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2010 DIGILAW 2278 (ALL)

Annu v. State of U. P.

2010-07-30

SATYENDRA SINGH CHAUHAN, SHRI KANT TRIPATHI

body2010
This appeal has been filed against the judgement and order dated 28.11.1981 passed by the IInd Additional Sessions Judge, Gonda, thereby convicting the appellant under Section 302 I.P.C. and sentencing him with life imprisonment. 2. The prosecution case as unfolded in the F.I.R. is that deceased Bhaironath was eating betel at the shop of Yadav situated at Golaganj on 16.6.1979 at 8 p.m. While he was taking betel accused Annu Halwai, resident of Pandey Bazar, Gonda also came at the betel shop and asked the deceased to purchase the betel for him. Upon this, the deceased scolded the accused. It is thereupon the accused went to nearby lane and then came back and when he came back the complainant was near the house of Bhola son of Shital. The accused came in rushing and stabbed in the abdomen of the complainant with knife. As soon as the blow was given, the food came out of the abdomen. The deceased raised alarm and fell on the ground. There was commotion on the spot, which attracted Ramesh resident of Maharajganj locality, Patmeshwari Shukla resident of Raja locality and others to the scene of occurrence. The incident was witnessed by them. The accused Annu then ray away along with knife. The source of light was also indicated in the F.I.R. Upon dictation of the complainant, the F.I.R. was written by Arun Kumar Tandon. The deceased was thereafter taken to the police station Kotwali (City), Gonda in a rickshaw by Ramesh where the F.I.R. was lodged at 10.05 p.m. on 16.6.1979 itself, upon which a case under Sections 307/324 I.P.C. was registered at serial no.35 vide chik F.I.R. Ext. Ka-16 and G.D. Entry Ext. Ka-17. The deceased was then sent to District Hospital, Gonda for medical examination with chitthi Majroobi Ext.Ka-18. He was examined by Dr. U.S. Singh, PW-5 at 10.35 pm. on 16.6.1979 itself. 3. The deceased expired at 9.45 p.m. on 17.6.1979 at Balrampur Hospital, Lucknow. The inquest proceedings were held by Sub Inspector, Brij Lal Singh of Police Station Wazirganj, Lucknow on 18.6.1979. He prepared the inquest report and then sent it for post-mortem examination. Post mortem was conducted by Dr. S.N. Tiwari, Pathologist, Balrampur Hospital, Lucknow on 18.6.1979 at 1.30pm and found injuries corresponding to the prosecution story in the nature of incised wound 3 cms.x1 1/2 Cms. He prepared the inquest report and then sent it for post-mortem examination. Post mortem was conducted by Dr. S.N. Tiwari, Pathologist, Balrampur Hospital, Lucknow on 18.6.1979 at 1.30pm and found injuries corresponding to the prosecution story in the nature of incised wound 3 cms.x1 1/2 Cms. X Cavity deep on the upper part of abdomen horizontal, tailing downward, 3 Cms. from the umbilicus 12 O'clock position. He also found eachymasis cut under the injury. Again stomach was found cut through and through with dimensions 2 ½ Cms. X 1 cm., 19 Cms. from the duodenal and of stomach in the middle of stomach at level of pisser curvature. In the opinion of the Doctor death was caused due to shock and haemorrhage as a result of abdominal injury. The dying declaration of the injured was recorded on 17.6.1979 at 1.10 A.M. by the Tehsildar/Magistrate Dharampal, P.W.6. after certification by Dr. U.S. Singh, P.W.5, regarding the mental fitness of the injured up to 1.15 A.M. 4. The investigation was entrusted to Ram Sajiwan Shukla, P.W.7 on 17.6.1979 at 16.35 hours, he started investigating the case and went to the District Hospital, Gonda but he could not find the victim as he stood transferred to Balrampur Hospital, Lucknow for treatment. He thereafter went to the place of occurrence and recorded statements of Ramesh and Patmeshwari. He also made local inspection of the place of occurrence and prepared site plan Ext. Ka-14. Statements of Arun Kumar, Ram Janki, Bhola, Bhagwati and Tribeni were also recorded and search of the appellant was made but he could not be traced. On 20.6.1979 the appellant surrendered before the court of C.J.M. Gonda. After completion of investigation he submitted charge sheet against the appellant on 26.8.1979.Charge under Section 302 IPC was framed against the appellant who pleaded not guilty and claimed to be tried. The appellant in his statement under Section 313 Cr.P.C. attributed his false implication due to enmity. The prosecution produced Arun Kumar, the scribe of the FIR, as P.W.1 Patemeshwari as P.W.2, Ramesh as P.W.3, Shambhu as P.W.4, Dr. U.S. Singh as P.W.5, Tahsildar/Magistrate Dharampal as P.W.6, Investigating Officer Ram Sajiwan Shukla as P.W. 7, Constable Kripa Shanker as P.W.8 and Dr. M. P. Singh as C.W.1. 