Rinkoo vs State of U.P.

Surendra Vikram Singh Rathore, J.—1. Mr. Srees Kumar Srivastava, learned counsel for the appellant and Mr. Umesh Verma, learned A.G.A. for the State were heard at length.

Under challenge in the instant criminal appeal is the judgment and order dated 31.01.2006 passed by Special Judge (E.C.) Act, Unnao, in Sessions Trial Nos. 160 of 2004 and 162 of 2004 arising out of Case Crime Nos. 2690 of 2003 and 12 of 2004 respectively, Police Station Kotwali, District Unnao whereby the present appellant Rinku @ Vinod was convicted for the offence under Section 302 IPC and was sentenced with imprisonment for life. He was acquitted of the charge under Section 3/25 of the Arms Act, which was tried along with the instant offence as ST No. 162 of 2004. However, co-accused Smt. Maya Devi was acquitted of all the charges levelled against her.

In brief, the case of the prosecution was that the complainant Ravi Shankar lodged a first information report at the police station Kotwali Unnao on 17.12.2003 at 2035 hours alleging therein that on the same day at 07.20 PM his father Raja Ram (deceased) was present on the door of his house. Maya Devi and his son Rinku @ Vinod (appellant), who are cousin and Bhanja of the complainant and were living in a room in the house of the deceased for the last 20 years used to pressurize the father of the complainant to transfer the said portion of his house in their favour. His father was not agreeable to this demand/pressure of Maya Devi and her son. On the date of incident, these persons again came to his father and again pressurized their same request which was declined by the father of the complainant which ignited hurling of abuses. Hearing noise, the complainant and his sister Beena @ Bitti came at the place of incident. In the meantime, on the exhortation of Maya Devi, appellant Rinku @ Vinod fired with his country made pistol on the deceased causing his instantaneous death. The complainant and his sister made an effort to apprehend the accused persons but they were successful in making good their escape.

After registration of the case, investigation proceeded. Inquest proceedings were conducted on the same day, which concluded in the night at 2305 hours and after completing the necessary formalities, the dead body was sent for postmortem, which was conducted on 18.12.2003 at 01.30 PM. As per postmortem report, the duration of death was about one day and following ante-mortem injuries were reported by the doctor on the person of the deceased:-

"(i) Firearm wound of entry 1.5 cm x 1.0 cm x cavity deep on left side face, 3.0 cm anterior to left ear, blackening and tattooing present.

(ii) Firearm wound of exit 5.0 cm x 3.0 cm on right side upper part of neck just below and behind right ear.

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

During course of investigation, the appellant, in compliance of the order of Chief Judicial Magistrate dated 03.01.2004, was taken on police remand and on 04.01.2004 he was taken into police custody from District Jail Unnao and thereafter in pursuance of his confessional statement, the weapon of offence was recovered on his pointing out at 1320 hours and for the same, the case under Section 3/25 of the Arms Act was also registered on 04.01.2004 against the present appellant. However, he was subsequently acquitted for the said offence.

After completing the investigation, charge sheet was filed.

The case of the defence was of total denial and his false implication.

In order to prove its case, the prosecution has examined PW-1 Ravi Shankar (complainant of this case) and PW-2 Beena @ Bitti (sister of the complainant) as witnesses of fact, PW-3 Head Constable Prem Singh, who has prepared chik report and G.D. of this case, PW-4 Dr. O.P. Srivastava, who has conducted the postmortem on the body of the deceased, PW-5 Constable Ram Prasad, who has prepared the chik report and GD of the case under Section 25 of the Arms Act, PW-6 SO Mohd. Javed Khan, Investigating Officer and a witness of recovery under Section 3/25 of the Arms Act and PW-7 SI Om Prakash Chaudhary, who has investigated the case under Section 25 of the Arms Act.

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

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

Submission of learned counsel for the appellant was that he does not intend to press his appeal on merits. The finding of guilt has not been assailed. The only submission of learned counsel for the appellant was that in the instant case, there was no prior intention or premeditation to commit the offence. The incident had taken place on the spur of moment under the heat of passion which erupted due to altercation and hurling of abuses. Hence the offence committed by the appellant would fall within the purview of Section 304 Part I IPC but this point was not the least considered by the learned trial court. Thus, arguments on behalf of the defence have been restricted only on the above mentioned point and accordingly on the point of sentence.

