THE STATE OF UTTARAKHAND versus SACHENDRA SINGH RAWAT on 4 February 2022

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 11.12.2018 passed by the High Court of Uttarakhand atNainital in Criminal Appeal No. 110 of 2016, by which the High CourtBhas allowed the said appeal preferred by the respondent – accused andhas held that culpable homicide in the instant case is not murder andconsequently has converted the sentence from life imprisonment to tenyears rigorous imprisonment, the State of Uttarakhand has preferredthe present appeal.

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2. That the respondent herein – original accused was chargedand tried for the offence punishable under Section 302 IPC for havingcommitted the murder of one Virendra Singh. As per the case of theprosecution, on 26.11.2014, the entire village was celebrating MehendiCeremony on the occasion of the wedding of one Anil. In the ceremony,Dthe entire village participated including the deceased Virendra Singh andthe accused Sachendra Singh Rawat. In the night, some altercationstook place between the deceased Virendra Singh and the accusedSachendra Singh Rawat. But due to intervention of the villagers, thematter did not proceed further. After the dinner, at about 12:00 in thenight, the accused attacked Virendra Singh by giving him blows by aE“Danda/Phakadiyat” – a rough piece of wood, which he was carrying.The blow was on the head of the deceased. Virendra Singh ran towardshis house for safety. The accused ran after the deceased with“Phakadiyat” in his hand. The deceased sustained multiple injuries onthe head. There was a skull fracture and a frontal wound on left side.FThe complainant, who was the wife of the deceased tried to rescue herhusband, but failed. Meanwhile, several blows were given to her husband.The mother-in-law of the complainant, Geeta Devi also came to therescue of the deceased. Due to grievous injuries, Virendra Singh fellunconscious. The deceased was initially taken to Dr. Sharma, who residedat Ghansali, which was only a few kilometers away, but considering theGcondition of the injured, he was referred to Mahant Indresh Hospital atDehradun, where he was operated upon. After a few days, i.e., on5.12.2014, Virendra Singh passed away.

2.1 That, the wife of the deceased lodged an FIR against theaccused – respondent herein. Investigation was done by the police officer,Hin charge of the police station. During the course of the investigation, the investigating officer recorded the statements of the eye witnessesincluding the complainant, i.e., the wife of the deceased. The InvestigatingOfficer also collected the medical evidence including post mortem reportetc. Thereafter, on conclusion of the investigation, the InvestigatingOfficer filed the charge sheet against the accused for the offencepunishable under Section 302 IPC. As the case was exclusively triableby the Court of Sessions, the case was committed to the Sessions Courtwhere the accused was put to trial. Accused pleaded not guilty and heclaimed to be tried by the trial Court for the offence punishable underSection 302 IPC.

2.2 To bring home the charge against the accused, the prosecutionexamined in all 14 witnesses. Many of the witnesses were the eyewitnesses including the complainant, i.e., the wife of the deceased. Theprosecution also examined Dr. Pankaj Arora, PW11 who had operatedupon the deceased. After closure of the evidence on the prosecutionside, a further statement of the accused under Section 313 Cr.P.C. wasrecorded. Thereafter, on appreciation of evidence and believing theevidence of eye witnesses, namely, Darshani Devi, the wife of thedeceased and others and considering the nature of the injuries sustainedby the deceased, the trial Court held that the culpable homicide wasmurder and thereby convicted the accused for the offence punishableunder Section 302 IPC and imposed the sentence of life imprisonment.

2.3 Feeling aggrieved and dissatisfied with the judgment and orderof conviction passed by the trial Court and sentencing him to undergolife imprisonment, the accused preferred Criminal Appeal No. 110/2016before the High Court. By the impugned judgment and order, though theHigh Court has believed the evidence of all the eye witnesses includingPW1 – the wife of the deceased, however, has held that culpable homicidedid not amount to murder, solely on the ground that it is not a cold bloodedmurder; rather it is a sudden fight which ensued in the heat of passionbetween the two; as a result of a sudden quarrel in the marriage ceremonyand that the weapon used was “Phakadiyat” which is a rough piece ofwood and therefore it cannot be said that there was any intention on thepart of the accused to kill and/or commit the murder of the deceasedand therefore the case would fall under the Fourth exception to Section300 IPC. After holding so and after altering the finding of murder to oneof culpable homicide not amounting to murder, the High Court hasconverted the sentence from life imprisonment to ten years rigorousimprisonment.

