Kamlesh Mallah and Others vs State of U.P.

Surendra Vikram Singh Rathore, J.—Smt. Soniya Mishra, Advocate holding brief of Sri Rajiv Mishra, learned counsel for the appellants and Sri Sharad Dixit, learned Additional Government Advocate were heard.

Since both these appeals i.e. (Criminal Appeal No. 1875 of 2003-Kamlesh Mallah) and (Criminal Appeal No. 1874 of 2003-Munshi V State of U.P.) arise out of a common judgment, therefore, the same are being disposed of with a common judgment.

Criminal Appeal No. 1874 of 2003 has been preferred by the appellant-Munshi and Criminal Appeal No. 1875 of 2003 has been preferred by the appellant Kamlesh Mallah challenging the judgment and order dated 30.10.2003 passed by learned Additional Sessions Judge, Court No. 5, Unnao, in Sessions Trial No. 166 of 2002, arising out of Case Crime No. 297 of 2001, Police Station Safipur, District Unnao, whereby the appellant Kamlesh Mallah was convicted for the offence under Section 302 IPC and was sentenced with imprisonment for life and also with fine of Rs. 5000/- with default stipulation of one year rigorous imprisonment. Appellant Munshi was convicted for the offence under Section 307 IPC and was sentenced with rigorous imprisonment for a period of five years and also with fine of Rs. 5000/- with default stipulation of six months additional imprisonment. Both the sentences were directed to run concurrently.

However, the appellant Munshi was acquitted of the charge under Sections 147 , 148 and 302 read with 149 IPC. Alongwith aforesaid two appellants three more accused persons namely Durga, Sundar and Manoj were also tried in the same session trial. However, they have been acquitted of all the charges levelled against them.

In brief, the case of the prosecution was that Munshi Lal lodged an FIR at Police Station Safipur, District Unnao, at 2:00 p.m. alleging therein that on 15.11.2001 he alongwith his cousin Dhani Ram and one Murli who happens to be son of his "Bua" (father''s sister) was coming back from his pond of water caltrop (Singhara). It was 12 in the noon when these persons reached behind the house of Mulla Mallah situated in Gangadeen purwa then both the appellants alongwith three accused persons who have been acquitted were standing there. These accused persons started abusing Dhani Ram and Durga said when his son had plucked water caltrop (Singhara) from his pond then why he was stopped. Dhani Ram told him that he had spread insecticide in the pond and the water caltrop (singhara) creeper was of the last year. Hearing this reply the accused persons felt provoked and started abusing the complainant side and on the exhortation of Durga, Sundar and Manoj appellant Kamlesh Mallah fired with his 315 bore half barrel gun on Dhani Ram which hit on the right side of his chest due to which he fell down. Appellant Munshi is alleged to have fired from a similar weapon which he was carrying which hit on the right arm of injured Murli. On the alarm raised by the complainant side, Lallu, Roop Lal and others reached there and accused persons ran away from there. On the basis of this FIR the case was registered and investigation proceeded. Inquest proceedings were conducted and place of occurrence was inspected and after completing other formalities dead body was sent for postmortem. The postmortem on the body of the deceased was conducted on 16.11.2001 at 2.10 p.m. and following ante-mortem injuries were found on his person:

"(a) Fire arm wound of entry 1 cm x 2.5 meter on right side just 3 cm from nipple at 2 O''clock position, blackening present margins everted.

(b) Fire arm wound of exit left side back 3 cm from middle of inner part of left scapula size 3 cm x 2.5 cms. Margins everted."

In the opinion of the doctor, the cause of death was shock and haemorrhage due to fire arm injury.

Injured Murli was also medically examined on 15.11.2002 at 9.20 p.m. and following ante-mortem injury was reported in his medical examination report.

"(a) Gun shot wound of entry 1.5 cm x 1.5 cm x depth no probed on lateral right upper arm below right shoulder joint. Injury was kept under observation and X-ray of right upper arm was advised."

Injury was reported to have been caused by fire arm and duration was about half day old.

After completing the investigation the charge-sheet was filed against both the appellants.

The case of the appellants according to the suggestions given to the witnesses and by the statement of the accused persons under Section 313 Cr.P.C. was of total denial and of their false implication because of enmity.

