Noorullah vs State of U.P.

Subhash Chandra Agarwal, J.—This criminal appeal has been filed against the judgment and order dated 8.2.2000, passed by Special Judge (S.C/S.T Act)/Additional Sessions Judge, Gorakhpur in S.T. No. 144 of 1998, whereby the Appellant Noorullah was convicted u/s 302, I.P.C and sentenced to undergo imprisonment for life alongwith fine of Rs. 5,000 and one year R.I. u/s 324, L.P.C. Sentences awarded to the Appellant were to run concurrently.

The incident took place on 2.12.1997 at about 10 a.m. in village Sarawak P.S Bleeper, district Gorakhpur. The F.I.R. Ext. Ka-1 was lodged by the complainant Saeed Khan, P.W. 2 on the same day at P.S. Belipur at 2.45 p.m.

The prosecution story as unfolded in the F.I.R. is that the Smt. Najma, sister of complainant Saeed Khan and deceased Aziz Khan was married to the Appellant Noorullah about 12 years ago. The Appellant occasionally used to beat his wife Najma. Smt. Najma called her brothers to her house for talks of compromise. On 2.12.1997, at about 9.30 a.m. complainant Saeed Khan (P.W. 2), his wife Munni Devi (P.W. 3) and Aziz Khan, younger brother of the complainant went to the house of their sister Najma in village Saraya and started counselling Noorullah not to beat his wife Najma. Noorullah became angry and started abusing. Aziz asked Noorullah not to abuse. Out of anger, Noorullah took out a hansiya from his house and attacked the complainant causing injuries on the neck of the complainant. The complainant and his brother snatched the hansiya from the Appellant. In the meantime, Noor Hasan, the brother of the Appellant Noorullah and his cousin Nabi Hasan also reached there. Noorullah tried to attack Aziz also. The complainant asked his brother Aziz Khan to go back home saying that he would settle the matter amicably. After Aziz left the house of the accused, Noorullah armed with a spear followed Aziz hurling abuses and gave a spear blow in the chest of Aziz near the hut of Ram Samujh and Aziz Khan died on the spot. The incident took place at about 10 a.m. Since there was no known person in the village, the complainant got scared and went to his sasural at Miyan Bazar, Gorakhpur and from there, assembled his relatives and came to the Police Station, got the F.I.R.. Ext. Ka-1 scribed by Usman Gani (P.W. 1) and lodged F.I.R. at P.S. Belipur on the same day at 14.45 hours, on the basis of which Case Crime No. 933/1997 under Sections 302, 307 and 504, I.P.C. was registered against the Appellant 4. Station Officer In-charge Belipur Kamrul Hasan (P.W. 7) commenced the investigation. He recorded the statement of the complainant and his wife Smt. Munni and went to the place of occurrence and prepared site plan Ext. Ka-6. The complainant being injured was sent by the Investigating Officer for medical examination. He appointed the panches, held the inquest proceedings and got prepared the inquest report Ext. Ka-7 through S.I. Sri N. K. Singh Rathore and after preparing the necessary papers for post-mortem, sent dead body of Aziz Khan for post-mortem examination through constables Markandey Tiwari and Paras Rai.

On 5.12.1997, the Investigating Officer arrested the accused Noorullah and on his pointing out, recovered the spear from the shop of the Appellant and prepared recovery memo Ext. Ka-11. The Investigating Officer also recorded the statement of other witnesses and after completing the investigation, submitted charge-sheet Ext. Ka-12 against the Appellant.

The complainant Saeed Khan was medically examined on 2.12.1997 at 8 p.m. at District Hospital, Gorakhpur by Dr. S. S. Parvez (P.W. 5) and the following injuries were found on his person.

Linear abrasion 3 cm. long on the right side neck, reddish coloured.

Abraded traumatic swelling 2 x 1 cm. on the middle of left index finger.

Complaint of pain over the middle of chest without visible injury.

As per injury report Ext. Ka-3, the injuries were caused by hard blunt object and friction, were simple in nature and were about 6-12 hours old.

Autopsy on the dead body of the deceased Aziz Khan was conducted on 3.12.1997 at 3 p.m. by Dr. R. N. Shahi (P.W. 4). The age of the deceased was about 30 years and in the opinion of the doctor, the deceased died about one day before from the time of conducting post-mortem examination. The following ante-mortem injuries were found on the dead body of the deceased:

Stab wound 2 x 2 cm. cavity deep on the left side chest upper part 1 cm. below the clavicle on its middle part. On opening the left side lung was found punctured and 1.5 litre blood was present in chest cavity.