5. The defence has also produced extracts of Ext. The prosecution produced Arun Kumar, the scribe of the FIR, as P.W.1 Patemeshwari as P.W.2, Ramesh as P.W.3, Shambhu as P.W.4, Dr. U.S. Singh as P.W.5, Tahsildar/Magistrate Dharampal as P.W.6, Investigating Officer Ram Sajiwan Shukla as P.W. 7, Constable Kripa Shanker as P.W.8 and Dr. M. P. Singh as C.W.1. 5. The defence has also produced extracts of Ext. Kha-1/1 to Kha 1/5 of bed head ticket, letter of investigating officer for receipt of dying declaration addressed to the Chief Judicial Magistrate, Ext. Ka-2, copy of surety bond of Vijay Bahadur Singh Ext. Kha.-3, copy of FIR in State Vs. Bhaironath, Ext. Kha-4 and copy of FIR in State Vs. Bhaironath Ext. Kha-5. 6. The prosecution adduced evidence in support of his case and defence was given liberty to prove his case. 7. Learned IInd Additional Sessions Judge, Gonda, on the basis of evidence adduced by both the parties found the charge under Section 302 IPC proved against the appellant and, therefore, he convicted him for life imprisonment by means of judgement and order dated 28.11.1981. The appellant filed the present appeal against the aforesaid judgement and order questioning the life sentence awarded to him. 8. Submission of learned counsel for the appellant is that the deceased was not in fit mental physical condition at the time when dying declaration was recorded. He also submitted that if he was in fit state of mind at the time of recording the dying declaration, correct name of the accused must have been disclosed instead of Annan @ Annu indicated in the dying declaration. He has also stated that Dr. M.P. Singh, has supported the version of the appellant that the deceased was not in fit mental condition to give dying declaration. His further submission is that place of occurrence could not be proved by the prosecution and in fact the place of occurrence, as pleaded by the prosecution is different in comparison to what has been set out initially in the FIR. He also submits that accused has wrongly been shown resident of Galla Mandi and the address of the accused has also been disclosed different. The residence of the accused has been given as Gallamandi in the dying declaration instead of Pandey Bazar. He also submits that accused has wrongly been shown resident of Galla Mandi and the address of the accused has also been disclosed different. The residence of the accused has been given as Gallamandi in the dying declaration instead of Pandey Bazar. It has further been argued that in the dying declaration the address of the appellant was given as Gallamandi whereas the accused is resident of Pandey Bazar so this itself goes to indicate that the deceased was not in a fit state of mind to give dying declaration and in fact he has failed to identify the accused. 9. Learned AGA, on the other hand, has submitted that in the dying declaration complete address has been given and in fact full address is Galamandi (Pandey Bazar). Looking to the condition of the victim at the time of giving dying declaration, no discrepancy can be attributed and either it can be said that the victim was not in a fit state of mind to give dying declaration as no such plea has been raised under Section 313 Cr.P.C. by the accused-appellant in that regard. He has also submitted that clarification has been given by the P.W.8 Kripa Shanker, who registered the FIR and was posted as Moharrir in the police station on the date of lodging of the FIR. In the cross examination he has clarified that owing to the mistake he has written Pandey Bazar as a mention was made in the FIR but at the same time the place of occurrence was indicated as Golaganj and, therefore, argument of learned counsel for the appellant is baseless and is against the record. 10. Doctor has certified the fit state of mind of the victim to give dying declaration and the Tahsildar/Magistrate has recorded the dying declaration. The court witness, C.W.1 Dr. M.P. Singh has rather supported the version of Dr. U.S. Singh, P.W.5, the emergency Medical Officer, who was attending the victim and he stated that during the period he stayed in the hospital, the condition of the injured improved and it is during this time the dying declaration was recorded. 