AWADHESH KUMAR versus STATE OF U.P. & ANR. on 8 November 2019

1. Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 18.12.2015 passed by the High Court of Judicature atAllahabad at Lucknow Bench in Criminal Appeal No. 2517 of 2009 bywhich the High Court has been pleased to allow the appeal preferredby the original accused partly and has converted the conviction fromSection 302 IPC to Section 304 Part I IPC, the original complainanthas preferred this appeal.

3. Brief facts of the case of the prosecution was that thecomplainant Awadesh Kumar lodged an FIR at Police Station Khiri,District Lakhimpur Kheri on 11.07.2006 at 18:45 hours alleging thereinthat on 11.07.2006 at about 5:30 p.m. his mother Smt. Lajjawati wasmaking complaint to Ravinder Verma (original accused No. 1-respondent No. 2 herein) regarding bad behaviour of his nephew VishunKumar. At that time, Sudhir @ Ramaudh, Rakesh, Vishun Kumar werealso present there. When the mother of the complainant was makingcomplaint, meanwhile all the above named four persons startedquarrelling with his mother.In the meanwhile, the brother of thecomplainant Anoop Kumar and his father Ram Lakhan also reachedthere. Then all the four accused persons were asked by these personsto go away from there. Feeling annoyed by this conduct of thecomplainant side, Vishnu Kumar, Rakesh Kumar and Sudhir @Ramaudh exhorted Ravinder to fire at the deceased, Ravinder, with hiscountry-made pistol fired on the complainant’s mother. The complainantalong with other persons took his injured mother to police station andlodged the FIR.

4. That, initially the case was registered under Section 307, 504,506/34 IPC, however, subsequently on the death of Smt. Lajjawati on11.07.2006, the case was converted into one under Section 302 IPC.

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AAfter investigation, the Investigating Officer filed the charge-sheetagainst all the four named accused persons, including respondent No.2 herein. All of them were tried by the learned Court of Sessions forthe offence punishable under Section 302 IPC. The learned Trial Courtconvicted respondent No. 2 herein (Ravinder) as the specific role offire on the deceased was attributed to him. The learned Trial CourtBacquitted the other three accused persons. The Respondent No.2 herein(original accused no.1) feeling dissatisfied with the order of convictionpassed by the learned Trial Court convicting him, preferred CriminalAppeal before the High Court. By the impugned judgment and order,the High Court has modified the conviction from that of punishableCunder Section 302 IPC to Section 304 Part I IPC and sentenced himto undergo rigorous imprisonment for ten years with a fine of 20,000/-. Feeling aggrieved by the impugned judgment and order passed bythe High Court modifying the conviction from Section 302 IPC to 304Part I IPC, the original complainant has preferred the present appeal.

D5. Learned Advocate on behalf of the appellant - originalcomplainant has vehemently submitted that the High Court hascommitted a grave error in modifying the conviction from that of Section302 IPC to that of under Section 304 Part I IPC.

6. It is further submitted by the learned Advocate appearing onEbehalf of the original complainant that, as such, the accused fired onthe deceased from a close range, due to which the deceased sustainedserious injuries and ultimately died and, therefore, the case would fallunder clause fourthly to Section 300 IPC. It is submitted that, therefore,when the case falls under Clause fourthly to Section 300 IPC, the actof the accused would be culpable homicide amounting to murder.FLearned Advocate appearing on behalf of the original complainant hassubmitted that the High Court has materially erred in holding that theoffence committed by the accused Ravinder would come withinException 4 to Section 300 IPC by observing that it was not a plannedcrime and there was no prior intention and it took place in the heat ofGpassion on the spur of moment. It is submitted by the learned Advocateappearing on behalf of the original complainant that Exception 4 toSection 300 IPC would be attracted only when there is a fight or quarrelwhich requires mutual provocation and blows by both sides in whichthe offender does not take undue advantage. In support of his abovesubmission, learned Advocate appearing on behalf of the originalHcomplainant has heavily relied upon the decision of this Court in the case of State of Madhya Pradesh v. Shivshankar (2014) 10 SCC366. It is submitted that, in the present case, there was no blow by thecomplainant side of the deceased. The complainant side and thedeceased did not have any weapon. The accused came with a country-made firearm after there was some altercation/exchange of words byhis cousin with the deceased. It is submitted that therefore the casewould not fall under Exception 4 to Section 300 IPC. It is submittedthat therefore the High Court has materially erred in converting theconviction from the offence punishable under Section 302 IPC to thatof Section 304 Part I IPC.

7. Learned Advocate appearing on behalf of the original accusedNo. 1 – respondent No. 2 herein has made strenuous efforts to supportthe impugned judgment and order passed by the High Court ultimatelyconvicting the accused for the offence under Section 304 Part I IPC.It is submitted by the learned Advocate appearing on behalf ofrespondent No. 2 – original accused No. 1 that the High Court hasrightly observed that it was not a planned crime and there was no priorintention and it took place in the heat of passion on the spur of moment.It is submitted by the learned Advocate appearing on behalf ofrespondent No. 2 that therefore the High Court has rightly observedthat Exception 4 to Section 300 IPC would be attracted and, therefore,the High Court has rightly converted the conviction from that of Section302 IPC to that of Section 304 Part I IPC.

