Allahabad High Court
Jagdish And Others vs State Of U.P. on 25 September, 2019
Bench: Pritinker Diwaker, Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. 48 Criminal Appeal No. 56 of 1989 1. Jagdish 2. Dharampal ---- Appellants Vs. State Of U.P. ---- Respondent For Appellants : Shri N.I. Jafri, Sri Mohd. Asif For Respondent/State : Shri Amit Sinha, A.G.A. Hon'ble Pritinker Diwaker, J.
Hon'ble Raj Beer Singh, J.
Per: Pritinker Diwaker, J (25.09.2019)
1. This appeal arises out of the impugned judgement and order dated 09.01.1989 passed by IInd Additional Sessions Judge, Bulandshahr in Sessions Trial No. 781 of 1987 (State Vs. Jagdish and Others), convicting the accused-appellant no. 1 Jagdish under Section 302 of IPC and sentencing him to undergo imprisonment for life.
2. In the present case, name of the deceased is Jaipal Singh. The appellant Jagdish and deceased Jaipal Singh were having adjacent agricultural fields and there was some dispute between them regarding the bund/boundary of the same. It is further not disputed that in the village in question, there were number of blue bulls and quite often they used to damage the standing crops of the agriculturists. On 20.08.1987 at about 07.00 am, when the complainant party including Jaipal Singh were working in their agricultural field, accused-appellant Jagdish and other accused persons namely Dharampal Giri, Murti Giri, Mantoori Giri, Vinod Giri and Govind Giri reached there. There was some hot talks between them and accused-appellant Jagdish levelled allegations against the complainant-party that they have removed the fencing of the field as a result of which blue bulls have damaged his field. Both the parties abused each other and it was objected by the deceased Jaipal Singh and it is said that during this, accused-appellant Jagdish gave a blow of spear near the neck of the deceased. The other accused persons also assaulted the complainant party by a club. Number of villagers reached there and then it was noticed that after sustaining injury, Jaipal Singh had expired. On 20.08.1987 itself, at 10.35 am, on the basis of written report Ex.Ka.3, lodged by Kanchhid Singh (nephew of the deceased, not examined), FIR, Ex.Ka.4 was registered against the accused-persons under Sections 147, 148, 302, 307 of I.P.C. Injured Gopichand (PW-3) was medically examined vide Ex.Ka.2 on 20.08.1987 by Dr. Jagpal Singh (PW-5) and the following two injuries were found on his body:
"(i) stab wound elliptical 2 x .3 cm x 1.5 cm deep on face right side with the parallel of jaw of mandible 4 cm right of centre of chin. Margins of the wound sharp.
(ii) stab wound with sharp margins over right side of neck 4 cm above from nose. Size .5 x .3 cm x 1.5 cm deep elliptical. Traumatic swelling over neck right side 10 x 8 cm."
3. Inquest on the dead body of the deceased was conducted vide Ex.Ka.6 on 20.08.1987 and the body was sent for postmortem, which was conducted by Dr. R.K. Lal vide Ex.Ka.1 on 21.08.1987.
4. Autopsy Surgeon has found following single injury on the body of the deceased:
"1. Punctured wound (incised) on neck Rt. side 1 cm x ½ cm direction towards left and back 1 cm above right clavicle medial end, depth 3 cm transverse"
5. The cause of death of the deceased was due to shock and haemorrhage as a result of antemortem injury.
6. While framing charge, the trial Judge has framed charge against the accused-appellant Jagdish under Sections 148, 302, 307/149, 323/149 of I.P.C., against accused Dharampal, charge was framed under Section 148, 302/149, 307/149, whereas against rest of the accused persons, charges were framed under Sections 147, 302/149, 307/149, 323/149 of I.P.C.
7. So as to hold the accused-persons guilty, prosecution has examined seven witnesses. Statements of the accused-persons were also recorded under Section 313 Cr.P.C. in which, they pleaded their innocence and false implication.
