Author: Astha Srivastava, Guru Gobind Singh Indraprastha University, New Delhi
Allahabad High Court has converted the conviction for murder under Section 302 of Indian Penal Code,1860 to culpable homicide not amounting to murder by applying Exception IV to Section 300 of Indian Penal Cide,1860.
In the case of Vijay Kumar Gupta and Another vs. State of U.P, a fresh criminal appeal was made out of an old judgment passed, in which Appellant no. 1 was convicted/sentenced to life under Section 302 of IPC and Appellant 2 was convicted to 3 ½ months R.I. under 323 of IPC.
In an earlier written report submitted by the informant, the incident comprised of two parts.
In the first part, a verbal dual and an assault took place between his younger brother Ram Niwas (Victim) and accused Vijay Kumar Gupta and his father Muneshwar Dayal Gupta over monetary transactions.
The second part stated that on the same day at about 6:00 P.M while the victim was returning home from the market. When he reached near the alley in front of the house of the accused Vijay Kumar Gupta, who was armed with country armed with country-made pistol along with his father Muneshwar Dayal Gupta with SBBLL, gun (licensed), latter started assaulting the victim, with his gun from the butt side, victim shouted over the accused Vijay Kumar Gupta, fired at the victim, who sustained injuries.
An FIR was initially registered against accused 1 & 2 under Section 304 IPC.
On looking closely to the happening of events, the Court observed that the first assault at the victim is by accused Muneshwar Dayal. No damage or injury was caused to the accused Muneshwar Dayal (father of accused Vijay) by the deceased who was unarmed. The evidence against Muneshwar Dayal does not establish that he had any intention of causing any fatal injury to the deceased as he was using his gun like a lathi. Thus he played a role distinct from that of accused Vijay.
The evidence further indicates that use of a country-made pistol by accused Vijay was in a fit of rage, when he saw his aged father hitting at the victim with the butt-side of his gun, which caused fatal injury to the deceased.
It was also proved by the evidence that there was not any premeditation to murder the deceased. Thus, all the ingredients to attract Exception IV of Section 300 IPC are met, which states that the overt act must be:-
- Without premeditation
- In a sudden fight
- In the heat of passion upon a sudden quarrel
- The offender not having taken any undue advantage or acted in a cruel or unusual manner
In case of Puclicherla Nagaraju@ Nagaraja Reddy vs. State of Andhra Pradesh culled out certain circumstances wherein a conviction/sentence u/s 302 can be altered u/s 304-I or II, as reiterated in Ankush Shivaji Gaikwad vs. State of Maharashtra.
Relevant portion of the case of Ankush states that:
Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters-plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may be no criminality.
The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances:
- Nature of the weapon used
- Whether the weapon was carried by the accused or was picked up from the spot
- Whether the blow is aimed at vital part of the body
- The amount of force employed in causing injury
- Whether the act was in the course of sudden or sudden fight or free for all fights
- Whether the incident occurred by chance or whether there was any pre-meditation
- Whether there was any prior enmity or whether the deceased was a stranger;
- Whether there was any grave or sudden provocation, and if so, the cause for such provocation;
- Whether it was in the heat of passion
- Whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner
- Whether the accused dealt a single blow or several blows. This list of cases, however, is not exhaustive and there may be several other circumstances which would throw light on the question of intention.
The Sentence of appellant in present case was altered to Section 304(1) IPC with 10 years Rigorous imprisonment.
To Read Judgment: Click Here!
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