Ravinder vs State of U.P.

Surendra Vikram Singh Rathore, J.—Mr. Udai Pratap Singh, learned counsel for the appellant and Sri Subodh Kumar Shukla, learned counsel for the complainant and Ms. Madhulika Yadav, learned Additional Government Advocate were heard.

Under Challenge in the instant criminal appeal is the judgment and order dated 12.10.2009 passed by learned Additional Sessions Judge, (F.T.C.-I), Lakhimpur Kheri, in Sessions Trial No. 681 of 2006, arising out of Case Crime No. 558 of 2006, Police Station Khiri, District Lakhimpur Kheri under Sections 302 , 504 and 506 IPC whereby the appellant Ravinder was convicted for the offence under Section 302 IPC and was sentenced to undergo imprisonment for life and also with fine of Rs. 2,000/- with default stipulation of one year additional rigorous imprisonment. He was further convicted for the offence under Section 504 IPC and was sentenced to undergo rigorous imprisonment for a period of one year. He was also convicted for the offence under Section 506(2) IPC and was sentenced to undergo rigorous imprisonment for a period of one year. All the sentences were directed to run concurrently.

Brief facts of the case are that the complainant Awadhesh Kumar lodged an FIR at Police Station Khiri, District Lakhimpur Kheri on 11.07.2006 at 18:45 hours alleging therein that on 11.07.2006 at about 5:30 p.m. his mother Smt. Lajjawati was making complaint to Ravinder Verma (appellant) regarding bad behaviour of his nephew Vishun Kumar. At that time, Sudhir @ Ramaudh, Rakesh, Vishun Kumar were also present there. When the mother of the complainant was making complaint in the meanwhile all the above named four persons started quarrelling with his mother. In the meanwhile, the brother of the complainant Anoop Kumar and his father Ram Lakhan also reached there. Then all the four accused persons were asked by these persons to go away from there. Feeling annoyed by this conduct of the complainant side Vishun Kumar, Rakesh Kumar and Sudhir @ Ramaudh exhorted Ravinder to fire at the deceased and Ravinder Kumar with his countrymade pistol fired on the mother of the complainant. The complainant alongwith other persons took his injured mother to police station and lodged the FIR. On the basis of this FIR the case was registered against all the four named accused persons and complainant Smt. Lajjawati was referred for her medical examination which took place on 11.07.2006 at 8:10 p.m. at District Hospital, Kheri, and following injuries were reported on the body of Smt. Lajjawati:--

"(A) Numerous small burn points on posterior aspect of right forearm and dorsum of right hand.

(B) Firearm wound of entry on right side of abdomen 7cm lateral to umbilicus at 10 O'' clock position wound measuring 1.3 cm x 1 cm x cavity deep. Margin of the wounds were abraded blackened and lacerated and inverted. Wound was surrounded by small tiny burn point numerous in number in area of 21 cm x 18 cm. X-ray advised.

(C) Fire arm wound on lateral aspect left abdomen 3 cm above from iliac crest. Wound measuring 2.3 cm x 1.5 cm x cavity deep. Margin of wounds were lacerated, everted. X-ray was advised and the general condition was reported to be very poor."

In the opinion of the doctor, the injuries were caused by fire arm, kept under observation and X-ray was advised and duration was fresh.

Initially the case was registered under Section 307 , 504 , 506 /34 IPC but because of the death of Smt. Lajjawati in District Hospital, Kheri, on 11.07.2006 at 8.40 p.m. the case was converted under Section 302 IPC vide G.D. No. 40 at 22:10 hours on 11.07.2006. The inquest proceedings were conducted in the District Hospital mortuary and after completing the formalities the postmortem on the body of the deceased Smt. Lajjawati was conducted on 12.07.2006 at 4:30 p.m. and following ante-mortem injuries were reported:--

"(i) Fire arm wound of entry 1 cm x 1 cm x abdominal cavity deep on right side of the abdomen 6 cm away from umbilicus at 10 O'' clock position. Margins were inverted irregular echomoised blackening and tattooing present around wound.

(ii) Fire arm wound of exit 2 cm x 2 cm x abdominal cavity deep on left side of abdomen on back at 8 cm away from midline at 9 O'' clock position. Margins everted irregular and echomoised. On dissection underlying peritoneum, liver, pancreas and small intestine were found lacerated and two liters clotted fluid blood was found in abdominal cavity."

