Amar Pal Maurya vs State Of U.P.
2018 Latest Caselaw 589 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 
A.F.R.
 
Court No. - 10
 
Case :- CRIMINAL APPEAL No. - 1481 of 2015
 
Appellant :- Amar Pal Maurya
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Anuj Dayal
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Anil Kumar,J.

Hon'ble Sanjay Harkauli,J.

(As per Anil Kumar, J.)

Heard Sri Anuj Dayal, learned counsel for appellant-accused, Ms. Nand Prabha Shukla, learned AGA and perused the record.

Under challenge in the instant appeal is the judgment and order dated 03.11.2015 passed by Additional Sessions Judge, Court No. 4, Sitapur in Sessions Trial No. 928 of 2011 (State Vs. Amarpal Maurya) arising out of Crime Case No. 103 of 2011 under Section 302, 504 I.P.C. Police Station, Pisawan, District Sitapur whereby the appellant/Amar Pal Maurya was convicted for the offence under Section 302 I.P.C., sentenced with the imprisonment of life and also fine of Rs. 2000/- with the default stipulation of one year additional rigorous imprisonment.

In brief, case of the prosecution was that the complainant, Naresh S/o Puttu R/o Village - Dhakhaura Thana Piswan District Sitapur lodged a First Information Report at Thana - Pisawan District Sitapur on 20.03.2011 that his brother Raju who is a labour in Delhi had come to celebrate Holi festival at his house. Four months prior to the incident, Raju had given Rs. 1500/- as a loan to Amar Pal Maurya, on the said date at 01.30 p.m. when Raju went to take back his loan from Amar Pal Maurya, started abusing him, thereafter there was an altercation and fight taken place between them.

After hearing the noise, he, Mukesh, Sripal, Vishambhar and other persons of the village came to the spot, saw that Amar Pal Maurya with a knife assaulted his brother/Raju on chest and head, as a result of which he fallen down thereafter died.

Accordingly, an investigation had been entrusted to Ashok Kumar Pandey, Station Officer, Thana Piswana, District - Sitapur, a Crime Case No. 103/2011 under Sections 302, 504 I.P.C. has been registered.

On the same day, an entry in the GD (Exht. -5) has been made. The Investigating Officer, went on the spot, recover the knife, prepared recovery memo and also prepared site plan where knife was recovered (Exht. 14 and 12). After preparing the Panchnama and after taking the signature of the witnesses, sent the body of the deceased for autopsy/postmortem to the District Hospital, performed by Dr. A.K. Mishra, as per the autopsy report, the following injuries were found on the body of the deceased/Raju:-

"1. Stab wound 1.5 cm X 1 Cm X chest cavity deep present on chest 5 cm to right of left nipple horizontally & 10 cm below sternal notch : underlying heart is penetrated & 1.5 litres of liquid & clotted blood present in chest cavity edges of wound clear cut & curved with sharp angles at both ends.

2. Incised wound present over right side of head 1.5 cm. X 1 cm X bone deep edges everted & clear cut.

And cause of death was due to shock and blood oozing as a result of injury NO. 1 1 (Antemortem).

Thereafter, S.T. Case No. 928/2011 has been instituted under Section 302, 504 I.P.C. Charges were framed against the accused-Amar Pal Maurya.

