Allahabad High Court
Mhanta Dhar vs State on 27 August, 2019
Equivalent citations: AIRONLINE 2019 ALL 1593, 2019 (6) ALJ 691 2020 (110) ACC (SOC) 71 (ALL), 2020 (110) ACC (SOC) 71 (ALL)
Bench: Bachchoo Lal, Pradeep Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reserved
Case :- CRIMINAL APPEAL No. - 89 of 1994
Appellant :- Mhanta Dhar
Respondent :- State
Counsel for Appellant :- Shiv Shankar Pandey,Kamal Krishna,Pradeep Kumar Rai,Vinay Saran
Counsel for Respondent :- AGA
Hon'ble Bachchoo Lal, J.
Hon'ble Pradeep Kumar Srivastava,J.
(Delivered by Hon'ble Pradeep Kumar Srivastava, J.)
1. This criminal appeal has been preferred against the judgment and order dated 22.11.1993 passed by Ist Additional Sessions Judge, Ballia in Sessions Trial No. 157 of 1992, State Vs. Mahanta Bhar, arising out of crime no. 252 of 1992, under section 302 IPC, PS Sikandarpur, District Ballia convicting and awarding the appellant life imprisonment under Section 302 IPC.
2. Brief facts of the case are that the informant Bijuli Yadav lodged an FIR in respect of incident dated 23.4.1992 stating that his elder brother Interdeo Yadav has a daughter namely Chinta who had illicit relationship with accused Mahantha Bhar of the same village for the last some time. The informant and his family asked Chinta and the accused several times to stop this relationship and scolded both of them. This fact was known to all the villagers. On the date of incident informant and other family members were cutting sugarcane crop in the field and about 12.00 AM in the noon while they were returning home with Chandradeo Yadav, nephew Ramawadh, Hari Mohan Yadav and Jagdhari and they reached at 'Soti' locating towards north of their village, they saw Chinta and accused Mahantha Bhar in the sugarcane field of Punchdeo Mishra talking to each other. At this sight all of them reached inside the field and deceased Chandradeo caught hold of accused Mahantha Bhar who took out a knife and stabbed him with intention to kill on the chest and stomach of Chandradeo two or three times. Consequently, Chandradeo fell down on the spot. Attempt was made to apprehend and arrest the accused Mahantha Bhar, but he ran away towards north. Accused was chased for a distance but could not be apprehended and escaped. Soon after the incident, Chandradeo was being taken to Sikandarpur hospital in an injured condition but on the way he died.
3. The First Information Report was got scribed by one Ashok Rai, and the same was delivered by the informant and eye witness Bijuli Yadav at police station Bansdih on 23.4.1992 at 2 PM, on the basis of which Case Crime No. 252 of 1992 under Section 302 IPC was registered. The dead body was taken into possession by police and inquest report was prepared. Postmortem was conducted on the next day. The Investigating Officer investigated into the offence, prepared site map and recorded the statement of witnesses and submitted charge sheet against the accused for the offence under Section 302 IPC.
4. The learned Sessions Judge framed charge against the accused under Section 302 IPC, who denied the charge and claimed trial.
5. The prosecution examined 8 witnesses in support. PW-1 Chinta (eye witness), PW-2 Bijuli Yadav (informant and eye witness), PW-3 Jagdhari Yadav (eye witness) and PW-4 Hari Mohan Yadav (eye witness) have stated about the incident. PW-5 Dr. G. Kumaria has proved the postmortem report. PW-6 Ashok Rai is scriber of written report. PW-7 Constable Mansukh Yadav is the witness of inquest inquest report. PW-8 SI Suresh Chandra Shukla is IO of this case and who has proved site map and charge sheet.
6. The witnesses have proved the prosecution documents which are written report Ext. Ka-1 postmortem report, Ext. Ka-2 inquest report, Ext. Ka-3 sample seal, Ext Ka-4 sample seal, photo nash Ext. Ka-5, Ext. Ka-7 police form no. 13, and Ext. Ka-6 letter to SP for postmortem, report by police to District Hospital Ext. Ka-8, letter for postmortem examination Ext. Ka-9 and Ext. Ka-10, site plan Ext. Ka-11, memo of blood stained and plain earth Ext. Ka-12, charge sheet Ext. Ka-13, Chick FIR Ext. Ka-14, GD Ext. Ka-15 and report of Serologist Ext. Ka-16.