Learned A.G.A. has submitted that the evidence on record was sufficient to hold the appellant guilty for the offence alleged by the prosecution. Learned AGA has admitted the fact situation that the incident had taken place on the spur of moment and there is no evidence to indicate that it was a premeditated and intended offence. Learned AGA has submitted that the question of appropriate sentence depends on the discretion of the Court.

Though the conviction of the appellant has not been challenged but in spite of that being the Court of first appellant we have gone through the entire evidence. In the instant case, the incident is alleged to have taken place at the house of the complainant. So the inmates of the house PW-1 and PW-2, who happens to be son and daughter of the deceased, were the most natural witnesses. They have fully supported the case of the prosecution and their evidence stands fully corroborated by the medical evidence. The fact that emerges from their evidence was that the deceased and the appellant were closely related to each other. Appellant along with his mother was living in the house of the deceased for that last twenty years. However, there was some dispute between the two on the point of transferring the room in which Maya Devi along with appellant was living for the last about 20 years. On denial of the deceased for transfer of the said part of the house, some dispute erupted which resulted into hurling and abuses. Thus, all these circumstances lead to the conclusion that the incident had taken place on the spur of moment and it was not a premeditated and pre-intended offence committed by the appellant. The appellant being the son of Smt. Maya Devi on her exhortation in the heat of passion had opened fire and no effort was made by him to repeat the same. It transpires from perusal of the impugned judgment that this point was not raised before the learned trial court and therefore learned trial court has not considered the prosecution evidence from this point of view.

Now the sole point that remains to be considered is whether keeping in view the circumstances in which the offence has been committed, the 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.

Before proceeding further in the matter, we would like to consider the law on this point. 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 State of Madhya Pradesh v. Shiv Shankar reported in , (2014) 10 Supreme Court Cases 366, the death was caused by a firearm and in the facts of that case, the appellant has been convicted under Section 302 I.P.C. while altering the finding of the High Court, Hon''ble the Apex Court has considered the law on this point in detail. Hon''ble the Apex Court was of the view that where the accused gets time to cool down his passion and thereafter commits an offence then the same would fall within the ambit of Section 302 I.P.C. Hon''ble the Apex Court in paragraph No. 12 of the said judgment has quoted paragraph No. 7 of its earlier judgment in the case of Sridhar Bhuyan v. State of Orissa reported in , (2004) 11 SCC 395, 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 alias Chandaram 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."

In the case of Jhaptu Ram v. (supra) the facts were that an altercation took place between the appellant and his son. The accused fired at the deceased. Receiving gun shot injury, he fell down and died. In this background, Hon''ble the Apex Court converted the conviction of the appellant under Section 304 Part I I.P.C. and awarded sentence of ten years rigorous imprisonment and also with a fine of Rs. 5,000/-.

In the case of Rampal Singh (supra) the facts of that case were that there was no previous enmity between the two parties. The dispute between them was regarding certain construction made by the deceased on his land to prevent garbage from being thrown at his open land. Heated exchange of words took place between two sides. In the state of anger accused brought his rifle from his house went on the roof of a nearby house and fired with his rifle, which resulted into the death. In that facts circumstances, Hon''ble the Apex Court held that offence would fall under Section 304 Part I I.P.C. and a sentence of ten years rigorous imprisonment with fine of Rs. 10,000/- was awarded.

Keeping in view the aforementioned legal position, we are of the considered view that the offence committed by appellant Rinku @ Vinod would fall under Section 304 Part I I.P.C. and not under Section 302 I.P.C. Therefore, in our considered opinion, a sentence of ten years rigorous imprisonment with a fine of Rs. 20,000/- would be adequate sentence. Thus, the appeal deserves to be partly allowed and is hereby partly allowed. The conviction of appellant Rinku @ Vinod is hereby modified from Section 302 I.P.C. to Section 304 Part I I.P.C. and sentence of imprisonment for life is hereby modified with rigorous imprisonment for a period of ten years and also with fine of Rs. 20,000/- with default stipulation of six months'' additional imprisonment. Appellant Rinku @ Vinod is in custody. He shall serve out the sentence as modified by this Court. The period of detention already undergone by appellant in the instant offence shall be set off 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.