HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

High Court of Judicature at Allahabad

Lucknow Bench, Lucknow

RESERVED

Reserved on:01.08.2018

Pronounced on: 20.08.2018

CRIMINAL APPEAL No. 1598 of 2002

Radhey Shyam And Another

vs.

State Of U.P.

Counsel for Appellant :- Soniya Mishra

Counsel for Respondent :- Govt.Advocate

Hon’ble Ritu Raj Awasthi,J.

Hon’ble Mahendra Dayal,J.

(Delivered by Hon’ble Ritu Raj Awasthi, J.)

Heard Mr. Rajeev Mishra holding brief of Ms. Soniya Mishra, learned counsel for the appellants as well as Mr. Umesh Verma, learned Additional Government Advocate appearing on behalf of the State-respondent and perused the relevant records.

The instant criminal appeal under Section 374 (2) Cr.P.C. has been preferred by the appellants, namely, Radhey Shyam and Vikram challenging the judgment and order dated 01.11.2002, passed by learned Additional Sessions Judge (Fast Track Court-3), Lakhimpur Kheri, in Sessions Trial No.73 of 2002, relating to case Crime Nos.211 of 2001 212 of 2001, under Sections 302/34, 504 IPC 3/25 Arms Act, whereby the appellants have been convicted for the offence under Section 302 IPC and sentenced with rigorous imprisonment for life and also with fine of Rs.5,000/- each with default stipulation of one year additional imprisonment and for the offence under Section 504 IPC sentenced to undergo rigorous imprisonment for a period of one year and for the offence under Section 25 Arms Act the appellant no.1/Radhey Shyam has been sentenced to undergo rigorous imprisonment for a period of one year and also fine of Rs.1000/- with default stipulation of three months’ additional imprisonment. All the sentences are directed to run concurrently.

The genesis of the prosecution case in brief is that on 26.7.2001 at about 11.05 a.m. Ishwar Deen (PW-1), father of the deceased, lodged an FIR with Police Station Isa Nagar, District Lakhimpur Kheri to the effect that on that date at about 7.30 a.m. the female calf of the appellant-Radhey Shyam had come near the animals of informant which was driven away by his son Babu Ram and he told Radhey Shyam to ensure that his calf is properly tied at his place on which Radhey Shyam got infuriated and started abusing Babu Ram (deceased) and said that he will block his passage. His son Babu Ram told Radhey Shyam in strict words not to abuse on which Radhey Shyam brought fire arm from his house and stepped to make a fire. Kallu and Pahari S/o Mangal as well as Mohan S/o Mathura had challenged Radhey Shyam, then Radhey Shyam fired pointing at the chest of deceased Babu Ram. Informant’s son Kallu and Pahari had snatched the fire arm from Radhey Shyam. In the meantime, appellant no.2/Vikram had also come who is brother of Radhey Shyam and started helping Radhey Shyam, he was also involved in the altercation and helped Radhey Shyam in killing the deceased. The said fire arm with cartridge has been brought to the police station. The accused Radhey Shyam and Vikram had run away from the place of occurrence. On the basis of complaint an FIR under Case Crime No.211 of 2001 under Section 302, 504 IPC and Case Crime No.212 of 2011 under Section 3/25 Arms Act was registered. The police after completing the investigation had submitted charge-sheet against the accused-appellants.

The case of the defence was of total denial and being innocent.

In order to prove its case the prosecution had examined five witnesses out of which PW-1 and PW-2 are witnesses of facts, whereas PW-3, PW-4 and PW-5 are formal witnesses.

No evidence in defence was adduced on behalf of the appellants. The statement under Section 313 Cr.P.C. of the accused persons was recorded in which they had denied the allegations and claimed that the deceased Babu Ram wanted to grab certain piece of land which was resisted by them, however, they had not made any complaint in this regard.

PW-1/Ishwar Deen being an eye witness to the incident had described, in detail, the occurrence and it was stated by him that there was no prior enmity with the appellants and the altercation had taken place due to coming of female calf of the appellants at his place. He had also stated that the fire arm as well as bhali (sharp edged weapon) were brought by the co-accused Vikram from the house and fire arm was given to the appellant-Radhey Shyam and bhali was kept by Vikram himself. He has also stated that fire was made by appellant-Radhey Shyam from a close distance of 2-3 steps from the deceased.

PW-2/Pahari S/o Mangal is also an eye witness. He had stated that the appellant-Radhey Shyam had started abusing the deceased Babu Ram on being told by Babu Ram to take care of his female calf. Vikram, brother of Radhey Shyam had also come, he was having fire arm and bhali. Vikram had handed over the fire arm to Radhey Shyam and Radhey Shyam had fired at Babu Ram. He was told not to do so by Kallu and PW-1 Ishwar Deen, however, Radhey Shyam stepped back and fired at Babu Ram. The fire hit Babu Ram in the chest and Babu Ram fell down and died. Radhey Shyam was caught with fire arm on spot, however, the appellant-Vikram by entering into altercation had got Radhey Shyam released and they ran away. He has stated that his house is near to the house of the informant. The occurrence had taken place in front of the house of informant. PW-2 has also stated that there was no previous enmity of Radhey Shyam and Vikram with the deceased Babu Ram.