Traumatic swelling 3 x 2 cm. on top of head, 15 cm. above the Nasion.

Left Pleura and left Lung were punctured. One ounce semi-digested food were present in the stomach. Small intestine was empty. There was faecal matter and gases in the large intestine. In the opinion of the doctor, the deceased died due to shock and haemorrhage as a result of ante-mortem injuries. Post-mortem report is Ext. Ka-2.

Learned Sessions Judge framed the charge under Sections 302 and 307, I.P.C. against the Appellant who denied the charge and claimed to be tried.

The Appellant in his statement u/s 313, Cr. P.C. admitted his marriage with Smt. Najma about 15 years ago but denied all the allegations regarding murder of Aziz and causing injury to Saeed Khan. The Appellant also denied recovery of spear at his instance and claimed that he had been falsely implicated on account of enmity.

The prosecution examined 7 witnesses in this case, the complainant Saeed Khan (P.W. 2) and his wife Smt. Munni Devi (P.W. 3) were examined as witnesses of fact. Dr. R. N. Shahi who conducted the post-mortem examination on the dead body of deceased Aziz Khan was examined as P.W. 4. P.W. 1 Usman Gani is the scribe of the F.I.R. Ext. Ka-1. P.W. 5 Dr. S. S. Parvez had medically examined the complainant. P.W. 6 Head Constable Ram Dularey Rai was examined to prove check report Ext. Ka-4 and G. D. entry Ext. Ka-5 and P.W. 7 Kamrul Hasan is the Investigating Officer.

12.P. Ws. 2 and 3 are the witnesses of the occurrence and the remaining are the formal witnesses.

The Appellant has also examined one witnesses Sugriv Prasad (D.W.1) in defence. Sugriv Prasad has stated that he also lives in village Saraya and used to visit the house of the Appellant and in his knowledge, the relations of Noorullah with his wife were cordial and he never went to the house of the complainant to call complainant and his wife for compromise between Noorullah and his wife.

Relying upon the prosecution version and the evidence adduced on behalf of prosecution, the learned trial court convicted and sentenced the Appellant as aforesaid.

We have heard Sri M. P. Yadav learned Counsel for the Appellant and Sri A. K. Shukla learned A.G.A. appearing for the State and perused the records.

Learned Counsel for the Appellant has not challenged the findings of fact recorded by the learned trial court on merits. We have examined the judgment of the trial court and find that the finding of fact recorded by the learned Sessions Judge is based on proper appreciation of evidence on record. The statements of P.W. 2 Saeed Khan and P.W. 3 Munni Devi supported'' by the medical evidence are sufficient to prove beyond doubt that the Appellant attacked the complainant with a hansiya causing him injury and gave a spear blow to Aziz Khan in the chest resulting in his death.

Learned Counsel for the Appellant submitted that the case was not covered u/s 302, I.P.C. His submission is that the occurrence took place in the course of sudden quarrel and in the heat of passion. It was submitted that the Appellant had no intention to cause death of Aziz Khan and there was no motive for the Appellant to commit murder of Aziz Khan and therefore, Section 302, I.P.C. is not attracted and the case falls within the four corners of part one of Section 304, I.P.C. only.

In reply learned A.G.A. submitted that looking to the factual scenario and nature of the injury inflicted on the deceased, the trial court was justified in recording conviction u/s 302, I.P.C.

We have considered the rival submissions of the learned Counsel for the parties.

Section 299, I.P.C. provides:

Culpable homicide.--Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

Note.-- Illustrations and explanations omitted.

Section 300, I.P.C. provides:

Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death Is caused is done with the intention of causing death, or--

Secondly.--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, Thirdly.--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly.--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

Exception 1.--When culpable homicide is not murder.--Culpable homicide is not murder if the offender, whilst deprived of the power of self-control, by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

The above exception is subject to the following provisos:

First.--That the provocation Is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly.--That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

Thirdly.--That the provocation is not given by anything done in the lawful exercise of the right of private defence.

Explanation 1.--Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

Exception 2. -- Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence.

Exception 3. -- Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.

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''s 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.

Exception 5. -- Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.

Note.--Illustrations omitted.

A bare perusal of the above provisions reveals that if the death is caused by doing an act with the intention of causing death or with intention of causing such bodily injury as the offender knows to be likely to cause death of the person to whom harm is caused or if it is done with an intention of causing such bodily injury to any person which is sufficient in the ordinary course of nature to cause death or if the person commit the act knows that it is so eminently dangerous that it must in all probability, cause death or such bodily injury as is likely to cause death then such an act would come within the definition of culpable homicide amounting to murder punishable u/s 302, I.P.C. If the case is covered by any of the exceptions provided in Section 300, I.P.C., it would amount to culpable homicide not amounting to murder punishable u/s 304, I.P.C.

