Gujarat High Court
Sursing Shukabhai Bamne vs State Of ... on 14 July, 2017
Author: Abhilasha Kumari
Bench: Abhilasha Kumari, A.J. Shastri
R/CR.A/690/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 690 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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SURSING SHUKABHAI BAMNE....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
HCLS COMMITTEE, ADVOCATE for the Appellant
MR JM BUDDHBHATTI, ADVOCATE for the Appellant
MR RONAK RAVAL, ADDITIONAL PUBLIC PROSECUTOR for the Respondent
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 14/07/2017
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ORAL JUDGMENT
(PER : HONOURABLE SMT. JUSTICE ABHILASHA KUMARI)
1. The challenge in this appeal is to the judgment and order dated 27.03.2012, rendered by the learned 5th (Adhoc) Additional Sessions Judge, Surat, in Sessions Case No.108 of 2011, whereby the appellant (original accused) has been convicted for the offence punishable under Section 302 of the Indian Penal Code, 1860 ("IPC") and sentenced to undergo life imprisonment.
2. The case of the prosecution, based upon the compliant dated 19.04.2011, filed by Lalsing Ranjabhai Tarole, is as follows:
On 19.04.2011 at about 8:00 am, the complainant, along with his team of labourers, came to the sugarcane field of Arvindbhai Kathiawadi for the purpose of cutting sugarcane. They worked for the entire day cutting sugarcane and in the evening, at about 7:00 pm, they started loading Page 2 of 49 HC-NIC Page 2 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT the sugarcane in Truck No.GRV7251. The complainant was also engaged in the work of loading the sugarcane in the truck, along with other labourers. At about 8:30 pm, the truck was almost full with bundles of sugarcane and only a little work of loading was left over. The deceased, Jiksingh Satarsing, was handing over the sugarcane from the lower portion of the truck to the accused, who was standing on the upper portion of the truck. At that point of time, the deceased told the accused to work faster, to which the accused answered that he had worked in the heat the whole day and was tired. The accused further told the deceased not to hurry as he would fall ill. A somewhat normal exchange of words took place between the accused and the deceased, to which the complainant did not pay much attention. The deceased again told the accused to hurry up. The accused abused the deceased, upon which the deceased asked the accused "will you beat me, or what?". The deceased then started climbing up to the upper portion of the truck where the accused was Page 3 of 49 HC-NIC Page 3 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT standing. At that point of time, the accused, who had a "Koyta" (an implement used for cutting sugarcane - hereinafter referred to as "sickle") in his hand, gave a blow with it on the neck portion of the deceased, who fell down.
The complainant and others present there, saw that the deceased had died. In the hue and cry that followed, the accused ran away from the field. The complainant and other labourers ran after the accused in order to catch him but he escaped. Thereafter, the complainant returned to the field and the police was called. An FIR, being C.R. No.I45/2011 was registered at Olpad Police Station and the investigative machinery swung into motion. Upon finding sufficient material against the accused, a Chargesheet for the offence punishable under Section 302 of the IPC was submitted in the Court of the learned Judicial Magistrate. The case was committed to the Sessions Court where the Charge, at Ex.6, was framed against the accused. In his reply, the accused denied the charge.
3. The prosecution examined fifteen witnesses and Page 4 of 49 HC-NIC Page 4 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT led documentary evidence in order to prove its case.
4. In his statement under Section 313 of the Code of Criminal Procedure, 1973, the accused stated that the charge is false and he has been wrongly implicated in the crime and is innocent.
5. After appreciating the oral and documentary evidence on record, the Trial Court arrived at the conclusion that the offence punishable under Section 302 of the IPC stood proved beyond reasonable doubt against the accused and sentenced him to life imprisonment. Aggrieved by the above judgment, the appellant is before this Court.
6. Mr.J.M.Buddhbhatti, learned advocate for the appellant, has made only one submission before us, which is to the effect that from a perusal of the oral evidence led by the prosecution, from which the manner in which the incident took place can be gauged, it is clear that the appellant had no intention of killing the deceased. The incident took place suddenly and a Page 5 of 49 HC-NIC Page 5 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT single blow was given by the accused to the deceased in the heat of the altercation that took place between them, without any premeditation or intention to kill. The accused did not take any undue advantage of the deceased and nor did he act in an unusual or cruel manner. In fact, the crossexamination of the complainant it is revealed that it was the deceased who had made the accused angry. The manner in which the incident took place shows that the blow was given in the heat of passion, upon a sudden quarrel. Therefore, the case of the appellant squarely falls within the purview of Exception4 to Section 300 of the IPC. As such, the conviction of the appellant may be altered to that under Section 304 PartI or II, instead of Section 302 of the IPC.
