Criminal Appeal No.372 of 1999

13th January, 2004

Petitioner Counsel: Mr. M. R. DAGA
Respondent Counsel: Mrs. N. S. JOG

Cases Cited:
Sukhbir Singh Vs. State of Haryana, AIR 2002 SC 1168 [Para 9]

JUDGMENT

D. G. DESHPANDE, J. :- Heard Mr. Daga learned advocate for the appellant and learned A.P.P. for the State.

2. The accused stands convicted for offence under section 302 of I.P.C. and sentenced to suffer R.I. for life and to pay fine of Rs.1000/- in default to suffer R.I. for one year by the Additional Sessions Judge, Bhandara by his judgment dated 15-4-1999 in Sessions Trial No.6/1998.

3. As per the prosecution case the deceased Naresh was assaulted by the accused with knife causing four injuries on the vital part of the body. The defence of the accused was that there was sudden fight between the parties in which accused also received injuries which were not examined by the prosecution. However, the trial court disbelieving the defence convicted the appellant - accused as stated above.

4. Mr. Daga, learned counsel for the appellant made only one submission that, according to him, the case does not come under section 302 of Indian Penal Code and it comes under section 304-I of I.P.C.. He drew our attention to the evidence of P.W. 1 and P.W. 8 referring injuries of the deceased and also the injuries on the accused. So far as the accused is concerned, according to Mr. Daga there were 4 injuries on the person of the accused, the details of these injuries are being given in exhibit 46 as under :

(1) Contusion right hand 3" x 2"

(2) Abrasion right cubical fossa 2" x 1/2"

(3) Abrasion 1" x 1" lower 1/3 of left thigh

(4) Contusion 6" x 1" left shoulder

Advised X-ray right hand.

The doctor has opined that the injuries can be caused by hard and blunt object.

5. Since this document is coming from the prosecution it can not be disputed that the accused had aforesaid injuries on his person. Further in his statement under section 313 of Criminal Procedure Code the accused had admitted his presence at the time of incident and had stated that scuffle took place between him and deceased and accused received aforesaid injuries. Mr. Daga, therefore, contended that if at all the aforesaid injuries were there on the person of the accused, then it was for the prosecution to explain those injuries.

6. Thereafter our attention is drawn to the evidence of P.W. 1 - Exhibit 12 - Ravindra Chhotelal Yerkade who is the brother of the deceased Naresh. Ravindra has stated in his evidence that he was knowing the accused, at the relevant time he was sitting in the temple of Ganeshji and there is also one temple of Hanumanji at that place and according to him at that time accused has rushed with knife and injured his brother - Naresh on the left chest, neck and waist, he has also claimed Suresh, and Raju Balwani as persons who were present on the spot at that time.

7. Thereafter, evidence of P.W. 8 Rajkumar on record was read over to us. This witness has stated that on 21-10-1997 at about 7.30 p.m. to 8.00 p.m. he was sitting in the temple of Hanuman, he was accompanied by Kishor Giri, Suresh Mandurkar, Ravi Yerkade, Balvir Khandre and Naresh Yerkade. He had stated that there was quarrel between the accused and Naresh. Balvir Khandre intervened and thereafter accused ran towards Naresh with knfie and Naresh fell down due to obstacle of bicycle and thereafter accused inflicted 2-3 blows and then ran away. In the cross-examination, this witness - Rajkumar has stated that when he was sitting there accused came and sat on the heap of earth. Thereafter, Naresh - deceased came, and Naresh questioned accused why he came there to sit and doing gundaism, this was followed by quarrel between them. However, all those who were present had thought it was not a serious quarrel. Thereafter, the accused assaulted the deceased.

8. From the aforesaid evidence of P.W. 8 and P.W. 1 Mr. Daga contended that this is clear that there was sudden quarrel, instigation for which was given by the deceased because of his criticism about the conduct of the accused as being a Gunda. Therefore, according to Mr. Daga, if accused was enraged by the remark and then quarrel ensued wherein the accused also sustained aforesaid injuries and then if in heat of passion the accused took out knife and inflicted the blows, the case would not fall under section 302, but it would fall under section 304-I of I.P.C..

9. Mr. Daga, relied on the decision reported in AIR 2002 Supreme Court Page 1168, (Sukhbir Singh Vs. State of Haryana), wherein the matter was taken before the Supreme Court by the accused Sukhbir Singh who was convicted for offence under section 302. The allegations against said Sukhbir Singh was that after quarrel, he went inside the house brought Bhala gave two blows on the right portion of the chest of the deceased Victim - Lacchman and thereafter assault by other accused was followed. According to Mr. Daga even in this background of the matter when the accused had gone to his house and brought Bhala, then inflicted blows on the vital portion of the body of Lachhman Supreme Court held that the matter covered under exception 4 of section 300, it was punishable under section 304 - I of I.P.C. and therefore, according to Mr. Daga, the same legal provision will have to be invoked against the present accused.

