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2012 DIGILAW 2821 (ALL)

BABBU v. STATE OF U. P.

2012-12-06

ANIL KUMAR AGARWAL, VINOD PRASAD

body2012
Anil Kumar Agarwal, J. All the three connected appeals by the three appellants Babbu, Hanif and Khursheed have been preferred against the impugned judgement and order of conviction and sentence dated 27.1.1982, recorded by Sessions Judge, Moradabad in S.T. No.407 of 1981, State Vs. Khursheed and others. By the impugned judgment, appellant Khursheed was convicted u/s 302 I.P.C. whereas rest of the two appellants, Babbu and Hanif, are convicted u/s 302/34 I.P.C. All of them, however, have been sentenced to imprisonment for life for that crime. Hence, this appeal. Background facts/ prosecution allegations, which has germinated these appeals were narrated in the written FIR Exhibit Ka-4 and was deposed during the trial by the two fact witnesses Mohd. Jamil,P.W.3, maternal uncle of deceased Iqram and Smt. Noor Jahan,P.W.4, mother of the deceased. From the perusal these evidences it is evident that informant Mohammad Jamil, P.W.3, was the brother-in-law of one Mohd. Imran, father of the deceased Iqram. Mohd. Imram and his wife PW4, had nine children including three sons and six daughters. Three years prior to the present incident, Mohd. Imran had expired. His widow, PW4 and her children resided in Awas Vikas Colony, in Lajpat Nagar locality in their own house. Iqram ( deceased) was the sole bread earner of the entire family. All the appellants also resided in the same locality of the deceased and two of the accused Hanif and present appellant Babbu were the pals of Khursheed. These appellants wanted to be friendly with the deceased because he had young damsel sisters and for that reason they were pressuring the deceased to work with them, but since deceased had sensed their sinister motives, he at all times thwarted their design by refusing to abide by their requests. In the presence of the informant Mohd. Jamil, P.W.3, also accused and the deceased had a conversation about it and accused had threatened the deceased by warning him that if he will not work with them, they will not allow him to reside in Lajpat Nagar locality. Informant used to visit his sisters and nephews for enquiring about their welfare of and on. On the incident date, 11.6.1981, informant P.W.3 visited his widow sister Noor Jahan, when deceased Iqram was also present. Informant used to visit his sisters and nephews for enquiring about their welfare of and on. On the incident date, 11.6.1981, informant P.W.3 visited his widow sister Noor Jahan, when deceased Iqram was also present. At 10 p.m., accused Khursheed, ( since demised) called the deceased, who came out of house and told him as to why they are behind his soul and in between two of them a triadic verbal onslaught ensued, which also attracted informant and his widow sister Noor Jahan, who both came and stood by main door. Meanwhile, other eye witnesses Nazim and Chhotey also arrived there. Khursheed was armed with a knife. At that moment present appellant Babbu instigated his other associates, on which accused Hanif wrapped his arm around the deceased and accused Khursheed pierced his knife in deceased abdomen. Informant and others tried to apprehend the assailants but they made their escape good from the incident scene. Pressing the sustained stab wound, deceased staggered inside his house and fell down on a cot. His injury was tied with a bed cover ( chadar). This incident was seen by the witnesses in the light of the bulb, which was lightning at the door of the deceased's house. Although injured/deceased was carried to the hospital in a rickshaw, but no sooner it arrived at the hospital, deceased lost the battle for his life and expired. His dead body, therefore, was put in the hospital mortuary. Informant Mohd. Jamil P.W. 3, thereafter, dictated the FIR Ext. Ka-4, to scribe Hafiz Shami Khan and after verifying it's contents informant signed it and then he carried his FIR to police station Katghar, District Moradabad, where he lodged his FIR as crime no.379,u/s 302 IPC, same day at 11.45 p.m. against the three named assailants. H.C.Nirbhay Shanker Saxena P.W.2, registered the crime by preparing chik FIR Exhibit Ka-2, who also inked the crime registration G.D. Exhibit Ka-3. Inquest on the cadaver of the deceased was performed by S.I. Syed Saeeq Hasan on 12.6.1981 in the hospital, who had prepared inquest memo and other relevant documents of photo lash, challan lash etc., which are Exhibits Ka-5 to 8. Sealing the dead body, the cadaver was handed over to Ram Kumar and Jagdish to be carried to the mortuary for autopsy purposes. Sealing the dead body, the cadaver was handed over to Ram Kumar and Jagdish to be carried to the mortuary for autopsy purposes. S.I. Dal Chand P.W.8 commenced investigation into the crime recorded 161 Cr.P.C. statement of the informant at the police station itself and thereafter proceeded for the spot. Spot inspection was conducted by the I.O., who prepared the site plan Exhibit Ka-11. Place "C" was shown as the place where the bulb was lighting at the time of the incident. The said bulb was seized and recovered and recovery memo Exhibit Ka-9 was sketched. At