Saroj Kumar vs State of U.P.

Surendra Vikram Singh Rathore, J.—1. Mr. Samrat Gupta, learned counsel for the appellant and Mr. Dharmendra Singh, learned A.G.A. for the State were heard at length.

Under challenge in the instant criminal appeal is the judgment and order dated 29.05.2009 passed by Special Judge (E.C. Act)/Additional Sessions Judge, Lucknow, whereby Sessions Trial No. 1 of 2006, under Sections 307, 324 and 302 IPC, arising out of Case Crime No. 129 of 2005, Police Station Chinhat, District Lucknow, and Sessions Trial No. 2 of 2006, arising out of Case Crime No. 147 of 2005, under Section 4/25 of the Arms Act, Police Station Chinhat, District Lucknow, were tried together and appellant Saroj Kumar was convicted and sentenced as under:--

"(a) Under Section 302 IPC - Imprisonment for life and fine of Rs. 10,000/- with default stipulation of 10 months'' additional simple imprisonment.

(b) Under Section 324 IPC - One year''s rigorous imprisonment.

(c) Under Section 4/25 of the Arms Act - One year''s rigorous imprisonment and fine of Rs. 500/- with default stipulation of five months'' additional simple imprisonment."

All the sentences were directed to run concurrently. However, the appellant was acquitted of the charges under Section 307 IPC.

In brief, the case of the prosecution was that the complainant Smt. Ram Kumari lodged a first information report on 14.05.2005 at 07.45 PM at Police Station Chinhat, District Lucknow, alleging therein that on that day at 06.30 PM she along with her husband was present in her house. Appellant Saroj Kumar son of Ram Nath resident of Bhojpur, Dallu Khera, Police Station Satrikh, District Barabanki, who happens to be Bhanja (sister''s son) of the deceased, came to her house in the evening at about 6.30 PM and demanded Rs. 2,00,000/- (Two Lacs) from her husband. He said that you have sold the land so please give him money. Her husband said that he has not yet received the consideration amount of the sale, when he will receive the same, he shall give him some money. Appellant Saroj Kumar stated that you have already received the money and he shall go only after taking the money. This conversation turned into altercation. The complainant tried to pacify them. In the meantime, appellant gave a blow of knife to the deceased. The complainant also received injury. On her alarm, Nanha, Km. Ram Devi, Sanjay Kumar, Dinesh Kumar and other persons of the village reached there. In the meantime, appellant ran away from there along with knife. He was chased by the villagers but he could not be apprehended. The deceased received injuries on his chest and abdomen due to which he fell down. The complainant along with her injured husband went to the police station and a case under Section 307 IPC was registered."

After registration of the case, the complainant Smt. Ram Kumari was referred for medical examination which took place on 14.05.2005 at 11.00 PM at CHC, Chinhat, Lucknow by PW-5 Dr. Sunil Kumar and as per medical examination report, one lacerated wound surrounded by swelling measuring 3 cm x 2 cm was present above right wrist. It was bleeding and oozing. She also made complaint of pain in her chest. The doctor has not given his opinion on this medical examination report.

Deceased Har Bhajan was taken to Medical College and on the way, he succumbed to injuries. His inquest proceedings were conducted by the police of Police Station Chowk on 15.05.2005 and it started from 11.00 A.M. The information of death of the deceased was received on 15.05.2005 at 08.10 AM by one Mohd. Hasan of Medical College, Lucknow. As per postmortem report, the duration of death was one day and following ante-mortem injuries were reported by the doctor on the person of the deceased:--

"(i) Stab wound 6 cm x 2.5 cm x chest deep was present in front of upper part of chest 4 cm below sternal notch.

(ii) Stab wound 5.5 cm x 2.5 cm x abdominal cavity deep was present on left side of abdomen, 8 cm below left nipple at 7 O''clock position.

Margins of both the injuries were clean cut, sharp and well defined. On opening, ecchymosis was present underneath above mentioned injuries. Left lung with pleura was lacerated below injury No. 1, about half liter clotted and fluid mixed blood was present in left thoracic cavity. Spleen was lacerated underneath injury No. 2, about one liter clotted and fluid mixed blood was present in abdominal cavity. Underneath the injuries, blood vessels and soft tissues were lacerated."

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, on 03.06.2005 appellant Saroj Kumar was taken on police remand. He was granted remand from 03.06.2005 from 11.00 AM to 11.00 AM on 04.06.2006. On 03.06.2005, on the pointing out of the appellant the weapon of offence i.e. knife was recovered for which a separate recovery memo was prepared and on the basis of the same, a separate case under Section 4/25 of the Arms Act was registered which was tried along with the main offence.

After completing the investigation, charge sheet was filed.

The case of the defence, as stated by the appellant himself in his statement under Section 313 Cr.P.C., was that on the date of incident he had gone to the house of his maternal uncle Har Bhajan. He was talking with him and talks converted into altercation due to which the complainant Ram Kumari armed with knife ran towards him and wanted to cause him injuries which hit the deceased and also to the complainant Ram Kumari.

