Furqan vs State Of U.P.
2017 Latest Caselaw 3850 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 44
 
Case :- CRIMINAL APPEAL No. - 5095 of 2004
 
Appellant :- Furqan
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Apul Misra,Amit Singh,G.C. Pant,Lav Srivastava,V.C. Tiwary,V.P. Srivastava,Yogesh Srivastava,Zafar Ahmad
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Bharat Bhushan,J.

Hon'ble Dr. K. J. Thaker, J

(Oral Judgment by Hon. Dr. K. J. Thaker, J.)

1. The present appeal has been filed against the judgment and order dated 27.08.2004 passed by Additional District and Sessions Judge, Court No. 4, Moradabad in Sessions Trial No. 338 of 2003, by virtue of which the appellant has been convicted for commission of offence under Section 302 of the Indian Penal Code (in short hereinafter mentioned as IPC) and sentenced to undergo imprisonment for life and to pay a fine of Rs. 50,000/- for the offence punishable under Section 302 IPC and in default of the payment of fine to further undergo Imprisonment for a period of three years. The appellant has been in incarceration for about 15 years.

2. In an abridged form, prosecution allegations against the appellant, as were contained in the written report (Ext. Ka-1), were that on 25.10.2002 at about 9.45 a.m. while informant Akhtar along with his deceased son Hasrat of village Korbaku, within the circle of Police Station Bhojpur, District Moradabad were going to their field on motorcycle, are said, to have been intercepted by accused Furqan, near the boundary wall of a Primary School and appellant demanded motorcycle from Hasrat Ali (deceased). Hasrat Ali (deceased) is said to have refused to give his motorcycle by saying that the appellant is a man of bad character and he always involves in mischievous acts. Hearing this, appellant got infuriated and said that he will teach lesson to him as to how he dared to say so and said that deceased had also refused to give the motorcycle 15 days earlier and he, thereafter, took out a country made pistol (Tamancha) from below the shirt and fired at Hasrat Ali (deceased), which hit the deceased on the right side of chest and Hasrat Ali died instantaneously. This incident is said to have been witnessed by Nabi Ahmad and Asgar Ali of the same village. Informant and the said witnesses tried to apprehend the accused appellant but he escaped towards the village by opening fire. It is also alleged in the written report that brother of appellant is also a goon and the villagers also fear him. It is further alleged that after the incident the children of the school ran towards their home and the villagers also closed their doors due to fear of these musclemen.

3. Informant Akhtar Ali went to the police station, which was situated at a distance of 6 Kms where a written report (Ext. Ka-8) was lodged by the informant, as Crime No. 534 of 2002, under Sections 302 I.P.C. and Section 7 Criminal Law Amendment Act, at 9.45 a.m. on the same day after getting the same scribed by one Ashraf Ali son of Asgar Ali of village Korbaku, P.S. Bhojpur, District Morabad.

4. Constable Om Sharma prepared the Chik FIR (Ext. Ka-3) and the relevant GD entry (Ext. Ka-4) and the case was registered on the same day. Investigation of the crime commenced, by P.W-5 Sub Inspector Chandra Pal Singh, who after making G.D. entries and other formalities recorded 161 Cr.P.C. statement of the informant and witnesses and after completing the inquest proceedings (Ex. K.- 5) sent the dead body of deceased Hasrat Ali for postmortem vide papers (Ex-Ka-8 to Ka-14).

5. The autopsy on the dead body of the deceased was performed by Doctor Megh Singh, P.W.-3, who submitted his report (Ex-Ka-2). Following anti-mortem injury was detected by the doctor:-

"Gun shot wound of entry 2.5 cm X 1.5 cm chest cavit deep over left side of chest wall, 4 cm below left nipple blackening and charring present around the wound margins are inverted."

6. During the course of investigation, the appellant was not found for fifteen days and was absconding. He could be apprehended only on 13.11.2002 at about 7.30 a.m. (exactly after 18 days of the incident), when he was seen, he started firing at police personnel from Tanda Road. The police recovered a pistol of 315 bore with an empty cartridge in its barrel and one live cartridge from his pocket. A recovery memo (Ex-Ka-13) was prepared by Sub Inspector S. P. Singh and accused-appellant was sent to jail. Sub Inspector Chandrapal Singh got an FIR lodged on 13.11.2002 against the present appellant under section 307 IPC and Section 25 of Arms Act at the police Station vide Ex. Ka-17. Investigation of these cases were conducted by P.W.-6 Sub Inspector Vijay Bhan Singh Bhadauria.

