Mohd. Ahmad vs State of U.P.

Surendra Vikram Singh Rathore, J.—1. Heard Mr. Hemant Kumar Mishra, learned counsel for the appellant, Mr. Dharmendra Singh, learned A.G.A. for the State and perused the lower court record.

Under challenge in this appeal is the judgment and order dated 28.5.2008 passed by learned Additional Sessions Judge, Court No. 2, Unnao in Sessions Trial No. 262 of 2005 arising out of Case Crime No. 138 of 2005 and Sessions Trial No. 247 of 2006 arising out of Case Crime No. 139 of 2005, Police Station Kotwali Unnao, District Unnao, which were tried together. By the impugned judgment, learned trial court has convicted appellant Mohd. Ahmad for the offence under Section 302 I.P.C. and sentenced him with imprisonment for life and also with fine of Rs. 4,000/- and further convicted him for the offence under Section 3/25 of the Arms Act and sentenced with rigorous imprisonment for a period of three years and also with fine of Rs. 1,000/-. In default of payment of entire fine amount, he had to suffer one year additional imprisonment.

In brief the case of the prosecution was that Buddhi Lal, who happens to be brother of deceased Jungali Prasad, lodged an F.I.R. at Police Station Kotwali Unnao, District Unnao at 8:05 a.m. alleging therein that at about 7:00 a.m., his brother Jungali Prasad was present at his tea stall. His servant Sarvesh, the complainant and some other persons were also sitting in the shop. Because of the dispute, which took place, regarding payment of money, the three boys, who were present in the shop, who work in the nearby Indagro Factory, fired at Jungali Prasad, which hit on his abdomen. Hearing the noise of fire, several persons and two police constables chased them and they have been surrounded by the persons. However, injured Jungali Prasad has been taken by his son Sarvesh and some other persons to hospital for treatment. On the basis of this information, the case was registered and immediately, S.O. went to the place of occurrence, got the information about the place, where the police personnel and other persons had surrounded the accused persons. They went inside the Meena Steal Factory where the accused persons were hiding themselves wherefrom accused persons, present appellant and one Nafees Ahmad, were arrested. From the possession of the present appellant, one country-made pistol was recovered. On the basis of this recovery, a separate case was registered at Case Crime No. 139 of 2005, which was tried along with the main offence. Injured Jungali Prasad died in LLR Hospital, Kanpur. Ward-boy Sarvesh Kumar gave an information of his death on 27.2.2005 at 16:20 hours. Thereafter inquest proceedings were conducted. Jungali Prasad in injured condition was admitted in hospital on 24.2.2005 at 9:30 a.m. and he expired on 27.2.2005 at 4:00 p.m. Dead body of Jungali Prasad was sent for postmortem, which was conducted in Mortuary at Swaroopnagar, Kanpur on 28.9.2005 at 12:45 p.m., which comes within the circle of Police Station Swaroopnagar, Kanpur. As per postmortem report, following ante mortem injuries were found on his body:--

"(i) Stitched wound 19 cm in size, 25 stitches were present in front of abdomen, 4 cm sternum.

(ii) Stitched wound 2 cm long, 1 stitch on lateral side of abdomen 8 cm lateral to umblicus.

(iii) Firearm wound of entry 1 cm x 1 cm x abdomen cavity deep, 26 cm below right axilla of right side chest, margins were inverted, charring around the wound was present. Liver was stitched at two places."

In the opinion of doctor, cause of death was shock and haemorrhage as a result of ante mortem injury.

At the time of admission, injured Jungali Prasad was medically examined at District Hospital, Unnao at 24.2.2005 at 17:15 hours and following injury was noted by the doctor:--

"(i) Firearm wound on entering on right lower chest 2 cm x 2 cm x cavity deep tattooing seen, blackening present. Skin around wound was burnt in an area of 3 cm x 4 cm.

Wound of exit not seen. The duration was fresh. The patient was referred to Medical College, Kanpur for proper diagnosis and expert opinion after primary treatment."

After completing the investigation, charge sheet was filed against appellant Mohd. Ahmad.

However, Nafees Ahmad was acquitted by the impugned judgment. Now only appellant Mohd. Ahmad is before us.

The defence of the appellant was of his false implication. He has stated that he was arrested by the police at about 11:00 a.m. from Kuli Bazar, Kanpur on the pretext of some enquiry.

In order to prove its case, prosecution has examined PW-1 complainant Buddhi Lal, PW-2 Sarvesh Kumar, son of the deceased and PW-12 Ashok Kumar Yadav, brother of the complainant, as witnesses of fact. PW-3 Rakesh Yadav, who has prepared chik report and G.D. of this case, which was registered under Section 307 I.P.C. PW-4 S.I. Surendra Nath Mishra, the third Investigating Officer of this case, who took up investigation from 14.4.2005. PW-5 Dr. Arun Prakash, who had medically examined injured Jungali Prasad in Unnao. PW-6 S.I. Ramesh Singh Gautam, Police Station Swaroopnagar, Kanpur, who has conducted inquest proceedings. PW-7 Constable Dhanpal Singh, the career of dead body for postmortem. PW-8 S.O. Rakesh Kumar Singh, the first Investigating Officer of this case, who has also proved the arrest of the appellant and recovery from his possession. PW-9 S.I. J.P. Singh, second Investigating Officer of this case, who took up investigation from 6.3.2005. PW-10 Dr. Shashank Srivastava has conducted the postmortem on the body of the deceased. PW-11 S.I. Brijesh Singh, Investigating Officer of case under Section 3/25 of the Arms Act.