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A2.4 Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court, the State has preferred the presentappeal.

3. Shri Virendra Rawat, learned counsel appearing on behalf ofthe State has vehemently submitted that in the facts and circumstancesBof the case, the High Court has committed a grave error in holding thatthe murder of the deceased does not amount to culpable homicide.

3.1 It is submitted that the High Court has erred in observing andholding that the case would fall within the Fourth exception of Section300 IPC.

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3.2 It is vehemently submitted by the learned counsel appearingon behalf of the State that merely because the weapon used was a“Phakadiyat”, that by itself cannot make the culpable homicide as notamounting to murder. It is submitted that the High Court has not properlyappreciated and considered the repetitive blows given on the vital partDof the body – head and the multiple injuries sustained by the deceasedleading to his death.

3.3 It is further submitted that even the High Court has also notproperly appreciated that after the first incident of altercation betweenthe two at the place of marriage ceremony, due to the intervention of theEvillagers, the matter did not proceed further. However, at about 12:00 inthe night, the accused attacked the deceased by a “Phakadiyat” whichhe was carrying and when the deceased ran towards his house for safety,the accused ran after him, reached his house and continued to give severalblows. It is therefore submitted that the High Court has erred in observingand holding that the case would fall under Fourth exception to SectionF300 IPC as there was no premeditation and it was a result of a suddenfight and due to a sudden quarrel in the mehendi ceremony.

3.4 It is submitted that the High Court has not properly appreciatedthe fact that the main incident of having beaten the deceased wassubsequent to the first incident of altercation in the mehendi ceremony.GIt is submitted that by no stretch of imagination, it can be said that theincident had occurred due to a sudden fight in the heat of passion upon asudden quarrel in the mehendi ceremony.

3.5 It is further submitted that the High Court has not at allconsidered the multiple grievous injuries sustained by the deceased onHthe head. It is submitted that the accused used “Phakadiyat” with such a force that there was a skull fracture and a frontal wound on left sideand wounds with 34 stitches on the left side of the skull extended frommid of the left side of the skull along with coronal sutures of 16 cm. It issubmitted that therefore the case would certainly fall under ClausesThirdly and Fourthly to Section 300 IPC and therefore the trial Courtrightly convicted the accused for the offence under Section 302 IPC.

3.6 In support of the above submissions, learned counsel appearingon behalf of the State has heavily relied upon the decision of this Courtin the cases of Stalin vs. State, (2020) 9 SCC 524, in which this Courtconsidered the earlier decisions of this Court on the point in the cases ofMahesh Balmiki vs. State of M.P., (2000) 1 SCC 319; DhirajbhaiGorakhbhai Nayak vs. State of Gujarat, (2003) 9 SCC 322;Pulicherla Nagaraju vs. State of A.P., (2006) 11 SCC 444;Singapagu Anjaiah vs. State of A.P., (2010) 9 SCC 799; State ofRajasthan vs. Kanhaiya Lal, (2019) 5 SCC 639; Arun Raj v. Unionof India, (2010) 6 SCC 457; Ashokkumar Magabhai Vankar vs.State of Gujarat, (2011) 10 SCC 604; State of Rajasthan vs. LeelaRam, (2019) 13 SCC 131; Bavisetti Kameswara Rao vs. State ofA.P., (2008) 15 SCC 725; and Virsa Singh vs. State of Punjab, AIR1958 SC 465.

3.7 Making the above submissions and relying upon the aforesaiddecisions, it is prayed to set aside the impugned judgment and orderpassed by the High Court quashing and setting aside the conviction ofthe accused for the offence under Section 302 IPC and to restore thejudgment and order passed by the trial Court convicting the accused forthe offence under Section 302 IPC and sentencing him to lifeimprisonment.

4. Ms. Neha Sharma, learned counsel appearing on behalf of therespondent – accused has tried to support the impugned judgment andorder passed by the High Court holding that in the instant case the culpablehomicide is not amounting to murder invoking Fourth exception to Section300 IPC.