On behalf of the prosecution, following witnesses were produced:-

1. P.W.-1/Naresh-complainant

2. P.W. - 2/Mukesh

3. P.W.-3/Dr. A.K. Mishra

4. P.W.4/Head Const. Girish Dutt Pandey

5. P.W.-5/Inspector Ashok Kumar Pandey.

And following documentary evidences were also produced by the prosecution:-

 
"1   प्रदर्श क -- 1 	तहरीर 
 
2   प्रदर्श क -- 2 	पंचायतनामा 
 
3   प्रदर्श क -- 3 	पोस्ट मोर्टेम रिपोर्ट 
 
4   प्रदर्श क -- 4   	नक़ल चिक एफ० आई० आर० 
 
5   प्रदर्श क -- 5   	नक़ल जी० डी० 
 
6   प्रदर्श क -- 6   	नमूना मोहर 
 
7   प्रदर्श क -- 7   	चिट्ठी आर० आई० 
 
8   प्रदर्श क -- 8  	 फोटो नाश 
 
9   प्रदर्श क -- 9  	चिट्टी थाना 
 
10  प्रदर्श क -- 10    	चिट्टी प्रतिसार निरीक्षक
 
11   प्रदर्श क -- 11    फर्द
 
12   प्रदर्श क -- 12    नक्शा नजरी
 
13   प्रदर्श क -- 13   फर्द बरामदगी आला क़त्ल  
 
14   प्रदर्श क -- 14   नक्शा बरामदगी आला क़त्ल  
 
15   प्रदर्श क -- 15   रासायनिक परिक्षण आख्या 
 
16   प्रदर्श क -- 16   आरोप पत्र 
 
17   प्रदर्श क -- 17   नक़ल जी० डी० वापसी  
 
18   प्रदर्श क -- 18   नक़ल जी० डी० वापसी
 
19   प्रदर्श क -- 19   विधि विज्ञानं प्रायोग्यशाला की आख्या 
 
20  प्रदर्श क --  20   रिपोर्ट विधि विज्ञानं प्रायोग्यशाल | एवं वास्तु प्रदर्श 1 			& चाकू तथा प्रदर्श कपड़ा |"
 

 
	Appellant-accused/Amar Pal Maurya denied his guilt under Section 313 Cr.P.C. stated that due to enmity in respect to the land dispute between him and complainant, he has been falsely implicated.
 

Trial court after taking into consideration the documentary and oral evidences on record, particularly the evidence given by P.W.-1 and the recovery of the weapon at his instance, come to the conclusion that so far as the matter under Section 504 IPC has not been proved beyond doubt, acquitted the accused under Section 504 IPC, however, convicted him under Section 302 IPC.

Sri Anuj Dayal, learned counsel for appellant-accused at the very outset submits that he restricts his argument only to the extent for conversion of the sentence from Section 302 IPC to Section 304 Part II IPC and submits that from the evidence on record, it is clearly established that deceased/Raju himself went to the house of the accused to get back Rs. 1500/- given by him as a loan to the accused and some hot talks/altercation taken place, as a result of which without predetermination in a sudden quarrel/fight, without any intention the incident took place, as a result of which the deceased died, so in view of Exception 1 or Exception 4 of Section 300, it is culpable homicide not amounting to murder.

Accused has no intention to kill the deceased/Raju, even if he has knowledge that by his act Raju may die, the conviction awarded to him may be alter from Section 302 I.P.C. to 304 I.P.C. In support of his argument he rely on the following judgments:-

1. Hunsa Singh Vs. State of Punjab, 1976 (4) SCC 255

2. Mandanlal Vs. State of Punjab, 1992 Supp. (2) SCC

3. Sukhdev Singh Vs. Delhi State (Govt. of NCT of Delhi), 2003 (7) SCC 441

4. Muthu Vs. State by Inspector of Police, Tamilnadu, 2009 (17) SCC 433

5. Chinnathman Vs. State represented by Inspector of Police, 2007 (14) SCC 690.

6. State of Punjab Vs. Jagtar Singh and others, 2011 (14) SCC 678

7. Budhi Singh Vs. State of Himanchal Pradesh, 2012 (13) SCC 663.

8. Mohindar Pal Jolly Vs. State of Punjab, 1979 (3) SCC 30

9. Vinit Kumar Chouhan Vs. State of U.P., 2007 (14) SCC 660

10. Phulia Tadu and others Vs. State of Bihar, 2007 (14) SCC 588.

Ms. Nand Prabha Shukla, learned AGA submits that learned counsel for appellant-accused has strenuously urged that the injury caused by the accused was without predetermination/intention but the facts eloquently speaks otherwise. As per the evidence on record specially the evidence of P.W. - 1 who is eye witness, accused with an intention to kill the deceased/Raju had given two blow by his knife on his head and chest, as a result of which he died, the said fact is supported by postmortem report and the evidence of P.W. 3/Dr. A.K. Mishra.

She further submits that 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. In support of her argument, she has placed reliance on the judgment given by the Apex Court in the case of Sunil Khergade Vs. State of Maharashtra, 2015 (153) AIC 58 (SC).

