Awadhesh Kumar vs The State Of Uttar Pradesh

REPORTABLE

IN THE SUPREME COUR OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1670 OF 2019 [Arising out of SLP (Crl.) No. 1299 of 2016]

Awadhesh Kumar .. Appellant

Versus

State of U.P. & Anr. .. Respondents

JUDGMENT

M. R. SHAH, J.

1. Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 18.12.2015 passed by the High Court

of Judicature at Allahabad at Lucknow Bench in Criminal Appeal

No. 2517 of 2009 by which the High Court has been pleased to

allow the appeal preferred by the original accused partly and has

converted the conviction from Section 302 IPC to Section 304 Signature Not Verified

Part I IPC, the original complainant has preferred this appeal. Digitally signed by ARJUN BISHT Date: 2019.11.08 16:10:48 IST Reason: 2

3. Brief facts of the case of the prosecution was that the

complainant Awadesh Kumar lodged an FIR at Police Station

Khiri, District Lakhimpur Kheri on 11.07.2006 at 18:45 hours

alleging therein that on 11.07.2006 at about 5:30 p.m. his

mother Smt. Lajjawati was making complaint to Ravinder Verma

(original accused No. 1 ­ respondent No. 2 herein) regarding bad

behaviour of his nephew Vishun Kumar. At that time, Sudhir @

Ramaudh, Rakesh, Vishun Kumar were also present there.

When the mother of the complainant was making complaint,

meanwhile all the above named four persons started quarrelling

with his mother. In the meanwhile, the brother of the

complainant Anoop Kumar and his father Ram Lakhan also

reached there. Then all the four accused persons were asked by

these persons to go away from there. Feeling annoyed by this

conduct of the complainant side, Vishnu Kumar, Rakesh Kumar

and Sudhir @ Ramaudh exhorted Ravinder to fire at the

deceased, Ravinder, with his country­made pistol fired on the

complainant’s mother. The complainant along with other persons

took his injured mother to police station and lodged the FIR.

4. That, initially the case was registered under Section 307,

504, 506/34 IPC, however, subsequently on the death of Smt. 3

Lajjawati on 11.07.2006, the case was converted into one under

Section 302 IPC. After investigation, the Investigating Officer filed

the charge­sheet against all the four named accused persons,

including respondent No. 2 herein. All of them were tried by the

learned Court of Sessions for the offence punishable under

Section 302 IPC. The learned Trial Court convicted respondent

No. 2 herein (Ravinder) as the specific role of fire on the deceased

was attributed to him. The learned Trial Court acquitted the

other three accused persons. The Respondent No.2 herein

(original accused no.1) feeling dissatisfied with the order of

conviction passed by the learned Trial Court convicting him,

preferred Criminal Appeal before the High Court. By the

impugned judgment and order, the High Court has modified the

conviction from that of punishable under Section 302 IPC to

Section 304 Part I IPC and sentenced him to undergo rigorous

imprisonment for ten years with a fine of 20,000/­. Feeling

aggrieved by the impugned judgment and order passed by the

High Court modifying the conviction from Section 302 IPC to 304

Part I IPC, the original complainant has preferred the present

appeal.

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5. Learned Advocate on behalf of the appellant ­ original

complainant has vehemently submitted that the High Court has

committed a grave error in modifying the conviction from that of

Section 302 IPC to that of under Section 304 Part I IPC.

6. It is further submitted by the learned Advocate appearing on

behalf of the original complainant that, as such, the accused

fired on the deceased from a close range, due to which the

deceased sustained serious injuries and ultimately died and,

therefore, the case would fall under clause fourthly to Section

300 IPC. It is submitted that, therefore, when the case falls

under Clause fourthly to Section 300 IPC, the act of the accused

would be culpable homicide amounting to murder. Learned

Advocate appearing on behalf of the original complainant has

submitted that the High Court has materially erred in holding

that the offence committed by the accused Ravinder would come

within Exception 4 to Section 300 IPC by observing that it was

not a planned crime and there was no prior intention and it took

place in the heat of passion on the spur of moment. It is

submitted by the learned Advocate appearing on behalf of the

original complainant that Exception 4 to Section 300 IPC would

be attracted only when there is a fight or quarrel which requires 5

mutual provocation and blows by both sides in which the

offender does not take undue advantage. In support of his above

submission, learned Advocate appearing on behalf of the original

complainant has heavily relied upon the decision of this Court in

the case of State of Madhya Pradesh v. Shivshankar (2014) 10

SCC 366. It is submitted that, in the present case, there was no

blow by the complainant side of the deceased. The complainant

side and the deceased did not have any weapon. The accused

came with a country­made firearm after there was some

altercation/exchange of words by his cousin with the deceased.

It is submitted that therefore the case would not fall under

Exception 4 to Section 300 IPC. It is submitted that therefore the

High Court has materially erred in converting the conviction from

the offence punishable under Section 302 IPC to that of Section

304 Part I IPC.

7. Learned Advocate appearing on behalf of the original

accused No. 1 – respondent No. 2 herein has made strenuous

efforts to support the impugned judgment and order passed by

the High Court ultimately convicting the accused for the offence

under Section 304 Part I IPC. It is submitted by the learned

Advocate appearing on behalf of respondent No. 2 – original 6

accused No. 1 that the High Court has rightly observed that it

was not a planned crime and there was no prior intention and it

took place in the heat of passion on the spur of moment. It is

submitted by the learned Advocate appearing on behalf of

respondent No. 2 that therefore the High Court has rightly

observed that Exception 4 to Section 300 IPC would be attracted

and, therefore, the High Court has rightly converted the

conviction from that of Section 302 IPC to that of Section 304

Part I IPC.

