Kali Prasad vs State Of U.P.
2022 Latest Caselaw 2437 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 8.3.2022
 
Delivered on 10.5.2022
 
AFR
 

 
Court No. - 46
 
Case :- CRIMINAL APPEAL No. - 1007 of 1996
 
Appellant :- Kali Prasad
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Vs Kushwaha,Dhirendra Kumar,Mohd. Kalim,Ulajhan Singh Bind
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Vikas Kunvar Srivastav,J.

(Delivered by Justice Sunita Agarwal)

1. Heard Ms. Mary Punch (Sheeba Jose) and Mohd. Kalim learned counsels for the appellant and Sri Patanjali Mishra learned A.G.A. for the State-respondent.

2. This appeal is directed against the judgment and order dated 18.4.1996 passed by the VIIth Additional Sessions Judge, Allahabad whereby appellant Kali Prasad has been convicted of the offence under Section 302 IPC and sentenced for life imprisonment.

3. The first information report regarding the incident occurred on 29.6.1994 at about 11:30 AM, at the Phaphamau Railway Crossing, was lodged by Sri Ram Prakash Singh (PW-5) with the thumb impressions of the eye-witnesses PW-2 Ashok Kumar and PW-3 Ramesh Kumar Sharma. As per the eye-witness account as narrated in the written report, on the fateful day, i.e. on 29.6.1994, deceased Ram Aasre Bhartiya was driving a Truck No. UP70 9822 when he reached at the Phaphamau Railway Crossing at about 11:30 AM, the crossing gate was closed to pass a train. As soon as the gate was opened when the train crossed over, deceased Ram Aasre Bhartiya moved his vehicle (truck) to cross the railway track. At the same time, one Truck No.UP65 B8551 also moved forward from the opposite direction (Eastern side) to cross the railway track. By chance, both the trucks came side by side and got stuck in the middle of the railway track. The drivers of the trucks started arguing as to who would take his truck back. Getting angry, out of rage, the driver of Truck No. UP65 B8551 attacked in the neck of deceased Ram Aasre by knife. The Khalasis of the truck namely Ashok and Ramesh got down while making hue and cry and with the help of the public (crowd) present at the spot, they had succeeded in catching hold of the assailant driver. In the meantime, the Khalasi of the said truck had succeeded in running away from the spot of the incident. The truck driver Ram Aasre had died on the spot. Looking to the crowd, the Railway Police reached at the spot and the assailant driver namely the appellant herein was caught. The assailant driver disclosed his name as Kali Prasad son of Lochan Kumhar, resident of Mohalla Golachhani, Police Station Sasaram, District Rohtas (Bihar).

4. The Check FIR was lodged at about 13:30 PM on the same day, i.e. 29.6.1994, at the Chauki G.R.P. Prayag, Sadar, District Allahabad.

As per the version in the first information report, the offence of murder was committed during the course of altercation between two truck drivers on a trivial issue which took an ugly turn on the spot.

5. The recovery memo of the blood stained and plain earth made from near the railway track had been proved as 'Exhibit Ka-16'. The pieces of mirror and glass collected and seized from the Truck No. UP70 9822 were entered in the recovery memo proved as 'Exhibit Ka-17'. The memo of search 'Exhibit Ka-18' indicates that no incriminating material such as knife was recovered from the truck being driven by the accused appellant.

The Ante-mortem injuries indicated in the postmortem report are:-

"(1) Contusion in an area of 2.0" diameter of left Cheek.

(2) Contusion in an area of 2.0" diameter on left temporal region.

(3) Incised wound 5½" x 1½" x muscle deep front of neck below the lower jaw.

(4) Abrasions over both chest & Abdomen except lower 1/3 on the front side."

On internal examination, left temporal bone was found fractured, Subdural & Arachnoid Haemorrhage was present in the brain membranes, Brain was congested. The cause of death as indicated in the postmortem report is "Death in Coma as a result of Ante-mortem injuries".

6. The proximate time of death as opined by the doctor (PW-7) was about 1-1/2 day. The inquest was made on 29.6.1994 and commenced at about 12:35 PM. In the column of information about the crime in the inquest report, it is noted that the deceased was killed during an altercation out of rage. After completion of the inquest, at about 16:30 Hours, the body was sent for postmortem to ascertain the exact cause of death. As per the doctor examined as PW-7, the postmortem report was prepared in his handwriting and bears his signature, it was marked as 'Exhibit Ka-6'. In the examination-in-chief, while narrating the injuries of the deceased, PW-7 had narrated the cause of death as "Coma due to ante-mortem injuries" and stated that the Injury Nos. 1 and 2 could occur from a blunt object whereas injury no. 4 could also be caused by a blunt object. Injury no. 3 was muscle deep and was possibly caused by a sharp edged weapon.