7. In support of the above submissions, reliance has been placed upon the following judgments:
(1) Gurmukh Singh v. State of Haryana - (2010)2 SCC (Cri.) 711 : (2009)15 SCC 635 (2) Baban Bandu Patil v. State of Maharashtra - (2010) 1 SCC (Cri.) 695 :
(2009)12 SCC 685 Page 6 of 49 HC-NIC Page 6 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT
8. On the other hand, Mr.Ronak Raval, learned Additional Public Prosecutor, has submitted that the benefit of Exception4 to Section 300 does not deserve to be given to the appellant. The deceased was handing over sugarcane to be loaded in the truck to the accused. The deceased was standing at a lower position and the accused was standing at a higher position. There was no provocation from the deceased to the accused. Only normal talk, leading to an altercation, took place. It was the accused who abused the deceased, upon which the deceased said that "will you beat me or what?". When the deceased climbed on to the truck, the accused hit the deceased on the neck with the sickle and ran away. It is contended that the accused had knowledge that a blow inflicted on the neck, which is a vital part of the body, would prove fatal to the deceased. If the accused had no intention of killing the deceased, he would not have inflicted a blow upon the neck of the deceased. There was, therefore, knowledge on the part of the accused that the blow on the neck of Page 7 of 49 HC-NIC Page 7 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT the deceased would prove fatal.
9. To fortify his submissions, learned Additional Public Prosecutor has relied upon the following judgments:
(1) Arun Raj v. Union of India & Ors. (2010)6 SCC 457 (2) Vishal Singh v. State of Rajasthan - (2009)11 SCC 674 (3) Dhirajbhai Gorakbhai Nayak v. State of Gujarat - (2003)9 SCC 322
10. Learned Additional Public Prosecutor has submitted that the facts in the case of Vishal Singh v. State of Rajasthan (supra) are similar to the facts of the present case as the deceased had no weapon with him when the incident took place. Further, the argument was not so grave so as to merit infliction of the injury which proved to be fatal. It is submitted that the case in hand would not fall under Exception4 to Section 300 of the IPC as the injury was inflicted on a vital part of the body and though it was a solitary blow, it was proved fatal.
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Hence, this Court may not interfere with the conviction of the appellant under Section 302 of the IPC by giving the benefit of Exception4 to Section 300 IPC.
11. In the background of the above factual and legal aspects, it would be fruitful to advert, briefly, to the oral and documentary evidence on record.
12. PW1 Lalsing Ranjabhai Tarole, whose deposition is at Ex.10, is the complainant and an eye witness to the incident. He is also the star witness of the prosecution who has described the incident in detail. He has stated that on the day of the incident he, along with his team of labourers, were working from 8:00 am in the field of Arvindbhai, cutting sugarcane. At about 7:00 pm, the truck in which the sugarcane was to be transported arrived. They started loading the truck with sugarcane. The deceased was amongst the labourers who were loading the bundles of sugarcane onto the truck. The deceased told the accused to hurry up and load Page 9 of 49 HC-NIC Page 9 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT the sugarcane onto the truck, to which the accused replied he could not hurry as he would fall ill. There was a minor altercation between the accused and the deceased. The accused stated "will you beat me, or what?". The deceased then started climbing onto the truck. The accused gave a blow of the sickle, which was in his hand, on the neck of the deceased, due to which the deceased died and the accused ran away.
13. In his crossexamination, this witness states that there was an altercation between the accused and the deceased and the deceased made the accused angry, though he did not hear the exact words used.
14. The wife of the deceased, Lalita alias Lata Jiksing Bamne, has been examined as PW2 at Ex.12. She is not an eyewitness of the incident and came to know about it from PW1, who informed her at about 10:00 pm that when the sugarcane was being loaded onto the truck, the accused killed the deceased, who sustained injuries on his neck with the sickle.
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15. Another important prosecution witness is PW3, Revsing Sattarsing Bamne, the brother of the deceased, whose deposition is at Ex.13. He was present at the spot and witnessed the incident. He states that on the day of the incident, bundles of sugarcane were being loaded onto the truck by him. His brother, the deceased, was standing near him and the bundles were being passed on by this witness to the deceased. The accused was standing on the upper portion of the truck. The deceased told the accused that he should hurry up and the accused struck a blow of the sickle on the neck of the deceased and ran away. The deceased died on the spot.
