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Monday, January 22, 2018

whether this action of the accused which caused the death of Hitesh would amount to murder or culpable homicide not amounting to murder.- whether the appellant is right in his persuasive argument to restore and revive the decision of the Trial Court on the quantum of sentence. The Trial Court awarded the sentence of rigorous imprisonment for five years only for offence under Section 304 Part-II of IPC and fine of Rs.10,000/- and in 15 default, to undergo rigorous imprisonment for a further period of one year. For that no special reason has been recorded by the Trial Court. Considering the nature of offence and the trivial reason for which the appellant got enraged and assaulted Hitesh Thakur, that too by a knife and also gave multiple blows, does not warrant a light punishment. We would, however, accept the argument of the respondents that in the fact situation of the present case, the sentence period should not be less than 10 years imprisonment with fine. That would meet the ends of justice. The appellant is held guilty for an offence punishable under Section 304 Part-II of IPC and is sentenced to undergo rigorous imprisonment for a period of 10 (Ten) years with fine of Rs.10,000/- (Rupees Ten Thousand), in default to undergo further imprisonment for one year. = ATUL THAKUR … APPELLANT(S) :Versus: STATE OF HIMACHAL PRADESH ETC. ETC. …. RESPONDENT(S)

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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 522-523 OF 2016
ATUL THAKUR … APPELLANT(S)
:Versus:
STATE OF HIMACHAL PRADESH
ETC. ETC. …. RESPONDENT(S)
J U D G M E N T
A.M. Khanwilkar, J.
1. These appeals have been filed against the judgment and order
dated 1st April, 2016 passed by the High Court of Himachal
Pradesh, Shimla in Criminal Appeal Nos.75 & 227 of 2015,
modifying the order of conviction and sentence passed by the
Sessions Judge (Forests), Shimla, dated 31st December, 2014 in
Sessions Trial No.39-S/7 of 2012 thereby convicting the appellant
under Section 302 of the Indian Penal Code (IPC) and sentencing
him to imprisonment for life along with fine.
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2. Shorn of details, the appellant along with three others were
tried for offence punishable under Sections 302, 201 read with
Section 34 of IPC by the Sessions Judge (Forests), Shimla. The case
of the prosecution is that a telephone message was received at
Police Station, West Shimla at around 4.45 A.M. on 28.07.2011,
informing that a quarrel had taken place near Tunnel 103, from
where one Hunny was brought to IGMC Hospital (Shimla) in
seriously injured condition. On reaching the hospital, the SHO
Shakuntala Sharma was informed that the injured had succumbed
to the injuries. She then recorded the statement of Rajinder Singh
under Section 154 of the Code of Criminal Procedure. In his
statement, Rajinder Singh disclosed that he had two children. His
daughter Pooja was doing computer course and his younger son
Hitesh Thakur, 22 years of age, was also doing computer course
from Lakhar Bazar. He stated that Hitesh had left home on
27.07.2011 after taking meal, on his motorcycle bearing registration
No.HP-63-3235, for attending computer course. He had then
informed his sister Pooja on her mobile that he was going with his
friend Akhilesh and would not be returning during the night. He
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requested his sister to inform their mother. At about 3 a.m. on
28.07.2011 one Atul Thakur (appellant herein) telephonically
informed him that his son Hitesh was brought to IGMC Hospital,
Shimla as he was not feeling well and asked him to come to the
hospital. On receiving that telephonic information he rushed to the
hospital and found that his son was lying dead in wounded
condition. At that time, the appellant was also present there.
3. After recording the statement, investigation proceeded and
four accused, who had visited the house of Mukesh Thakur
(Accused No.2) where a drink party was arranged during the night
of 27.07.2011 and 28.07.2011, were sent for trial for the stated
offence. The Trial Court after analysing the evidence acquitted the
other three accused but found the appellant guilty of the offence
punishable under Section 304, Part-II and sentenced him to
rigorous imprisonment for five years and to pay fine of Rs.10,000/-,
in default to undergo further imprisonment for one year vide
judgment dated 31st December, 2014.
4. Against the said decision, the appellant filed an appeal before
the High Court, being criminal Appeal No.75 of 2015. The
complainant also filed an appeal before the High Court, being
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Criminal Appeal No.227 of 2015 against the acquittal of three
accused as well as for enhancement of sentence of the appellant.