PW-7, in cross, had clarified that width of the weapon used had no concern with the size of injury no. 3 and stated that there may be variation of six hours on both sides in the estimated time of the death.

7. PW-6, Constable Moharir posted at the Prayag G.R.P. Chauki, Allahabad proved that he was on duty when a written memo was given to him by the porter namely Vijay Bahadur of the Railway Station Prayag, Northern Railway, related to the collusion of two trucks at the railway track and traffic jam situation on the spot as also the death of one truck driver. The said memo was entered in the General Diary at Rapat No. 50, Time 12:20 Hours on 29.6.1994. The carbon copy of G.D. prepared in the same process was proved with the original as 'Exhibit Ka-3' being in the handwriting and signature of PW-6.

It is stated by PW-6 that on receipt of the information of the incident through the said memo, two Constables were sent along with the Inquest Form to the spot. On the same day, one written report was also given by Ram Prakash Singh (PW-5) and the case was registered at Rapat No. 17 at about 11:30 AM. The carbon copy of the GD prepared by PW-6 in his hand writing and signature was proved as 'Exhibit Ka-4'. The check report being in the handwriting and signature of PW-7 had been proved as 'Exhibit Ka-5'. PW-6 had denied the suggestion of the report being Ante-time.

8. PW-5, Ram Prakash Singh, the scribe of the first information report stated in the examination-in-chief that he wrote the report on the dictation of two eye-witnesses namely Ashok Bhartiya and Ramesh. After the report was scribed, he read over the same to the witnesses and then put his signature, the witnesses also put their signatures and thumb impressions on the same. The accused Kali Prasad was nabbed by the crowd on the spot and the written report was presented in the Phaphamau Chauki. After he lodged the report, the Investigation Officer recorded his statement. PW-5 had denied the suggestion that the report was dictated by the Investigating Officer and categorically stated that the Investigating Officer instructed the eye-witnesses to give the report in writing when they narrated the incident to him.

9. PW-8 is the Investigating Officer who had identified the memo (Paper No. 17-Ka/7) which was received at the Chauki with regard to the incident and the signature of the officer concerned on the same, which was proved as Exhibit Ka-7. He stated that after receipt of the said memo, he alongwith two Constables carrying the relevant papers, went to the railway crossing where lot of crowd was collected and traffic was jammed. Lots of blood was found at the railway line no. 4 towards East. Almost half of the body of the deceased was hanging from the window of Truck No. UP70 9822 and blood was oozing out in large quantity. The second truck was standing towards the West.

He further stated that in the meantime, Ram Prakash Singh (PW-5) handed over a written report signed by three witnesses. The assailant/appellant herein was caught by the crowd and was handed over to the Investigating Officer. The trucks were sent to the Chauki Phaphamau and the first informant alongwith the written report was sent to Chauki Prayag for lodging of the FIR. The criminal case was registered under Section 304 IPC at the P.S. Prayag. A copy of the FIR was received by the Investigating Officer (PW-8) on the spot and then he proceeded to prepare the relevant papers such as inquest and other related documents. The statements of eye-witnesses were recorded on completion of the inquest and the dead body was sealed and sent for postmortem to Swaroop Rani Hospital, Allahabad. The inquest was proved by PW-8 being in his handwriting and signature as 'Exhibit Ka-1'. Other related documents were proved as 'Exhibit Ka-8' to 'Exhibit Ka-15'. The recovery memos of plain and blood stained earth collected from the railway track and the pieces of broken glass found in the truck of the deceased were also proved by PW-8 as Exhibit Ka-16 and Ka-17. The site plan prepared in the handwriting and signature of PW-8 was proved as Exhibit Ka-19. The weapon of assault namely knife could not be found in the truck and it was intimated that Khalasi of the Truck No. UP65 B8551 (being driven by the assailant/appellant) ran away with the knife. The statements of the eye-witnesses namely PW-2 and PW-3 were recorded on the same day and after completion of the investigation, the charge sheet was submitted on 22.8.1994 as Exhibit Ka-20.