4.1 It is submitted by the learned counsel appearing on behalf ofthe accused that cogent reasons have been given by the High Courtafter considering the surrounding circumstances and other considerationsthat the culpable homicide is not amounting to murder and that the casewould fall under Fourth exception to Section 300 IPC.

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A4.2 It is submitted that as rightly observed by the High Court asthe weapon used by the accused was a “Phakadiyat” which is a roughpiece of wood, it cannot be said that there was any premeditation and/orany intention on the part of the accused to kill and/or commit the murderof the deceased.B4.3 It is further submitted that the High Court has rightly observedand held that the incident occurred in a sudden fight in the heat of passionon a sudden quarrel in the mehendi ceremony and that the weapon usedwas “Phakadiyat” which is used as a firewood primarily where food isbeing cooked and where in the heat of passion the accused picked upthe “Phakadiyat” and used the same and therefore the case would fallCunder Fourth exception to Section 300 IPC. It is therefore submittedthat the High Court has rightly altered the finding of murder to one ofculpable homicide not amounting to murder and has rightly convertedthe sentence from life imprisonment to ten years rigorous imprisonment.

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4.4 Making the above submissions, it is prayed to dismiss theDpresent appeal.5. We have heard the learned counsel for the respective partiesat length.

At the outset, it is required to be noted that the trial Court convictedEthe accused for the offence under Section 302 IPC for having killed oneVirendra Singh. It can be seen that the incident took place in two places.The first incident of altercation between the accused and the deceasedwas at the place of mehendi ceremony. At that time, due to theintervention of the villagers, the matter did not proceed further. Thatthereafter, the second incident took place at about 12:00 in the night,Fwhich can be said to be the actual incident which happened when theaccused attacked the deceased by “Phakadiyat” and gave several blowsto the deceased. The deceased ran towards his house and the accusedalso followed him and continued to give blows on the head, thigh etc.Therefore, the second incident cannot be said to be a result of suddenGfight in the heat of passion upon a sudden quarrel. The accused chasedthe deceased at about 12:00 in the mid night and even after the deceasedreached his house, he was beaten by the accused in front of his housewhich is witnessed by his wife, PW1. Therefore, as such, the High Courthas erred in observing and/or accepting the case on behalf of the accusedthat the incident had taken place due to a sudden fight in the heat ofHpassion upon a sudden quarrel in the mehendi ceremony. The second incident had not taken place at all during the mehendi ceremony. Thesecond incident had taken place near the house of the deceased and thattoo after the first incident was over, everybody went to their houses andthereafter at 12:00 in the mid night the second incident had taken placein which the accused gave several blows to the deceased by “Phakadiyat”on the head, thigh etc. Therefore, the High Court has erred in observingthat the case would fall under Fourth exception to Section 300 IPC.

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5.1 Even otherwise, the High Court has not properly appreciatedand/or considered the multiple injuries sustained by the deceased. Asper the medical evidence, the following injuries were found on the bodyof the deceased:

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“On external examination of the dead body following conditionsand injuries were found:

Average built, rigor mortis present at both upper limbs extendedupto the lower half of the thighs, eyes partially open, cornea wasdried xerosis, nostrils with blood clots.

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(i) Stitched wounds with 34 stitches with left side of the skullextended from mid of the left side of the skull along withcoronal sutures of 16 cm. Sutures were metallic.

(ii) Tracheotomy opening with secretion present in the wound,inside the trachea along with lacerated wound 4cm in sizeEwith sharp and well defined margins.

(iii) Multiple contused wounds which were 1 to 2 cm in sizebluish black in colour at the left side of the shin of leg atupper two-third region.

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On internal examination of the dead body following conditionsand injuries were found:

(i) Skull fracture at the frontal wound on left side. Sharp welldefined parietal bone wound which was suggestive ofcraniotomy with well defined margin.

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(ii) Brain lacerated and clots present in the frontoparietal.Lacerated brain wound extended up to the frontoparietaland temporal.”

The main cause of death was injuries sustained by the deceasedon his head.

