Allahabad High Court

Neelkanth vs State Of U.P. on 24 August, 2018

Bench: Anil Kumar, Anant Kumar




HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved
 
Court No. - 7
 

 
Case :- CRIMINAL APPEAL No. - 1792 of 2013
 

 
Appellant :- Neelkanth
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Govt. Advocate,Sonia Mishra
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Anil Kumar,J.

Hon'ble Anant Kumar,J.

( As per Anil Kumar, J.)

Heard Sri Rajiv Mishra and Ms. Soniya Mishra, learned counsel for the appellant, Sri Umesh Verma, learned Additional Government Advocate and perused the record.

This appeal has been filed against the judgment and order dated 26.4.2010 passed by learned Additional Sessions Judge, Court no.5 , Sitapur in Sessions Trial No.871 of 2008 ( State Vs. Neelkanth) arising out of Case Crime no.567 of 2008 whereby appellant/ Neelkanth has been convicted for the offence under section 302 IPC and sentenced to undergo life imprisonment, as also to pay a fine of Rs.5000/-. In default of payment of fine, accused Neelkant shall further undergo six months rigorous imprisonment.

Appellant has also been convicted for the offence under section 506 IPC and sentenced to undergo two years rigorous imprisonment. It was directed that both the sentences shall run concurrently.

Brief facts of the case are that complainant/ Ram Singh son of Mool Chand presented a written report on 24.7.2008 at 4.35 p.m. in Police Station Laharpur District Sitapur stating therein that on the same day i.e. on 24.7.2008 at about 2.00 p.m. he alongwith his mother Rooprani and cousin Maya Devi d/o Sankata Prasad was pasturing the goat. When they reached near the filed of Satrohan son of Baiju, Neelkanth son of Mohan Lal came and asked his mother to give his job card, however, his mother has stated that job card is not with her then appellant/Neelkant started beating her, so she has fallen down thereafter appellant assaulted on her neck with banka and she died.

On the alarm made by the complainant Ram Singh and his cousin Maya Devi, father of complainant and other villagers reached on the spot, Neelkanth has ran away from the spot after threatening them that he will also kill them.

After lodging the FIR being crime case no. 567 of 2008 under Section 302 and 506 IPC at Police Statioin Laharpur, District Sitapur, Investigating officer S.I. Mathup Nath Mishra has visited the spot, taken evidence of the witnesses, prepared the sit plan, collected the plain mud and blood stained mud of the spot in presence of the witnesses duly signed by them sent it to Forensic Science Laboratory thereafter sent the dead body of the Roop Rani for postmortem and also recovered the weapon/ Banka on the pointing out of accused.

Dr. Brijendra Mohan( P.W.4) who has conducted the postmortem of deceased Roop Rani on 25.7.2008 at 3.30 p.m. He has recorded the following anti-mortem injury on the person of deceased:-

"Incised wound of size 8.0 cm x 2.5 cm x bone deep on the right side neck 6.5 cm below right ear. On dissection right side carotid vessels found cut.

Dr. Brijendra Mohan has given an opinion about the death of deceased Roop Rani in its postmortem report that "cause of death due to shock and hemorrhage as a result of antimortem injury."

After completing the investigation, the investigating officer has submitted a charge-sheet. Accordingly, Sessions Trial No.871 of 2008 (State Vs.Neelkanth) has been registered in the court of Additional Sessions Judge, Court no.5, Sitapur.

The prosecution in order to support his version has produced Ram Singh/ complainant ( P.W.-1) , Maya Devi ( P.W.-2), Sankata ( P.W.-3) , Dr. Brijendra Mohan (P.W.-4), S.I. Mathup Nath Mishra ( P.W.-5) and Constable Hari Shanker Yadav ( P.W.-6) .

Accused appellant -Neelkanth has denied the charges leveled against him under section 313 Cr.P.C. and stated that he has been falsely implicated in this case.

Learned trial court after taking into consideration the oral as well as medical evidence particularly evidence given by Ram Singh/ complainant ( P.W.-1), Maya Devi (P.W.-2) has found the accused appellant-Neelkanth guilty and convicted him under sections 302 and 506 IPC.

