Banwari and Others vs State of U.P.

Surendra Vikram Singh Rathore, J.—The aforementioned two criminal appeals i.e. [Criminal Appeal No. 105 of 2012-Banwari v. State of U.P.] and [Criminal Appeal No. 106 of 2012-Rakesh v. State of U.P.] arise out of same judgment, hence the same are being disposed of together.

Criminal Appeal No. 105 of 2012 has been preferred by the appellant Banwari and Criminal Appeal No. 106 of 2012 has been preferred by the appellant Rakesh against the judgment dated 09.11.2011 and order dated 10.11.2011 passed by Temporary Additional Sessions Judge, Court No. 2, Kheri in Sessions Trial No. 440 of 1999 arising out of Case Crime No. 220 of 1999, Police Station Mohammadi, District Lakhimpur Kheri whereby both the appellants were convicted for the offence under Section 302 /34 IPC and were sentenced with imprisonment for life and also with fine of Rs. 2000/- each with default stipulation of two years additional imprisonment. They were further convicted for the offence under Section 325 /34 IPC and were sentenced with simple imprisonment for a period of two years and also with fine of Rs. 500/- each, with default stipulation of six months additional imprisonment. However, both the appellants were acquitted of the charge under Section 323 /34 IPC.

According to the version of the FIR, on 14.06.1999 at about 5.00 p.m. the complainant Harish Chandra lodged an FIR at Police Station Mohammadi, District Kheri alleging therein that a dispute regarding the Gram Samaj land with his cousin Banwari (appellant) was continuing for the last several days. Because of the said dispute, on 14.06.1999 at about 2.30 p.m. Banwari and his son Rakesh, armed with lathi and danda came to the house of Ram Lal, (father of the complainant) and started abusing him. When Ram Lal asked them not to abuse him then both of them started giving blows with their lathis due to which he fell down. Smt. Jhabboo (wife of Ram Lal) came for his rescue then she was also given blows of lathis. The complainant was not present at his house. After getting the information of such incident he came back to his house, her mother narrated the entire story to him and thereafter he alongwith his injured father and mother went to police station and lodged the report.

Initially the case was registered under Section 308 /323 IPC. While Ram Lal was being taken to hospital, he succumbed to the injuries and was declared dead by the doctor. Accordingly, the case was converted under Section 304 IPC. Inquest proceedings were conducted and after completing the formalities the dead body was sent for postmortem which was conducted on 15.06.1999 at 4.40 p.m. Following ante-mortem injuries were found on the body of the deceased.

"(a) Contusion 12 cm x 10 cm on right side of head just above right ear underlying right parietal and right temporal bones were fractured and clotted blood was present.

(b) Contusion 6 cm x 5 cm on left side of head above left ear on dissection underlying left temporal and parietal bones were fractured and clotted blood was present over surface of membrane.

(c) Contusion 3 cm x 2 cm on right elbow back.

(d) Lacerated wound 2 cm x 1 cm muscle deep on right leg, 15 cm below right knee."

In the opinion of the doctor the cause of death was Comma as a result of ante-mortem head injury.

After completing the investigation the charge-sheet was filed against both the appellants under Sections 304 , 325 , 323 IPC. However, the trial court framed charge under Section 302 IPC.

The defence of the appellants was that Satish gave a blow of kanta on appellant Rakesh causing him injuries and when he tried to give a blow of lathi to Rakesh then the same blow hit the deceased due to which he sustained injuries. A cross case was registered and because of the cross case they have been falsely implicated in this case.

In order to prove its case the prosecution has examined PW-1 Harish Chandra, the complainant, PW-2 Smt. Jhabboo, wife of the deceased, PW-3 Dinesh, son of the deceased, as witnesses of fact, PW-4 Dr. P.K. Gangwar, who had conducted the X-ray of Smt. Jhabboo and has reported that tibia and fibula bones of her left leg were fractured. However no fracture was found in the head. Dr. Gangwar has also conducted the postmortem of the deceased, PW-5 is Mohd. Javed Siddiqui, the Investigating Officer of this case, PW-6 Constable Vasudeo Rawat, Head Moharrir, who has prepared the chik report and G.D. of this case.

No evidence in defence was produced on behalf of the appellants.

After appreciating the evidence on record, the trial court convicted the appellants as above. Hence the instant appeal.

Submission of the learned counsel for the appellants was that in the cross case, accused Satish was also convicted and was sentenced with fine of Rs. 1000/- for the offence under Section 324 IPC. Learned counsel for the appellants has submitted that so far as the finding of fact is concerned, he is not challenging the same and has restricted his arguments only to the extent that the offence under Section 304 part II IPC was made out against the appellants on the basis of admitted facts. It is submitted that even if the entire case of the prosecution is taken to be true even then the offence would not travel beyond the purview of Section 304 part II IPC and the learned trial court has not properly appreciated the prosecution evidence in correct perspective which has rendered its judgment is unsustainable under law.

