SURESH CHANDRAversusSTATE OF UTTAR PRADESH

                             SURESH CHANDRA                                  A
                                      v.
                        STATE OF UTTAR PRADESH

                                JULY 21, 2005

        [P. VENKATARAMAREDDIANDD.M. DHARMADHIKARI,JJ.]                       B


        Penal Code, 1860:

       s:302 r/w s.34, s.300, Exception 4-Accused- 'Baraties' in a marriage-
On a sudden quarrel firins gun shots and killing two persons-Convicted C
and sentenced to life imprisonment-Plea that there being absence of
premeditation and being a casf:: of sudden fight, case fell under Exception 4
to s.300 and punishable u/s 304-Held, tM very fact that accused fired at
the victims on a frivolous quarrel demonstrates beyond doubt that they acted
in a cruel manner and intended to cause death· or bodily injury of the nature D
mentioned in clause 'thirdly' of s.300--:-It is a case in which clauses I to Ill
of s.300 are attracted and Exception 4 is not app)lcable-It is evidenced that
all the three accused fired at the victims-It is a case where common intention
sprang up at the spot-However, prima facie, facts ahd circumstances of the
case justify remission a/sentence to some extent-Such ·application, if filed,
it is hoped, would be duly considered-Criminal Law-Common intention- E
Remission of sentence.

    Sukhbir Singh v. State of Haryana, (2002) 3 SCC 327 and Su'rinder
Kumar v. Union Territory, Chandigarh, (1989) 2 SCC 217, distinguished.

      Sunder Singh v. State of Rajasthan, [1988] Supp. SCC 557, held          F '
inapplicable.

        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 746 of
2003.

     From the Judgment and Order dated 23. 7.2002 of the Allahabad High G
Court in Crl. A. No. 2105of1981.
                                    WITH
        Cr!. A. Nos. 747 and 748 of 2003.

                                     759                                     H
    760                    SUPREME COURT REPORTS [2005] SUPP. I S.C.R.

A         Sudhir Kulshreshtha, for the Appellant in Crl. A. No. 746/2003.

          P.S. Mishra, Ajay Bhalla, Ms. Shikha Sapra and Ms. Abba R. Sharma
    with him for the Appellant in Crl. A. No. 748/2003.

          Subhash Chandra Birla and Subrat Birla, for the Appellant in Crl.A. No.
B   74712003.

         Ravi Prakash Mehrotra, Mrs. Deepti R. Mehrotra and Garvesh Kabra, for
    the Respondent.

          The following Order of the Court was delivered :
c                                      ORDER

        The facts of this case reveal that an auspicious occasion of marriage
  had turned out to be a funeral ceremony, following a quarrel that ensued
  between the invitees on a flimsy ground. The three appellants therein along /
D with two other, who have been acquitted by the High Court, were charged
  for murdering two persons, namely, Ravindra Singh and Mahendra Singh in
  the night of 20th February, 1977 in the village Tikari, Aligarh District. On trial,
  the appellants were convicted under Section 302 read with 34 IPC and Section
  307 read' with 34 IPC and sentenced to life imprisonment. T~e other two
E accused.- \Yere convicted under Section 302 read with I09 IPC.
          On appeals filed by the accused before the High Court, the conviction
    and sentence of the appellants was upheld by the High Court. The conviction
    of the other two accused was set aside by the High Court giving them the
    benefit of doubt.
F          The prosecution case is that on 20th February, 1977 on the occasion of
    the marriage at the house of Sri Ram Nayi, the bridegroom party (known as
    'Baratis') came to the village and stayed in a Chaupal (Courtyard of the
    house) of one Vikram Singh. There was a dance performance on that occasion.
    At about 8 p.m. Barati after taking their meal went inside the Chaupal to take
G   rest. The acquitted accused, Bhikari and Nawab Singh, belonging to the Barati
    party remained in the Verandah of the house. The deceased Ravindra Singh
    remarked probably as a joke that the dancers have become tired and, therefore,
    Baratis could as well start dancing. Irked by this remark,~some of the members
    of the Barati party protested and it led to heated exchange of words and
H   mutual abuses. At that stage, the acquitted accused exhorted the appellants
    to attack the persons of the group who were involved in the scuffle. It
                    SURESHCHANDRA v. STATEOFU.P.                         761

appears that the three appellants of the Barati party were carrying arms which, A
we are told; was not unusual for the baratis to carry in those rural areas. Then,
according to the prosecution case, the three appellants herein fired at Ravindra
Singh and Mahendera Singh and they died at the spot. Three other persons,
namely, Dwarika Prasad, Karua and Ujagar Singh also sustained injuries from
the shots fired at them by the accused. Karua was examined as PW.5. PW. I,
Nripendra Singh, brother of the deceased, lodged the report with the police B
on the same night.