Sri Rajiv Mishra and Ms. Soniya Mishra, learned counsel for the appellant submits that as per medical report there is only one injury of banka on the neck of the deceased/ Roop Rani whereas as per the statement given by Ram Singh/ complainant ( P.W.-1) , Maya Devi ( P.W.-2) there are two injuries of banka on the neck of the deceased so there is contradiction between the oral evidence vis-a-vis in medical evidence. However , trial court ignoring the evidence of P.W.-1 and P.W.-2 who are related/ interested witness and placing reliance on medical report passed the impugned judgment thereby convicting the appellant under sections 302 and 506 IPC..

Learned counsel for the appellant has also argued that on the date of incident accused appellant has demanded his job card from the deceased- Roop Rani. When she refused to give the Job Card to the accused appellant,he became angry and without predetermination of mind / intention he started beating Roop Rani when she fell down he caused injury by banka on her neck as a result of which she died, so the present case is a capable homicide and not amounting to murder thus it comes to within the purview of Section 304 Part II IPC, Keeping in view of the said fact as well as the fact that there there is no previous enmity between the accused appellant and the deceased Roop Rani who are relative of each other being Dewar and Bhabhi, so the sentence awarded to him by the trial court under section 302 read with Section 506 IPC is contrary to law as the incident took place due sudden provocation in which accused appellant has lost self control and assaulted the deceased by banka on her neck due to which she died. Appellant is in jail since 25.7.2008.

In support of his arguments, he has placed reliance on the judgment given by Hon'ble Apex Court in the case of Murlidhar Shivram Patekar and another Vs. State of Maharastra, 2014 (3) JIC 830 ( SC) .

Sri Umesh Verma, learned Additional Government Advocate submits that so far as the arguments raised by learned counsel for the appellant that there is contradiction between oral and medical evidence in respect to nature of banka injuries on the neck of the deceased is concerned, it has no significance in the present case because as per evidence given by eye witnesses Ram Singh/ complainant (P.W.-1) , Maya Devi ( P.W.-2), the deceased died due to injury caused by banka on the neck of the deceased by the accused appellant. The said facts has been supported by medical evidence as well as the statements of Dr. Brijendra Mohan ( P.W.-4), who conducted the postmortem .

Sri Umesh Verma, learned Additional Government Advocate submits that learned counsel for the appellant has strenuously urged that the injury caused by the accused was without predetermination/ intention but the facts eloquently speaks otherwise.

Learned Additional Government Advocate submits that as per the evidence on record it is clearly established that accused appellant asked his job card with banka in his hand. When deceased- Roop Rani has stated that the job card is not with her so he started beaten her and caused injury by banka on her neck as a result of which she died so it is clearly established and proved that appellant has knowledge and intention to kill her.

In order to bring a case Exception - 4 of Section 300, four requisites are to be satisfied which are as follows:-

(i) in a sudden fight ;

(2) without pre-meditation;

(3) the act was committed in a heat of passion; and

(4) the offender had not taken any undue advantage or acted in a cruel manner.

In the present case, the four requisites of Exception -4 are not satisfied, so the trial court has rightly convicted the accused under Section 302 I.P.C., as such the prayer, made on behalf of the appellant-accused for alteration of conviction for Section 302 IPC to Section 304 Part-II IPC cannot be accepted.

Sri Umesh Verma, learned Additional Government Advocate submits that the accused appellant caused injury by banka is on vital part i.e. neck of the deceased Roop Rani which is sufficient to cause death, so the said act on the part of the accused is squarely covered by Exception III of Section 300 so taking into consideration the said fact as well as the law laid down by Hon'ble the Apex Court in the case of Suchand Bouri Vs. State of West Bangal, 2009(17) SCC 63, there is no illegality or infirmity in the impugned judgment passed by learned trial court thereby convicting the accused appellant- Neelkanth under sections 302 and 506 IPC. Accordingly the present appeal has no merit and is liable to be dismissed.

In addition to documentary evidence , prosecution in order to prove its case has examined six witnesses.