In cross, PW-8 stated that he had reached at the place of incident at about 12:35 PM and when he reached, the body of the deceased was inside the truck, the neck and half of the dead body was hanging outside the window of the truck. The assailant/appellant who was caught by the crowd was complaining pain in his waist, hands and body but there was no visible injury on his person. The Khalasi of the truck was not implicated as an accused as he ran away from the spot. On a suggestion, PW-8 stated that lots of blood was present on the head, face and ears of the deceased and hence the head injury could not be noticed by him. He made inspection of the truck and found several pieces of glass and one rear-mirror. The suggestion that the entire report was prepared at the police station was categorically denied.

10. The formal witnesses had, thus, proved the reports prepared by them during the course of the proceedings beginning from the lodging of the report till the submission of the charge sheet. No apparent contradiction or any inconsistency could be pointed out by the learned counsels for the appellants from the statements of the formal witnesses and the documentary evidences on record as proved by them. No flaw in the investigation made by PW-8, the Investigating Officer, could be brought before the Court.

11. Amongst the witnesses of fact, PW-1 Pyare Lal is the father of the deceased and is a witness of the inquest. He proved his signature on the inquest report which was marked as 'Exhibit Ka-1'. PW-1 denied the suggestion that he was not present on the spot at the time of the preparation of the inquest. PW-4 Indra Bahadur is owner of the Truck No. UP70 9822 which was being driven by the deceased Ram Aasre Bhartiya at the time of the incident. He proved his signatures on the inquest report and, thus, being one amongst the Panch witnesses. PW-4 stated that the information of the incident was given by Khalasi of the truck namely Ramesh (PW-3), while he was present in his Brick Kiln.

12. PW-2 and PW-3 are the eye-witnesses of the occurrence. They both narrated the occurrence of the incident in the same manner as asserted in the written report and also proved their signatures on the inquest. PW-2 Ashok Kumar stated that the Investigating Officer recorded his statement on the spot and he had also identified the appellant Kali Prasad in the Court. PW-2 stated that he went to the market alongwith PW-3 Ramesh at about 8:00 AM and when they came near the railway line, they sat on a tea stall. By the time, Truck No. UP70 9822 came at the crossing and while the other truck being driven by the appellant namely UP65 B8551 was crossing the railway track from the opposite side, an oral altercation started between two drivers as to who would take back his truck. The appellant hit the deceased with the knife. PW-2 stated that when the first knife blow was given by the assailant/appellant, he got down from the truck and could not remember as to how many blows were given by the appellant. Further that at the point of time, when the deceased was given the blow of knife by the appellant, the deceased was holding the collar of the assailant/appellant. He stated that apart from the injury on the neck of the deceased, there was no other injury. It was stated by PW-2 that during oral altercation, the deceased and the appellant started fighting physically and after giving the blow of knife, the appellant moved his truck ahead but the crowd stopped him. At the time of the incident, there was no Khalasi in the truck of the deceased. He further stated that PW-3 Ramesh was also sitting in the truck alongwith him but he was not the Khalasi of the truck.

On confrontation, PW-2 Ashok Kumar categorically stated that both the trucks were standing side by side when the incident had occurred and when the police came, the truck of the deceased was at the same location whereas the truck of the assailant/appellant was at some distance. After the assailant was caught, PW-2 went to the house of the deceased to give information about the incident and the family members of the deceased had reached the spot. PW-3 after narrating the incident in the same manner as mentioned in the written report, stated that he alongwith PW-2 Ashok was sitting at a tea stall at the railway crossing. When deceased Ram Aasre reached in his Truck No. UP70 9822, he alongwith Ashok PW-2 sat inside the truck. After the railway crossing was opened, the truck moved forward and at the same time, another truck coming from the opposite side came side by side to the truck being driven by the deceased and the incident had occurred in the manner as had been narrated by them, namely the PW-2 and PW-3 in the written report.

PW-3 had identified his signature both on the written report as 'Exhibit Ka-2' and the inquest. In cross, PW-3 stated that both the truck drivers were fighting while they were inside their truck and no one came down. The assailant driver (appellant) tried to run away by moving his truck after the incident but he was caught by the public. The information of the incident was given by the Gate-man to the police. The suggestion that the deceased had sustained injuries in an accident with the truck being driven by the appellant, had been categorically denied by PW-3, who stated that there was no apparent injury on the head and face of the deceased and that he did not see any other injury apart from one on the neck of the deceased. The information of the incident to the truck owner was given by him and the report of the incident was written by one person present on the spot on their dictation of the whole occurrence. PW-3 stated that they sat on the truck near the crossing and only rear-mirror of the truck was broken. The suggestion that the broken mirrors/glass caused injuries to the deceased resulting in his death had been categorically denied by PW-3. The suggestion of friendship of PW-3 with the deceased was admitted but it was denied that on account of the friendship, false testimony had been given by him.

