RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO. 1856 Of 2001 Kashmir Singh …Appellant Versus State of Uttaranchal …Respondent February 25, 2011 CORAM:- HON’BLE MRS. JUSTICE NIRMAL YADAV, J. HON’BLE MR. JUSTICE SUDHANSHU DHULIA, J. Present: Mr. Raman Kumar Shah, Advocate for the appellant. Mr. Amit Bhatt, Addl. G.A. for the State. (Per: Nirmal Yadav, J.) This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC), is directed against the judgment and order dated 23.10.2001 passed by the Ist F.T.C./Additional Sessions Judge, Haldwani (Nainital) in Sessions Trial No. 58 of 1999, State v. Kashmir Singh, vide which appellant has been convicted under Section 302 IPC and sentenced to rigorous imprisonment for life. 2. Heard Mr. Raman Kumar Shah, learned Counsel for the appellant and Mr. Amit Bhatt, Addl. GA for the State and also perused the trial court record. 3. In brief, the prosecution story, as per the complaint Ex. Ka-1 made by PW1 Premwati, is that Munna, son of her sister-in-law, was residing with her for the last 15-16 years. She had purchased a piece of land from Trilok Singh, father of Kashmir Singh (accused 2 appellant) and had constructed a house on the said land. However, Kashmir Singh had been telling her nephew Munna that they should vacate the said land as the land on which the house has been constructed by the complainant was fallen to his share. On 24.1.1999 at 2.30 pm, Kashmir Singh started abusing Munna from his field on the pretext that they have encroached upon his land and laid a path through his field. When Munna objected and asked Kashmir Singh not to hurl abuses, he caused one injury on the head of Munna with a Farsa. When Munna fell down, Kashmir Singh gave another injury on his left hand. Resultantly, his hand was amputated near the wrist. The occurrence was witnessed by PW2 Champa Devi and PW3 Heera Devi, who, along with the complainant, also tried to rescue the deceased. When they raised alarm, many persons reached the spot. Thereafter Kashmir Singh ran away towards his house along with the Farsa after giving threat to the complainant party. Munna succumbed to his injuries at the spot. 4. The prosecution in order to prove its case examined as many as seven witnesses, namely, PW1 Premwati, the complainant; PW2 Champa Devi & PW3 Heera Devi, who were present at the time of occurrence; PW4 Dr. Yashpal Singh, who conducted the post-mortem on the dead body of Munna on 25.1.1999 and prepared the post-mortem report Ex. Ka-2; PW5 Pan Singh is the witness of recovery of Farsa used in the commission of crime; PW6 S.I. Shiv Singh, the I.O. of the case, and PW7 Head Constable Rohatak Singh, recorded the chick FIR Ex. Ka-4. 3 5. Learned trial court, after taking into consideration the facts and entire evidence on record, came to the conclusion that the prosecution has been able to successfully prove its case beyond reasonable shadow of doubt and convicted the accused under Section 302 IPC. 6. Learned Counsel for the appellant, at the outset, submitted at bar that he does not want to challenge the findings of the trial court holding the accused guilty. However, the conviction under Section 302 IPC is not warranted in the factual backdrop as projected by the prosecution. It is duly established that the occurrence took place in course of a sudden quarrel. According to him, the case would thus fall under Exception 4 to Section 300 IPC, and the conviction of the accused is liable to be altered from Section 302 IPC to Section 304 IPC. The learned Counsel urged that in the present case it is well proved from the testimony of the eyewitnesses that there was no premeditation, and it was a sudden quarrel between accused and Munna (deceased) on account of laying down path through the field of the accused. From the nature of the injuries, it is also clear that one injury was caused with a Farsa on the head of the deceased and the other injury is on a non- vital part. Learned Counsel for the appellant further pointed out that Farsa is a common agricultural tool for an agriculturist and thus, there is nothing on record to prove that the offender had made any special preparation or has acted in a cruel or unusual manner. Thus, all the necessary ingredients of Exception 4 to Section 300 IPC are fully covered in the instant case. 4 7. On the other hand, Mr. Amit Bhatt, learned State Counsel pleaded that there is no infirmity in the evidence tendered by eyewitnesses PW1 Premwati, PW2 Champa Devi and PW3 Heera Devi to warrant their rejection or disbelieve the same. The trial court has rightly relied upon their evidence and convicted the accused for committing the murder of Munna. 8. We have considered the arguments and have scrutinized the entire evidence on record. It is not in dispute that the accused and the complainant party had no enmity prior to the present occurrence. The only evidence on record is that the accused had hurled abuses and had asked Munna as to why they had laid path through his field. When Munna objected and asked Kashmir Singh not to hurl abuses, Kashmir Singh suddenly inflicted one injury on the head of the deceased and thereafter one injury was caused on his left hand, which of course was not fatal. 