AJITSINGH versus STATE OF PUNJAB

2. On a plain reading of Sections 299, 300, 302 and 304 of the Indian Penal Code, it appears that a given case can be conveniently classified into two categories viz. culpable homicide amounting to murder which is 302 l.P.C. or culpable homicide not amounting to murder which is 304 l.P .C. But when it comes to the actual application of these two sections in a given case, the courts are often confronted with a dilemma as to whether a case would fall under Section 302 l.P.C. or would fall under Section 304 l.P.C. Many a times, this gives rise to conflicting decisions of one court or the other giving rise to the A popular perception among litigants and members of the Bar that a particular court is an acquitting court or is a convicting one. This confusion or dilemma often emerges in a case when the question for consideration is whether a given case would fall under Section 302 l.P.C. or 304 1.P.C. when it is difficult to B decipher from the evidence whether the intention was to cause merely bodily injury which would not make out an offence of murder or there was clear intention to kill the victim making out a clear case of an offence of murder.

3. In the instant appeal by special leave, once again the C aforesaid situation arises which has been preferred against the judgment and order dated 11.3.2008 passed by the Division Bench of the High Court of Punjab and Haryana in Criminal Appeal No.300-DB of 1999 whereby the High Court-had been pleased to dismiss the appeal and thus upheld the order of the D Additional Sessions Judge, Hoshiarpur convicting the appellant-Ajit Singh for offence under Section 302, l.P.C. sentencing him to undergo rigorous imprisonment for life as also to pay a fine of Rs.2,000/- in default of which he.is to undergo further imprisonment for six months. However, the High E Court while upholding the conviction and sentence of the appellant herein under Section 302 l.P.C., was pleased to acquit the co-accused-Anil Kumar of the charge and conviction under Section 302/34 1.P.C.

4. The prosecution case recorded in the First Information Report which led to the conviction of the appellant-Ajit Singh was lodged on 22.10.1996 on the basis of the complaint made by Jagdish Kumar, PW-6 who stated that he was running a private middle school in village Terkiana and on the date of the G incident he was not feeling well due to stomach upset and hence had come home early at about 12.30 noon. He (PW-6) further stated that he had gone to attend the call of nature towards the field of the accusedappellant Ajit Singh who had planted Kinnu plants in his field. One Laxmi Devi (the deceased) H and her son Rajiv @ Raju (PW- 7) along with Nirmal Kaur were cutting fodder in the field of the appellant-Ajit Singh where Ajit Singh and his servant Anil Kumar were also working. According to the informant PW-6, the appellant was having an altercation with the deceased Laxmi Devi as the appellant complained that she had caused damage to his field which the PW-6 heard while he was proceeding towards the field.

Soon the appellant and the deceased started abusing e~ch other due to which the appellant got enraged and asked his servant Anil Kumar to bring Kassi (spade) to finish them once for all. At this Anil Kumar brought the Kassi (spade) with which he was digging the plants. But the deceased Laxmi Devi continued hurling abuses. The appellant-Ajit Singh is then alleged to have taken the Kassi from Anil Kumar and asked him to catch hold of her so that he may do away with her life. The deceased was given a push due to which she fell down on the ground in a straight posture and Anil Kumar caught her by her arms. Ajit Singh is then alleged to have given two blows with the Kassi (spade) on the neck of the deceased after which Nirmal Kaur and Rajiv raised alarm. PW-6 thereafter claims to have run towards the appellant but the appellant went towards his kothi situated in the garden along with spade smeared with blood and Anil Kumar too ran away from the spot.

Further case of the prosecution is that the body of the Laxmi Devi (deceased) was smeared with blood and Rajiv- PW-7 ran towards government. colony raising alarm as a consequence of which the entire village collected at the place of incident and a conveyance was arranged on which the deceased was taken to Civil Hospital, Dasuya and PW-6 also went to the police station to lodge the formal report. But S.I. Samsher Singh (PW-15) met him on the way and recorded his statement on the basis of which a formal First Information Report was lodged for offence under Section 307/34, 1.P.C. and PW-15 took up the investigation. Subsequently, as Laxmi Devi died, the case was converted into a case under Section 302/34, l.P.C.

