ATUL THAKUR versus STATE OF HIMACHAL PRADESH ETC. ETC.

Citation: [2018] 1 S.C.R. 245 · Decided: 19-01-2018 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Case Partly allowed

Judgment (excerpt)

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ATUL THAKUR
v.
STATE OF HIMACHAL PRADESH ETC. ETC.
(Criminal Appeal Nos. 522-523 of  2016)
JANUARY 19, 2018
[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
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
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
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
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
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
[2018] 1 S.C.R. 245
245
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SUPREME COURT REPORTS
[2018] 1 S.C.R.
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
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
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
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-
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
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
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 

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