Khushi Ram vs State of U.P.

Surendra Vikram Singh Rathore, J.—1. Mr. Ashid Ali, learned counsel for the appellant and Mr. Umesh Verma, learned A.G.A. for the State were heard at length.

Under challenge in the instant criminal appeal is the judgment and order dated 10.06.2003 passed by Additional Sessions Judge/Fast Track Court No. 6, Lucknow, in Sessions Trial No. 814 of 2002, Police Station Bakshi Ka Talab, District Lucknow whereby the present appellant Khushi Ram was convicted for the offence under Section 302 IPC and was sentenced with imprisonment for life and also with fine of Rs. 5,000/- with default stipulation of six months'' additional imprisonment. However, he was acquitted of the charges under Sections 147, 148, 504and 506 IPC. The other accused persons except Girdhari were acquitted of the charges levelled against them and the case of accused Girdhari was abated during trial because of his death.

In brief, the case of the prosecution was that on 16.02.2002 at about 09.00 PM Becha Lal (deceased) was going from his house towards north of the village through kharanja road. Near the said kharanja road towards west of the house of accused Girdhari his cow was tied with a stake. The said cow ran to hit Becha Lal then he gave a blow of ''danda'' to the said cow. On this incident, the daughters of Girdhari namely Mendhaki and Katahi started abusing the father of the complainant. They were asked by the deceased to stop abusing. On this, all the accused persons armed with lathi and appellant Khushi Ram armed with harpoon (Ballam) surrounded the deceased and appellant Khushi Ram gave a blow of harpoon (Ballam) to the deceased. The deceased raised an alarm and because of injury, he died on the spot. The incident is alleged to have been seen by the witnesses in the light of electric bulb. The deceased was given blow of harpoon (Ballam) by the present appellant while he was entering in the house of Ram Naresh. Complainant Chandra Shekhar got the first information report of this case scribed by Suresh Kumar Srivastava and it was registered at the police station on the same day at 2235 hours.

After registration of the case, investigation proceeded, inquest proceedings were conducted and after completing the necessary formalities, the dead body was sent for postmortem, which was conducted on 17.06.2002 at 12.30 PM at BRD Hospital, Lucknow. As per postmortem report, the duration of death was about one day and following ante-mortem injuries were reported by the doctor on the person of the deceased:-

"(i) Abraded contusion 2.0 x 2.0 cm present on the right cheek.

(ii) Abraded contusion 4.0 x 2.5 cm present on the left shoulder.

(iii) Stab wound of 3.0 x 1.0 cm on chest, cavity deep present on outer aspect of left side chest 3.0 cm lateral to nipple. Abraded contusion 1.5 x 1.0 cm each present on both upper and lower margins of wound. In the opinion of the doctor, the cause of death was shock and hemorrhage as a result of ante-mortem injuries."

During investigation, on 18.06.2002 the accused Khushi Ram was arrested by the police party and on his pointing out the weapon of offence was recovered and its separate recovery memo was prepared. From the place of occurrence blood stained earth as well as plain earth was also taken into custody and its memo was prepared. The place of occurrence was inspected and site plan was prepared.

After completing the investigation, charge sheet was filed.

The case of the defence was of total denial and their false implication because of enmity due to litigation of agricultural land. It was stated in the statement under Section 313 Cr.P.C. that unknown miscreants were called by the complainant side who had beaten the appellant side and because of mistake, those unknown miscreants caused death of the deceased in the dark and they have been falsely implicated.

In order to prove its case, the prosecution has examined PW-1 Chandra Shekhar - the complainant and eyewitness of this case, PW-2 Ram Naresh - an eyewitness of this incident, PW-3 Santosh Kumar- another eyewitness of this incident, PW-4 Suresh Kumar Srivastava - scribe of the first information report and also a witness of inquest report, PW-5 Arvind Kumar Srivastava - also an eyewitness of the incident, PW-6 Dr. V.B. Pathak, who has conducted postmortem on the body of the deceased, PW-7 Suresh Chandra, Sub- Inspector, who had arrested the appellant on 18.06.2002 and had made recovery on his pointing out, and PW-8 Vijay Narain Pandey - Investigating Officer of this Case.

No oral evidence in defence was adduced on behalf of the appellant.

After evaluating the evidence on record, learned trial court has convicted the appellant, as above. Hence, the instant criminal appeal.