Ram Singh (P.W.-1) who is the son of deceased/ eye witness. In his statement he has stated that on 24.7.2008 at about 2.00 p.m. he alongwith cousin Maya Devi and mother Roop Rani were pasturing the goat. When they reached the near the filed of Shatrohan. accused appellant Neetkant came with banka in his hand and asked his job card from my mother. As my mother stated that job card is not with her, appellant beaten my mother and when she fell down, he assaulted by banka to the neck of my mother as a result of which she died on the spot.

Maya Devi (P.W.-2) is an eye witness of the incident. She stated in her statement that on the date of incident she alonwith cousin Ram Singh and deceased Roop Rani ( Mausi) were pasturing the goat and when we reached near the field of Satrohan, accused appellant Neelkanth came with banka and asked his job card from Rooprani (Mausi ) which she denied , accused appellant has assaulted by banka on her neck as a result of which she died.

Sankata Prasad ( ( P.W.-3) is the witness in whose presence banka which used in committing the crime was recovered and plain and blood stained mud was collected and site place was prepared.

Dr. Brijendra Mohan ( P.W.-4) has conducted the postmortem of the deceased .

Sri Madhup Nath Mishra S.I. ( P.W.-5) who is an investigating officer of the case. After lodging the F.I.R. he went on the spot send the dead body to Mortuary, Sitapur and prepared the site plan.He also collected the plain mud as well as blood stained mud in presence of witness and sent it to Forensic Since Labratory and arrested the accused appellant and recovered the weapon from the possession of the accused appellant.

Sri C.P. Hari Shanker Yadav (P.W.-6) has stated that in his presence F.I.R. was lodged by Ram Singh Complainant on 24.7.2008 at Police Station Laharpur District Sitapur.

So far as the argument which raised by learned counsel for the appellant that Ram Singh ( P.W.-1) and Maya Devi ( P.W.-2) who are eye witnesses and are relative to deceased , so their evidence cannot be taken to be truth in order to hold guilty of the appellant is concerned, Hon'ble the Apex Court in the case of State of Uttar Pradesh Vs. Kishanpal and others (2008) 16 SCC 73 after placing reliance on earlier judgment passed in the case of State of Rajasthan Vs. Kalki (1981) 2SCC 752 has held in para 17, 18, 19 and 20 as under:-

"17.The plea "interested witness" "related witness" has been succinctly explained by this Court in State of Rajasthan vs. Smt. Kalki & Anr., (1981) 2 SCC 752. The following conclusion in paragraph 7 is relevant:

"7. As mentioned above the High Court has declined to rely on the evidence of PW 1 on two grounds: (1) she was a "highly interested" witness because she "is the wife of the deceased", and (2) there were discrepancies in her evidence. With respect, in our opinion, both the grounds are invalid. For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence, and the only person who saw the occurrence. True, it is, she is the wife of the deceased; but she cannot be called an "interested" witness. She is related to the deceased. "Related" is not equivalent to "interested". A witness may be called "interested" only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be "interested"."

From the above it is clear that "related" is not equivalent to "interested". The witness may be called "interested" only when he or she has derived some benefit from the result of a litigation in the decree in a civil case, or in seeing an accused person punished. A witness, who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be ''interested'.

18.The plea of defence that it would not be safe to accept the evidence of the eye witnesses who are the close relatives of the deceased, has not been accepted by this Court. There is 9 no such universal rule as to warrant rejection of the evidence of a witness merely because he/she was related to or interested in the parties to either side. In such cases, if the presence of such a witness at the time of occurrence is proved or considered to be natural and the evidence tendered by such witness is found in the light of the surrounding circumstances and probabilities of the case to be true, it can provide a good and sound basis for conviction of the accused. Where it is shown that there is enmity and the witnesses are near relatives too, the Court has a duty to scrutinize their evidence with great care, caution and circumspection and be very careful too in weighing such evidence. The testimony of related witnesses, if after deep scrutiny, found to be credible cannot be discarded.