8. By the impugned judgment, the trial Judge has convicted accused-appellant Jagdish as mentioned in paragraph no. 1 of this judgment, whereas accused Dharampal was convicted under Section 307 of I.P.C. The other accused-persons have been acquitted by the trial judge. During the pendency of present appeal, accused Dharampal has expired and, therefore, appeal in his respect is dismissed as having become abated. The present appeal confines only in respect of accused-appellant Jagdish.
9. Learned counsel for the appellant submits:
(i) that FIR is ante timed.
(ii) that FIR has not been proved by the prosecution and the Investigating Officer has not been examined.
(iii) that there are material contradictions in the statements of Sohan Singh (PW-1), Dayachand (PW-2) and Gopichand (PW-3).
(iv) that first informant Kanchhid Singh has not been examined by the prosecution to prove the FIR.
(v) that even if the entire prosecution case is taken as it is, under no circumstances, the appellant can be convicted for committing the murder of the deceased as his act would not fall within the definition of murder. It has been argued that at best, the appellant is liable to be convicted under Section 304 Part I or 304 Part II of IPC.
10. Supporting the impugned judgment, it has been argued by the State counsel:
(i) that even if Investigating Officer has not been examined by the prosecution, no prejudice has been caused to the defence. He submits that the FIR has been proved by adducing secondary evidence. He further submits that scribe of the FIR Momraj (PW-6) has duly proved the FIR.
(ii) that non-examination of first informant Kanchhid Singh has also not caused any prejudice to the defence as the FIR has been proved by Momraj (PW-6).
(iii) that there are as many as three eye witnesses including injured Gopichand and all the three eye witnesses have duly supported the prosecution case.
(iv) that the trial court was justified in convicting the appellant under Section 302 of IPC.
11. We have heard counsel for the parties and perused the record.
12. Sohan Singh (PW-1) is a father of first informant Kanchhid Singh. He is also the uncle of Gopichand (PW-3), injured eye witness. He states that first informant Kanchhid Singh is missing since February-March and his whereabouts is not known. The field of accused-appellant Jagdish and other accused persons were adjacent and on the date of incident at about 6:00 am when he was working in his field along with deceased Jaipal Singh, Gopichand (PW-3) and other persons, the accused persons reached there and started abusing them. He states that they were making allegation against them that on account of removing/damaging the fencing of the field, blue bulls have damaged the field of accused appellant Jagdish. Both the parties started abusing each other and then accused Jagdish, who was carrying spear with him caused injury to Jaipal Singh, whereas the other accused persons, who were having clubs, have also caused injury to Gopichand and others. He states that after sustaining injury, Jaipal Singh died at the place of incident itself. In the lengthy cross-examination, this witness remained firm and has reiterated as to the manner in which the incident occurred.
13. Dayachand (PW-2) is another eye witness to the incident. His statement is almost identical to that of Sohan Singh (PW-1). He too has categorically stated as to the manner in which the incident occurred and appellant Jagdish caused spear injury to the deceased. He has also admitted the fact that blue bulls used to damage the field of agriculturists and the accused appellant made allegation against the complainant party that his field has been damaged by the blue bulls on account of removing of fencing by the complainant party.
14. Gopichand (PW-3) is an injured eye witness to the incident. His statement is somehow similar to Sohan Singh (PW-1) and Dayachand (PW-2) and he has also supported the prosecution case. In the cross-examination, this witness also remained firm and nothing could be elicited from him.
15. Dr. R.K. Lal (PW-4) conducted post-mortem on the body of the deceased and found injury near the neck of the deceased as mentioned in paragraph no. 4 of this judgement.
16. Dr. Jagpal Singh (PW-5) medically examined injured Gopichand.
17. Momraj (PW-6), scribe of the FIR, has stated that the report was prepared as was dictated to him by Kanchhid Singh. He states that written report Ex.Ka.3 was prepared by him. Bhan Singh (PW-7), is a police constable, investigated the matter and also proved the signature of Investigating Officer. He has also proved the GD entry and the FIR.
