AWADHESH KUMARversusSTATE OF U.P. & ANR.

                          [2019] 17 S.C.R. 185                           185


                      AWADHESH KUMAR                                     A
                                  v.
                      STATE OF U.P. & ANR.
                (Criminal Appeal No. 1670 of 2019)
                       NOVEMBER 08, 2019                                 B
              [ARUN MISHRA, M. R. SHAH AND
                  S. RAVINDRA BHAT, JJ.]
       Penal Code, 1860: s.304 Part I – Appeal by complainant
challenging the impugned order whereby High Court partly allowed
                                                                         C
the appeal of original accused no.1-respondent no.2 and converted
his conviction from s.302 to s.304 Part I – Prosecution case was
that on the fateful day, complainant’s mother made grievance to
respondent no.2 regarding the bad behaviour of his nephew-
accused no.2 – At that time, accused no.3 and 4 were also present
there – All the accused persons started fighting with her – When         D
the accused were asked to go away from there, accused no.2 to 4
exhorted respondent no.2 to fire at her – Respondent no.2 fired
with his country made pistol which resulted in her death – Trial
Court convicted respondent no.2 u/s.302 as the specific role of
firing was attributed to him while other 3 accused were acquitted
                                                                         E
– High Court partly allowed the appeal of respondent no.2 holding
that the case fell under Exception 4 to s.300 and converted
conviction to s.304 Part I on the grounds that it was not a planned
crime; that there was no prior intention; and that it took place in
the heat of passion and in the spur of the moment – Aggrieved
complainant filed instant appeal – Held: None of the persons from        F
the complainant side, including the deceased, was having any
weapon – There was no further grave and sudden provocation by
the deceased which led to the accused to fire on her and, that too,
from a very close range – By the accused firing from a close range,
the accused was supposed to know that it was so imminently
                                                                         G
dangerous that it must, in all probability, cause death or such bodily
injury as was likely to cause death – In the facts and circumstances
of the case, High Court materially erred in applying Exception 4
to s.300 – The judgment passed by trial court convicting
respondent No. 2 u/s.302 is restored.
                                                                         H
                                 185
186            SUPREME COURT REPORTS                     [2019] 17 S.C.R.


A           Allowing the appeal, the Court
            HELD: The material/evidence on record, the deposition
      of the original complainant and the case of the prosecution
      proved that the incident in question took place half an hour after
      there was abusive language used by the cousin of original
B     accused No. 1 with the deceased. The deceased made a
      grievance to accused No. 1-respondent No.2 with respect to the
      abusive language used by accused No.2 (cousin of original
      accused No. 1) and, in that moment, respondent No. 2 started
      abusing. At that time, the deceased and others told them not
      to use abusive words in future and told them to go away.
C     Respondent No. 2 told the deceased and others not to challenge
      him and he said “Do you not know that I have been convicted,
      now I do not have any kind of fear”. Thereafter, respondent
      No. 2 fired from close range. None of the persons from the
      complainant side, including the deceased, was having any
D     weapon. There was no further grave and sudden provocation
      by the deceased which led the accused to fire at the deceased
      and, that too, from a very close range. In the facts and
      circumstances of the case, the High Court has materially erred
      in applying Exception 4 to Section 300 IPC by holding that it
      was not a planned crime and there was no prior intention and it
E     took place in the heat of passion and in the spur of the moment.
      In view of the material/evidence on record, the case fell under
      clause fourthly to Section 300 IPC and, therefore, the Trial Court
      was right in convicting the accused for the offence punishable
      under Section 302 IPC. [Paras 8.1, 8.5, 8.6, 9] [190-C-G; 191-
      D-E]
F
            Bhagwan Munjaji Pawade v. State of Maharashtra
            (1978) 3 SCC 330 – referred to.
                               Case Law Reference

