Gurdin and Others vs State of U.P.

Surendra Vikram Singh Rathore, J.—1. Mr. Bhagwati Nigam, learned counsel for the appellants and Sri Yusuf Ansari, learned Additional Government Advocate were heard.

Under Challenge in the instant criminal appeal is the judgment and order dated 31.05.1982 passed by learned IIIrd Additional Sessions Judge, Hardoi, in Sessions Trial No. 513 of 1981, Police Station Kasimpur, District Hardoi under Sections 302 read with Section 34 IPC whereby all the appellants namely Gurdin, Chet Ram, Bhagwan Din and Ram Nath were convicted for the offence under Section 302/34 IPC and were sentenced to undergo imprisonment for life.

During pendency of the instant appeal the appellants Chet Ram and Ram Nath died and therefore, the appeal so far as it relates to them stood abated vide order dated 12.09.2015.

The other two appellants namely Gurdin and Bhagwan Din were on bail in the instant appeal but because of execution of the non-bailable warrants issued against them they are in jail since 09.12.2015.

Brief facts of the case are that the complainant Subba who happens to be resident of Village Kutuapur, Police Station Kasimpur, District Hardoi lodged an FIR at Police Station Kasimpur, District Hardoi on 13.04.1981 at 13:45 hours alleging therein that there was some enmity between the complainant side and the appellants side and on 18.04.1981 at about 6:00 a.m. the deceased Shanti Devi alongwith Rukhmini (PW-2) wife of complainant''s brother was going towards south of the village, at the pond to attend the call of nature. When both these ladies reached in front of the house of appellant Gurdin, his wife started abusing Shanti Devi. At this exchange of abuses took place. Hearing the noise, all the four accused persons namely Ram Nath, Gurdin, Chet Ram and Bhagwan Din came to the place of occurrence armed with lathis chased Shanti Devi. Shanti Devi and Rukhmani ran towards their house. All the accused persons chased them. When she (Shanti Devi) reached near her Neem tree then all the accused persons started beating her with lathis. Hearing the noise raised by Shanti Devi and Rukhmani complainant his brother Ram Dularey and other persons also reached there and challenged the accused persons due to which they ran away leaving Shanti Devi in injured condition who became unconscious. Thereafter, Ram Dularey went to Dilawar Nagar to make arrangement of a bullock cart and another brother Hori Lal was sent to Pitaria to call the doctor for treatment of Shanti Devi. The doctor after his arrival informed him that he was helpless to treat her and by the time, bullock cart reached from Dilawar Nagar, Shanti Devi died. The complainant got the FIR of this case scribed by Ram Dularey and took it to the police station where the same was lodged at 1:45 p.m. naming all the four accused persons.

After registration of the case the investigation proceeded and inquest proceedings were conducted and the dead body of the deceased was sent for postmortem which was conducted on 19.04.1981 at about 1:00 p.m. and following ante mortem injuries were reported on the body of deceased Shanti Devi:--

"(i) Contusion in whole upper and lower eye lids of right eye.

(ii) Traumatic swelling 8 cm x 8 cm above and other aspect of right eye.

(iii) Traumatic swelling 5 cm x 3 cm 5 cm above the right ear.

(iv) Contusion 6 cm x 2.5 cm on right shoulder.

(v) Contusion 15 cm x 8 cm on the upper part of right side of back below and behind the shoulder.

(vi) Contusion 16 cm x 15 cm on right side of back on middle third.

(vii) Contusion 20 cm x 20 cm on the right buttock.

(viii) Multiple abrasions with contusions 16 cm x 3 cm in the middle of back.

(ix) Contusion 8 cm x 2 cm on left side of back in middle third.

(x) Abrasion with contusion 18 cm x 16 cm on left buttock.

(xi) Abrasion 6 cm x 2 cm in upper part of back in the middle.

(xii) Contusion 16 cm x 7 cm 8 cm below knee on the left leg.

(xiii) Contusion 10 cm x 6 cm 8 cm below knee on right leg.

(xiv) Abrasion 2 cm x 0.25 cm on left leg 10 cm below knee.

(xv) Abrasion 0.5 cm x 0.5 cm on right leg 4 cm below knee.

(xvi) Abrasion 3 cm x 1 cm on back of right fore arm 9 cm below elbow.

(xvii) Abrasion 0.5 cm x 0.25 cm on back of middle phalinx of right ring finger.

(xiii) Abrasion 0.5 cm x 0.25 cm on front of right wrist.

(xiv) Abrasion 2.5 cm x 0.25 cm on front of left wrist.

(xv) Abrasion 0.5 cm x 0.25 cm on dorsum of left foot.

(xvi) Abrasion 2 cm x 1 cm on both sides of uerathara."

In the opinion of the doctor the cause of death was shock and haemorrhage due to ante-mortem injuries.

The place of occurrence was inspected and its site plan was prepared and broken pieces of bangles were taken into custody and its memo was prepared and after completing the investigation charge-sheet was filed against all the four named accused persons.