11. The court witness, C.W.1 Dr. M.P. Singh has rather supported the version of Dr. U.S. Singh, P.W.5, the emergency Medical Officer, who was attending the victim and he stated that during the period he stayed in the hospital, the condition of the injured improved and it is during this time the dying declaration was recorded. 11. Learned AGA has also denied the other limb of argument raised by the learned counsel for the appellant that the case of the appellant will be covered under Section 304-Part-I IPC and has submitted that trial court has rightly convicted the appellant under Section 302 IPC and the said argument will not be available to the appellant. 12. After hearing learned counsel for the parties we propose to discuss the points of arguments which have been raised during the course of arguments : 13. First, foremost and forceful argument has been raised on behalf of appellant that the victim was not in a fit state of mind and, therefore, the dying declaration recorded can not be believed. It is also stated that physical and mental condition of the victim was not such that dying declaration could be recorded and in fact according to the bed head ticket of the Balramapur Hospital his condition was not such that dying declaration could be recorded. The dying declaration mentions incorrect address of the appellant and also the name Anan has been mentioned in place of Annu so the dying declaration can not be relied upon. The aforesaid contention of the learned counsel for the appellant does not support the case of the appellant on account of the fact that P.W.5 Dr. U.S. Singh has clearly stated that he has certified the mental condition of the victim that he was in fit mental state of mind to give dying declaration. It is evident from Ext. Kha-2 that this certificate was given after recording the dying declaration. He certified that the victim was in a fit state of mind and in fit condition to give dying declaration. The prosecution witness Dr. U.S. Singh, was examined as P.W.5 and he was subjected to lengthy cross examination and in the cross examination he has specifically stated that expert Dr. He certified that the victim was in a fit state of mind and in fit condition to give dying declaration. The prosecution witness Dr. U.S. Singh, was examined as P.W.5 and he was subjected to lengthy cross examination and in the cross examination he has specifically stated that expert Dr. M. P. Singh was called by him to attend the injured but at the same time he also stated that in the bed head ticket it was not written that the injured was able to speak or not. The suggestion made that the injured was not in fit mental condition was specifically denied and the certificate issued was reiterated by the said witness. Dr. M. P. Singh was summoned as court witness, who also specifically stated that the condition of the injured was improving and he also stated that on account of improvement the blood pressure of the injured could be recorded. The suggestion in regard to Haematoma was made but the said suggestion was specifically denied by stating that the said condition was not prevailing with the injured. 14. Law in regard to dying declaration has been settled by the apex Court in various judgements and if any suspicion or ambiguity is sought to be raised by any person and if the Doctor has certified the condition then the Court have to take such condition acceptable and the arguments in support of doubt were negatived by the apex Court. 1- In the case of Shakuntala (Smt.) Vs. State of Haryana, (2007) 10 SCC 168 : ( AIR 2007 SC 2709 ) the apex Court has held as under :- "that dying declaration recorded by the Judicial Magistrate after being certified by Doctor that the deceased was in a fit condition to make dying declaration, the trial court found the dying declaration to be acceptable and relying on the evidence of PWs condition was recorded. The appellant's stand, that the dying declaration was not believable, was not accepted. " 2- In the case of Vikas and others Vs. The appellant's stand, that the dying declaration was not believable, was not accepted. " 2- In the case of Vikas and others Vs. State of Maharasthra , (2008)2 SCC 516 : (AIR 2008 SC (Supp) 1356 the apex Court has held as under :- "It was held that 'the Magistrate who recorded the dying declaration was examined as a witness and he categorically deposed that at the hospital, on being asked, the Doctor told her that the deceased was conscious and in a fit mental condition. It was held that it was sufficient to come to the conclusion that dying declaration was proper and could be relied upon." 3- In the case of Shanmugam alias Kulandaivelu Vs. State of T.N. (2002) 10 SCC 4 : ( AIR 2003 SC 209 ) the Court has held as Under :- "It was held that the Magistrate, who recorded statement, was satisfied that the victim was conscious enough to make statement". 