19. It is now well settled that the evidence of witness cannot be discarded merely on the ground that he is a related witness, if otherwise the same is found credible. The witness could be a relative but that does not mean his statement should be rejected. In such a case, it is the duty of the Court to be more careful in the matter of scrutiny of evidence of the interested witness, and if, on such scrutiny it is found that the evidence on record of such interested witness is worth credence, the same would not be discarded merely on the ground that the witness is an interested witness. Caution is to be applied by the court while scrutinizing the evidence of the interested witness.

20.It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement. The ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible. Vide State of A.P. vs. Veddula Veera Reddy & Ors. (1998) 4 SCC 145, Ram Anup Singh & Ors. vs. State of Bihar (2002) 6 SCC 686, Harijana Narayana & Ors. vs. State of A.P. (2003) 11 SCC 681,Anil Sharma & Ors. vs. State of Jharkhand (2004) 5 11 SCC 679,Seeman @ Veeranam vs. State, By Inspector of Police (2005) 11 SCC 142, Salim Sahab vs. State of M.P. (2007) 1 SCC 699, Kapildeo Mandal and Ors. vs. State of Bihar, AIR 2008 SC 533, D. Sailu vs. State of A.P., AIR 2008 SC 505."

Keeping in view the principle as laid down by Hon'ble Apex Court in regard to interested and related witnesses and on careful examination of evidence of eye witnesses namely, Ram Singh (P.W.-1) and Maya Devi ( P.W.-2) the prosecution has established that accused has killed the deceased Roop Rani by assaulting on her neck by banka, so if there is some contradiction in respect to injury of banka on the neck of the deceased Roop Rani the same is immaterial. Once it has been proved by evidence/statement of doctor, who has conducted the postmortem that death of the deceased caused by assaulting banka on her neck.

Because in the case of Kishan Pal ( supra) Hon'ble the Apex Court after taking into consideration the law laid down in the case of State of Punjab Vs. jagir Singh ,(197) 3 SCC 277 and State of Rajasthan Vs. Kalki (1981) 2SCC 752 has held as under:-

"To the same effect is the decision in State of Punjab v. Jagir Singh, (1974) 3 SCC 277, Lehna v. State of Haryana, (2002) 3 SCC 76 .... As observed by this Court in State of Rajasthan v. Kalki (1981) 2 SCC 752, normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorised. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi v. State of Bihar, (2002) 6 SCC 81".

Further, the distinction between culpable homicide and murder has been laid down by Hon'ble the Apex Court in the case of Rampal Singh Vs. State of U.P. reported in 2012 Cri. L.J. 3765, as under:-

"14. This Court has time and again deliberated upon the crucial question of distinction between Sections 299 and 300 of the Code, i.e., 'culpable homicide' and 'murder' respectively. In the case of Phulia Tudu and Anr. v. State of Bihar (now Jharkhand) [AIR 2007 SC 3215], the Court noticed that confusion is caused if courts, losing sight of the true scope and meaning of the terms used by the legislature in these sections, 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 these sections. The Court provided the following comparative table to help in appreciating the points of discussion between these two offences:

Section 299

Section 300

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

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

Intention

(a) with the intention of death; or

(1) with the intention of causing death; or

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

injury as is likely to cause death; or

(2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; or

(3) with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or

KNOWLEDGE

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

15. Section 300 of the Code states what kind of acts, when done with the intention of causing death or bodily injury as the offender knows to be likely to cause death or causing bodily injury to any person, which is sufficient in the ordinary course of nature to cause death or the person causing injury knows that it is so imminently dangerous that it must in all probability cause death, would amount to 'murder'. It is also 'murder' when such an act is committed, without any excuse for incurring the risk of causing death or such bodily injury. The Section also prescribes the exceptions to 'culpable homicide not amounting to murder'. The explanations spell out the elements which need to be satisfied for application of such exceptions, like an act done in the heat of passion and without pre-mediation. Where the offender whilst being deprived of the power of self-control by grave and sudden provocation causes the death of the person who has caused the provocation or causes the death of any other person by mistake or accident, provided such provocation was not at the behest of the offender himself, 'culpable homicide would not amount to murder'. This exception itself has three limitations. All these are questions of facts and would have to be determined in the facts and circumstances of a given case." (See. Also Phulia Tudu and Anr. v. State of Bihar (now Jharkhand) [AIR 2007 SC 3215).