PW-3 Dr. P.K. Gangwar has done the postmortem of the deceased who was brought to the hospital by Constable Abhay Singh. The cause of death has been reported to be shock and excess bleeding due to the injuries sustained by fire arm. 13 pellets were recovered from the face, chest cavity and lungs.

PW-4 Sub-Inspector Dinesh Kumar Singh has stated that FIR was lodged in his presence. He had visited the place of occurrence and had prepared the site plan and recorded the statements of Shageer, Shamsher and eye witness Pahari and Mohan and got the inquest report prepared and had also proved the evidences in this regard.

PW-5 Head Constable Rajesh Kumar Singh has stated that he had prepared chick report, FIR and made entry in the general diary. He has also stated that the recovery memo of fire arm and cartridge was prepared in his presence by Constable/Clerk Om Prakash Mishra.

Learned counsel for the appellant has submitted that the learned trial court has grossly erred in convicting the appellants under Section 302 IPC. The alleged offence was committed without any premeditation. The facts of the case clearly indicates that there was a sudden altercation between the accused appellants and the deceased and in the heat of passion upon sudden quarrel the deceased had sustained injuries and has succumbed to the said injuries.

Submission is that even if prosecution story is accepted there was no case of murder and the case of the appellant is covered under exception 4 under Section 300 IPC.

It is also submitted that co-accused Vikram was not involved in the occurrence of the alleged offence. There were no injuries caused to the deceased by any sharp edged weapon although as per prosecution case Vikram was having a bhali (sharp edged weapon). It is submitted that accused-Vikram had only helped the co-accused Radhey Shyam in getting him self released from the clutches of Kallu and Pahari. It is also submitted that there was no motive for the appellants to commit the crime, as such, even if the appellants are found guilty, they can at most be convicted under Section 304 (2) IPC.

It is also submitted by learned counsel for the appellants that the appellant no.1/Radhey Shyam is in jail for approximately 18 years.

Learned counsel for the appellants has strongly contended that there is definite improvement in the version of the witnesses of facts from the case as set out in the FIR and as such the statements of prosecution witnesses cannot be reliable. It is also contended that in the FIR it has been said that the appellant Radhey Shyam had brought the fire arm from his house and fired at the deceased, whereas in the statement of PW-2 it has come that the appellant no.2 Vikram had brought the fire arm from his house and given it to appellant no.1/Radhey Shyam and thereafter Radhey Shyam had made fire which had hit the deceased. There is contradiction in the statement of PW-2, as such, it is not trustworthy. Moreover, PW-1 is an interested witness being father of the deceased and his statement alone cannot be relied upon for the prosecution of the appellants.

In support of his submissions learned counsel for the appellants has placed reliance on the following judgments:

1. Murlidhar Shivram Patekar anr. Vs. State of Maharashtra1

2. Vineet Kumar Chauhan Vs. State of U.P. 2

3. Rampal Singh Vs. State of U.P. 3

4. Gurpal Singh Vs. State of Punjab 4

Learned Additional Government Advocate, appearing for the State, on the other hand, has submitted that it is a clear case of murder. The occurrence has taken place in broad day light. At the very first glance the FIR appears to be prompt. The name of the accused, weapons used in the commission of the offence, manner of assault, motive for crime, place of occurrence, names of witnesses present at the scene of occurrence are clearly mentioned. The FIR has been lodged by PW-1 who is an eye witness. He is none other than the father of the deceased Babu Ram. The place of occurrence is outside the house of informant/deceased. It does not suffer from any voice of embellishments, consultation and deliberation etc. It is also submitted that there is no contradiction in the statements of PW-1 and PW-2.

The contention is that the statement of PW-1 is a substantive piece of evidence made before the court and nothing has been elicited from the witness and no suggestion has been given to the witness in this regard during cross-examination. It is contended that the date, time and place of occurrence has never been challenged or even disputed during trial from the side of the appellants while cross-examining the eye witnesses PW-1 and PW-2 and thus stood proved beyond any shadow of doubt. It is submitted that the defence has miserably failed to cause even a dent in the prosecution case regarding commission of crime by the accused appellants, their manner of assault on the deceased and causing instantaneous death at the spot by firing a gun shot from country made pistol used by the appellant-Radhey Shyam which was provided to him by co-appellant Vikram who was also present at his house.

