ATUL THAKURversusSTATE OF HIMACHAL PRADESH ETC. ETC.

                          [2018] 1 S.C.R. 245                               245


                           ATUL THAKUR                                      A
                                    v.
          STATE OF HIMACHAL PRADESH ETC. ETC.
               (Criminal Appeal Nos. 522-523 of 2016)
                          JANUARY 19, 2018
                                                                            B
        [DIPAK MISRA,CJI, A. M. KHANWILKAR AND
                 DR. D. Y. CHANDRACHUD, JJ.]
       Penal Code, 1860 – s.302 – Assault resulting in death –
Prosecution case was that the appellant caused six injuries to
deceased by attacking him with a knife on the fateful night in the
                                                                            C
presence of their friends who had gathered at the house of accused
no.2 for celebrating a drink party arranged at the behest of the
deceased – Deceased succumbed to the injuries caused by the
appellant – Conviction by trial court under s.304 Part II – High
Court convicted appellant-accused under s.302 – On appeal, held:
Evidence on record proved sudden physical fight between the                 D
appellant and the deceased, in which the appellant, in heat of
passion, gave six knife blows to the deceased on different parts of
his body – There was no pre-mediation and the act done by the
appellant was in the heat of passion without the appellant taking
any undue advantage or acted in a cruel manner – The number of
                                                                            E
wounds caused by the appellant by itself cannot be a decisive factor
– High Court committed manifest error in being influenced by the
said fact – The fact that the appellant used weapon such as knife,
is also not a decisive factor to attract s.302 – It is a case of culpable
homicide not amounting to murder – Neither the use of a knife in
the commission of offence nor the factum of multiple injuries given         F
by the appellant would deny the appellant of the benefit of Exception
4 of s.300 – As regards sentence, the trial court awarded the sentence
of rigorous imprisonment for five years only for offence under s.304
Part-II and fine of Rs.10,000/- and in default, to undergo rigorous
imprisonment for a further period of one year – Nature of offence
                                                                            G
and the trivial reason for which the appellant got enraged and
assaulted the deceased, that too by a knife and also gave multiple
blows, does not warrant a light punishment – In the fact situation
and ends of justice, the sentence period should not be less than 10
years imprisonment with fine.
       Partly allowing the appeals, the Court                               H
                                   245
246            SUPREME COURT REPORTS                      [2018] 1 S.C.R.


A           HELD: 1.1 The evidence clearly establishes that the
      appellant assaulted the deceased without any premeditation. The
      whole incident took place suddenly and, in the heat of passion a
      sudden quarrel started as the deceased, while smoking, blew
      smoke on the face of the appellant. Resultantly, the appellant
      got enraged. He told him that he was senior in age and thus
B
      should not smoke in his presence much less blow the smoke
      towards him. Then a sudden physical fight started between them,
      in which the appellant, in heat of passion, gave six knife blows to
      the deceased on different parts of his body. Soon after assaulting
      the deceased by knife, when the appellant realised that the
C     deceased has been badly injured, he offered him water and took
      him to the hospital along with his other friends. He was in the
      hospital till the deceased succumbed to the injuries. He had also
      informed the father of the deceased on telephone and called him
      to the hospital. Further, when the deceased was taken to the
      hospital, the doctors did not provide him immediate treatment
D
      but insisted on calling his father. This can be culled out from the
      evidence of PW-11 and PW-12, who were eye-witnesses and also
      present throughout and until the last rites of the deceased were
      performed. The events clearly show that the appellant had no
      intention to cause the death of the deceased. [Paras 9, 10][251-
E     B-C, D-F]
            1.2 It is a case of culpable homicide not amounting to murder
      inasmuch as the incident happened on account of sudden fight
      between the friends who had gathered for a drink party arranged
      at the behest of the deceased. The number of wounds caused by
      the appellant, it is a well established position, by itself cannot be
F
      a decisive factor. The High Court committed manifest error in
      being influenced by the said fact. What is relevant is that the
      occurrence was sudden and not premeditated and the offender
      acted in the heat of passion. The evidence supports the case of
      the appellant in this behalf. The fact that the appellant used weapon
G     such as knife, is also not a decisive factor to attract Section 302
      of IPC. Neither the factum of use of knife by the appellant during
      the assault nor the multiple blows (six) given by the appellant
      can be the sole basis to deny the appellant of the benefit available
      under Exception 4 to Section 300 of IPC. The Court is obliged to
      take an overall view of the matter on the basis of the established
H
  ATUL THAKUR v. STATE OF HIMACHAL PRADESH ETC.                           247


