HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 164 of 2006 Reserved on: 26.2.2009. Decided on: 3.3.2009. Rakesh Kumar ……… Appellant. Versus State of Himachal Pradesh ………Respondent. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the Appellant: Ms.Vandana Kuthiala, Advocate. For the respondent: Mr.Rajesh Mandhotra, Deputy Advocate General. Per V.K. Ahuja, J.: This is an appeal filed by the appellant under Section 374(2) of the IPC against the judgment, dated 2.4.2005, of the court of learned Sessions Judge, Una, vide which the appellant was held guilty and convicted and sentenced for an offence under Section 302 of the IPC. The appellant was sentenced to undergo imprisonment for life and to pay a fine of Rs.2,000/-. There is no mention of the period for which the appellant was to remain in custody in case of default of payment of fine. Briefly stated the facts of the case are that on 5.4.2004, Smt.Savitri Devi, mother of the complainant Sohan Lal, had gone to bring grass from Swan Bela alongwith Sharda and Monika (PW-5), nieces of Sohan Lal. At about 11.00 ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? a.m. Sharda and Monika came back and told the complainant Sohan Lal to collect the grass of his mother, which she was carrying on her head, since the load was very heavy. Thereafter, PW-1 Sohan Lal proceeded towards Swan Bela and reached there at about 11.15 a.m. He found that accused Rakesh was abusing his mother. Thereafter, the accused assaulted his mother with drat on her neck. PW-1 Sohan Lal raised hue and cry and the accused ran away from the spot with the drat. PW-1 Sohan Lal went near his mother and found that she had sustained an injury on her arm as well as on the neck and she was lying dead on the spot and blood was oozing out from her body. In the meantime, several persons gathered at the spot. It is also on record that meanwhile, a telephonic information was sent to the police by Smt.Kanta Devi, Ward Panch, that one Savitri Devi has been cut by Rakesh Kumar, resident of Lower Palkwah. This information was recorded at Police Post Haroli at 11.50 a.m. vide rapat the copy of which is Ext.PD. It is further on record that ASI Raghuvir Singh reached the spot and recorded the statement of the complainant Sohan Lal Ext.PW-1/A in which he mentioned all the facts mentioned above. A case under Section 302 IPC was registered. It is also on record that meanwhile at about 12.30 p.m., the accused appeared in the court of Shri K.L. Sharma, Additional Sessions, Una, alongwith a bag in his hand and stated that he had committed the murder of his aunt in the fields of Village Palkwah. The said Shri K.L. Sharma directed the Naib Court of his Court, namely, Harish Kumar (PW-13) to catch hold of the accused and the accused was taken to the S.P., Una alongwith the bag which was being carried by the accused allegedly containing a drat. After investigation, the challan was filed before the learned Judicial Magistrate at Una, who committed the case to the learned Sessions Judge, who tried the appellant leading to his conviction and sentence, as detailed above. We have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned counsel for the appellant were that she was not challenging the fact that the occurrence had taken place and that the accused had inflicted a blow with a drat on the neck of Smt.Savitri Devi and she died since these facts stand established from evidence and in his statement under Section 313 of the Cr.P.C., the appellant had clearly admitted the occurrence. The only pleas raised by the learned counsel for the appellant were that she was challenging the conviction of the appellant under Section 302 of the IPC since the ingredients of Section 302 IPC were not proved and the ingredients of the offence, if any, proved were under Section 304 IPC and, therefore, the sentence imposed upon the appellant was liable to be modified. Thus, it was submitted that keeping in view the facts and circumstances of the case in which the occurrence took place, the appellant deserves the leniency of the court to be awarded lesser sentence under Section 304 of the IPC. The facts of the case shall be considered in the light of the submissions made by the learned counsel for the appellant. Coming to the findings recorded by the learned trial Court holding that the occurrence in question stands proved and that the guilt of the appellant stands established under Section 302 IPC, the first question to be determined is as to whether the facts of the case, as proved by the prosecution, stand established, as admitted by the appellant in his statement under Section 313 of the Cr.P.C. To substantiate their case, the prosecution had examined 18 witnesses. PW-1 Sohan Lal is the son of the deceased who has stated about the facts, as mentioned above, as to how he reached the spot and the appellant was abusing his mother who assaulted his mother with a drat on her neck and she had sustained one injury on her arm and the another on her neck. Thus, the facts have been clearly stated by PW-1 Sohan Lal and his testimony does not stand shattered in cross examination that he was not present at the spot or that he had not seen the injury being inflicted upon the person of his mother. The only fact admitted by him was that they have a land dispute including a dispute in regard to demarcation with the family of the accused for the last 7-8 years. He admitted that they