Allahabad High Court
Awadhesh Kumar vs State Of U.P. on 21 January, 2025
Bench: Saumitra Dayal Singh, Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:14524-DB Court No. - 45 Case :- CRIMINAL APPEAL No. - 7065 of 2019 Appellant :- Awadhesh Kumar Respondent :- State of U.P. Counsel for Appellant :- Archana Srivastava,Arvind Kumar Srivastava Counsel for Respondent :- G.A. Hon'ble Saumitra Dayal Singh,J.
Hon'ble Dr. Gautam Chowdhary,J.
(Delivered by Hon'ble Dr. Justice Gautam Chowdhary)
1. With regard to an incident occurred on 28.05.2014 at about 19:30 hours, a written tehrir (exhibit Ka-1) was given by the informant namely, Smt. Priti with the averments that on 28.05.20214 while her husband Sarvesh Kumar, brother-in-law (Jeth) namely, Awadesh, sister-in-law (Jethani) namely, Keshwati wife of Awadesh, her mother-in-law Parwati and father-in-law namely, Ram Chandra were present with regard to distribution of jewellery, altercation took place and in a fit of rage, her Jeth upon exhortation of his father and mother, stabbed her husband Sarvesh Kumar, who became injured and upon her intervention she was beaten with fists, kicks and knife, her younger sister namely, Rachna has seen the incident. She took her husband in ambulance to Diviyapur Hospital, where the doctor had declared him dead. Upon such report, a first information report came to be lodged on 28.05.2014 at about 21:15 hours as Case Crime No.97 of 2014 under Sections 304, 323, 324 I.P.C. Police Station Phaphund, District Auraiya.
2. Panchayatnama was conducted. The "Panchan" opined that it appears that the deceased died due to stabbing and to ascertain the cause of death, post mortem is required to be conducted. Thereafter, autopsy on the deceased was conducted on 29.05.2014 vide Post Mortem (Ex. Ka. 3) and according to the post mortem report, the cause of death is "shock and hemorrhage due to ante mortem injuries". The injuries were as under:-
(i) Stab wound 4.5 c.m. long X 1.5 broad is deeply punctured cavity deep. U/L Abd. Viscera punctured. S.W. situated on left side of upper part of Abdomen. A part of Abd. viscera protruded out through the C.A. O.P.S. of this wound.
(ii) Incised wound 3 c.m. X ½ c.m. X Abdomen deep on lateral side of left arm.
3. The injured Smt. Preeti was also medically examined, who sustained as many as four injuries.
4. The matter was entrusted for investigation and during investigation, the Investigating Officer recorded the statements under Section 161 Cr.P.C. and after collecting credible evidence, the investigation was culminated in submission of charge sheet under Sections 302, 323, 324 I.P.C. against the accused-appellant Awadesh Kumar, accused Ram Chandra and Smt. Parvati. Cognizance was taken in the matter by the concerned Magistrate whereafter, case was committed to the Court of Sessions and the case was registered as Sessions Trial No. 221 of 2014 (State Vs. Awadesh Kumar) as well as Sessions Trial No. 09 of 2015 (State Vs. Ram Chandra and another) arising out of Case Crime No. 97 of 2014 under Sections 302/34, 323/34, 324/34 I.P.C. Police Station Phaphund, District Auraiya. The Court of Sessions framed charges against the accused-appellant Awadesh Kumar, accused Ram Chandra and Smt. Parvati under Sections 302/34, 323/34, 324/34 I.P.C. The accused-appellants denied the charges and demanded trial.
5. During the trial, the prosecution has relied upon following documentary evidence:-
"(i) Written report (Ex. Ka-1).
(ii) Injury Report (Ex. Ka.2)
(iii) P.M.Report (Ex. Ka-3)
(iv) Panchayatnama (Ex. Ka-4)
(v) Site Plan with Index ((Ex. Ka-10)
(vi) F.I.R. (Ex. Ka-12)
(vii) Charge Sheet (Ex. Ka-13)
(viii) Charge Sheet (Ex. Ka-14)
6. On the other hand, following were the prosecution witnesses:-
(i) Smt. Preeti (P.W.1).
(ii) Rachna (P.W.2).
(iii) Dr. Vimal Kumar (P.W.3).
(iv) Dr. Om Prakash (P.W.4).
(v) Ayodhya Prasad (P.W.5)
(vi) Raj Narayan Singh (P.W.6)
(vii) Harpal Singh (P.W.7)
7. From the side of defence witness, Sri Kadhori Lal appeared as (D.W.1).
8. The informant was produced as P.W.1, who has fully supported the prosecution case. During her cross examination no discrepancy has surfaced.