facts. [Paras 12, 14][252-A-C; 254-C]                                     A
       Surain Singh v. State of Punjab (2017) 5 SCC 796 –
       relied on.
       2. The Trial Court awarded the sentence of rigorous
imprisonment for five years only for offence under Section 304
Part-II of IPC and fine of Rs.10,000/- and in default, to undergo         B
rigorous imprisonment for a further period of one year. For that
no special reason was recorded by the Trial Court. Considering
the nature of offence and the trivial reason for which the appellant
got enraged and assaulted the deceased, that too by a knife and
also gave multiple blows, does not warrant a light punishment. In
the fact situation of the present case, the sentence period should        C
not be less than 10 years imprisonment with fine. That would
meet the ends of justice. [Paras 15, 16][254-D-E]
                        Case Law Reference
        (2017) 5 SCC 796          relied on               Para 13
                                                                          D
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 522-523 of 2016.
        From the Judgment and Order dated 01.04.2016 by the High Court
of Himachal Pradesh, Shimla in Criminal Appeal No. 75 and 227 of
2015.
        Aditya Dhawan, Ms. Kiran Dhawan, Chander Shekhar Ashri,           E
Advs. for the Appellant.
        D. K. Thakur, AAG, Shariq Ahmed, Ms. Taiba Khan, Ajay
Marwah, Advs. for the Respondents.
        The Judgment of the Court was delivered by
        A. M. KHANWILKAR, J. 1. These appeals have been filed             F
against the judgment and order dated 1st April, 2016 passed by the High
Court of Himachal Pradesh, Shimla in Criminal Appeal Nos.75 & 227 of
2015, modifying the order of conviction and sentence passed by the
Sessions Judge (Forests), Shimla, dated 31st December, 2014 in Sessions
Trial No.39-S/7 of 2012 thereby convicting the appellant under Section
302 of the Indian Penal Code (IPC) and sentencing him to imprisonment     G
for life along with fine.
        2. Shorn of details, the appellant along with three others were
tried for offence punishable under Sections 302, 201 read with Section
34 of IPC by the Sessions Judge (Forests), Shimla. The case of the
prosecution is that a telephone message was received at Police Station,   H
248             SUPREME COURT REPORTS                           [2018] 1 S.C.R.