Mr. Umesh Verma, learned Additional Government Advocate has argued that FIR is not an encyclopedia and it is not the requirement of law that each and every minute detail should be there because at the first instance the purpose of the FIR is to inform the authorities of the State to initiate the immediate action in respect of commission of a cognizable offence, secondly, the FIR is not a substantive piece of evidence and it can be used in trial only for the purpose of contradiction or corroboration from the maker of the FIR. Certainly PW-2 is not the maker of the FIR, moreover, no contradiction regarding statements recorded under Section 161 Cr.P.C. in respect of PW-1 and PW-2 have been specifically put to these witnesses and no question in respect of any such contradiction has been put to the Investigation Officer to make contradictions proved on record. It is also submitted that no such contradiction as alleged by the counsel for the appellants was ever put to the maker of the FIR i.e. PW-1 and no suggestion was brought towards any such contradiction by specifying that there is contradiction in his statement with respect to the narration in the FIR.

Submission is that the appellants, as such, cannot contend that there is any improvement in the statements of prosecution witnesses and their statements cannot be relied. In this regard learned AGA has relied on the judgment of Apex Court in the case of Utpal Das and anr. Vs. State of West Bengal 5, wherein it has been observed that there is no merit in the submission for the simple reason that the contents of the first information report were never put to the victim. It is needless to to restate that the first information report does not constitute the substantive evidence. It can only be used as a previous statement for the purpose of either corroborating its maker or for contradicting him, in such a case the previous statement can not be used unless the attention of witness has first been drawn to those parts by which it is proposed to contradict the witness.

It is contended by learned AGA that co-accused Vikram had played an active role in the commission of offence. The deposition of PW-2 clearly indicates the active role played by co-accused Vikram and has fully corroborated the statement of PW-1 and no contradiction during cross-examination with his previous statement under Section 161 Cr.P.C. was ever put as contemplated under Section 145 of the Evidence Act. It is submitted that the rule of appreciation regarding contradiction in respect of previous statement recorded under Section 161 Cr.P.C. has been elaborately dealt with by the Apex Court in the case of V.K. Mishra and another Vs. State of Uttaranchal and another6.

Learned AGA has argued that the appellants are not entitled to the benefit of exception 4 to Section 300 IPC. It is wrong to say that the deceased provoked the appellants to fire at him. There is no such evidence to suggest any provocation on the part of the deceased, rather the evidence clearly shows that the provocation was from the side of the appellants and the appellant no.1 was the aggressor. Female calf of the appellant had gone to the place of animal of the deceased from where the deceased had turned her out and told the appellant Radhey Shyam to tie his animal at his place which he did not agree and became infuriated and abused the deceased and ultimately fired at him with a country made pistol without any provocation from the side of the deceased. The fire arm was provided to the appellant Radhey Shyam by co-accused Vikram. It is submitted that in fact PW-2 Pahari with Kallu had tried to prevent Radhey Shyam from firing, however, Radhey Shyam had instantaneously fired at the deceased with premeditation. Vikram was present at the place of occurrence and had helped Radhey Shyam in commission of offence and had helped in fleeing of Radhey Shyam and himself, leaving the deceased die at the spot instantaneously.

Submission is that intention can easily be gathered and inferred from the conduct of appellant no.1. It is clear that the case of the appellants is fully covered under 3rd Clause of Section 300 IPC. The case of the appellants may also be covered under 2nd Clause of Section 300 IPC. It is also submitted that the deceased was unarmed whereas the appellant Radhey Shyam had fired at him by a country made pistol with deliberate intent and made the fire at the vital part of the body of the deceased causing his instantaneous death at the spot. In support of his submissions learned AGA has relied on the following judgments:

1. State of Rajasthan Vs. Islam7;

2. State of Madhya Pradesh Vs. Shivshankar 8;

3. Abdul Waheed Vs. State of Uttar Pradesh 9 ;

4. Baleshwar Mahto anr. Vs. State of Bihar anr. 10

We have considered the submissions of learned counsel for parties and perused the lower court record.

The main point for consideration in this criminal appeal is whether the conviction of appellants under Section 302 IPC read with Section 34 IPC in the given facts is correct and whether the appellants can be given the benefit of exception 4 of Section 300 IPC.

The academic distinction between murder and culpable homicide not amounting to murder has been vividly described by the Apex Court in the case of State of Andhra Pradesh Vs. Rayavarapu Punnayya and another 11. The relevant paragraphs 12 and 13 on reproduction read 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”. 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.

13. The academic distinction between “murder” and “culpable homicide not amounting to murder” has vexed the courts for more than a century. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minutae abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300.”

In Bhagwan Munjaji Pawade v. State of Maharashtra; (1978) 3 SCC 330 , this Court held as under :

“6. …. It is true that some of[pic]the conditions for the applicability of Exception 4 to Section 300 exist here, but not all. The quarrel had broken out suddenly, but there was no sudden fight between the deceased and the appellant. ‘Fight’ postulates a bilateral transaction in which blows are exchanged. The deceased was unarmed. He did not cause any injury to the appellant or his companions. Furthermore no less than three fatal injuries were inflicted by the appellant with an axe, which is a formidable weapon on the unarmed victim. Appellant, is therefore, not entitled to the benefit of Exception 4, either.”

