Gopesh Kumar Batham @ Guddu vs State Of U.P.
2019 Latest Caselaw 4465 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No.7
 

 
Criminal Appeal No. 5669 of 2007
 

 
Gopesh Kumar Batham @ Guddu                             Appellant
 
Vs 
 
State Of U.P. 						   Respondent 
 

 
		For Appellant	      :  	Sri Ravi Chandra Srivastava 
 
	          For Respondent           :     Sri Amit Sinha, AGA
 

 
Hon'ble Pritinker Diwaker, J.

Hon'ble Raj Beer Singh, J.

Per: Pritinker Diwaker, J.

(14.05.2019)

1. The present criminal appeal arises out of impugned judgement and order dated 09.08.2007 passed by the learned Additional Sessions Judge, Court No.2, Kanpur Nagar in Sessions Trial No. 699 of 2004 (State vs. Gopesh Kumar Batham @ Guddu), convicting accused-appellant under Section 302 of IPC and sentencing him to undergo imprisonment for life with a fine of Rs. 4,000/-, in default thereof, four months additional imprisonment, and further convicting accused-appellant in Sessions Trial No. 700 of 2004 under Section 25 of the Arms Act and sentencing him to undergo two years imprisonment, with a fine of Rs. 2,000/-, in default thereof, two months additional imprisonment.

2. In the present case, name of the deceased is Virendra Kumar who used to run his 'chat thela' ('pkV* Bsyk'). In the night intervening 28/29.02.2004, when after reaching back to his home, deceased and his wife were unloading material from thela ('Bsyk') and the first informant was standing at the door, accused-appellant Gopesh Kumar Batham @ Guddu reached there and demanded chat from deceased. In reply, it was told by deceased that he does not have any chat material now and therefore he cannot supply the same. The appellant got annoyed with the reply of deceased and started abusing him, which was objected by the deceased. Further case of the prosecution is that accused-appellant took out his country made pistol, which he had kept in his pant packet, and caused single gunshot injury to the deceased on his stomach. The injured was taken to hospital, he was medically examined, vide Ex.Ka-3, by Dr. N.C Yadav, Medical College, Kanpur, however, during the course of treatment, he succumbed to his injuries.

3. Inquest on the dead body of deceased was conducted on 29.02.2004, vide Ex.Ka.2/9, and the body was sent for post-mortem, which was conducted on 1.3.2004, vide Ex. Ka. 2, by Dr. Pradeep Kumar (PW-4). The Autopsy Surgeon has noticed following injuries on the body of the deceased:-

1. Stitch wound 3 cm long with 3 stitches present on Rt. Side of lower neck 1 cm above clavicle with cannula present.

2 Stitch wound 29 cm long with 21 stitches present on front of abdomen 3 cm below xiphi sternum.

3 Stitch wound 3 cm long with 1 stitch right side abdomen, 5 cm lateral to umbilicus. Plastic to be drain present surgical colostomy present.

4 Stitch wound 1 cm long with 1 stitch on right side abdomen, 3 cm above injury No. (3).

5. Stitch wound 2 cm long with 1 stitch on left side abdomen, 6 cm lateral to umbilicus.

The cause of death of deceased was 'hemorrhage and shock' due to ante-mortem injuries.

4. At the instance of accused-appellant, one country made pistol (12 mm) and empty cartridge were recovered, vide Ex.Ka.14, on 17.03.2004. and as per Ballistic Expert Report, Ex.Ka.18 and Ex. Ka.19 cartridge in question was fired from the country made pistol, so seized from the appellant.

5. While framing charge, the Trial Judge has framed charge against accused appellant under Section 302 of IPC in S.T. No. 699 of 2004 and under Section 25 of the Arms Act in S.T. No. 700 of 2004,

6. So as to hold the appellant guilty, prosecution has examined eleven witnesses. Statement of accused appellant was also recorded under Section 313 of Cr PC in which, he pleaded his innocence and false implication.

7. By the impugned judgment, the trial Judge has convicted the accused-appellant under Section 302 of IPC in S.T. No. 699 of 2004 and under Section 25 of the Arms Act in S.T. No.700 of 2004 and sentenced him, as mentioned in para 1 of this judgment.

8. Learned counsel for the appellant submits:-

(i) that even if the entire prosecution case is taken as it is, at best, the appellant can be convicted under Section 304 Part I or Part II of IPC.

(ii) that the appellant is in jail for more than 15 years and therefore, his sentence may be reduced for the period already undergone by him. He submits that the appellant is willing to compensate Smt. Geeta Devi (PW-1), widow of the deceased, by paying adequate compensation under Section 357 of Cr.P.C.

9. On the other hand, supporting the impugned judgment, it has been argued by learned AGA for the State counsel that conviction of the appellant is in accordance with law and there is no infirmity in the same.