Hon'ble the Supreme Court in the case of Suchand Bouri Vs. State of West Bengal, (2009) 17 SCC 6 in paras 10 ,11 12,15 and 16 has held as under:-

"10.It would be preposterous to assume any proposition in law that in a case of solitary blow on a vital part of the body that results the death, the offence must necessarily be reduced to culpable homicide not amounting to murder. Legal position has been most appropriately summed up, which has now become a classic statement with regard to exposition of Section 300 "Thirdly", by Vivian Bose, J. in Virsa Singh Vs. State of Punjab,1958 Cri LJ 818. Vivian Bose, J. analysed Section 300 "Thirdly" by laying down that the prosecution must prove the following facts before it can bring a case under Section 300 "Thirdly":

"First, it must establish, quite objectively, that a bodily injury is present;

Secondly, the nature of the injury must be proved; These are purely objective investigations.

Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.

Once these three elements are proved to be present, the enquiry proceeds further and,

Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender."

Learned Judge further went on to observe:

"Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under Section 300 "thirdly". It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature ( not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional."

11. The tests laid down by this Court in Virsa Singh have been consistently followed by the Courts as providing the guidelines when an issue regarding the nature of offence whether murder or culpable homicide not amounting to murder is raised before the Court.

12. The determinative factor in Section 300 ''Thirdly' is the intentional injury which must be sufficient to cause death in the ordinary way of nature. It is immaterial whether the offender had knowledge that an act of that kind will be likely to cause death. The offender's subjective knowledge of the consequences is irrelevant. The result of the intentionally caused injury must be viewed objectively. To find out whether the offender had intention to cause such bodily injury which in the ordinary course of nature was sufficient to cause death, the diverse factors need to be kept in mind such as: the force with which the blow has been dealt with, the type of weapon used, the vital organ or the particular spot of the body targeted, the nature of the injury caused, the origin and genesis of the crime and the circumstances attendant upon the death. [Jagrup Singh v. State of Haryana 1981 Cri LJ 1136 ; and Ramashraya and Anr. V. State of M.P. 2001 Cri LJ 1452]

15. For the invocation of Exception 4 to Section 300 IPC, it has to be probablised by the defence that the death is occurred: (i) in a sudden fight ; (2) without pre-meditation; (3) the act was committed in a heat of passion; and (4) the offender had not taken any undue advantage or acted in a cruel manner. The existence of all the four requisites must be probablised. In absence of existence of any of the four requisites, Exception 4 has no application. By means of judicial decisions, the expression "sudden fight" occurring in Exception 4 of Section 300, though not defined, has been explained. "Sudden fight" implies mutual provocation; a bilateral transaction in which blows are exchange - the fight is not per se palliating circumstance, only an unpremeditated fight is such. The expression "heat of passion" has been explained by the Courts to mean that there is no time for passion to cool down. The act must have been committed in a fit of anger. Unfortunately, in the present case none of the four requisites of Exception 4 exists much less all the four requisites. The instant case is not a case of sudden fight nor the act can be said to have been committed in a heat of passion. As a matter of fact, the appellant had a pre-existing malice against the deceased. The appellant is not at all entitled to the benefit of Exception 4.

16. In what we have discussed above, the conviction of the accused under Section 302 IPC and sentence awarded to him cannot be said to suffer from any legal infirmity."

Hon'ble the Apex Court in the case of Virsa Singh Vs. State of Punjab, AIR 1958 SC 465(V45 C71) in para 12 and 13 it has held as under:-

"(12)To put it shortly, the prosecution must prove the following facts before it can bring a case under s. 300, 3rdly" ;

First, it must establish, quite objectively, that a bodily injury is present ;

Secondly, the nature of the injury must be proved; These are purely objective investigations.

Once these three elements are proved to be present, the enquiry proceeds further and,

(13) Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under s. 300, 3rdly. It does not matter that there was no intention to cause death. It does not matter that there was Do intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional."