In In Sridhar Bhuyan v. State of Orissa; (2004) 11 SCC 395 , this Court held as under :

“7. For bringing in operation of Exception 4 to Section 300 IPC, it has to be established that the act was committed without premeditation, in a sudden [pic]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.

8. 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 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. 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 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”. Similar observations were made in State of Orissa v. Khaga alias Khageswar Naik and Ors. (supra), which reads as under :

“8. The rival submission necessitates examination of Exception 4 to Section 300 IPC, same reads as follows:

“300. Murder.-* * *

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’s 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.”

From a plain reading of the aforesaid Exception it is evident that it shall be attracted only if the death is caused (i) without premeditation, (ii) in a sudden fight and (iii) in a heat of passion upon a sudden quarrel. If all these ingredients are satisfied, the Exception will come into play only when the court comes to the conclusion that the offender had not taken undue advantage or acted in a cruel or unusual manner. Above all, this section would be attracted when the fight had taken place with the person killed.

9. The aforesaid view finds support from a judgment of this Court in Pappu v. State of M.P. AIR 2006 SC 2659 in which it has been held as follows: (SCC pp. 394-95, para 13)

“13. … 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 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.”

11. Then, can it be said that the crime has been committed in a heat of passion? If time is taken to cool down, then the crime cannot be said to have been committed in a heat of passion. It is the specific case of the prosecution, which in fact, has also been accepted by the High Court that “when her father Tikeswar abused them, the accused Khageswar being annoyed brought a budia from his house, which is nearby, and dealt blows to her father and the accused Dusasan brought a lathi and assaulted her father”. This clearly shows that both the convicts had sufficient time to cool down and therefore, it cannot be said that the crime was committed in a heat of passion.”

The apex Court in the case of Vineet Kumar Chauhan Vs. State of U.P. (supra) in this regard has made certain observations. Paragraph 15 of the judgment in this regard is reproduced:

“15. The academic distinction between murder and culpable homicide not amounting to murder has been vividly brought out by this Court in State of Andhra Pradesh Vs. Rayavarapu Punnayya and Another . It has been observed that the safest way of approach to the interpretation and application of Sections 299 and 300 IPC is to keep in focus the key words used in various clauses of the said Sections. Minutely comparing each of the clauses of Sections 299 and 300 IPC and drawing support from the decisions of this Court in Virsa Singh Vs. State of Punjab and Rajwant Vs. State of Kerala , speaking for the Court, R.S. Sarkaria, J. neatly brought out the points of distinction between the two offences, which have been time and again reiterated. Having done so, the court said 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, 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, Penal Code. It was, however, clarified that these were only broad guidelines to facilitate the task of the Court and not cast iron imperative.”

In the case of Murlidhar Shivram Patekar anr. Vs. State of Maharashtra (supra) the question as to whether the offence committed by the accused will fall under exception 4 of Section 300 IPC has been considered. The relevant paragraph 19 of the judgment in this regard is reproduced below:

“19. The question however still remains as to the nature of the offence committed by the accused and whether it falls under Exception 4 of Section 300 IPC.

In the case of Surinder Kumar (supra), this Court has held as under:-

“7. To invoke this Exception four requirements must be satisfied, namely,

(i) it was a sudden fight; (ii) there was no premeditation; (iii) 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).

Further in the case of Arumugam Vs. State; 2009 (1) JIC 894 (SC) in support of the proposition of law that under what circumstances Exception 4 to Section 300 IPC can be invoked if death is caused, it has been explained as under:-

“18. 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 the Penal Code, 1860. 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 cruel or unusual manner. The expression ”undue advantage’ as used in the provision means ”unfair advantage’.” Further in the case of Satish Narayan Sawant Vs. State of Goa; 2010 (1) JIC 97 this Court has held as under:

“24. …….Section 300 IPC further provides for the Exceptions which will constitute culpable homicide not amounting to murder and punishable under Section 304. When and if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II.

28. ………Records clearly establish that there was indeed a scuffle between the parties with regard to the availability of electricity in a particular room and during the course of scuffle the appellant also received an injury which was simple in nature and that there was heated exchange of words and scuffle between the parties before the actual incident of stabbing took place. There is, therefore, provocation and the incident happened at the spur of the moment. That being the factual position, we are of the considered view that the present case cannot be said to be a case under Section 302 IPC but it is a case falling under Section304 Part II IPC. It is trite law that Section 304 Part II comes into play when the death is caused by doing an act with knowledge that it is likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as is likely to cause death.” Thus, if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not intention to cause murder and bodily injury then the same would fall under Section 304 Part II. We are inclined to the view that in the facts and circumstances of the present case, it cannot be said that the appellants/accused had any intention of causing the death of the deceased when they committed the act in question. The incident took place out of grave and sudden provocation and hence the accused are entitled to the benefit of Section 300 Exception 4 of IPC.