9. P.W.2 Smt. Rachna has stated that she had gone to visit her sister's house (informant's house). On 28.05.2014 at about 07:30 P.M. her brother-in-law (deceased), his elder brother Awadesh, father Ramchandra, mother Parwati and sister-in-law Keshwati were distributing the jewellery. During the distribution, quarrel took place amongst them whereupon the father, mother and sister-in-law of his brother-in-law had caught him and Awadesh (accused-appellant) with an intention to kill had injured him due to which, he fallen and was taken to the hospital, where he was declared dead. After staying for a day or two, she came back to her house. It has also stated by her, that the accused persons never visited her matrimonial house. Neither any discrepancy surfaced in the statement of P.W. 2 nor any discrepancy has been pointed out by the defence.
10. The P.W.3 Dr. Vimal Kumar, has deposed that on 28.05.2014 he was posted at CHC Dibiyapur and at about 09:40 P.M., Hari Kishan had brought Smt. Priti Bhadauria (injured) and Sarvesh Kumar to the C.H.C. and Sarvesh Kumar was dead, whereas he examined the injured Smt. Priti Bhadauria. He has verified the injuries sustained by the injured. It has come in his cross examination that injury nos. 2, 3, 4 could not be caused by knife, whereas injury no.1 is not a punctured wound.
11. P.W.4 Dr. Om Prakash has conducted the post mortem of the deceased and has verified the injuries sustained by the deceased.
12. P.W.5 Sub-Inspector Ayodhya Prasad, is a formal witness, who has explained the steps taken during the course of investigation and as supported the prosecution case on the basis of evidence collected during the investigation. Head Constables M. Raj Narayan Singh, Geetmendra Singh, who are also formal witnesses have proved the chik report etc. P.W.7 Inspector Harpal Singh, who is a formal witness and had conducted part of investigation has supported the prosecution version.
13. The accused persons as well as appellant were confronted with the evidence collected against them during trial. Their statements under Section 313 Cr.P.C. came to be recorded wherein, he stated that he has been falsely implicated and that the evidence adduced against them is not reliable. In support thereof, testimony of D.W.1 Kathori Lal was adduced, wherein he has stated that prior to 5-¼ years back while he was sitting at his door, quarrel took place between Tinku Tiwari and Awadesh (appellant), after a short while Awadesh left the place but his brother Sarvesh (deceased) came out from his house and during the altercation, he pushed the deceased due to which he falls on cattle growing nail, which pierced his stomach. When Sarvesh was pushed, Parwati and Ramchandra were not present.
14. On the basis of the above material produced during the trial, the Court of Sessions has come to the conclusion that the guilt of the accused appellant has clearly been established beyond reasonable doubt and consequently, the accused-appellant has been convicted and sentenced in Sessions Trial No. 221 of 2014 (State Vs. Awadesh Kumar) arising out of Case Crime No. 97 of 2014 under Sections 302, 323, 324 I.P.C., Police Station Phaphund, District Auraiya, vide Judgement and order dated 24.09.2019 passed by District and Sessions Judge, Auraiya sentencing the accused-appellant to undergo life imprisonment for the offence under Section 302 I.P.C. along with fine of Rs. 25,000/- and in default in payment of fine, to further undergo imprisonment of six months, to undergo imprisonment of three months for the offence under Section 323 I.P.C. and to further undergo imprisonment of six months for the offence under Section 324 I.P.C., whereas the accused Ramchandra and Smt. Parwati have been acquitted from the charges levelled against them vide Sessions Trial No. 09 of 2015 (State Vs. Ram Chandra and another). All the sentences have been directed to run concurrently. It is this Judgement and order of conviction dated 24.09.2019 which is under challenge before this Court by the accused-appellant Awadesh Kumar.