G     (1978) 3 SCC 330                  referred to          Para 8.3
            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No. 1670 of 2019.
            From the Judgment and Order dated 18.12.2015 of the High
      Court of Judicature at Allahabad, Lucknow Bench, Lucknow in Criminal
H     Appeal No. 2517 of 2009.
        AWADHESH KUMAR v. STATE OF U.P. & ANR.                             187


     Shail Kumar Dwivedi, Siddharth Krishna Dwivedi, Ms. Vibha             A
Dwivedi, Ms. Nidhi Dwivedi, Advs. for the Appellant.
      Ratnakar Das, Sr. Adv., Adarsh Upadhyay, Ms. Garima Prashad,
Anukul Raj, Shantanu Krishna, Shashank Shukla, Ms. Nikita Raj,
Shikhre Deep Aggarwal, Advs. for the Respondents.
                                                                           B
      The Judgment of the Court was delivered by
      M. R. SHAH, J.
      1. Leave granted.
      2. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 18.12.2015 passed by the High Court of Judicature at       C
Allahabad at Lucknow Bench in Criminal Appeal No. 2517 of 2009 by
which the High Court has been pleased to allow the appeal preferred
by the original accused partly and has converted the conviction from
Section 302 IPC to Section 304 Part I IPC, the original complainant
has preferred this appeal.                                                 D
       3. Brief facts of the case of the prosecution was that the
complainant Awadesh Kumar lodged an FIR at Police Station Khiri,
District Lakhimpur Kheri on 11.07.2006 at 18:45 hours alleging therein
that on 11.07.2006 at about 5:30 p.m. his mother Smt. Lajjawati was
making complaint to Ravinder Verma (original accused No. 1-                E
respondent No. 2 herein) regarding bad behaviour of his nephew Vishun
Kumar. At that time, Sudhir @ Ramaudh, Rakesh, Vishun Kumar were
also present there. When the mother of the complainant was making
complaint, meanwhile all the above named four persons started
quarrelling with his mother.In the meanwhile, the brother of the
                                                                           F
complainant Anoop Kumar and his father Ram Lakhan also reached
there. Then all the four accused persons were asked by these persons
to go away from there. Feeling annoyed by this conduct of the
complainant side, Vishnu Kumar, Rakesh Kumar and Sudhir @
Ramaudh exhorted Ravinder to fire at the deceased, Ravinder, with his
country-made pistol fired on the complainant’s mother. The complainant     G
along with other persons took his injured mother to police station and
lodged the FIR.
      4. That, initially the case was registered under Section 307, 504,
506/34 IPC, however, subsequently on the death of Smt. Lajjawati on
11.07.2006, the case was converted into one under Section 302 IPC.         H
188            SUPREME COURT REPORTS                         [2019] 17 S.C.R.


A     After investigation, the Investigating Officer filed the charge-sheet
      against all the four named accused persons, including respondent No.
      2 herein. All of them were tried by the learned Court of Sessions for
      the offence punishable under Section 302 IPC. The learned Trial Court
      convicted respondent No. 2 herein (Ravinder) as the specific role of
      fire on the deceased was attributed to him. The learned Trial Court
B
      acquitted the other three accused persons. The Respondent No.2 herein
      (original accused no.1) feeling dissatisfied with the order of conviction
      passed by the learned Trial Court convicting him, preferred Criminal
      Appeal before the High Court. By the impugned judgment and order,
      the High Court has modified the conviction from that of punishable
C     under Section 302 IPC to Section 304 Part I IPC and sentenced him
      to undergo rigorous imprisonment for ten years with a fine of 20,000/
      -. Feeling aggrieved by the impugned judgment and order passed by
      the High Court modifying the conviction from Section 302 IPC to 304
      Part I IPC, the original complainant has preferred the present appeal.
D           5. Learned Advocate on behalf of the appellant - original
      complainant has vehemently submitted that the High Court has
      committed a grave error in modifying the conviction from that of Section
      302 IPC to that of under Section 304 Part I IPC.
            6. It is further submitted by the learned Advocate appearing on
E     behalf of the original complainant that, as such, the accused fired on
      the deceased from a close range, due to which the deceased sustained
      serious injuries and ultimately died and, therefore, the case would fall
      under clause fourthly to Section 300 IPC. It is submitted that, therefore,
      when the case falls under Clause fourthly to Section 300 IPC, the act
      of the accused would be culpable homicide amounting to murder.
F     Learned Advocate appearing on behalf of the original complainant has
      submitted that the High Court has materially erred in holding that the
      offence committed by the accused Ravinder would come within
      Exception 4 to Section 300 IPC by observing that it was not a planned
      crime and there was no prior intention and it took place in the heat of
G     passion on the spur of moment. It is submitted by the learned Advocate
      appearing on behalf of the original complainant that Exception 4 to
      Section 300 IPC would be 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 support of his above
      submission, learned Advocate appearing on behalf of the original
H     complainant has heavily relied upon the decision of this Court in the
        AWADHESH KUMAR v. STATE OF U.P. & ANR.                              189
                   [M. R. SHAH, J.]