10. Smt. Geeta Devi (PW-1), is the wife of the deceased and eye-witness to the incident. While supporting the prosecution case, she has stated that in the night intervening 28/29.02.2004, her husband (deceased) returned back to his house after selling chat and when she was assisting him to unload the articles, accused-appellant Gopesh Kumar Batham @ Guddu reached there and demanded chat from her husband, when her husband informed him that all the articles have already been sold out and therefore, nothing could be given to him, and upon hearing this answer, the appellant started abusing her husband which was objected by the deceased and then accused appellant took out his country made pistol and caused firearm injury to her husband (deceased). She states that injured was taken to hospital where on second day at 11.30AM, he succumbed to his injuries. In cross-examination this witness remained firm.

11. Surendra Kumar (PW-2), is the brother of deceased and Smt. Kamla Devi (PW-5) is the mother of the deceased. Both are eye witness to the incident and have also supported the prosecution case.

12. Shiv Kumar Verma (PW-3), is scribe of the FIR and witness of inquest. Dr. Pradeep Kumar (PW-4), conducted post-mortem on the body of the deceased. Dr. N.C. Yadav (PW-5) did MLC, Ex. Ka.3, of the deceased.

13. Shyam Singh (PW-7) registered the FIR and S.N. Dwivedi (PW-8) assisted during investigation. Jai Singh Parihar (PW-9) and Gajendra Pal Singh (PW-11), are the Investigating Officer of the Arms Act.

14. PW-10 Lallu Singh, Investigating Officer of the case and has duly supported the prosecution case.

15. Close scrutiny of the evidence makes it clear that in the night intervening 28/29.02.2004 when the deceased returned back to his home after selling his chat, the accused-appellant Gopesh Kumar Batham @ Guddu reached there and demanded chat from him, in reply it was told by the deceased that he does not have any chat material now and therefore, he cannot give the same, the appellant started abusing him and took out his country made pistol and caused firearm injury to the deceased on his stomach. The injured was taken to hospital where he succumbed to his injuries on 29.02.2004. The incident has been witnessed by Smt. Geeta Devi (PW-1), Surendra Kumar (PW-2) and Smt. Kamla Devi (PW-5) and all the three witnesses have duly supported the prosecution case. The medical and postmortem reports of the deceased also support the version of the eye witnesses. Considering all these aspects of the case, complicity of the appellant in commission of offence has been duly proved by the prosecution.

16. The next question which arises for consideration of this Court is as to whether the act of accused-appellant would fall within the definition of 'murder' or it would be 'culpable homicide not amounting to murder'. Before proceeding further, it is relevant to refer to the provisions of Section 300 of IPC, which read as under:

"300. Murder. - Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-

Secondly. - If it is done 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 -

Thirdly. - If it is done 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 -

Fourthly. - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

Exception 1. - When culpable homicide is not murder. - Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

The above Exception is subject to the following provisos:-

First. - That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly. - That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

Thirdly. - That the provocation is not given by anything done in the lawful exercise of the right of private defence.

Explanation. - Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

Exception 2. - Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.

Exception 3. - Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.

Exception 4. - Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.

Explanation. - It is immaterial in such cases which party offers the provocation or commits the first assault.

Exception 5. - Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent."

Exception 4 to Section 300 of the IPC applies in the absence of any premeditation. This is very clear from the wordings of the Exception itself. The exception contemplates that the sudden fight shall start upon the heat of passion on a sudden quarrel. The fourth exception to Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of provocation not covered by the first exception, after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1, but the injury done is not the direct consequence of that provocation. In fact, Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon an equal footing. A "sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor could in such cases the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) without the offenders 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 IPC. 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 a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage".

17. Considering all the aspects of the case, we are of the view that there was no premeditation on the part of the accused to kill the deceased.

18. The Apex Court in State of A.P. vs. Rayavarapu Punnayya and Another1 while drawing a distinction between Section 302 and Section 304 of IPC held as under:

"12. In the scheme of the Penal Code, "culpable homicide" is genus and "murder" its specie. 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 this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the greatest 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 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.

21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is "murder" or "culpable homicide not amounting to murder", on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of "murder" contained in Section 300. If the answer to this question is in the negative the offence would be "culpable homicide not amounting to murder", punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be "culpable homicide not amounting to murder", punishable under the first part of Section 304, of the Penal Code."

19. In Budhi Singh vs. State of Himachal Pradesh2, the Supreme Court held as under:

18. The doctrine of sudden and grave provocation is incapable of rigid construction leading to or stating any principle of universal application. This will always have to depend on the facts of a given case. While applying this principle, the primary obligation of the court is to examine from the point of view of a person of reasonable prudence if there was such grave and sudden provocation so as to reasonably conclude that it was possible to commit the offence of culpable homicide, and as per the facts, was not a culpable homicide amounting to murder. An offence resulting from grave and sudden provocation would normally mean that a person placed in such circumstances could lose self-control but only temporarily and that too, in proximity to the time of provocation. The provocation could be an act or series of acts done by the deceased to the accused resulting in inflicting of injury.