7. The cases were investigated by the Investigating Officers and thereafter three different charge sheets under Sections 302 IPC and Section 7 of Criminal Law Amendment Act, Section 25 Arms Act and Section 307 IPC were submitted to competent magisterial court.

8. The cases were committed to the court of Sessions for trial, where they were registered as Sessions Trial No. 338 of 2003 (State Vs. Furqan), under Section 302 IPC, P.S. Bhojpur, District Moradabad and Sessions Trial No. 133 of 2004 (State Vs Furquan), under Sections 307 IPC and Section 25 of Arms Act, P.S. Bojpur, District Moradabad.

9. Trial Judge framed the charges against the appellant on 18.4.2003 for offence under Section 302 IPC in Sessions Trial No. 338 of 2003 and again under Sections 307 IPC and Section 25 of Arms Act in Sessions Trial No. 133 of 2004 on 20.3.2004. Appellant denied the charge and claimed to be tried.

10. To bring home the guilt against the appellant, prosecution examined following six witnesses, which are as follows:-

Deposition of Akhtar Ali (informant)

Deposition of Akhtar Ali (informant)

05/08/13

15.10.2003

P.W.-1

Deposition of Nabi Ahmad

15.10.2003

P.W.-2

Deposition of Dr Megh Singh

02/01/04

P.W.-3

Deposition of Ashraf Ali

24.2.2004

P.W.-4

Deposition of SHO Chandra Pal Singh

22.7.2004

P.W.-5

Deposition of I.O. Vijay Bhan Singh Bhadauriya

03/08/04

P.W.-6

11. In support of their ocular versions, the following documents were filed:-

F.IR.

Exhibit Ka-3

F.I.R.

Exhibit Ka-16

Written report

Exhibit Ka- 1

Recovery memo of country-made pistol and live catridge and arrest of accused

ExhibitKa- 13

P.M. report

Exhibit Ka-2

Panchayatnama

Exhibit Ka-5

Charge Sheet

Exhibit Ka-14

Charge sheet

Exhibit Ka-22

Charge sheet

Exhibit Ka-21

Site Plan with Index

Exhibit Ka-12

Site Plan with Index

Exhibit Ka-15

12. The statement of the appellant was recorded under section 313 Cr.P.C. wherein he denied all the allegations and alleged false implication . The appellant did not lead any defence evidence before the learned trial court.

13. After conclusion of the trial, trial Judge convicted the appellant as aforesaid vide judgment and order dated 27.8.2004. It is this order which is subject matter of challenge before this court.

14. We have heard Mr Yogesh Srivastava, learned counsel for the appellant and Mr Rajeev Sharma, learned AGA for the State and perused the material on record.

15. Learned counsel for the appellant submits that the appellant has been wrongly convicted by the trial court. It is submitted that there are material contradictions in the testimonies of the witnesses of the prosecution. It has further been contended by the counsel for the appellant that the prosecution has not been able to establish the motive for the crime having been committed.

16. It is further submitted that even if allegations against the appellant are believed to be true, the case falls under Sections 304 Part I or 304 Part II IPC and not under Section 302 IPC. The incident took place on the spur of the moment and thus the appellant's case be considered under Section 304 Part II of the Indian Penal Code. It is further submitted that the appellant is in jail for more than 15 years.

17. Learned counsel for the appellant has further contended that it was an altercation on account of trivial matter of asking motorcycle by the appellant from the deceased. The submission is that over a trivial incident the appellant got provoked and fired a single gun shot on the person of the deceased and the appellant had no intention to kill the deceased, therefore, the culpable homicide of this degree is punishable under the first or second part of Section 304 IPC. Further, contention is that the conviction of the appellant under Section 302 IPC is not sustainable and it deserves to be converted into one under Section 304 part I or Part II IPC. In support of his argument, learned counsel for the appellant has relied on the case of Rajinder Vs State of Haryana, 2006 Law Suits (SC) 477.

18. Per contra, learned AGA for the State submits that the prosecution has been able to establish its case beyond any iota of doubt. Counsel further submits that the testimonies of the material witnesses PW 1 Akhtar Ali, P.W-2 Nabi Ahmad coupled with the testimony of PW 3 Dr. Megh Singh, who proved the postmortem of the deceased Hasrat Ali are consistent. It is further submitted that the prosecution has been able to establish the motive of the appellant which is corroborated by the testimony of PW 2 Nabi Ahmad that on the date of incident there was exchange of words between appellant and deceased over asking of motorcycle, which was denied by the deceased. It is also submitted that the appellant had a personal grudge against the deceased which resulted in the alleged incident. It is further submitted that in every case of single injury, it cannot be said that the intention to kill is absent. It would depend on facts of each case. Therefore, the contention of appellant that it is a case of a single injury resulting in death and, therefore, the offence deserves to be converted from one under Section 302 IPC to one under Section 304 IPC cannot be accepted. Lastly, learned counsel for the State submits that the evidence produced on record clearly establishes the guilt of the appellant and the learned trial court has rightly convicted the appellant for the offence punishable under Section 302 of the Indian Penal Code, hence the impugned judgment does not warrant any interference.