9. Now, the question is whether the appellant has committed the offence of culpable homicide not amounting to murder, or the offence of murder as defined under Section 300 IPC?. 10. For reference, provisions contained in Section 299 and 300 IPC are quoted below: “299. Culpable homicide.—Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is 5 likely by such act to cause death, commits the offence of culpable homicide. 300. Murder.—Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or— Secondly.—If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or— Thirdly.—If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or— Fourthly.—If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Exception 1.—When culpable homicide is not murder.—Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:- First.—That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. 6 Secondly.—That the provocation is not given by anything done in obedience of the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly.—That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.—Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Exception 2.—Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Exception 3.—Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. Exception 4.—Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. 7 Explanation.—It is immaterial in such cases which party offers the provocation or commits the first assault. Exception 5.—Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.” 11. A perusal of the above provisions shows that the scope of Exception 4 of Section 300 IPC can be invoked if and only if (i) death is caused without premeditation; (ii) it was committed in a sudden fight; (iii) it was committed in a heat of passion; and (iv) it was committed by the offender without taking any undue advantage or acted in a cruel or unusual manner. 12. Where the prosecution evidence does not justify the inference that there was any sudden quarrel and the appellant certainly acted in a cruel manner and that he took any undue advantage of the deceased, there is no justification for applying Exception 4 to Section 300 IPC. But so long as the quarrel is not premeditated and sudden, the accused, irrespective of his conduct before the quarrel, earns the mitigation provided in Exception 4 to Section 300 IPC. 13. From a perusal of the evidence on record, we find that the appellant was present in his own field, when he hurled abuses at Munna (deceased) for laying path through his field. Thus, there was no premeditation before causing assault on Munna. The altercation took place at the spot, when Kashmir Singh hurled abuses 8 and Munna objected to it, and thereupon the appellant gave a blow with a Farsa on the head of the deceased. The appellant, thus, assaulted the deceased in a sudden quarrel, and after giving him one blow on the head, he, of course, gave another blow on his left hand, but thereafter he took to his heels. He did not take any undue advantage and cannot be said to have acted in a cruel or unusual manner. Admittedly, he did not assault the other witnesses, namely, PW1 Premwati, PW2 Champa Devi and PW3 Heera Devi, who were also present at the place of occurrence with the deceased. 14. In the above discussed factual matrix, we are of the view that Exception 4 to Section 300 IPC is clearly attracted to the case of appellant, and the offence, of which the appellant can be held to be guilty, would squarely fall under Section 304 (Part I) IPC and, therefore, the impugned judgment and order of the trial court convicting the appellant under Section 302 IPC cannot be sustained and the same is liable to be set aside to this extent. 15. In the result, the appeal is partly allowed. The conviction of the accused under Section 302 IPC is set aside. We convict the accused appellant under Section 304 (Part I) IPC. Resultantly, the sentence is also altered to rigorous imprisonment for ten years besides payment of fine of rupees two thousand, in default of payment of fine, the appellant shall further undergo rigorous imprisonment for six months. The impugned judgment and order of the conviction and sentence dated 23.10.2001, passed by the Ist F.T.C./Additional Sessions Judge, Haldwani (Nainital) in Sessions Trial No. 58 of 9 1999, State v. Kashmir Singh, stands modified to this extent mentioned above. The appellant Kashmir Singh is on bail. He shall be taken into custody forthwith to serve out the sentence. However, the period during which the appellant was in jail during investigation, trial and appeal shall be adjusted in the sentence after verifying the same from the records. 16. Let a copy of this judgment and order be sent to the trial court for its compliance. The office is directed to send back the lower court record. (Sudhanshu Dhulia, J.) (Nirmal Yadav, J.) prabodh