13. The appellant Kali Prasad, in his statement under Section 313 Cr.P.C., admitted his presence on the spot by stating that his truck was standing at about 10 to 15 paces away from the railway crossing while his Khalasi went to bring the water, who when came back, informed him that one person was hanging on the truck and in the meantime, the crowd came and started questioning the Khalasi and caught hold of him (the appellant) as the Khalasi ran away in the meantime.

14. In light of above noted evidence, the counsels for the appellant argued that there are material contradictions in the statements of PW-2 and PW-3 who were present in the truck of the deceased at the time of the accident. The truck owner examined as PW-4 categorically stated that PW-3 Ramesh Kumar Sharma was Khalasi of the truck whereas for the reasons best known to PW-3, he had denied the said fact. The story created by PW-2 and PW-3 (eye-witnesses) that they were sitting at a tea stall near the railway crossing and sat in the truck immediately before the incident, is unbelievable. It is not understandable as to why these two persons would deny the factum of travelling in the truck along with the deceased. Moreover, they (PW-2 & PW3) themselves stated that the murder had been caused in a fit of rage during the course of oral and physical altercation between the appellant and the deceased. It, therefore, cannot be a case of murder so as to fall within the meaning of Section 302 IPC from any angle, even if, the entire case of the defence is rejected. The trial court has illegally convicted the appellant for the offence under Section 302 IPC completely ignoring the manner in which the incident had occurred.

It is argued that only one blow of knife that too muscle deep wound was found on the person of the deceased but there is no recovery of alleged weapon/knife. The doctor (PW-7), on the other hand, stated in the examination-in-chief that the death was caused due to Coma on account of head injury which was Subdural & Arachnoid Haemorrhage due to broken bones on the left side of the head. Neither it can be found in the statement of the doctor nor it can be said that the injury no. 3, the incised wound, muscle deep on the neck below the lower jaw, was the cause of the death.

15. For the aforesaid, the present case does not fall beyond the scope of the offence under Section 304 Part II, i.e. of causing injuries with the knowledge that it was likely to cause death but without any intention to cause death. The contention is that the conviction of the appellant under Section 302 IPC is a result of misappreciation of the evidence on record. The appellant, at the worst, can be convicted and punished for the offence under Section 304 Part II, maximum sentence for which is 10 years. The appellant has already suffered incarceration for a period of about 9 years as he was lodged in jail in the year 2019 in execution of a non-bailable warrant issued by this Court vide order dated 3.12.2019 and remained in jail uptill the year 1999 when he was granted bail by this Court.

16. According to the learned counsels for the appellant, the total period of incarceration of the appellant is about 9 years. The judgment of the Apex Court in State Tr. P.S. Lodhi Colony, New Delhi vs. Sanjeev Nanda1 was relied to assert that this case would fall within the meaning of 'Death by negligent Act' and can only fall under Section 304 Part II. The sentencing policy approved and adopted by the Courts that the punishment must be appropriate and proportional to the gravity of the offence committed must guide the Court to determine that the offender should be adequately punished for the crime. The punishment of life imprisonment in the facts and circumstances of the case is grave and disproportionate to the offence committed. The factors necessary to be considered while imposing the sentence such as; the nature and circumstance of the offence; the need for the sentence imposed to reflect the seriousness of the offence; to afford adequate deterrence to the conduct and to protect the public from such crime, have been completely ignored by the trial court while convicting the appellant under Section 302 and awarding sentence of life imprisonment.

17. Learned A.G.A., on the other hand, defended the judgment of the trial court with the assertion that with the proven fact that the appellant was caught red handed on the spot, it is established that he had committed the murder with full knowledge and intention as the blow of knife was given by him to cause death of the person who was attacked. There is ample evidence against the appellant and the prosecution has succeeded in proving its case beyond reasonable doubt that the appellant is the perpetrator of the crime. In the light of the oral testimony of the prosecution witnesses (PW-2 and PW-3) and the promptness of the FIR, the arrest of the accused appellant from the spot, there is no scope of interference in the judgment of conviction and sentence passed by the trial court.