Thus, in entirety, considering the factual scenario of the case on hand, the legal evidence on record and in the background of legal principles laid down by this Court in the cases referred to supra, the inevitable conclusion is that the act of the accused-appellants was not a cruel act and the accused did not take undue advantage of the deceased. The scuffle took place in the heat of passion and all the requirements under Section 300 Exception 4, IPC have been satisfied. Therefore, the benefit of Exception 4 under Section 300, IPC is attracted to the fact situations and both the appellants are equally entitled to this benefit.”

In the case of Rampal Singh Vs. State of U.P. (supra) the Supreme Court has again considered the distinction between Section 299 and Section 300 of the Code and has opined as under:-

“20. Thus, where the act committed is done with the clear intention to kill the other person, it will be a murder within the meaning of Section 300 of the Code and punishable under Section 302 of the Code but where the act is done on grave and sudden provocation which is not sought or voluntarily provoked by the offender himself, the offence would fall under the exceptions to Section 300 of the Code and is punishable under Section 304 of the Code. Another fine tool which would help in determining such matters is the extent of brutality or cruelty with which such an offence is committed.

21. An important corollary to this discussion is the marked distinction between the provisions of Section 304 Part I and Part II of the Code. Linguistic distinction between the two Parts of Section 304 is evident from the very language of this Section. There are two apparent distinctions, one in relation to the punishment while other is founded on the intention of causing that act, without any intention but with the knowledge that the act is likely to cause death. It is neither advisable nor possible to state any straight-jacket formula that would be universally applicable to all cases for such determination. Every case essentially must be decided on its own merits. The Court has to perform the very delicate function of applying the provisions of the Code to the facts of the case with a clear demarcation as to under what category of cases, the case at hand falls and accordingly punish the accused.”

Learned counsel for the appellant has also made reliance on the judgment of the Apex Court in the case of Gurpal Singh Vs. State of Punjab (supra), where the Apex Court considering the progression of events culminating in the tragic incident having been made twelve years back and having regard to the root cause of the incident and the events that sequentially unfolded thereafter came to conclusion that the appellant was overpowered by an uncontrollable fit of anger so much so that he was deprived of his power of self-control and being drawn in a web of action reflexes, fired at the deceased and the injured. The facts do not commend to conclude that the appellant had the intention of eliminating any one of those fired at, though he had the knowledge of the likely fatal consequences thereof and, as such, had moderated the conviction of the appellant under Section 304 (1) 307 IPC.

In the present case the FIR has been lodged by the eye witness Ishwar Deen (PW-1) who is none else than father of the deceased Babu Ram. His presence at the place of occurrence was natural as the place of occurrence was outside the house of the informant/deceased. The time of incident was 7.30 a.m. and at that time presence of the informant was very natural and probable. In the same manner the presence of another eye witness PW-2 who is the resident of a nearby house and neighbour of the informant/deceased is also natural. PW-2 was present at the spot with Kallu thus had every opportunity to witness the entire occurrence. He has narrated the entire story of crime, in detail, and nothing has been elicited from him during cross-examination. In fact the defence has failed to point out any contradiction in the FIR version and the statements of prosecution witnesses of facts.

Some criticism at the time of arguments has been made by the appellants’ counsel regarding country made pistol being given by Vikram to Radhey Shyam on the sole basis that this fact did not find place in the FIR. In this regard it cannot be forgotten that it is the settled principle of law that an FIR is not encyclopedia and it does not require that each and every minute detail shall be mentioned in the FIR. The purpose of the FIR is to inform the authorities regarding the commission of a cognizable office. The FIR cannot be said to be a substantive piece of evidence and it is to be reused in the trial only for the purpose of contradiction or corroboration from the maker of the FIR. In the present case PW-2 is not the maker of the FIR, moreover, no contradiction regarding the statement recorded under Section 161 Cr.P.C. in respect of the PW-1 and PW-2 were specifically put to those witnesses and, as such, the said contradictions were not proved on record, hence the appellants cannot take this plea at this stage. It is reiterated that the substantive evidence is the evidence given before the court and in the present case the evidence put forward by the witnesses before the Court regarding the commission of crime by the appellants was very clear and trustworthy which has been rightly been made basis by the learned trial court for convicting the appellants. The cogent and credible evidence of both the eye witnesses further finds support from the medical report deposed by the doctor who conducted the postmortem of the deceased and is also corroborated from the FIR.