Submission of learned counsel for the appellant was that he does not intend to press this appeal on merits. He has restricted his argument only on the point that the case of the prosecution would not travel beyond the purview of Section 304 Part I IPC because the incident had taken place on the spur of moment. It was not a pre-intended or pre-meditated act of the appellant. Only one blow of harpoon (Ballam) is alleged to have been given by the appellant. All other accused persons have been acquitted and therefore the offence would not travel beyond the purview of Section 304 Part I IPC and for the said offence punishment deserves to be reduced.

Learned A.G.A. has submitted that in the instant case the recovered weapon was found to be stained with human blood. There was sufficient eyewitness account to connect the appellant with the instant offence. He has taken absolutely false defence which is not supported by any evidence. However, he has admitted that the incident had taken place on the spur of moment because of trivial issue which resulted into this unfortunate incident.

Though learned counsel for the appellant has not challenged the conviction of the appellant and has restricted his argument only on the point that the offence would fall within the purview of Section 304 Part I IPC but in spite of that being the Court of first appeal we have gone through the entire evidence. After careful scrutiny of the evidence, we are of the considered view that all the witnesses of fact have made specific allegation against the present appellant that he gave blow of harpoon (Ballam) to the deceased which resulted in his instantaneous death. So the evidence stands fully corroborated by the medical evidence. The abraded contusions may be the result of fall after receiving the injuries but it is only one blow of deadly weapon i.e. harpoon (Ballam) which proved fatal. So the prosecution was successful in proving its case.

Now the sole point that remains to be considered is whether keeping in view the circumstances in which the offence has been committed, the offence would fall within the purview of Section 302 I.P.C. or it would fall within the purview of 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 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 State of Madhya Pradesh v. Shiv Shankar reported in , (2014) 10 Supreme Court Cases 366, 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 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 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 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."

In the case of Jhaptu Ram v. (supra) the facts were that an altercation took place between the appellant and his son. The accused fired at the deceased. Receiving gun shot injury, he fell down and died. In this background, Hon''ble the Apex Court converted the conviction of the appellant under Section 304 Part I I.P.C. and awarded sentence of ten years rigorous imprisonment and also with a fine of Rs. 5,000/-.

In the case of Rampal Singh (supra) the facts of that case were that there was no previous enmity between the two parties. The dispute between them was regarding certain construction made by the deceased on his land to prevent garbage from being thrown at his open land. Heated exchange of words took place between two sides. In the state of anger accused brought his rifle from his house went on the roof of a nearby house and fired with his rifle, which resulted into the death. In that facts circumstances, Hon''ble the Apex Court held that offence would fall under Section 304 Part I I.P.C. and a sentence of ten years rigorous imprisonment with fine of Rs. 10,000/- was awarded.

Now, in the aforementioned legal background, the facts of the instant case have to be considered. It is no where the case of the prosecution that the appellant had any prior intention or planning to commit this offence. The deceased was going towards north of the village when all of a sudden the cow of the appellant ran to hit him and this was the reason due to which this unfortunate incident occurred. Since the deceased had given a blow of danda to the cow due to which hurling of abuses started and the appellant came to the place of occurrence armed with harpoon (Ballam) and only one blow was given to the deceased which proved fatal. Thus, by no stretch of imagination it can be said that it was an intended act of the appellant. The incident had taken place on the spur of moment without any prior planning. So, it cannot be presumed that it was an intentional act of the appellant to cause death of the deceased. No undue advantage of sudden provocation was taken by the appellant. So we are of the considered view that the offence committed by appellant would not travel beyond the purview of Section 304 Part I I.P.C. Therefore, in our considered opinion, a sentence of twelve years rigorous imprisonment with a fine of Rs. 20,000/- would be adequate sentence.

Thus, the appeal deserves to be partly allowed.

The appeal is hereby partly allowed. The conviction of appellant Khushi Ram is hereby modified from Section 302 I.P.C. to Section 304 Part I I.P.C. and sentence of imprisonment for life is hereby modified with rigorous imprisonment for a period of twelve years and also with fine of Rs. 20,000/- with default stipulation of six months'' additional imprisonment. Appellant Khushi Ram is in custody. He shall serve out the sentence as modified by this Court. The period of detention already undergone by appellant in the instant offence shall be set off in accordance with the provisions of Section 428 Cr.P.C.

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