SUPREME COURT OF INDIA

Before:- U.C. Banerjee and Shivaraj V. Patil, JJ.

Criminal Appeal No. 709 of 1994. D/d. 28.8.2002.

State of U.P. - Appellant

Versus

Ram Autar - Respondent

Indian Penal Code, 1860, Sections 302 and 304 Part II - Murder - Sudden provocation - Harsh words exchanged between two groups, followed by a scuffle - Respondent/Accused left the spot and brought a gun from his house and then blasted deceased with 7 gun shot injuries - Scuffle and going to house and picking up gun not a part of one transaction - Conversion of charge by High Court from Section 302 to 304 Part I - Held, not proper - Hence, set aside.

[Para 4]

ORDER

The State of Uttar Pradesh is in appeal against the judgment of the High Court at Allahabad wherein three out of the four accused persons were given benefit of doubt on a charge under section 302 of the Indian Penal Code and thus acquitted. The conviction and sentence of Ram Autar original accused No. 2, under section 302 of the Indian Penal Code was set aside and instead thereof he was convicted under section 304 part I of the Indian Penal Code.

2. The learned advocate appearing in support of the appeal has been rather vocal in regard to this conversion, since, according to him, the facts and circumstances of the matter under consideration do not warrant such conversion of charge from section 302 to section 304 part I of the Indian Penal Code. The High Court while dealing with the matter, however, recorded that as regards the question of activities of Ram Autar is concerned, he got provoked on being insulted by the words of Shiva Parkash as a result of which being deprived of self control he did this act.

3. The High Court further came to the conclusion that the participation of Rain Autar stands established beyond doubt. At this juncture, a brief recapitulation of the factual score may be of some convenience. There was admittedly exchange of harsh words between the two groups of people by reason where for scuffle followed. It is at this juncture Ram Autar, however, left the place, went to his house and got hold of his father's gun and collected the cartridges, came on to the spot and blasted Shiva Prakash with about 7 gun shot injuries. The High Court ascribed it to be a sudden provocation and converted the sentence into 304 part I of the Indian Penal Code as against under Section 302 of the Indian Penal Code.

4. Incidentally, this Court while rejecting the special leave petition of the State as against the orders of acquittal as regards respondent Nos. 1, 3 & 4, namely, Radhey Shayam son of Kalyan Singh; Ram Sumaran son of Radhey Shyam and Ram Ladhetary son of Sri Ram, granted leave against Ram Autar whose conviction has been altered from section 302 to 304 part I of the Indian Penal Code, as noticed above. The sudden provocation theory, as relied upon by the High Court, however, fall short of acceptance by reason of departure of Ram Autar from the scene of occurrence and arrival at his house to pick up his father's gun, and collection of the cartridges and coming back to the scene of occurrence. This is a situation which obviously is beyond the purview of the sudden provocation doctrine. The High Court by reason of treating both the instances to wit (a) scuffle and (b) going to the house and picking up the gun and the cartridges as a part of one transaction has thus committed a gross error resulting in manifest injustice. We do feel it expedient to record that question of conversion of charge from section 302 to 304 part I of the Indian Penal Code in the contextual facts, as noticed above, does not and cannot arise. The High Court committed a gross error. The order of the High Court as regards Ram Autar is concerned thus cannot be sustained and stands set aside and that of the learned sessions judge stands restored. The appeal is allowed. The trial Court is directed to secure the attendance of the respondent - Ram Autar for serving out the remaining part of his sentence.

Appeal allowed.