ATUL THAKUR versus STATE OF HIMACHAL PRADESH ETC. ETC. on 19 January 2018

[2018] 1 S.C.R. 245

ATUL THAKUR

v.

STATE OF HIMACHAL PRADESH ETC. ETC.

(Criminal Appeal Nos. 522-523 of 2016)

JANUARY 19, 2018

[DIPAK MISRA,CJI, A. M. KHANWILKAR AND

DR. D. Y. CHANDRACHUD, JJ.]

Penal Code, 1860 – s.302 – Assault resulting in death –Prosecution case was that the appellant caused six injuries todeceased by attacking him with a knife on the fateful night in thepresence of their friends who had gathered at the house of accusedno.2 for celebrating a drink party arranged at the behest of thedeceased – Deceased succumbed to the injuries caused by theappellant – Conviction by trial court under s.304 Part II – HighCourt convicted appellant-accused under s.302 – On appeal, held:Evidence on record proved sudden physical fight between theappellant and the deceased, in which the appellant, in heat ofpassion, gave six knife blows to the deceased on different parts ofhis body – There was no pre-mediation and the act done by theappellant was in the heat of passion without the appellant takingany undue advantage or acted in a cruel manner – The number ofwounds caused by the appellant by itself cannot be a decisive factor – High Court committed manifest error in being influenced by thesaid fact – The fact that the appellant used weapon such as knife,is also not a decisive factor to attract s.302 – It is a case of culpablehomicide not amounting to murder – Neither the use of a knife inthe commission of offence nor the factum of multiple injuries givenby the appellant would deny the appellant of the benefit of Exception4 of s.300 – As regards sentence, the trial court awarded the sentenceof rigorous imprisonment for five years only for offence under s.304Part-II and fine of Rs.10,000/- and in default, to undergo rigorousimprisonment for a further period of one year – Nature of offenceand the trivial reason for which the appellant got enraged andassaulted the deceased, that too by a knife and also gave multipleblows, does not warrant a light punishment – In the fact situationand ends of justice, the sentence period should not be less than 10years imprisonment with fine.

Partly allowing the appeals, the Court

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[2018] 1 S.C.R.

AHELD: 1.1 The evidence clearly establishes that theappellant assaulted the deceased without any premeditation. Thewhole incident took place suddenly and, in the heat of passion asudden quarrel started as the deceased, while smoking, blewsmoke on the face of the appellant. Resultantly, the appellantgot enraged. He told him that he was senior in age and thusBshould not smoke in his presence much less blow the smoketowards him. Then a sudden physical fight started between them,in which the appellant, in heat of passion, gave six knife blows tothe deceased on different parts of his body. Soon after assaultingthe deceased by knife, when the appellant realised that theCdeceased has been badly injured, he offered him water and tookhim to the hospital along with his other friends. He was in thehospital till the deceased succumbed to the injuries. He had alsoinformed the father of the deceased on telephone and called himto the hospital. Further, when the deceased was taken to thehospital, the doctors did not provide him immediate treatmentDbut insisted on calling his father. This can be culled out from theevidence of PW-11 and PW-12, who were eye-witnesses and alsopresent throughout and until the last rites of the deceased wereperformed. The events clearly show that the appellant had nointention to cause the death of the deceased. [Paras 9, 10][251-EB-C, D-F]

1.2 It is a case of culpable homicide not amounting to murderinasmuch as the incident happened on account of sudden fightbetween the friends who had gathered for a drink party arrangedat the behest of the deceased. The number of wounds caused bythe appellant, it is a well established position, by itself cannot beFa decisive factor. The High Court committed manifest error inbeing influenced by the said fact. What is relevant is that theoccurrence was sudden and not premeditated and the offenderacted in the heat of passion. The evidence supports the case ofthe appellant in this behalf. The fact that the appellant used weaponGsuch as knife, is also not a decisive factor to attract Section 302of IPC. Neither the factum of use of knife by the appellant duringthe assault nor the multiple blows (six) given by the appellantcan be the sole basis to deny the appellant of the benefit availableunder Exception 4 to Section 300 of IPC. The Court is obliged totake an overall view of the matter on the basis of the establishedH

facts. [Paras 12, 14][252-A-C; 254-C]

Surain Singh v. State of Punjab (2017) 5 SCC 796 –relied on.