Both the appeals came to be disposed of by common judgment
dated 1st April, 2016. The High Court upheld the finding of fact
regarding the involvement of the appellant in the commission of
crime. However, it reversed the finding and conclusion recorded by
the Trial Court regarding the nature of offence. It concluded that
taking an overall view of the matter, the appellant was guilty of
offence punishable under Section 302 of IPC for the murder of
Hitesh Thakur and not under Section 304 Part-II, as held by the
Trial Court. At the same time, the High Court affirmed the order of
acquittal in favour of the other accused who were tried along with
the appellant. In the present appeals, the aforementioned decision
of the High Court has been assailed only by the original accused
No.1.
5. Mr. Aditya Dhawan, learned counsel appearing for the
appellant, made a fervent effort to persuade this Court that there is
an obvious contradiction between the evidence of the eye-witnesses
which should enure to the benefit of the appellant. According to
him, the appellant deserves to be acquitted as in the case of
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co-accused, as the genesis of the offence is doubtful. Further, the
involvement of the appellant in the commission of crime has not
been proved beyond reasonable doubt. He took us through the
evidence of the prosecution witnesses and also of the defence
witness (DW1) who was examined at the instance of the appellant.
He submits that in any case, the fact situation established by the
prosecution, even if taken as it is, does not warrant a finding of
commission of offence of murder of Hitesh Thakur. At best it is a
case of culpable homicide not amounting to murder, covered by the
Exception under Section 300 of IPC and, thus, punishable under
second part of Section 304 of IPC. The Trial Court had justly
invoked that offence and sentenced the appellant to undergo five
years rigorous imprisonment which the appellant has already
undergone. He, therefore, submits that this appeal be allowed and
the appellant be set free by reviving the order of the Sessions Court
and setting aside the impugned judgment and order of the High
Court. He submits that the appellant has already undergone
sentence for a period of 7 years 3 months 24 days as on 24th
November, 2017 including remission period of one year 2 months
and 6 days.
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6. Learned counsel for the respondents, however, has opposed
these appeals. According to the respondents, the finding of guilt
recorded by the two Courts below is supported by the evidence on
record which has established the involvement of the appellant in
the commission of crime beyond doubt. The finding of guilt so
recorded by the Trial Court and affirmed by the High Court does not
warrant any interference. Similarly, the finding recorded by the
High Court reversing the opinion of the Trial Court to convict the
appellant under Section 302 of IPC is also unexceptionable. The
High Court justly noted that it was a case of murder of Hitesh
Thakur which is punishable under Section 302 of IPC and not
under Section 304 Part-II, in which case the appellant will have to
suffer the sentence period of life imprisonment. The respondents
would submit that the appeals are devoid of merit and ought to be
dismissed.
7. We have carefully considered the oral evidence adduced by the
prosecution, in particular the evidence of PW-11 and PW-12 who
were the eye-witnesses to the incident during which Hitesh Thakur
was assaulted by the appellant with knife causing serious bodily
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injuries to which he finally succumbed. In addition to the said oral
evidence, the other circumstances also point towards the complicity
of the appellant in the commission of crime such as recovery of the
knife at his instance and the nature of injuries suffered by the
deceased attributable to the assault by the same knife by the
appellant. We find that the Trial Court has justly analysed the
evidence to record a finding about the complicity of the appellant in
the commission of crime. That has been affirmed by the High Court
after reappreciation of the relevant evidence. We are in agreement
with the view so taken by the two Courts below. In other words, we
are inclined to uphold the concurrent finding recorded by the
Courts below that the appellant caused six injuries to deceased
Hitesh Thakur by attacking him with a knife on the night of
27.07.2011 in the presence of their friends (including PW-11 and
PW-12) who had gathered at the house of Mukesh Thakur for
celebrating a drink party arranged at the behest of Hitesh Thakur.
Further, Hitesh Thakur succumbed to the injuries caused by the
appellant. Thus, it is a case of homicidal death.
8. Notably, the evidence on record plainly establishes that a
sudden fight took place between the appellant and Hitesh Thakur
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and in the heat of passion, the appellant assaulted Hitesh Thakur
causing serious bodily injuries. There is no shred of evidence, much
less even a remote suggestion that the appellant had assaulted
Hitesh Thakur with an intention to cause his death. Though the
High Court found the appellant guilty, it has not held that the
bodily injuries caused by the appellant were with an intention to
cause the death of Hitesh Thakur. The High Court overturned the
finding recorded by the Trial Court regarding the nature of offence,
principally on the ground that the appellant gave repeated knife
blows to Hitesh Thakur and Hitesh Thakur could not defend
himself as he was unarmed. Thus, the appellant was found guilty of
offence punishable under Section 302 of IPC.