18. Having heard learned counsels for the parties and perused the record, as regards the place of occurrence of the incident and the manner in which the incident had occurred, they stand proved with the statements of the prosecution witnesses and other material circumstances on record. The presence of the eye-witnesses (PW-2 and PW-3) on the spot cannot be doubted as they both are witnesses of the written report which was promptly lodged by PW-5, the scribe of the report. It is proved that PW-5 wrote the report, narrating the occurrence, on the dictation of the eye-witnesses (PW-2 and PW-3), after the police reached the spot of the occurrence. The first information of the incident by a memo paper no. 17-Ka/7 (Exhibit Ka-7) was given by the porter Vijay Bahadur of the Railway Station Prayag, Northern Railway, at the GRP Chauki Prayag, Allahabad entry of which was made in the General Diary by PW-6 at about 12:20 Hours on 29.6.1994. Whereas after receipt of the written report, the first information report under Section 154 Cr.P.C. was registered at about 13:30 hours with the preparation of the Check report which fact is proved.

It was proved by PW-8 that on receipt of the memo Exhibit Ka-7, after its entry in the General Diary, he moved to the place of the incident carrying all relevant papers and when he reached at the crossing, lots of crowd was collected and the appellant was handed over to him by the crowd. On narration of the incident by the eye-witnesses, he directed them to write the report. The scribe of the report PW-5 proved that though he wrote the report on the instructions of the Investigating Officer but at the time when the report was scribed on the dictation of the eye-witnesses (PW-2 and PW-3), the Investigating Officer was not present and denied the suggestion that the report was prepared on the dictation of the Investigating Officer. The occurrence of the incident resulting in the homicidal death of deceased Ram Aasre Bhartiya at the railway crossing, inside the truck being driven by him, is proved. It is also proved that the appellant herein namely Kali Prasad is the perpetrator of the crime and the death was caused during an altercation between the appellant and the deceased. All the suggestions given by the defence that it was an accident, are found without any substance. The presence of the eye-witnesses on the spot cannot be doubted and could not be disputed successfully by the defence.

19. In the said situation, the question is as to whether the act of the appellant in causing death of the deceased would amount to murder within the meaning of Section 300 IPC or it is a case of culpable homicide which will not amount to murder attracting punishment under Section 304 IPC. Further question is as to in which part of Section 304 IPC, the offence in question would be punishable, in case, the Court reaches at the conclusion that it was a case of 'culpable homicide not amounting to murder' and not 'murder'.

20. In order to ascertain the same, we are required to go through the legal principles governing the distinction between the provisions under Sections 300 and 302 of the Code on the one hand and Section 304 Part I and Part II of the Code on the other. Section 299 of the Code which deals with the definition of culpable homicide is also to be taken note of.

Sections 299 and 300 of the Indian Penal Code deal with the definitions of 'culpable homicide' and 'murder'; respectively. In terms of Section 299, 'culpable homicide' is described as an act of causing death:- (i) with the intention of causing death, or (ii) with the intention of causing such bodily injury as is likely to cause death, or (iii) with the knowledge that such an act is likely to cause death. As is clear from the reading of this provision, the first part of it emphasises on the expression ''intention' while the latter upon ''knowledge'. As has been noted in a catena of decisions, both these words denote positive mental attitudes of different degrees. The mental element in ''culpable homicide', i.e. the mental attitude towards the consequences of conduct is one of intention and knowledge. Once an offence is caused in any of the above three stated manners, it would be ''culpable homicide'.

Section 300, however, deals with ''murder'. Though there is no clear definition of ''murder' in Section 300 of the Code but as has been held by the Apex Court and reiterated in Rampal Singh vs. State of Uttar Pradesh2, ''culpable homicide' is the genus and ''murder' is its species and all ''murders' are ''culpable homicides' but all ''culpable homicides' are not ''murders'.

21. Another classification that emerges from the Code is "culpable homicide not amounting to murder", punishable under Section 304 of the Code. There are decisions which also deal with the fine line of distinction between the cases falling under Section 304, Part I and Part II.

22. Dealing with a matter, wherein the question for consideration was whether the offence established by the prosecution against the appellant therein was "murder" or "culpable homicide not amounting to murder", the Apex Court in Vineet Kumar Chauhan vs. State of Uttar Pradesh3 considered its earlier decision in the State of Andhra Pradesh Vs. Rayavarapu Punnayya and Another4, wherein the then Justice R.S. Sarkaria brought out the points of distinction between the two offences under Sections 299 and 300 IPC, reiterating the law laid down in Virsa Singh Vs. State of Punjab5 and Rajwant Singh Vs. State of Kerala6. It was held therein 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:- (i) 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; (ii) proof of such 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 IPC is reached; (iii) the third stage is to 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 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.