19. Another test that is applied more often than not is that the behaviour of the assailant was that of a reasonable person. A fine distinction has to be kept in mind between sudden and grave provocation resulting in sudden and temporary loss of self-control and the one which inspires an actual intention to kill. Such act should have been done during the continuation of the state of mind and the time for such person to kill and reasons to regain the dominion over the mind. Once there is premeditated act with the intention to kill, it will obviously fall beyond the scope of culpable homicide not amounting to murder....."

20. In Kikar Singh vs. State of Rajasthan3 the Apex Court held as under:

"8. The counsel attempted to bring the case within Exception 4. For its application all the conditions enumerated therein must be satisfied. The act must be committed without premeditation in a sudden fight in the heat of passion; (2) upon a sudden quarrel; (3) without the offender's having taken undue advantage; (4) and the accused had not acted in a cruel or unusual manner. Therefore, there must be a mutual combat or exchanging blows on each other. And however slight the first blow, or provocation, every fresh blow becomes a fresh provocation. The blood is already heated or warms up at every subsequent stroke. The voice of reason is heard on neither side in the heat of passion. Therefore, it is difficult to apportion between them respective degrees of blame with reference to the state of things at the commencement of the fray but it must occur as a consequence of a sudden fight i.e. mutual combat and not one side track. It matters not what the cause of the quarrel is, whether real or imaginary, or who draws or strikes first. The strike of the blow must be without any intention to kill or seriously injure the other. If two men start fighting and one of them is unarmed while the other uses a deadly weapon, the one who uses such weapon must be held to have taken an undue advantage denying him the entitlement to Exception 4. True the number of wounds is not the criterion, but the position of the accused and the deceased with regard to their arms used, the manner of combat must be kept in mind when applying Exception 4. When the deceased was not armed but the accused was and caused injuries to the deceased with fatal results, the Exception 4 engrafted to Section 300 is excepted and the offences committed would be one of murder.

9. The occasion for sudden quarrel must not only be sudden but the party assaulted must be on an equal footing in point of defence, at least at the onset. This is specially so where the attack is made with dangerous weapons. Where the deceased was unarmed and did not cause any injury to the accused even following a sudden quarrel if the accused has inflicted fatal blows on the deceased, Exception 4 is not attracted and commission must be one of murder punishable under Section 302. Equally for attracting Exception 4 it is necessary that blows should be exchanged even if they do not all find their target. Even if the fight is unpremeditated and sudden, yet if the instrument or manner of retaliation be greatly disproportionate to the offence given, and cruel and dangerous in its nature, the accused cannot be protected under Exception 4...."

21. All the above three cases were considered by the Apex Court in Surain Singh v The State of Punjab4 and ultimately, it has been held by the Apex Court in that particular case, that the accused was liable to be convicted under Section 304 Part II of IPC and not under Section 302 of IPC.

22. In view of above, according to us, case of the appellant would thus fall under Exception 4 of Section 300 of IPC and it can be safely held that the appellant is liable to be convicted for committing 'culpable homicide not amounting to murder'.

23. Now the question is whether the appellant is liable to be convicted under Section 304 Part I or Part II of IPC. Considering the nature of injuries caused by him to the deceased, the weapon and the portion of body of the deceased, we are of the view that the appellant is liable to be convicted under Section 304 Part I of IPC and not under Section 304 Part II of IPC.

24. So far as the sentence part is concerned, accused-appellant, has already remained in jail for about 16 years. According to us, ends of justice would be served if his sentence is reduced to the period already undergone by him.

25. However, looking to the provisions of Section 357 of Cr.P.C. and judgment of the Apex Court in Ankush Shivaji Gaikwad v State of Maharashtra5, we are of the view that accused-appellant Gopesh Kumar Batham @ Guddu is liable to compensate Smt. Geeta Devi (P.W.1) by paying a total compensation of Rs. 50,000/- (Fifty Thousand) under Section 357 of Cr.P.C. Accordingly, accused-appellant Gopesh Kumar Batham @ Guddu is directed to deposit Rs. 50,000/- within a period of six months after being released from jail before the trial court and, in turn, the trial court shall disburse the said amount to Geeta Devi, PW-1. In case, appellant fails to deposit compensation within stipulated time, the court below shall proceed against him in the light of judgment of the Apex Court reported in Kumaran Vs State of Kerala and another (2017) 7 SCC 471.

26. As the appellant is reported to be in jail, he be set free forthwith, if not required in any other case.

27. The appeal succeeds and is partly allowed.

 
Date: 14.5.2019
 
nethra/ A.Tripathi
 

 
(Raj Beer Singh, J)                         (Pritinker Diwaker, J)