16. In crossexamination, this witness denies the suggestion that it was dark and he could not see anything. He admits that before his brother was killed, there was talk of working in a hurry, which led to the altercation but the deceased was killed before the quarrel took place. He again states that it is true that no quarrel took place.
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17. The Driver of the truck, Amarsing Naginbhai Chaudhary, in which the sugarcane was being loaded, has been examined as PW4 at Ex.14. He has turned hostile and has not supported the case of the prosecution. PW5, Rajaram Khadtiyabhai Ravat, whose deposition is at Ex.15, does not support the case of the prosecution either and has been declared hostile. Similarly, PW6 Prakashbhai Balubhai Patel, the Panch witness of the scene of offence, whose deposition is at Ex.16, has also been declared hostile. Similar is the case with PW7 Rajeshbhai Arjunbhai Patel, examined at Ex.19, who is the other Panch witness of the Panchnama of the scene of offence and PW8 Baban Khanderao Patil, whose deposition is at Ex.20, the Panch witness of the Inquest Panchnama. All these witnesses have been declared hostile and have not supported the case of the prosecution at all. The second Panch witness of the Inquest Panchnama, PW9 Ramubhai Govindbhai Vasava (Ex.22), has also turned hostile and nothing much turns upon his evidence. PW11, Dattubhai Page 12 of 49 HC-NIC Page 12 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT Natvarbhai Sayaniya, whose deposition is at Ex.27, is a Panch witness of the recovery of the clothes of the deceased. He has not supported the version of the prosecution and hence been declared hostile. PW12 Rajeshbhai Jagubhai Patel, is the other Panch witness of the recovery of the clothes of the deceased. His deposition is at Ex.29. He, too, has been declared hostile. PW13 Vanmalibhai Balubhai Surti, one of the Panch witnesses of the Panchnama of the discovery of the weapon of offence has deposed at Ex.33. He is also a hostile witness.
18. One of the witnesses on whose deposition on which the prosecution has relied, is PW10 Dr.Pankaj Jinabhai Gamit, whose deposition is to be found at Ex.23. He is the doctor who performed the postmortem upon the body of the deceased. He describes the condition of the body and states that there was a wound with a sharp cutting instrument on the right hand side neck of the deceased between chin and the ribs, admeasuring 4 inch in length, 1.5 inch in Page 13 of 49 HC-NIC Page 13 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT breadth and 1 inch in depth. No other injury was found on the body of the deceased. The injury on the neck of the deceased resulted in incising the blood vessel and the deceased died due to the trauma suffered as a result of this.
19. In crossexamination, this witness, upon being shown the weapon of offence, denies the suggestion that it is not sharp and pointed. He reiterates that the injury suffered by the deceased is by a sharp cutting instrument which has been mentioned in the postmortem report. He further elaborates that the bloodvessel has been cut as a result of the incised wound. The Doctor has found that the injury suffered by the deceased is sufficient in the ordinary course of nature to cause death. He denies the suggestion that he has seen the weapon of offence at the time of performing the postmortem.
20. The postmortem report is at Ex.25, in which the injury sustained by the deceased has been described in Column No.17, as below:
"A sharp cutting wound over the rt. Side of Page 14 of 49 HC-NIC Page 14 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT middle of neck midway between rt. Side of chin and upside of the clavicle about 4 inch long, 1½ inch broad and 1 inch deep...."
The cause of death, as stated in the postmortem report is due to "haemorrhaegic shock due to injury to major vessel of neck due to sharp cutting instrument". The same cause is reflected in the Death Certificate.
21. PW14 is Taraben Ghodubhai Khernar, the Police Station Officer, who has made an endorsement in the Police Station Diary and recorded the FIR. She is a formal witness and nothing much turns on her deposition.
22. The Investigation Officer of the case, Pratipalsinh Ajitsinh Jhala, has been examined as PW15, at Ex.40. He states that when he reached the spot, he found the body of the deceased lying there and started to record the statements of the complainant as well as the other labourers present there. He was informed that there was a quarrel between the accused and the deceased regarding the loading of the Page 15 of 49 HC-NIC Page 15 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT sugarcane and the accused gave a blow of the sickle on the neck of the deceased, who died on the spot. This witness states that the accused showed his willingness to disclose the weapon, therefore, a Discovery Panchnama was drawn up at Ex.30, which was signed by the two Panch witnesses.