A     West Shimla at around 4.45 A.M. on 28.07.2011, informing that a quarrel
      had taken place near Tunnel 103, from where one Hunny was brought
      to IGMC Hospital (Shimla) in seriously injured condition. On reaching
      the hospital, the SHO Shakuntala Sharma was informed that the injured
      had succumbed to the injuries. She then recorded the statement of
      Rajinder Singh under Section 154 of the Code of Criminal Procedure. In
B
      his statement, Rajinder Singh disclosed that he had two children. His
      daughter Pooja was doing computer course and his younger son Hitesh
      Thakur, 22 years of age, was also doing computer course from Lakhar
      Bazar. He stated that Hitesh had left home on 27.07.2011 after taking
      meal, on his motorcycle bearing registration No.HP-63-3235, for attending
C     computer course. He had then informed his sister Pooja on her mobile
      that he was going with his friend Akhilesh and would not be returning
      during the night. He requested his sister to inform their mother. At about
      3 a.m. on 28.07.2011 one Atul Thakur (appellant herein) telephonically
      informed him that his son Hitesh was brought to IGMC Hospital, Shimla
      as he was not feeling well and asked him to come to the hospital. On
D
      receiving that telephonic information he rushed to the hospital and found
      that his son was lying dead in wounded condition. At that time, the
      appellant was also present there.
              3. After recording the statement, investigation proceeded and four
      accused, who had visited the house of Mukesh Thakur (Accused No.2)
E     where a drink party was arranged during the night of 27.07.2011 and
      28.07.2011, were sent for trial for the stated offence. The Trial Court
      after analysing the evidence acquitted the other three accused but found
      the appellant guilty of the offence punishable under Section 304, Part-II
      and sentenced him to rigorous imprisonment for five years and to pay
      fine of Rs.10,000/-, in default to undergo further imprisonment for one
F
      year vide judgment dated 31st December, 2014.
              4. Against the said decision, the appellant filed an appeal before
      the High Court, being criminal Appeal No.75 of 2015. The complainant
      also filed an appeal before the High Court, being Criminal Appeal No.227
      of 2015 against the acquittal of three accused as well as for enhancement
G     of sentence of the appellant. Both the appeals came to be disposed of by
      common judgment dated 1st April, 2016. The High Court upheld the
      finding of fact regarding the involvement of the appellant in the commission
      of crime. However, it reversed the finding and conclusion recorded by
      the Trial Court regarding the nature of offence. It concluded that taking
      an overall view of the matter, the appellant was guilty of offence
H
     ATUL THAKUR v. STATE OF HIMACHAL PRADESH ETC.                           249
                  [A. M. KHANWILKAR, J.]

punishable under Section 302 of IPC for the murder of Hitesh Thakur          A
and not under Section 304 Part-II, as held by the Trial Court. At the
same time, the High Court affirmed the order of acquittal in favour of
the other accused who were tried along with the appellant. In the present
appeals, the aforementioned decision of the High Court has been assailed
only by the original accused No.1.
                                                                             B
       5. Mr. Aditya Dhawan, learned counsel appearing for the appellant,
made a fervent effort to persuade this Court that there is an obvious
contradiction between the evidence of the eye-witnesses which should
enure to the benefit of the appellant. According to him, the appellant
deserves to be acquitted as in the case of co-accused, as the genesis of
the offence is doubtful. Further, the involvement of the appellant in the    C
commission of crime has not been proved beyond reasonable doubt. He
took us through the evidence of the prosecution witnesses and also of
the defence witness (DW1) who was examined at the instance of the
appellant. He submits that in any case, the fact situation established by
the prosecution, even if taken as it is, does not warrant a finding of
                                                                             D
commission of offence of murder of Hitesh Thakur. At best it is a case
of culpable homicide not amounting to murder, covered by the Exception
under Section 300 of IPC and, thus, punishable under second part of
Section 304 of IPC. The Trial Court had justly invoked that offence and
sentenced the appellant to undergo five years rigorous imprisonment
which the appellant has already undergone. He, therefore, submits that       E
this appeal be allowed and the appellant be set free by reviving the order
of the Sessions Court and setting aside the impugned judgment and order
of the High Court. He submits that the appellant has already undergone
sentence for a period of 7 years 3 months 24 days as on 24th November,
2017 including remission period of one year 2 months and 6 days.
                                                                             F
       6. Learned counsel for the respondents, however, has opposed
these appeals. According to the respondents, the finding of guilt recorded
by the two Courts below is supported by the evidence on record which
has established the involvement of the appellant in the commission of
crime beyond doubt. The finding of guilt so recorded by the Trial Court
and affirmed by the High Court does not warrant any interference.            G
Similarly, the finding recorded by the High Court reversing the opinion of
the Trial Court to convict the appellant under Section 302 of IPC is also
unexceptionable. The High Court justly noted that it was a case of
murder of Hitesh Thakur which is punishable under Section 302 of IPC
and not under Section 304 Part-II, in which case the appellant will have
to suffer the sentence period of life imprisonment. The respondents would    H
250            SUPREME COURT REPORTS                           [2018] 1 S.C.R.