The defence of the appellants was that they have been falsely implicated in this case due to enmity and the FIR has been lodged against them after due consultation. It was pleaded in defence that the deceased Shanti Devi was subjected to sexual intercourse and she was seen indulged in sexual intercourse by the complainant due to which she has been done to death and the appellants have been falsely implicated in this case.

No oral evidence in defence has been adduced on behalf of the appellants.

On behalf of the accused Chet Ram some documents were filed in his defence on the point of enmity.

After appreciating the evidence on record the learned trial court has convicted the appellants as above, hence, the instant appeal.

In order to prove its case the prosecution has examined PW-1 Subba, PW-2 Rukhmani, PW-3 Dina, as witnesses of fact, PW-4 Sri Ram Patil, S.I. the Investigating Officer of this case, PW-5 Narendra Kumar Singh, Constable he is a formal witness and career of the dead body, PW-6 Dr. S.D. Gupta, who has conducted the postmortem on the body of the deceased.

Submission of the learned counsel for the appellants was that even if the entire case of the prosecution is taken to be true even then the offence would not travel beyond the purview of Section 304 part I IPC because it is nowhere the case of the prosecution that there was any prior intention or premeditation to commit this offence. The incident has taken place on the spur of the moment and therefore, learned counsel for the appellants has not challenged that the case of prosecution is not proved but his submission is that offence would be only under Section 304 Part I IPC. Learned counsel has restricted his argument only on the point of sentence as the incident has taken place all of a sudden without any premeditation and no deadly weapon was used and only two injuries appears to be the cause of death and all other injuries were simple in nature. It has also been argued that this aspect of the case was not considered by the learned trial court.

Learned Additional Government Advocate has submitted that the learned trial court has rightly relied upon the evidence of all the three eye witnesses which stood corroborated by the medical evidence. Regarding the argument advanced by learned defence counsel, learned AGA has to some extent conceded the said submission.

Perusal of the impugned judgment shows that learned trial court has also considered the motive aspect of this case. The opinion expressed by the learned trial court on the point of motive was correct but since the conviction has not been challenged and keeping in view the fact that there is direct evidence of this offence so the motive part takes a back seat. The three eye witnesses have supported the case of the prosecution and their evidence stands corroborated by the medical evidence. Learned trial court has also considered the defence theory and has rightly discarded it. To repeat the said ground again in this judgment would unnecessarily make this judgment lengthy without any fruitful purpose. From the evidence it is clear that all the four accused persons caused injuries to Shanti Devi which ultimately proved fatal. A careful scrutiny of the prosecution evidence makes it abundantly clear that there is absolutely no allegation that the complainant side had any intention to kill the deceased. It was all of a sudden that the exchange of abuses took place when the deceased alongwith Rukhmani was going to attend the call of nature. She was chased by the accused persons and given blows with lathis. Perusal of the injuries sustained by the deceased shows that almost half of the injuries were only bruises or abrasions and only injury nos. 2 and 3 appears to be the cause of death as the same was around right eye. No blow with heavy force was given on the head. It is nowhere clear from the prosecution evidence as to who was the author of the fatal blow. Neither the doctor could specify as to which injury ultimately proved fatal. He has rather given a different opinion that all the injuries caused to the deceased were sufficient in the ordinary course of nature to cause death. Thus it is clear from perusal of the evidence that all the accused persons, though have caused the injuries to the deceased, but the prosecution could not specify as to who has given the fatal blow to the deceased and which injury ultimately proved fatal. It is nowhere the case of the prosecution that any deadly weapon was used in the instant offence. Admittedly, the incident has taken place on the spur of the moment and there was hurling of abuses from both the sides.

Before proceeding further we would like to discuss the law on the point whether in such circumstances the offence committed by the appellants would fall within the purview of Section 302 IPC or Section 304 part I IPC. We have considered the relevant provision of law. Exception 4 of Section 300 IPC which reads 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.

Explanation--It is immaterial in such cases which party offers the provocation or commits the first assault."

Now we will have to consider the legal position. Before proceeding further in the matter, we would like to consider the law on this point. In the case of Jhaptu Ram v. State of Himachal Pradesh reported in , (2014) 12 Supreme Court Cases 410 Hon''ble the Apex Court in paragraph No. 7 has held as under:--

"7.............. There is no iota of evidence to show that there was any prior intention of the Appellant to kill the deceased. As per the medical and ocular evidence, there was only gun shot fired by the Appellant which proved to be fatal for deceased. More so, the prosecution failed to marshal any evidence to show that the gun was in his hand when the deceased entered his house. In such peculiar facts and circumstances of the case, we agree with the submissions advanced by Shri Sreyas, learned Counsel for the Appellant."

In the case of Sridhar Bhuyan v. State of Orissa reported in , (2004) 11 SCC 395, which reads as under:--

"7. For bringing in operation of Exception 4 to Section 300 Indian Penal Code, 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.

The fourth exception of Section 300 Indian Penal Code 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 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 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 in Exception 4 to Section 300 Indian Penal Code is not defined in Indian Penal Code. 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 a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage".