23. In his crossexamination, the Investigation Officer has admitted that the complainant is known to the deceased. He has denied that the Panchnama was not drawn up in the presence of the Panch witnesses or that he had already prepared the Panchnama and brought it for the signatures of the said witnesses and made them sign it. He denies the suggestion that the Muddamal weapon of offence brought by him to the Court is a rusted piece of scrap or that he has purchased this Muddamal from a "Kabadi" (scrap dealer).
24. The clothes worn by the deceased as well as the weapon of offence and the sample of blood stained mud and control sample of mud, were sent Page 16 of 49 HC-NIC Page 16 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT to the FSL. The Serological Report indicates that the TShirt, pant and undergarments of the deceased were stained with blood of the BGroup, belonging to the deceased. The weapon of offence was also stained with BGroup. It does not appear from the material on record that the clothes of the accused were either seized or sent for analysis to the FSL.
25. Upon appreciation of the above oral and documentary evidence on record, the Trial Court arrived at the conclusion that, though the Panch witnesses had turned hostile, the evidence of PW1 Lalsing Ranjabhai Tarole, the complainant, as well as of PW3 Revsing Sattarsing Bamne, brother of the deceased, both of whom had witnessed the incident, was sufficient to prove that the deceased had hit the accused on the neck with a sickle after a brief altercation and the deceased had died on the spot; therefore, the deceased was done to death by the accused and the death was homicidal. The Trial Court also found that though the Panch witnesses of the Panchnama of the discovery of the weapon did Page 17 of 49 HC-NIC Page 17 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT not support the case of the prosecution as they had turned hostile, however, the deposition of the Investigating Officer was sufficient to prove that the weapon was discovered at the behest of the accused. The Doctor has stated that the injury caused to the deceased could have been caused by the said weapon, which aspects lend ample support to the case of the prosecution. The Trial Court has further elaborated that though PW1 is the cousin of the deceased and PW3 is his brother, however, the relationship of the said prosecution witnesses with the deceased is not of much significance as they are natural witnesses who were present at the spot. They were also engaged in the same work as the deceased and accused, that is, of loading bundles of sugarcane in the truck. Both are eyewitnesses and have described the incident minutely. Their testimonies, inter se corroborate each other therefore is no reason to disbelieve them or discard their testimonies. On the basis of the above conclusions, the Trial Court found that the evidence on record proved, Page 18 of 49 HC-NIC Page 18 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT beyond reasonable doubt, that the accused was guilty of committing the offence of murder punishable under Section 302 of the IPC. The Trial Court convicted the appellant of the said offence and sentenced him to suffer imprisonment for life.
26. Before this Court, learned counsel for the appellant has not denied the factum of the blow by the sickle being given to the deceased by the accused. He has further not denied that the incident took place. The case of the appellant, as put forth before us is that, though the accused gave a blow with the sickle on the neck of the deceased, resulting in the death of the deceased, however, this incident took place at the spur of the moment and passion, after a sudden altercation between the accused and the deceased. It is submitted that there was no element of premeditation or any intention to kill the deceased in the mind of the accused. It is the case of a single blow being inflicted on the deceased. The accused has not acted in a cruel or unusual manner as only a solitary blow Page 19 of 49 HC-NIC Page 19 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT has been inflicted by the accused. According to learned counsel for the appellant, the accused deserves to be granted the benefit of Exception 4 to Section 300 of the IPC as, according to him, it is not a case of murder but one of culpable homicide not amounting to murder. As per his submission, the offence may be converted to one under Section 304, PartI or II, instead of Section 302 IPC.
27. Since the incident itself has not been denied and the infliction of the blow with a sickle upon the neck of the deceased by the accused, resulting in his death, has been admitted, this Court would be called upon to examine the submission whether the present case would fall within the purview of Exception4 of Section 300, or not.
28. A short question that falls for determination before this Court is whether, upon the consideration of the peculiar facts and circumstances, the conviction of the appellant under Section 302 should be upheld, or the said Page 20 of 49 HC-NIC Page 20 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT conviction be converted to one under Section 304 PartI or PartII of the IPC.
29. Section 300 of the IPC reads as below:
"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."
30. Four exceptions have been carved out to this Section which illustrate under what Page 21 of 49 HC-NIC Page 21 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT circumstances culpable homicide is not murder. In the present case, Exception4 has been invoked, which reads as below:
"Exception4 - 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."
