MANOJ KUMAR vs THE STATE OF HIMACHAL PRADESH

NAME OF THE ACCUSED,SECTIONS,PUNISHMENT

All the accused,302 r/w. 149 of IPC,"Imprisonment for life and fine of Rs. 10,000/- each. In case of default in

payment of fine, each one of them would be liable to suffer further

imprisonment of two years.

All the accused,147 of IPC,"Rigorous imprisonment for a period of six months and fine of Rs. 1000/-

each. In case of default in payment of fine, each one of them would be

liable to suffer further imprisonment of two months.

All the accused,148 of IPC,"Rigorous imprisonment for a period of six months and fine of Rs. 1000/-

each. In case of default in payment of fine, each one of them would be

liable to suffer further imprisonment of two months.

All the accused,323 r/w. 149 of IPC,"Rigorous imprisonment for a period of six months and fine of Rs. 1000/-

each. In case of default in payment of fine, each one of them would be

liable to suffer further imprisonment of two months.

All the accused,"341 r/w, 149 of IPC","Simple imprisonment for one month and fine of Rs. 500/- each. In

default of payment of fine, each one of them shall undergo simple

imprisonment for a period of seven days more.

No. 2 can be caused by striking with sharp-edged object but it depends on force and speed. … I have not mentioned the depth of the scalp injury in,,

post mortem report. It is correct that without ascertaining the depth of the scalp injury, it was not possible to opine that it was grievous injury.",,

17.PW-12 (Jeewan), son of the deceased is stated to be an eye witness to the alleged incident. He has repeated the prosecution story in entirety to the",,

effect that in the presence of himself, Yashwant Singh (PW-13) and Narso Ram (DW1), the accused-party suddenly attacked the deceased. When",,

Yashwant Singh intervened to save the deceased, he was also beaten up by the accused party. As the accused were rushing towards PW-12",,

(Jeewan), he ran from the spot. While running he turned back and saw deceased (after receiving multiple injuries including a head injury), Yashwant",,

Singh and Narso Ram were running from the spot. With respect to the treatment, he states that the deceased was taken to the PHC Sihunta wherein",,

he was preliminarily treated and referred further to the Hospital at Dharmashala. As the deceased was not responding, he was brought back to the",,

PHC Sihunta, wherein he was declared dead.",,

18.Another important witness, who was alleged to have been present at the scene of the crime, is PW-13 (Yashwant Singh). He has re-iterated the",,

prosecution story. It may be noted that this witness has specifically stated that the deceased was taken back to the home after taking treatment at,,

PHC Sinhunta. As the condition of the deceased worsened thereafter, he was brought back to the PHC Sinhunta, wherein he was declared as brought",,

dead.,,

19.Having observed the prosecution evidence, we need to concentrate on the defense witness. DW1 â€"Narso Ram was in fact a prosecution",,

witness initially and even according to the prosecution theory, DW1 was the eyewitness. According to DW1, he was accompanying Yashwant Singh",,

(PW13) and while they were proceeding towards village Thukrla, the deceased Prem Dass met them at a distance of 50 yards and they went to a",,

liquor shop and nearby the disputed property wherein certain shop rooms were constructed, the accused were found closing the shops and at that time",,

the deceased and PW13 started abusing the accused persons and he saw accused Surinder Singh and Manoj Kumar (appellants in Criminal Appeals,,

No. 796/2011 and 795/2011 respectively) coming from the house with empty hands.,,

20.The High Court however has disbelieved the evidence of DW1 to the extent of deceased and PW13 consuming alcohol since the FSL report (Ex,,

PW-18/C) does not indicate presence of alcohol in the intestine of the deceased. Except this, the High Court has taken into consideration the part of",,

the statement of DW1. Merely because one part of the evidence of certain witness is not believed, it does not mean that his entire evidence shall be",,

discarded. To the extent that DW1 was present at the time of occurrence is admitted even according to the prosecution. His evidence that the,,

deceased started abusing the appellants’ group who were present at the relevant time is acceptable for that reason and this behavior of deceased,,

must have instigated the appellants to retaliate. This view is substantiating the plea of the defense to some extent as propounded by them in their,,

examination under Sec. 313 of the Code of Criminal Procedure.,,

21.Having taken into consideration, the statement of witnesses on questions of fact, it would be appropriate to have thorough look at the question of",,

law pertaining to Culpable Homicide. Learned counsel for the appellants contended that the defense emerging from the evidence is that the deceased,,

party arrived at the place of the incident wherein PW-13 started verbally abusing the accused which ensued a sudden fight resulting in the injuries,,

being caused to the deceased and while so the High Court failed to appreciate that there was no premeditation on behalf of the appellant-accused and,,

the entire incident was due to a sudden fight and the High Court ought to have invoked Exception 4 to Section 300 IPC.,,

22.Exception 4 to Section 300 IPC 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.,,

23.There is no dispute about the ingredients of Exception 4 to Section 300 IPC, the following conditions are to be satisfied namely:",,

(i)that the incident happened without premeditation;,,

(ii)in a sudden fight;,,

(iii)in the heat of passion;,,

(iv)upon a sudden quarrel and,,

(v)without the offender having taken undueadvantage or acted in a cruel or unusual manner.,,

24.It may be relevant to note that in the case of Sridhar Bhuyan v. State of Orissa, (2004) 11 SCC 395, it was held as underFor 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"".",,