15. Challenging the impugned Judgement and order of conviction and sentence, learned counsel for the accused-appellants submits that the Court of Sessions has erred in recording the findings of conviction and sentence against the accused-appellant inasmuch as the testimony of witnesses are not reliable and the accused-appellant has been falsely implicated. He further submits that in fact, quarrel took place between Tinku Tiwari and the appellant, later on, after a short while appellant left the place but his brother Sarvesh (deceased) came out from his house and during the altercation, Tinku Tiwari pushed the deceased due to which he fall on cattle growing nail, which pierced his stomach. Thus, perverse findings of conviction has been recorded. It is thus contended that the accused-appellant has been falsely roped in the present case therefore, he is liable to be acquitted from the charges levelled against him. Further Submission of learned counsel for the appellant is, even if the occurrence is believed to be true that the appellant had stabbed the deceased causing his death, the case may not involve ingredients of offence under Section 302 IPC. At most, the ingredients proven before the learned court below would remain confined to Section 304 IPC. He has placed reliance on Ruli Ram and another versus State of Haryana, AIR 2002 SC 3360; Rampal Singh versus State of U.P., 2012 (8) SCC 289 and a recent decision of the Supreme Court in Anbazhagan versus The State represented by the Inspector of Police, AIR Online 2023 SC 588 and also a recent decision in Devendra Shukla @ Mantu and another versus State of U.P., Criminal Appeal No.689 of 2019.
16. Per contra, learned A.G.A. for the State has opposed the contentions advanced by learned counsel for the accused-appellant and has submitted that the accused-appellant stabbed the deceased. The anti mortem injuries also show that there are stabbed wounds. He further submits that offence has been committed by the accused-appellant and the learned trial Court, after considering the evidence available on record, recorded the findings of conviction and has sentenced the accused-appellant in accordance with law. Therefore, there is no illegality or perversity in the judgement and order of conviction passed by the trial Court and warrants no interference by this Court.
17. We have heard Sri Kamlesh Kumar Tripathi, learned counsel for the appellant, Sri L.D. Rajbhar learned A.G.A. for the State and perused the material on record including the original record of the trial Court.
18. The manner in which the incident has occurred has already been noticed above. It is the specific case of the prosecution that on 28.05.2014 while distribution of jewellery amongst the family members of the informant, incident took place at the spur of the moment, which incident was reportedly seen by P.W.1 Smt. Priti and her sister P.W.2 Smt. Rachna, who have specifically stated the same version before the trial Court. Thus the allegation of stabbing is fully supported by the prosecution. The prosecution case, as supported by the testimony of P.W.1 as well as eye-witness P.W.2 during the course of trial, has been carefully perused by us. We find substance in the view taken by the Court of Sessions that these two witnesses are natural witnesses and their testimony is entirely reliable. We may also note that the inquest report and post mortem report proved that the death is homicidal on account of stabbing which resulted in causing two injuries to the deceased i.e. stabbed wound and incised wound. The Investigating Officer has also collected various material from the place of occurrence which are duly exhibited. The evidence on record therefore clearly shows that the deceased was stabbed, which resulted in his homicidal death. The manner of incident resulting in the death of the deceased has been explained by the prosecution witnesses, whose testimonies have been found to be entirely reliable. Though, learned counsel for the accused-appellant submits that these two witnesses are not reliable but we do not find any cogent reason to accept such argument. We therefore, find that it is a case of homicidal death and the prosecution by producing oral evidence of the two eye witnesses and the documentary evidence in the form of post mortem report; inquest report and other police papers have successfully established that the deceased has been stabbed by the accused-appellant. Guilt of the accused-appellant has thus been established beyond reasonable doubt. Conclusion as well as findings of the trial Court, on this score is sustained.
19. We now proceed to take up the alternate submission made on behalf of the accused-appellant that this case falls under exception to Section 300 I.P.C. and the appellant could be punished only under Section 304 I.P.C. Evidence on record clearly shows that the incident occurred in a fit of rage at the spur of the moment due to distribution of jewllery and there is no prosecution evidence to show that there was any premeditation or any definite motive of the accused-appellant to commit the murder of the deceased. It is admitted that there are two stabbed wound on the person of the deceased. In the facts and circumstances of the case, we are of the view that the incident occurred at the spur of the moment without any premeditation.
20. Fourth exception to section 300 IPC, which as under:-
"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."
21. We may also refer to the judgment of the Supreme Court in State of Uttarakhand v. Sachendra Singh Rawat, (2022) 4 SCC 227 wherein the Court examined the scope of Exception 4 to Section 300 IPC and observed as under:-
"8. In Virsa Singh [Virsa Singh v. State of Punjab, AIR 1958 SC 465 : 1958 Cri LJ 818] , in paras 16 and 17, it was observed and held as under : (AIR p. 468) "16. ... The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question.
17. It is true that in a given case the enquiry may be linked up with the seriousness of the injury. For example, if it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury. The difference is not one of law but one of fact;...."(emphasis supplied)
9. In Dhirajbhai Gorakhbhai Nayak [Dhirajbhai Gorakhbhai Nayak v. State of Gujarat, (2003) 9 SCC 322 : 2003 SCC (Cri) 1809] , on applicability of Exception 4 to Section 300 IPC, it was observed and held in para 11 as under : (SCC pp. 327-28) "11. The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of prosecution (sic 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"."