5. The doctor who conducted post-mortem found the following injuries on the body of the deceased: c "(i) 6 cm long stitched wound bearing 13 black cotton stitches on front left side of bearing part of neck extending from the middle of left lower jaw up to middle of neck, muscle deep and obliquely placed. (ii) 3 cm long stitched wound bearing 7 black cotton stitches placed obliquely and 2 cm below injury no.1 on its lateral half and muscle deep. (iii) 7 cm long stitched wound bearing 9 black cotton stitches on front and right side of neck, 4 cm below middle of lower jaw, obliquely placed and muscle deep. (iv) 6 cm long stitched wound bearing 12 black cotton stitches placed· horizontally on front of neck in the middle and lateral side extending across the middle and 1 cm to the right on dissection, underlying subcutaneous tissue and muscle are clear cut and gapping was present. Underlying laryngopharynx was repaired with the nylon stitches. On removal of stitches the wound was 5 cm x 2 cm surrounding muscle on the lateral side were also cut. (v) 3 cm long curved stitched wound on left side and 2 cm below injury No.4 wearing 4 black cotton stitches and was skin deep. (vi) Brownish scabbed linear superficial abrasion 6 cm long on left side of neck and 1 cm below injury no.5. (vii) Brownish scabbed linear curved abrasion 6 cm long and 2 cm below injury No. 6. (viii) Incised wound 3 cm x 2 cm in the lower part of the neck in the mid line. 6 cm above upper end of sternum underlying muscle cut and there is hole 1.5 cm x 1.5 cm in the interior wall of trachea (Tracheotomy wound). (ix) 5 cm long stitched wound on the lateral half of right eyebrow wearing 5 stitches on dissection margins were clear cut and it was bone deep.• In the opinion of the doctor the cause of death was due to throat cut injury, cerebral edema and nasal ganlia which were ante mortem and sufficient to cause the death in the ordinary course of nature.

6. After compliance of the due formalities of investigation, submission of charge sheet and committal proceeding, the trial of the two accused persons was conducted by the Additional Sessions Judge, Hoshiarpur who was pleased to convict the appellant and the co-accused Anil Kumar (since acquitted) under Section 302/34 l.P.C. and sentenced them as already indicated hereinafter. As already stated, the conviction and sentence of the appellant Ajit Singh was maintained under Section 302 l.P.C. but the co-accused Anil Kumar was acquitted. Hence, this appeal has now been preferred by the sole appel_l;mt Ajit Singh and this court is seiz~d with consideration of the question whether the convicfion and sentence of the accused-appellant Ajit Singh is fit to be sustained or not.

7. In so far as the genesis and manner of occurrence and the factum of death of deceased Laxmi Devi is concerned, the· counsel for the parties have been heard at some length and the evidence have been scrutinized but I am unable to accept the contention that the incident did not take place in the manner as alleged by the prosecution and I fully agree with the findings recorded by the courts below that the deceased Laxmi Devi died in the manner and at the place as alleged by the prosecution.

8. The only ground which now needs to be considered in this appeal is.whether on the existing facts and circumstances emerging out of the genesis, manner and place of occurrence, the conviction of the appellant is fit to be sustained under [2011) 12 S.C.R. A Section 302, l.P.C. or it would be a case of conversion of conviction and sentence under Section 304 Part- I of the 1.P.C. Although, we are all aware of the ingredients of Section 300 defining culpable homicide amounting to murder, it would be worthwhile to recollect the exceptions therein specially exception B 4 to Section 300 l.P.C. which lays down when culpable homicide does not amount to murder and may be quoted for facility of reference: c "Exception 4 to Section 300. -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 having taken undue advantage or acted in a cruel or unusual manner."

9. It is undoubtedly true that application of exception 4 O depends upon the facts and evidence in a given case and although there are innumerable case laws and commentaries on the subject, the courts more often than not have to keep wondering into the wilderness of facts as to whether a given case would fall under Section 302, 1.P.C. or would fall under E Section 304 Part-I or II of the l.P.C.

10. The question under the facts of this case once again arises whether the conviction of the appellant-Ajit Singh is fit to be sustained under Section 302 of the l.P.C. or it would be a fit case of altering the conviction and sentence from 3021.P.C. F to 304 Part-I. In this context, it is noticed that the deceased Laxmi Devi and her son Rajiv@ Raju PW-7 along with Nirmal Kaur were cutting fodder from the field of appellant-Ajit Singh when Ajit Singh and Laxmi Devi started quarrelling with each other as Ajit Singh complained that they have been illegally G entering into his field for cutting fodder causing damage to his field and spoiling the Kinnu crops. Even as per the case of the prosecution, the deceased started to abuse Ajit Singh which provoked him to order his servant Anil Kumar to bring Kassi (spade) to finish them. The place of incident thus admittedly is H of Ajit Singh wherein Ajit Singh ordered Anil Kumar to bring Kassi and then asked him to catch hold of Laxmi Devi so that A he may do away with her life. Ajit Singh after giving the deceased a push, is alleged to have given two blows on the neck of the deceased at which the informant PW-7 raised an alarm shouting 11mar ditta mar dltta" . PW-6 thereafter chased the appellant who is said to have run towards the accused- appellant but the appellant went towards his kothi situated in the same garden along with the spade smeared with blood and his servant Anil Kumar (since acquitted) also ran away from the spot. The deceased thereafter was taken to the hospital and after three days of treatment died on 25.10.1996 at about 4.35 c p.m.

