first started beating the deceased and where the deceased was lying unconscious are nearby places as per the site plan itself and when the evidence of prosecution witnesses is quite natural and reliable, slight shifting the place of occurrence by the Investigating Officer is of much relevance.
After examining the entire evidence, we are of the opinion that statements of witnesses, PW-1, PW-2 and PW-3 have specifically shown the incident to have taken place in front of house of Natthu at the 'Chabutra' of Natthu and the oral evidence is totally consistent and they have not changed the place of incident and if there is minor variation in the site plan about the place of incident, it is not of much relevance and the credibility of the prosecution witnesses cannot be doubted, the argument of learned counsel for the appellant is not tenable, hence rejected.
Thereupon, it was vehemently submitted by the learned counsel for the appellants that if prosecution evidence is accepted as such, at the most, the accused persons can be convicted under Section 304 IPC and they should not have been convicted by the trial court under Section 302 IPC as the incident had taken place suddenly without any premeditation at the spur of the moment. The accused persons had no intention to kill the deceased and they have not acted in a cruel manner.
We have given a thoughtful consideration to the said argument and it emerges from the evidence led by the prosecution that the incident had taken place suddenly at the spur of the moment without any preplanning or premeditation beginning with a simple altercation between the deceased and the accused persons. It was just a verbal altercation as when the accused persons were passing by the deceased, the deceased was staring at them and upon asking by the accused persons as to why he was staring at them (Woh kyoan dekh raha hai), no reply was given, the accused persons got irritated and beaten the deceased in the hear of passion.
Before proceeding further and determining as to whether the conviction of appellants ought to have been done under Section 304 IPC instead of Section 302 IPC, 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 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."..
In case of Surain Singh Vs. State of Punjab, the Hon'ble Apex Court has held in Para No. 7 as thus:-
7). 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."
(emphasis supplied) In furtherance to the above discussion, it is relevant to mention here that while drawing a distinction between Section 302 and Section 304 I.P.C., the Apex Court in State of A.P. Vs. Rayavararapu Punnayya and Another reported in 1976 (4) SCC 382, has held in para - 12 and 21 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."
(emphasis supplied) In Budhi Singh vs. State of Himachal Pradesh, reported in 2012 (13) SCC 663, the Apex Court has held in paras 18 and 19 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....."
(emphasis supplied) In Kikar Singh vs. State of Rajasthan reported in 1993 (4) SCC 238, the Apex Court has held in paras 8 and 9 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...."
Regard being had to the above law laid down by the Apex Court and also having gone through the facts and circumstances of the instant case, it is evident from the materials on record that there was hostility between accused and the deceased and criminal litigation had taken place between deceased and the accused. It also emerges from the material evidence on record that the attack on the deceased and his side by the accused persons was not premeditated and preplanned and it happened at the spur of the moment in sudden altercation between deceased and the accused and there was no intention of the accused persons to kill the deceased as they have not used any dangerous weapons in the assault but they have used only lathi-danda, which they normally carry while going out in the villages. Whether the injury inflicted by the accused persons was sufficient in the ordinary course of nature to cause death or not, must be determined on the basis of the facts and circumstances of the case. In the instant case, the injuries caused were the result of blows inflicted with lathi-danda and it cannot be presumed that the accused had intended to cause the inflicted injuries. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner or unusual. It is clear from the material on record that the incident had taken place all of sudden and we are of the opinion that the appellant-accused had not taken any undue advantage or acted in a cruel or unusual manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this Exception provided he has not acted cruelly.
Thus, in entirety, considering the factual scenario of the case in hand, the evidence on record and in the background of the legal principles laid down by the Apex Court, the inevitable conclusion is that the attack on the deceased was not preplanned by the appellants-accused and it was not a cruel act in an unusual manner and the accused did not take undue advantage of the deceased. The incident had taken place in the heat of passion and all the requirements under Section 300 Exception 4 of the IPC have been satisfied. Therefore, the benefit of Exception 4 under Section 300 IPC is attracted to the fact situations and the appellant-accused are entitled to this benefit.
Considering the factual background and legal position, we are of the view that the appellants are liable to be convicted under Section 304 Part II of I.P.C. instead of Section 302 of I.P.C. However, their conviction under Sections 323 and 325 IPC is upheld.
So far as the sentence part is concerned, it was pointed out that accused appellants are in jail since last about eight years, considering all aspects of the matter, it appears that ends of justice would be served if they are sentenced to the imprisonment of ten years under Section 304 Part-II of I.P.C. with fine of Rs. 500, one year R.I. with a fine of Rs. 500/- under Section 325 I.P.C. and three months R.I. under Section 323 I.P.C. All the sentences shall run concurrently. We order accordingly. In case of non payment of fine, the accused persons shall undergon six months rigorous imprisonment in addition of the maximum period of sentence of 10 years.
The appellants are in jail. They be set free after the period of conviction is over, if not required in any other case.
The appeal is accordingly disposed of in the above terms.
Order Date : 10.07.2020.
Faridul.