Learned AGA further submits that from the evidence given by P.W.-1/Naresh, it is clearly established that the knife used by the accused for killing deceased is of 8 or 9 angul in length and after giving a swing (Ohar ), the same was stabbed in the chest of the deceased, so there was an intention on the part of the appellant-accused/Amar Pal Maurya for causing such bodily injuries is sufficient in an ordinary course of nature to cause death, so the act of the accused was squarely covered by Exception 3 to Section 300, taking into consideration the said facts and as per the law laid down by Hon'ble the Apex Court in the case of Suchand Bouri Vs. State of West Bengal, 2009 (17) SCC 63, there is no illegality or infirmity in the judgment dated 03.11.2015 passed by trial court thereby convicting the appellant-accused/Amar Pal Maurya under Section 302 I.P.C.

As stated above, learned counsel for appellant-accused/Amar Pal Maurya has not challenged the conviction of the appellant-accused/Amar Pal Maurya but restricted his argument only to the extent that even entire case of prosecution is taken to be true, even then, the offence would not travel beyond the purview of Section 304 Part (II) I.P.C.

We have carefully perused the evidence given by the witnesses of facts, namely, P.W.1/Naresh and P.W. - 2/Mukesh and other material document on record.

P.W. 1/Naresh in his evidence stated that deceased has given Rs. 1500/- to appellant-accused/Amar Pal Maurya, when he went to take it back, appellant-accused/Amar Pal Maurya abused him and altercation/fight has taken place between them, after hearing the noise, he came out from his house and when he was 10 to 15 steps from the place of incident, seen that accused has stabbed twice by the knife on the deceased on his chest and head, he has fallen down and died.

So far as the P.W.-2, the trial court after taking into consideration the totality of his evidence came to the conclusion that he is not eye witness and not placed any reliance on his evidence.

Accordingly, as per the facts of the case, the core question to be considered in the instant matter whether the death of deceased/Raju is a culpable homicide or murder.

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

KNOWLEDGE

(c) with the knowledge that the act is likely to cause death .

(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 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).

In the case of K. Ravi Kumar Vs. State of Karnataka reported in (2015) 2 SCC 638 Hon'ble the Apex Court has again considered the distinction between Section 302 I.P.C. and Section 304 I.P.C. And has observed in paragraph no. 11 to 15 as under:-

"11. In Surinder Kumar v. Union Territory, Chandigarh (1989) 2 SCC 217, this 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, this Court observed:

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 to the benefit of this exception provided he has not acted cruelly."

12. In Ghapoo Yadav and Ors. v. State of M.P. (2003) 3 SCC 528, this 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 300Indian Penal Code. 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 Indian Penal Code 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".

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 Indian Penal Code is clearly applicable......

13. 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 this 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 Indian Penal Code. 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. This Court observed:

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 Indian Penal Code. 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.

14. 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 Indian Penal Code. 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 Indian Penal Code 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) Indian Penal Code.........

15. The law laid down in the aforesaid cases was considered and applied recently by this Court in the case reported in Ankush Shivaji Gaikwad v. State of Maharashtra (2013) 6 SCC 770. In this case also, the Appellant-accused while passing on the field of the deceased on a spur of moment indulged in heated talk with the deceased which resulted in hitting a blow by the Appellant-accused to the deceased with the rod causing death of the deceased. Justice T.S. Thakur, speaking for the Bench, accepted the plea raised by the Appellant-accused and accordingly altered the sentence falling Under Section 304 Part II Indian Penal Code by giving him the benefit of Exception 4 of Section 300 Indian Penal Code. It was held by this Court as under:

"27......... we are of the opinion that the nature of the simple injury inflicted by the accused, the part of the body on which it was inflicted, the weapon used to inflict the same and the circumstances in which the injury was inflicted do not suggest that the Appellant had the intention to kill the deceased. All that can be said is that the Appellant had the knowledge that the injury inflicted by him was likely to cause the death of the deceased. The case would, therefore, more appropriately fall Under Section 304 Part II Indian Penal Code."

In the case of Jhaptu Ram Vs. 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 Budhi Singh Vs. 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 Rampal Singh Vs. State of Uttar Pradesh reported in (2012) 8 Supreme Court Cases 289, Hon'ble the Apex Court has considered the legal aspect as to when culpable homicide would amount to murder and when it would not amount to murder. Hon'ble the Apex Court has held in paragraph no. 22 as under:-

"22. Thus, where the act committed is done with the clear intention to kill the other person, it will be a murder within the meaning of Section 300 of the Code and punishable under Section 302 of the Code but where the act is done on grave and sudden provocation which is not sought or voluntarily provoked by the offender himself, the offence would fall under the exceptions to Section 300 of the Code and is punishable under Section 304 of the Code. Another fine tool which would help in determining such matters is the extent of brutality or cruelty with which such an offence is committed."