11. Thus, from the prosecution story itself it emerges that when the deceased was cutting the grass for fodder in the field of Ajit Singh, Ajit Singh was not armed with any weapon and it is only when the deceased hurled filthy abuses to the appellant, D he directed his servant Anil Kumar to bring a Kassi and ordered him to catch hold of the deceased after which he gave two blows on the neck of the deceased .. as a result of which she died on the 4th day of the incident.

12. Thus on perusal of the evidence on record, it is clear that the incident happened on the spur of the moment and was not a premeditated assault on the deceased. Nevertheless, the appellant had inflicted grievous injury on the neck of the deceased but she did not die instantly and was taken to the F hospital where treatment was given to her for three days and finally she succumbed to the injury. Hence, it can be logically and reasonably inferred that the accused-appellant although inflicted grievous injury on the neck of the deceased and gave two blows, the assault was not the result of pre-planning or pre- meditated assault and the same did not result in instantious G death of the deceased but she was taken to the hospital for treatment where she succumbed to the inju_ry after four days of the incident.

13. Thus, the appellant no doubt inflicted the injury on the H A deceased with the intention of causing such bodily injury which could result in her death and in that view of the facts and circumstance, knowledge will have to be attributed to him that he inflicted injury on the deceased to cause death of the victim which was sufficient in the ordinary course of nature to cause death. In that event, he although will have to be held guilty of the offence of murder in view of the ingredients of the offence given out under Section 300 of the 1.P.C., it cannot be ruled out that the case of the appellant in view of the genesis and manner of occurrence would fall under exception 4 of Section 300 and c hence would be liable for conviction under Section·304 Part-I for the reason that it cannot be held with certainty that he undoubtedly had the intention to kill and not merely to cause grievous hurt. In support of this view, it would be relevant to refer to the case of Patel Rasiklal Becharbhai Vs. State of Gujarat, AIR 1992 SC 1150, wherein this Court had been pleased to hold that inflictment of the injury on the vital part of the body with the agricultural instrument by the enraged accused in a sudden quarrel cannot be held to have been caused intentionally.

14. In order to hold whether an offence would fall under E Section 302, or 304 Part-I of the l.P.C., the courts have to be extremely cautious in examining whether the same falls under Section 300 of the l.P.C. which states whether a culpable homicide is a murder, or it would fall under its five exceptions which lays down when culpable homicide is not murder and in F this category further lays down that culpable homicide is not murder if the offender whilst deprived of the power of self-control by giving sudden provocation causes the death of the person who gave the provocation, or causes the death of any other person by mistake or accident.

15. While examining the case of the appellant in the light of the settled legal position that culpable homicide would not amount to murder if the offender was deprived of the power of self-control on account of grave and sudden provocation, I am H of the view that the appellant's case will have to be treated to be a case falling under the 4th exception of Section 300 and hence would be a case under Section 304 Part I of the Indian Penal Code for more than one reason deduced from the evidence on record. In the first place, the deceased Laxmi Devi had been cutting grass for fodder in the field of the appellant- Ajit Singh and when Ajit Singh reprimanded the deceased and her companion not to spoil his Kinnu crop, the deceased started altercation with the appellant and abused him which provoked the appellant-Ajit Singh to order his companion Anil Kumar (since acquitted) to bring Kassi (spade) which instruction was carried out by Anil Kumar and thereafter Ajit Singh inflicted two c blows on the deceased Laxmi Devi.

However, she did not die instantly and was taken to the hospital where she underwent treatment for four days and finally succumbed to the injuries. From this it can be safely inferred that although the appellant- Ajit Singh had the intention and knowledge to cause grievous injury on the deceased which could have resulted into the death of the deceased, yet it cannot be inferred without doubt that the intention of the appellant-Ajit Singh was necessarily to cause . death and not merely to cause grievous hurt as he did not inflict repeated blows on the deceased and the deceased in fact had survived for four days after the assault. In addition to this, it has also come in evidence that PW-6/informant had chased the appellant but the appellant did not pursue by entering into further scuffle with the prosecution party. Besides this, the case of the prosecution regarding common intention to commit murder already stands negatived by the High Court vide the impugned judgment and order as the plea of common intention to commit murder is no longer existing since the co-accused Anil Kumar was acquitted of the charg~ under Section 302/34 l.P.C. by the High Court.