During the course of arguments, learned counsel for the appellants has argued that there is an improvement in the statement of prosecution witnesses. In the FIR it has been stated that Radhey Shyam had brought the fire arm from his house and fired from it at the deceased, whereas in the statement PW-1 has stated before the Court that co-accused Vikram was sitting on takhat (hard bed). Altercation between Radhey Shyam and deceased had taken place nearby. Vikram had given the fire arm to Radhey Shyam and said ”mar do sale ko’. Vikram had brought the fire arm from his house. As has been noted above, no such contradiction as suggested was ever put to the maker of the FIR i.e. PW-1. The attention was not drawn towards any such contradiction by the defence. It is noteworthy that the statement which has been elicited by the defence while cross-examination cannot be termed as improvement rather it is a score by the defence which goes against defence and the defence is bound by that which it has gained by itself.

In the case of Utpal Das and anr. Vs. State of West Bengal (supra) in paragraph 10 the Apex Court has observed as under:-

“10. The Prosecutrix more or less reiterated the same facts in her evidence. In the cross examination she stated that one of the miscreants “jumped” on the rickshaw and threatened her at the point of knife that she would be killed if she raises any hue and cry. She identified appellant No.2 in the court as the one who threatened her with the knife. Relying on this part of the statement in the cross examination, learned counsel submitted that this part of the story of appellant no.2 `jumping on the rickshaw and threatening her at the point of knife etc. was not stated by her in the first information report given to the police. This one circumstance according to the learned counsel for the appellants belies the evidence of the Prosecutrix as she went on making improvements. We find no merit in this submission for the simple reason that the contents of the first information report were never put to the victim. It is needless to restate that the First Information Report does not constitute substantive evidence. It can, however, only be used as a previous statement for the purposes of either corroborating its maker or for contradicting him and in such a case the previous statement cannot be used unless the attention of witness has first been drawn to those parts by which it is proposed to contradict the witness.”

The similar is the position of PW-2 who in his deposition has clearly described the active role played by co-appellant Vikram and has fully corroborated the statement of PW-1 and no contradiction during cross-examination with his previous statement recorded under Section 161 Cr.P.C. was ever put as contemplated under Section 145 of Evidence Act and in this view of the matter there is in fact cogent and credible evidence of two eye witnesses regarding the complicity of the two appellants in the crime and their active role played in the commission of the murder of Babu Ram by firing a shot from country made pistol with a clear intention of causing his instant death at the spot by selecting his most vital part of the body i.e. right side of the chest. Doctor conducting autopsy on the dead body recovered 13 pellets from face, chest cavity, heart and lung as noted in the postmortem report. Beside that the doctor had also noted two multiple fire arm wound of entry measuring in size noted in the postmortem report. The cause of death indicated as ”shock and hemorrhage as a result of ante-mortem injuries’.

The rule of appreciation regarding contradiction in respect of previous statement of witnesses recorded under Section 161 Cr.P.C. has elaborately been dealt with by Hon’ble Supreme Court in a recent judgment of V.K. Mishra and another Vs. State of Uttranchal and another (supra), the relevant paragraphs of the judgment on reproduction reads as under:-

“14. Section 161 Cr.P.C. titled “Examination of witnesses by police” provides for oral examination of a person by any investigating officer when such person is supposed to be acquainted with the facts and circumstances of the case. The purpose for and the manner in which the police statement recorded under Section 161 Cr.P.C can be used at any trial are indicated in Section 162 Cr.P.C. Section 162 Cr.P.C. reads as under:

162. Statements to police not to be signed-Use of statements in evidence.-(1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:

Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.

(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act.

Explanation.- An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.

15. Section 162 Cr.P.C. bars use of statement of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses as indicated there. The statement made by a witness before the police under Section 161 (1) Cr.P.C. can be used only for the purpose of contradicting such witness on what he has stated at the trial as laid down in the proviso to Section 162 (1) Cr.P.C.. The statements under Section 161 Cr.P.C. recorded during the investigation are not substantive pieces of evidence but can be used primarily for the limited purpose:- (i) of contradicting such witness by an accused under Section 145 of Evidence Act;

(ii) the contradiction of such witness also by the prosecution but with the leave of the Court and (iii) the re-examination of the witness if necessary.

16. Court cannot suo moto make use of statements to police not proved and ask question with reference to them which are inconsistent with the testimony of the witness in the court. The words in Section 162 Cr.P.C. “if duly proved” clearly show that the record of the statement of witnesses cannot be admitted in evidence straightway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross-examination and also during the cross-examination of the investigating officer. Statement before the investigating officer can be used for contradiction but only after strict compliance with Section 145 of Evidence Act that is by drawing attention to the parts intended for contradiction.

17. Section 145 of the Evidence Act reads as under:

145. Cross-examination as to previous statements in writing.- A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

18. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination. The attention of witness is drawn to that part and this must reflect in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo moto make use of statements to police not proved in compliance with Section 145 of Evidence Act that is, by drawing attention to the parts intended for contradiction.

