Ram Pratap vs State of U.P.

Surendra Vikram Singh Rathore, J.—1. Mr. Karuna Kant Gupta, learned counsel for the appellant and Sri Umesh Verma, learned Additional Government Advocate were heard.

Under Challenge in the instant criminal appeal is the judgment and order dated 19.01.2005 passed by learned Additional Sessions Judge/F.T.C. Court No. 3, Hardoi, in Sessions Trial No. 623 of 2003, arising out of Case Crime No. 67 of 2003, under Section 302 IPC, Police Station Arwal, District Hardoi and also in S.T. No. 624 of 2003 arising out of Case Crime No. 71 of 2003, under Section 25 of Arms Act, Police Station Arwal, District Hardoi, whereby the appellant Ram Pratap was convicted for the offence under Section 302 IPC and was sentenced to undergo imprisonment for life and also with fine of Rs. 5000/- with default stipulation of two years'' additional imprisonment. He was also convicted for the offence under Section 25 of Arms Act and was sentenced to undergo rigorous imprisonment for a period of one year.

Brief facts of the case are that the complainant Kamla Devi lodged an FIR at Police Station Arwal on 22.06.2003 at 12:30 hours alleging therein that on 21.06.2003 her husband Ram Narayan and Ram Pratap had entangled in hurling of abuses after taking liquor, due to which on 22.06.2003 in the morning appellant Ram Pratap came to his door and asked for Ram Narayan and has said that he will kill him. Then the complainant said that you both are friends and requested him not to do so. Thereafter, Ram Pratap went away from there. The complainant Smt. Kamla Devi send her son Sandeep to call Ram Narayan back to home. Then her son Sandeep and her brother Ram Lakhan went there at that time Ram Narayan was sitting on Takhat of Kamta. In the meantime appellant Ram Pratap came from the shop of Ram Prasad and from a place near the channi of Kamta started hurling abuses at about 8:30 a.m. When he was trying to take out his countrymade pistol then Ram Narayan, seeing the countrymade pistol rushed towards him to catch him or to snatch the weapon. In the meantime, Ram Pratap fired which hit on the chest of the deceased due to which he fell down and died on the spot.

The complainant Smt. Kamla Devi got the FIR scribed by Sri Ram son of Rameshwar and on the basis of the same case was registered.

After registration of the case the investigation proceeded and inquest proceedings were conducted and the dead body of the deceased was sent for postmortem which was conducted on 23.06.2003 at about 3:30 p.m. wherein duration of death was reported to be about one and half day old. According to the postmortem report the following ante mortem injuries were found on the body of deceased Ram Narayan:-

(i) Fire arm wound of entry 2.5 c.m. x 2 c.m. x through and through on left side of chest 2 c.m. below from left nipple at 7 O'' clock position. The margins were inverted, lacerated blackening was present around the turn.

(ii) Fire arm wound of exit 3.5 c.m. x 3 c.m. x communicating with injury No. 1 present on left side of back 7 c.m. lateral to midline at the level of T-11 vertebra. Margins were inverted and lacerated direction was front to back downwards and towards right.

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

During investigation, the appellant Ram Pratap was arrested by the police on 28.06.2003 and he confessed his guilt in the police custody and on his pointing out the weapon of offence which was countrymade pistol of 315 bore was recovered and its recovery memo was prepared. On the basis of the same a separate case was registered at Case Crime No. 71 of 2003 which was tried alongwith instant offence and the appellant was also convicted for the said offence.

The defence of the appellant was of his total denial and his false implication. It was also suggested to the witnesses that the deceased has been done to death by some unknown persons in the early morning while he had gone to attend the call of nature and because of the enmity he has been falsely implicated in this case.

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

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

In order to prove its case, the prosecution has examined PW-1 Smt. Kamla Devi, the complainant, PW-2 Sandeep son of the deceased, as witnesses of fact and both of them have supported the case of the prosecution, PW-3 is Dr. S.K. Kaushal, who had conducted the postmortem on the body of the deceased Ram Narayan, PW-4 Constable Ashwani Kumar is a witness of arrest of the appellant and recovery on his pointing out, PW-5 S.O. Devendra Singh, the Investigating Officer of this case, PW-6 Head Constable, Kandhai Lal who has prepared the chik report and G.D. of this case, PW-7 S.I. Mujahid Ali, the Investigating Officer of the case under Section 25 of the Arms Act, PW-8 Constable 255 Syed Shamim Abbas Rizvi, the carrier of the dead body after inquest proceedings, PW-9 Constable Vimal Kumar Mishra, who has prepared the chik report and G.D. of the case under Section 25 of Arms Act.