9. In other words, the controversy in these appeals boils down to
the nature of offence and the sentence to be awarded in that behalf.
As aforesaid, the evidence on record, as held by two Courts below
and with which finding we are in full agreement, is that the
appellant gave six knife blows to Hitesh Thakur on the fateful night
to which he succumbed. Thus, it is a case of homicidal death.
However, there is no evidence that the injuries inflicted by the
appellant were with an intention to cause the murder of Hitesh
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Thakur. On the other hand, the evidence clearly establishes that
the appellant assaulted Hitesh Thakur without any premeditation.
The whole incident took place suddenly and, in the heat of passion
a sudden quarrel started as Hitesh Thakur, while smoking, blew
smoke on the face of the appellant. Resultantly, the appellant got
enraged. He told him that he was senior in age and thus should not
smoke in his presence much less blow the smoke towards him.
Then a sudden physical fight started between them, in which the
appellant, in heat of passion, gave six knife blows to Hitesh Thakur
on different parts of his body.
10. The evidence of PW-11 and PW-12 (eye-witnesses) would
establish that the appellant and others including deceased Hitesh
Thakur had gathered at the spot for a drink party arranged at the
instance of Hitesh Thakur. They had consumed drinks when the
incident took place. Soon after assaulting Hitesh Thakur by knife,
when the appellant realised that Hitesh has been badly injured, he
offered him water and took him to the hospital along with his other
friends. He was in the hospital till Hitesh Thakur succumbed to the
injuries. He had also informed the father of Hitesh on telephone and
called him to the hospital. Further, when Hitesh was taken to the
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hospital, the doctors did not provide him immediate treatment but
insisted on calling his father. This can be culled out from the
evidence of PW-11 and PW-12, who were eye-witnesses and also
present throughout and until the last rites of Hitesh Thakur were
performed.
11. Taking into account the events as unfolded, it leaves no
manner of doubt that the appellant had no intention to cause the
death of Hitesh Thakur. The incident happened without any
premeditation in a sudden fight between Hitesh Thakur and the
appellant and in heat of passion the appellant inflicted six knife
blows on Hitesh Thakur. On the contrary, after realising his
mistake, he immediately offered water to Hitesh Thakur and also
took him to hospital and stayed there till his last rites were
performed. PW-2 father of deceased Hitesh Thakur also
corroborates the position that the appellant had contacted him to
inform that Hitesh had been brought to the hospital in serious
condition.
12. Taking overall view of the matter, the facts of the present case
warrant invocation of Exception 4 to Section 300 of IPC. For, it is a
case of culpable homicide not amounting to murder inasmuch as
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the incident happened on account of sudden fight between the
friends who had gathered for a drink party arranged at the behest
of Hitesh Thakur. There was no pre-mediation and the act done by
the appellant was in the heat of passion without the appellant
taking any undue advantage or acted in a cruel manner. The
number of wounds caused by the appellant, it is a well established
position, by itself cannot be a decisive factor. The High Court
committed manifest error in being influenced by the said fact. What
is relevant is that the occurrence was sudden and not premeditated
and the offender acted in the heat of passion. The evidence
supports the case of the appellant in this behalf. The fact that the
appellant used weapon such as knife, is also not a decisive factor to
attract Section 302 of IPC. Neither the use of a knife in the
commission of offence nor the factum of multiple injuries given by
the appellant would deny the appellant of the benefit of
Exception 4.
13. Dealing with a somewhat similar situation, in the case of
Surain Singh Vs. State of Punjab 1
, this Court has restated the
settled legal position about the purport of Exception 4 to Section
1
(2017) 5 SCC 796
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300 of IPC. Even in that case, the accused had repeatedly
assaulted the deceased with a Kirpan and caused injuries resulting
into death. After restating the legal position, the Court converted
the offence to one under Section 304 Part-II instead of Section 302
IPC. Following the same legal principle and keeping in mind the
factual position as unfolded, the view taken by the Trial Court of
convicting the appellant for offence punishable under Section 304
Part-II, is unexceptionable. The Trial Court had observed thus:
“60. The evidence placed on record by the
prosecution, reveals that deceased Hitesh and the
accused were having cordial relations since long,
knowing to each other and were good friends. A
party was organized by the deceased in the room of
accused Mukesh and deceased himself invited all the
accused to attend the party. In this party, large
quantity of alcohol was consumed by them and
suddenly an altercation took place between
deceased Hitesh and accused Atul Thakur as a
result of which accused Atul stabbed Hitesh, which
resulted into his death……
61. There is no doubt that Hitesh met a homicidal
death on the night intervening 27/28.07/2011 at
IGMC, Shimla consequent to stab injury inflicted by
accused Atul Thakur. The queston which arises for
consideration is whether this action of the accused
which caused the death of Hitesh would amount to
murder or culpable homicide not amounting to
murder. It is an admitted fact that there was no
enmity between the deceased and this accused
rather they were having cordial relations. The fact
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that there was a physical fight between the
deceased and the accused Atul, cannot be denied
because it has come in the evidence of PW-11
Himanshu, PW-12 Manoj Bansal and PW-1 Ashutosh
that a physical fight has taken place between them.