31. Section 304 of the IPC, which would gain relevance if the case is found to be falling under Exception4, reads as below:
"304. Punishment for culpable homicide not amounting to murder - Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done Page 22 of 49 HC-NIC Page 22 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT with the knowledge that it is likely to cause death, but without any intention or cause death, or to cause such bodily injury as is likely to cause death."
32. It would be pertinent to examine at this stage, the ingredients required for the applicability of Exception4 to Section 300.
33. In a recent judgment in the case of Surain Singh v. State of Punjab - (2017)5 SCC 796, the Supreme Court has discussed the principles of law regarding Exception4 to Section 300 and the ingredients required to bring a given case within its purview. The relevant extract of the judgment is reproduced hereinbelow:
"13. 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 Page 23 of 49 HC-NIC Page 23 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT 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 selfcontrol, 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 Page 24 of 49 HC-NIC Page 24 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT 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.
14. 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 Page 25 of 49 HC-NIC Page 25 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT 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".
15. In State of A.P. vs. Rayavarapu Punnayya and Another (1976) 4 SCC 382, this Court while drawing a distinction between Section 302 and Section 304 held as under:
(SCC pp.386 & 38889, paras 12 and 21) "12. In the scheme of the Penal Code, "culpable homicide" is genus and "murder" its specie. All "murder" is "culpable homicide" but not viceversa.
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 Page 26 of 49 HC-NIC Page 26 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT 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 Page 27 of 49 HC-NIC Page 27 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT Section 304, of the Penal Code.""
34. In another recent case of Arjun And Another v. State of Chattisgarh - (2017)3 SCC 247, the Supreme Court has laid down the principles of law required regarding invocation of Exception4 to Section 300. After taking into consideration a catena of cases, the Supreme Court held as below:
"20. To invoke this Exception 4, the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar vs. UT, Chandigarh - (1989)2 SCC 217, it has been explained as under: (SCC p.220, para 7) "7. To invoke this exception four requirements must be satisfied, namely,
(i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner.
The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. 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 Page 28 of 49 HC-NIC Page 28 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT cruel 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."
21. Further in Arumugam vs. State - (2008)15 SCC 590, in support of the proposition of law that under what circumstances Exception 4 to Section 300 IPC can be invoked if death is caused, it has been explained as under: (SCC p.596, para 9) "9.... '18. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. 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 Page 29 of 49 HC-NIC Page 29 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT 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 cruel or unusual manner. The expression "undue advantage" as used in the provision means 'unfair advantage'.""
22. The accused, as per the version of PW 6 and eyewitness account of other witnesses, had weapons in their hands, but the sequence of events that have been narrated by the witnesses only show that the weapons were used during altercation in a sudden fight and there was no premeditation. Injuries as reflected in the postmortem report also suggest that appellants have not taken "undue advantage" or acted in a cruel manner. Therefore, in the fact situation, Exception 4 under Section 300 IPC is attracted. The incident took place in a sudden fight as such the appellants are entitled to the benefit under Section 300 Exception 4 IPC.
23. When and if there is intent and knowledge, then the same would be a case of Section 304 Part I IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II IPC. Injuries/incised wound caused on the head i.e. right parietal region and right Page 30 of 49 HC-NIC Page 30 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT temporal region and also occipital region, the injuries indicate that the appellants had intention and knowledge to cause the injuries and thus it would be a case falling under Section 304 Part I IPC. The conviction of the appellants under Section 302 read with Section 34 IPC is modified under Section 304 Part I IPC. As per the Jail Custody Certificates on record, the appellants have served 9 years 3 months and 13 days as on 232016, which means as on date the appellants have served 9 years 11 months. Taking into account the facts and circumstances in which the offence has been committed, for the modified conviction under Section 304 Part I IPC, the sentence is modified to that of the period already undergone."
35. Learned advocate for the appellant has placed reliance upon the judgment in the case of Gurmukh Singh v. State of Haryana (supra), wherein the Court elaborated upon the factors required to be taken into consideration before awarding appropriate sentence to the accused. On the facts of the case, the Supreme Court held as below:
"21. In the instant case, the occurrence Page 31 of 49 HC-NIC Page 31 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT had taken place at the spur of the moment. Only the appellant Gurmukh Singh inflicted a single lathiblow. The other accused have not indulged in any overt act. There was no intention or premeditation in the mind of the appellant to inflict such injuries to the deceased as were likely to cause death in the ordinary course of nature. On consideration of the entire evidence including the medical evidence, we are clearly of the view that the conviction of the appellant cannot be sustained under Section 302 IPC, but the appropriate section under which the appellant ought to be convicted is Section 304 Part II IPC.