19. In the case at hand, PW-1 was not confronted with his statement recorded by the police under Section 161 Cr.P.C. to prove the contradiction nor his statement marked for the purpose of contradiction was read out to the investigating officer. When neither PW-1 nor the investigating officer were confronted with the statement and questioned about it, PW-1’s statement recorded under Section 161 Cr.P.C. cannot be looked into for any purpose much less to discredit the testimony of PW-1 and the prosecution version.”

So far as the argument advanced by appellants’ counsel that there was no intention to kill the deceased on the part of the appellants as the incidence has happened in a sudden quarrel in a sudden fight during heat of provocation and the appellants are entitled to the benefit of exception 4 of Section 300 IPC is concerned it is wrong to say that the deceased had in any manner provoked the appellant to fire at him. There was no provocation from the deceased, rather the appellant Radhey Shyam had got infuriated on being told that his animal (female calf) had come to the place of deceased and had started abusing the deceased. The appellant Radhey Shyam had threatened the deceased that he will block his passage and on being stopped from making abuses had got the fire arm and made the fire at the deceased. At the time of occurrence the deceased was unarmed whereas the appellants were having fire arm and bhali (sharp edged weapon). Moreover, the appellants in the altercation with the deceased had not received any blow and were not injured. There was no occasion for the appellants to have got so infuriated to have fired at the deceased. The act of the appellants clearly indicates their intent to kill the deceased and they had with predetermination and intention had fired at the deceased to kill him. The case of the appellant as such is not covered under exception 4 of Section 300 IPC.

The witnesses present at the spot namely PW-2 with Kallu had tried to stop Radhey Shyam but could not prevent him from firing. Moreover, the appellant Radhey Shyam had fired at the deceased in the front and fire had hit the deceased at vital parts of the body, such as, chest, face and lungs. 13 pellets were recovered from the body of the deceased in the postmortem. As per deposition of prosecution witness PW-1 and PW-2 the co accused Vikram had helped Radhey Shyam in commission of offence and had helped Radhey Shyam to flee along with him from the place of occurrence after also involving himself in the fight with the deceased and other persons present at the spot. As per the statement of PW-1 and 2 it was co-accused Vikram who had provided the fire arm to Radhey Shyam with which Radhey Shyam had fired at the deceased. There is no contradiction in the statements of PW-1 and PW-2, as such, it is clear from the evidence on record that Vikram along with Radhey Shyam were involved in the commission of offence and guilty of the crime.

The appellants had used deadly weapon i.e. country made pistol and appellant no.1 fired a shot with deliberate intent by selecting most vulnerable part of the body of the deceased i.e. right side of the chest and had caused the instantaneous death of the deceased at the spot as such it is a clear case of murder. It is not the case where it can be said that the accused had not taken any advantage, in fact the accused-appellants had acted in a cruel and unusual manner. In the case of State of Rajasthan Vs. Islam (supra) the Apex Court considering the evidence on record has come to conclusion that it cannot be said that accused had no intention to kill the deceased. It has been held that the conversion of the conviction of accused from Section 302 IPC to Section 304 Part II IPC is not sustainable the approach of the High Court in this regard is misconceived. Paragraph 11 of the judgment in this regard is reproduced below:

“We fail to appreciate the aforesaid reasoning by the High Court in the context of the consistent evidence discussed above. It cannot be said that respondent no. 1 had no intention to kill the deceased. After attending the assembly in which there was a minor scuffle, respondent no. 1 Islam admittedly went to his house and came back armed with a Farsa which is a deadly weapon. Thereafter, he hit the deceased repeatedly on the head, a vital part of human body, with Farsa and caused very grevious injuries. It may be true that initially there was no pre- mediation or intention of the respondent no. 1 but it is well settled that intention can develop on the spot and in the instant case, there is some amount of pre-meditation on the part of respondent no. 1 when he had gone to his house and came back to the place of occurrence armed with a deadly weapon and in furtherance of that intention struck the deceased with that weapon repeatedly and at a vital part of his body. In the background of this consistent evidence against respondent no. 1, this Court is of the opinion that the conversion of the conviction of respondent Islam from Section 302 IPC to Section 304 Part II IPC cannot be sustained and the entire approach of the High Court is misconceived, if not perverse.”

In the case of State of Madhya Pradesh Vs. Shivshankar (supra) a similar view has been taken. It was observed that exception 4 to Section 300 IPC is attracted when there is a fight or quarrel which requires mutual provocation and blows by both sides in which the offender does not take undue advantage. Paragraph 10 of the judgment in this regard is reproduced below:

“10. It is clear from the case of the prosecution mentioned above that the accused first slapped the complainant which was followed by verbal abuses and thereafter the accused brought the licensed gun and fired at the deceased, who died. It was, thus, a voluntary and intentional act of the accused which caused the death. Intention is a matter of inference and when death is as a result of intentional firing, intention to cause death is patent unless the case falls under any of the exceptions.