7. The statement of accused was recorded under Section 313, Criminal Procedure Code who has refused illicit relationship with Chinta and has denied that he was ever scolded by his family members for the same. He has further stated that he was not on spot nor he inflicted any injury to the deceased by knife and caused his death. He has also stated he has been falsely implicated as he belongs to labour class and did not give his service to complainant side. He has not adduced any evidence in defence.
8. After hearing learned counsel for the parties, the learned trial court found the accused-appellant guilty for the offence under Section 302 IPC and passed the impugned judgment convicting and sentencing him for life imprisonment.
9. Aggrieved by the said order, the accused-appellant has filed the present criminal appeal and has challenged the impugned judgment on the ground that the same is against the evidence on record and is not sustainable under law. The learned trial court did not take into consideration the circumstances which falsify the prosecution story. The appellant was a boy aged about 17 years and was alone, therefore, under the circumstance, the appellant could not inflict the injury to the deceased. It was not possible for the accused-appellant to take Chinta to sugarcane field forcibly in presence of complainant and his family members who were present in nearby field. He was falsely implicated in this case. The sentence awarded is too severe and not sustainable. The same is liable to be set aside and the accused-appellant is entitled for acquittal.
10. Heard Sri Vinay Saran, Senior Advocate, appointed as Amicus Curiae, assisted by Sri Pradeep Kumar, learned counsel for the appellant, Sri L.D. Rajbhar, learned A.G.A. for the State and perused the record.
11. PW-2 Bijuli Yadav (informant and eye witness) has stated on oath about illicit relationship between accused and PW-1 Chinta for which both were scolded by him and family members. He has further stated that on the date and time of incident, he along with Chandradeo Yadav, Hari Mohan Yadav and Jagdhari were present on the spot when they saw both accused and Chinta talking to each other in sugarcane field. When they reached there, the accused stabbed and caused injuries by his knife on the chest and abdomen of the deceased. While Chandradeo was being taken to the hospital, he died on the way. He and other witnesses tried to apprehend the accused after he caused injury to Chandraeo, but he succeeded in running away from the place. He got the written report scribed by one Ashok Rai and the same was delivered at the police station on the same day.
13. PW-1 Chinta, has admitted the fact of relationship with the accused and has stated that because of this relationship, the family members were having bitter feelings for her and the accused. She has also admitted that on the date and time of incident, she was with the accused in the sugarcane field and Chandradeo Yadav, Hari Mohan Yadav, Jagdhari and Bijuli Yadav came there. Chandradeo Yadav caught hold of the accused whereupon he gave him two-three blows by his knife on his chest and stomach. He sustained injuries and fell down and the accused ran away from the place.
14. PW-3 Jagdhari Yadav (independent witness) who was present on the spot, has also supported the prosecution version that at the time of incident, he was there and he saw the accused and Chinta in the sugarcane field and when they reached there, accused caused injury to Chandradeo Yadav on his chest and stomach by his knife because of which he died while taking to the hospital.
15. PW-4 Hari Mohan Yadav is another eye witness who has also supported the prosecution version and has said that he was present on the spot and they found Chinta and accused in the sugarcane field alone and when Chadradeo Yadav caught hold of the accused, the accused inflicted injury by his knife and because of the injuries sustained, Chandradeo Yadav died.
16. P.W. 5- Dr. G. Kumaria, who had conducted postmortem on 24.4.1992 at about 3 PM, found followin ante mortem injuries on the dead body of the deceased:
(I) Incised penetrating wound not opened 1.5 c.m. X 1 c.m. Cavity deep on left side chest, doliquily placed 14 c.m. From mid line chest and 16 c.m. From left clavical bone. Edge of wound clean cut. Clotted blood present around wound. Outer angle of wound is sharp and inner angle towards mid line is slightly curved.
(II) Incised penetrating wound 1.5 c.m. X 1 c.m. Abdominal cavity deep, on left side upper abdomen, obliquely placed, 8 c.m. From mid line abdomen and 29 c.m. From left clavicle edge of wound situated clean cut. Clotted blood present around wound. Outer angle of wound is sharp and inner angle of mid line is slightly curved. The cause of death was due to shock and hemorrhage.