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A5.2 From the aforesaid multiple injuries sustained by the deceased,it can be seen that the accused used the “Phakadiyat” with such a forcethat it resulted in skull fracture at the frontal wound on the left side;stitched wounds with 34 stitches with left side of the skull extendedfrom mid of the left side of the skull along with coronal sutures of 16 cm;brain lacerated and clots present in the frontoparietal and lacerated brainBwound extended up to the frontoparietal and temporal. Thus, havingcaused the grievous injuries with such a force, how can the accused getthe benefit of fourth exception to Section 300 IPC. The case wouldcertainly fall under Clauses Thirdly and/or Fourthly to Section 300 IPC.

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6. In light of the above factual scenario, few decisions of thisCCourt on the point whether culpable homicide would tantamount to murderor not, are required to be referred to and considered.

a) In the case of Virsa Singh (supra), in paragraphs 16 & 17, itwas observed and held as under:

D‘16. … The question is not whether the prisoner intendedto inflict a serious injury or a trivial one but whether he intended toinflict the injury that is proved to be present. If he can show thathe did not, or if the totality of the circumstances justify such aninference, then, of course, the intent that the section requires isnot proved. But if there is nothing beyond the injury and the factEthat the appellant inflicted it, the only possible inference is that heintended to inflict it. Whether he knew of its seriousness, orintended serious consequences, is neither here nor there. Thequestion, so far as the intention is concerned, is not whetherhe intended to kill, or to inflict an injury of a particular degreeFof seriousness, but whether he intended to inflict the injuryin question; and once the existence of the injury is provedthe intention to cause it will be presumed unless the evidenceor the circumstances warrant an opposite conclusion. Butwhether the intention is there or not is one of fact and not one oflaw. Whether the wound is serious or otherwise, and if serious,Ghow serious, is a totally separate and distinct question and hasnothing to do with the question whether the prisoner intended toinflict the injury in question.

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17. It is true that in a given case the enquiry may be linkedup with the seriousness of the injury. For example, if it can beHproved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial scratch and that byaccident his victim stumbled and fell on the sword or spear thatwas used, then of course the offence is not murder. But that is notbecause the prisoner did not intend the injury that he intended toinflict to be as serious as it turned out to be but because he did notintend to inflict the injury in question at all. His intention in such acase would be to inflict a totally different injury. The difference isnot one of law but one of fact; ….’”

(emphasis in original)

b) In Dhirajbhai Gorakhbhai Nayak (supra), on applicabilityof Exception 4 of Section 300 IPC, it was observed and held in paragraph11 as under:

“11. The fourth exception of Section 300 IPC covers actsdone in a sudden fight. The said Exception deals with a case ofprosecution (sic provocation) not covered by the first exception,after which its place would have been more appropriate. TheException is founded upon the same principle, for in both there isabsence of premeditation. But, while in the case of Exception 1there is total deprivation of self-control, in case of Exception 4,there is only that heat of passion which clouds men’s sober reasonand urges them to deeds which they would not otherwise do.There is provocation in Exception 4 as in Exception 1, but theinjury done is not the direct consequence of that provocation. Infact, Exception 4 deals with cases in which notwithstanding that ablow may have been struck, or some provocation given in theorigin of the dispute or in whatever way the quarrel may haveoriginated, yet the subsequent conduct of both parties puts themin respect of guilt upon an equal footing. A “sudden fight” impliesmutual provocation and blows on each side. The homicidecommitted 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 applicablewould be Exception 1. There is no previous deliberation ordetermination to fight. A fight suddenly takes place, for whichboth parties are more or less to be blamed. It may be that one ofthem starts it, but if the other had not aggravated it by his ownconduct it would not have taken the serious turn it did. There isthen mutual provocation and aggravation, and it is difficult toapportion the share of blame which attaches to each fighter. The AB