In order to prove its case the prosecution has examined PW-1 Munshi Lal, a witness of fact and the complainant of this case, PW-2 Murli, an injured witness of this incident who has sustained injury on right upper arm, PW-3 Dr. V.S. Nigam, who has medically examined PW-2 Murli, PW-4 Dr. Sanjeev Ahooja, who has conducted the postmortem on the body of the deceased, PW-5 Constable Ram Shankar Sonkar, who has prepared the chik report and G.D. Of this case, PW-6 S.I. J.P. Singh, the Investigating Officer of this case, PW-7 Sri Vijay Singh Solanki, S.I. who had prepared the inquest report under the supervision of Investigating Officer, PW-8 Tej Bahadur Singh, Initial Investigating Officer of this case who has taken charge from 31.12.2001 and had filed charge-sheet.

No evidence in defence was produced on behalf of the appellants.

After appreciating the evidence on record, the trial court has convicted the appellant as above. Hence these instant appeals.

Submission of the learned counsel for the appellants was that they do not intend to challenge that the case of the prosecution is not proved. But their contention is that even if the case of the prosecution is taken to be proved even then the offence committed by the appellant Kamlesh Mallah would not travel beyond the purview of Section 304 part I IPC. Regarding appellant Munshi it has been argued that since the injury was caused on non-vital part of the body and the doctor has not stated that the said injury was dangerous to life, therefore, the offence committed by the appellant Munshi would not travel beyond the purview of Section 324 IPC. Learned counsel for the appellants have restricted their arguments only to this extent.

Learned Additional Government Advocate has submitted that in this case both the eye witnesses of this incident have fully supported the case of the prosecution. Their evidence stands fully corroborated by the medical evidence. The accused persons could not lead any evidence or bring on record any circumstance to show that they have been falsely implicated in this case. It has also been argued that the presence of injured PW-2 Murli can not be denied and his evidence is wholly reliable.

Admittedly, in this case the acquittal of the three accused persons has not been challenged on behalf of the State. Though the finding of fact has not been challenged during course of arguments but inspite of that, being the court of first appeal, we have gone through the entire evidence and also the impugned judgment. It transpires from the perusal of the evidence and the judgment that both the witnesses of fact in their deposition have fully supported the case of the prosecution and their testimony stands fully corroborated by the medical evidence. The learned trial court has considered all the grounds which were raised before the learned trial court in correct perspective. But the learned trial court has not considered the aspect which has been pressed into service before this Court that the offence would not travel beyond the purview of Section 304 part I IPC so far as it relates to appellant Kamlesh Mallah and regarding other appellant Munshi it would not travel beyond the purview of section 324 IPC. Keeping in view the submissions of the learned counsel for the appellants and keeping in view the evidence on record we are of the considered view that the prosecution was successful in proving its case beyond reasonable doubt.

Now the sole point which remains to be considered is as to what offence shall be made out against the appellants on the basis of proven facts. So far as the case of appellant Munshi is concerned, much discussion is not needed, because the injury to injured Murli was on non-vital part of the body. He was advised X-ray but there is no supplementary report. Apart from it, perusal of the evidence shows that PW-3 Dr. V.S. Nigam has nowhere stated that the injury caused to Murli was dangerous to life. It is strange to note that no such question was put to this witness by the public prosecutor. So in our considered opinion the offence committed by the appellant Murli would not travel beyond the purview of Section 324 IPC and the learned trial court has committed error in convicting him for the offence under Section 307 IPC.

So far as the appellant Kamlesh Mallah is concerned, it has come in evidence that the complainant side was coming back from their caltrop (singhara) pond and some altercation took place between two groups which ended with this unfortunate incident. On the strength of this fact situation the submission of the learned counsel for the appellants was that this case would fall under Section 304 part I IPC. It is submitted that there is no premeditation or prior intention to commit the offence as the incident has taken place on the spur of the moment due to sudden provocation.

Now the sole point that remains for our consideration is whether keeping in view the circumstances in which this incident took place, the offence would fall within the purview of Section 302 I.P.C. or it will be an offence under Section 304 Part I I.P.C.