(underlined by us)

In the case of Chenda alias Chandaram v. State of Chhattisgarh reported in , (2013) 12 Supreme Court Cases 110, Hon''ble the Apex Court in paragraph No. 23 has held as under:--

"23. Having regard to the parameters indicated in Gurmukh Singh case , (2009) 15 SCC 635, the offence seems to fall under the second part. There is no evidence of motive or previous enmity. The incident has taken place on the spur of the moment. There is no evidence regarding the intention behind the fatal consequence of the blow. There was only one blow. The accused is young. There was no premeditation. The evolution of the incident would show that it was in the midst of a sudden fight. There is no criminal background or adverse history of the Appellant. It was a trivial quarrel among the vi lagers on account of a simple issue. The fatal blow was in the course of a scuffle between two persons. There has been no other act of cruelty or unusual conduct on the part of the Appellant. The deceased was involved in the scuffle in the presence of his wife and he had actually been called upon by her to the spot so as to settle the score with the accused persons. The deceased had, in the scuffle, overpowered the first accused. That first accused was acquitted."

In the case of Budhi Singh v. State of Himachal Pradesh reported in , (2012) 13 Supreme Court Cases 663, the facts were that the appellant gave two repeated blows on the head with a small axe, which resulted into the death of the deceased. In the circumstances in which the offence was committed, it was held that it was not premeditated and had taken place on the spur of moment and in this background, Hon''ble the Apex Court in paragraph No. 26 has held as under:--

"26. Thus, in the facts of the present case, a sudden and grave provocation took place which would bring the offence within the ambit of exception 1 of Section 300 Indian Penal Code and hence Under Section 304 Part I Indian Penal Code as the accused had caused such bodily injury to the deceased which, to his knowledge, was likely to cause death as he had inflicted injuries on the head of the deceased. Having held the accused guilty of an offence Under Section 304 Part I Indian Penal Code, we award the sentence of 10 years rigorous imprisonment and to a fine of Rs. 5,000/- in default thereto to undergo further imprisonment of six months."

In the case of Sudhakar v. State of Maharashtra reported in , (2012) 9 Supreme Court Cases 725, the case was of giving a single blow of knife without premeditation and Hon''ble the Apex Court has observed that the offence would fall under Section 304 Part I Indian Penal Code.

In the case of Rampal Singh v. State of Uttar Pradesh reported in , (2012) 8 Supreme Court Cases 289, Hon''ble the Apex Court has considered the legal aspect as to when culpable homicide would amount to murder and when it would not amount to murder. Hon''ble the Apex Court has held in paragraph No. 22 as under:--

"22. Thus, where the act committed is done with the clear intention to kill the other person, it will be a murder within the meaning of Section 300 of the Code and punishable under Section 302 of the Code but where the act is done on grave and sudden provocation which is not sought or voluntarily provoked by the offender himself, the offence would fall under the exceptions to Section 300 of the Code and is punishable under Section 304 of the Code. Another fine tool which would help in determining such matters is the extent of brutality or cruelty with which such an offence is committed."

Reference may also be made to the pronouncement of Hon''ble Apex Court in the case of Ram Kishan v. State of Maharashtra reported in , (2007) 3 Supreme Court Cases 89 Hon''ble the Apex Court in paragraph nos. 8 to 11 has held as under:--

"The assault undisputedly was given on the course of the sudden quarrel, without pre-mutation and without the accused taking any undue advantage. Learned counsel for the respondent-State supported the judgment of the High Court.

The Fourth Exception of Section300 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 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 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.

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 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''.

Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is out of all proportion, that circumstance must be taken into consideration to decide whether undue advantage has been taken. In Kikar Singh v. State of Rajasthan reported in , 1993 Cri LJ 3255 it was held that if the accused used deadly weapons against the unarmed man and struck a blow on the head it must be held that using the blows with the knowledge that they were likely to cause death, he had taken undue advantage.

The above position was highlighted by this Court in Babulal Bhagwan Khandare and Anr. v. State of Maharashtra reported in , (2005) 10 SCC 404."

Keeping in view the aforementioned pronouncement of Hon''ble Apex Court, when we examine the facts of the instant case, then the conclusion is irresistible that there was absolutely no prior intention, prior planning of the appellant to commit such offence. It is an offence committed without any prior intention, in the spur of moment and because of provocation which was the result of abuses between the ladies of two sides.

Keeping in view the aforesaid legal pronouncement, since the incident of this case has taken place on the spur of the moment and the offence was not premeditated or preplanned, no undue advantage of such provocation was taken. Appellants had not acted in any cruel or unusual manner. No deadly weapon was used and blows were not aimed on head. So in our considered view, the offence committed by the appellants, in this perspective, would not travel beyond the purview of Section 304 part I IPC. The incident is about 35 years old. It is also not clear as to who was the author of the fatal injury caused to the deceased.

Accordingly this appeal deserves to be partly allowed and is hereby partly allowed. The conviction of the appellants Gurdin and Bhagwan Din under Section 302 read with section 34 IPC is hereby modified to Section 304 part I IPC and their sentence for life imprisonment is modified to a period of five years rigorous imprisonment. Appellants-Gurdin and Bhagwan Din are in custody. They shall serve out their remaining part of sentence as modified by this Court.

Office is directed to communicate this order forthwith to the court concerned and to send back the lower court record to ensure compliance.