22. Before we part with the case, we would like to clearly observe that we are not laying down that in no case of single blow or injury, the accused cannot be convicted under section 302 IPC. In cases of single injury, the facts and circumstances of each case has to be taken into consideration before arriving at the conclusion whether the accused should be appropriately convicted under Section 302 IPC or under Section 304 Part II IPC."
36. In Baban Bandu Patil v. State of Maharashtra (supra), also relied upon on behalf of the appellant, the Supreme Court, after discussing Page 32 of 49 HC-NIC Page 32 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT the ingredients required to invoke Exception4 to Section 300, held as below:
"17. "6. For bringing in operation Exception 4 to Section 300 IPC it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner.
7. The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of prosecution 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 selfcontrol, in case of Exception 4, there is only that heat of passion which clouds men's sober reasons 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 Page 33 of 49 HC-NIC Page 33 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A `sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused: (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the `fight' occurring Page 34 of 49 HC-NIC Page 34 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT in Exception 4 to Section 300 IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression `undue advantage' as used in the provision means `unfair advantage'.
These aspects have been highlighted in Dhirajbhai Gorakhbhai Nayak v. State of Gujarat - (2003)9 SCC 322, Parkash Chand v. State of H.P. (2004)11 SCC 381. (SCC pp.38384, paras 67), Byvarapu Raju v. State of A.P. (2007)11 SCC 218 and Hawa Singh v. State of Haryana - (2009)3 SCC
411."Page 35 of 49
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37. This Court is, therefore required to consider the facts of the present case on the touchstone of the principles of law enunciated by the Supreme Court in the above judgments in order to ascertain whether the ingredients required for the invocation of Exception 4 to Section 300 of the IPC exist in the factual matrix of the case, or not.
38. The complainant has given a vivid sequence of the events that took place leading to the infliction of the blow by the accused on the neck of the deceased with the sickle, in his complaint. The incident took place at about 8:30 pm when the team of labourers of PW1 (complainant) were loading bundles of sugarcane on the truck. The accused was standing on the upper portion of the truck whereas the deceased was standing below. The deceased asked the accused to work faster to which the accused replied that he had worked in the heat all day and was tired. He told the deceased not to hurry as he would fall ill. The deceased again told the accused to hurryup upon which the accused Page 36 of 49 HC-NIC Page 36 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT abused the deceased. The deceased then asked the accused "will you beat me, or what?" The deceased also started to climb upon the truck. The accused, who already had a sickle in his hand, gave a blow with it on the neck of the deceased who fell down. The version of the complainant in the compliant is corroborated by his deposition as well. PW2, brother of the deceased, who witnessed the incident, has also corroborated this version. The sequence of events, therefore, makes it clear that the act of inflicting the blow by the accused was one without premeditation. The accused and the deceased were working together the whole day. Had it been a premeditated act, the accused would not have hit the deceased at the fag end of the day in the presence of several other labourers. The sickle was already in the hands of the accused when the altercation took place as they had been cutting sugarcane and it was not as though he had brought the weapon with the intention of murdering the deceased. The facts further reveal that there was a sudden Page 37 of 49 HC-NIC Page 37 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT altercation between the accused and the deceased that gave rise to the incident. There was an exchange of words on the spur of the moment between the accused and the deceased which gave rise to an altercation leading to the infliction of the blow on the deceased. The deceased was standing at a lower level than the accused. In fact, it was not the accused who had initiated the altercation but it was the deceased who had told the accused to hurry up. The first time when the deceased told the accused to hurry up, the deceased said that he was tired as he had worked the whole day and if he would hurry up he would get ill. Still, however, the deceased reiterated that the accused should hurry up. When the accused abused the deceased, the deceased started to climb up on the truck to the place where the accused was standing and said "will you beat me, or what?" It was at that moment that the accused inflicted the blow on the deceased. The evidence on record indicates that the incident took place on the spur of the moment. There was no premeditation or intention Page 38 of 49 HC-NIC Page 38 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT on the part of the appellant to inflict an injury on the deceased that was likely to cause death in the ordinary course of nature. Only a single blow was given by the accused which turned out to be fatal. This is not to say that a single fatal blow could bring the conviction under the purview of Section 302. However, in such a case, the intention to cause death or bodily injury has to be ascertained. An intention would be nursed in the mind of the accused and would give rise to the premeditated act of murder. This itself implies of prior gestation of the idea of killing a person which turns into an intention and culminates in a premeditated murder. Such an act would not be committed on the spur of the moment as the mens rea to kill the person concerned would have germinated in the mind of the accused. Such are not the facts in the present case where the incident took place as a result of the sudden altercation, without any premeditation.
