The High Court committed a serious error in converting the conviction of the Respondent from under Section 302 IPC to under Section 304 Part I IPC, without proper appreciation of the scope of Section 300 IPC.


Hon’ble Mr. Justice L. Nageswara Rao

Non-Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No. 1842 of 2012
THE STATE OF UTTAR PRADESH

…. Appellant(s)
Versus
FAQUIREY
….Respondent(s)
J U D G M E N T
L. NAGESWARA RAO, J.

  1. The Respondent was convicted under Section 302 of
    the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’)
    and sentenced to undergo life imprisonment by the Trial
    Court. The High Court converted the conviction to an
    offence under Section 304 Part I, IPC and sentenced the
    Respondent to 10 years rigorous imprisonment. Aggrieved
    thereby, the State of Uttar Pradesh is in appeal before us.
  2. PW-1, Bahadur lodged an FIR on 22.03.2000 in which it
    was stated that a Panchayat was held at the residence of
    one Kanhai, at noon on 22.03.2000. There was a dispute
    between his nephew Nokhey and the Respondent. During
    the course of the Panchayat, Rakesh, son of the complainant
    arrived at 3.30 p.m. from his agricultural field. The
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    Respondent saw Rakesh and stated that he will kill him prior
    to the settlement of the dispute before the Panchayat as
    Rakesh had an evil eye on his wife and was visiting his
    house. Santosh, the younger brother of the Respondent
    also arrived at the spot and exhorted the Respondent to kill
    Rakesh. When Rakesh tried to run to save himself, the
    Respondent took out a pistol and fired at Rakesh. Rakesh
    succumbed to the fire arm injury. The inquest was
    conducted on the next day i.e. 23.03.2000 and the dead
    body of the deceased Rakesh was sent for post-mortem
    examination. As per the post mortem certificate (Ex.Ka.11),
    the following injuries were found on the deceased:
    “Gunshot wound of entry on right side back level of T/10
    and T/11, 2 cm lateral to spine size 2 x 2 cm x chest
    cavity. Blackening, tattooing present, margins inverted.
    Direction backward to forward.
    On the internal examination Doctor recovered 33 small
    metallic pallets and wadding pieces from the chest
    cavity lower part. The 10th and 12th thoracic vertebra
    found fractured on right side. 10th and 12th ribs were
    found fractured on right side. Bluera was lacerated.
    Right lung was lacerated. 1.2 lt. blood was found in
    chest cavity. Right chamber of the heart was full and left
    empty. The stomach was empty. Small intestine
    contained gases. Large intestine contained faucal
    matter and gases. Spleen, kidney were pale. 50 ml.
    Urine was present in bladder. In the opinion of the
    Doctor deceased had died due to shock and hemorrhage
    as a result of ante mortem injuries. He had prepared
    the post mortem report in his own hand writing at the
    time of post mortem examination which is Ex.Ka.11 on
    the record.”
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  3. A charge under Section 302 IPC was framed against
    the Respondent and Santosh was charged under Section
    302 read with 34 IPC. After a detailed consideration of the
    material on record including the oral testimonies of PW-1
    and PW-2 who were the eye witnesses, the Trial Court held
    that the Respondent had fired at the deceased from his
    pistol as he had a doubt that the deceased was visiting his
    house with an evil eye on his wife. While the Trial Court
    acquitted Santosh, the Respondent was convicted under
    Section 302 IPC and sentenced to undergo life imprisonment
    and pay a fine of Rs.5,000/-.
  4. In the appeal filed by the Respondent, against the
    conviction and sentence, there was no contest on merits.
    The only submission made on behalf of the Respondent was
    that he could not have been convicted under Section 302
    IPC. According to the Appellant, his conviction should have
    been under Section 304 IPC as the case is covered under
    Exception I to Section 300 IPC. The High Court observed
    that the intervention of the deceased in the quarrel between
    the two factions led to the Respondent losing his self
    control. The High Court was of the opinion that this resulted
    in grave and sudden provocation. Observing so, the High
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    Court converted the conviction of the Respondent from
    Section 302 IPC to Section 304 Part I IPC. The Respondent
    was sentenced to suffer rigorous imprisonment for 10 years.
  5. Mr. V. Shekhar, learned Senior Counsel appearing for
    the Appellant submitted that the High Court committed an
    error in converting the conviction of the Respondent from
    under Section 302 IPC to Section 304 Part I, IPC. He further
    submitted that the case of the defence that Exception I to
    Section 300 IPC is applicable is not correct. The Respondent
    was enraged at the sight of the deceased in view of the
    doubt he had in his mind about the deceased having an evil
    eye on his wife. The learned Senior Counsel relied upon the
    First Proviso to Exception I of Section 300 IPC to submit that
    the accused is not entitled to claim that the crime was
    committed due to grave and sudden provocation. Mr. D. K.
    Garg, learned counsel appearing for the Respondent
    submitted that the judgment of the High Court does not
    deserve any interference as the High Court was right in
    recording a finding that the Respondent lost his self control
    due to grave and sudden provocation which resulted in his
    shooting the deceased. He further submitted that the
    incident occurred almost 18 years ago and the Respondent
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    has undergone the sentence of 10 years which is an
    additional reason for us not to reverse the judgment of the
    High Court.
  6. After examining the matter carefully, we are of the
    opinion that the judgment of the High Court is liable to be
    set aside and the judgment of the Trial Court to be restored.
    There is no dispute that the shot fired from the pistol by the
    Respondent is due to the grudge that he had against the
    deceased. Immediately after the deceased arrived at the
    place of incident, the Respondent’s attention was diverted
    from the dispute that was being settled in the Panchayat.
    He turned to the deceased and shot him in view of his past
    conduct relating to the visit of the deceased to his house to
    become close with his wife.
  7. According to Exception I to Section 300 IPC, culpable
    homicide is not murder if the offender causes the death of
    the person who gave the provocation, whilst deprived of the
    power of self-control by grave and sudden provocation. It
    would be relevant to refer to the First Proviso to Exception I
    which provides that the provocation should be one which is
    not sought or voluntarily provoked by the offender as an
    excuse for killing or doing harm to any person. No overt
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    act is alleged against the deceased by which it can be
    stated that the Respondent was provoked. From the proved
    facts of this case it appears that the provocation was
    voluntary on the part of the offender. Such provocation
    cannot come to the rescue of the Respondent to claim that
    he is not liable to be convicted under Section 302 IPC.
  8. The High Court committed a serious error in converting
    the conviction of the Respondent from under Section 302
    IPC to under Section 304 Part I IPC, without proper
    appreciation of the scope of Section 300 IPC. There was no
    submission made on behalf of the Respondent before the
    High Court on the merits of the matter. If the offence
    committed by the Respondent is murder, he has to undergo
    the imprisonment provided under Section 302 IPC. Though
    the Respondent has undergone imprisonment for a period of
    10 years, we are of the opinion that the Respondent is liable
    to go back to jail to undergo the remaining sentence on
    being sentenced to life imprisonment.
  9. For the aforementioned reasons, the judgment of the
    High Court is set aside and the judgment of the Trial Court
    convicting the Respondent under Section 302 IPC and
    sentencing him to life imprisonment is restored. The
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    Respondent is directed to surrender within a period of four
    weeks to serve the remaining sentence.
  10. Accordingly, the appeal is allowed. ……………………………..J
    [L. NAGESWARA RAO]
    ..…………………………..J
    [SANJAY KISHAN KAUL]

New Delhi,
February 11, 2019
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