Learned Additional Government Advocate has submitted that the learned trial court has considered this aspect of the case also and keeping in view the provision of clause thirdly of Section 299 IPC, he has convicted the appellants for the offence under Section 302 IPC and the finding of the trial court cannot be said to be against law.

Though the finding of fact has not been challenged but inspite of that, being the court of first appeal, we have gone through the evidence of all the witnesses and after going through the prosecution evidence, we are of the considered view that so far as the involvement of the appellants and causing injury to the deceased with lathi blows is concerned, it stands proved. The evidence of both witnesses of fact (PW-2 and PW-3) does not suffer from any major contradiction or improbability. Perusal of the impugned judgment shows that the learned trial court has not taken into consideration the statements given by the witnesses in their cross examination and only on the basis of their examination-in-chief has held that the offence committed by the accused persons would fall under Section 302 IPC. Such approach of the trial court cannot be said to be in consonance with the settled principle of appreciation of evidence. The cross-examination of a witness is also part of his evidence and must be taken into consideration while appreciating the evidence.

The accused appellants have come with a definite defence that a lathi was aimed by Satish on appellant Rakesh, which hit Ram Lal due to which he sustained injuries. But this defence has not found favour with the trial court. Learned trial court has rightly disbelieved the defence theory. The deceased Ram Lal has not received a single blow but he has received two injuries on head and the blows were given with sufficient force which resulted into fracture of the underlying bones. Apart from it, there were two other injuries on the non-vital part i.e. elbow and leg. So the accused persons could not explain all the injuries of Ram Lal. It is the definite defence of the appellant that one lathi was aimed by Satish which hit Ram Lal so the other three injuries remains unexplained, hence view of the learned trial court that the appellants have come with a false defence was well a correct conclusion. Apart from it, the FIR of cross case was lodged subsequently so it is also wrong to say that because of the cross case they have been falsely implicated. Crime number of this offence is 220 of 1999 while the crime number of cross case was 220 A of 1999.

PW-1 Harish Chandra is not a witness of fact and PW-2 Smt. Jhabboo and PW-3 Dinesh have been examined as witnesses of fact. PW-2 Smt. Jhabboo is a injured witness she has sustained fracture injuries on her left leg. Both tibia and fibula bones of her left leg were fractured. So her presence on the scene of occurrence cannot be doubted. Learned counsel for the appellants has fairly conceded during course of arguments that the appellants and the complainant side both belong to the same family and Banwari is the first cousin of the complainant Harish Chandra and their houses were adjacent to each other. It has also been admitted that there was dispute regarding the Gram Samaj land which was adjacent to their houses. PW-2 Smt. Jhabboo and PW-3 Dinesh both have supported the case of the prosecution in their examination-in-chief but they have admitted in their cross examination that Panchayat was held to solve the dispute and according to the PW-2 Smt. Jhabboo hundred of persons of the village were present in the Panchayat while according to the evidence of PW-3 Dinesh only twenty persons were present in the said Panchayat to solve the dispute. PW-2 Smt. Jhabboo whose presence on the scene of occurrence cannot be doubted has stated that after the Panchayat the altercation started and both sides indulged into abusing each other. She has fairly conceded in her cross-examination that the quarrel started and both the parties were abusing each other. Her husband and her son Satish were hurling abuses and she has also admitted that when the appellants caused injuries to her husband then his son Satish also caused injuries to Rakesh with lathi. PW-3 Dinesh in his cross-examination has stated that the land of Gram Samaj was adjacent to his house towards east and the Panchayat was going on with regard to the same land. During Panchayat this incident took place and 20 persons of the village were present in the Panchayat. Thus it is clear that the appellants wanted to get the dispute settled through Panchayat and there was no intention or premeditation to commit any such offence and they had gone to get the dispute solved amicably through Panchayat and the same was going on. During the said Panchayat this incident has taken place. But the learned trial court has taken the version of the FIR as proved without considering at all the above mentioned statements given by the witnesses during their cross examination. On the basis of the case of the prosecution as disclosed in FIR it was held that the case fell under Section 302 IPC. But when we have taken into consideration the statements of the witnesses as whole including their statements given during their cross examination then it is clear that there was neither any prior intention nor any premeditation to commit such offence. Admittedly, the complainant side also hurled abuses to the appellants. So this incident has taken place on a sudden provocation on the spur of moment. Two persons are alleged to have caused injuries with lathi and only two wounds were found on the head. Remaining two injuries could have been caused by a fall or even if it is assumed then the same were caused by lathi blows then the said injuries were not caused with an intention to kill the deceased as the same were on non vital parts. So no undue advantage was taken by the appellants of the said position. Thus the facts of this case would bring the offence within the ambit of exception 4 of Section 300 IPC which 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.

Explanation--It is immaterial in such cases which party offers the provocation or commits the first assault."