Internal Examination Below injury no 1 on chest, internal mussel between 6 and 7 ribs incised and 7th rib on left side incised below injury no 1. Left pleura was incised below injury no 1 and left lung was punctured below injury no 1, in the left side of chest, blood clots found with 750 ml fluid. Walls in the left side of abdomen was incised below injury no 2 and spleen was punctured. The cause of death was shock and hemorrhage due to ante mortem injuries. According to doctor, injuries might have been caused by knife and the injuries were sufficient to cause death in ordinary course. The death was possible on 23.4.1992 at about 1 PM. Nothing has come in the cross-examination in favour of defence.
17. PW-6 Ashok Rai, who is inscriber of written report has proved that he inscribed the written report about the incident.
18. PW-7 Constable Mansukh Yadav has proved the chick FIR and GD Report.
19. PW-8 SI Suresh Chnadra Shukla narrated the process of investigation and has proved the site map and the charge sheet.
20. The learned counsel Sri Vinay Saran, Senior Advocate, appointed as Amicus Curiae has submitted that even if the fact witnesses are totally believed, the case does not come in the purview of the offence of murder and the maximum offence for which the appellant could be convicted was for simple culpable homicide or culpable homicide not amounting to murder. Learned AGA has submitted that accused-appellant was having knife with him and that shows his intention to cause death and by knife he stabbed on the chest and abdomen of the deceased which are vital part of the body and consequently while he was taken to the hospital, he died. He has further submitted that death of deceased has occurred because of injuries caused by the accused-appellant.
21. In the backdrop of rival arguments, the evidence leveled on record needs to be analyzed in order to determine whether the offence was committed by the accused and whether the offence which was committed by the accused-appellant was culpable homicide or murder.
22. From the perusal of record, it is clear that the incident took place on 23.4.1992 at 12 PM and on the same day at 2 PM, FIR was lodged by informant by giving a written report in police station by Bijuli who is real brother of deceased and an eye-witness. The police station is 4 km away from place of occurrence. Considering the fact that the deceased was injured and died on the way while being taken to hospital and the FIR was lodged in two hours on the same day from the time of incident, the learned Sessions Judge correctly concluded that there was no delay in lodging FIR.
23. The dead body was taken into possession by police and inquest report was duly prepared after appointing five witnesses to the inquest proceeding. Thereafter, the dead body was duly sealed and, along with necessary papers, was taken to District Hospital for postmortem where postmortem was conducted by the doctor who has proved the report as prosecution witness. The postmortem report shows that the deceased died due to two incised wound, one on chest and other on abdomen of the deceased and according to doctor the death of deceased must have occurred on 23.4.1992 at about 1 PM because of injuries caused by knife which were sufficient to cause death in ordinary course.
24. Three prosecution witnesses have stated that the incident took place in their presence in the sugarcane field of one Panchdev Misra. IO prepared site map during investigation and the place of occurrence has been shown in that sugarcane field. All the eye witnesses have affirmed on oath that the accused-appellant caused the injuries to the deceased by knife which he was having at the time of incident. The witnesses were cross-examined, but the defence has not been able to bring out anything adverse to prosecution or favourable to the defence. Clearly, the prosecution succeeded in bringing home the charge leveled against the accused and it has been fully established that the accused on the date, time and place caused injuries to the deceased by knife and consequently he died.
25. Submission of learned counsel for the accused-appellant is that there was no intention of accused-appellant to cause death of the deceased and from the fact and evidence available on record, it appears that he was caught with Chinta in the sugarcane field and finding himself suddenly surrounded by the witnesses and also because the deceased caught hold of him, the accused-appellant having knife stabbed the deceased and because of that injuries, he died. He has also submitted that this case does not come within the purview of murder and the fact shows that it comes within the purview of culpable homicide and culpable homicide not amount to murder.
26. Section 299 of the Indian Penal Code defines culpable homicide as follows:
"Culpable homicide.--Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
Explanation 1.--A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.
Explanation 2.--Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented.
Explanation 3.--The causing of the death of child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born."
27. Section 300 of the Indian Penal Code defines murder and culpable homicide not amounting to murder as follows:
"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--
2ndly. - 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 3rdly. - 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--
4thly. - 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.
