Murder: Section 304 II IPC: No evidence show that the appellant has taken undue advantage or acted in cruel or unusual manner

Appeal against the conviction confirmed by the Hon’ble High Court

2. This appeal challenges the judgment and order dated 08th January, 2019 passed by the Division Bench of the Allahabad High Court in Criminal Appeal No. 302 of 1987 wherein the Division Bench dismissed the Criminal Appeal preferred by the appellant-Devendra Singh and upheld the order of conviction under Section 302 of the Indian Penal Code, 1860 (“IPC” for short) and sentence of life imprisonment dated 17th January, 1987 as recorded by the learned Sessions Judge, Bijnor 2 (hereinafter referred to as “the trial court”) in S.T. No. 166 of 1986.

Case of the prosecution

3.2 The prosecution case is that a few days prior to the date of the incident, the appellant had molested the wife of Dharam Pal Singh (PW-1), the elder brother of the deceased. Angered, the deceased forbade the appellant from misbehaving with his sister-in-law in the future and further warned the appellant of dire consequences were he to repeat his actions. On the day of the incident, at about 09:30 p.m., a marriage procession was passing through Village Qadrabad, of which the deceased was one of the attendees. Owing to the marriage procession, the area was lit up with decorative lights which were powered by a high-power generator. In the meanwhile, the appellant and his coaccused reached the spot and picked up a quarrel with the deceased by bringing up their previous altercation. Being riled up about the fact that the deceased was acting as the protector of his family, the appellant exhorted to kill him. Amidst the scuffle that subsequently ensued between them, the co-accused Yogendra Pratap Singh caught hold of the deceased while the appellant stabbed him with a knife. On being struck, the deceased fell to the ground. Thereafter, in an attempt to save the deceased, Manjit Singh (PW-3) beat the accused persons with a lathi whereupon, the accused persons fled the scene. In addition to Manjit Singh (PW-3), this entire incident was also witnessed by Dharam Pal Singh (PW-1) and Kernail Singh (PW-4) who rushed over to the deceased and took him to the Government Dispensary, Qadrabad, where he was declared dead on arrival.

Investigation and framing of charges

3.3 Upon the conclusion of the investigation, a chargesheet came to be filed before the Court of the Chief Judicial Magistrate, Bijnor. Since the case was exclusively triable by the Sessions Court, the same came to be committed to the trial court.

3.4 Charges came to be framed by the trial court against the appellant for the offence punishable under Section 302 of the IPC and against his co-accused for the offence punishable under Section 302 of the IPC read with Section 114 of the IPC. The accused persons pleaded not guilty and claimed to be tried.

No evidence on the side of accused but relied on documentary evidence

3.5 The prosecution examined 08 witnesses to bring home the guilt of the accused. The accused persons denied the allegations against them and alleged that they had been falsely implicated in the case. The appellant also stated that litigation arising out of land disputes was pending between him and Kernail Singh (PW-4). The accused persons chose not to lead any oral evidence, however, they relied on certain documentary evidence.

Conclusion of trial is guilty under section 302 IPC

3.6 At the conclusion of the trial, the trial Court found that the prosecution had proved the case against the accused persons beyond reasonable doubt and accordingly convicted the appellant for the offence punishable under Section 302 of the IPC and the co-accused for the offences punishable under Section 302 read with Section 114 of the IPC sentenced them to undergo rigorous imprisonment for life.

Hon’ble High Court dismissed the appeal

3.7 Being aggrieved thereby, the accused persons preferred a Criminal Appeal before the High Court. During the pendency of the appeal, the co-accused Yogendra Pratap Singh passed away whereafter his appeal stood dismissed vide order dated 25th September, 2018. On the conclusion of the hearings qua the appellant, the High Court by the impugned judgment dismissed the Criminal Appeal and affirmed the order of conviction and sentence awarded by the trial Court.

3.8 Being aggrieved thereby, the present appeal.

Single blow on the deceased

8. PW-1-Dharam Pal Singh has stated in his evidence that on the date of the incident there was marriage procession of the grand-daughter of Thakur Vijay Pal Singh. He stated that many persons in the village witnessed the marriage procession. He further stated that both the accused came near the house of Virendra Tomar and started indulging in ‘marpeet’ with the deceased. He stated that Yogendra Pratap Singh caught hold of the deceased whereas the appellant assaulted the deceased with a knife, which hit the left side of his chest.

9. In his cross-examination, PW-1 has admitted that the deceased received only one knife blow. He has further admitted that the appellant took out knife from the pocket of his ‘Pajama’.

Accused got assaulted and injured: Possibility of scuffle between two groups cannot be ruled out

10. PW-3-Manjit Singh, in his evidence, stated that in the marriage procession, accused persons came from the north side and started scuffle with the deceased and told that, “Tu Ghar Ka Rakhwala Banta Hai, Aaj Tujhe Jan Se Maar Denge”. Thereafter, Yogendra Pratap Singh caught hold of the deceased and the appellant took out the knife from the pocket of his ‘Pajama’ and assaulted the deceased. He stated that he assaulted both the accused persons with ‘Danda’. He has also admitted in his crossexamination that a ‘marpeet’ took place between the deceased and the appellant and Yogendra Pratap Singh.

14. It could thus be seen that both the accused persons have received injuries in the incident. In the evidence, PW-3-Manjit Singh has stated that he had a ‘Danda’ and he had assaulted both the accused with ‘Danda’. As such, the possibility of a scuffle between the two groups cannot be ruled out.

Sudden quarrel cannot be ruled out

17. Taking into consideration the nature of injuries sustained by both the accused persons as well as the deceased, the possibility of the incident taking place in a sudden fight in the heat of passion, upon a sudden quarrel cannot be ruled out.

No evidence show that the appellant has taken undue advantage or acted in cruel or unusual manner

18. It is further to be seen that there is no evidence to show that the appellant has taken undue advantage or acted in a cruel or unusual manner. It is further to be seen that the weapon used is a pocketknife. The injury caused by the said knife is a single injury.

Appellant is entitled to benefit of exception 4 to section 300 IPC

19. We, therefore, find that, in the totality of the circumstances and, particularly, on account of the injuries sustained by the accused persons, the appellant is entitled to the benefit of Exception 4 to Section 300 IPC. We are, therefore, inclined to partly allow the present appeal. It is ordered accordingly.

20. The conviction of the appellant under Section 302 IPC is altered to the one under Part-I of Section 304 IPC. The appellant is sentenced to suffer rigorous imprisonment for 8 years for the said offence.

Party

Devendra Singh … Appellant (S) Versus State Of Uttar Pradesh …Respondent (S) – Criminal Appeal No. OF 2024 [Arising out of Special Leave Petition (Criminal) No.11919 of 2022] – 2024 INSC 576 – AUGUST 02, 2024 – 3 judge bench.

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