Allahabad High Court
Ram Babu vs State Of U.P. on 7 January, 2019
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No.54 CRIMINAL APPEAL No.7556 of 2008 Ram Babu ----- Appellant Vs State of Uttar Pradesh ----- Respondent. ___________________________________________________ For Appellant : Sri Deepak Kapoor, Advocate For Respondent/State : Sri J K Upadhya, AGA ___________________________________________________ Hon'ble Pritinker Diwaker, J.
Hon'ble Raj Beer Singh, J.
Per: Pritinker Diwaker, J.
1. This appeal arises out of the impugned judgment and order dated 07.10.2008 passed by the Additional Sessions Judge/Special Judge, E.C. Act, Jhansi in Sessions Trial No.323 of 2004 (State vs. Ram Babu), 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 Govind, younger brother of the accused appellant Ram Babu. It is alleged that both the brothers were having a dispute over a Hand Pump. On 8.10.2004 at about 8:00 pm, the appellant entered the house of his brother Govind, abused him and gave two knife blows near his chest and stomach. Injured was taken to hospital where he was declared brought dead. On 8.10.2004 at 10:05 pm, FIR (Ex. Ka.14) was lodged by (PW-1) Jai Prakash, another brother of the appellant and the deceased. Based on this FIR, offence under Sections 302 and 323 of IPC, was registered against the appellant. Inquest (Ex. Ka.8) was conducted on 9.10.2004 and the body was sent for postmortem which was conducted on the same day by (PW-5) Dr Ashok Upadhyay, vide Ex. Ka.2 and as per Autopsy Surgeon, the following two injuries were found on the body of the deceased:
"(1) I.W. 2 x 1 1/2 cms x chest cavity deep on Rt. Side Chest.
11 cms below Rt. Collar bone and 8 cms medial to Nipple III and IVth Rib. Fractured on Rt. side.
(2) I.W. 5 x 2 cm x muscle deep on Lt. lateral aspect of chest 7 cms below Lt armpit."
As per Autopsy Surgeon, the cause of death of the deceased was shock and haemorrhage due to anti mortem injuries.
3. On the disclosure statement of the appellant, vide Ex. Ka.5, his clothes and one knife were seized and as per FSL report, blood was found on the clothes of the appellant and the knife seized from him, and the blood was of 'B' group. Blood group of the deceased was also found to be of 'B' group.
4. While framing charge, the trial Judge has framed the charge against the appellant under Section 302 of IPC for committing murder of the deceased and under Section 323 of IPC for causing injury to (PW-1) Jai Prakash. So as to hold the appellant guilty, the prosecution has examined eight witnesses, whereas one Court Witness (CW) Smt. Kusuma Devi was also examined. Statement of the appellant was also recorded under Section 313 of Cr.P.C. where he pleaded his innocence and false implication.
5. By the impugned judgment and order, the trial Judge has convicted the appellant under Section 302 of IPC and sentenced him to undergo rigorous imprisonment for life. However, the trial Judge has acquitted the appellant under Section 323 of IPC.
6. Counsel for the appellant submits:
(i) that the eye witnesses to the incident, (PW-1) Jai Prakash, (PW-2) Bhaiya Deen and (PW-3) Narain Das have not supported the prosecution case and have been declared hostile and the only piece of evidence against the appellant is the statement of (CW-1) Smt. Kusuma Devi, but her case diary statement was never recorded by the Police and her statement is nothing but an after thought just to ensure the arrest and conviction of the appellant, so that she can enjoy the property of all the three brothers.
(ii) that even if the entire prosecution case is taken as it is, case of the appellant would, at best, fall under Section 304 Part-I or II of IPC and not under Section 302 of IPC.
(iii) that the appellant has already remained in Jail for more than ten years and thereby, has served sufficient sentence for either under Section 304 Part I or Part II of IPC.
7. On the other hand, supporting the judgment and order of the trial Court, it has been argued by the learned State Counsel:
(i) that the conviction of the appellant is in accordance with law and there is no infirmity in the same.
(ii) that considering the statement of (CW-1) Smt. Kusuma Devi, role of the appellant has been duly proved by the prosecution and the trial Court, after considering the application filed by the prosecution under Section 311 of Cr PC, has allowed the same and then, statement of (CW-1) was recorded.
(iii) that allowing (CW-1) Smt. Kusuma Devi to be examined in Court was subjected to a challenge before the High Court, but even the High Court had affirmed the order of the trial Court and thus, no question can be raised on the statement of (CW-1).