19. In light of the decision rendered by the Apex Court in R. Shaji v. State of Kerala, AIR 2013 SC 651, it would be relevant for us to not only refer to testimony of witnesses but to also give our findings on the aspect whether guilt is proved to the hilt or not. In the said decision, the Apex Court held that in matter of appreciation of evidence of witnesses, it is not the number of witnesses but, the quality of their evidence, which is important, as there is no requirement in the law of evidence stating that a particular number of witnesses must be examined in order to prove/disprove a fact. It is a time honoured principle that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise.

20. Before we deal with the rival submissions of counsel for the parties, we deem it appropriate to refer to the testimonies of the material witnesses in detail. The case of the prosecution rests on the testimonies of PW 1 Akhtar Ali (informant), PW 2 Nabi Ahmad (eye witness) who are natural eyewitnesses to the incident.

21. Informant P.W.-1 Akhtar Ali in his deposition initially has stated that on 25.10.2002 when he along with his son Hasrat Ali (deceased) were going to their field on motorcycle and as soon as they reached near the lavatory of the Primary School, appellant came and demanded that deceased give him the motorcycle for use, which was denied by his son Hasrat Ali (deceased) by saying that appellant is a mischief monger who is always involved in terrorizing the people and this statement of Hasrat Ali (deceased) infuriated & provoked the appellant. Appellant thereafter threatened to take him to task and said "you had earlier also refused me to give the motorcycle" and soon thereafter he pulled out a country made pistol (Tamancha) from his pocket and fired at deceased from a close range, which hit his son on his left side chest as a result of which he died instantaneously. At that time, witnesses Nabi Ahmad and Asgar Ali also came there. He along with these witnesses tried to apprehend the appellant but he ran away from the spot shooting fire in the air. A ruckus emerged in the village out of the said firing and the people of the vicinity closed their doors. However, in his cross examination, P.W.-1 Akhtar Ali has admitted that there was no previous enmity with the accused. It is the appellant who murdered his son by use of firearm from a very close range and the deceased fell down after walking 2-4 paces, the blood of the deceased oozed out from the wound and it also spilted on the soil.

22. P.W.-2 who was a eye witness (Nabi Ahmad) in his deposition has stated that while he was coming after putting the grains at flour mill, he saw the deceased and his father, near the Primary School, going towards their field on a motorcycle and as soon as they entered the ground of the Primary School, appellant came there and demanded that the deceased Hasrat Ali give him the motorcycle, which was refused by the deceased Hasrat Ali, which infuriated the appellant. Appellant thereafter took out the country made pistol and fired at deceased Hasrat Ali which hit him in his chest and he died on the spot. He has deposed that he witnessed the incident. However, in the cross-examination, he deviated from his earlier statement and stated that while he was coming after placing the grain at the flour mill, he was only 10-15 paces away. He saw the appellant running away from the spot. It is also stated by him that he could not see the face of the accused and he could only see him from behind while he was running away firing in the direction of the village.

23. This Court is mindful of the fact that in trial for the offence of murder, where the witnesses are close relatives of deceased in any manner, it is necessary to examine the evidence given by such witness very carefully and scrutinize the infirmities in that evidence before deciding to act upon it. However, relationship is not a factor to affect the credibility of a witness. It is trite law in criminal jurisprudence that version of an eyewitness cannot be discarded merely on the ground that such witness happened to be a relative of the deceased. Where the presence of eyewitness is proved to be natural and the statement given by such witness is nothing but, truthful disclosure of actual facts leading to occurrence, then such statement could not be discarded.

24. We have carefully examined the testimony of these two witnesses and we believe that despite the presence of some minor discrepancies, their testimony can be accepted for establishing the guilt of appellant. Their statements are wholly reliable and it cannot be said that these two witnesses have any reason to depose falsely. The depositions of these two witnesses also get support from the postmortem report (Ex-Ka-2) and the testimony of Dr. Megh Singh (P.W.-3), who has noted the presence of blackening and charring over the wound which establishes that shot was made from a very close range. We are even fortified in our view that the accused was the person who had perpetrated the crime from the observations made herein above, we do not think it appropriate to take a different view then that taken by the learned Trial Judge.

