Allahabad High Court
Shravan vs State Of U.P. on 27 May, 2020
Equivalent citations: AIRONLINE 2020 ALL 2599
Bench: Pritinker Diwaker, Shekhar Kumar Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED IN CHAMBER JAIL APPEAL No.7338 of 2010 Shravan ----- Appellant Versus State of Uttar Pradesh ----- Respondent ________________________________________________________ For Appellant : Mr. Manoj Kumar Srivastava For Respondent/State : Mr. Amit Sinha (AGA) Hon'ble Pritinker Diwaker, J.
Hon'ble Shekhar Kumar Yadav, J.
(Per: Shekhar Kumar Yadav, J.)
1. Instant Jail Appeal arises out of impugned judgment and order dated 09.09.2010 passed by the Additional Sessions Judge, Court No.12, Aligarh in Sessions Trial No.1019 of 2008, convicting the appellant under Section 302/34 of Indian Penal Code and sentencing him to undergo imprisonment for life with a fine of Rs.10,000/-; in default thereof, three months additional simple imprisonment.
2. The entire case, in a nutshell is, that complainant Smt. Rani (PW-1) w/o Kalyan Singh, lodged a complaint (Ex Ka.1) on 07.03.2008 at 00.15 am, alleging that on 06.03.2008 at 10.30 pm, her son Santosh was repairing electric wire from an electric pole adjoining wall of the accused on which accused Raju came and had hot talk to deceased Santosh. After hearing noise, complaint (PW-1), her husband Kalyan Singh (PW-2) and her brother-in-law (Devar) [not examined], reached to the place of incident; they saw Raju caught hold her son Santosh; appellant Shravan was assaulting to the deceased with knife and when they saw their son, then accused Raju and Shravan fled away. The deceased brought to the hospital by his parents for treatment, but the doctor declared him dead.
3. On the basis of aforesaid written complaint, a First Information Report (Ex. Ka.3) was registered as Crime No.91 of 2008 contemplating offences punishable under Section 302 of IPC against the accused persons.
4. Immediately after registration of the FIR, investigation was undertaken by Sub Inspector Sansar Singh Rathi (PW-6); he prepared Inquest Report (Ex Ka-5) and sent the dead body of deceased Santosh in a sealed cover for post-moretm in the custody of Constable Jai Prakash Yadav and Surajpal. Blood-stained earth as well as simple earth and one knife (Ex Ka.2) dated 26.04.2010 were recovered from the place of occurrence. The Investigating Officer also recorded the statements of eye witnesses.
5. Post-mortem of deceased Santosh was conducted on 07.03.2008 at about 4.00 pm by Dr. L.K. Saxena (PW-3), ENT Surgeon, District Malkhan Singh Hospital, Aligarh. He prepared post-mortem report (Ex Ka.2 dated 21.05.2010) and noticed the following injuries on the dead body of the deceased:
"(i) Incised wound 3.0 cm x 1.0 cm x bone deep on front of upper part of right thigh. Horizontal in place. Margie clean cut right femoral arty and vain are both ruptured 4.5 cm lateral to scrotum.
(ii) Abrasion 3.0 cm x 2.0 cm on right side fold lateral malleolus."
As per post-mortem report, cause of death of deceased Santosh was "haemorrhage and shock due to anti-mortem injuries".
6. Investigating Officer, after completing the investigation, submitted charge sheet (Ex Ka-11) against the accused persons under Section 302/34 of IPC.
7. The case, being a Sessions Triable, was committed to the Court of Sessions Judge. On 03.11.2009, the Sessions Judge heard the arguments and after considering the entire material available on record, framed charge against the accused persons under Section 302/34 of IPC. The aforesaid charge was read over and explained to the accused persons. On denial of the same, trial commenced.
8. During the course of trial, prosecution supported its case with the aid of seven witnesses. After completing the prosecution evidence, the accused persons were examined under Section 313 Cr.P.C. in which, they have pleaded their innocence and false implication and claimed trial.
9. Learned trial Court, relying upon the statements of PWs, recorded the conviction of the accused persons for the offence punishable under Section 302/34 of IPC and sentenced them, as mentioned in paragraph no.1 of this judgment. Hence, this appeal.
10. Contention of learned counsel for the appellant is as under:
(i) that the incident took place suddenly and there was no premeditation on the part of the accused-appellant, therefore, it falls under Exception 4 to Section 300 of IPC.
(ii) that even if the entire case of prosecution is taken as it is, offence under Section 302/34 of IPC is not made out against the appellant and he is liable to be convicted under Section 304 Part I or Part II of IPC.
11. Per contra, in support of the impugned judgment, learned AGA, inter-alia, submitted that the conviction of the appellant is strictly in accordance with law. He further submitted that the trial Court has rightly convicted the appellant after due and proper consideration of the evidence available on record; hence, the order impugned does not warrant any interference.