Further, 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 IPC. It was, however, clarified therein that these were only the broad guidelines to facilitate the task of the Court and not cast iron imperative.

23. In Aradadi Ramudu alias Aggiramudu vs. State through Inspector of Police, Yanam7, the question was for modification of sentence from Section 302 to Section 304 Part II. While answering the same, the Apex Court had considered the above noted decisions in Virsa Singh (supra) as also other decisions in line namely State of U.P. v. Indrajeet8; Satish Narayan Sawant vs. State of Goa9 and Arun Raj vs. Union of India10 to note that for modification of sentence from Section 302 to Section 304 Part II, not only should there be an absence of the intention to cause death, but also an absence of intention to cause such bodily injury that in the ordinary course of things was likely to cause death. [Reference Paragraph 16]

Noticing the above noted decisions, in Rampal Singh (supra) the Apex Court had considered the distinction between the terms "murder" and "culpable homicide not amounting to murder". The observation in State of Andhra Pradesh Vs. Rayavarapu Punnayya (supra) was noted in paragraph '13' of Rampal Singh (supra) as under:-

"13. In the case of State of A.P. v. Rayavarapu Punnayya, this Court while clarifying the distinction between these two terms and their consequences, held as under: -

"12. In the scheme of the Penal Code, ''culpable homicide' is genus and ''murder' its species. All ''murder' is ''culpable homicide' but not vice versa. Speaking generally, .......''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."

The guidelines laid down in its earlier decision in Phulia Tudu vs. State of Bihar11 had been noted therein to reiterate that the safest way of approach to the interpretation and application of these provisions (Sections 299 and 300) is to keep in focus the key words used in the various clauses of these sections. In paragraph '17', it was noted that :-

"17. 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."

It was observed in paragraph '21' in Rampal Singh (supra) that Sections 302 and 304 of the Code are primarily the punitive provisions. An analysis of these two Sections must be done having regard to what is common to the offences and what is special to each one of them. The offence of culpable homicide is, thus, an offence which may or may not be murder. If it is murder, then it is culpable homicide amounting to murder, for which punishment is prescribed in Section 302 of the Code. Section 304 deals with cases not covered by Section 302 and it divides the offence into two distinct classes, i.e. (a) those in which the death is intentionally caused; and (b) those in which the death is caused unintentionally but knowingly. In the former case the sentence of imprisonment is compulsory and the maximum sentence admissible is imprisonment for life. In the latter case, imprisonment is only optional and the maximum sentence only extends to imprisonment for 10 years. The first clause of Section 304 includes only those cases in which offence is really "murder", but mitigated by the presence of circumstances recognized in the Exceptions to Section 300 of the Code, the second clause deals only with the cases in which the accused has no intention of injuring anyone in particular.

In paragraph '22' Rampal Singh (supra), it was observed that where the act 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. (emphasis added)

It was, thus, held therein that the distinction between two parts of Section 304 (Part I and Part II) is evident from the very language of this section. While Part I is founded on the intention of causing the act by which the death is caused, the other is attracted when the act is done without any intention but with the knowledge that the act is likely to cause death.

It was further observed therein that it is neither advisable nor possible to state any straight-jacket formula that would be universally applicable to all cases for such determination. Every case essentially must be decided on its own merit. The Court has to perform the very delicate function of applying the provisions of the Code to the facts of the case with the clear demarcation as to under what category of cases, the case at hand falls and accordingly, punish the accused.

24. Referring to an earlier decision in Mohinder Pal Jolly vs. State of Punjab12, it was noted in Rampal Singh (supra) that the distinction between two parts of Section 304 has been stated with some clarity therein which reads as under:-

"24. A Bench of this Court in the case of Mohinder Pal Jolly v. State of Punjab [1979 AIR SC 577], stating this distinction with some clarity, held as under :

"11. A question arises whether the appellant was guilty under Part I of Section 304 or Part II. If the accused commits an act while exceeding the right of private defence by which the death is caused either with the intention of causing death or with the intention of causing such bodily injury as was likely to cause death then he would be guilty under Part I. On the other hand if before the application of any of the Exceptions of Section 300 it is found that he was guilty of murder within the meaning of clause "fourthly", then no question of such intention arises and only the knowledge is to be fastened on him that he did indulge in an act with the knowledge that it was likely to cause death but without any intention to cause it or without any intention to cause such bodily injuries as was likely to cause death. There does not seem to be any escape from the position, therefore, that the appellant could be convicted only under Part II of Section 304 and not Part I."