In the case of Muthu vs State By Inspector Of Police, 2009 (17) SCC 433, whereby the facts of the case in short are to the effect that the accused/Muthu while opening the shop he was arranging the articles kept inside the shop, the deeased who used to collect waste paper from the roadside, collected the waste papers and cardboard boxes and thrw them inside th shop of the accused. On seeing this the accused got angry and pulled he deceased and he took a knife from the top of a table in the shop and stabbed the deceased in the chest. The deceased succembed injuries and died. Taking into considration the sid facts, Hon'ble the Apex Court in paragraph No. 10 , 11 & 12 held as under:-

"10. The observation of the court in the above decision that "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" cannot, in our opinion, be understood to mean that the court should somehow try to find out some way of treating the offence to be under Section 302 IPC. In our opinion, there is a clear distinction between a case of pre-meditated attack with intention to cause death and a case where there was no such pre- meditated intention and death was caused in the heat of the moment or fit of anger during an altercation or quarrel.

11. No doubt, even in the heat of the moment or fit of anger one should not attack somebody since human beings are different from animals inasmuch as they have the power of self-control. Nevertheless, the fact remains that in the heat of the moment and in a fit of anger people some times do acts which may not have been done after premeditation. Hence the law provides that while those who commit acts in the heat of the moment or fit of anger should also be punished, their punishment should be lesser than that of premeditated offences. It is for this reason that Exceptions I and 4 have been inserted in Section 300 IPC.

12. We may also refer to Exception 4 to 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".

In the case of Chintaman Vs. State represented by Inspector of Police, 2007 (14) SCC 690, in paragraph No. 14 Hon'ble the Supreme Court held as under:-

"This Court has considered the submissions advanced at the bar for the purpose of imposition of sentence on the appellant for commission of offence punishable under Section 304 Part II IPC. As held earlier there was no pre-meditation or pre plan on the part of the appellant to cause death of the deceased, and the occurrence had taken place when the deceased, with another had entered the field of the appellant and engaged himself in an altercation with the appellant when the appellant had refused to part with bitter guard. Having regard to the attending circumstances in which the incident had taken place, this Court is of the opinion that the interest of justice would be served if the appellant is sentenced to rigorous imprisonment for five years for commission of offence punishable under Section 304 Part II IPC."

In the State of Punjab Vs. Jagtar Singh and others, 2011 (8) SC 300, Hon'ble the Supreme Court held that if an act has been done in grave and sudden provocation Exception 1 of Section 300 IPC comes into play.

Accordingly, converted the sentence awarded to the accused under Section 302/304 IPC taking into aid of Exception 1 of Section 300 IPC to Section 304 part-I IPC (See. Also Hunsa Singh Vs. State of Punjab, 1976 (4) SCC 255, Mandanlal Vs. State of Punjab, 1992 Supp. (2) SCC & Sukhdev Singh Vs. Delhi State (Govt. of NCT of Delhi), 2003 (7) SCC 441).

So far as the judgment on which the reliance has been placed by learned AGA by , namely Suchand Bouri (Supra) and Sunil Khergade (Supra) are concerned, as per the cast of the said cases, there is an intention on the part of accused to kill the deceased, so the Apex Court taking into the said facts does not convert the sentence awarded by the trial court under Section 302 IPC to the accused to Section 304 Part -I or Part-II IPC.

In the instant matter, it is argued by Sri Anuj Dayal, learned counsel for appellant that even if the accused-appellant has knowledge that his act is likely to cause death to deceased/Raju but there is no intention to cause death, so keeping in view the said facts, the present case will fall within the ambit of Section 304 Part (II) IPC and not under Section 302 IPC in which the accused-appellant has been convicted by the trial court.

Section 304 IPC provides for punishment for culpable homicide not amounting to murder. It reads as under:

"S.304. - Punishment for culpable homicide not amounting to murder - Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death".

The above Section is in two parts. Although Section does not specify Part I and Part II but for the sake of convenience, the investigators, the prosecutors, the lawyers, the judges and the authors refer to the first paragraph of the Section as Part I while the second paragraph is referred to as Part II.