In cases of culpable homicide not amounting to murder, if the act by which the death is caused is done with the intention of causing death or of causing such bodily injury as is likely to cause death, such case would be punishable under Part I of Section 304, I.P.C., but if the act is done with the knowledge that it is likely to cause death but without any intention to cause death, or to cause such bodily injury as is likely to cause death, it would be punishable under Part II of Section 304, I.P.C.

In the case of Gali Venkataiah v. State of Andhra Pradesh 2008 (1) JIC 276: 2008 (2) ACR 2092 (SC), the accused and the deceased were brothers. There was sudden quarrel and the occurrence took place all of a sudden and the accused inflicted a stab wound by knife resulting in death. It was held by Hon''ble Supreme Court that the offence was covered u/s 304, Part 1, I.P.C. and custodial sentence of 10 years R.I. was awarded.

In another case of Ramesh Krishna Madhusudan Nayar v. State of Maharashtra 2008 (1) JIC 269: 2008 (1) ACR 479 (SC), the Hon''ble Supreme Court held as under:

For bringing in operation of Exception 4 to Section 300, I.P.C., 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, I.P.C. 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 reasons and urges them to deeds whichever would not otherwise do. There is provocation in Exceptlon 4 as in Exception l ; but the injury done is rattle 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 4. 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 ovation, and it is difficult to apportion the blame which attaches to each fighter. The help of Exception 4 can be invoked if 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, I.P.C. is not defined in the, I.P.C. It takes two to make a fight. Heat of passion requires that there must be no time for the passion 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.'' 24. In this case also, the Hon''ble Supreme Court found the case to be covered by Part I of Section 304, I.P.C. and custodial sentence of 10 years R.I. was awarded.

When we consider the facts of the present case in the light of above legal position, we find that the instant case is also covered by Exception 4 to Section 300, I.P.C. P.W. 2 Saeed Khan has admitted in cross-examination that when he alongwith his wife and brother reached the house of the Appellant, the Appellant was not present at his house. After about 20-25 minutes Appellant reached there and soon after there was scuffle between Noorullah and Aziz Khan. It is apparent that the visit of the complainant and deceased to the house of Appellant was not to the liking of the Appellant and their undue interference in the family affairs of the Appellant was not tolerated by the Appellant. Thus, there was a sudden quarrel and the Appellant got enraged and took out a hansiya from his house and attacked the complainant who received minor injuries. After this altercation and scuffle, the complainant sent back his brother Aziz Khan to his home but in fit of rage, the Appellant went to his roof, took spear, jumped from the roof and followed Aziz Khan and gave a single blow to Aziz Khan with the spear resulting in his death. Obviously the incident took place without premeditation in a sudden fight, in the heat of passion upon a sudden quarrel. The Appellant was enraged due to scuffle by Aziz Khan and also by undue interference in his family affairs by the deceased. He did not take any undue advantage and did not act in a cruel or unusual manner. In these circumstances Exception 4 to Section 300, I.P.C. is attracted and the case is covered by Section 304, Part I, I.P.C. Thus, the conviction of the Appellant u/s 302, I.P.C. cannot be maintained and is liable to be set aside.

Considering the factual back ground, we are of the view that the appropriate conviction would be in terms of Section 304, Part I, I.P.C. instead of Section 302, I.P.C.

Regarding sentence we cannot lose sight of fact that the Appellant is in jail since 5.12.1997 and has almost spent a period of 11 years and seven months in jail. This period of 11 years and seven months is sufficient to meet the ends of justice. We may, however, clarify that the order of conviction and sentence awarded to the Appellant u/s 324, I.P.C. does not require any interference of this Court.

We, therefore, allow the appeal in part and acquit the Appellant Noorullah for the offence u/s 302, I.P.C. and instead convict him for the offence punishable under Part I of Section 304, I.P.C. and sentence the Appellant to undergo R.I. for a period already spent by him in jail (approximately 11 years and 7 months). His conviction u/s 324, I.P.C. and the sentence of one year R.I. for the same is, however maintained. Both the sentences are to run concurrently. Since the Appellant has already served out the sentence awarded to him, he be released from jail forthwith if not wanted in any other case.

Let the copy of this judgment be certified to the Court concerned within a week for compliance. The compliance report be submitted to this Court within a month.