25.Thus, the totality of circumstances of the case on hand would amply show that there was a sudden verbal quarrel and evidently there was no pre-",,

meditated plan to attack the deceased. In view of the civil disputes already pending between both the families, a minor verbal exchange bloated into a",,

sudden physical attack.,,

26.In Camilo Vaz vs. State of Goa, (2000) 9 SCC 1, referring to the ambit of Section 304 of the Code, this Court in similar set of circumstances held",,

thus:,,

“This section is in two parts. If analysed the section provides for two kinds of punishment to two different situations. (1) if the act by which death,,

is caused is done with the intention of causing death or causing such bodily injury as is likely to cause death. Here important ingredients is the,,

intention""; (2) if the act is done with knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely",,

to cause death. When a person hits another with a danda on vital part of the body with such a force that the person hit meets his death, knowledge has",,

to be imputed to the accused. In that situation case will fall in part II of Section 304 IPC as in the present case.â€​,,

27.Again, this Court in Deo Nath Rai vs State of Bihar and Others etc, AIR 2017 SC 5428 observed-",,

“Looking to the totality of the facts and circumstances of the case and the evidence on record, it is clear that it was only the accused - Parsuram",,

Rai who had assaulted Mohan Rai with the help of sword, whose assault resulted grievous injury, and the deceased Mohan Rai ultimately succumbed",,

to the said injury during the course of transit to the hospital.,,

The incident had taken place when the deceased was returning from the disputed land and the accused persons were busy in the adjacent field,,

transplanting paddy seedlings from where they saw Mohan Rai crossing their land. There was no premeditation of any kind on the part of the accused,,

to commit the murder of the deceased. However, the eye witnesses have deposed that accused - Wakil Rai came and started quarreling with Mohan",,

Rai when other family members also joined. The quarrel not only suddenly erupted but also escalated without any premeditation. As rightly concluded,,

by the High Court, the whole incident was spontaneous and went out of hand that too within short spell of time.",,

In the facts and circumstances of the case, though the High Court was justified in altering the conviction of the accused from Section 302 and 302/149",,

IPC to Section 304 Part-II IPC, it was not justified in imposing lesser sentence on the accused…â€​",,

28.It is important to have a look at the evidence of PW 5-Dr. Arvind Kanwar who has conducted Post mortem and according to him there was an,,

incised wound on the right parietal region of size 4†and 10†above right ear and another incised wound of 1†in size on the right index finger. He,,

has deposed that “the brain was found congested, yet no fracture was seen on the scalpâ€. Though in the cross examination he has stated at one",,

place that the injury No 2 on the scalp might be ‘grievous’ that caused brain hemorrhage. This particular fact is not noted in the postmortem,,

report. Regarding the cause of such injury, PW5 stated that it can be caused by striking with sharp edged object and the depth of the scalp injury",,

depends upon the force and speed. He maintains the stand that it was a ‘scalp injury’ and not ‘skull injury’. Moreover, he did not",,

measure the depth of the head injury which was necessary for classification of injury.,,

29.We may note that the injury to the head resulted in Extra-Dural and Sub-Dural Hematoma. We are conscious of the fact that such symptoms of,,

the same may take some hours to develop in many cases as has happened in this case at hand. We are also apprised that in such cases a detailed,,

post-mortem may be necessary and it is important to know the existence of prior medical history and condition. In this case a generalized statement by,,

the Doctor conducting the post-mortem that he had causally enquired about any existing medical condition with the deceased. It may further be,,

relevant to note the extract from the Modi, A Textbook of Medical Jurisprudence and Toxicology, wherein it is noted that- It must be born in mind that",,

a slight injury on the head may cause cerebral hemorrhage in a person previously predisposed to it from age or disease.,,

30.The above opinion goes to show that the injury no. 2 on the scalp resulted in hemorrhage which has not been duly accounted for. Moreover, the",,

force and gravity of assault indicates that the aforesaid assault was carried out with only sufficient knowledge of likely death of the deceased in a free,,

fight situation. Had he got intention to commit the murder of the deceased by inflicting such injury, he might have used the weapon with sufficient",,

force and in that case, definitely it would have caused a deep injury causing fracture of skull. This court is bound to show some deference to this",,

particular aspect while evaluating the facts and circumstances of this case at hand.,,

31.In the case on hand, the death is not instantaneous, but the deceased died after sometime, due to hemorrhage. When several persons of the",,

accused group wielding weapons attacked the deceased, it is surprising to see only two injuries, that too, two simple injuries alone are inflicted; of",,

course, one such simple injury turns out to be fatal sometime later. This circumstance demonstrates that the appellant had no intention to cause death,",,

though he has knowledge that the weapon used by him to inflict injury on the scalp of the deceased may cause death. But in the absence of intention,,

to cause death or to cause such bodily injury as is likely to cause death, the offence does not fall within the scope of Section 300, IPC but it will fall",,

within Section 304, Part II of the IPC.",,

32.We, therefore, hold that the appellants Manoj Kumar, Rangeel Singh and Surinder Singh are guilty for an offence punishable under Section 304",,

Part II IPC and not for the offence under Sec. 300 IPC. Their conviction under Section 302 IPC is, therefore, set aside. While modifying the",,

conviction accordingly, the appellants are sentenced to suffer rigorous imprisonment for a period of ten years. However, we are informed that the",,

appellants have already undergone more than 11½ years imprisonment so far, consequently, the appellants are directed to be released forthwith, if",,

not required in any other case.,,

33.Accordingly, these appeals are disposed of in the above terms.",,