case of State of Madhya Pradesh v. Shivshankar (2014) 10 SCC                A
366. It is submitted that, in the present case, there was no blow by the
complainant side of the deceased. The complainant side and the
deceased did not have any weapon. The accused came with a country-
made firearm after there was some altercation/exchange of words by
his cousin with the deceased. It is submitted that therefore the case
                                                                            B
would not fall under Exception 4 to Section 300 IPC. It is submitted
that therefore the High Court has materially erred in converting the
conviction from the offence punishable under Section 302 IPC to that
of Section 304 Part I IPC.
       7. Learned Advocate appearing on behalf of the original accused
No. 1 – respondent No. 2 herein has made strenuous efforts to support       C
the impugned judgment and order passed by the High Court ultimately
convicting the accused for the offence under Section 304 Part I IPC.
It is submitted by the learned Advocate appearing on behalf of
respondent No. 2 – original accused No. 1 that the High Court has
rightly observed that it was not a planned crime and there was no prior     D
intention and it took place in the heat of passion on the spur of moment.
It is submitted by the learned Advocate appearing on behalf of
respondent No. 2 that therefore the High Court has rightly observed
that Exception 4 to Section 300 IPC would be attracted and, therefore,
the High Court has rightly converted the conviction from that of Section
302 IPC to that of Section 304 Part I IPC.                                  E
       7.1 Learned Advocate appearing on behalf of respondent No. 2
has taken us through the finding recorded by the learned Trial Court
while acquitting the other three accused and has submitted that while
acquitting the other three accused persons, the learned Trial Court has
clearly observed that there was no prior intention to commit the murder     F
with pre-planning and rather the incident took place all of a sudden,
when Lajjawati went to complain to Ravinder. It is submitted that the
finding recorded by the learned Trial Court has gone unchallenged. It
is submitted that, therefore, the case would fall under Exception 4 to
Section 300 IPC and therefore also the High Court has rightly converted
the conviction for the offence punishable under Section 302 IPC to that     G
of Section 304 Part I IPC.
       8. We have heard the learned counsel appearing for the
respective parties at length. We have also gone through and considered
the findings recorded by the learned Trial Court as well as the High
Court.                                                                      H
190             SUPREME COURT REPORTS                         [2019] 17 S.C.R.