In these circumstances, this Court will have to
examine the prosecution evidence whether the
accused Atul had taken an undue advantage or
acted in a cruel or inimical manner so as to deprive
him of the benefit of exception 4 of Section 300. In
fact, the prosecution could not prove any motive for
killing the deceased by the accused. The drinking
session in the room of the accused Mukesh Thakur
was by mutual consent. From these circumstances,
it can be held that the incident in question took place
in a sudden fight in the heat of possession. The next
question which arises for consideration is whether
the accused Atul did take an undue advantage of the
said fight or acted in a cruel or inimical manner.
Keeping in view the fact that both the deceased and
accused had consumed considerable amount of
alcohol which is established from the evidence of the
prosecution witnesses, it cannot be altogether ruled
out that the stab injuries inflicted were not with an
intention of taking undue advantage by the accused
Atul. It is probable that in an inebriated condition
the accused inflicted the injuries because of the
physical fight between them. Moreover, keeping in
view the nature of the injuries noticed by Dr.
Sandeep Kaushik in the MLC Ext. PW-18/A, it is
difficult to accept the accused Atul Thakur intended
to cause the death of Hitesh or that the injuries were
so dangerous that they would in all probability,
cause death. Nevertheless, the injuries were quite
serious, the accused can surely by credited with the
knowledge that if an injury is caused with a knife on
the chest or abdomen of a person then this act is
likely to cause the death of the victim.
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62. Having considered the material on record this
Court is of the opinion that the accused Atul Thakur
can only be found guilty of an offence punishable
under Section 304 Part II, Indian Penal Code.”
14. As aforesaid, the High Court overturned this finding of the
Trial Court on the question of nature of offence, by mainly
observing that the appellant had caused repeated blows with a
weapon like knife, causing six serious injuries to Hitesh Thakur to
which he succumbed. We are of the opinion that neither the factum
of use of knife by the appellant during the assault nor the multiple
blows (six) given by the appellant can be the sole basis to deny the
appellant of the benefit available under Exception 4 to Section 300
of IPC. The Court is obliged to take an overall view of the matter on
the basis of the established facts. This principle is restated in
Surain Singh’s case (supra).
15. The next question is whether the appellant is right in his
persuasive argument to restore and revive the decision of the Trial
Court on the quantum of sentence. The Trial Court awarded the
sentence of rigorous imprisonment for five years only for offence
under Section 304 Part-II of IPC and fine of Rs.10,000/- and in
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default, to undergo rigorous imprisonment for a further period of
one year. For that no special reason has been recorded by the Trial
Court. Considering the nature of offence and the trivial reason for
which the appellant got enraged and assaulted Hitesh Thakur, that
too by a knife and also gave multiple blows, does not warrant a light
punishment. We would, however, accept the argument of the
respondents that in the fact situation of the present case, the
sentence period should not be less than 10 years imprisonment
with fine. That would meet the ends of justice.
16. Accordingly, we partly allow these Criminal Appeal Nos.75 and
227 of 2015 filed by original accused No.1 Atul Thakur. We modify
the impugned judgment of the High Court against the appellant in
respect of nature of offence and instead restore the order of the
Trial Court in that behalf. The appellant is held guilty for an offence
punishable under Section 304 Part-II of IPC and is sentenced to
undergo rigorous imprisonment for a period of 10 (Ten) years with
fine of Rs.10,000/- (Rupees Ten Thousand), in default to undergo
further imprisonment for one year. Needless to mention that the
appellant shall be entitled to set off under Section 428 of the Code
of Criminal Procedure.
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17. These appeals are disposed of in the aforementioned terms.
…………………………….CJI.
 (Dipak Misra)
…………………………..….J.
 (A.M. Khanwilkar)
…………………………..….J.
 (Dr. D.Y. Chandrachud)
New Delhi;
January 19, 2018.

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