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2014 DIGILAW 2001 (RAJ)

Kartar Singh v. State of Rajasthan

2014-12-04

ATUL KUMAR JAIN, GOPAL KRISHAN VYAS

body2014
JUDGMENT : G. K. Vyas, J. The instant criminal appeal has been filed by the complainant-appellant Kartar Singh under Section 372, Cr.P.C. against the judgment dated 7.9.2013 passed by the Addl. Sessions Judge, Anupgarh (hereinafter referred to as the learned trial court for short) in Sessions Case No.3/2010 whereby the learned trial court acquitted respondent No.2 Manga Singh alias Mangal Singh from the offence under Section 302, IPC and convicted the said accused respondent No.2 under Section 304 part II, IPC and passed the sentence for 10 year’s simple imprisonment with fine of Rs.5,000/- and in default of payment of fine to further undergo one month’s simple imprisonment. 2. As per the facts of the case, a criminal case was registered against respondent No.2 upon statement given by the injured Kapil Dev under treatment on 6.10.2009 at Anupgarh in which injured Kapil Dev alleged that today at 9.30 p.m., I and Manga Singh alias Mangal Singh were standing at the bus stand, at that time, accused Manga Singh alias Mangal Singh driver of the Tempo used filthy language then I said why you are using abusive language, Manga Singh alias Mangal Singh took out an iron rod from his Tempo and inflicted injury on my head. On aforesaid statement of the injured, on FIR was registered at Police Station Anupgarh under Section 341 and 323, IPC against accused Manga Singh alias Mangal Singh, but after 2 days on 8.10.2009, Kapil Dev expired during treatement, therefore, the Investigating Officer added the offence under Section 302, IPC and after usual investigation, filed challan against respondent No.2 for the offences under Sections 302, 307, 323 and 341, IPC. 3. The learned trial court after framing the charges under Section 302, IPC concluded the trial and after trial, finally decided the case and gave finding that it is not a case of offence under Section 302, IPC but accused is guilty for offence under Section 304 Part II, IPC and convicted the accused respondent no.2 for the offence under Section 304 Part II, IPC and passed the sentence of 10 year’s simple imprisonment with a fine of Rs.5,000/- and in default of payment of fine, to further undergo one month’s simple imprisonment. 4. In this appeal, the complainant-appellant is challenging the judgment to the extent of convicting accused-respondent No.2 under Section 304 Part II, IPC instead of under Section 302, IPC. 5. 4. In this appeal, the complainant-appellant is challenging the judgment to the extent of convicting accused-respondent No.2 under Section 304 Part II, IPC instead of under Section 302, IPC. 5. The learned counsel for the complainant-appellant vehemently argued that the learned trial court did not appreciate the evidence in consonance with law and has wrongly convicted respondent No.2 for offence under Section 304 Part II, IPC, whereas as per the evidence on record, it is a case punishable for offence under Section 302, IPC, therefore, the impugned judgment may be quashed to that extent. 6. The learned counsel for the complainant-appellant vehemently argued that according to the injury report prepared on the same day, i.e. 6.10.2009, it is obvious that deceased Kapil Dev received 3 injuries out of which 2 injuries were on his head, therefore, on this fact itself, it can be presumed that it is a case of murder which is punishable under Section 302, IPC, but the learned trial court committed a grave error of law in acquitting the accused respondent No.2 for the offence under Section 302, IPC and punishing him for offence under Section 302 Part II, IPC. 7. The learned counsel for the complainant-appellant invited the attention of this Court towards the statements of PW-4 Gurtej Singh who was said to be independent eye witness and statement of PW-10 Prem Kumar and submits that as per the medical report also, it is a case for offence under Section 302, IPC, therefore, the judgment impugned may be quashed and accused respondent No.2 may be convicted for offence under Section 302, IPC. 8. After hearing the learned counsel for the appellant, we have scanned the evidence for the limited purpose to assess whether the offence under Section 302, IPC is made out or not. 9. Admittedly, the incident took place at the spur of moment when deceased Kapil Dev and accused Manga Singh alias Mangal Singh were standing at the bus stand. Both the deceased and the accused are Tempo Drivers and due to sudden provocation and using filthy language by the accused, the incident took place. Meaning thereby, the main ingredient of intention, preparation and object is missing in this case. Both the deceased and the accused are Tempo Drivers and due to sudden provocation and using filthy language by the accused, the incident took place. Meaning thereby, the main ingredient of intention, preparation and object is missing in this case. The Hon’ble Supreme Court in the case of Lacham Singh v. State of Haryana reported in (2006) 10 SCC 524 : ( AIR 2006 SC 2763 ) while dealing with the identical situation and while explaining the applicability of Exception 4 to Section 300, IPC held as under:- '10. For brining it into operation, it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. 11. The Fourth Exception of Section 300, IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1, there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men’s sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both the parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. For if it were so, the exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct, it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender’s having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4, all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300, IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passion to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two or more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'. Similarly, in Vijay Ramkrishan Gaikwad v. State of Maharashtra & Anr. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'. Similarly, in Vijay Ramkrishan Gaikwad v. State of Maharashtra & Anr. Reported in (2012) 11 SCC, 592, the Hon’ble Supreme Court held as under: 'The occurrence, thus has the features of an incident in which an injury is inflicted in a sudden fight without premeditation in the heat of passion upon a sudden quarrel within the contemplation of Exception 4 to section 300, IPC, which takes the case out of the purview of murder as defined in the said section. It is true that only one injury was caused to the deceased but the same is not conclusive by itself, for even a single injury can in a given case constitute murder, having regard to the weapon used and the part of the body chosen for inflicting the injury.' 10. We have examined the present case in hand in the light of the aforesaid adjudication made by the Hon’ble Supreme Court. In our opinion, when the incident took place at the bus stand when filthy words were used by the accused ' “respondent no.2 on sudden provocation and there is no evidence of preparation and intention is on record, therefore, obviously the learned trial court has rightly arrived at with the finding that it is a case punishable under Section 304 Part II, IPC not under Section 302, IPC. The main ingredients of the offence under Section 302, IPC are missing in this case. 11. In our opinion, upon appreciation of entire evidence and facts in toto, the case cannot travel beyond offence under Section 304 Part II, IPC. Therefore, the instant appeal filed by the complainant-appellant for enhancement of punishment from offence under Section 304 part II, IPC to under Section 302, IPC is hereby dismissed. 12. However, it is made clear that on merits dismissal of this appeal will not affect the fact of appeal filed by the accused respondent No.2 against the judgment passed against him which is under challenge in SB Cr. Appeal No.759/2013. Appeal dismissed.