have inimical relations with the accused since then. His statement does not establish as to how the injury on the arm was sustained by his mother though he is the only eye witness. Out of the two nieces of the complainant Sohan Lal present at the spot earlier, only Monika has been examined as PW-5 while other, namely, Sharda has not been examined by the prosecution. The statement of PW-5 Monika is only to this effect that she had gone with her grand mother Savitri Devi to bring grass and she informed her uncle Sohan Lal to bring the bundle of grass of Savitri Devi as it was quite heavy. Thereafter, Sohan Lal went to collect the grass and it is clear that she had not gone with him and had not witnessed the occurrence. PW-9 Dr.Sunil Sharma, Medical Officer, had conducted the post mortem on the dead body of Savitri Devi. According to his examination and opinion, vide post mortem report, the deceased died due to “hypovalemic hemorrhagic shock”. He also stated that the injury in question was possible with drat Ext.P-14, if it was used with force. Apart from the above, the prosecution has also examined PW-6 Vijay Kumar that on 5.4.2004, when he was coming from Swan Bela carrying grass, accused met him near water supply scheme and told him that he has committed the murder of Smt.Savitri Devi and was going to appear in the court at Una. He also stated that the drat with the accused was stained with blood. PW-13 Harish Kumar, Naib Court in the court of learned Additional Sessions Judge, has been examined to prove that the accused appeared in the court of Additional Sessions Judge and told him of the fact that he has committed the murder and was carrying something in a bag. Then, he took the accused to the S.P. Office as per the direction of the Additional Sessions Judge. The Additional Sessions Judge Shri K.L. Sharma has also been examined as PW- 18, who has corroborated these facts and he had sent the accused to the office of the Superintendent of Police in the adjoining building to verify the version given by him qua the commission of the murder, as disclosed by the appellant. The statements of all these witnesses in regard to these facts have not been challenged during the course of arguments. A perusal of the record shows that when the statement of the accused was recorded under Section 313 of the Cr.P.C., in reply to question No.33 as to whether he wanted to say anything else, he has clearly stated that one day prior to the incident, the deceased had asked him to vacate the possession of the disputed land since the case has been decided in their favour and her family members cut safeda and other trees from their land, without his consent. He informed the Pradhan of the Panchayat and Ward Panch in this regard and on the next day, Savitri Devi and her family members forcibly uprooted the trees and abused him and his family members. He told the Panchayat Member that he would be compelled to take drastic steps against the said person and that he was under tension at that time. He further stated that Smt.Savitri Devi tried to assault him with a drati and he was also having a drat in his hand and when he rescued himself, she got the injury on her arm with the said drati. This explanation in regard to the second injury has come only in the statement of the accused under Section 313 of the Cr.P.C. He thereafter stated that he assaulted the deceased with the drat on her neck, came back to his house, changed his clothes and then surrendered in the court of Additional Sessions Judge, Una. From the above discussion of the evidence, this fact stands fully established that on the day of occurrence, the accused had inflicted the fatal blow on the neck of Smt.Savitri Devi leading to her death. This fact stands established from the evidence even ignoring the statement made by the accused under Section 313 of the Cr.P.C. However, the accused has not disputed the facts and has admitted the occurrence, as mentioned above, in his statement under Section 313 of the Cr.P.C. The only question left for determination, therefore, is as to whether the guilt of the appellant stands established under Section 302 IPC or under Section 304 IPC. We may point out that during the course of arguments, no plea has been taken by the learned counsel for the appellant nor it stands established from the record that the injury in question was inflicted upon the person of the deceased in self defence by the appellant. The deceased was having a drati in her hand and according to the statement made by the accused, she tried to assault him with a drati, but there is nothing that he apprehended any danger to his life and therefore, he inflicted the blow on the person of the deceased in self defence. Thus, in view of the facts and circumstances of the case, the plea of self defence has not been taken which was not available and is not being considered by us. Coming to the next question, it has to be considered as to whether the case falls under Section 304 IPC or not. The submissions made by the learned counsel for the appellant were that the appellant was under tension since the other party was forcibly cutting the grass from his land and there was an exchange of abuses. It was submitted that it was not premeditated act on behalf of the appellant i.e. it was not planned, but he acted in a heat of passion and since he had inflicted a single blow on the person of the deceased and in the facts and