A     submit that the appeals are devoid of merit and ought to be dismissed.
             7. We have carefully considered the oral evidence adduced by
      the prosecution, in particular the evidence of PW-11 and PW-12 who
      were the eye-witnesses to the incident during which Hitesh Thakur was
      assaulted by the appellant with knife causing serious bodily injuries to
B     which he finally succumbed. In addition to the said oral evidence, the
      other circumstances also point towards the complicity of the appellant in
      the commission of crime such as recovery of the knife at his instance
      and the nature of injuries suffered by the deceased attributable to the
      assault by the same knife by the appellant. We find that the Trial Court
      has justly analysed the evidence to record a finding about the complicity
C     of the appellant in the commission of crime. That has been affirmed by
      the High Court after reappreciation of the relevant evidence. We are in
      agreement with the view so taken by the two Courts below. In other
      words, we are inclined to uphold the concurrent finding recorded by the
      Courts below that the appellant caused six injuries to deceased Hitesh
      Thakur by attacking him with a knife on the night of 27.07.2011 in the
D
      presence of their friends (including PW-11 and PW-12) who had gathered
      at the house of Mukesh Thakur for celebrating a drink party arranged at
      the behest of Hitesh Thakur. Further, Hitesh Thakur succumbed to the
      injuries caused by the appellant. Thus, it is a case of homicidal death.
             8. Notably, the evidence on record plainly establishes that a sudden
E     fight took place between the appellant and Hitesh Thakur and in the
      heat of passion, the appellant assaulted Hitesh Thakur causing serious
      bodily injuries. There is no shred of evidence, much less even a remote
      suggestion that the appellant had assaulted Hitesh Thakur with an intention
      to cause his death. Though the High Court found the appellant guilty, it
F     has not held that the bodily injuries caused by the appellant were with an
      intention to cause the death of Hitesh Thakur. The High Court overturned
      the finding recorded by the Trial Court regarding the nature of offence,
      principally on the ground that the appellant gave repeated knife blows to
      Hitesh Thakur and Hitesh Thakur could not defend himself as he was
      unarmed. Thus, the appellant was found guilty of offence punishable
G     under Section 302 of IPC.
              9. In other words, the controversy in these appeals boils down to
      the nature of offence and the sentence to be awarded in that behalf. As
      aforesaid, the evidence on record, as held by two Courts below and with
      which finding we are in full agreement, is that the appellant gave six
H
     ATUL THAKUR v. STATE OF HIMACHAL PRADESH ETC.                              251
                  [A. M. KHANWILKAR, J.]

knife blows to Hitesh Thakur on the fateful night to which he succumbed.        A
Thus, it is a case of homicidal death. However, there is no evidence that
the injuries inflicted by the appellant were with an intention to cause the
murder of Hitesh Thakur. On the other hand, the evidence clearly
establishes that the appellant assaulted Hitesh Thakur without any
premeditation. The whole incident took place suddenly and, in the heat
                                                                                B
of passion a sudden quarrel started as Hitesh Thakur, while smoking,
blew smoke on the face of the appellant. Resultantly, the appellant got
enraged. He told him that he was senior in age and thus should not
smoke in his presence much less blow the smoke towards him. Then a
sudden physical fight started between them, in which the appellant, in
heat of passion, gave six knife blows to Hitesh Thakur on different parts       C
of his body.
        10. The evidence of PW-11 and PW-12 (eye-witnesses) would
establish that the appellant and others including deceased Hitesh Thakur
had gathered at the spot for a drink party arranged at the instance of
Hitesh Thakur. They had consumed drinks when the incident took place.           D
Soon after assaulting Hitesh Thakur by knife, when the appellant realised
that Hitesh has been badly injured, he offered him water and took him to
the hospital along with his other friends. He was in the hospital till Hitesh
Thakur succumbed to the injuries. He had also informed the father of
Hitesh on telephone and called him to the hospital. Further, when Hitesh
was taken to the hospital, the doctors did not provide him immediate            E
treatment but insisted on calling his father. This can be culled out from
the evidence of PW-11 and PW-12, who were eye-witnesses and also
present throughout and until the last rites of Hitesh Thakur were
performed.
        11. Taking into account the events as unfolded, it leaves no manner     F
of doubt that the appellant had no intention to cause the death of Hitesh
Thakur. The incident happened without any premeditation in a sudden
fight between Hitesh Thakur and the appellant and in heat of passion the
appellant inflicted six knife blows on Hitesh Thakur. On the contrary,
after realising his mistake, he immediately offered water to Hitesh Thakur
and also took him to hospital and stayed there till his last rites were         G
performed. PW-2 father of deceased Hitesh Thakur also corroborates
the position that the appellant had contacted him to inform that Hitesh
had been brought to the hospital in serious condition.
        12. Taking overall view of the matter, the facts of the present
case warrant invocation of Exception 4 to Section 300 of IPC. For, it is        H
252               SUPREME COURT REPORTS                          [2018] 1 S.C.R.