18. Close scrutiny of evidence makes it clear that the Investigating Officer has not been examined and likewise the informant Kanchhid Singh has also not been produced in the court as a witness. The evidence reflects that Kanchhid Singh was missing during the time of evidence and, therefore, he could not come in the court. Non-examination of these two persons would not damage the case of prosecution in any manner. It is a settled proposition of law that the basic purpose of lodging FIR is to set the criminal law into motion and the FIR is not substantive piece of evidence. It is not disputed that the incident occurred at 07:00 am on 20.08.1987 and at 10:30 am, FIR was lodged. The distance between police station and place of occurrence is about 9 kms., thus, for all practical purposes, it can be said that a very prompt FIR was lodged. The FIR has been duly proved by its scribe Momraj (PW-6), who has stated that whatever was dictated to him by the informant Kanchhid Singh, was mentioned in the written report, which was given to the police. The same has been further proved by Bhan Singh (PW-7), who has authenticated the G.D. entry about the registration of the FIR and the chik report and other documents prepared by the Investigating Officer. He has also proved hand writing of the Investigating Officer. Thus, non-examination of Investigating Officer or informant will not give any benefit to the defence as no prejudice has been caused to the defence. Three eye witnesses to the incident i.e. Sohan Singh (PW-1), Dayachand (PW-2) and the injured eye witness Gopichand (PW-3) have duly supported the prosecution case and have categorically stated as to the manner in which the deceased was killed by the accused persons. Their statements found due support from the post-mortem report of the deceased and considering all these aspects of the case, complicity of the appellant in commission of offence has been duly proved by the prosecution.
19. The next question, which arises for consideration of this Court, is as to whether the act of the appellant would fall within the definition of 'murder' or it would be 'culpable homicide not amounting to murder'.
20. 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."
21. 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".
22. 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."
23. 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....."
24. 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...."
25. 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.
26. If we apply the above principle of law in the present case, what emerges from the evidence, is that there was no premeditation on the part of the accused persons to commit the offence and it started when the standing crop of the accused appellant was damaged by the blue bulls and he made allegation against the deceased and the complainant party that on account of removing fencing by them, his crop is being damaged. The evidence also reflects that both the parties had altercation with each other. They abused each other and thus, it can safely be held that it was a sudden fight and in the heat of passion upon a sudden quarrel single injury was caused to the deceased resulting his death. Appellant has not taken any undue advantage or acted in a cruel or unusual manner while committing the offence. Case of the appellant would, thus, fall under Exception 4 of Section 300 of IPC and it can be safely held that the appellant is liable to be convicted for committing 'culpable homicide not amounting to murder'.
27. Taking the cumulative effect of the evidence and the nature of injury, we are of the view that the appellant is liable to be convicted under Section 304 Part II of IPC.
28. Now the another important question is as to what would be the appropriate sentence to be imposed upon the appellant.
29. Learned counsel for the appellant submits that appellant is willing to pay suitable compensation to the deceased family and, therefore, minimum jail sentence be imposed upon him.
30. Considering the cumulative effect of the evidence and the fact that the incident occurred about 32 years back and at present the appellant is aged about 65 years, we are of the view that jail sentence of 5 years would meet the ends of justice. Order accordingly.
31. Further considering the provisions of Section 357 of Cr.PC and the judgment of the Supreme Court in Ankush Shivaji Gaikwad v State of Maharashtra; (2013) 6 SCC 770, it is directed that the appellant shall also be liable to pay compensation of Rs. 2,00,000/- (two lakhs) to the wife of the deceased. He is directed to deposit the said amount within two years before the trial court. In the eventuality of depositing the said amount by the appellant before the trial Court, it would be the duty of the trial Court to disburse the said amount in favour of wife of the deceased. In case, the appellant fails to deposit the said amount, he shall further undergo Jail sentence of one year and the court below shall proceed against him in the light of judgment of the Apex Court in Kumaran Vs. State of Kerala and another; (2017) 7 SCC 471.
32. The appellant is reported to be on bail. He be taken into custody forthwith to serve the remaining sentence.
33. The appeal is partly allowed.
34. A copy of this order be transmitted to the court concerned for necessary compliance.
Dated: 25.09.2019
SK/MK
(Raj Beer Singh,J) (Pritinker Diwaker,J)