Non-Reportable  

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No. 1842 of 2012  

THE STATE OF UTTAR PRADESH                                                                           

         .... Appellant(s) Versus

FAQUIREY                                              ….Respondent(s)

J U D G M E N T

L. NAGESWARA RAO, J.  

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 1

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 the record.”       

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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

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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

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has  undergone  the  sentence  of  10  years  which  is  an

additional reason for us not to reverse the judgment of the

High Court.  

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

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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

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Respondent is directed to surrender within a period of four

weeks to serve the remaining sentence.  

10. Accordingly, the appeal is allowed.

                                              …................................J                                                                        [L. NAGESWARA RAO]

                                                                       ..……..........................J                                                                          [SANJAY KISHAN KAUL]

      New Delhi, February 11, 2019

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