circumstances of the case, it cannot be said that the provisions of Section 302 IPC are attracted. To substantiate her case, the learned counsel for the appellant had relied upon the following decisions: The decision in Dattu Shamrao Valake and another versus State of Maharashtra, (2005) 11 Supreme Court Cases 261, shows that in that case the plea of causing death in exercise of right of private defence of body was taken by the appellants, which was accepted by the High Court, but it was held by the Apex Court that the same cannot be sustained. However, the facts of the case were considered and the provisions of Section 300, Exception 4 IPC, were considered by their Lordships and reference was made to the facts that initially one accused was armed with axe and later on he was joined by other in the fight. It was held that there was no preconcert amongst the accused to attack the prosecution party. The incident was of short duration and it was observed that the offenders had not taken undue advantage or acted in a cruel or unusual manner. It was held on facts that the provisions of Exception 4 of Section 300 were attracted. The injuries in question were with axe, which were with one or two blows and not necessarily by three axe blows, which were on the left parietal region. It was held that the appellant must be imputed with the intention to cause such bodily injuries as was likely to cause death and accordingly the conviction was converted to be one under Part I of Section 304 of the IPC. The decision in Patel Rasiklal Becharbhai and others versus State of Gujarat, AIR 1992 Supreme Court 1150, was relied upon. The facts of that case show that there was a sudden quarrel, deceased rebuked the accused, who got infuriated and gave single blow of agricultural implement which he was carrying. The blow fell on the neck of the deceased and proved to be fatal. It was held that it could not be said that the accused intended to cause neck injury and, therefore, was not liable to be convicted under Section 300(3), but the conviction was altered under Section 304, Part II. The decision in Surinder Kumar versus Union Territory, Chandigarh, AIR 1989 Supreme Court 1094, was also relied upon by the learned counsel for the appellant. In that case, a sudden quarrel took place. The deceased had entered the room of the appellant and uttered filthy abuses in the presence of the appellant’s sister. Tempers ran high and on PW-2 taking out a pen knife, the appellant took up a knife from the kitchen, ran towards PW-2 and inflicted injuries on the person of the deceased. It was held that the facts of the case attract the provisions of Section 304, Part I and the appellant was directed to undergo rigorous imprisonment for 7 years. Coming to the provisions of Section 300, Exception 4, it reads as under: “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.” The essential ingredients of Exception 4, therefore, are: Firstly, without premeditation; Secondly, sudden fight; Thirdly, in heat of passion; Fourthly, without the offender having taken undue advantage; and Fifthly, acted in a cruel or unusual manner. If the Exception 4 is considered in the light of the facts of the present case, it will be clear that all the ingredients stand established in the present case. The murder was committed without premeditation in a sudden fight, in a heat of passion upon sudden quarrel and the offender had not taken undue advantage or acted in a cruel or unusual manner. The drat which the appellant was carrying at the relevant time had been taken by him for the work of agriculture and not specifically for committing the murder. The exchange of abuses took place, which clearly shows that the fight took place suddenly and the appellant was not armed with a deadly weapon to commit the murder. The facts of the case clearly show that it was a sudden fight and after one blow had been inflicted by the appellant, which fell on the neck of the deceased, the appellant had not continued inflicting other blows to confirm that Smt.Savitri Devi had died as a result of these blows. After inflicting the blow in a heat of passion, the appellant did not stop at the place of occurrence to confirm if she was dead or alive and ran away from the spot and subsequently in a feeling of remorse, he surrendered in the court at Una. In the light of the above decisions relied upon by the learned counsel for the appellant, it is clear that it was also a case of single blow in a sudden fight and the ingredients of Exception 4 to Section 300 stands established and, therefore, the guilt of the appellant stands established under Section 300 4thly and the knowledge can be attributed to the appellant that it was likely to cause death. Accordingly, we are of the opinion that the guilt of the appellant stands established under Section 304 2ndly and as such, the findings of the learned trial Court are modified from Section 302 IPC to Section 304 and the appellant is held guilty accordingly. Coming to be sentence to be imposed upon the appellant, we are of the opinion that the appellant is liable to be convicted and sentenced and accordingly he is convicted and sentenced for a period of 7 years and to pay a fine of Rs.20,000-. In default of payment of fine, the appellant shall undergo rigorous imprisonment for a period of six months. The revised warrant be issued accordingly. (Deepak Gupta), J. March 3, 2009. (V.K. Ahuja), J. (TILAK)