We are unable to hold that the case falls under Exception 4 of Section 300, IPC as submitted by learned counsel for the respondent. Exception 4 is attracted only when there is a fight or quarrel which requires mutual provocation and blows by both sides in which the offender does not take undue advantage. In the present case, there is no giving of any blow by the complainant side. The complainant side did not have any weapon. The accused went to his house and brought a gun. There is neither sudden fight nor a case where the accused has not taken undue advantage.”

In the case of Abdul Waheed Vs. State of Uttar Pradesh (supra) it has been observed by Hon’ble Apex Court that when gun is used and the person who fires the gun must be presumed to have knowledge and intention that he is inflicting an injury which in the ordinary course of nature of sufficient to cause death and the offence is clearly murder. Paragraph 15 in this regard is reproduced below:

“The Appellant and the accused party were having enmity against the deceased-Abbas Khan on account of civil suit and filing of contempt petition. The Appellant and the accused party went to chabutra of Abbas Khan armed with pistol, guns and lathis which shows the intention of the Appellant to commit the murder. An ordinary person is not presumed to know the precise location of the arteries in the human limbs. Therefore, if a stab with a knife or dagger, aimed at an arm or a leg, severs an artery and the injured man dies as a result, it may be reasonable to argue that the offence is not one of culpable homicide and that the assailant can only be presumed to have intended to cause hurt or grievous hurt with a dangerous weapon. The case in hand is quite different. When gun is used and the person who fires the gun must be presumed to have knowledge and intention that he is inflicting an injury which in the ordinary course of nature is sufficient to cause death and the offence is clearly murder. Having regard to the enmity and the weapon used, the courts below rightly held that the Appellant-accused was guilty of committing the murder of Abbas Khan.”

In the case of Baleshwar Mahto anr. Vs. State of Bihar anr. (supra) the Hon’ble Apex Court has observed that when the accused come to the place of occurrence armed with deadly weapons the intention and purpose would be more than apparent and therefore the appellant cannot argue that incident occurred at the spur of the moment. Paragraph 14 of the judgment on reproduction reads as under:

“14. The aforesaid analysis of ours is sufficient to reject the other contentions advanced by the appellants. When the appellants had come to the place of occurrence armed with deadly weapons, their intention and purpose would be more than apparent and, therefore, the appellants cannot argue that incident occurred at the spur of the moment The argument that there was a longstanding land dispute between the two parties, in fact, goes against the appellants as it shows previous animosity due to the said dispute because of which the appellants in order to teach ”lesson’ to the complainant party attacked them in the manner described by the prosecution. In view of the aforesaid discussion, various judgments cited by learned Counsel for appellants will have no bearing or application to the facts of the instant case. It is, therefore, not even necessary to discuss them.”

The expression ”grave and sudden provocation’ has been considered by Hon’ble Supreme Court in the case of Sukhlal Sarkar Vs. Union of India others; 12 and the Apex Court has held that expression ”grave’ indicates the provocation to be of such a nature so as to give cause for alarm to the appellant. ”Sudden’ means an action which must be quick and unexpected so far as to provoke the appellant. Paragraph 10 of th judgment in this regard is relevant, which reads as under:

“10. The meaning of the expressions “grave” and “sudden” provocation has come up for consideration before this Court in several cases and it is unnecessary to refer to the judgments in those cases. The expression “grave” indicate that provocation be of such a nature so as to give cause for alarm to the appellant. “Sudden” means an action which must be quick and unexpected so far as to provoke the appellant. The question whether provocation was grave and sudden is a question of fact and not one of law. Each case is to be considered according to its own facts.”

In the present case there was no provocation from the side of the deceased at all, rather the provocation was from the side of the appellants which the deceased was trying to avoid, as such, we are of the view that the appellants are not entitled to get the benefit of exception 4 under Section 300 CPC and the learned Trial Court has rightly on the basis of evidence on record has come to conclusion that the appellants are guilty of committing murder and have been sentenced to undergo life imprisonment.

The conviction of appellants under Section 302/34 504 IPC is confirmed. The conviction of appellant no.1/Radhey Shyam under Section 25 Arms Act is also proved beyond doubt and is hereby confirmed. They shall undergo the sentence awarded by learned Trial Court.

After going through the entire evidence and the impugned judgment, we are fully satisfied that the learned trial court has rightly held the case of the prosecution to be proved and has rightly convicted the appellants. So the appeal has absolutely no force and deserves to be dismissed. This appeal is hereby dismissed. The appellants shall serve out their sentence as imposed by the learned trial court.

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

[Mahendra Dayal,J.] [Ritu Raj Awasthi, J.]

Dated: 20th August, 2018

Ram/-