4- In the case of Shree Vijayakumar and another Vs. State, by Inspector of Police, Kanyakumari, (2005)10 SCC 737 : (2005 AIR SCW 3067) the apex Court has held as under :- "The evidence of Magistrate is unequivocal that the deceased was conscious and was able to answer the questions. The certificate of the doctor (Dr. Lalita Kumari) who was with him was also obtained on the dying declaration. If some persons other than the accused attacked and burnt him there is no reason why the deceased should have thought of implicating the accused while leaving out the real culprits." 5- In the case of Laxman Vs. State of Maharashtra, (2002)6 SCC 710 : ( AIR 2002 SC 2973 ) the apex Court has held as under :- "The Court also in the aforesaid case relied upon the decision of this Court in Harjit Kaur V. State of Punjab, (1999)6 SCC 545 wherein the Magistrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not render the dying declaration suspicious in any manner." 6- In the case of State of Rajasthan Vs. Kishroe, AIR 1996 SC 3035 , the apex Court has held as under :- "It is settled law by series of judgements of this Court that the dying declaration, if after careful scrutiny the Court is satisfied that it is true and free from any effort to include the deceased to make a false statement and if it is coherent and consistent, is no legal impediment to form such dying declaration the basis of conviction, even if there is no corroboration vide Tarachand Damu Sutar v. State of Maharashtra, (1962) 2 SCR 775 : ( AIR 1962 SC 130 ); Kusa V. State of Orissa, (1980) 2 SCC 207 : ( AIR 1980 SC 559 ) ; Meesla Ramakrishnan v. State of A.P. (1994) 4 SCC 181: (1994 AIR SCW 1978): Goverdhan Raoji Ghyare v. State of Maharasha 1993( Supp.) 4SCC 316 : (1993 AIR SCW 2971) and Gangotri Singh v. State of U.P., 1993 (Supp.) 1 SCC 327 : ( AIR 1992 SC 948 ) 15. In the aforesaid background the argument of the appellant counsel fails and is hereby rejected. 16. The arguments raised in regard to the address mentioned in the dying declaration is also of no help to the appellant on account of the fact that the appellant is resident of Pandey Bazar (Gallamandi) as the investigating officer who has recorded the statement of the witnesses has mentioned Pandey Bazar (Gallamandi). P.W.8 Constable Kripa Shanker has also clarified the doubt created by the defence that Pandey Bazar was written inadvertently by the said Constable while registering the FIR and in fact the place of occurrence was Golaganj as mentioned in the FIR so the argument of the learned counsel for the appellant fails. 17. In this case the deceased had himself dictated the FIR and on his dictation the FIR was written by Sri Arun Kumar Tandon, P.W.1, who has proved the FIR. The ocular evidence has come on record that the deceased had himself lodged the FIR promptly implicating the appellant as assailant. The FIR, therefore, corroborates the testimony of the eye witnesses and dying declaration. 18. The ocular evidence has come on record that the deceased had himself lodged the FIR promptly implicating the appellant as assailant. The FIR, therefore, corroborates the testimony of the eye witnesses and dying declaration. 18. Learned counsel for the appellant has also tried to point out some discrepancies in the prosecution witnesses who have supported the prosecution story having material contradiction but there is nothing on record to indicate that any doubt has been created in the prosecution case but in fact scribe Arun Kumar Tandon, P.W.1, Patmeshwari P.W.2, Ramesh P.W.3, Shambhu as P.W.4, have fully supported the prosecution case when the incident had occurred in the early hours of the evening i.e. at about 8.00PM and it was in the midst of the market the presence of the witnesses can not be denied and, there was ample source of light in the market from the electric pole as well as from the near by shops. The appellant gave blow to the deceased in the midst of the market so it can not be said that he has been falsely implicated. The prosecution witnesses although have been subjected to lengthy cross