2. The Trial Court awarded the sentence of rigorousimprisonment for five years only for offence under Section 304Part-II of IPC and fine of Rs.10,000/- and in default, to undergorigorous imprisonment for a further period of one year. For thatno special reason was recorded by the Trial Court. Consideringthe nature of offence and the trivial reason for which the appellantgot enraged and assaulted the deceased, that too by a knife andalso gave multiple blows, does not warrant a light punishment. Inthe fact situation of the present case, the sentence period shouldnot be less than 10 years imprisonment with fine. That wouldmeet the ends of justice. [Paras 15, 16][254-D-E]

Case Law Reference

(2017) 5 SCC 796relied onPara 13

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 522-523 of 2016.

From the Judgment and Order dated 01.04.2016 by the High Courtof Himachal Pradesh, Shimla in Criminal Appeal No. 75 and 227 of2015.

Aditya Dhawan, Ms. Kiran Dhawan, Chander Shekhar Ashri,Advs. for the Appellant.

D. K. Thakur, AAG, Shariq Ahmed, Ms. Taiba Khan, AjayMarwah, Advs. for the Respondents.

The Judgment of the Court was delivered by

A. M. KHANWILKAR, J. 1. These appeals have been filedagainst the judgment and order dated 1[st] April, 2016 passed by the HighCourt of Himachal Pradesh, Shimla in Criminal Appeal Nos.75 & 227 of2015, modifying the order of conviction and sentence passed by theSessions Judge (Forests), Shimla, dated 31[st] December, 2014 in SessionsTrial No.39-S/7 of 2012 thereby convicting the appellant under Section302 of the Indian Penal Code (IPC) and sentencing him to imprisonmentfor life along with fine.

2. Shorn of details, the appellant along with three others weretried for offence punishable under Sections 302, 201 read with Section34 of IPC by the Sessions Judge (Forests), Shimla. The case of theprosecution is that a telephone message was received at Police Station, A

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AWest Shimla at around 4.45 A.M. on 28.07.2011, informing that a quarrelhad taken place near Tunnel 103, from where one Hunny was broughtto IGMC Hospital (Shimla) in seriously injured condition. On reachingthe hospital, the SHO Shakuntala Sharma was informed that the injuredhad succumbed to the injuries. She then recorded the statement ofRajinder Singh under Section 154 of the Code of Criminal Procedure. InBhis statement, Rajinder Singh disclosed that he had two children. Hisdaughter Pooja was doing computer course and his younger son HiteshThakur, 22 years of age, was also doing computer course from LakharBazar. He stated that Hitesh had left home on 27.07.2011 after takingmeal, on his motorcycle bearing registration No.HP-63-3235, for attendingCcomputer course. He had then informed his sister Pooja on her mobilethat he was going with his friend Akhilesh and would not be returningduring the night. He requested his sister to inform their mother. At about3 a.m. on 28.07.2011 one Atul Thakur (appellant herein) telephonicallyinformed him that his son Hitesh was brought to IGMC Hospital, Shimlaas he was not feeling well and asked him to come to the hospital. OnDreceiving that telephonic information he rushed to the hospital and foundthat his son was lying dead in wounded condition. At that time, theappellant was also present there.

3. After recording the statement, investigation proceeded and fouraccused, who had visited the house of Mukesh Thakur (Accused No.2)Ewhere a drink party was arranged during the night of 27.07.2011 and28.07.2011, were sent for trial for the stated offence. The Trial Courtafter analysing the evidence acquitted the other three accused but foundthe appellant guilty of the offence punishable under Section 304, Part-IIand sentenced him to rigorous imprisonment for five years and to payfine of Rs.10,000/-, in default to undergo further imprisonment for oneFyear vide judgment dated 31[st] December, 2014.

4. Against the said decision, the appellant filed an appeal beforethe High Court, being criminal Appeal No.75 of 2015. The complainantalso filed an appeal before the High Court, being Criminal Appeal No.227of 2015 against the acquittal of three accused as well as for enhancementGof sentence of the appellant. Both the appeals came to be disposed of bycommon judgment dated 1[st] April, 2016. The High Court upheld thefinding of fact regarding the involvement of the appellant in the commissionof crime. However, it reversed the finding and conclusion recorded bythe Trial Court regarding the nature of offence. It concluded that takingan overall view of the matter, the appellant was guilty of offenceH

punishable under Section 302 of IPC for the murder of Hitesh Thakurand not under Section 304 Part-II, as held by the Trial Court. At thesame time, the High Court affirmed the order of acquittal in favour ofthe other accused who were tried along with the appellant. In the presentappeals, the aforementioned decision of the High Court has been assailedonly by the original accused No.1.