In order to prove its case, the prosecution has examined PW-1 Nanha - brother of the deceased, PW-2 Smt. Ram Kumari - wife of the deceased and complainant of this case, PW-3 Km. Ram Devi - daughter of the deceased as witnesses of fact. PW-4 is Head Constable Anil Kumar who has proved the Chik Report and GD of registration of this case. PW-5 is Dr. Sunil Kumar who has performed the medical examination of the complainant Smt. Ram Kumari. PW-6 is Dr. Narendra Agarwal who has performed postmortem on the body of the deceased. PW-7 is SSI Bijendra Pal Singh second Investigating Officer of this case who took up the investigation from 21.06.2005 and filed charge sheet. PW-8 is SI Dinesh Kumar the first Investigating Officer of this case. PW-9 is Constable Shiv Pratap Singh who has proved the Chik Report and GD of the case under Section 25 of the Arms Act. PW-10 is SI Surya Narayan Pandey who is the Investigating Officer of 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.

Learned counsel for the appellant has submitted that he does not intend to challenge the conviction of the appellant and has restricted his arguments only on the point that the learned trial court has no where considered that the incident of this case had taken place on the spur of moment and the appellant caused injuries under sudden provocation in heat of passion. It was an unintentional act. So the offence would not travel beyond the purview of Section 304 Part I IPC but the learned trial court in the impugned judgment has no where considered this legal aspect of the matter. Thus, his argument is only on the ground that the offence would not exceed beyond the purview of Section 304 Part I IPC and accordingly the sentence of the appellant should be reduced.

Learned A.G.A. has submitted that learned trial court by a reasoned judgment has convicted the appellant. It has considered all the aspects of the case and has rightly convicted the appellant. The judgment of the learned trial court does not suffer from any factual or legal infirmity. Hence, no interference is required in the instant appeal.

Though learned counsel for the appellant has not challenged the conviction of the appellant and has restricted his argument only on the point that the offence would fall within the purview of Section 304 Part I IPC but in spite of that, being the Court of first appeal, we have gone through the entire evidence and the impugned judgment. PW-1 Nanha, PW-2 Smt. Ram Kumari and PW-3 Km. Ram Devi have fully supported the case of the prosecution and have stated that the appellant gave blows of knife to the deceased. Their evidence stands corroborated by the medical evidence. The incident of this case is alleged to have taken place inside the house of the deceased. So these witnesses were the most natural witnesses as they were the inmates of the same house and their evidence cannot be discarded simply because they were related witnesses. In the facts of the instant case, appellant himself was closely related to these witnesses also as he was the son of the real sister of the deceased. So it cannot be presumed that a wife will falsely implicate the son of her sister-in-law in the offence of murder of her husband sparing the real assailant. The incident had taken place in day light. So there is absolutely no question of wrong identity. Apart from it, the defence taken by the appellant also establishes his presence and that the injuries were caused to the deceased by knife. His defence is that during altercation it was PW-2 Smt. Ram Kumari who came to intervene and intended to give blows of knife to the appellant which hit the deceased. But this defence does not appeal to reason because the deceased has sustained two repeated blows of knife. The defence taken by the appellant was not the least probable. It is unbelievable that Smt. Ram Kumari would repeat the blow of knife on her husband. Thus, the appellant has come with a false defence. The recovery of knife on his pointing out during the course of investigation also provides corroboration to the prosecution evidence. So the conclusion of the learned trial court that the prosecution was successful in proving its case beyond reasonable doubt was absolutely correct and needs no interference by this Court.

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 would fall within the purview of Section 304 Part I I.P.C. In the impugned judgment this point has not been considered. It is an admitted case of the prosecution that the deceased was close relative of the appellant. Appellant had gone to the house of the deceased. According to the evidence of the prosecution, there was absolutely no prior enmity. It has come in evidence that when the appellant came to the house of the deceased, PW-3 Km. Ram Devi prepared tea for him and he was sitting on a chair and was taking tea. So he was welcomed at the house of the deceased. It transpires from the evidence that appellant made request from the deceased to give him some money which was declined by the deceased saying that he has yet not received the sale consideration of his land. On refusal to fulfill his demand altercation took place and under the heat of passion and due to sudden provocation, the appellant gave two blows of knife to the deceased. There is absolutely nothing in the evidence of any of the witnesses to infer that there was any prior planning or prior intention of the appellant to commit the murder of the deceased. Simply because the appellant was having a knife would not give rise to an inference that there was any prior intention. Perusal of the first information report also shows that words "Jaan se marne ki niyat se" were subsequently added in the first information report.

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 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."

Keeping in view the aforementioned pronouncements of Hon''ble Apex Court when the facts of the instant case are considered then we find nothing to infer that the appellant had any prior intention to commit the murder of the deceased. It was only under sudden provocation and under the heat of passion that the offence was committed. So it was an unintended act. The appellant has not acted in any unduly cruel manner. Hence, in our considered opinion, the offence committed by the appellant would fall within the purview of Section 304 Part I IPC. The conviction of the appellant for the remaining sections deserves to be confirmed.

Now the point of appropriate sentence is before us. In our considered opinion, the sentence of 11 (eleven) years rigorous imprisonment for the offence under Section 304 Part I IPC would be adequate to meet the ends of justice. Thus, the appeal deserves to be partly allowed and is hereby partly allowed. The conviction of appellant Saroj Kumar is hereby modified from Section 302 I.P.C. to Section 304 Part I I.P.C. and sentence of imprisonment for life is reduced to a period of eleven years rigorous imprisonment. The conviction and sentence imposed by the learned trial court for the remaining sections is also hereby confirmed. All the sentences shall run concurrently. Appellant Saroj Kumar 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.