Submission of the learned counsel for the appellant was that in the instant case it is nowhere the case of the prosecution that there was any enmity of the appellant with the deceased, rather they were on friendly terms. The incident, as alleged by the prosecution, has taken place when the deceased himself tried to snatch the countrymade pistol of the appellant which resulted into this unfortunate incident. Since the offence committed by the appellant was not pre-planned or pre intended act so the offence would fall within the purview of Section 304 part I IPC and not under Section 302 IPC and on this ground a prayer to reduce the sentence of the appellant has been made. Thus it has not been challenged that the case of the prosecution stands proved.

Learned A.G.A. has argued that the learned trial court has rightly held that the case of the prosecution stands proved and has rightly convicted the appellant. However, he has admitted that there is no evidence that there was any prior enmity of the appellant with the deceased and the incident has taken place during scuffling.

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 evidence of all the witnesses and also through the impugned judgment.

After careful scrutiny of the entire evidence, we are of the considered view that the learned trial court has rightly held that the prosecution was successful in proving its case beyond any reasonable doubt. The allegation against the appellant was that during scuffling while the deceased was trying to snatch his countrymade pistol the incident took place and only one shot was fired and corresponding injury was found in the postmortem examination. Homicidal death stands proved by the medical evidence and the person responsible therefore stands proved by the ocular testimony of the two eye witnesses which gets further support from the recovery of weapon of offence on the pointing out of of the appellant. Therefore, the finding that the prosecution was successful in proving its case beyond any reasonable doubt was in accordance with law and needs no interference.

Now the argument of the learned counsel for the appellant has to be considered whether the act committed by the appellant would fall within the purview of Section 302 IPC or it would an offence under Section 304 part I IPC. PW-2 Sandeep was the step son of the deceased. The deceased was the second husband of Smt. Kamla Devi so PW-2 Sandeep used to address the deceased as his uncle (Chacha). Perusal of the entire evidence shows that there is absolutely no allegation that the deceased and Ram Pratap had any enmity, on the contrary the prosecution evidence suggests that they were on very good terms because a day prior to the incident they took liquor together and under the influence of the liquor some altercation or some dispute took place between the two. It is an admitted case of the prosecution because of the said incident on the next day morning the appellant came to the house of the deceased and asked for him and also threatened that he will kill him but when the complainant Smt. Kamla Devi asked him not to do so and also said to think for her future then he went away from there. This conduct of the appellant shows that he had not come with an intention to kill. Thereafter, the complainant''s son and his brother followed him and at that time the deceased was sitting on a ''Takhat'' of Kamta and the appellant was not present at that point of time. If he had any intention to kill then he could have easily killed him while coming back from his house because Sandeep and brother of the complainant were behind him. Apart from it, PW-2 has admitted that deceased and appellant had good relations. Appellant frequently used to come to his house. His mother never opposed their friendship and never asked them to take liquor. It is an admitted case of prosecution that in the preceding night both of them consumed liquor. It has not been clarified by what time in the night the deceased came back to his house. It was very impatient fact in the instant case. Because incident has taken place in the early morning so if these persons have consumed liquor late in the night then the possibility that the offence was committed under influence of intoxication cannot be ruled out. PW-2 has also stated that when his father rushed towards appellant to catch him then this incident took place. So the possibility that because of some apprehension under intoxication this offence has been committed cannot be ruled out. Benefit of such possibility must go to the accused. It is alleged that he came out from a place near channi of Kamta and started abusing him, while he was taking out his countrymade pistol then Ram Narayan rushed towards him to snatch the said countrymade pistol (Katta) and in the meantime, the fire was shot which hit on his chest. So the incident has taken place on the spur of the moment because of the incident which took place a day prior to the present incident. There is no evidence as to what was the reason of the said earlier quarrel between two but it is an admitted case that the deceased himself rushed towards the appellant and keeping in view the background of the last day incident, it cannot be said that the appellant himself had apprehended some danger to him or under heat of moment the fire took place which proved fatal. The appellant made no effort to repeat the fire, so it cannot be said that any undue advantage of the said circumstances was taken by the appellant.

Now we will have to consider the legal position where the offence was not premeditated and pre-intended. Whether in these circumstances the offence would fall within the purview of Section 302 IPC or under Section 304 part I IPC.