5. Mr. Aditya Dhawan, learned counsel appearing for the appellant,made a fervent effort to persuade this Court that there is an obviouscontradiction between the evidence of the eye-witnesses which shouldenure to the benefit of the appellant. According to him, the appellantdeserves to be acquitted as in the case of co-accused, as the genesis ofthe offence is doubtful. Further, the involvement of the appellant in thecommission of crime has not been proved beyond reasonable doubt. Hetook us through the evidence of the prosecution witnesses and also ofthe defence witness (DW1) who was examined at the instance of theappellant. He submits that in any case, the fact situation established bythe prosecution, even if taken as it is, does not warrant a finding ofcommission of offence of murder of Hitesh Thakur. At best it is a caseof culpable homicide not amounting to murder, covered by the Exceptionunder Section 300 of IPC and, thus, punishable under second part ofSection 304 of IPC. The Trial Court had justly invoked that offence andsentenced the appellant to undergo five years rigorous imprisonmentwhich the appellant has already undergone. He, therefore, submits thatthis appeal be allowed and the appellant be set free by reviving the orderof the Sessions Court and setting aside the impugned judgment and orderof the High Court. He submits that the appellant has already undergonesentence for a period of 7 years 3 months 24 days as on 24[th] November,2017 including remission period of one year 2 months and 6 days.

6. Learned counsel for the respondents, however, has opposedthese appeals. According to the respondents, the finding of guilt recordedby the two Courts below is supported by the evidence on record whichhas established the involvement of the appellant in the commission ofcrime beyond doubt. The finding of guilt so recorded by the Trial Courtand affirmed by the High Court does not warrant any interference.Similarly, the finding recorded by the High Court reversing the opinion ofthe Trial Court to convict the appellant under Section 302 of IPC is alsounexceptionable. The High Court justly noted that it was a case ofmurder of Hitesh Thakur which is punishable under Section 302 of IPCand not under Section 304 Part-II, in which case the appellant will haveto suffer the sentence period of life imprisonment. The respondents would A

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Asubmit that the appeals are devoid of merit and ought to be dismissed.7. We have carefully considered the oral evidence adduced bythe prosecution, in particular the evidence of PW-11 and PW-12 whowere the eye-witnesses to the incident during which Hitesh Thakur wasassaulted by the appellant with knife causing serious bodily injuries towhich he finally succumbed. In addition to the said oral evidence, theBother circumstances also point towards the complicity of the appellant inthe commission of crime such as recovery of the knife at his instanceand the nature of injuries suffered by the deceased attributable to theassault by the same knife by the appellant. We find that the Trial Courthas justly analysed the evidence to record a finding about the complicityCof the appellant in the commission of crime. That has been affirmed bythe High Court after reappreciation of the relevant evidence. We are inagreement with the view so taken by the two Courts below. In otherwords, we are inclined to uphold the concurrent finding recorded by theCourts below that the appellant caused six injuries to deceased HiteshThakur by attacking him with a knife on the night of 27.07.2011 in theDpresence of their friends (including PW-11 and PW-12) who had gatheredat the house of Mukesh Thakur for celebrating a drink party arranged atthe behest of Hitesh Thakur. Further, Hitesh Thakur succumbed to theinjuries caused by the appellant. Thus, it is a case of homicidal death.

8. Notably, the evidence on record plainly establishes that a suddenEfight took place between the appellant and Hitesh Thakur and in theheat of passion, the appellant assaulted Hitesh Thakur causing seriousbodily injuries. There is no shred of evidence, much less even a remotesuggestion that the appellant had assaulted Hitesh Thakur with an intentionto cause his death. Though the High Court found the appellant guilty, itFhas not held that the bodily injuries caused by the appellant were with anintention to cause the death of Hitesh Thakur. The High Court overturnedthe finding recorded by the Trial Court regarding the nature of offence,principally on the ground that the appellant gave repeated knife blows toHitesh Thakur and Hitesh Thakur could not defend himself as he wasunarmed. Thus, the appellant was found guilty of offence punishableGunder Section 302 of IPC.