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Ahelp of Exception 4 can be invoked if death is caused (a) withoutpremeditation, (b) in a sudden fight, (c) without the offendershaving taken undue advantage or acted in a cruel or unusualmanner, and (d) the fight must have been with the person killed.To bring a case within Exception 4 all the ingredients mentionedin it must be found. It is to be noted that the “fight” occurring inBException 4 to Section 300 IPC is not defined in IPC. It takes twoto make a fight. Heat of passion requires that there must be notime for the passions to cool down and in this case, the parties hadworked themselves into a fury on account of the verbal altercationin the beginning. A fight is a combat between two and more personsCwhether with or without weapons. It is not possible to enunciateany 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 notmust necessarily depend upon the proved facts of each case. Forthe application of Exception 4, it is not sufficient to show thatthere was a sudden quarrel and there was no premeditation. ItDmust further be shown that the offender has not taken undueadvantage or acted in a cruel or unusual manner. The expression“undue advantage” as used in the provision means “unfairadvantage”.”

c) In the case of Pulicherla Nagaraju (supra), this Court hadEan occasion to consider the case of culpable homicide not amounting tomurder and the intention to cause death. It was observed and held bythis Court that the intention to cause death can be gathered generallyfrom a combination of a few or several of the following, among other,circumstances: (i) nature of the weapon used; (ii) whether the weaponFwas carried by the accused or was picked up from the spot; (iii) whetherthe blow is aimed at a vital part of the body; (iv) the amount of forceemployed in causing injury; (v) whether the act was in the course ofsudden quarrel or sudden fight or free for all fight; (vi) whether theincident occurs by chance or whether there was any premeditation; (vii)

whether there was any prior enmity or whether the deceased was aGstranger; (viii) whether there was any grave and sudden provocation,and if so, the cause for such provocation; (ix) whether it was in the heatof passion; (x) whether the person inflicting the injury has taken undueadvantage or has acted in a cruel and unusual manner; (xi) whether theaccused dealt a single blow or several blows. In paragraph 29, it wasHobserved as under:

“29. Therefore, the court should proceed to decide the pivotalquestion of intention, with care and caution, as that will decidewhether the case falls under Section 302 or 304 Part I or 304 PartII. Many petty or insignificant matters — plucking of a fruit,straying of cattle, quarrel of children, utterance of a rude word oreven an objectionable glance, may lead to altercations and groupclashes culminating in deaths. Usual motives like revenge, greed,jealousy or suspicion may be totally absent in such cases. Theremay be no intention. There may be no premeditation. In fact,there may not even be criminality. At the other end of the spectrum,there may be cases of murder where the accused attempts toavoid the penalty for murder by attempting to put forth a case thatthere was no intention to cause death. It is for the courts to ensurethat the cases of murder punishable under Section 302, are notconverted into offences punishable under Section 304 Part I/II, orcases of culpable homicide not amounting to murder, are treatedas murder punishable under Section 302. The intention to causedeath can be gathered generally from a combination of a few orseveral of the following, among other, circumstances: (i) natureof the weapon used; (ii) whether the weapon was carried by theaccused or was picked up from the spot; (iii) whether the blow isaimed at a vital part of the body; (iv) the amount of force employedin causing injury; (v) whether the act was in the course of suddenquarrel or sudden fight or free for all fight; (vi) whether the incidentoccurs by chance or whether there was any premeditation;(vii) whether there was any prior enmity or whether the deceasedwas a stranger; (viii) whether there was any grave and suddenprovocation, and if so, the cause for such provocation; (ix) whetherit was in the heat of passion; (x) whether the person inflicting theinjury has taken undue advantage or has acted in a cruel andunusual manner; (xi) whether the accused dealt a single blow orseveral blows. The above list of circumstances is, of course, notexhaustive and there may be several other special circumstanceswith reference to individual cases which may throw light on thequestion of intention. Be that as it may.”

d) In the case of Singapagu Anjaiah (supra), in a similar set offacts and circumstances, this Court concluded that the accused intendedto cause death of the deceased. In paragraph 16, it was observed asunder:

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“16. In our opinion, as nobody can enter into the mind of theaccused, his intention has to be gathered from the weapon used,the part of the body chosen for the assault and the nature of theinjuries caused. Here, the appellant had chosen a crowbar as theweapon of offence. He has further chosen a vital part of the bodyi.e. the head for causing the injury which had caused multiplefractures of skull. This clearly shows the force with which theappellant had used the weapon. The cumulative effect of all thesefactors irresistibly leads to one and the only conclusion that theappellant intended to cause death of the deceased.”