       The postmortem report reveals that two fire arm injuries were found on
the chest and on the left side of the back of Ravindra Singh. On the body
of Mahindera Singh, a fire arm wound over the left side of abdomen was C
found. A wound 13 cm. below left nipple and IOcm. above umbilicus was also
found. The fire arms (guns)' used by the appellants were seized by PW.12, I.O.
and some empty cartridges found at the scene of offence were also collected
and they were sent to the Ballistic expert whose report is Ex.Ka-31. The said
report was admitted on consent without formal proof. The Ballistic expert
certified that the cartridge EC/I was fired from the gun recovered from the D
appellant Mulayam Singh. The cartridge EC/2 was fired from the right barrel
of D.B.B.L. gun recovered from the appellant Suresh Chandra and EC/4 and
EC/5 from the gun seized from Bhuvnesh Pratap. The recovery memo relating
to the gun and cartridges prepared by the Investigating Officer would show
that the butt and trigger guard of the gun used by the appellant Suresh E
Chandra were in a broken condition.

      This Court granted leave confined to the question whether the conviction
could be converted into one for the offence punishable under Section 304 IPC
instead of Section 302 IPC.
                                                                                 F
     On this aspect; learned counsel for the appellant contended that the
Exception 4 to Section 300 IPC is attracted.

     Exception 4 reads as under:

            Culpable homicide is not murder if it is committed without G
        premeditation in a sudden tight in the heat of passion upon a sudden
        quarrel and without the offender having taken undue advantage or
        acted in a cruel or unusual manner.

        Explanation. - It is immaterial in such cases which party offers the
        provocation or commits the first assault.                            H
    762                     SUPREME COURT REPORTS [2005] SUPP. I S.C.R.
A         Learned counsel for the appellants submits that the incident had
    happened without any premeditation or prior col).cert, upon a sudden quarrel
    and the resultant attack on the victims was unintentional and, therefore, the
    offence would appropriately faII under Exception 4 punishable under Section
    304 Part I or II. We find it difficult to countenance this argument. Though
    there was absence of premeditation and it was a case of sudden fight, that
B   is not sufficient to bring the offence committed by the accused within the
    purview of Exception 4. The further requirement of Exception 4 that the
    offender should not have taken undue advantage or acted in a cruel or
    unusual manner should be satisfied. The very fact that the accused-appeIIants
    used the fire arms in the course of a frivolous quarrel triggered off by the
C   sarcastic remarks of Ravindra Singh would demonstrate beyond doubt that
    the appellants acted in a cruel manner and it would further demonstrate the
    intention to cause death or at any rate, to cause a bodily injury of the nature
    mentioned in clause thirdly of Section 300. Such intention is writ large on the
    acts done by the accused. Thus, it is a case in which Clauses I to III of
    Section 300 !PC are attracted and, as already observed, Exception 4 would not.
D   come to the rescue of the appeIIants for the reason that they have acted in
    a cruel and unusual manner by shooting at unarmed victims who merely
    indulged in a verbal duel with them. The fact that the other two accused who
    were said to have exhorted the three appellants to attack the members of the
    other party were acquitted has no material bearing on the question whether
E   the appellants could be given the benefit of Exception 4. Thus, the argument
    in regard to the nature of offence cannot be sustained. On the facts of this
    case, it is only Section 302 IPC that is attracted.

           Learned Senior counsel Shri P.S. Mishra, appearing for one of the
    appeIIants, relied on three decisions of this Court. In the first two decision
F   viz., Sukhbir Singh v. State of Haryana, [2002) 3 SCC 327 and Surinder
    Kumar v. Union Territory, Chandigarh, [1989) 2 SCC 217, Exception 4 to
    Section 300 was applied where injuries were caused with a 'Bhala' in one case
    and 'knife' in another case in the course of a sudden altercation, and on the
    facts, it was held that the appellants had no intention to kill them nor did they
    act in a cruel or unusual manner. The fact situations in those who cases were
G   different. Shooting with fire-arms from a close range and that too on the vital
    parts of the body makes all the difference in the instant case. Learned Senior
    counsel then cited the decision in Sunder Singh v. State of Rajasthan, [1988]
    Supp SCC 557. In that case, the appellant-accused killed the deceased by
    firing with his gun. The learned Judges having observed that it was not a
H   premeditated fight and that each was asserting that it was his tum to draw
                     SURESHCHANDRAv. STATEOFU.P.                          763