39. The evidence reveals that the accused has not taken undue advantage or acted in a cruel or Page 39 of 49 HC-NIC Page 39 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT unusual manner. He has inflicted the blow on the spur of the moment and run away, probably because he realised the gravity of his act. The sudden fight took place with the person who was killed. All the four ingredients, therefore, as required to invoke Exception4 to Section 300, as held by the Supreme Court in the judgments stated above, namely, death is caused (a) without premeditation, (b) in a sudden fight,
(c) without the offender having taken undue advantage or acted in a cruel or unusual manner and (d) the fight took place with the person who was killed, are present in the case in hand.
40. In the case of Surain Singh v. State of Punjab (supra), the facts were that there was bitter hostility between the warring factions to which the accused and deceased belonged. However, the Supreme Court held that the said case was one of knowledge but not of intention to cause murder or fatal injury, therefore, it would fall under Section 304, PartI. The facts of the present case stand on a much better footing where there was no previous enmity or litigation between the Page 40 of 49 HC-NIC Page 40 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT accused and the deceased. In the present case as well, there was no intention on the part of the accused to cause murder or fatal injury on the deceased.
41. Mr.Ronak Raval, learned Additional Public Prosecutor, has relied upon the judgment in the case of Arun Raj v. Union of India & Ors. (supra). This was a case where the Supreme Court was dealing with the applicability of Exception1 to Section 300 of the IPC, namely, what amounts to grave provocation. In the present case, Exception1 has not been invoked and the appellant has relied on Exception4 only. However, in the said case, after referring to certain other judgments, the Supreme Court has held that there is no fixed rule that whenever a single blow is inflicted, Section 302 would not be attracted. Immediately thereafter, the Supreme Court has held as below:
"29. It is clear from the above line of cases, that it is necessary to prove first that there was an intention of causing bodily injury; and that the injury intended Page 41 of 49 HC-NIC Page 41 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT to be inflicted is sufficient in the ordinary course of nature to cause death. From the evidence on record, it is very clear that the appellant intended to cause death. In light of this finding, the evidence on record makes it clear that Section 304 Part II IPC will not be attracted. Further PW1, in his cross examination asserts that the deceased held his hand out after he was stabbed in the chest. It is very likely that this action on the part of the deceased prevented the appellant from stabbing him multiple number of times. The argument might deserve some merit in case there is a sudden altercation which ensues in the heat of the moment and there is no deliberate planning."
The facts in Arun Raj v. Union of India & Ors. (supra) stood on a totally different footing from the facts of the present case. In Arun Raj the deceased had insulted the accused and abused him by using a provocative word the previous night after which there was a heated discussion between the appellant therein and the deceased. The accused assaulted the deceased the next day. There was sudden altercation between the appellant therein and the deceased. The Page 42 of 49 HC-NIC Page 42 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT appellant had concealed a kitchen knife in his Lungi and gone towards the cot of the deceased the next day and struck a blow on the right side of the chest when the deceased was sleeping. As such, there was due deliberation on the part of the appellant to avenge his humiliation at the hands of the deceased the previous day. The fact situation of the case in Arun Raj does not appear in the present case where the blow was given on the spur of the moment after a heated exchange of words.
42. Learned Additional Public Prosecutor has relied upon the case of Vishal Singh v. State of Rajasthan (supra). The said case turned upon its own facts which is evident from the following extract of the judgment:
"12. In the instant case the High Court noted that the appellantaccused was armed with knife and standing with his friends and accosted the deceased and PW 6. They were labelled thieves and after abusing them, accused persons started search of their persons which was ordered by the present appellant. When the deceased resisted he was Page 43 of 49 HC-NIC Page 43 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT not only thrashed but also given fatal injury on his chest with such force that it penetrated upto lower lobe of lung as also pericardium resulting in his death. There was no evidence of any scuffle much less sudden fight or sudden quarrel or altercation between the parties. It was the right of the deceased and PWs 6 and 7 to resist their personal search because they were not armed. That being so, Exception 4 to Section 300 IPC has no application to the facts of the case. The appellant has been rightly convicted in terms of Section 302 IPC.
