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2019 DIGILAW 1210 (ALL)

Haider Ali v. State of U. P.

2019-05-06

PRITINKER DIWAKER, SAURABH SHYAM SHAMSHERY

body2019
JUDGMENT : Pritinker Diwaker, J. 1. The present appeal arises out of impugned judgment and order dated 30.07.2010 passed by the Additional Sessions Judge, Court No. 1, Gorakhpur in Sessions Trial No. 47 of 2007, convicting the accused-appellants, Haider Ali and Zunaid Alam under Sections 302/34 and 307/34 of IPC and sentencing them to undergo life imprisonment and a fine of Rs. 5000/- and five years rigorous imprisonment with a fine of Rs. 2000/-, in default of payments of fine, to undergo three months additional rigorous imprisonment each with a direction that both the sentences shall run concurrently. 2. In the present case, name of the deceased is Jahoor Ali. It is alleged that on 9.11.2006 when Haidar Ali was grazing his cattle, cattle of complainant party also followed his cattle, there was some altercation between the two families and there, it is alleged, accused-appellants caused injuries to Jahoor Ali, Naimunnisha (P.W. 2) and Mehtab Alam (P.W. 1) with spade and axe. Injured Jahoor Ali was taken to hospital but on the way, he expired. 3. Inquest on the dead body of deceased was conducted on 9.11.2006 vide Ex. Ka-2. Medical examination of Naimunnisha (P.W. 2) and Mahtab Alam (P.W. 1) was conducted by Dr. R.S. Singh (P.W. 6) vide Exs. Ka-6 and Ka-7 respectively. Post-mortem on the body of deceased was conducted on 10.11.2016 by Dr. S.M. Rai (P.W. 4) vide Ex. Ka-5. 4. As per post-mortem report, following injuries were noticed on the body of deceased: (i) Incised wound over occipital region Rt. side size 6 cm x 2 cm, bone deep, haematoma+. (ii) Incised wound over occipital region of scalp just below the parietal bone area size 9 cm x 2 cm, bone deep haematoma. (iii) Incised wound over Rt. side of parietal area of scalp, bone deep, haematoma + size 4 cm x 2 cm. (iv) Contusion over posterior aspect of Rt. ear size 6 cm x 6 cm. (v) Incised wound over Rt. postmeridian aspect of leg upper part, bone deep, both bone #, size 5 cm x 3 cm. (vi) Incised wound over lower end of Rt. leg, bone deep, size 3 cm x 2 cm, # both bone. (vii) Contusion over 4 cm x 4 cm Lt. knee joint According to autopsy surgeon, cause of death of deceased was due to coma as a result of ante-mortem injury. 5. (vi) Incised wound over lower end of Rt. leg, bone deep, size 3 cm x 2 cm, # both bone. (vii) Contusion over 4 cm x 4 cm Lt. knee joint According to autopsy surgeon, cause of death of deceased was due to coma as a result of ante-mortem injury. 5. On pointing out of accused-appellant, Haidar Ali, one farsa was seized whereas at the instance of accused-appellant, Zunaid Alam, one axe was seized. However, there is no F.S.L. report on record. 6. While framing charge, the trial Judge has framed charge against the accused appellants under Sections 302/34 and 307/34 of IPC. 7. So as to hold accused persons guilty, prosecution has examined eight witnesses. Statements of accused-appellants were recorded under Section 313 of Cr.P.C. in which they pleaded their innocence and false implication. 8. By the impugned judgment, the trial Judge has convicted both the accused appellants and sentenced them as mentioned in paragraph No. 1 of this judgment. Hence this appeal. 9. Learned counsel for the appellants submits: (i) that F.I.R. is anti-timed and ante-dated. (ii) that actual incident occurred somewhere else but to falsely implicate the appellants, it has been shown near the house of the appellants and that of accused persons. (iii) that at the time of lodging of F.I.R., P.W. 1, Mehtab Alam was not present and subsequently he has been brought on record. (iv) that though number of independent witnesses were also present, however, only interested witnesses have been examined. (v) that even if the entire case of prosecution is taken as it is, offence under Section 302/34 of IPC is not made out against the appellants and, at best, they are liable to be convicted under Section 304 Part-I or II of I.P.C. (vi) that appellant No. 1 Haidar Ali has already remained in jail for about 8 years and 10 months whereas accused-Zunaid Alam has already served the jail sentence of more than 12 years. (vii) that after converting the conviction of the appellants into Section 304, Part-I or II of I.P.C., their sentence can be reduced for the period already undergone by them and that they are willing to compensate the complainant party by paying reasonable compensation. 10. (vii) that after converting the conviction of the appellants into Section 304, Part-I or II of I.P.C., their sentence can be reduced for the period already undergone by them and that they are willing to compensate the complainant party by paying reasonable compensation. 