place "B", injured deceased had lied down on the cot and therefore bed sheet and mattress ( gadda), material Exhibits 2 and 3, were blood soaked and consequently I.O. seized both of it by slating recovery memo Ext. Ka-12. Thereafter, the eye witnesses were interrogated and subsequent thereto accused Hanif was arrested from his in-laws house. The weapon of the assault,Exhibit-1, stained with blood was also recovered by the I.O. at the pointing out of said accused and recovery memo Exhibit Ka-10, in that respect was prepared. Site plan regarding the place of the recovery is Exhibit Ka-13. Concluding investigation, I.O. had charge sheeted the accused on 26.6.1981 vide Exhibit Ka-14. Autopsy on the cadaver of the deceased was performed by an Orthopaedic Surgeon Dr. Rajesh Kumar Misra, P.W.-1, on 12.6.1981 at 4.30 p.m. The body was identified to him by constables Jagdish Chandra and Ram Kumar of P.S. Kotwali district Moradabad. The doctor had noted that the deceased was 25 years of age having an average built body and rigor mortis was passing off from his upper extremities and was present in lower limbs. Post Mortem staining was present on the back. Eyes of the corpse was half closed. Following ante mortem injuries was noted by the doctor in the post mortem examination report, Exhibit Ka-1:- "1. Incised wound 3 cm x 1 cm on thedorsum of left index finger ( Proximal phalynx). 2. Incised would 24 cm x 14 cm viscera deep on the front of abdomen 3 cm above the umbilicus at 11 O clock position towards fight side direction upwards and back Ards." On the internal examination, it has found that both the chambers of the heart were empty, peritoneum was cut, abdominal cavity contents 3 litres of blood. Abdominal aorta was also cut. Abdominal aorta was also cut. 350 grams of partially digested food of rice and dal was present in the stomach. Some digest food was present in the small intestines. Gases and faecal matter was present in the large intestines. Right lobe of liver was cut. In doctor's estimation, death was due to shock and haemorrhage because of the sustained injury and one day had lapsed since demise of the deceased. The cause of death was injury no.2, which could have been inflicted at or about the time of the incident and death might have been instantaneous after injury being inflicted upon him. Charge sheeting of the accused resulted in their summoning by the Committal Court by C.J.M., Moradabad, who finding the disclosed offences Sessions triable, committed the case to the Court of Sessions, for trial, where it was registered as S.T. No.407 of 1981, State Vs. Khursheed and others. Sessions Judge, Moradabad, charged accused Khursheed under section 302 I.P.C. and rest of the accused under section 302/34 I.P.C. on 21.10.1981.The aforesaid charges were read out and explained to the accused, who all after understanding the same, abjured and claimed to be tried and consequently to establish their guilt and bring home the charge, Sessions trial procedure was adopted by the learned trial Judge to prosecute all the accused. During the trial prosecution tendered eight witnesses, wherein informant Mohd. Jamil P.W.3, Smt. Noor Jahan P.W.5 and Najim P.W.6 figured as fact witnesses. Rest of the witnesses were doctor and police personals including the I.O. as formal witnesses. In their statements under section 313 Cr.P.C., all the accused took a usual common defence of their false implication and the witnesses being inimical to them. In their defence they examined Iqbal Ahmad, a Junior Engineer in Hydel Department as D.W.1. As is already mentioned in the opening paragraph of the judgment, learned trial Judge after marshalling of facts, critically appreciating facts and circumstances of the case and the evidences of the witnesses tendered during the Sessions Trial, opined that the prosecution had successfully anointed accused guilt on both the counts and therefore, convicted all of them for those respective charges and imposed the sentence of life imprisonment, vide impugned judgement and order dated 27.1.1982, which judgement has now been assailed before us in this appeal. Pending consideration and final outcome of the appeal, two of the accused appellants, namely, Khursheed and Haneef, in Criminal Appeal Nos.340 of 1982 and 257 of 1982, expired and their appeals were abated by this Court by our earlier predecessor Bench. We are now left to deal with the appeal of appellant Babbu only in Criminal Appeal No.258 of 1982, which we proceed to decide by this Judgment. Since, nobody appeared to argue the appeal on behalf of the sole surviving appellant, we appoint Miss Ibha Sinha as amicus curiae to assist the Court in final disposal of the appeal, which was already saddling in the dockets of this Court more than three decades and have heard her. We have also heard Sri Sangam Lal Keherwani, learned AGA in opposition and have ourselves perused the entire trial Court record including witnesses testimonies. Learned amicus curiae after taking us through various depositions, both of fact and formal witnesses failed to harp much on the conviction of the appellants and resiling from her gallant effort to dislodge the entire prosecution version, at last, urged that there is no material