Now we will consider the legal aspect of this submission. Hon''ble the Apex Court in the case of Rampal Singh Vs. State of U.P. reported in , 2012 Cri.L.J. 3765 has considered the distinction between culpable homicide and murder and has observed in paragraph No. 14 and 15, which reads as under:-

"14. This Court has time and again deliberated upon the crucial question of distinction between Sections 299 and 300 of the Code, i.e., ''culpable homicide'' and ''murder'' respectively. In the case of Phulia Tudu and Anr. v. State of Bihar (now Jharkhand) [, AIR 2007 SC 3215], the Court noticed that confusion is caused if courts, losing sight of the true scope and meaning of the terms used by the legislature in these sections, a low themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of these sections. The Court provided the following comparative table to help in appreciating the points of discussion between these two offences:

Section 299

Section 300

A person commits culpable homicide if the act by which the death is caused is done-

Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done.

Intention

(a) with the intention of death; or

(1) with the intention of causing death; or

(b) with the intention of causing such bodily injury as is likely to cause death; or

injury as is likely to cause death; or

(2) 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; or

(3) 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

KNOWLEDGE

(c) with the knowledge that the act is likely to cause death.

(4) with the knowledge that the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse or incurring the risk of causing death or such injury as is mentioned above.

Section 300 of the Code states what kind of acts, when done with the intention of causing death or bodily injury as the offender knows to be likely to cause death or causing bodily injury to any person, which is sufficient in the ordinary course of nature to cause death or the person causing injury knows that it is so imminently dangerous that it must in all probability cause death, would amount to ''murder''. It is also ''murder'' when such an act is committed, without any excuse for incurring the risk of causing death or such bodily injury. The Section also prescribes the exceptions to ''culpable homicide amounting to murder''. The explanations spell out the elements which need to be satisfied for application of such exceptions, like an act done in the heat of passion and without pre-mediation. Where the offender whilst being deprived of the power of self-control by grave and sudden provocation causes the death of the person who has caused the provocation or causes the death of any other person by mistake or accident, provided such provocation was not at the behest of the offender himself, ''culpable homicide would not amount to murder''. This exception itself has three limitations. All these are questions of facts and would have to be determined in the facts and circumstances of a given case."

In the facts of that case, Hon''ble the Apex Court has partially allowed the appeal and converted the conviction from under Section 302 I.P.C. to Section 304 Part (I) I.P.C. and awarded a sentence of ten years rigorous imprisonment. In the facts of that case, appellant shot at the deceased with his rifle and ran away.

In the case of Manjeet Singh Vs. State of Himachal Pradesh reported in , (2014) 5 SCC 697. There was no intention to cause death and incident took place on the spur of moment and due to firing from the carbine the death was caused. Hon''ble the Apex Court has held that offence would fall under Section 304 I.P.C.

In the case of K. Ravi Kumar Vs. State of Karnataka reported in , (2015) 2 SCC 638 Hon''ble the Apex Court has again considered the distinction between Section 302 I.P.C. and Section 304 I.P.C. and has observed in paragraph No. 11 to 15 as under:-

In Surinder Kumar v. Union Territory, Chandigarh , (1989) 2 SCC 217, this Court on the same issue held that if on a sudden quarrel a person in the heat of the moment picks up a weapon which is handy and causes injuries out of which only one proves fatal, he would be entitled to the benefit of the Exception provided he has not acted cruelly. This Court held that the number of wounds caused during the occurrence in such a situation was not the decisive factor. What was important was that the occurrence had taken place on account of a sudden and unpremeditated fight and the offender must have acted in a fit of anger. Dealing with the provision of Exception 4 to Section 300, this Court observed:

To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly."

In Ghapoo Yadav and Ors. v. State of M.P. , (2003) 3 SCC 528, this Court held that in a heat of passion there must be no time for the passion to cool down and that the parties had in that case before the Court worked themselves into a fury on account of the verbal altercation in the beginning. Apart from the incident being the result of a sudden quarrel without premeditation, the law requires that the offender should not have taken undue advantage or acted in a cruel or unusual manner to be able to claim the benefit of Exception 4 to Section 300 Indian Penal Code. Whether or not the fight was sudden, was declared by the Court to be decided in the facts and circumstances of each case. The following passage from the decision is apposite:

.......... 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 the 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".

........ After the injuries were inflicted the injured had fallen down, but there is no material to show that thereafter any injury was inflicted when he was in a helpless condition. The assaults were made at random. Even the previous altercations were verbal and not physical. It is not the case of the prosecution that the accused-Appellants had come prepared and armed for attacking the deceased. ............. This goes to show that in the heat of passion upon a sudden quarrel followed by a fight the accused persons had caused injuries on the deceased, but had not acted in a cruel or unusual manner. That being so, Exception 4 to Section 300 Indian Penal Code is clearly applicable......