examination but their statements inspire confidence as the sequence of events and the incident narrated by all three witnesses are in order. Right thumb impression was appended on the FIR on account of the fact that the injured was holding/tapping injury by his left hand which was profusely bleeding. The blood was also not found on the place of occurrence as investigating officer has specifically recorded in his investigation and has also stated in his cross examination that owing to the rains in the intervening night no blood was found on the spot. 19. The only point which appeals to the court is in regard to the culpability of the appellant so far the incident has taken place on the face value, as also mode and manner of assault on the basis of which it has to be seen as to whether the appellant has come with predetermined mind or pre-plan or there was any pre-existing enmity or that incident has taken place on spur of moment. The sequence of events narrated in the FIR is that the accused tried to force the deceased to provide him betel which was denied by the deceased and he rather scolded the appellant. It is so from the above state of affair. The sequence of events narrated in the FIR is that the accused tried to force the deceased to provide him betel which was denied by the deceased and he rather scolded the appellant. It is so from the above state of affair. it is apparent that whatever happened that happened on spur of moment on the spot and in absence of predetermined planning or any enmity and also there being no motive on which the act of appellant can be termed to be an offence punishable under Section 302 IPC or any of the exception provided under Section 300 IPC. It is to be noted that only a single blow was given and thereafter the appellant ran away and this blow was given as a result of the scolding the appellant by the deceased. 20. In the case of Bangaru Venkata Rao Vs. State of Andhara Pradesh ,(2008) 9 SCC 707 (AIR 2008 SC (Supp) 426) Hon'ble apex Court has held as under :- "In support of the appeal, Mr. Karpaga Vinayagam, learned Amicus Curiae has submitted that even if it is accepted that the appellant was not exercising the right of private defence, the conviction under Section 302 is not proper. It is further submitted that the evidence on record clearly establishes that there was sudden quarrel between the accused and the deceased and single blow was given, and, therefore, the conviction under Section 302 is not proper. Considering the factual back ground, in our considered view the appropriate conviction would be under Section 304 Part I IPC. Custodial sentence of 10 years would meet the ends of justice." 21. In the case of Guljar Husain Vs. State of U.P., 1993 Supp. (1) SCC 554, the apex Court held as under :- "Single knife blow inflicted in abdomen of deceased resulting in death within two hours - In the circumstances conviction altered from Section 302 IPC to Section 304 Part-I IPC and sentence altered from life imprisonment to 10 years' RI." 22. The apex Court while considering the case arising in the aforesaid mentioned background has taken a view that in such circumstances the conviction would lie under Section 304 Par-I IPC and it will be covered under the exception to Section 300 IPC. 23. The apex Court while considering the case arising in the aforesaid mentioned background has taken a view that in such circumstances the conviction would lie under Section 304 Par-I IPC and it will be covered under the exception to Section 300 IPC. 23. Considering the aforesaid dictum of the apex Court and looking to the entire evidence on record and the facts and law discussed, we are of the opinion that the appellant's conviction under Section 304-Part-I IPC with sentence of ten years R.I. And a fine of Rs. ten thousand would suffice the ends of justice. 24. The appeal is partly allowed and the judgement of conviction and sentence of the appellant under Section 302 IPC is altered into Section 304 Part-I IPC. The appellant is accordingly, convicted and sentenced to undergo ten years R.I. and also to pay a fine of Rs. 10,000/-. In default of payment of fine, he shall undergo a further period of six months R.I. 25. C.J.M. concerned is directed to take the appellant in custody and send him to Jail to serve out the sentence awarded and send the compliance report to this Court within a month. 26. Let the lower court record be transmitted back to the court concerned forthwith along with a copy of the judgement.