10. Our attention was drawn by Mr. Daga to paragraphs 17,18 and 19 of the Judgment of the Supreme Court which reads :

"17. To avail the benefit of the Exception 4, the defence is required to probabilise that the offence was committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and the offender had not taken any undue advantage and the offender had not acted in a cruel or unusual manner. The exception is based upon the principle that in the absence of premeditation and on account of total deprivation of self control but on account of heat of passion, the offence was committed which, normally a man of sober urges would not resort to. Sudden fight, though not defined under the Act, implies mutual provocation. It has been held by Courts that a fight is not per se palliating circumstances and only unpremediated fight is such. The time gap between quarrel and the fight is an important consideration to decide the applicability of the exception. If there intervenes a sufficient time for passion to subside, giving the accused time to come to normalcy and the fight takes place thereafter, the killing would be murder but if the time gap is not sufficient, the accused may be held entitled to the benefit of this exception.

18. In the instant case, concededly, there was no enmity between the parties and there is no allegation of the prosecution that before the occurrence, the appellant and others had pre-meditated. As noticed earlier, occurrence took place when Sukhbir Singh got mud splashes on account of sweeping of the street by Ram Niwas and a quarrel ensued. The deceased gave slaps to the appellant for no fault of his. The quarrel appeared to be sudden on account of heat of passion. The accused went home and came armed in the company of others though without telling them his intention to commit the ultimate crime of murder. The time gap between the quarrel and the fight is stated to be few minutes only. According to Gulab Singh (P.W. 10) when Sukhbir Singh was passing in the street and some mud got splashed on his clothes, he abused Ram Niwas. They both grappled with each other where upon Lacchman (deceased) intervened and separated them. Accused - Sukhbir had abused accused thereafter went to his home after stating that he would teach him a lesson for the slaps which had been given to him. After some time he, alongwith other accused persons, came at the spot and the fight took place. There is a street in between his house and the house of Lachhman (deceased). On the northern side of his house, the house of the appellant is situated. Similarly Ram Niwas (P.W. 11) has stated that after the quarrel the accused went towards his house and within a few minutes he came back with other accused persons. It is, therefore, probable that there was no sufficient lapse of time between the quarrel and the fight which means that the occurrence was sudden within the meaning the Exception 4 of Section on 300 I.P.C..

19. The High Court has also found that the occurrence had taken place upon a sudden quarrel but as the appellant was found to have acted in a cruel and unusual, manner, he was not given the benefit of such exception. For holding him to have acted in a cruel and unusual manner, the High Court relied upon the number of injuries and their location on the body of the deceased. In the absence of the existence of common object, the appellant cannot be held responsible for the other injuries caused to the person of the deceased. He is proved to have inflicted two blows on the person of the deceased which are sufficient in the ordinary course of nature to cause his death. The infliction of the injuries and their nature proves the intention of the appellant but causing of such two injuries cannot be termed to be either in a cruel or unusual manner. All fatal injuries resulting in death cannot be termed as cruel or unusual for the purpose of not availing the benefit of Exception 4 of Section 300 I.P.C.. After the injuries were inflicted and the injured had fallen down, the appellant is not shown to have inflicted any other injury upon his person when he was in a helpless position. It is proved that in a heat of passion upon a sudden quarrel followed by a fight, the accused who was armed with bhala caused injuries at random and thus did not act in a cruel or unusual manner."

Mr. Daga, contended that inflicting more than one injury or inflicting injuries on vital part of body was not a criteria but it was required to be seen whether the assault was as a result of sudden unplanned quarrel. Mr. Daga also contended that merely because three injuries were found on the person of the deceased - Naresh it could not be said that the accused had acted in cruel and unusual manner.

11. Learned A.P.P. on the other hand contended that even as per the admission given by P.W. 8 deceased was attacked by accused when deceased had started running and the deceased fell on the ground because he was obstructed by cycle. As against this Mr. Daga contended that firstly P.W. 1 does not speak about the running of the deceased from the spot and his falling due to bicycle and secondly the story given by the P.W. 8 in the cross-examination does not get support from the medical evidence, because not a single injury nor a slight injury of minor nature is there on the back-side portion of the deceased. We find considerable force in the argument of Mr. Daga that the theory of assault because of the deceased falling due to the obstruction of the bicycle can not be accepted. What remains however, is that there was quarrel between the accused and deceased, the instigation for which was given by deceased. A free fight took place between deceased and accused about which none of the prosecution witnesses speaks anything, the fact remains that the accused had four injuries and he was advised X-ray. It is in this quarrel that the accused has used the knife inflicting three blows. It is true that blows are on vital part of the body, but looking to the Judgment of the Supreme Court referred to above, the circumstances in the present case are not that serious because it is not the case of the prosecution that the accused had any time to go anywhere and bring his knife, but he has used the knife which was with him suddenly in the quarrel and therefore, submission of Mr. Daga is found to be correct that the offence does not fall under Section 302 of I.P.C. and falls under section 304-I of I.P.C.

12. Since the only one submission made by Mr. Daga as is referred to above and discussed we allow this appeal partly. Appeal is partly allowed. Conviction of the accused under section 302 and sentence imposed by the court below is set aside. His case is found to be covered by Exception 4 to Section 300 I.P.C. and he is convicted under section 304-I of I.P.C. and is sentenced to suffer 10 years imprisonment and fine of Rs.500/-, the fine if not paid he should suffer further R.I. for 6 months.

Appeal partly allowed.