7.1 Learned Advocate appearing on behalf of respondent No. 2has taken us through the finding recorded by the learned Trial Courtwhile acquitting the other three accused and has submitted that whileacquitting the other three accused persons, the learned Trial Court hasclearly observed that there was no prior intention to commit the murderwith pre-planning and rather the incident took place all of a sudden,when Lajjawati went to complain to Ravinder. It is submitted that thefinding recorded by the learned Trial Court has gone unchallenged. Itis submitted that, therefore, the case would fall under Exception 4 toSection 300 IPC and therefore also the High Court has rightly convertedthe conviction for the offence punishable under Section 302 IPC to thatof Section 304 Part I IPC.

8. We have heard the learned counsel appearing for therespective parties at length. We have also gone through and consideredthe findings recorded by the learned Trial Court as well as the HighCourt.

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A8.1 At the outset, it is required to be noted that the learned TrialCourt convicted respondent No. 2 herein – original accused No. 1 forthe offence punishable under Section 302 IPC. By the impugnedjudgment and order, the High Court converted the conviction for theoffence punishable under Section 302 IPC to that of Section 304 PartI IPC on the grounds that:B

(i) it was not a planned crime;

(ii) there was no prior intention; and

(iii) it took place in the heat of passion on the spur ofmoment.

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Therefore, as per the High Court, the case would fall underException 4 to Section 300 IPC. However, considering the material/evidence on record and considering the deposition of the originalcomplainant and considering the case of the prosecution proved, theincident in question that took place half an hour after there was abusiveDlanguage used by the cousin of original accused No. 1 – Ravinder withthe deceased. That, thereafter, respondent No. 2 herein – originalaccused No. 1 came with others with a country-made firearm and atthat time the deceased made a grievance with respect to the abusivelanguage used by Vishun Kumar (cousin of original accused No. 1) and,at that time, respondent No. 2 – original accused No. 1 started abusing.EAt that time, the deceased and others told them not to use abusivewords in future and told them to go away. At that time, respondentNo. 2 – original accused No. 1 told the deceased and others not tochallenge him and he told that “Do you not know that I have beenconvicted, now I do not have any kind of fear”. Thereafter, RavinderF– respondent No. 2 – original accused No. 1 fired from the close range.None of the persons from the complainant side, including the deceased,was having any weapon. There was no further grave and suddenprovocation by the deceased which led to the accused to fire on thedeceased and, that too, from a very close range.

G8.2 As observed by this Court in the case of Shivshankar (supra),intention is a matter of inference and when death is as a result ofintentional firing, intention to cause death is patent unless the case fallsunder any of the exceptions. It is further observed and held thatException 4 to Section 300 IPC is attracted only when there is a fightor quarrel which requires mutual provocation and blows by both sidesHin which the offender does not take undue advantage.

8.3 In the case of Bhagwan Munjaji Pawade v. State ofMaharashtra (1978) 3 SCC 330, in paragraph 6, this Court hasobserved and held as under:

“6............. It is true that some of the conditions for theapplicability of Exception 4 to Section 300 exist here, but not all.The quarrel had broken out suddenly, but there was no suddenfight between the deceased and the appellant. ‘Fight’ postulatesa bilateral transaction in which blows are exchanged. Thedeceased was unarmed. He did not cause any injury to theappellant or his companions. Furthermore, no less than three fatalinjuries were inflicted by the appellant with an axe, which is aformidable weapon on the unarmed victim. Appellant is therefore,not entitled to the benefit of Exception 4, either.”

8.4 The above observations fully support the view that the presentcase falls under Section 302 IPC.

8.5 Therefore, in the facts and circumstances of the case, theHigh Court has materially erred in applying Exception 4 to Section 300IPC by holding that it was not a planned crime and there was no priorintention and it took place in the heat of passion on the spur of moment.

8.6 Considering the material/evidence on record discussedhereinabove, we are of the firm opinion that the case falls under Clausefourthly to Section 300 IPC and, therefore, the Trial Court was right inconvicting the accused for the offence punishable under Section 302IPC, more particularly, when the accused fired from a country-madefirearm on the deceased from a close range. By the accused firingfrom a close range, the accused was supposed to know that it is soimminently dangerous that it must, in all probability, cause death or suchbodily injury as is likely to cause death.

9. Now, so far as the submission on behalf of the accused relyingupon some of the observations made by the Trial Court while acquittingthe other three accused is concerned, it is required to be noted thatthose observations were made by the learned Trial Court whileconsidering the common intention of the other accused and thereforebenefit of such observations would not be available to original accusedNo. 1 when it has come on record and it has been proved that it wasthe original accused No. 1 who fired at the deceased and, that too, froma very close range.

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A10. In view of the above and for the reasons stated above, thepresent appeal succeeds. The impugned judgment and order passedby the High Court modifying the conviction for the offence punishableunder Section 302 IPC to that of Section 304 Part I IPC is herebyquashed and set aside. The judgment passed by the learned Trial Courtconvicting the respondent No. 2 – original accused No. 1 for the offenceBpunishable under Section 302 IPC is hereby restored. Now, respondentNo. 2 – original accused No. 1 to surrender before the concerned Courtto undergo the sentence as imposed by the learned Trial Court, withina period of three months from today.

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Devika Gujral

Appeal allowed.

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