9. In other words, the controversy in these appeals boils down tothe nature of offence and the sentence to be awarded in that behalf. Asaforesaid, the evidence on record, as held by two Courts below and withwhich finding we are in full agreement, is that the appellant gave six H

knife blows to Hitesh Thakur on the fateful night to which he succumbed.Thus, it is a case of homicidal death. However, there is no evidence thatthe injuries inflicted by the appellant were with an intention to cause themurder of Hitesh Thakur. On the other hand, the evidence clearlyestablishes that the appellant assaulted Hitesh Thakur without anypremeditation. The whole incident took place suddenly and, in the heatof passion a sudden quarrel started as Hitesh Thakur, while smoking,blew smoke on the face of the appellant. Resultantly, the appellant gotenraged. He told him that he was senior in age and thus should notsmoke in his presence much less blow the smoke towards him. Then asudden physical fight started between them, in which the appellant, inheat of passion, gave six knife blows to Hitesh Thakur on different partsof his body.

10. The evidence of PW-11 and PW-12 (eye-witnesses) wouldestablish that the appellant and others including deceased Hitesh Thakurhad gathered at the spot for a drink party arranged at the instance ofHitesh Thakur. They had consumed drinks when the incident took place.Soon after assaulting Hitesh Thakur by knife, when the appellant realisedthat Hitesh has been badly injured, he offered him water and took him tothe hospital along with his other friends. He was in the hospital till HiteshThakur succumbed to the injuries. He had also informed the father ofHitesh on telephone and called him to the hospital. Further, when Hiteshwas taken to the hospital, the doctors did not provide him immediatetreatment but insisted on calling his father. This can be culled out fromthe evidence of PW-11 and PW-12, who were eye-witnesses and alsopresent throughout and until the last rites of Hitesh Thakur wereperformed.

11. Taking into account the events as unfolded, it leaves no mannerof doubt that the appellant had no intention to cause the death of HiteshThakur. The incident happened without any premeditation in a suddenfight between Hitesh Thakur and the appellant and in heat of passion theappellant inflicted six knife blows on Hitesh Thakur. On the contrary,after realising his mistake, he immediately offered water to Hitesh Thakurand also took him to hospital and stayed there till his last rites wereperformed. PW-2 father of deceased Hitesh Thakur also corroboratesthe position that the appellant had contacted him to inform that Hiteshhad been brought to the hospital in serious condition.

12. Taking overall view of the matter, the facts of the presentcase warrant invocation of Exception 4 to Section 300 of IPC. For, it is A

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Aa case of culpable homicide not amounting to murder inasmuch as theincident happened on account of sudden fight between the friends whohad gathered for a drink party arranged at the behest of Hitesh Thakur.There was no pre-mediation and the act done by the appellant was inthe heat of passion without the appellant taking any undue advantage oracted in a cruel manner. The number of wounds caused by the appellant,Bit is a well established position, by itself cannot be a decisive factor. TheHigh Court committed manifest error in being influenced by the saidfact. What is relevant is that the occurrence was sudden and notpremeditated and the offender acted in the heat of passion. The evidencesupports the case of the appellant in this behalf. The fact that the appellantCused weapon such as knife, is also not a decisive factor to attract Section302 of IPC. Neither the use of a knife in the commission of offence northe factum of multiple injuries given by the appellant would deny theappellant of the benefit of Exception 4.

13. Dealing with a somewhat similar situation, in the case of SurainDSingh Vs. State of Punjab [1], this Court has restated the settled legalposition about the purport of Exception 4 to Section 300 of IPC. Even inthat case, the accused had repeatedly assaulted the deceased with aKirpan and caused injuries resulting into death. After restating the legalposition, the Court converted the offence to one under Section 304 Part-II instead of Section 302 IPC. Following the same legal principle andEkeeping in mind the factual position as unfolded, the view taken by theTrial Court of convicting the appellant for offence punishable underSection 304 Part-II, is unexceptionable. The Trial Court had observedthus:

“60. The evidence placed on record by the prosecution,Freveals that deceased Hitesh and the accused were havingcordial relations since long, knowing to each other and weregood friends. A party was organized by the deceased in theroom of accused Mukesh and deceased himself invited allthe accused to attend the party. In this party, large quantityof alcohol was consumed by them and suddenly an altercationGtook place between deceased Hitesh and accused Atul Thakuras a result of which accused Atul stabbed Hitesh, whichresulted into his death……