25. Considering all facts and circumstances of the case, it is evident that prosecution has been able to bring home the guilt of accused-appellant by trustworthy and unimpeachable evidence. Learned trial judge has marshalled the facts and evidence adroitly. Sufficient evidence has been placed to establish the guilt of the appellant.

26. Now another question remains to be answered is nature of offence committed by accused person and whether it falls under any exception of Section 300 IPC ?

27. The fact of the matter is that it is apparent that incident occurred without premeditation. Evidence discloses that it was an altercation on account of trivial matter of begging the motorcycle by the appellant from the deceased. This was the basis of the incident. Incident occurred without any premeditation and in the heat of passion upon a trivial matter.

28. The counsel for the appellant has argued that the present case is squarely covered under Exception 4 of Section 300 IPC, which reads as under:

"300. Murder-

Exception 1. - xxxx xxxx xxxx xxxx Exception 2. - xxxx xxxx xxxx xxxx Exception 3. - xxxx xxxx xxxx xxxx 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 offenders 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."

29. It was further argued that the incident in question took place on a sudden fight without any premeditation and the act of the appellant hitting the deceased was committed in the heat of passion upon a sudden quarrel without the appellant having taken undue advantage or acting in a cruel or unusual manner.

30. As far as the submission of counsel for the appellant that the case under Section 302 of the Indian Penal Code would not be made out against the appellant, it is necessary to understand what constitutes Culpable homicide and Murder.

31. It will be useful to refer to the decision rendered by the Apex Court in the case of Chacko @ Aniyan Kunju and others Vs State of Kerala, (2004) 12 SCC 269, wherein it was held as under:

"All "murder" is "culpable homicide" but not vice versa. Speaking generally, "culpable homicide" sans "special characteristics of murder is culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of the generic offence, IPC practically recognizes three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the gravest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type.

10. The academic of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304. Distinction between "murder" and "culpable homicide not amounting to murder" has always vexed the courts. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow 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 Section 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences:

1. Clause (b) of Section 299 corresponds with Clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under Clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the "intention to cause death" is not an essential requirement of Clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim is sufficient to bring the killing within the ambit of this clause.

2. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under Clause (2) of Section 300 can be where the assailant causes death by a fist-blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. In Clause (3) of Section 300, instead of the words "likely to cause death" occurring in the corresponding Clause (b) of Section 299, the words "sufficient in the ordinary course of nature" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between Clause (b) of Section 299 and Clause (3) of Section 300 is one of degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word "likely" in Clause (b) of Section 299 conveys the sense of probability as distinguished from a mere possibility. The words "bodily injury ... sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature."

32. In another case of Pulicherla Nagaraju @ Nagaraju @ Nagaraja Reddy Vs State of Andhra Pradesh, (2006) 11 SCC 444, the Hon'ble Supreme Court enumerated some of the circumstances relevant to find out whether there was any intention to cause death on the part of the accused. The Court observed as under:

"...Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable Under Section 302, are not converted into offences punishable Under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable Under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre-meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention..."

33. Further, in the case of State of Rajasthan Vs Dhool Singh, (2004) 12 SCC 546, the Hon'ble Supreme Court has observed that in order to determine whether there was intention to kill or not is to be determined while keeping in mind whether the injury was caused on vital body part and the nature of the weapon used. The number of injuries inflicted shall be irrelevant. The relevant part of the judgment is reproduced as under:

"13. In regard to the finding of the High Court that the prosecution has not even established that the respondent herein had acted with an intention of causing death of the deceased we must note that the same is based on the fact that the respondent had dealt a single blow which according to the High Court took the act of the respondent totally outside the scope of Exception I to Section 300 IPC. Here again we cannot agree with the finding of the High Court. The number of injuries is irrelevant. It is not always the determining factor in ascertaining the intention. It is the nature of injury, the part of body where it is caused, the weapon used in causing such injury which are the indicators of the fact whether the respondent caused the death of the deceased with an intention of causing death or not. In the instant case it is true that the respondent had dealt one single blow with a sword which is a sharp-edged weapon measuring about 3 ft. in length on a vital part of body namely the neck. This act of the respondent though solitary in number had severed sternoclinoid muscle, external jugular vein, internal jugular vein and common carotid artery completely leading to almost instantaneous death. Any reasonable person with any stretch of imagination can come to the conclusion that such injury on such a vital part of the body with a sharp-edged weapon would cause death. Such an injury in our opinion not only exhibits the intention of the attacker in causing the death of the victim but also the knowledge of the attacker as to the likely consequence of such attack which could be none other than causing the death of the victim. The reasoning of the High Court as to the intention and knowledge of the respondent in attacking and causing death of the victim, therefore, is wholly erroneous and cannot be sustained."