As a guideline as to how the classification of an offence into either Part of Section 304 would be made, it was held in paragraph '25' as under:-

"25. ......xxxxxxxxxxxx.......This would have to be decided with reference to the nature of the offence, intention of the offender, weapon used, the place and nature of the injuries, existence of pre-meditated mind, the persons participating in the commission of the crime and to some extent the motive for commission of the crime. The evidence led by the parties with reference to all these circumstances greatly helps the court in coming to a final conclusion as to under which penal provision of the Code the accused is liable to be punished. This can also be decided from another point of view, i.e., by applying the ''principle of exclusion'. This principle could be applied while taking recourse to a two-stage process of determination. Firstly, the Court may record a preliminary finding if the accused had committed an offence punishable under the substantive provisions of Section 302 of the Code, that is, ''culpable homicide amounting to murder'. Then secondly, it may proceed to examine if the case fell in any of the exceptions detailed in Section 300 of the Code. This would doubly ensure that the conclusion arrived at by the court is correct on facts and sustainable in law........xxxxx............."

The following observations in paragraph '16' of the decision in Aradadi Ramudu alias Aggiramudu (supra) have been quoted in para '34' to state that while answering the question for modification of sentence from Section 302 of the Code to Part II of Section 304 of the Code, it has to be kept in mind that:-

"not only should there be an absence of the intention to cause death, but also an absence of intention to cause such bodily injury that in the ordinary course of things is likely to cause death."

25. Keeping in mind the guidelines laid down by the Apex Court, in the facts of the present case, the first step in analysis, would be to examine as to whether the appellant had committed an offence punishable under the substantive provisions of Section 302 of the Code, i.e. "culpable homicide amounting to murder".

26. To return a finding on the issue, we have to determine as to whether the act by which the death is caused would fall in any of the four Clauses detailed in Section 300 of the Code.

27. Proceeding in this way in the facts of the instant case, it may be noted that both the accused and the deceased were strangers. There is no whisper in the entire evidence that they were known to each other. They were crossing the railway track while driving their respective trucks when they reached at the middle of the track. The categorical statement of eye-witnesses (PW-2 and PW-3) is that both the trucks were coming from opposite directions and stopped in front of each other and the drivers started arguing as to who would take his truck back.

28. In the examination-in-chief of PW-2, it has come that while holding collars of each other, the appellant and the deceased were abusing each other taking their heads out of the window of the truck. It has also come that they were entangled in physical altercation as well. The statements of the eye-witnesses are consistent to the effect that when the deceased asked the appellant to take his truck back, the appellant replied that he would not take his truck back and that had led to the oral as well as physical altercation between them. When they both were entangled in the fight while being in their respective trucks, the appellant gave a blow of knife to the deceased Ram Aasre in his neck. After giving the knife blow, the appellant tried to flee from the spot and moved his truck forward but because of the speed breaker, the crowd could catch hold of the appellant. PW-2 while giving the description of the knife stated that its butt was of iron and not wood and when the first blow of knife was given, while blood was oozing out, he came down from the truck. It has also come in the evidence of the prosecution witnesses that the deceased was profusely bleeding after getting the knife blow and his neck was hanging from the window of the door of the truck, when the Investigating Officer reached the spot. The doctor who conducted the postmortem had given the cause of death due to Coma as a result of injuries on the head of the deceased which could be found only on the internal examination of the body. The left temporal bone of the head was found broken and Subdural & Arachnoid Haemorrhage was found present in the brain membranes. One knife blow on the neck of the deceased was muscle deep but as per the opinion of the doctor, the said injury itself could not result in the death of the victim.

The Investigating Officer has categorically stated that no apparent injuries were found on the person of the appellant and he was only complaining of pain in various parts of his body, and that as lots of blood was present on the head, face and ear of the deceased, the head injury could not be noticed by him.

29. From the analysis of the above statements of the witnesses, it is clear that there was a heated exchange of words between the deceased and the appellant, the deceased caught hold of the appellant with his collar and they both were entangled in physical altercation when the appellant gave the knife blows. The evidence when examined in its entirety, establish that the appellant had committed the offence without any pre-meditation in a sudden fight in the state of anger and the entire incident happened within a very short span of time. The oral altercation between the appellant and the deceased took an ugly turn when they both caught hold of the collars of each other and the fight between them became physical. The evidence is that while the deceased caught hold of the appellant by his collar, the appellant took out the knife and gave one blow on the neck of the deceased. It also seems most probable that the appellant also hit the head of the deceased with the butt of the knife (of iron) which caused the fracture of the left temporal bone, which had resulted in the death in Coma. The doctor categorically opined that the death in Coma was caused due to the head injury.