The constituent elements of Part I and Part II are different and, consequently, the difference in punishment.

For punishment under Section 304 Part I, the prosecution must prove: the death of the person in question; that such death was caused by the act of the accused and that the accused intended by such act to cause death or cause such bodily injury as was likely to cause death.

As regards punishment for Section 304 Part II, the prosecution has to prove the death of the person in question; that such death was caused by the act of the accused and that he knew that such act of his was likely to cause death.

And in order to find out that an offence is `culpable homicide not amounting to murder' - since Section 304 does not define this expression - Section 299 and 300 IPC have to be seen. Section 299 IPC reads as under:

"S.-299. - Culpable homicide.--Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."

To constitute the offence of culpable homicide as defined in Section 299 the death must be caused by doing an act: (a) with the intention of causing death, or (b) with the intention of causing such bodily injury as is likely to cause death, or (c) with the knowledge that the doer is likely by such act to cause death.

The word 'knowledge' in the context of Sections 299 and 300 of I.P.C. must be understood as involving a certain degree of certainty and not a mere probability as to knowledge of the consequence of the act. In Arun Nivalaji More vs. State of Maharashtra (2006) 12 SCC 613, the Apex Court while interpreting the concept of 'knowledge' in the Clause (ii) of Section 300 I.P.C. (which is akin to 'knowledge' as used in Clause (iii) of Section 299 I.P.C.) the Court held as follows:-

"16. Having regard to the facts of the case it can legitimately be urged that clauses Firstly and Fourthly of Section 300 IPC were not attracted. The expression "the offender knows to be likely to cause death" occurring in clause Secondly of Section 300 IPC lays emphasis on knowledge. The dictionary meaning of the word "knowledge" is -- the fact or condition of being cognizant, conscious or aware of something; to be assured or being acquainted with. In the context of criminal law the meaning of the word in Black's Law Dictionary is as under:

"An awareness or understanding of a fact or circumstances; a state of mind in which a person has no substantial doubt about the existence of a fact.

'It is necessary ... to distinguish between producing a result intentionally and producing it knowingly. Intention and knowledge commonly go together, for he who intends a result usually knows that it will follow, and he who knows the consequences of his act usually intends them. But there may be intention without knowledge, the consequence being desired but not foreknown as certain or even probable. Conversely, there may be knowledge without intention, the consequence being foreknown as the inevitable concomitant of that which is desired, but being itself an object of repugnance rather than desire, and therefore not intended.'"

17. In Blackstone's Criminal Practice the import of the word "knowledge" has been described as under:

"'Knowledge' can be seen in many ways as playing the same role in relation to circumstances as intention plays in relation to consequences. One knows something if one is absolutely sure that it is so although, unlike intention, it is of no relevance whether one wants or desires the thing to be so. Since it is difficult ever to be absolutely certain of anything, it has to be accepted that a person who feels 'virtually certain' about something can equally be regarded as knowing it."

18. The Law Commission of the United Kingdom in its 11th Report proposed the following test:

"The standard test of knowledge is -- Did the person whose conduct is in issue either knows of the relevant circumstances or has no substantial doubt of their existence?" [See Textbook of Criminal Law by Glanville Williams, (p. 125).]

In Halsbury's Laws of England (Criminal Law I), Second Edition (Vol. 10) 'Knowledge' is defined as follows:-

"Knowledge is an awareness of the consequences of an act. Knowledge is an awareness on the part of the person concerned indicating his state of mind. However, knowledge imports a certainty and not a mere probability. Knowledge has to be judged with reference to the particular circumstances in which a person believes himself to be placed and not in the light of the actual circumstances. 'Knowing' connotes something more than having reason to believe. It implies a fact which may be known and imports knowledge of something actual by means of authentic or authoritative information although it does not import actual evidence of the senses. Direct evidence of knowledge or intention is seldom forthcoming and it must be inferred only from the facts and circumstances of each case. In doing this, recourse must be had to natural presumptions which the courts are entitled to draw. The number and nature of injuries may be one of the circumstances that may be taken into consideration for coming to a finding about intention or the knowledge of the offender. In some cases, even if the accused acted under superstitious or unreasonable belief and opposed to common sense, the court is entitled to infer that the accused acted with knowledge of the relevant facts unless there is some evidence to the contrary, originating from the accused who alone may know on what belief, if mistaken, was held. Knowledge is essentially subjective. In determining whether the requisite knowledge has been proved, account may be taken of the means of knowledge of the accused and, in some cases, whether the accused has wilfully shut his eyes to the truth."