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.
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."
28. Several times the courts in India has outlined the distinction between the two offences and the thrust of the distinction has been based on the the degree of probability of the consequence of the criminal act. Where death is the most probable result and is caused with intention to cause death, the offence is murder, and where it is probable result, it is culpable homicide. The murder may become culpable homicide not amounting to murder if circumstances exist to bring the murder within any of the five exceptions to section 300 IPC. Academically, the distinction appears to be easy, but, when comes to factual matrix and is required to be determined on the basis of objective assessment of fact and evidence, the task is hard and a lot depends upon the sixth sense of the presiding judge who has been asked to give a decision.
29. In State of AP vs Rayavarapu Punnayya, AIR 1977 SC 45, the Supreme Court made following observation:
" .... 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, Penal Code is reached. This is the stage at which the court should determine whether the facts proved by the prosecution brings 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, Penal Code."
30. The above observation has been referred in subsequent decisions and the same holds the field as a guideline in order to appreciate and understand the distinguishing features of the offence of 'murder,' 'culpable homicide' and 'culpable homicide not amounting to murder.' In every murder there is culpable homicide and on existence of certain facts as mentioned in five exceptions to section 300 IPC, a murder may become culpable homicide not amounting to murder, and the difference between the two is the degree of probability and certainty. Where death is the likely result, it is culpable homicide and where it is most obvious and certain result, the offence is murder and if such murder is covered by any of the exceptions to section 300, the same is punishable under section 304 and not under section 302 of the Indian Penal Code.
31. In Pappu vs State of MP, (2006) 7 SCC 391, the Supreme Court almost exhaustively dealt with the parameters of Exception 4 to section 300 and held that the same can be invoked if death is caused 1. without premeditation; 2. in a sudden fight; 3. without the offender having taken undue advantage or acting in a cruel or unusual manner; and 4. the fight must have been with the person killed. It was remarked, "It cannot be laid down as a rule of universal application that whenever one blow is given, section 302 IPC is ruled out. It would depend upon the weapon used, the size of it in some cases, force with which the blow was given, part of the body on which it was given and several such relevant factors."
31. In Jagriti Devi vs State of HP, (2009) 14 SCC 771, it was held that the expression 'intention' and 'knowledge' postulate the existence of a positive mental attitude. It was further held that when and if there is intent and knowledge, then the same would be a case under first part of section 304 and if it is only a case of knowledge and not intention to cause death by bodily injury, then the same would be a case of second part of section 304.
32. In Chenda alias Chanda Ram vs State of Chhatisgarh, (2013) 12 SCC 10, pointing out that 'culpability depends on the knowledge, motive and the manner of the act of the accused,' the Supreme Court referring to Rayavarapu Punnayya (supra), converted the conviction of accused from section 302 IPC to section 304 IPC taking into consideration the following circumstances:
"There is no evidence or previous enmity. The incident has taken place on the spur of the moment. There is no evidence regarding the intention behind the fatal consequence of the blow. There was only one blow. The accused is young. There was no premeditation. The evolution of the incident would show that it was in the midst of a sudden fight. There is no criminal background or adverse history of the appellant. It was a trivial quarrel among the villagers on account of a simple issue. The fatal blow was in the course of a scuffle between two persons. There has been no other act of cruelty or unusual conduct on the part of the appellant. The deceased was involved in the scuffle in the presence of his wife and he had been actually been called upon by her to the spot.... ."
33. In Lavghanbha Devjibhai Vasava vs State of Gujarat, (2018) 4 SCC 329, the Supreme Court summarized the parameters to be taken into consideration while deciding the question as to whether a case falls under section 302 or section 304 IPC as follows:
"(a) the circumstance in which the incident took place; (b) the nature of weapon used; (c) whether the weapon was carried or taken from spot; (d) whether the assault was aimed on vital part of body; (e) the amount of the force used; (f) whether the deceased participated in the sudden fight; (g) whether there was any previous enmity; (h) whether there was any sudden provocation; (I) whether the attack was in the heat of passion; and (whether the person inflicting injury took any undue advantage or acted in the cruel or unusual manner.)"