30. In the above circumstances, the act of the appellant of 'culpable homicide' causing the death of the other person who gave the provocation, was committed whilst the appellant was deprived of the power of self-control by grave and sudden provocation but the death cannot be said to have been caused by mistake or accident or without the offender having taken undue advantage.

31. Furthermore none of the clauses of Section 300 of the Code are attracted as intention of the appellant to cause death or such bodily injury which he knew would cause the death of the other person or sufficient in the ordinary course of nature to cause death, is not proved.

32. The Court, thus, reaches at the answer to the first question that the appellant had not committed an offence within the meaning of Section 300 IPC, i.e., "culpable homicide amounting to murder", which is punishable under Section 302 of the Code. The incident had occurred in a sudden fight, without any premeditation in the state of anger, the offence committed by the appellant, thus, would fall within the meaning of "culpable homicide not amounting to murder" under Section 304 of the Code.

33. A further question then would be whether the appellant is guilty under Part I or Part II of Section 304.

34. As is evident from the record, the appellant gave two blows of knife one on the neck and other on the head of the deceased by butt of the knife during the course of altercation whereas there was no weapon in the hands of the deceased. It, therefore, cannot be said that the death caused by mistake or accident and without the offender having taken undue advantage. The knife with sharp edges is a dangerous weapon and it is obvious that the appellant was aware that the use of such a weapon could cause death. It, thus, proved that there was knowledge on the part of the appellant that if blows of knife that too on the neck and head of the deceased were given, the possibility of the deceased being killed could not be ruled out. But this itself is not necessarily conclusive of the fact that there was an intention on the part of the appellant to kill the deceased. The intention probably was to merely cause bodily injury. This inference has been drawn by the Court looking to the injuries on the head of the deceased which in all probability had been caused by the butt of the knife as also the neck injury which was not fatal but only muscle deep, and that these injuries were caused by the appellant without premeditation in a sudden fight in the heat of passion upon a sudden quarrel with the deceased, and also the medical opinion that the death had resulted not because of the neck injury but due to the head injury which caused Subdural & Arachnoid Haemorrhage on account of which the deceased went into Coma and died.

35. Considering the weapon used and the place and nature of the injuries, though it is found that the appellant committed the offence without any premeditation in a sudden fight in the heat of passion upon a sudden quarrel but the same cannot be said to have been done by mistake or accident. The act of the appellant was clearly with the intent to cause bodily injury which could result in the death of the deceased.

It is a case where there may be an absence of the intention to cause death but it is not where there is also an absence of intention to cause such bodily injury as is likely to cause death which in the ordinary course of things is likely to cause death.

36. In view of the above discussion, though we find that the appellant is not guilty of murder under Section 302 of the Code but he is guilty of committing an offence which is punishable under Section 304 Part I of the Code "Culpable homicide not amounting to murder", punishable in the first part (Part I) of Section 304 of the Code.

37. We, therefore, do not agree with the contentions of the learned counsels for the appellant that the offence committed by the appellant would fall in the Second part (Part II) of Section 304 IPC. Having held that the appellant is guilty of the offence under Section 304 Part I, we partially accept this appeal and alter the offence from that of Section 302 of the Code to one under Section 304 Part I of the Indian Penal Code.

Further, giving due consideration to the facts and circumstances of the present case, we find that the sentence of 10 years rigorous imprisonment would be adequate for the offence of which the appellant has been held guilty.

We, therefore, award a sentence of 10 years rigorous imprisonment to the appellant. The judgment under appeal is modified in the above terms.

38. The appellant is in jail. The appellant has been granted bail on 15.4.1999. However, pursuant to the order dated 3.12.2019, in execution of the non-bailable warrant, the appellant was lodged in jail. The bail application filed by appellant on 3.1.2020 has been rejected by this Court vide order dated 19.12.2019. According to the learned counsels for the appellant, the appellant has remained in jail for about a period of nine years.

Be that as it may, the appellant shall serve out the sentence awarded above.

The appeal is allowed in part.

The office is directed to send back the lower court record along with a certified copy of this judgment for information and necessary compliance.

The compliance report be furnished to this Court through the Registrar General, High Court, Allahabad within one month.

		                   (Vikas Kunvar Srivastav,J.)    (Sunita Agarwal,J.)
 
Order Date :- 10.5.2022
 
Brijesh