10. On the other hand, supporting the impugned judgment, it has been argued by the State counsel and counsel for the complainant that conviction of the appellants is in accordance with law and there is no infirmity in the same. 11. We have heard learned counsel for the parties and perused the record. 12. P.W. 1, Mehtab Alam is an injured eyewitness to the incident, while supporting the prosecution case, has stated that the appellants are his neighbours. On 9.11.2006 at about 4 p.m., when accused-appellant, Haidar Ali was grazing his cattle, seeing those cattle, his cattle also followed him, there was some hot talk between the parties. He further states that when his sister Zamila Khatoon had gone to catch the cattle, the appellants abused her, slapped her and when his father Jahoor Ali (deceased) intervened, he was assaulted by the accused persons with spade and farsa. He has clarified that according to him spade and farsa are the same things. He further states that his mother Naimunnisha, PW-2 was also subjected to injuries by the accused persons. In the cross-examination, this witness remained firm and nothing could be elicited from him. Though there are minor contradictions in the statement of this witnesses but those contradictions are required to be ignored as they do not go to the root of matter and do not affect his version. 13. P.W. 2, Naimunnisha, is another injured eye-witness to the incident. Her statement is almost identical to that of P.W. 1 and she also stood firm in the cross. Minor contradictions in her statement are also required to be ignored considering the fact that she appears to be an illiterate rustic villager. 14. P.W. 3, Om Prakash Tiwari, assisted during investigation. 15. P.W. 4, Dr. S.M. Rai, conducted postmortem on the body of deceased. 16. P.W. 5, Dr. R.K. Jain, is a radiologist. 17. P.W. 6, Dr. R.S. Singh, conducted M.L.C. of injured Smt. Naimunnisha (P.W. 2) and Mahtab Alam (P.W. 1) vide Exs. Ka-6 and Ka-7 respectively. 18. P.W. 7, Sri Anupam Srivastava is Investigating Officer, has duly supported the prosecution case. 19. S.M. Rai, conducted postmortem on the body of deceased. 16. P.W. 5, Dr. R.K. Jain, is a radiologist. 17. P.W. 6, Dr. R.S. Singh, conducted M.L.C. of injured Smt. Naimunnisha (P.W. 2) and Mahtab Alam (P.W. 1) vide Exs. Ka-6 and Ka-7 respectively. 18. P.W. 7, Sri Anupam Srivastava is Investigating Officer, has duly supported the prosecution case. 19. P.W. 8, A.K. Srivastava, assisted during investigation. 20. Close scrutiny of the evidence makes it clear that on 9.11.2006 when the accused-appellant, Haidar Ali was grazing his cattle, the cattle of complainant party also followed the cattle of accused-appellant, Haidar Ali. There was some hot talks between the two groups and then accused-appellants have caused injuries to Jahoor Ali (deceased), Mahtab Alam, PW-1 and Smt. Naimunnisha, PW-2. After sustaining injuries, Jahoor Ali expired whereas both the injured were taken to hospital where they were medically examined and treated. Both the eye-witnesses Mehtab Alam (P.W. 1) and Naimunnisha (P.W. 2) have duly supported the prosecution case and have categorically stated as to the manner in which the incident occurred. The statements of these two eye-witnesses have been duly supported by their medical report and also by the post-mortem report of deceased. 21. Considering all these aspects of the case, complicity of the accused persons in commission of offence has been duly proved by the prosecution. 22. The next question which arises for consideration of this Court is as to whether the act of accused-appellants would fall within the definition of 'murder' or it would be 'culpable homicide not amounting to murder'. 23. Before proceeding further, it is relevant to refer to the provisions of Section 300 of IPC, which read as under: "300. 22. The next question which arises for consideration of this Court is as to whether the act of accused-appellants would fall within the definition of 'murder' or it would be 'culpable homicide not amounting to murder'. 23. Before proceeding further, it is relevant to refer to the provisions of Section 300 of IPC, which read as under: "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. Secondly.-That the provocation is not given by anything done in obedience to 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. 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. 