34. Similar view was taken by the Hon'ble Supreme Court in Arun Raj Vs Union of India & others, JT 2010 (5) SC 1, wherein the Court observed as under:

"9. We now turn to second point urged on behalf of the appellant. It is contended by learned counsel that there was no intention on the part of the appellant to cause the death of the deceased and, hence, Section 304 Part II of the IPC which deals with culpable homicide not amounting to murder, will be attracted. Alternatively, it is contended that the appellant dealt one single blow on the deceased, and hence, intention to cause death cannot be attributed to the appellant and, hence, the act of the appellant will not fall under Section 302 of IPC but under Section 304 Part II......

10) Essentially the ingredients for bringing an act under Part II of the Section are:-

(i) act is done with the knowledge that it is likely to cause death,

(ii) there is no intention to cause death, or to cause such bodily injury as is likely to cause death.

11) ....... In the present case, there has been no sudden altercation which ensued between the appellant and the deceased in the present case. The deceased called the appellant `gandu' following which there was a heated exchange of words between the two, the day before the murder. The next day, however, the appellant concealed a kitchen knife in his lungi and went towards the cot of the deceased and struck the deceased a blow on the right side of the chest, while the deceased was sleeping. The fact that the appellant waited till the next day, went on to procure a deadly weapon like a kitchen knife and then proceeded to strike a blow on the chest of the appellant when he was sleeping, points unerringly towards due deliberation on the part of the appellant to avenge his humiliation at the hands of the appellant. The nature of weapon used and the part of the body where the blow was struck, which was a vital part of the body helps in proving beyond reasonable doubt, the intention of the appellant to cause the death of the deceased. Once these ingredients are proved, it is irrelevant whether there was a single blow struck or multiple blows......"

35. In Surinder Kumar v. Union Territory, Chandigarh, (1989) 2 SCC 217, Apex 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, the Apex Court observed as under:-

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. (emphasis supplied).

36. In Ghapoo Yadav and Ors. v. State of M.P., (2003) 3 SCC 528, Apex 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 IPC. 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:

"10. .......... 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 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".

(Emphasis supplied)

xxx xxx xxx

"11......... 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 IPC is clearly applicable......."

(Emphasis supplied)

37. 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, Hon'ble Apex 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 IPC. 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. The Court observed as under:-

"19..........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 IPC. 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."

(Emphasis supplied)

38. 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 IPC. This Court held:

"4. ..............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 IPC 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) IPC........."

(Emphasis supplied)

39. Coming back to the facts of the present case, it is clear that there was sudden altercation between the parties which resulted in the fatal mishap. As per the testimony of PW-1 Akhtar Ali (informant), on 25.10.2002, there was exchange of words between appellant and deceased which led to a scuffle over the use of motorcycle. Evidence also discloses that there was no pre-meditation based on a prior enmity. One fatal injury was inflicted. The appellant did not act in a cruel and unusual manner. Thus, in our view, in the present case it cannot be said that the appellant had come with a motive and with pre-meditation to commit murder of the deceased. If the intent was to murder the deceased, he would not have done so at the crowded place as indicated by the prosecution. In this case, the evidence sans the element of intent to murder the deceased. The appellant did not take any undue advantage nor acted in a cruel or unusual manner. We have bestowed our best of consideration to the facts of the present case.

40. In the aforesaid circumstances, we are of the considered view that it is a case of culpable homicide not amounting to murder within the ambit of Exception 1 to 4 of Section 300 IPC. On overall scrutiny of the facts and circumstances of the present case coupled with the evidences as has come on record and the principles laid down by the Apex Court in the aforesaid cases, we are of the considered opinion that the offence would be one punishable under Section 304 part-I of the IPC in view of the fact that the death caused by the accused was not premeditated, accused had no intention to cause death of deceased, the injury was though sufficient in the ordinary course of nature to cause the death but accused had no intention to do away with deceased, hence the instant case falls under the Exceptions 1 and 4 to Section 300 of IPC.

41. In the result, we partly allow this appeal only to the extent that instead of Section 302 IPC, the appellant shall stand convicted for the offence of culpable homicide not amounting to murder punishable under Section 304 IPC Part I of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of already undergone. The fine imposed upon the appellant and the default sentence awarded to him shall remain unaltered.

42. The appeal is disposed of in the above terms in modification of the order passed by the Court below.

43. With the above modification, the appeal is allowed in part.

44. Copy of the order be sent to the concerned trial court within a fortnight for compliance.

Order Date:- 31.08.2017

Shailesh/