Injury No. 1 was communicated to injury No. 2 through and through.

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

After concluding the investigation charge-sheet was filed against all the four named accused persons. During trial, the learned trial court by the impugned judgment, has acquitted other three accused persons and has convicted the present appellant Ravinder as the specific role of firing on the deceased was assigned to him.

The case of the defence as comes out from the suggestion given to the witnesses and also from their statements under Section 313 Cr.P.C. was of total denial and their false implication because of the enmity of the elections.

In order to prove its case the prosecution has examined PW-1 Dr. Mohd. Idris, who had medically examined the deceased, PW-2 Awadhesh Kumar, the complainant of this case and an eye witness, PW-3 Anoop Kumar, eye witness of this case, named in the FIR, PW-4 Constable Pooran Lal who has prepared the chik report and G.D. of this case, PW-5 Narendra Singh Solanki, Retd. S.I. the initial Investigating Officer of this case, PW-6 Jainendra Kumar Singh, S.O. Who had taken over the investigation because of the death of Lajjawati and after concluding the investigation had filed the charge-sheet. He has also proved G.D. whereby the case was converted under Section 302 IPC. PW-7 Dr. Satish Chandra Verma, who has conducted the postmortem on the body of the deceased Smt. Lajjawati, PW-8 S.I. Prem Narayan Tiwari who has conducted inquest proceedings in the mortuary of the district hospital.

No evidence in defence was produced on behalf of the appellant.

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

Admittedly in this case no appeal challenging the acquittal of the other three accused persons has been preferred either by the State or by the complainant side.

Submission of the learned counsel for the appellants was that even if the entire case of the prosecution is taken to be true even then the offence would not travel beyond the purview of Section 304 part I IPC because it is nowhere the case of the prosecution that there was any prior intention or premeditation to commit this offence. The incident has taken place on the spur of the moment and because of the altercation in the heat of moment fire was shot which ultimately proved fatal. No attempt is alleged to have been made to repeat the fire. Hence, the offence would not travel beyond the purview of Section 304 part I IPC. Hence, the challenge of learned counsel is not on the finding but only on the ground that offence would be under Section 304 (I) IPC.

Learned counsel for the complainant and learned Additional Government Advocate have submitted that in the instant case prompt FIR has been lodged and registration of the case cannot be challenged because immediately thereafter Smt. Lajjawati was referred for her medical examination.

Learned counsel for the complainant has vehemently argued that the offence would not fall within the purview of Section 304 part I IPC because a person firing on the deceased on his abdomen from a very close range, must be attributed the knowledge that his act would result in all probability into the death of the deceased and on the strength of this submission it is submitted that the offence committed by the appellant would fall within the purview of Section 302 IPC and not under Section 304 part I IPC as argued by the learned counsel for the appellant.

Though in the instant case the finding of the learned trial court that the case of the prosecution stands proved against the appellant Ravinder, has not been challenged but being the Court of first appeal, we have gone through the entire evidence and also through impugned judgment. In the instant case a very prompt FIR has been lodged. The occurrence of this case is alleged to have taken place on 11.07.2006 at 5:30 p.m. and FIR was lodged at 18:45 hours. i.e. only after one hour and 15 minutes of the incident and the distance of place of occurrence to the police station, as per the chik report, was 12 kilometers. Time of the registration of the case stands established by the fact that the deceased Lajjawati, while she was in an injured condition, was medically examined at 8:10 p.m. at District Hospital and this medical examination has taken place on the back of the letter (Chhitti majrubi) issued by the police station and the said letter bears case crime number and sections of this case. So there cannot be two opinions that the FIR of this case was registered with utmost promptness at the time as claimed by the prosecution. A prompt FIR lends credence to the case of the prosecution because it eliminates all the chances of fabrication. We have also gone through the evidence of PW-1 and PW-2 and perusal of their evidence shows that their evidence is very natural and both of them have given an eye witness account of the incident and that stands fully supported by the medical evidence. It is unbelievable that sons of the deceased would spare the real assailant of their mother and falsely implicate other person. So the prosecution was successful in proving its case beyond any reasonable doubt against the appellant.