evidence on record which can discredit conviction of the appellant. She failed to point out any damaging evidence, which even slightly can damage the prosecution case. At last learned amicus curie centred her submissions only on the offence being proved against the appellants. According to her even if entire prosecution allegations are considered to be well established there is absence of credible evidence to prove that common intention of the members of the all the accused was to annihilate the deceased and hence conviction of the appellant u/s 302 I.P.C. with the aid of section 34 I.P.C. is unsustainable and infallible. The reasons advanced for such a submission was that the actual assault had preceded with a verbal tirade and a single blow with knife was hurled at the deceased. Two other accused besides the dead accused Khursheed were unarmed and the incident occurred at the sour of the moment without any pre meditation. It is also not known as to whether Khursheed also intended to cause that injury which has been sustained by the injured contended learned amicus curie. She, therefore, urged that the appellants be convicted only for offence u/s 304 part ( II) I.P.C. and be sentenced accordingly. It is also not known as to whether Khursheed also intended to cause that injury which has been sustained by the injured contended learned amicus curie. She, therefore, urged that the appellants be convicted only for offence u/s 304 part ( II) I.P.C. and be sentenced accordingly. On the question of sentence it was suggested that the appellants be let off on minimal substantive jail term with some fine considering the years gone by and looking to age and absence of any criminal background and proclivities. While sniping appellant's contentions learned AGA supported the impugned judgement and order by submitting that guilt of the appellant has been established u/s 302 I.P.C. and appeal be dismissed and sentence be confirmed. Vetting of rival submissions and perusal of record reveals that the parties to the incident were well known to each other and they resided in the same locality. The fact that deceased father and died few years ago and he was sole bread earner of his family has also not been challenged by the accused, who has also not questioned the fact that deceased had young unmarried sisters. It is therefore quite probable that the appellants desired to have friendship with the deceased so as to have easy access inside his house because of their clandestine scurrilous lustrous designs. Since the deceased had sensed appellant's motives he always rebuffed their overtures. Out of sheer frustration appellants had threatened the deceased not allow him to reside in Lajpat Nagar locality. Such a threat coupled with the background attached with it provided a strong and sufficient motives for the accused to take law in their own hands and indulge into the crime. This motive has been brought forth by the prosecution through the depositions of all the fact witnesses with clarity and there is no otherwise circumstance to disbelieve such an allegation by the prosecution. The incident occurred in the month of June, when in formant had gone to his widow sister's house to inquire about their wellbeing. This was also very natural and humane conduct on the part of the informant to which no exception can be carved out. There is no evidence on record that informant was not on good terms with her widow sister and therefore his going to her house is most natural course of human conduct. This was also very natural and humane conduct on the part of the informant to which no exception can be carved out. There is no evidence on record that informant was not on good terms with her widow sister and therefore his going to her house is most natural course of human conduct. Informant is un ambiguous in disclosing this fact during his examination in the trial and the accused failed to throw any challenge to such a claim by the informant. Thus the presence of the informant at or about the time of the incident in the house of the deceased, besides his sibling brothers and sisters and mother, is quite probable and natural. Coming out at the door after hearing verbal onslaught between the deceased and the accused Khursheed by the informant and deceased mother is also quite natural and common human conduct. Thus presence of first informant at the incident scene and his witnessing the incident along with his widow sister/ mother of the deceased, is proved convincingly, beyond all shadow of reasonable doubt. Albeit both theses witnesses are related and partisan but the trustworthy and confidence inspiring evidences of the most natural and related witnesses, whose presence at the spot could not be doubted and who also had no axe to grind against the appellant confirms his involvement in the crime and anoints guilt against him without any doubt and for that reason of relationships their evidences cannot be discarded. There was no motive for the fact witnesses to frame-in the appellant and fabricate a false case against him, because no reason for it ever existed. Failing in their design, accused had threatened the deceased that if he will not work with them, they will not allow him to reside in Lajpat