Before proceeding further in the matter, we would like to consider the law on this point. In the case of Jhaptu Ram Vs. State of Himachal Pradesh, 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 ki l 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 State of M.P. Vs. Shivshankar, , the death was caused by a firearm and in the facts of that case, the appellant has been convicted under Section 302 I.P.C. while altering the finding of the High Court, Hon''ble the Apex Court has considered the law on this point in detail. Hon''ble the Apex Court was of the view that where the accused gets time to cool down his passion and thereafter commits an offence then the same would fall within the ambit of Section 302 I.P.C. Hon''ble the Apex Court in paragraph No. 12 of the said judgment has quoted paragraph No. 7 of its earlier judgment in the case of Sridhar Bhuyan Vs. State of Orissa, , 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 @ Chanda Ram Vs. State of Chhatisgarh, , Hon''ble the Apex Court in paragraph No. 23 has held as under:--

"23. Having regard to the parameters indicated in Gurmukh Singh Vs. State of Haryana, , the offence seems to in l 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 villagers on account of a simple issue. The fatal blow was in the course of a scuffle between two persons. There has been no other act of cruelty or unusual conduct on the part of the Appellant. The deceased was involved in the scuffle in the presence of his wife and he had actually been ca led 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 Vs. State of H.P., , 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 Vs. State of Maharashtra, , 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 Vs. State of U.P., , 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."

Now on the touchstone of aforementioned legal position the facts of this case have to be considered. A bare perusal of the case of the prosecution makes it abundantly clear that by no stretch of imagination it can be said that there was any prior intention or pre-meditation to commit this offence. It was only by a chance when the complainant side was coming back from their caltrop (Singhara) pond they met the complainant side and because of a trivial issue altercation and abusing took place and in the said heat of moment, appellant Kamlesh Mallah fired at the deceased Dhani Ram from a very close range which hit on his chest and caused his death. It is nowhere the case of the prosecution that the appellant Kamlesh Mallah made any effort to repeat the blow. Only one entry wound was found on the body of the deceased. Thus no undue advantage of such sudden provocation or heat of passion was taken by the accused. Heat of passion requires that there must be no time for passion to cool down and in this case it was only during the altercation and hurling of abuses that the appellant Kamlesh Mallah fired. Thus there was virtually no time for the appellant Kamlesh Mallah to cool down. 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.

The evidence on record clearly established that there was altercation and hurling of abuses between the parties on the point of plucking of caltrop (Singhara) and refusal of the complainant side to pluck the caltrop (Singhara) and during this course of altercation the appellant Kamlesh Mallah is alleged to have fired which hit Dhani Ram deceased causing his instantaneous death. Firing on a person from a close range definitely imputes a knowledge to the accused that his act is likely to cause death but there is fine distinction under law, when the knowledge is coupled with intention and when the knowledge is not coupled with any intention. Thus if there is intent and knowledge then the same would be a case of Section 302 IPC and if it is only a case of knowledge and not intention to cause murder and bodily injury then the same would fall under Section 304 IPC only.

It appears that the trial court was also of the view that unlawful assembly was not established due to acquittal of three other accused persons, therefore, he has convicted the appellants for their individual acts.

Since the appellant Kamlesh Mallah without any prior intention on a sudden fight has fired on the deceased from a very close range and caused his death, therefore, keeping in view the peculiar facts situation of this case the offence committed by him would fall under Section 304 part I IPC and in our considered opinion sentence of 14 years would be appropriate sentence.

So far as appellant Munshi is concerned, we have already expressed our view that the offence committed by the appellant Munshi would fall under Section 324 IPC and the sentence of 2 years rigorous imprisonment would be sufficient for the said offence.

Accordingly these appeals i.e. (Criminal Appeal No. 1875 of 2003-Kamlesh Mallah) and (Criminal Appeal No. 1874 of 2003-Munishi V State of U.P.), deserve to be partly allowed and are hereby partly allowed.

In Criminal Appeal No. 1875 of 2003, the conviction of the appellant Kamlesh Mallah is hereby modified from Section 302 IPC to Section 304 part I IPC and his sentence of imprisonment for life is hereby reduced to a period of 14 years. The appellant Kamlesh Mallah is in custody. The period already undergone by the appellant in the instant case shall be set off in his sentence in accordance with the provisions of Section 428 Cr.P.C.

In Criminal Appeal No. 1874 of 2003, the conviction of the appellant Munshi is hereby modified from Section 307 IPC to Section 324 IPC and his sentence of 5 years rigorous imprisonment is hereby reduced to a period of two years rigorous imprisonment. Appellant Munshi is on bail. His bail is cancelled. He shall be taken into custody to serve out remaining part of his sentence as modified by this Court. The period already undergone by the appellant Munshi in the instant case shall be set off in his sentence in accordance with the provisions of Section 428 Cr.P.C.

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