12. We have heard Mr. Manoj Kumar Srivastava, learned counsel for the appellant and Sri Amit Sinha, learned AGA for the State and perused the material available on record.
13. Smt. Rani (PW-1), is the mother of deceased Santosh, who is an eye witness to the incident. She has stated that on the fateful day, while deceased was repairing electric wire from the electric pole on which, some altercation took place between deceased Santosh and accused Raju. Accused Raju caught hold the deceased and Shravan s/o Raju was assaulting him with knife. After hearing noise of quarrel, she and her husband Kalyan Singh (PW-2) and brother-in-law Vijay came there, then accused Raju and Shravan fled away. She has further stated that she saw the incident in the electrical right and she had identified the accused.
14. Sri Kalyan Singh (PW-2), is the father of deceased Santosh, who is also an eye witness to the incident. He has stated that after hearing noise of quarrel between his son and accused, he reached to the place of incident and saw that Raju caught hold his son and Shravan was assaulting to the deceased with knife, thereafter, the accused persons fled away from the spot.
15. In the present case, the incident took place on 06.03.2008 at 10.30 pm. There was some hot talks between accused persons and the deceased and then appellant has caused injuries to deceased Santosh with knife. After sustaining injuries, the injured was taken to hospital by Smt. Rani (PW-1) and Sri Kalyan Singh (PW-2), mother and father of the deceased, wherein doctor declared him dead. Both the eye-witnesses have duly supported the prosecution case and have categorically stated as to the manner in which the incident occurred. Eye-witnesses of the incident, namely, Smt. Rani (PW-1) and Sri Kalyan Singh (PW-2), mother and father of the deceased, have been cross-examined at great length, but except some minor variations and natural contradictions, nothing useful to the defence has come out.
16. A close scrutiny of the depositions of the eye-witnesses, would go to show that on fateful day, while deceased was repairing electric wire from electric pole, some heated altercation took place between deceased Santosh and the accused persons. Co-accused Raju caught hold the deceased and the deceased was assaulted all of a sudden by the appellant with knife, as a result of which, he died.
17. Considering all these aspects of the case, we are of the view that the complicity of the accused persons in commission of offence has been duly proved by the prosecution.
18. Now the next question, which arises for consideration of this Court is, as to whether the act of accused-appellant would fall within the definition of 'murder' or it would be 'culpable homicide not amounting to murder'.
19. Before proceeding further, it is relevant to refer to the provisions of Section 300 of IPC, which read as under:
"300. Murder.- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-
Secondly.- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or -
Thirdly.- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -
Fourthly.- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1.- When culpable homicide is not murder.-Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above Exception is subject to the following provisos:-
First.- That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly.- That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly. - That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation.- Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
Exception 2.- Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
Exception 3.- Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
Exception 4.-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Explanation.- It is immaterial in such cases which party offers the provocation or commits the first assault.
Exception 5.- Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent."
Exception 4 to Section 300 of the IPC applies in the absence of any premeditation. This is very clear from the wordings of the Exception itself. The exception contemplates that the sudden fight shall start upon the heat of passion on a sudden quarrel. The fourth exception to Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of provocation not covered by the first exception, after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1, but the injury done is not the direct consequence of that provocation. In fact, Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon an equal footing. A "sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor could in such cases the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner, and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage".
20. Considering all the aspects of the case, we are of the view that there was no premeditation on the part of the accused-appellant to kill the deceased.
21. The Apex Court in State of Andhara Pradesh vs. Rayavarapu Punnayya and Another1, while drawing a distinction between Section 302 and Section 304 of IPC, held as under:
"12. In the scheme of the Penal Code, "culpable homicide" is genus and "murder" its specie. All "murder" is "culpable homicide" but not vice-versa. Speaking generally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the greatest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.
21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is "murder" or "culpable homicide not amounting to murder", on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of "murder" contained in Section 300. If the answer to this question is in the negative the offence would be "culpable homicide not amounting to murder", punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be "culpable homicide not amounting to murder", punishable under the first part of Section 304, of the Penal Code."
22. In Budhi Singh vs. State of Himachal Pradesh2, the Supreme Court, held as under:
18. The doctrine of sudden and grave provocation is incapable of rigid construction leading to or stating any principle of universal application. This will always have to depend on the facts of a given case. While applying this principle, the primary obligation of the court is to examine from the point of view of a person of reasonable prudence if there was such grave and sudden provocation so as to reasonably conclude that it was possible to commit the offence of culpable homicide, and as per the facts, was not a culpable homicide amounting to murder. An offence resulting from grave and sudden provocation would normally mean that a person placed in such circumstances could lose self-control but only temporarily and that too, in proximity to the time of provocation. The provocation could be an act or series of acts done by the deceased to the accused resulting in inflicting of injury.