A     a case of culpable homicide not amounting to murder inasmuch as the
      incident happened on account of sudden fight between the friends who
      had gathered for a drink party arranged at the behest of Hitesh Thakur.
      There was no pre-mediation and the act done by the appellant was in
      the heat of passion without the appellant taking any undue advantage or
      acted in a cruel manner. The number of wounds caused by the appellant,
B
      it is a well established position, by itself cannot be a decisive factor. The
      High Court committed manifest error in being influenced by the said
      fact. What is relevant is that the occurrence was sudden and not
      premeditated and the offender acted in the heat of passion. The evidence
      supports the case of the appellant in this behalf. The fact that the appellant
C     used weapon such as knife, is also not a decisive factor to attract Section
      302 of IPC. Neither the use of a knife in the commission of offence nor
      the factum of multiple injuries given by the appellant would deny the
      appellant of the benefit of Exception 4.
              13. Dealing with a somewhat similar situation, in the case of Surain
D     Singh Vs. State of Punjab 1, this Court has restated the settled legal
      position about the purport of Exception 4 to Section 300 of IPC. Even in
      that case, the accused had repeatedly assaulted the deceased with a
      Kirpan and caused injuries resulting into death. After restating the legal
      position, the Court converted the offence to one under Section 304 Part-
      II instead of Section 302 IPC. Following the same legal principle and
E     keeping in mind the factual position as unfolded, the view taken by the
      Trial Court of convicting the appellant for offence punishable under
      Section 304 Part-II, is unexceptionable. The Trial Court had observed
      thus:
              “60. The evidence placed on record by the prosecution,
F             reveals that deceased Hitesh and the accused were having
              cordial relations since long, knowing to each other and were
              good friends. A party was organized by the deceased in the
              room of accused Mukesh and deceased himself invited all
              the accused to attend the party. In this party, large quantity
              of alcohol was consumed by them and suddenly an altercation
G             took place between deceased Hitesh and accused Atul Thakur
              as a result of which accused Atul stabbed Hitesh, which
              resulted into his death……
              61. There is no doubt that Hitesh met a homicidal death on
              the night intervening 27/28.07/2011 at IGMC, Shimla
      1
H         (2017) 5 SCC 796
ATUL THAKUR v. STATE OF HIMACHAL PRADESH ETC.                        253
             [A. M. KHANWILKAR, J.]