34. In Govind singh vs State of Chhattisgarh, AIR 2019 SC 2120 and Rambir vs State of NCT, Delhi, AIR 2019 SC 2264, where the appellant was convicted for the offence under section 302 IPC, the Supreme Court, finding that there was no premeditation on the part of the accused and the incident took place in sudden quarrel, modified the offence into that of section 304 IPC and reduced the sentence was accordingly.
35. On the basis of above discussion, to put it in simple terms, as outlined in Rayavarapu Punnayya (supra), it is clear that the Indian Penal Code recognizes three degrees of culpable homicide namely, (1) culpable homicide of the first degree, a gravest form of culpable homicide which is defined under section 300 as murder, (2) culpable homicide of the second degree, a lower or lessor form of homicide not amounting to murder as defined in section 299, punishable under the first part of section 304 and (3) culpable homicide of the third degree, a lowest type of culpable homicide, punishable under the second part of section 304.
36. It is held that the above classification is based on factors such as the degree of intention, surrounding circumstances in which death was caused, weapon used, influence of apprehension from severe beating from which the accused wanted to escape, causing injury exceeding the right of private defence, presence of premeditation and the like. A person has a right to defend himself and his own person and for that purpose he can use and cause injury as much as it is necessary. But if he exceeds his right and causes more injury than necessary and if death of such person results, the same is culpable homicide not amounting to murder.
37. Now coming to the facts of present case where the accused was having affairs and sexual relation with a daughter of complainant family for which both were scolded by family members but it did not create any impact on them. Naturally, as per evidence on record, the whole family must have bitterness for accused and have been annoyed with him, as both had no intention to withdraw from each other's company and they continued in relationship. On the date of incident both were seen and found alone in the sugarcane field by deceased and other family members.
38. The daughter of the deceased has been examined as PW-1 who has admitted in her statement before court about her relationship with the accused and that she was with the accused on the date of incident in the sugarcane field where the incident took place. She has also admitted that before they were seen by family members, both had sex and soon after that the family members reached there. She has stated that the deceased caught hold of the accused by one hand and gave beating to her by other hand. The accused was surrounded by Jagdhari, Bijuli, Dharmdeo, Indradeo, Chandradeo, Ramawadh and Harimohan, all carrying lathi (bamboo) in their hands. She has also stated that her mother, father, uncles and all family members used to prevent her from meeting and having any sort of relationship with accused, but she continued meeting with him. She has said that prior to incident, the family members did not see her in physical relationship with the accused. The deceased raised his hand to hit the accused and then the accused stabbed him by his knife.
39. PW-2 Bijuli has stated that while coming back from their field, near the sugarcane field of Panchdeo Misra, they heard voice of both Chinta and accused. Chandradeo entered in the field first and behind him they all rushed in the sugarcane field. They all rushed into the field together. They gave two to four slaps to Chinta. PW-3 Jagdhari has stated that they entered silently into the sugarcane field where both Chinta and accused were present and thereafter made noise. Both were trying to keep there wearings in order and then Chandradeo caught hold of the accused. PW-4 Harimohan has stated that they all rushed into the field and Chandradeo caught hold of accused and scolded him for spoiling their reputation.
40. Thus, from the statement of all the four witnesses, it is clear that both Chinta and accused were caught red handed in the sugarcane field if not during, immediately after they had sex with each other. Chinta was slapped and deceased Chandradeo caught hold of accused and tried to slap him. All were carrying lathi and rushed into the field together. All were family members and naturally in that situation they all must have been enough furious causing alarm in the mind of the accused that he has been caught red handed with a daughter of family and he would be given good beat by them.
41. Since the accused had sex with her love-mate soon before they were caught, the passionate impact thereof must have been present in him and before him she was being slapped and he was likely to be beaten. Both the factors if taken together must have influenced the mind of the accused to a great deal. That his love-mate was being slapped before him certainly has a provoking impact whereas the fact that he was surrounded by the family members with lathi in their hands and they were shouting and scolding must have created a natural apprehension in his mind that he has been caught red handed by family members with the daughter of the family in objectionable condition and they will not leave him easily and they will cause bodily harm in terms of injuries. Therefore, his endeavor must have been to get rid of situation anyhow. He was having a knife and therefore he caused injuries to Chandradeo who had caught hold of him and had raised his hand to hit him and he was enough close in terms of distance to accused. Thereafter, he did not stay to see the result and escaped away so quickly that despite the complainant side was 6 in numbers, they could not get him.