A           8.1 At the outset, it is required to be noted that the learned Trial
      Court convicted respondent No. 2 herein – original accused No. 1 for
      the offence punishable under Section 302 IPC. By the impugned
      judgment and order, the High Court converted the conviction for the
      offence punishable under Section 302 IPC to that of Section 304 Part
      I IPC on the grounds that:
B
                  (i) it was not a planned crime;
                  (ii) there was no prior intention; and
                 (iii) it took place in the heat of passion on the spur of
                       moment.
C
             Therefore, as per the High Court, the case would fall under
      Exception 4 to Section 300 IPC. However, considering the material/
      evidence on record and considering the deposition of the original
      complainant and considering the case of the prosecution proved, the
      incident in question that took place half an hour after there was abusive
D     language used by the cousin of original accused No. 1 – Ravinder with
      the deceased. That, thereafter, respondent No. 2 herein – original
      accused No. 1 came with others with a country-made firearm and at
      that time the deceased made a grievance with respect to the abusive
      language used by Vishun Kumar (cousin of original accused No. 1) and,
      at that time, respondent No. 2 – original accused No. 1 started abusing.
E     At that time, the deceased and others told them not to use abusive
      words in future and told them to go away. At that time, respondent
      No. 2 – original accused No. 1 told the deceased and others not to
      challenge him and he told that “Do you not know that I have been
      convicted, now I do not have any kind of fear”. Thereafter, Ravinder
F     – respondent No. 2 – original accused No. 1 fired from the close range.
      None of the persons from the complainant side, including the deceased,
      was having any weapon. There was no further grave and sudden
      provocation by the deceased which led to the accused to fire on the
      deceased and, that too, from a very close range.

G            8.2 As observed by this Court in the case of Shivshankar (supra),
      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. It is further observed and held that
      Exception 4 to Section 300 IPC is attracted only when there is a fight
      or quarrel which requires mutual provocation and blows by both sides
H     in which the offender does not take undue advantage.
         AWADHESH KUMAR v. STATE OF U.P. & ANR.                              191
                    [M. R. SHAH, J.]

      8.3 In the case of Bhagwan Munjaji Pawade v. State of                  A
Maharashtra (1978) 3 SCC 330, in paragraph 6, this Court has
observed and held as under:
      “6............. It is true that some of 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           B
      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
                                                                             C
      formidable weapon on the unarmed victim. Appellant is therefore,
      not entitled to the benefit of Exception 4, either.”
      8.4 The above observations fully support the view that the present
case falls under Section 302 IPC.
       8.5 Therefore, in the facts and circumstances of the case, the        D
High Court has materially erred in applying Exception 4 to Section 300
IPC by holding that it was not a planned crime and there was no prior
intention and it took place in the heat of passion on the spur of moment.
      8.6 Considering the material/evidence on record discussed
hereinabove, we are of the firm opinion that the case falls under Clause     E
fourthly to Section 300 IPC and, therefore, the Trial Court was right in
convicting the accused for the offence punishable under Section 302
IPC, more particularly, when the accused fired from a country-made
firearm on the deceased from a close range. By the accused firing
from a close range, the accused was supposed to know that it is so
                                                                             F
imminently dangerous that it must, in all probability, cause death or such
bodily injury as is likely to cause death.
       9. Now, so far as the submission on behalf of the accused relying
upon some of the observations made by the Trial Court while acquitting
the other three accused is concerned, it is required to be noted that
those observations were made by the learned Trial Court while                G
considering the common intention of the other accused and therefore
benefit of such observations would not be available to original accused
No. 1 when it has come on record and it has been proved that it was
the original accused No. 1 who fired at the deceased and, that too, from
a very close range.                                                          H
192              SUPREME COURT REPORTS                     [2019] 17 S.C.R.


A           10. In view of the above and for the reasons stated above, the
      present appeal succeeds. The impugned judgment and order passed
      by the High Court modifying the conviction for the offence punishable
      under Section 302 IPC to that of Section 304 Part I IPC is hereby
      quashed and set aside. The judgment passed by the learned Trial Court
      convicting the respondent No. 2 – original accused No. 1 for the offence
B
      punishable under Section 302 IPC is hereby restored. Now, respondent
      No. 2 – original accused No. 1 to surrender before the concerned Court
      to undergo the sentence as imposed by the learned Trial Court, within
      a period of three months from today.

C
      Devika Gujral                                              Appeal allowed.




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