7.1 Learned Advocate appearing on behalf of respondent No. 2

has taken us through the finding recorded by the learned Trial

Court while acquitting the other three accused and has

submitted that while acquitting the other three accused persons,

the learned Trial Court has clearly observed that there was no

prior intention to commit the murder with pre­planning and

rather the incident took place all of a sudden, when Lajjawati

went to complain to Ravinder. It is submitted that the finding

recorded by the learned Trial Court has gone unchallenged. It

is submitted that, therefore, the case would fall under Exception

4 to Section 300 IPC and therefore also the High Court has 7

rightly converted the conviction for the offence punishable under

Section 302 IPC to that of Section 304 Part I IPC.

8. We have heard the learned counsel appearing for the

respective parties at length. We have also gone through and

considered the findings recorded by the learned Trial Court as

well as the High Court.

8.1 At the outset, it is required to be noted that the learned

Trial Court convicted respondent No. 2 herein – original accused

No. 1 for the offence punishable under Section 302 IPC. By the

impugned judgment and order, the High Court converted the

conviction for the offence punishable under Section 302 IPC to

that of Section 304 Part I IPC on the grounds that:

(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 of moment.

Therefore, as per the High Court, the case would fall under

Exception 4 to Section 300 IPC. However, considering the

material/evidence on record and considering the deposition of

the original complainant and considering the case of the

prosecution proved, the incident in question that took place half

an hour after there was abusive language used by the cousin of 8

original accused No. 1 – Ravinder with the deceased. That,

thereafter, respondent No. 2 herein – original accused No. 1 came

with others with a country­made firearm and at that time the

deceased made a grievance with respect to the abusive language

used by Vishun Kumar (cousin of original accused No. 1) and, at

that time, respondent No. 2 – original accused No. 1 started

abusing. At that time, the deceased and others told them not to

use abusive words in future and told them to go away. At that

time, respondent No. 2 – original accused No. 1 told the deceased

and others not to challenge him and he told that “Do you not

know that I have been convicted, now I do not have any kind of

fear”. Thereafter, Ravinder – 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 sudden provocation by

the deceased which led to the accused to fire on the deceased

and, that too, from a very close range.

8.2 As observed by this Court in the case of Shivshankar

(supra), intention is a matter of inference and when death is as a

result of intentional firing, intention to cause death is patent

unless the case falls under any of the exceptions. It is further 9

observed and held that Exception 4 to Section 300 IPC is

attracted only when there is a fight or quarrel which requires

mutual provocation and blows by both sides in which the

offender does not take undue advantage.

8.3 In the case of Bhagwan Munjaji Pawade v. State of

Maharashtra (1978) 3 SCC 330, in paragraph 6, this Court has

observed and held as under:

“6. ............ It is true that some of the conditions for the applicability of Exception 4 to Section 300 exist here, but not all. The quarrel had broken out suddenly, but there was no sudden fight between the deceased and the appellant. 'Fight' postulates a bilateral transaction in which blows are exchanged.

The deceased was unarmed. He did not cause any injury to the appellant or his companions.

Furthermore, no less than three fatal injuries were inflicted by the appellant with an axe, which is a formidable 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

present case falls under Section 302 IPC.

8.5 Therefore, in the facts and circumstances of the case, the

High Court has materially erred in applying Exception 4 to

Section 300 IPC by holding that it was not a planned crime and

there was no prior intention and it took place in the heat of

passion on the spur of moment.

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8.6 Considering the material/evidence on record discussed

hereinabove, we are of the firm opinion that the case falls under

Clause fourthly to Section 300 IPC and, therefore, the Trial Court

was right in convicting the accused for the offence punishable

under Section 302 IPC, more particularly, when the accused fired

from a country­made firearm on the deceased from a close range.

By the accused firing from a close range, the accused was

supposed to know that it is so imminently dangerous that it

must, in all probability, cause death or such bodily injury as is

likely to cause death.

9. Now, so far as the submission on behalf of the accused

relying upon some of the observations made by the Trial Court

while acquitting the other three accused is concerned, it is

required to be noted that those observations were made by the

learned Trial Court while considering the common intention of the

other accused and therefore benefit of such observations would

not be available to original accused No. 1 when it has come on

record and it has been proved that it was the original accused No.

1 who fired at the deceased and, that too, from a very close range.

10. In view of the above and for the reasons stated above, the

present appeal succeeds. The impugned judgment and order 11

passed by the High Court modifying the conviction for the offence

punishable under Section 302 IPC to that of Section 304 Part I

IPC is hereby quashed and set aside. The judgment passed by

the learned Trial Court convicting the respondent No. 2 – original

accused No. 1 for the offence punishable under Section 302 IPC is

hereby restored. Now, respondent No. 2 – original accused No. 1

to surrender before the concerned Court to undergo the sentence

as imposed by the learned Trial Court, within a period of three

months from today.

........................................J. (ARUN MISHRA)

........................................J. (M. R. SHAH)

........................................J. (S. RAVINDRA BHAT)

New Delhi, November 08, 2019.