The mere possibility of knowledge that death is a consequence of an act is inadequate to draw an inference as to the existence of requisite knowledge in the mind of the accused. A degree of certainty in the awareness of the individual as to the likelihood of death as a consequence of his act is a prerequisite for imputation of requisite mens rea in a case of culpable homicide. Knowledge as to likelihood of death must be the direct and motivating force of the act and not a mere possibility arising therefrom.

The foreseeability of death and the degree of certainty as to such an adverse consequence must be deductible from the factual matrix of the case as weighed alongside the collected evidence. The parameters on which such foreseeability of death may be inferred would depend on (a) the nature of duty of care vested in the accused, (b) the degree of breach of such duty, and (c) other attending facts impacting the certainty of such consequence.

As per the material facts of the case, the incident has been taken place on the spur moment without any predetermination/intention on the part of the accused, even if it can be said that he has a knowledge that his act well resulted into the death of the deceased/Raju but the same is not inadequate to establish the facts that he has an intention to kill him because deceased/Raju himself went to the house of accused-Amar Pal Maurya to take back Rs. 1500/- by way of loan to him and there some filthy abuse has taken place as well as altercation/fight has been taken place between them due to which without any intention the accused-appellant has stabbed the deceased with knife, therefore, the offence falls within the purview of Section 304 part-II IPC. The said fact also get support from the statement given by P.W. - 1/Naresh because from the perusal of the statement of P.W.-1/Naresh/ complainant, it cannot establish that accused-Amar Pal Maurya has abused or insult him so taking into consideration the said facts, the trial court has held that no offence under Section 504 I.P.C. is made out.

In the FIR, it was mentioned that the incident in question has been seen by the complainant, Mukesh, Umashankar Singh and Vishambhar.

So far as Uma Shankar and Vishambhar are concerned, they were not produced as witnesses by the prosecution and Mukesh who has been produced as P.W. -2 by the prosecution, the trial court after considering his evidence came to the conclusion that he is not an eye witness, and placed no reliance on his evidence.

Further, looking into the totality of evidence it would not be possible to come to the conclusion that when the appellant-accused assaulted the deceased with a knife he had any intention to kill him as the said act on the part of accused is due to sudden provocation without any predetermination of mind and in this regard no evidence has been brought on record by the prosecution that he has intention to kill him, therefore, the present case does not fall within clause third of Section 300 as submitted by learned AGA rather to Clause 1 of Section 300.

Thus, keeping in view the above, once accused-appellant has no intention to kill deceased/Raju, the offence committed by him falls within the ambit of Part II Section 304 IPC not within the ambit of Section 302 IPC as held by the trial court.

So, taking into consideration the overall aspects of the matter, in our considered opinion, sentence of ten years rigorous imprisonment with fine of Rs. 2,000/- with default stipulation of one year rigorous imprisonment would be adequate sentence.

For the foregoing reasons, the appeal preferred by the appellant-accused/Amar Pal Maurya deserves to be partly allowed and hereby partly allowed. The conviction of appellant-accused/Amar Pal Maurya by judgment and order dated 03.11.2015 passed by Additional Sessions Judge, Court No. 4, Sitapur in Sessions Trial No. 928 of 2011 (State Vs. Amarpal Maurya) arising out of Crime Case No. 103 of 2011 under Section 302, 504 I.P.C. Police Station, Pisawan, District Sitapur whereby the appellant/Amar Pal Maurya was convicted for the offence under Section 302 I.P.C. and sentenced with the imprisonment of life and also fine of Rs. 2000/- with the default stipulation of one year additional rigorous imprisonment is hereby modified to Section 304 Part - II IPC and his sentence of life imprisonment is modified with a rigorous imprisonment for a period of ten years with a fine of Rs. 2000/- with the default stipulation of one year additional rigorous imprisonment. Appellant-accused/Amar Pal Maurya is in custody. He shall serve out his remaining part of sentence as modified by this Court.

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

(Sanjay Harkauli, J.) (Anil Kumar, J.)

Order Date :- 17.05.2018

Ravi/