61. There is no doubt that Hitesh met a homicidal death onthe night intervening 27/28.07/2011 at IGMC, ShimlaH 1 (2017) 5 SCC 796

consequent to stab injury inflicted by accused Atul Thakur.The queston which arises for consideration is whether thisaction of the accused which caused the death of Hitesh wouldamount to murder or culpable homicide not amounting tomurder. It is an admitted fact that there was no enmity betweenthe deceased and this accused rather they were having cordialrelations. The fact that there was a physical fight betweenthe deceased and the accused Atul, cannot be denied becauseit has come in the evidence of PW-11 Himanshu, PW-12 ManojBansal and PW-1 Ashutosh that a physical fight has takenplace between them. In these circumstances, this Court willhave to examine the prosecution evidence whether the accusedAtul had taken an undue advantage or acted in a cruel orinimical manner so as to deprive him of the benefit of exception4 of Section 300. In fact, the prosecution could not proveany motive for killing the deceased by the accused. Thedrinking session in the room of the accused Mukesh Thakurwas by mutual consent. From these circumstances, it can beheld that the incident in question took place in a sudden fightin the heat of possession. The next question which arises forconsideration is whether the accused Atul did take an undueadvantage of the said fight or acted in a cruel or inimicalmanner. Keeping in view the fact that both the deceased andaccused had consumed considerable amount of alcohol whichis established from the evidence of the prosecution witnesses,it cannot be altogether ruled out that the stab injuries inflictedwere not with an intention of taking undue advantage by theaccused Atul. It is probable that in an inebriated conditionthe accused inflicted the injuries because of the physical fightbetween them. Moreover, keeping in view the nature of theinjuries noticed by Dr. Sandeep Kaushik in the MLC Ext. PW-18/A, it is difficult to accept the accused Atul Thakur intendedto cause the death of Hitesh or that the injuries were sodangerous that they would in all probability, cause death.Nevertheless, the injuries were quite serious, the accused cansurely by credited with the knowledge that if an injury iscaused with a knife on the chest or abdomen of a personthen this act is likely to cause the death of the victim.

62. Having considered the material on record this Court is of AB

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Athe opinion that the accused Atul Thakur can only be foundguilty of an offence punishable under Section 304 Part II,Indian Penal Code.”

14. As aforesaid, the High Court overturned this finding of theTrial Court on the question of nature of offence, by mainly observingBthat the appellant had caused repeated blows with a weapon like knife,causing six serious injuries to Hitesh Thakur to which he succumbed.We are of the opinion that neither the factum of use of knife by theappellant during the assault nor the multiple blows (six) given by theappellant can be the sole basis to deny the appellant of the benefit availableunder Exception 4 to Section 300 of IPC. The Court is obliged to takeCan overall view of the matter on the basis of the established facts. Thisprinciple is restated in Surain Singh’s case (supra).

15. The next question is whether the appellant is right in hispersuasive argument to restore and revive the decision of the Trial Courton the quantum of sentence. The Trial Court awarded the sentence ofDrigorous imprisonment for five years only for offence under Section 304Part-II of IPC and fine of Rs.10,000/- and in default, to undergo rigorousimprisonment for a further period of one year. For that no special reasonhas been recorded by the Trial Court. Considering the nature of offenceand the trivial reason for which the appellant got enraged and assaultedHitesh Thakur, that too by a knife and also gave multiple blows, does notEwarrant a light punishment. We would, however, accept the argument ofthe respondents that in the fact situation of the present case, the sentenceperiod should not be less than 10 years imprisonment with fine. Thatwould meet the ends of justice.

16. Accordingly, we partly allow these Criminal Appeal Nos.75Fand 227 of 2015 filed by original accused No.1 Atul Thakur. We modifythe impugned judgment of the High Court against the appellant in respectof nature of offence and instead restore the order of the Trial Court inthat behalf. The appellant is held guilty for an offence punishable underSection 304 Part-II of IPC and is sentenced to undergo rigorousimprisonment for a period of 10 (Ten) years with fine of Rs.10,000/-G(Rupees Ten Thousand), in default to undergo further imprisonment forone year. Needless to mention that the appellant shall be entitled to setoff under Section 428 of the Code of Criminal Procedure.

17. These appeals are disposed of in the aforementioned terms.

HDevika Gujral