AWADHESH KUMAR versus STATE OF U.P. & ANR.

Citation: [2019] 17 S.C.R. 185 · Decided: 08-11-2019 · Supreme Court of India · Bench: ARUN MISHRA, M.R. SHAH, S. RAVINDRA BHAT · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A
B
C
D
E
F
G
H
185
AWADHESH KUMAR
v.
STATE OF U.P. & ANR.
(Criminal Appeal No. 1670 of  2019)
NOVEMBER 08, 2019
[ARUN MISHRA, M. R. SHAH AND
S. RAVINDRA BHAT, JJ.]
Penal Code, 1860: s.304 Part I – Appeal by complainant
challenging the impugned order whereby High Court partly allowed
the appeal of original accused no.1-respondent no.2 and converted
his conviction from s.302 to s.304 Part I – Prosecution case was
that on the fateful day, complainant’s mother made grievance to
respondent no.2 regarding the bad behaviour of his nephew-
accused no.2 – At that time, accused no.3 and 4 were also present
there – All the accused persons started fighting with her – When
the accused were asked to go away from there, accused no.2 to 4
exhorted respondent no.2 to fire at her – Respondent no.2 fired
with his country made pistol which resulted in her death – Trial
Court convicted respondent no.2 u/s.302 as the specific role of
firing was attributed to him while other 3 accused were acquitted
– High Court partly allowed the appeal of respondent no.2 holding
that the case fell under Exception 4 to s.300 and converted
conviction to s.304 Part I  on the grounds that it was not a planned
crime; that there was no prior intention; and that it took place in
the heat of passion and in the spur of the moment – Aggrieved
complainant filed instant appeal – Held: None of the persons from
the complainant side, including the deceased, was having any
weapon – There was no further grave and sudden provocation by
the deceased which led to the accused to fire on her and, that too,
from a very close range – By the accused firing from a close range,
the accused was supposed to know that it was so imminently
dangerous that it must, in all probability, cause death or such bodily
injury as was likely to cause death – In the facts and circumstances
of the case, High Court materially erred in applying Exception 4
to s.300 – The judgment passed by trial court convicting
respondent No. 2 u/s.302 is restored.
   [2019] 17 S.C.R. 185
185
A
B
C
D
E
F
G
H
186
SUPREME COURT REPORTS
[2019] 17 S.C.R.
Allowing the appeal, the Court
HELD: The material/evidence on record, the deposition
of the original complainant and the case of the prosecution
proved that the incident in question took place half an hour after
there was abusive language used by the cousin of original
accused No. 1 with the deceased. The deceased made a
grievance to accused No. 1-respondent No.2 with respect to the
abusive language used by accused No.2  (cousin of original
accused No. 1) and, in that moment, respondent No. 2 started
abusing.  At that time, the deceased and others told them not
to use abusive words in future and told them to go away.
Respondent No. 2 told the deceased and others not to challenge
him and he said “Do you not know that I have been convicted,
now I do not have any kind of fear”.  Thereafter, respondent
No. 2  fired from close range.  None of the persons from the
complainant side, including the deceased, was having any
weapon.  There was no further grave and sudden provocation
by the deceased which led the accused to fire at the deceased
and, that too, from a very close range. In the facts and
circumstances of the case, the High Court has materially erred
in applying Exception 4 to Section 300 IPC by holding that it
was not a planned crime and there was no prior intention and it
took place in the heat of passion and in the spur of the moment.
In view of the material/evidence on record, the case fell under
clause fourthly to Section 300 IPC and, therefore, the Trial Court
was right in convicting the accused for the offence punishable
under Section 302 IPC. [Paras 8.1, 8.5, 8.6, 9] [190-C-G; 191-
D-E]
Bhagwan Munjaji Pawade v. State of Maharashtra
(1978) 3 SCC 330 – referred to.
Case Law Reference
(1978) 3 SCC 330
referred to
Para 8.3
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1670 of 2019.
From the Judgment and Order dated 18.12.2015 of the High
Court of Judicature at Allahabad, Lucknow Bench, Lucknow in Criminal
Appeal No. 2517 of 2009.
A
B
C
D
E
F
G
H
187
Shail Kumar Dwivedi, Siddharth Krishna Dwivedi, Ms. Vibha
Dwivedi, Ms. Nidhi Dwivedi, Advs. for the Appellant.
Ratnakar Das, Sr. Adv., Adarsh Upadhyay, Ms. Garima Prashad,
Anukul Raj, Shantanu Krishna, Shashank Shukla, Ms. Nikita Raj,
Shikhre Deep Aggarwal, Advs. for the Respondents.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Leave granted.
2. Feeling aggrieved and dissatisfied with the impugn

Excerpt shown. Read the full judgment & AI analysis in Lexace.