e) In Kanhaiya Lal (supra), it was held by this Court in paras7.4 and 7.5 as follows:

7.4. In Ashokkumar Magabhai Vankar [AshokkumarMagabhai Vankar v. State of Gujarat, (2011) 10 SCC 604, thedeath was caused by single blow on head of the deceased with awooden pestle. It was found that the accused used pestle withsuch force that head of the deceased was broken into pieces.This Court considered whether the case would fall under Section302 or Exception 4 to Section 300 IPC. It is held by this Court thatthe injury sustained by the deceased, not only exhibits intention ofthe accused in causing death of victim, but also knowledge of theaccused in that regard. It is further observed by this Court thatsuch attack could be none other than for causing death of victim.It is observed that any reasonable person, with any stretch ofimagination can come to conclusion that such injury on such avital part of the body, with such a weapon, would cause death.

7.5. A similar view is taken by this Court in the recentdecision in Leela Ram [State of Rajasthan v. Leela Ram, (2019)13 SCC 131 and after considering a catena of decisions of thisCourt on the issue on hand i.e. in case of a single blow, whether acase falls under Section 302 or Section 304 Part I or Section 304Part II, this Court reversed the judgment [Leela Ram v. State ofRajasthan, 2008 SCC OnLine Raj 945] and convicted the accusedfor the offence under Section 302 IPC. In the same decision, thisCourt also considered Exception 4 of Section 300 IPC and observedin para 19 as under: (Leela Ram case [State of Rajasthan v.Leela Ram, (2019) 13 SCC 131, SCC pp. 140-41)

‘19. … Under Exception 4, culpable homicide is notmurder if the stipulations contained in that provision are fulfilled.They are: (i) that the act was committed without premeditation;(ii) that there was a sudden fight; (iii) the act must be in theheat of passion upon a sudden quarrel; and (iv) the offendershould not have taken undue advantage or acted in a cruel orunusual manner.’”

7. Applying the law laid down by this Court in the aforesaiddecisions to the facts of the case on hand and the fact that the accusedgave several blows/multiple blows on the vital part of the body – headwhich resulted into grievous injuries and he used “Phakadiyat” with sucha force which resulted in Skull fracture and a frontal wound on left sideand wounds with 34 stitches on the left side of the skull extended frommid of the left side of the skull along with coronal sutures of 16 cm, weare of the opinion that the case would fall under Clauses thirdly andfourthly of Section 300 IPC. Clauses thirdly and fourthly of Section300 IPC read as under:

“Thirdly.—If it is done with the intention of causing bodilyinjury to any person and the bodily injury intended to be inflicted issufficient in the ordinary course of nature to cause death, or—

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

Therefore, as per Section 300 IPC, if the case falls within Clausesthirdly and fourthly to Section 300 IPC, culpable homicide can be saidto be amounting to murder. Therefore, in the facts and circumstances ofthis case, the High Court has committed a grave error in observing thatculpable homicide did not amount to murder, by applying exception Fourthto Section 300 IPC. As observed hereinabove, exception Fourth to Section300 IPC ought not to have been applied by the High Court at all consideringthe fact that the main second incident had taken place subsequently at12:00 in the night, much after the first incident of altercation was over inthe mehendi ceremony. The impugned judgment and order passed bythe High Court is unsustainable both, on facts as well as on law.

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544SUPREME COURT REPORTS

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544SUPREME COURT REPORTS

A8. In view of the above and for the reasons stated above, thepresent appeal is allowed. The impugned judgment and order passed bythe High Court altering finding of murder to one of culpable homicidenot amounting to murder and consequently converting the sentence fromlife imprisonment to ten years rigorous imprisonment is hereby quashedand set aside. The respondent-accused is held guilty for the offenceBunder Section 302 IPC for having killed and/or committed the murder ofthe deceased Virendra Singh and he is sentenced to undergo lifeimprisonment. Accordingly, the judgment and order passed by the trialCourt convicting the accused for the offence under Section 302 IPCand sentencing him to life imprisonment is hereby restored.

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Devika Gujral

Appeal allowed.

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