the water, held thus:                                                             A
            "In this circumstance, it would not be wrong to assume that the
        appellant in the exercise of his right got enraged and tried to prevent
        the mischief by the deceased. It seems to us that the action of the
        accused could reasonably be brought under Section 304 Part I, IPC."
                                                                                  B
We find itdifficultto discern the ratio of this judgment. No particular Exception
was referred to in this short judgment. From the few words spoken to by Their
Lordships, we get the impression that the right of self defence was sought
to be exercised by the accused. If Exception 4 was in the minds of Their
Lordships, we would expect a discussion on the point whether all the
ingredients of that provision, including the last part, were satisfied. We C
cannot; therefore, treat this case as a binding precedent applicable to the facts
of this case.

       In the course of arguments, the learned counsel appearing for Suresh
Chandra has argued that his case stands on a different footing and he is D
entitled for benefit of doubt. It is pointed out that as per the recovery memo.
the butt and the trigger guard of his gun were found in a broken condition.
He, therefore, submits that a reasonable inference has to be drawn that the
gun was non-functional as it would have been damaged in the course of
altercation that ensued. Though, according to the order of this Court dated
6.5.2003 the leave was granted only to a limited extent, nevertheless, we E
addressed ourselves to this aspect and we find no substance in the argument
of the learned counsel. The report of the· Ballistic expert negatives the
contention of the learned counsel that the gun would not have been used at
all. The expert did test firing and found, as already noticed, that one of the
empty cartridges seized from the spot could have been fired by the same fire
ann which is a double barrel gun. Either the shot would have been fired before F
the gun got damaged or the partial damage to. the butt and trigger guard
would not have precluded the accused to operate the gun. The learned
counsel for the appellant then drew our attention to the statement recorded
under Section 313 Cr.P.C., in an endeavour to buttress his argument that the
firing was accidental. Having regard to the sequence of events and the G
sudden quarrel, the learned counsel submits that the accidental firing was
highly probable. First of all, if the said plea under Section 313 Cr.P.C. is to be
accepted, it strikes at the root of the argument thatthe gun was non-functional.
Secondly, it is difficult to believe that accidental firing would have taken place
from all the three guns handled by the three appellants at about the same time.
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    764                    SUPREME COURT REPORTS [2005) SUPP. I S.C.R.

A   We have no hesitation in rejecting this contention.

           In the conclusion, we may note that there is overwhelming evidence
    including the evidence of injured witness PW.5 to the effect that all the three
    appellants fired at the victims. Even if they fired indiscriminately without
    targeting any particular person, they cannot escape the punishment for murder.
B   The Ballistic expert's report and cartridges found at the spot of offence and
    the. fire arm injuries found on the deceased and others corroborate the
    prosecution version beyond reasonable doubt. It may be that the appellants
    did not carry the fire arms with the purpose of attacking the persons who were
    present at the wedding venue or that they had no preconceived plan to attack
C   the victims. Even then, all the three appellants enraged by what had happened
    at the venue, deliberately wielded the fire aims held by them to cause injuries
    to the deceased persons. It is a case where the common intention sprang up
    at the spot. The manner in which the appellants took the extreme step of firing
    at victims, causing injuries on the vital parts of their bodies would amply
    demonstrate the common intention that impelled them to resort to the shooting
D   spree then and there.

         Viewed from any angle, we find no ground for interference with the
    judgment of the High Court. The appeals are dismissed.

           Before parting with the case, we would like to observe that the facts and
E   circumstances of this case prima facie justify remission of the sentence to
    some extent. But, having found the appellants guilty under Section 302 read
    with 34 IPC, it is not possible for this Court to reduce the sentence of life
    imprisonment. It is open to the appellants to approach the State Government/
    Governor of the State for the commutation or remission of sentence. We may
F   mention that apart from the unexpected tum of events that have taken place,
    the incident had taken place about three decades back. It is also brought to
    our notice that the appellant, Suresh E:handra is aged about 80 years now and
    he is ailing. We have no doubt that the applications for commutation/remission
    of sentence will be duly considered with expedition, taking into account the
    relevant circumstances.
G
    RP.                                                        Appeals dismissed.