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." Exception 4 to Section 300 of the IPC applies in the absence of any premeditation. This is very clear from the wordings of the Exception itself. The exception contemplates that the sudden fight shall start upon the heat of passion on a sudden quarrel. The fourth exception to Section 300, IPC covers acts done in a sudden fight. The said Exception deals with a case of provocation 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. The fourth exception to Section 300, IPC covers acts done in a sudden fight. The said Exception deals with a case of provocation 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 parties puts them in respect of guilt upon an 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 could in such cases 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. 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 offenders 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. 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 passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and 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 a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage". 24. Considering all the aspects of the case, we are of the view that there was no premeditation on the part of the accused to kill the deceased. 25. The Apex Court in State of A.P. v. Rayavarapu Punnayya and another (1976) 4 SCC 382 : ( AIR 1977 SC 45 ) while drawing a distinction between Section 302 and Section 304 of IPC held as under: "12. In the scheme of the Penal Code, "culpable homicide" is genus and "murder" its specie. All "murder" is "culpable homicide" but not vice-versa. Speaking generally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the greatest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of Section 304. Then, there is "culpable homicide of the third degree". The first is, what may be called, "culpable homicide of the first degree". This is the greatest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304. 21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is "murder" or "culpable homicide not amounting to murder", on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of "murder" contained in Section 300. If the answer to this question is in the negative the offence would be "culpable homicide not amounting to murder", punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be "culpable homicide not amounting to murder", punishable under the first part of Section 304, of the Penal Code." 26. In Budhi Singh v. State of Himachal Pradesh (2012) 13 SCC 663 : (2013 AIR SCW 457), the Supreme Court held as under: 18. In Budhi Singh v. State of Himachal Pradesh (2012) 13 SCC 663 : (2013 AIR SCW 457), the Supreme Court held as under: 18. The doctrine of sudden and grave provocation is incapable of rigid construction leading to or stating any principle of universal application. This will always have to depend on the facts of a given case. While applying this principle, the primary obligation of the court is to examine from the point of view of a person of reasonable prudence if there was such grave and sudden provocation so as to reasonably conclude that it was possible to commit the offence of culpable homicide, and as per the facts, was not a culpable homicide amounting to murder. An offence resulting from grave and sudden provocation would normally mean that a person placed in such circumstances could lose self-control but only temporarily and that too, in proximity to the time of provocation. The provocation could be an act or series of acts done by the deceased to the accused resulting in inflicting of injury. 19. Another test that is applied more often than not is that the behavior of the assailant was that of a reasonable person. A fine distinction has to be kept in mind between sudden and grave provocation resulting in sudden and temporary loss of self-control and the one which inspires an actual intention to kill. Such act should have been done during the continuation of the state of mind and the time for such person to kill and reasons to regain the dominion over the mind. Once there is premeditated act with the intention to kill, it will obviously fall beyond the scope of culpable homicide not amounting to murder....." 27. In Kikar Singh v. State of Rajasthan (1993) 4 SCC 238 : ( AIR 1993 SC 2426 ) the Apex Court held as under: "8. The counsel attempted to bring the case within Exception 4. For its application all the conditions enumerated therein must be satisfied. The act must be committed without premeditation in a sudden fight in the heat of passion; (2) upon a sudden quarrel; (3) without the offender's having taken undue advantage; (4) and the accused had not acted in a cruel or unusual manner. Therefore, there must be a mutual combat or exchanging blows on each other. The act must be committed without premeditation in a sudden fight in the heat of passion; (2) upon a sudden quarrel; (3) without the offender's having taken undue advantage; (4) and the accused had not acted in a cruel or unusual manner. Therefore, there must be a mutual combat or exchanging blows on each other. And however slight the first blow, or provocation, every