Thus, the common intention to kill the deceased will have to be treated as missing in the prosecution case and only individual liability of the appellant giving fatal blows will determine whether the charge would be sustained under Section 302 l.P.C. or it would fall under 304 Part-I of the l.P.C. (2011) 12 S.C.R.

16. On an analysis of the case of the prosecution in the light of the evidence on record, I am clearly of the view that the appellant's conviction and sentence under Section 302, l.P.C. cannot be sustained but considering the intensity and gravity of the assault which led finally to the death of the victim Laxmi B Devi he would certainly be held guilty under Section 304 Part- 1, l.P.C. and hence I deem it just and appropriate to set aside the conviction and sentence of the appellant under Section 302, l.P.C. and the same is altered to his conviction under Section 304 Part I, l.P.C. Accordingly, the sentence of life imprisonment c shall be reduced to a period of ten years under Section 304 Part-I of the l.P.C. Thus, the appeal stands partly allowed to this extent. HARJIT SINGH BEDI, J. 1. I concur with the judgment of my learned sister to the extent that the appellant's conviction ought to be affirmed.

I am, however, unable to accept that the case could be covered by Exception 4 to Section 300 in the facts which have been brought out in the course of the evidence. E:xception 4 reads E thus: "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 having taken undue advantage or acted in a cruel or unusual manner." 2. It will be seen that this Exception presupposes several conditions for its applicability; they being (i) that the incident happened without premeditation, (ii) in a sudden fight, (iii) in the heat of passion, (iv) upon a sudden quarrel and (v) without G the offender having taken undue advantage or acted in a cruel or unusual manner. l am of the opinion that the appellant herein has taken undue advantage and has acted in a cruel and unusual manner which excludes the applicability of Exception 4.

The facts show that there had been a sudden quarrel H between the appellant and the deceased (a woman and therefore the weaker sex) and after she had been immobilized he had caused as many as nine injuries on her person. The · injuries are re-produced herein below: "(i) 6 cm long stitched wound bearing 13 black cotton stitches on front left side of bearing part of neck extending from the middle of left lower jaw up to middle of neck, muscle deep and obliquely placed. (ii) 3 cm long stitched wound bearing 7 black cotton stitches placed obliquely and 2 cm below injury no.1 on its lateral half and muscle deep. (iii) 7. cm long stitched wound bearing 9 black cotton stitches on front and right side of neck, 4 cm below middle of lower jaw, obliquely placed and muscle deep. (iv) 6 cm stitched wound bearing 12 black cotton stitches placed horizontally on front of neck in the middle and lateral side extending across the middle and 1 cm to the right on dissection, underlying subcutaneous tissue and muscle are clear cut and gapping was present. Underlying laryngopharynx was repaired with the nylon stitches. On removal of stitches the wound was 5 cm x 2 cm surrounding muscle on the lateral side were also cut. (v) 3 cm long curved stitched wound on left side and 2 cm below injury No.4 wearing 4 black cotton stitches and was skin deep. (vi) Brownish scabbed linear superficial abrasion 6 cm long on left side of neck and 1 cm below injury No.5. (vii) Brownish scabbed linear curved abrasion 6 cm long and 2 cm below injury No.6. (viii) Incised wound 3 cm x 2 cm in the lower part of the neck in the mid line. 6 cm above upper end of sternum underlying muscle cut and there is hole 1.5 cm x 1.5 cm in the interior wall of trachea (Tracheotomy wound). (ix) 5 cm long stitched wound on the lateral half of right eyebrow wearing 5 stitches on dissection margins were clear cut and it was bone deep." 3.

We see that all the injuries are on the face or neck of the deceased and that injury Nos. (i), (iii), (iv), (viii) and (ix) were very extensive leading to her death. To my mind, the case clearly falls within the ambit of Section 302 of the IPC and the appellant's conviction under this provision calls for no C interference. The Criminal Appeal is dismissed. ORDER In view of the divergence in views, the Registry is directed 0 to place the matter before the Hon'ble Chief Justice of India for placing the matter before a larger Bench. N.J. Matter referred to Larger Bench.