In Sukbhir Singh v. State of Haryana , (2002) 3 SCC 327, the Appellant caused two Bhala blows on the vital part of the body of the deceased that was sufficient in the ordinary course of nature to cause death. The High Court held that the Appellant had acted in a cruel and unusual manner. Reversing the view taken by the High Court this Court held that all fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of Exception 4 to Section 300 Indian Penal Code. In cases where after the injured had fallen down, the Appellant-accused did not inflict any further injury when he was in a helpless position, it may indicate that he had not acted in a cruel or unusual manner. This Court observed:

......... All fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of not availing the benefit of Exception 4 of Section 300 Indian Penal Code. After the injuries were inflicted and the injured had fallen down, the Appellant is not shown to have inflicted any other injury upon his person when he was in a helpless position. It is proved that in the heat of passion upon a sudden quarrel followed by a fight, the accused who was armed with bhala caused injuries at random and thus did not act in a cruel or unusual manner.

In Mahesh v. State of M.P. , (1996) 10 SCC 668, where the Appellant had assaulted the deceased in a sudden fight and after giving him one blow he had not caused any further injury to the deceased which fact situation was held by this Court to be sufficient to bring the case under Exception 4 to Section 300 of Indian Penal Code. This Court held:

.............. Thus, placed as the Appellant and the deceased were at the time of the occurrence, it appears to us that the Appellant assaulted the deceased in that sudden fight and after giving him one blow took to his heels. He did not cause any other injury to the deceased and therefore it cannot be said that he acted in any cruel or unusual manner. Admittedly, he did not assault PW 2 or PW 6 who were also present along with the deceased and who had also requested the Appellant not to allow his cattle to graze in the field of PW 1. This fortifies our belief that the assault on the deceased was made during a sudden quarrel without any premeditation. In this fact situation, we are of the opinion that Exception 4 to Section 300 Indian Penal Code is clearly attracted to the case of the Appellant and the offence of which the Appellant can be said to be guilty would squarely fall Under Section 304 (Part I) Indian Penal Code.........

The law laid down in the aforesaid cases was considered and applied recently by this Court in the case reported in Ankush Shivaji Gaikwad v. State of Maharashtra , (2013) 6 SCC 770. In this case also, the Appellant-accused while passing on the field of the deceased on a spur of moment indulged in heated talk with the deceased which resulted in hitting a blow by the Appellant-accused to the deceased with the rod causing death of the deceased. Justice T.S. Thakur, speaking for the Bench, accepted the plea raised by the Appellant-accused and accordingly altered the sentence falling Under Section 304 Part II Indian Penal Code by giving him the benefit of Exception 4 of Section 300 Indian Penal Code. It was held by this Court as under:

"27. ........ we are of the opinion that the nature of the simple injury inflicted by the accused, the part of the body on which it was inflicted, the weapon used to inflict the same and the circumstances in which the injury was inflicted do not suggest that the Appellant had the intention to kill the deceased. All that can be said is that the Appellant had the knowledge that the injury inflicted by him was likely to cause the death of the deceased. The case would, therefore, more appropriately fall Under Section 304 Part II Indian Penal Code."

In the case of Budhi Singh Vs. 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 Rampal Singh Vs. 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."

Keeping in view the aforementioned legal position when we consider the facts of the instant case then it reflects that the incident has taken place on the spur of the moment and there was no prior enmity between the deceased and the appellant as alleged by the prosecution nor any other circumstance could be brought to our notice in the entire evidence that it was an intended or pre-planned act of the appellant.

Keeping in view the aforesaid legal pronouncement, since the incident of this case has taken place on the spur of the moment and the offence was not premeditated or preplanned, no undue advantage of such provocation was taken, appellant had not acted in any cruel or unusual manner. So in our considered view, the offence committed by the appellant, in this perspective, would not travel beyond the purview of Section 304 part I IPC.

Accordingly this appeal deserves to be partly allowed and is hereby partly allowed. The conviction of the appellant under Section 302 IPC is hereby modified to Section 304 part I IPC and his sentence for life imprisonment is modified to a period of thirteen years'' rigorous imprisonment and also with fine of Rs. 20,000/- with default stipulation of three months additional rigorous imprisonment. Conviction and sentence imposed by trial court for the offence under Section 25 Arms Act is hereby confirmed. Both the sentences shall run concurrently. Appellant-Ram Pratap is in custody. He shall serve out his remaining part of his sentence as modified by this Court. It is made clear that period of detention by the appellant Ram Pratap in the instant case shall be set off in his substantive offence in accordance with the provision of Section 428 Cr.P.C.

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