19. Another test that is applied more often than not is that the behaviour of the assailant was that of a reasonable person. A fine distinction has to be kept in mind between sudden and grave provocation resulting in sudden and temporary loss of self-control and the one which inspires an actual intention to kill. Such act should have been done during the continuation of the state of mind and the time for such person to kill and reasons to regain the dominion over the mind. Once there is premeditated act with the intention to kill, it will obviously fall beyond the scope of culpable homicide not amounting to murder....."
23. In Kikar Singh vs. State of Rajasthan3, the Apex Court held as under:
"8. The counsel attempted to bring the case within Exception 4. For its application all the conditions enumerated therein must be satisfied. The act must be committed without premeditation in a sudden fight in the heat of passion; (2) upon a sudden quarrel; (3) without the offender's having taken undue advantage; (4) and the accused had not acted in a cruel or unusual manner. Therefore, there must be a mutual combat or exchanging blows on each other. And however slight the first blow, or provocation, every fresh blow becomes a fresh provocation. The blood is already heated or warms up at every subsequent stroke. The voice of reason is heard on neither side in the heat of passion. Therefore, it is difficult to apportion between them respective degrees of blame with reference to the state of things at the commencement of the fray but it must occur as a consequence of a sudden fight i.e. mutual combat and not one side track. It matters not what the cause of the quarrel is, whether real or imaginary, or who draws or strikes first. The strike of the blow must be without any intention to kill or seriously injure the other. If two men start fighting and one of them is unarmed while the other uses a deadly weapon, the one who uses such weapon must be held to have taken an undue advantage denying him the entitlement to Exception 4. True the number of wounds is not the criterion, but the position of the accused and the deceased with regard to their arms used, the manner of combat must be kept in mind when applying Exception 4. When the deceased was not armed but the accused was and caused injuries to the deceased with fatal results, the Exception 4 engrafted to Section 300 is excepted and the offences committed would be one of murder.
9. The occasion for sudden quarrel must not only be sudden but the party assaulted must be on an equal footing in point of defence, at least at the onset. This is specially so where the attack is made with dangerous weapons. Where the deceased was unarmed and did not cause any injury to the accused even following a sudden quarrel if the accused has inflicted fatal blows on the deceased, Exception 4 is not attracted and commission must be one of murder punishable under Section 302. Equally for attracting Exception 4 it is necessary that blows should be exchanged even if they do not all find their target. Even if the fight is unpremeditated and sudden, yet if the instrument or manner of retaliation be greatly disproportionate to the offence given, and cruel and dangerous in its nature, the accused cannot be protected under Exception 4...."
24. All the above three cases were considered by the Apex Court in Surain Singh vs. The State of Punjab4 and ultimately, it has been held by the Apex Court in that particular case, that the accused was liable to be convicted under Section 304 Part II of IPC and not under Section 302 of IPC.
25. As a matter of fact, thus, the case in hand is of a sudden fight without any premeditation or overreacted while committing the crime in question, and without there being any intention on the part of the appellant and, accordingly, Exception 4 to Section 300 of IPC would be attracted in the facts and circumstances of the case.
26. In totality of the facts available, the crime committed by the accused-appellant, as such, does not travel beyond an offence described under Section 304 Part II of Indian Penal Code.
27. In view of the above, we are of the considered opinion that the trial Court has erred in law, while convicting the accused appellant under Section 302 of IPC. The judgment and order impugned dated 09.09.2010, hence, is set aside. The accused appellant is held guilty for commission of an offence punishable under Section 304 Part II of Indian Penal Code.
28. So far as sentence part is concerned, the accused-appellant has already remained in jail for about 11 years and 11 months. According to us, ends of justice would be served, if his sentence is reduced to the period already undergone by him order accordingly. As the appellant is reported to be in jail, he be set free forthwith, if not required in any other case.
29. However, considering the provisions of Section 357 of Cr.P.C. and judgment of the Apex Court in Ankush Shivaji Gaikwad vs. State of Maharashtra5, we are of the view that the accused-appellant is liable to compensate Smt. Rani (PW-1) and Sri Kalyan Singh (PW-2), mother and father of the deceased by paying a total compensation of Rs.50,000/- (Fifty Thousands). Accordingly, accused-appellant is directed to deposit Rs.50,000/- within a period of three months, after being released from jail before the trial court and, in turn, the trial court shall disburse the said amount to Smt. Rani (PW-1) and Sri Kalyan Singh (PW-2), mother and father of the deceased respectively. In case, the appellant fails to deposit the said compensation amount within the stipulated time, the court below shall proceed against him in the light of judgment of the Apex Court reported in Kumaran vs. State of Kerala and another, (2017) 7 SCC 471.
30. The appeal is partly allowed.
31. Let a copy of this judgment be sent to the concerned trial Court forthwith for compliance.
Order Date :-27.05.2020 Ajeet (Shekhar Kumar Yadav,J) (Pritinker Diwaker, J)