In defence DW-1 Raj Kumar, Senior Clerk of G.S.V.M. Medical College, Kanpur and DW-2 Dr. Rajiv Bhargava have been examined to bring on record certain information written in bed head ticket, which were disclosed at the time of admission.

After appreciating the evidence available on record, the trial court has convicted the appellant as above, hence the instant criminal appeal.

Learned counsel for the appellant has submitted that he does not want to challenge the conviction of the appellant on merits. He has restricted his argument only on the point that the trial court has not considered the legal point whether 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. He has further submitted that there is absolutely no evidence that the offence committed by the appellant was a pre-intended, preplanned or pre-meditated act. It is clear from the evidence that incident has taken place on the spur of moment. During altercation, which took place due to dispute of payment of money. He has also argued that if the Court reaches conclusion that the offence would fall within the purview of Section 304 Part (I) I.P.C., then the sentence of imprisonment for life deserves to be modified accordingly.

Learned A.G.A. has submitted that the trial court has considered all the aspects of the matter. The defence evidence was also considered by the trial court and after going through entire evidence available on record, has rightly convicted the appellant. The appeal has no force and deserves to be dismissed.

Though the conviction of the appellant has not been challenged but inspite of that being the Court of first appeal, we have gone through the entire evidence available on record. In the instant case, F.I.R. was lodged against unknown persons and it was mentioned in F.I.R. that two persons have been surrounded by the police constables and other persons and on this information the police took an immediate action and within a short period after the incident, the appellant along with co-accused Nafees Ahmad was arrested from Meena Steel Factory. From the possession of the present appellant, the weapon of offence i.e. country-made pistol was recovered. All the three witnesses of face have fully supported the case of the prosecution. The medical evidence also corroborates their evidence and the case of the prosecution stands further fortified by the prompt recovery and arrest of the appellant just after the incident from the place, he was hiding himself. So the trial court has properly appreciated the defence evidence and has rightly discarded the same. Therefore, we do not consider it to repeat the grounds on which the defence evidence was discarded because it would unnecessarily lengthen the judgment without serving any fruitful purpose. The recovery of country-made pistol stands also proved against the appellant. So the only point that remains to be considered is whether it was an offence committed with a prior intention to commit murder or it took place on the spur of moment due to sudden provocation.

Now, before proceeding further in the matter, we would like to quote 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 the point of murder and culpable homicide not amounting to murder. 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, Hon''ble the Apex Court in paragraphs 7 and 8 has held 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".

In the case of Chenda alias Chanda Ram 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."

Now in view of the aforementioned legal position, we will proceed to scrutinize the prosecution case. PW-1 complainant Buddhi Lal, who happens to be the brother of the deceased, has stated that the accused persons used to come regularly to take tea on his shop. On the date of incident they also took tea. Thereafter on the point of payment, some dispute arose and because of that, one of them fired on Jungali Prasad, which hit on his abdomen. Similar statement has been given by PW-2 Sarvesh, son of the deceased. PW-12 Ashok Kumar Yadav has also assigned the role of exhortation to other co-accused Nafees Ahmad, who is not before us. But he has also stated that accused persons were also taking tea at the tea stall. He had seen them coming to the tea stall even at earlier occasions. When Jungali Prasad demanded money then quarrel started and the person, who after his arrest, had disclosed his name as Mohd. Ahmad, had fired at Jungali Prasad with his country-made pistol. Thus the evidence of all the three eyewitnesses shows that there was no prior intention of the appellant. They had simply gone to tea stall to take tea. They frequently used to go to the said tea stall to take tea. It is nowhere the case of the prosecution that because of non-payment of bill any altercation took place. But the evidence of PW-1 was that on the point of money transaction, altercation took place and during said altercation, appellant fired. Thus there was nothing on record to give rise to the inference that the appellant had any prior intention to commit the murder of Jungali Prasad. The appellant has no adverse criminal history. There is no allegation that there was any prior enmity. He had come to take tea on the tea stall as usual. It was only on the spur of moment because of altercation, which provoked the appellant, he fired one shot on the deceased, which ultimately proved fatal. So in these circumstances, it cannot be presumed that the offence was committed with a prior intention to commit murder of Jungali Prasad.

Thus in our considered opinion, keeping in view the aforementioned legal position, we are of the considered view that offence would fall within the purview of Section 304 Part (I) I.P.C. Regarding sentence, we are of the considered view that sentence of 11 years rigorous imprisonment would be adequate sentence for this offence. The conviction and sentence of the appellant under Section 3/25 of the Arms Act also deserves to be confirmed.

In view of the discussion made above, this appeal deserves to be partly allowed and is hereby partly allowed. The conviction of the appellant under Section 302 I.P.C. is hereby modified under Section 304 Part (I) I.P.C. and sentence of imprisonment for life is hereby reduced to rigorous imprisonment for 11 years and the fine imposed by the trial court is hereby also confirmed. In default of payment of entire fine amount, he shall have to undergo additional imprisonment for a period of three month in place of one year as awarded by the trial court.

The appellant is in jail. He shall serve out his sentence as modified by this Court.

The period of detention already undergone by him in the instant case shall be set off in his substantive sentence 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.