The State Of Uttar Pradesh vs Faquirey

Criminal Appeal No. 1842 of 2012

THE STATE OF UTTAR PRADESH

.... Appellant(s) Versus FAQUIREY ….Respondent(s)

JUDGMENT

L. NAGESWARA RAO, J.

1. The Respondent was convicted under Section 302 of

the Indian Penal Code, 1860 (hereinafter referred to as ‘ IPC’)

and sentenced to undergo life imprisonment by the Trial

Court. The High Court converted the conviction to an

offence under Section 304 Part I, IPC and sentenced the

Respondent to 10 years rigorous imprisonment. Aggrieved

thereby, the State of Uttar Pradesh is in appeal before us.

2. PW-1, Bahadur lodged an FIR on 22.03.2000 in which it

was stated that a Panchayat was held at the residence of

one Kanhai, at noon on 22.03.2000. There was a dispute Signature Not Verified VISHAL ANAND Date: 2019.02.11 between his nephew Nokhey and the Respondent. During Digitally signed by

15:51:20 IST Reason:

the course of the Panchayat, Rakesh, son of the complainant

arrived at 3.30 p.m. from his agricultural field. The 1 Respondent saw Rakesh and stated that he will kill him prior

to the settlement of the dispute before the Panchayat as

Rakesh had an evil eye on his wife and was visiting his

house. Santosh, the younger brother of the Respondent

also arrived at the spot and exhorted the Respondent to kill

Rakesh. When Rakesh tried to run to save himself, the

Respondent took out a pistol and fired at Rakesh. Rakesh

succumbed to the fire arm injury. The inquest was

conducted on the next day i.e. 23.03.2000 and the dead

body of the deceased Rakesh was sent for post-mortem

examination. As per the post mortem certificate (Ex.Ka.11),

the following injuries were found on the deceased:

“Gunshot wound of entry on right side back level of T/10 and T/11, 2 cm lateral to spine size 2 x 2 cm x chest cavity. Blackening, tattooing present, margins inverted. Direction backward to forward.

On the internal examination Doctor recovered 33 small metallic pallets and wadding pieces from the chest cavity lower part. The 10 th and 12th thoracic vertebra found fractured on right side. 10th and 12th ribs were found fractured on right side. Bluera was lacerated. Right lung was lacerated. 1.2 lt. blood was found in chest cavity. Right chamber of the heart was full and left empty. The stomach was empty. Small intestine contained gases. Large intestine contained faucal matter and gases. Spleen, kidney were pale. 50 ml. Urine was present in bladder. In the opinion of the Doctor deceased had died due to shock and hemorrhage as a result of ante mortem injuries. He had prepared the post mortem report in his own hand writing at the time of post mortem examination which is Ex.Ka.11 on the record.”

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3. A charge under Section 302 IPC was framed against

the Respondent and Santosh was charged under Section

302 read with 34 IPC. After a detailed consideration of the

material on record including the oral testimonies of PW-1

and PW-2 who were the eye witnesses, the Trial Court held

that the Respondent had fired at the deceased from his

pistol as he had a doubt that the deceased was visiting his

house with an evil eye on his wife. While the Trial Court

acquitted Santosh, the Respondent was convicted under

Section 302 IPC and sentenced to undergo life imprisonment

and pay a fine of Rs.5,000/-.

4. In the appeal filed by the Respondent, against the

conviction and sentence, there was no contest on merits.

The only submission made on behalf of the Respondent was

that he could not have been convicted under Section 302

IPC. According to the Appellant, his conviction should have

been under Section 304 IPC as the case is covered under

Exception I to Section 300 IPC. The High Court observed

that the intervention of the deceased in the quarrel between

the two factions led to the Respondent losing his self

control. The High Court was of the opinion that this resulted

in grave and sudden provocation. Observing so, the High

3 Court converted the conviction of the Respondent from

Section 302 IPC to Section 304 Part I IPC. The Respondent

was sentenced to suffer rigorous imprisonment for 10 years.

5. Mr. V. Shekhar, learned Senior Counsel appearing for

the Appellant submitted that the High Court committed an

error in converting the conviction of the Respondent from

under Section 302 IPC to Section 304 Part I, IPC. He further

submitted that the case of the defence that Exception I to

Section 300 IPC is applicable is not correct. The Respondent

was enraged at the sight of the deceased in view of the

doubt he had in his mind about the deceased having an evil

eye on his wife. The learned Senior Counsel relied upon the

First Proviso to Exception I of Section 300 IPC to submit that

the accused is not entitled to claim that the crime was

committed due to grave and sudden provocation. Mr. D. K.

Garg, learned counsel appearing for the Respondent

submitted that the judgment of the High Court does not

deserve any interference as the High Court was right in

recording a finding that the Respondent lost his self control

due to grave and sudden provocation which resulted in his

shooting the deceased. He further submitted that the

incident occurred almost 18 years ago and the Respondent

4 has undergone the sentence of 10 years which is an

additional reason for us not to reverse the judgment of the

High Court.

6. After examining the matter carefully, we are of the

opinion that the judgment of the High Court is liable to be

set aside and the judgment of the Trial Court to be restored.

There is no dispute that the shot fired from the pistol by the

Respondent is due to the grudge that he had against the

deceased. Immediately after the deceased arrived at the

place of incident, the Respondent’s attention was diverted

from the dispute that was being settled in the Panchayat.

He turned to the deceased and shot him in view of his past

conduct relating to the visit of the deceased to his house to

become close with his wife.

7. According to Exception I to Section 300 IPC, culpable

homicide is not murder if the offender causes the death of

the person who gave the provocation, whilst deprived of the

power of self-control by grave and sudden provocation. It

would be relevant to refer to the First Proviso to Exception I

which provides that the provocation should be one which is

not sought or voluntarily provoked by the offender as an

excuse for killing or doing harm to any person. No overt

5 act is alleged against the deceased by which it can be

stated that the Respondent was provoked. From the proved

facts of this case it appears that the provocation was

voluntary on the part of the offender. Such provocation

cannot come to the rescue of the Respondent to claim that

he is not liable to be convicted under Section 302 IPC.

8. The High Court committed a serious error in converting

the conviction of the Respondent from under Section 302

IPC to under Section 304 Part I IPC, without proper

appreciation of the scope of Section 300 IPC. There was no

submission made on behalf of the Respondent before the

High Court on the merits of the matter. If the offence

committed by the Respondent is murder, he has to undergo

the imprisonment provided under Section 302 IPC. Though

the Respondent has undergone imprisonment for a period of

10 years, we are of the opinion that the Respondent is liable

to go back to jail to undergo the remaining sentence on

being sentenced to life imprisonment.

9. For the aforementioned reasons, the judgment of the

High Court is set aside and the judgment of the Trial Court

convicting the Respondent under Section 302 IPC and

sentencing him to life imprisonment is restored. The

6 Respondent is directed to surrender within a period of four

weeks to serve the remaining sentence.

10. Accordingly, the appeal is allowed.

…................................J [L. NAGESWARA RAO]

..……..........................J [SANJAY KISHAN KAUL]

New Delhi, February 11, 2019

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