Death caused; without any premeditation, in a sudden fight, in the heat of passion, without taking any undue advantage or acted in a cruel or unusual manner, is not a murder

Admittedly, both the parties belonged to the same family and reside in the same campus and their relation was also not cordial due to property dispute. What is evident from the testimony of the PW-2 and PW-12 is that when the appellant was washing his face in the morning, the PW-2 (son of the deceased) initiated the quarrel by challenging the appellant to lodge complaint before the villagers for cutting their paddy, whereupon the appellant came out with the pistol and challenged the deceased to come out and also hurled abuses at him (deceased) and the deceased also came out and challenged him by saying as to why was he shouting and creating noise. From the testimony of the PW-12, it is also discernible that at the beginning when the PW-2 challenged the appellant for the previous incidence of cutting paddy, the appellant did not have the armed with him and in course of the exchange of words he came out with the pistol. From the above evidence, it has been established that the accused, who was a retired Air Force personnel having a licensed pistol shot the deceased in the heat of passion in course of sudden quarrel and as such it is difficult to say that the act of the appellant causing death of the deceased was pre-meditated. When evidently the appellant inflicted the injury causing death of the deceased without any pre-meditation and in the heat of passion during sudden quarrel, the appellant could not have been held liable for offence of murder. However, the facts and circumstances under which the appellant inflicted the injury causing death of the deceased, he shall be liable for committing an offence of culpable homicide not amounting to murder under Section 304 IPC.[Para No.28]

    In Rajender Singh v. State of Haryana (supra) in a similar facts situation the Apex Court converted a conviction under Section 302 IPC to 304 IPC, held as under:

"19. Consequently, we are convinced that since the death of Suraj Mal and Shri Ram had occurred due to the firing resorted to as part of his self-defence, the same would amount to culpable homicide not amounting to murder, which was committed without any premeditation in a sudden fight in the heat of passion

upon a sudden quarrel and that the offender did not take undue advantage or acted in a cruel or unusual manner, which would normally fall under Exception 4 of Section 300 IPC. Consequently, at best, conviction of the appellant can only be under Part II of Section 304 IPC for which he could have been inflicted with a punishment of ten years. For the very same reason, the conviction imposed under Section 27 of the Arms Act cannot also be sustained. It is stated that the appellant is suffering the sentence in jail and has so far suffered eleven years. The conviction is modified into one under Section 304 Part II and the sentence already suffered by the appellant is held to be more than sufficient."[Para No.29]

    In Manjeet Singh v. State of Himachal Pradesh (supra), the Apex Court had converted a conviction under Section 302 IPC to one under Section 304 IPC observed as under:

"25. The question now requires determining is as to what is the nature of offence that the accused has committed. The evidence produced against the accused does not show that the accused had any motive to cause death of the deceased or have intended to cause such bodily injuries which were sufficient in the ordinary course of nature to cause the death of the deceased. Evidence on record also does not establish that the injuries caused on the body of the deceased must in all probability cause his death or likely to cause his death. On the spur of the moment, during the heat of exchange of words accused caused injuries on the body of the deceased which caused his death. Therefore, the ingredients of the murder as defined in Section 300, IPC, have not been established against the accused. In our opinion, the accused was guilty of culpable homicide not amounting to murder under Section 304, IPC, and considering the fact that the accused had no intention to either cause the death of the deceased or cause such bodily injury as is likely to cause death of the deceased, it would be sufficient to impose on accused a sentence of seven years rigorous imprisonment and to impose on him a fine of Rs.5,000/- and in default of payment of fine, a further imprisonment of six months."[Para No.30]

    Thus having regard to the facts, that the appellant inflicted the injury in the heat of passion in course of sudden quarrel and scuffle without any pre-meditation, we set aside the conviction and sentence of the appellant under Section 302 IPC, instead, convict him under Section 304 Part-1 IPC and sentence him to rigorous imprisonment for 7 (seven) years.[Para No.31]

Gauhati High Court

Sri Tankeswar Sarma

Vs.

State Of Assam

Decided on 09/04/2021