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
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
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
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
has undergone the sentence of 10 years which is an
additional reason for us not to reverse the judgment of the
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
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
Respondent is directed to surrender within a period of four
weeks to serve the remaining sentence.
10. Accordingly, the appeal is allowed.
[L. NAGESWARA RAO]
[SANJAY KISHAN KAUL]
February 11, 2019
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