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 in which the offender does not take undue advantage.
Therefore, 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 took place in the heat of passion on the spur of moment. Considering the material/evidence on record discussed hereinabove,
we are of the firm opinion that the case falls underClause fourthly to Section 300 IPC and, therefore, the Trial Court was right in convicting the accused for the offence punishableunder Section 302 IPC, more particularly, when the accused fired from a countrymade 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 imminently dangerous that itmust, in all probability, cause death or such bodily injury as is likely to cause death.
1
REPORTABLE
IN THE SUPREME COUR OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1670 OF 2019
[Arising out of SLP (Crl.) No. 1299 of 2016]
Awadhesh Kumar .. Appellant
Versus
State of U.P. & Anr. .. Respondents
J U D G M E N T
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 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.
2
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 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
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 countrymade pistol fired on the
complainant’s mother. The complainant 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.
3
Lajjawati on 11.07.2006, the case was converted into one under
Section 302 IPC. After investigation, the Investigating Officer filed
the chargesheet 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 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 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.
4
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
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. 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 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
5
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
complainant has heavily relied upon the decision of this Court in
the case of State of Madhya Pradesh v. Shivshankar (2014) 10
SCC 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 countrymade firearm after there was some
altercation/exchange of words by his cousin with the deceased.
It is submitted that therefore the case 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 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
6
accused No. 1 that the High Court has rightly observed 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. 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.
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 with preplanning 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
7
rightly converted the conviction for the offence punishable under
Section 302 IPC to that 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.
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:
(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.
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 language used by the cousin of
8
original accused No. 1 – Ravinder with the deceased. That,
thereafter, respondent No. 2 herein – original accused No. 1 came
with others with a countrymade 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. 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 – 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.
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
9
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 in which the
offender does not take undue advantage.
8.3 In the case of Bhagwan Munjaji Pawade v. State of
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 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.”
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
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.
10
8.6 Considering the material/evidence on record discussed
hereinabove, we are of the firm opinion that the case falls 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, more particularly, when the accused fired
from a countrymade 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 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 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.
10. In view of the above and for the reasons stated above, the
present appeal succeeds. The impugned judgment and order
11
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 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.
........................................J.
(ARUN MISHRA)
........................................J.
(M. R. SHAH)
........................................J.
(S. RAVINDRA BHAT)
New Delhi,
November 08, 2019.
Therefore, 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 took place in the heat of passion on the spur of moment. Considering the material/evidence on record discussed hereinabove,
we are of the firm opinion that the case falls underClause fourthly to Section 300 IPC and, therefore, the Trial Court was right in convicting the accused for the offence punishableunder Section 302 IPC, more particularly, when the accused fired from a countrymade 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 imminently dangerous that itmust, in all probability, cause death or such bodily injury as is likely to cause death.
1
REPORTABLE
IN THE SUPREME COUR OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1670 OF 2019
[Arising out of SLP (Crl.) No. 1299 of 2016]
Awadhesh Kumar .. Appellant
Versus
State of U.P. & Anr. .. Respondents
J U D G M E N T
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 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.
2
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 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
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 countrymade pistol fired on the
complainant’s mother. The complainant 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.
3
Lajjawati on 11.07.2006, the case was converted into one under
Section 302 IPC. After investigation, the Investigating Officer filed
the chargesheet 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 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 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.
4
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
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. 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 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
5
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
complainant has heavily relied upon the decision of this Court in
the case of State of Madhya Pradesh v. Shivshankar (2014) 10
SCC 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 countrymade firearm after there was some
altercation/exchange of words by his cousin with the deceased.
It is submitted that therefore the case 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 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
6
accused No. 1 that the High Court has rightly observed 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. 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.
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 with preplanning 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
7
rightly converted the conviction for the offence punishable under
Section 302 IPC to that 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.
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:
(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.
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 language used by the cousin of
8
original accused No. 1 – Ravinder with the deceased. That,
thereafter, respondent No. 2 herein – original accused No. 1 came
with others with a countrymade 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. 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 – 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.
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
9
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 in which the
offender does not take undue advantage.
8.3 In the case of Bhagwan Munjaji Pawade v. State of
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 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.”
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
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.
10
8.6 Considering the material/evidence on record discussed
hereinabove, we are of the firm opinion that the case falls 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, more particularly, when the accused fired
from a countrymade 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 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 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.
10. In view of the above and for the reasons stated above, the
present appeal succeeds. The impugned judgment and order
11
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 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.
........................................J.
(ARUN MISHRA)
........................................J.
(M. R. SHAH)
........................................J.
(S. RAVINDRA BHAT)
New Delhi,
November 08, 2019.