consequent to stab injury inflicted by accused Atul Thakur.          A
The queston which arises for consideration is whether this
action of the accused which caused the death of Hitesh would
amount to murder or culpable homicide not amounting to
murder. It is an admitted fact that there was no enmity between
the deceased and this accused rather they were having cordial
                                                                     B
relations. The fact that there was a physical fight between
the deceased and the accused Atul, cannot be denied because
it has come in the evidence of PW-11 Himanshu, PW-12 Manoj
Bansal and PW-1 Ashutosh that a physical fight has taken
place between them. In these circumstances, this Court will
have to examine the prosecution evidence whether the accused         C
Atul had taken an undue advantage or acted in a cruel or
inimical manner so as to deprive him of the benefit of exception
4 of Section 300. In fact, the prosecution could not prove
any motive for killing the deceased by the accused. The
drinking session in the room of the accused Mukesh Thakur
                                                                     D
was by mutual consent. From these circumstances, it can be
held that the incident in question took place in a sudden fight
in the heat of possession. The next question which arises for
consideration is whether the accused Atul did take an undue
advantage of the said fight or acted in a cruel or inimical
manner. Keeping in view the fact that both the deceased and          E
accused had consumed considerable amount of alcohol which
is established from the evidence of the prosecution witnesses,
it cannot be altogether ruled out that the stab injuries inflicted
were not with an intention of taking undue advantage by the
accused Atul. It is probable that in an inebriated condition
                                                                     F
the accused inflicted the injuries because of the physical fight
between them. Moreover, keeping in view the nature of the
injuries noticed by Dr. Sandeep Kaushik in the MLC Ext. PW-
18/A, it is difficult to accept the accused Atul Thakur intended
to cause the death of Hitesh or that the injuries were so
dangerous that they would in all probability, cause death.           G
Nevertheless, the injuries were quite serious, the accused can
surely by credited with the knowledge that if an injury is
caused with a knife on the chest or abdomen of a person
then this act is likely to cause the death of the victim.
62. Having considered the material on record this Court is of
                                                                     H
254              SUPREME COURT REPORTS                           [2018] 1 S.C.R.


A            the opinion that the accused Atul Thakur can only be found
             guilty of an offence punishable under Section 304 Part II,
             Indian Penal Code.”
             14. As aforesaid, the High Court overturned this finding of the
      Trial Court on the question of nature of offence, by mainly observing
B     that the appellant had caused repeated blows with a weapon like knife,
      causing six serious injuries to Hitesh Thakur to which he succumbed.
      We are of the opinion that neither the factum of use of knife by the
      appellant during the assault nor the multiple blows (six) given by the
      appellant can be the sole basis to deny the appellant of the benefit available
      under Exception 4 to Section 300 of IPC. The Court is obliged to take
C     an overall view of the matter on the basis of the established facts. This
      principle is restated in Surain Singh’s case (supra).
             15. The next question is whether the appellant is right in his
      persuasive argument to restore and revive the decision of the Trial Court
      on the quantum of sentence. The Trial Court awarded the sentence of
D     rigorous imprisonment for five years only for offence under Section 304
      Part-II of IPC and fine of Rs.10,000/- and in default, to undergo rigorous
      imprisonment for a further period of one year. For that no special reason
      has been recorded by the Trial Court. Considering the nature of offence
      and the trivial reason for which the appellant got enraged and assaulted
      Hitesh Thakur, that too by a knife and also gave multiple blows, does not
E     warrant a light punishment. We would, however, accept the argument of
      the respondents that in the fact situation of the present case, the sentence
      period should not be less than 10 years imprisonment with fine. That
      would meet the ends of justice.
             16. Accordingly, we partly allow these Criminal Appeal Nos.75
F     and 227 of 2015 filed by original accused No.1 Atul Thakur. We modify
      the impugned judgment of the High Court against the appellant in respect
      of nature of offence and instead restore the order of the Trial Court in
      that behalf. The appellant is held guilty for an offence punishable under
      Section 304 Part-II of IPC and is sentenced to undergo rigorous
      imprisonment for a period of 10 (Ten) years with fine of Rs.10,000/-
G
      (Rupees Ten Thousand), in default to undergo further imprisonment for
      one year. Needless to mention that the appellant shall be entitled to set
      off under Section 428 of the Code of Criminal Procedure.
             17. These appeals are disposed of in the aforementioned terms.

H     Devika Gujral                                             Appeals partly allowed.