10. In Pulicherla Nagaraju [Pulicherla Nagaraju v. State of A.P., (2006) 11 SCC 444 : (2007) 1 SCC (Cri) 500] , this Court had an occasion to consider the case of culpable homicide not amounting to murder and the intention to cause death. It was observed and held by this Court that the intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances:
(i) nature of the weapon used;
(ii) whether the weapon was carried by the accused or was picked up from the spot;
(iii) whether the blow is aimed at a vital part of the body;
(iv) the amount of force employed in causing injury;
(v) whether the act was in the course of sudden quarrel or sudden fight or free-for-all fight;
(vi) whether the incident occurs by chance or whether there was any premeditation;
(vii) whether there was any prior enmity or whether the deceased was a stranger;
(viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation;
(ix) whether it was in the heat of passion;
(x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner;
(xi) whether the accused dealt a single blow or several blows."
22. That governing principle has been consistently applied in our jurisprudence in State of A.P. v. Thummala Anjaneyulu, (2010) 14 SCC 621. The intention to cause the very injury that led to the death could not be established. Consequently, the charge of murder was found not proven. Only culpable homicide not amounting to murder resulting in conviction under Section 304 IPC was proved. In that, it was observed as below :
"11. The learned counsel for the accused has, however, submitted that even assuming for a moment that the prosecution story was correct and the accused liable for conviction, it was not still a case of murder as there was no evidence to show that the accused had intended to cause the very injury which had been caused and had led to the death of the deceased and he was, therefore, liable only for a charge of manslaughter and not murder. The facts of the case undoubtedly support the argument of the learned counsel. As per the prosecution story, the deceased and the accused and the witnesses had gathered outside the house of PW 6 to organise a panchayat to settle a dispute between Kistaiah and Ramulu, who were not, in any manner, connected with either party and it was at that stage that the accused was apparently provoked by the remarks of the deceased that he should not cast an evil eye on PW 3 and Manemma on which he had suddenly taken out a knife which he was carrying and caused one injury in the chest.
12. We are of the opinion that there was no intention on the part of the accused to cause the very injury which he caused which ultimately led to the death of the deceased. The accused would thus be liable for conviction under Section 304 Part I IPC and not under Section 302 thereof. We, accordingly, allow this appeal, set aside the acquittal recorded by the High Court and convict the accused for an offence punishable under Section 304 Part I IPC and sentence him to 7 years' RI. The appeal is allowed to the above extent."
(emphasis supplied)
23. Again in Sankath Prasad v. State of U.P., (2020) 12 SCC 564, occasioned by the fact that the incident was caused at the spur of the moment and it was a fallout of an alteration, the charge under Section 302 IPC was converted to that under Section 304 Part I IPC. In that, it was observed as below :
"5. The facts, as they have emerged from the record, indicate that the incident had taken place on the spur of the moment and was a fallout of an altercation over the excavation of a mound by the brother of the appellant. This was objected to by the complainant Gaya Prasad (PW 1). The altercation resulted in the appellant going into his house and bringing out a country-made pistol. The son of the complainant deceased Uma Shanker intervened in the course of the altercation and was fired at, resulting in a single firearm injury leading to his death.
6. Having regard to the circumstances of the case, we are of the view that the conviction under Section 302 IPC should be converted to one under Section 304 Part I. We accordingly hold the appellant guilty of an offence under Section 304 Part I IPC and sentence him to imprisonment for a term of ten years." (emphasis supplied)
24. Again in Shaikh Matin v. State of Maharashtra and another, (2020) 20 SCC 402, single blow suffered by the deceased caused by heavy wooden log, the charge of murder under Section 302 IPC was converted to that under Section 304 Part I IPC. In that, Supreme Court observed as below :
"5. Taking into account the fact that the appellant-accused had delivered only a single blow but on a vital part of the body of the deceased i.e. head and that despite opportunities he had refrained/restrained himself from inflicting any further injury on the deceased we are of the view that the present is not a case under Section 302 IPC. Rather, according to us, it would be more appropriate to hold that the appellant-accused is liable for the offence under Section 304 Part I IPC. We, therefore, convert the conviction of the appellant-accused to one under Section 304 Part I IPC. As the appellant-accused admittedly has been in custody for nearly nine years now we are of the view that the ends of justice would be met if the sentence is converted to the period of custody already suffered."