Now the point to be considered in the instant case is as to what offence would be made out against the appellant on the basis of the proved facts. According to the admitted facts of the case of the prosecution it cannot be presumed by any stretch of imagination that there was any prior intention or pre-meditation to commit the murder of the deceased. The deceased went to make complaint of bad behaviour of Vishun Kumar to Ravinder Verma (appellant). In that process, all of a sudden the incident occurred. The brother and father of the complainant also reached there and they asked the accused persons to go from there on which other appellants are alleged to have exhorted and Ravinder fired one shot with his countrymade pistol which hit the deceased Lajjawati. So by no stretch of imagination it can be said that there was any prior intention of the accused persons to commit the murder of the deceased or it was pre planned crime.

Submission of the learned counsel for the complainant was that a person firing on the deceased from a close range and causing death must be attributed the knowledge that his act was so imminently dangerous that it will cause his death in all probabilities. He has drawn our attention towards Clause fourthly of Section 300 which reads as under:--

"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."

Learned counsel for the appellant has drawn our attention towards 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 this point. In the case of Jhaptu Ram Vs. State of Himachal Pradesh, 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 Vs. State of Orissa, , 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 @ Chanda Ram Vs. State of Chhatisgarh, , Hon''ble the Apex Court in paragraph No. 23 has held as under:--

"23. Having regard to the parameters indicated in Gurmukh Singh Vs. State of Haryana, , 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 vi lagers 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 Vs. State of H.P., , 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 Vs. State of Maharashtra, , 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 Vs. State of U.P., , 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."

Reference may also be made to the pronouncement of Hon''ble Apex Court in the case of Ramkishan Shelke Vs. The State of Maharashtra, Hon''ble the Apex Court in paragraph Nos. 8 to 11 has held as under:--

"The assault undisputedly was given on the course of the sudden quarrel, without pre-mutation and without the accused taking any undue advantage. Learned counsel for the respondent-State supported the judgment of the High Court.

The Fourth Exception of Section 300 IPC 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.

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 IPC is not defined in the IPC. 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 cruel or unusual manner. The expression ''undue advantage'' as used in the provision means ''unfair advantage''.

Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is out of all proportion, that circumstance must be taken into consideration to decide whether undue advantage has been taken. In Kikar Singh Vs. State of Rajasthan, it was held that if the accused used deadly weapons against the unarmed man and struck a blow on the head it must be held that using the blows with the knowledge that they were likely to cause death, he had taken undue advantage.

The above position was highlighted by this Court in Babulal Bhagwan Khandare and Another Vs. State of Maharashtra, ."

Keeping in view the aforementioned pronouncement of Hon''ble Apex Court, when we examine the facts of the instant case, then the conclusion is irresistible that there was absolutely no prior intention, prior planning of the appellant to commit such offence.

When the facts of the instant case are tested on the touchstone of the above mentioned legal position then it will lead to the only conclusion that the offence committed by the appellant Ravinder would fall under Section 304 part I IPC because it was not a planned crime and there was no prior intention and it took place in the heat of passion on the spur of moment. So we have no hesitation to hold that the offence committed by the appellant would fall within the purview of Section 304 part I IPC.

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.

Now coming to the question of sentence in the case of Jhaptu Ram (supra), the Hon''ble Apex Court has awarded the sentence of 10 years rigorous imprisonment. In that case death was caused by fire arm injury. Likewise, in other cases mentioned above wherein the offence under Section 302 IPC was converted under Section 304 part I IPC normally the sentence was modified to a period of 10 years rigorous imprisonment. Thus in our considered opinion, in the instant case, the sentence of rigorous imprisonment for a period of ten years alongwith fine of Rs. 20,000/- with default stipulation of one year''s rigorous imprisonment would meet the ends of justice.

Accordingly this appeal deserves to be partly allowed and is hereby partly allowed. The conviction of the appellant Ravinder under Section 302 IPC is hereby modified to Section 304 part I IPC and his sentence for life imprisonment is modified to the period of ten years rigorous imprisonment with fine of Rs. 20,000/- with default stipulation of one year''s rigorous imprisonment. Appellant-Ravinder is in custody. He shall serve out his remaining part of sentence as modified by this Court.

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