And in the case of Sukhlal Sarkar Vs. Union of India and others, 2012 CRI.L.J. 3032 ( SC) wherein Hon'ble the Supreme Court in paras 10 and 11 has held as under:-

"10.The meaning of the expressions "grave" and "sudden" provocation has come up for consideration before this Court in several cases and it is unnecessary to refer to the judgments in those cases. The expression "grave" indicate that provocation be of such a nature so as to give cause for alarm to the appellant. "Sudden" means an action which must be quick and unexpected so far as to provoke the appellant. The question whether provocation was grave and sudden is a question of fact and not one of law. Each case is to be considered according to its own facts.

11. Under Exception 1 of Section 300, provocation must be grave and sudden and must have by gravity and suddenness deprived the appellant of the power of self-control, and not merely to set up provocation as a defence. It is not enough to show that the appellant was provoked into loosing his control, must be shown that the provocation was such as would in the circumstances have caused the reasonable man to loose his selfcontrol. A person could claim the benefit of provocation has to show that the provocation was grave and sudden that he was deprived of power of self-control and that he caused the death of a person while he was still in that state of mind."

In the case of Murlidhar Shivram Patekar and another Vs. State of Maharashtra 2014 (3) JIC 830 (SC) after considering the law laid down in the case of Surinder Kumar Vs. Union of Territory of Chandigarh (1989) 2 SCC 217 Hon'ble Apex Court has held as under:-

"The question however still remains as to the nature of the offence committed by the accused and whether it falls under Exception 4 of Section 300, IPC.

In the case of Surinder Kumar (supra), this Court has held as under:-

"7. 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 the benefit of this Exception provided he has not acted cruelly."

Further in the case of Arumugam v. State,,2009 (1) JIC 894 (SC): (2008) 15 SCC at page 595, in support of the proposition of law that under what circumstances Exception 4 to Section 300, IPC can be invoked if death is caused, it has been explained as under:-

"18. 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 Penal Code, 1860. 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 had 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'."

Further in the case of Satish Narayan Sawant v. State of Goa, ,2010 (1) JIC 97 (SC) this Court has held as under:

" 24. .......Section 300 IPC further provides for the Exceptions which will constitute culpable homicide not amounting to murder and punishable under Section 304. When and if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II.

28. .........Records clearly establish that there was indeed a scuffle between the parties with regard to the availability of electricity in a particular room and during the course of scuffle the appellant also received an injury which was simple in nature and that there was heated exchange of words and scuffle between the parties before the actual incident of stabbing took place. There is, therefore, provocation and the incident happened at the spur of the moment. That being the factual position, we are of the considered view that the present case cannot be said to be a case under Section 302 IPC but it is a case falling under Section304 Part II IPC. It is trite law that Section 304 Part II comes into play when the death is caused by doing an act with knowledge that it is likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as is likely to cause death."

Thus, if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not intention to cause murder and bodily injury then the same would fall under Section 304 Part II. We are inclined to the view that in the facts and circumstances of the present case, it cannot be said that the appellants/accused had any intention of causing the death of the deceased when they committed the act in question. The incident took place out of grave and sudden provocation and hence the accused are entitled to the benefit of Section 300 Exception 4 of IPC."

In the present case on 24.7.2008 accused appellant Neetkanth has came with banka and asked his job card from the deceased- Roop Rani . When she stated that the job card is not available with her , he started beating her and assaulted by banka on her neck as a result of which she died. Thus, accused-appellant has intention and knowledge that said act on his part is sufficient to cause death of Roop Rani. So the present case is not a case of sudden provocation without determination of mind.

Thus, we do not find any illegality or infirmity in the judgment and order dated 26.4.2010 passed by learned Additional Sessions Judge, Court no.5, Sitapur in Sessions Trial No.871 of 2008 (State Vs. Neelkanth) arising out of Case Crime no.567 of 2008.

For the foregoing reasons, the present criminal appeal lacks merit and is dismissed.

(Anant Kumar,J.) (Anil Kumar,J.)

Order Date :- 24.08.2018

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