13. We find no merit in this appeal which is accordingly dismissed." .
As noticed by the Supreme Court, there was no evidence of any scuffle or sudden fight, quarrel or altercation between the parties, therefore Exception4 to Section 300 had no applicability to the facts of the case and the conviction of the appellant therein under Section 302 was not disturbed. In the case in hand, the facts are different and reveal the presence of all the ingredients required to bring the case within the purview of Exception4 to Section 300 IPC.
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43. Learned Additional Public Prosecutor has also relied upon Dhirajbhai Gorakbhai Nayak v. State of Gujarat (supra), wherein the same principles of law regarding the applicability of Exception 4 to Section 300, have been reiterated, as have already been reproduced hereinabove.
44. Having carefully considered the facts of the case on the touchstone of the principles of law enunciated by the Supreme Court regarding the applicability of Exception4 to Section 300 from all possible angles with regard to the evidence on record, we are of the considered view that the appellant could not have been convicted under Section 300 and punished with life imprisonment under Section 302 IPC, for the reason that there is not even an iota of evidence on record to show that the appellant had even the remotest intention of causing the death of the deceased or any intention of causing such bodily injury knowing that would be sufficient to cause the death of the deceased.
The facts of the present case are such that they do not bring the case under Section 300, Page 45 of 49 HC-NIC Page 45 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT secondly, thirdly or fourthly, but squarely fall under Exception4 to Section 300 IPC. The conviction of the appellant under Section 302, therefore deserves to be modified.
45. We are unable to agree with the conclusion arrived at by the Trial Court that the case of the prosecution against the appellant under Section 302 is proved beyond reasonable doubt, for the reason that the Trial Court appears to have overlooked the aspect that there is no material on record to indicate that the appellant had any intention to kill the deceased or that the act of the infliction of the blow was a premeditated one.
46. It appears that the protection of Exception4 of Section 300 was not pleaded before the Trial Court as we find no discussion in the judgment regarding this aspect. The written submissions submitted on behalf of the appellant, which are on record, also do not indicate that this aspect was highlighted. However, being a legal submission, it can be raised at any point of Page 46 of 49 HC-NIC Page 46 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT time.
47. As we have concluded that the conviction of the appellant under Section 302 deserves to be modified, the question remains whether the conviction should be modified to that under Section 304 PartI or PartII.
48. In Arjun And Another v. State of Chattisgarh (supra), reproduced hereinabove, the Supreme Court has held that when there is intent and knowledge, it would be a case under Section 304 PartI and if it is only a case of knowledge and no intention to cause murder and bodily injury, then the case would fall under Section 304 Part II IPC. Same principle has been reiterated in Surain Singh v. State of Punjab (supra).
49. Examining the facts of the present case in light of the above enunciation of law by the Supreme Court, we have found that in the present case, there was no intention on the part of the appellant to cause murder or bodily injury to the deceased as the incident took place on the spur of the moment out of a sudden altercation.Page 47 of 49
HC-NIC Page 47 of 49 Created On Fri Jul 14 23:39:55 IST 2017 R/CR.A/690/2012 JUDGMENT Considering the factual scenario of the case in hand in the background of the evidence on record and in light of the legal principles laid down by the Apex Court, as applicable to the facts of the present case, we arrive at the inevitable conclusion that the act of the appellant accused was not a premeditated act and there was no intention on the part of the appellant to kill the deceased or cause him bodily injury. The incident took place in the heat of the moment after a sudden altercation. The appellant did not behave in a cruel or unusual manner or take undue advantage of the deceased. All the elements required for the invocation of Exception4 to Section 300 IPC are attracted in the present case. For the above reasons, the appellant is entitled to the benefit of Exception4 to Section 300 IPC.
50. In view of the aforesaid discussion, the judgment and order of conviction passed by the Trial Court is required to be modified by partly allowing the appeal.
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51. We, therefore, pass the following order:
1) The appeal is partlyallowed.
2) The judgment and order dated 27.03.2012, rendered by the learned 5th (Ad hoc) Additional Sessions Judge, Surat, in Sessions Case No.108 of 2011, is modified to the extent that the conviction of the appellant is converted to one under Section 304 PartII instead of Section 302 of the IPC.
3) Looking to the facts of the case, the sentence of imprisonment for a period of ten years would meet the ends of justice.
52. The R & P be sent back to the concerned Trial Court forthwith.
(SMT. ABHILASHA KUMARI, J.) (A.J. SHASTRI, J.) (sunil) Page 49 of 49 HC-NIC Page 49 of 49 Created On Fri Jul 14 23:39:55 IST 2017