The Allahabad High Court has converted the conviction for murder under Section 302 IPC to culpable homicide not amounting to murder by applying Exception IV to Section 300 IPC.
To attract Exception (IV) to Sec 300 IPC the following 4 essential ingredients are must, i.e. the overt act must be:-
From the facts of the case, the division bench of Justices Pankaj Naqvi and Umesh Kumar noted that all four ingredients were present.
The prosecution is that in the earlier part of the day, a verbal dual between the victim and accused Vijay Kumar followed by assault on the victim, had taken place over demand of certain outstandings and at the same day around 6:00 P.M, while the victim was coming from the market, he came across the accused-appellants in front of their house. Accused Vijay Kumar was armed with a countrymade pistol and his father Muneshwar Dayal with a licensed gun. As a sequel to the incident of the earlier part of the day, accused Muneshwar Dayal inflicted repeated blows from his gun from the butt side at the deceased and when the victim shouted, accused Vijay Kumar fired at him from his countrymade pistol.
Regarding the presence of ingredients of Exception IV, the Court observed :
"This first assault at the victim is by accused Muneshwar Dayal. No damage or injury was caused to accused Muneshwar Dayal (father of accused Vijay) by the deceased who was unarmed. The evidence against Muneshwar Dayal does not establish that he had any intention of causing any fatal injury to the deceased as he was using his gun like a lathi, thus his role will have to be treated distinct from that of accused Vijay. The evidence indicates use of a countrymade pistol by accused Vijay in a fit of rage, which caused fatal injury to the deceased. The evidence further indicates that prior to the overt act, there was complete absence of any premeditation to murder the deceased. The first ingredient of Exception (IV) to Section 300 IPC is established. The son (accused Vijay), retaliated with the use of a countrymade firearm in a fit of anger, when he saw his aged father (accused Muneshwar Dayal) hitting at the victim with the butt-side of his gun. Thus, the second and third ingredients also stands established, i.e., accused Vijay fired a shot in sudden fight upon heat of passion. The prosecution has also alleged that accused fired a solitary shot also authenticated by the medical evidence that the deceased was inflicted with injury no.7 and 8.
The fourth ingredient also gets established as the evidence does not indicate that accused Vijay resorted to any unfair advantage as after causing single fire-arm injury at the deceased, he did not inflict any injury after the deceased fell down."
The sentence of appellant was altered to Section 304(1) IPC with 10 years R.I.
A recent judgment of the Supreme Court has also applied the exception IV of Section 300 to alter a Section 302 conviction to Section 304, Part I.
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