25. In a recent decision of the Supreme Court in Anbazhagan Vs. The State, Represented by the Inspector of Police, 2023 SCC OnLine SC 857, the Supreme Court has again made analysis and the difference between murder and culpable homicide not amounting to murder. The Supreme Court summarized the principle as below:
"66.Few important principles of law discernible from the aforesaid discussion may be summed up thus:
(1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused. To illustrate:'A' is bound hand and foot. 'B' comes and placing his revolver against the head of 'A', shoots 'A' in his head killing him instantaneously. Here, there will be no difficulty in holding that the intention of 'B' in shooting 'A' was to kill him, though only single injury was caused. The case would, therefore, be of murder falling within Clause (1) of Section 300 of the IPC. Taking another instance, 'B' sneaks into the bed room of his enemy 'A' while the latter is asleep on his bed. Taking aim at the left chest of 'A', 'B' forcibly plunges a sword in the left chest of 'A' and runs away. 'A' dies shortly thereafter. The injury to 'A' was found to be sufficient in ordinary course of nature to cause death. There may be no difficulty in holding that 'B' intentionally inflicted the particular injury found to be caused and that the said injury was objectively sufficient in the ordinary course of nature to cause death. This would bring the act of 'B' within Clause (3) of Section 300 of the IPC and render him guilty of the offence of murder although only single injury was caused.
(2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC.
(3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is 'guilty intention,' whereas the second part would apply when there is no such intention, but there is 'guilty knowledge'.
(4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder.
(5) Section 304 of the IPC will apply to the following classes of cases : (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression 'sufficient in the ordinary course of nature to cause death' but is of a lower degree of likelihood which is generally spoken of as an injury 'likely to cause death' and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death.
To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC.
(6) The word 'likely' means probably and it is distinguished from more 'possibly'. When chances of happening are even or greater than its not happening, we may say that the thing will 'probably happen'. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death.
(7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC.
(8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack.
(9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries.
10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case.
(11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies.
(12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC."
26. Necessary ingredients to attract Ist and 4th Exception to Section 300 I.P.C., are found to be present in the facts of the present case inasmuch as death is caused; there existed no pre-meditation; it was a sudden fight; offender was deprived of self control as sudden quarrel took place on the issue of distribution of jewellery; the offender has not taken undue advantage or acted in a cruel or unusual manner. The case in hand thus falls under fourth exception to section 300 IPC.
27. In the instant case, though the appellant has caused two knife injuries but there was no premeditation and therefore in the opinion of the court, the case of the appellant does not fall under Section 302 I.P.C. rather it falls under Section 304 Part I although the trial Court has examined the facts of the case but has erred in holding the accused-appellant to be guilty of offence under section 302 IPC, inasmuch as circumstances of the case have not been correctly examined by the trial court as the sudden act of the accused appellant without premeditation, has erroneously been considered to be an act committed with an intent to commit the murder of the deceased. This part of the finding clearly overlooks the evidence on record.
28. Once that be so, we find that the offence on part of the accused appellant would at best amount to commissioning of an offence under section 304 Part I I.P.C and not under Section 302 I.P.C. The finding of the court below, that offence is proved under Section 302 I.P.C. cannot thus be sustained in view of the evidence on record and stands substituted under Section 304 (Part-I) I.P.C.
29. In view of the discussions and deliberations held, this criminal appeal is allowed in part. The conviction and sentence of the accused appellant Awadesh Kumar, vide judgment and order dated 24.09.2019, passed by the District and Sessions Judge, Auraiya under section 302 IPC, is altered and substituted under section 304 Part I IPC.
30. Coming to the quantum of sentence, we find that the accused-appellant has already undergone incarceration of quarter to 11 years and with remission undergone the incarceration of 11 years, seven months and 9 days. Considering the gravity of offence and nature of evidence, we are of the considered opinion, that sentence undergone by the accused-appellant would adequately meet the ends of justice and consequently, punishment of life imprisonment imposed upon the accused-appellant by the Court of Sessions is substituted with the punishment already undergone by the accused-appellant.
31. Pending bail application, if any stands disposed in view of final order passed in the instant appeal.
32. The accused-appellant shall be released forthwith unless he is wanted in any other case subject to compliance of Section 437-A Cr.P.C.
33. The trial Court record along with the copy of this order be transmitted to the court concerned forthwith.
Order Date :- 21.01.2025 (Dr. Gautam Chowdhary,J.) (S. D. Singh,J.)
S.Ali