(iv) that FSL report is sufficient to uphold the conviction of the appellant as the blood found on the clothes of the appellant and that of knife seized at his instance was of 'B' group and the blood group of the deceased was also 'B'.
8. We have heard counsel for the parties and perused the record.
9. (PW-1) Jai Prakash, who is the informant and an eye witness, has not supported the prosecution case and has been declared hostile.
10. (PW-2) Bhaiya Deen, who is also an eye witness, has also not supported the prosecution case and has been declared hostile.
11. (PW-3) Narain Das, who is also an eye witness, has not supported the prosecution case and has been declared hostile. He, however, admits that the appellant and deceased were quarreling over the dispute of a Hand Pump.
12. (PW-4) Farooq Ahmad is a Scriber of the FIR.
13. (PW-5) Dr Ashok Upadhyay has conducted the postmortem on the dead body of the deceased and noted the following injuries:
"(1) I.W. 2 x 1 1/2 cms x chest cavity deep on Rt. Side Chest.
11 cms below Rt. Collar bone and 8 cms medial to Nipple III and IVth Rib. Fractured on Rt. side.
(2) I.W. 5 x 2 cm x muscle deep on Lt. lateral aspect of chest 7 cms below Lt armpit."
14. (PW-6) Surendra Kumar Kulshrestha, is Investigating Officer and has duly supported the prosecution case.
15. (PW-7) Arun Prakash, Sub-Inspector, is second Investigating Officerw and has filed Challan.
16. (PW-8) Rama Shanker, Constable has helped during investigation.
17. (CW-1) Smt. Kusuma Devi, is wife of the deceased. She has stated that on the date of incident, when she was cooking food along with her husband and children, appellant entered her house, started abusing her husband and then caused two knife injuries to the deceased. She has stated that her husband was killed by the appellant because of Hand Pump dispute as her children were about to fetch water from the said Hand Pump. In the cross examination, she remained firm.
18. On the disclosure statement of the appellant, his clothes and knife were seized, vide Ex. Ka.5 and as per FSL report, blood found on the clothes of the appellant and the knife, which was seized from him, was of 'B' group. The blood group of the deceased was also of 'B' group. This report has not been disputed by the defence.
19. Considering the statement of (CW-1) Smt. Kusuma Devi and that of FSL report, complicity of the appellant in commission of offence has been duly proved by prosecution and we have no hesitation to hold that it is the accused appellant who, on the date of incident, caused injuries to the deceased, as a result of which, he died.
20. The 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'.
21. 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."
22. 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".
23. The Apex Court in State of A.P. vs. Rayavarapu Punnayya and Another1 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."
24. In Budhi Singh vs. State of Himachal Pradesh2, 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....."
25. In Kikar Singh vs. State of Rajasthan3 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...."
26. All the above three cases were considered by the Apex Court in Surain Singh v The State of Punjab4 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.
27. If we apply the above principle of law in the present case, what emerges from the evidence, is that the incident occurred on a trivial issue, where on account of a dispute of a Hand Pump in respect of fetching of water, it appears that the appellant got annoyed, entered the house of the deceased and caused two injuries to him, resulting his unfortunate death. 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'.
28. The next question is whether the appellant is liable to be convicted under Section 304 Part I or Part II of IPC. Considering the nature of injuries caused by him to the deceased, we are of the view that the appellant is liable to be convicted under Section 304 Part I of IPC and not under Section 304 Part II of IPC.
29. So far as the sentence part is concerned, as the appellant is in Jail since last more than ten years, ends of justice would be served if his Jail sentence is reduced to the period already undergone by him. Order accordingly.
30. Considering the provisions of Section 357 of Cr PC and the judgment of the Supreme Court in Ankush Shivaji Gaikwad v State of Maharashtra5, it is directed that the appellant shall also be liable to pay compensation of Rs.20,000/- to the widow of the deceased, i.e. (CW-1) Smt. Kusuma Devi. He is directed to deposit the said amount within three months, after being released from Jail. 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 (CW-1) Smt. Kusuma Devi. In case, the appellant fails to deposit the said amount, he shall further undergo Jail sentence of two years.
31. The appellant is in Jail. He be set free forthwith to comply further direction of the Court, if not required in any other case.
32. The appeal succeeds and is partly allowed.
Dated:07.01.2019 RKK/-
(Pritinker Diwaker, J) (Raj Beer Singh, J)