Before proceeding further we would like to address ourselves regarding the legal position on this point. Hon''ble the Apex Court in a very recent judgment in the case of K. Ravi Kumar Vs. State of Karnataka, had an occasion to consider the scope of Exception 4 to Section 300 I.P.C. and has discussed the law in detail on this point in paras 9 to 13, which reads as under:-

"7. Before we turn to the facts of this case, it is apposite to take note of the principle of law laid down by this Court as to in which circumstances, the accused is held entitled to claim the benefit of Exception 4 to Section 300 Indian Penal Code thereby is entitled to seek conversion of the offence committed by him from murder to culpable homicide not amounting to murder. Indeed, the principle of law on this issue remains no longer res integra and settled by a series of decisions of this Court. What has varied is its application to every case.

Exception 4 to Section 300 reads as under:

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-

...............................................................

...............................................................

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 partly offers the provocation or commits the first assault.

In Surinder Kumar Vs. Union Territory, Chandigarh, , this Court on the same issue held that if on a sudden quarrel a person in the heat of the moment picks up a weapon which is handy and causes injuries out of which only one proves fatal, he would be entitled to the benefit of the Exception provided he has not acted cruelly. This Court held that the number of wounds caused during the occurrence in such a situation was not the decisive factor. What was important was that the occurrence had taken place on account of a sudden and unpremeditated fight and the offender must have acted in a fit of anger. Dealing with the provision of Exception 4 to Section 300 , this Court observed:

To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (i) there was no premeditation; (ii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.......

(Emphasis supplied)

In Ghapoo Yadav and Others Vs. State of M.P., , this Court held that in a heat of passion there must be no time for the passion to cool down and that the parties had in that case before the Court worked themselves into a fury on account of the verbal altercation in the beginning. Apart from the incident being the result of a sudden quarrel without premeditation, the law requires that the offender should not have taken undue advantage or acted in a cruel or unusual manner to be able to claim the benefit of Exception 4 to Section 300 Indian Penal Code. Whether or not the fight was sudden, was declared by the Court to be decided in the facts and circumstances of each case. The following passage from the decision is apposite:

10........... 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 Indian Penal Code is not defined in the Indian Penal Code. 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 have 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".

(Emphasis supplied)

xxx xxx xxx

11......... After the injuries were inflicted the injured had fallen down, but there is no material to show that thereafter any injury was inflicted when he was in a helpless condition. The assaults were made at random. Even the previous altercations were verbal and not physical. It is not the case of the prosecution that the accused-Appellants had come prepared and armed for attacking the deceased.............. This goes to show that in the heat of passion upon a sudden quarrel followed by a fight the accused persons had caused injuries on the deceased, but had not acted in a cruel or unusual manner. That being so, Exception 4 to Section 300 Indian Penal Code is clearly applicable.......

(Emphasis supplied)

In Sukhbir Singh Vs. State of Haryana, , the Appellant caused two Bhala blows on the vital part of the body of the deceased that was sufficient in the ordinary course of nature to cause death. The High Court held that the Appellant had acted in a cruel and unusual manner. Reversing the view taken by the High Court this Court held that all fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of Exception 4 to Section 300 Indian Penal Code. In cases where after the injured had fallen down, the Appellant-accused did not inflict any further injury when he was in a helpless position, it may indicate that he had not acted in a cruel or unusual manner. This Court observed:

19.......... All fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of not availing the benefit of Exception 4 of Section 300 Indian Penal Code. 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 the 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."

(Emphasis supplied)

Keeping in view the aforementioned legal position and the facts of the instant case which reflects that the incident has taken place on the spur of the moment and free fight took place between both the sides in which both sides have received injuries. Law is settled on the point that in case of free fight each and every accused shall be responsible for his own act and in the instant case both the accused persons are alleged to have given lathi blows to the deceased and the deceased has received two lathi blows on his head which proved fatal. So both the appellants have given one blow each on the deceased and no effort was made to repeat the blow on any vital part of the body. No undue advantage of the above situation was taken by any of the appellants and the offence was not committed with prior intention or premeditation. Thus this offence would fall under Section 304 part II IPC.

In these circumstances, the offence would fall only under Section 304 part II IPC. Accordingly, we are of the considered view that this appeal deserves to be partly allowed and is hereby partly allowed. Conviction of both the appellants deserves to be modified from Section 302 IPC to Section 304 part II IPC and their sentence deserve to be reduced from imprisonment for life to the rigorous imprisonment for a period of five years and also with fine of Rs. 10,000/- each with default stipulation of two months additional imprisonment. The conviction and sentence inflicted by the learned trial court for the offence under Section 325 IPC is also hereby confirmed. The appellants Banwari and Rakesh are in custody. They shall serve out the sentence as modified by this Court. The period already undergone by the appellants in custody in this case, shall be set off in their substantive sentence in accordance with the provision of Section 428 Cr.P.C.

Office is directed to communicate this order forthwith to the court concerned and to send back the lower court record to ensure compliance.