42. In Kirpal Singh vs State, AIR 1951 Punjab & Haryana 137, it has been observed:
"To constitute a premeditated killing, it is necessary that the accused should have reflected with a view to determine whether he would kill or not; and that he should have determined to kill as the result of that reflection; that is to say, the killing should be a premeditated killing upon consideration and not a sudden killing under the sudden excitement and under impulse of passion upon provocation given at the time or so recently before as not to allow time for reflection. Such premeditation may be established by direct or circumstantial evidence, such as previous threats, expression of ill feelings, acts of preparation to kill; such as procuring a deadly weapon or selecting a dangerous weapon in preference to one less dangerous, and by the manner in which the killing was committed. For example, repeated shots, blows or other acts of violence are sufficient evidence of premeditation. Premeditation is not proved from the mere fact of a killing by the use of a deadly weapon but must be shown by the manner of the killing and the circumstances, under which it was done or from the other facts in evidence."
43. It is pertinent to mention that it was not a case of that kind that after being beaten, the accused came prepared with knife and caused injuries. There is no evidence on record to show that the accused ever gave any threatening on earlier occasion to the complainant side to cause any harm to them. Thus, there appears to be no premeditation on the part of accused. Death has not been caused in unusual or cruel manner. There appears to be no enmity on the part of accused, whereas, for the complainant side, there appears to be every possibility to catch him red handed and to give him good lesson for the misdeed of having relationship with the daughter of the family.
43. There appears to be no criminal back ground of the accused and at the time of incident he was enough young, a boy of 17 to 18 years in age as alleged in the memo of appeal. The facts and circumstances of the case reveals that the murder was caused without premeditation and at the spur of the moment without any criminal intent to commit murder. Moreover, in the circumstances where the accused was surrounded by 6 family members of complainant side, each carrying lathi in hand, naturally angry finding the accused in the sugarcane field in objectionable condition and prepared to give lesson to accused. In such situation, a right of private defence also accrued to the accused against the possible bodily harm which was likely to be caused to him by the complainant side.
44. Section 102 IPC provides for commencement and continuance of private defence of the body 'as soon as a reasonable apprehension of danger to the body arises from an attempt or threat' and it continues 'as long as apprehension of danger to the body continues.' At the cost of repetition, it is mentioned that the accused was alone surrounded by six persons and deceased had caught hold of him and has raised his hands to hit him after slapping his love mate before him. Therefore, a reasonable apprehension of bodily harm to accused was existing. It cannot be countered by saying that no such harm was caused to him. It has been remarked by the Supreme Court in Deo Narain vs State of UP, (1973) 1 SCC 347 that 'to say that a person can only claim the right to use force after he has sustained a serious injury by an aggressive wrongful assault is a complete misunderstanding of the law embodied in section 102, IPC.'
45. On the basis of above discussion, we are of the view that on facts, the present case was covered under the Exceptions 1, 2 and 4 to section 300, IPC as the death was caused by accused under grave and sudden provocation, in excess of the right of private defence of his person without premeditation and in the heat of passion upon a sudden quarrel and without the accused taking undue advantage or acting in a cruel or unusual manner without premeditation. As such the learned trial court committed illegality in convicting the accused for the offence of murder under section 302, IPC instead of convicting him for the offence of culpable homicide not amounting to murder under Part I of section 304, IPC.
46. In view of the above, we convert the conviction from section 302, IPC to section 304, IPC part I and accordingly modify the sentence awarded to the accused-appellan Mhantat Dhar from life imprisonment to a sentence of rigorous imprisonment of 12 years and fine of Rs. 25000/- and in default, for an additional imprisonment of six months.
47. With the above modification, this criminal appeal is finally disposed of.
48. The accused-appellant Mhanta Dhar, if on bail shall surrender forthwith before the learned trial court to be sent to jail to undergo the sentence.
49. The office is directed to transmit back the lower court record to the learned trial court along with the copy of this judgment for information and necessary compliance.
Order date- 27.8.2019
RCT/-Bhanu
(Hon'ble Pradeep Kumar Srivastava, J.) (Hon'ble Bachchoo Lal, J.)