fresh blow becomes a fresh provocation. The blood is already heated or warms up at every subsequent stroke. The voice of reason, is heard on neither side in the heat of passion. Therefore, it is difficult to apportion between them respective degrees of blame with reference to the state of things at the commencement of the fray but it must occur as a consequence of a sudden fight i.e. mutual combat and not one side track. It matters not what the cause of the quarrel is, whether real or imaginary, or who draws or strikes first. The strike of the blow must be without any intention to kill or seriously injure the other. If two men start fighting and one of them is unarmed while the other uses a deadly weapon, the one who uses such weapon must be held to have taken an undue advantage denying him the entitlement to Exception 4. True the number of wounds is not the criterion, but the position of the accused and the deceased with regard to their arms used, the manner of combat must be kept in mind when applying Exception 4. When the deceased was not armed but the accused was and caused injuries to the deceased with fatal results, the Exception 4 engrafted to Section 300 is excepted and the offences committed would be one of murder. 9. The occasion for sudden quarrel must not only be sudden but the party assaulted must be on an equal footing in point of defence, at least at the onset. This is specially so where the attack is made with dangerous weapons. Where the deceased was unarmed and did not cause any injury to the accused even following a sudden quarrel if the accused has inflicted fatal blows on the deceased, Exception 4 is not attracted and commission must be one of murder punishable under Section 302. Equally for attracting Exception 4 it is necessary that blows should be exchanged even if they do not all find their target. Equally for attracting Exception 4 it is necessary that blows should be exchanged even if they do not all find their target. Even if the fight is unpremeditated and sudden, yet if the instrument or manner of retaliation be greatly disproportionate to the offence given, and cruel and dangerous in its nature, the accused cannot be protected under Exception 4...." 28. All the above three cases were considered by the Apex Court in Surain Singh v. The State of Punjab Criminal Appeal No. 2284 of 2009, decided on April 10, 2017 (Reported in AIR 2017 SC 1904 ) and ultimately, it has been held by the Apex Court in that particular case, that the accused was liable to be convicted under Section 304, Part-II of IPC and not under Section 302 of IPC. In view of above, according to us, case of the appellants would thus fall under Exception 4 of Section 300 of IPC and it can be safely held that the appellants are liable to be convicted for committing 'culpable homicide not amounting to murder'. 29. Now the question is whether the appellants are liable to be convicted under Section 304, Part-I or Part-II of IPC. Considering the nature of injuries caused by them to the deceased and the portion of body of the deceased, we are of the view that the appellants are liable to be convicted under Section 304, Part-I of IPC and not under Section 304, Part-II of IPC. 30. So far as the sentence part is concerned, accused-appellant No. 1, Haidar Ali has already remained in jail for about 8 years and 10 months whereas the accused-appellant No. 2, Zunaid Alam is in jail since last more than 12 years. According to us, ends of justice would be served if their sentence is reduced to the period already undergone by them. 31. However, looking to the provisions of Section 357 of Cr.P.C. and judgment of the Apex Court in Ankush Shivaji Gaikwad v. State of Maharashtra (2013) 6 SCC 770 : ( AIR 2013 SC 2454 ), we are of the view that accused-appellants Haidar Ali and Zunaid Alam are liable to compensate Mehtab Alam (P.W. 1) and Naimunnisha (P.W. 2) by paying a total compensation of Rs. 80,000/- (Eighty Thousand) under Section 357 of Cr.P.C. Accordingly, accused-appellants Haidar Ali and Zunaid Alam are directed to deposit Rs. 80,000/- (Eighty Thousand) under Section 357 of Cr.P.C. Accordingly, accused-appellants Haidar Ali and Zunaid Alam are directed to deposit Rs. 80,000/- within a period of six months after being released from jail before the trial court and, in turn, the trial court shall disburse the said amount to Mehtab Alam, PW-1 and Naimunnisha, PW-2. In case, appellants fail to deposit compensation within stipulated time, the court below shall proceed against him in the light of judgment of the Apex Court reported in Kumaran v. State of Kerala and another (2017) 7 SCC 471 : ( AIR 2017 SC 2433 ). 32. As the appellants are reported to be in jail, they be set free forthwith, if not required in any other case. 33. The appeal succeeds and is partly allowed.