Nagar locality. This was nothing but a mere show of force and to say the least a clear hooliganism. Because the accused failed in their endeavour, they approached the deceased's house at 10 p.m. in the night, without any rhyme or reason, and accused Khursheed called him out. When deceased protested their overtures and forbade them to spare him a wordly duel between then ensued. It was in the midst of this duel that a single fatal injury was caused to the deceased by Khursheed. When deceased protested their overtures and forbade them to spare him a wordly duel between then ensued. It was in the midst of this duel that a single fatal injury was caused to the deceased by Khursheed. Two eye witnesses, informant and his widow sister Noor Jahan, along with others, witnessed this incident in the light of the bulb, which was alighted at the time of the incident. They had no reason to spare the real assailants and falsely implicate the appellant in the murder incident of their most dear ones. Thus we concur with learned trial court's view that conviction of the appellant is established foolproof and trial court has not fallen into any error while recording the same. Now, coming to the second aspect as to what offence has been disclosed against the appellant, we find that the submissions of learned amicus curiae is worth considering and well merited. According to the prosecution version itself, a verbal triadic altercation proceeded the single blow by knife. Other two accused were unarmed. It cannot be said that all the accused had a common intention of committing the murder of the deceased. Single blow by one of the accused in the heat arguments does not necessarily projects that each and every accused shared the same common intention to cause murder of the deceased. Had the intention being such blow would have been repeated and others would have also approached the incident spot equipped with weapons, which is not case. Further, we are of the view that the present appellant had no knowledge that Khursheed shall stab the deceased and that he definitely intended to cause that fatal injury which in fact was sustained by the deceased. Looking to the aforesaid aspect, we are of the opinion that offence proved against the appellant will be one under section 304 Part( I) and not 302 I.P.C. In our this opinion, we draw support from various Apex Court decisions to which we refer herein below under:- In Posuram Deshmukh v. State of Chhattisgarh: AIR 2009 SC 2482 it has been held by the apex court as under:- "7. The Fourth Exception of Section 300, IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The Fourth Exception of Section 300, IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reasons and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused ( a) without premeditation, ( b) in a sudden fight; ( c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and ( d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300, IPC is not defined in the IPC. It takes two to make a fight. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300, IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'. These aspects have been highlighted in Dhirajbhai Gorakhbhai Nayak v. State of Gujrat ( 2003 ( 5) Supreme 223 ], Parkash Chand v. State of H.P. ( 2004 ( 11) SCC 381 ), Byvarapu Raju v. State of A. P. and Anr. ( 2007 ( 11) SCC 218 ) and Hawa Singh and Anr. v. State of Haryana ( SLP ( Crl.) No. 1515/2008 disposed of on 15.1.2009). 8. When the background facts are considered in the light of legal position elaborated above, the inevitable conclusion is that in the present case Exception 4 to Section 300, IPC applies. 9. That being so, the appropriate conviction would be under Section 304 Part I, IPC. The conviction is altered accordingly. Custodial sentence of 10 years would meet the ends of justice." In Indrasan v. State of U. P.: AIR 2009 SC 2760 it has been held by the apex court as under:- "11. We are required to examine the facts of the present case as it stand before us. The submission that there was no motive in committing the offence is clearly belied from the fact that the motive has been established in the present case. We are required to examine the facts of the present case as it stand before us. The submission that there was no motive in committing the offence is clearly belied from the fact that the motive has been established in the present case. The accused-appellant being an employee of the contractor definitely had a grudge against the deceased as the buffaloes belonging to the father of the deceased were impounded and taken to the contractor by the accused-appellant on 13.10.1979 and the same were released on repeated requests by the deceased. Therefore, there was a clear grudge of the employee of the contractor, accused-appellant against the deceased. When on the very next day morning i.e., 14.10.1979, the accused-appellant saw the face of the deceased he simply picked up his lathi and with that gave one blow on the head of the deceased. The said blow was so forceful that as a consequence of which, the deceased died within an hour and before he could be taken to the hospital. There is a direct nexus between the blow of lathi and death of the deceased which is immediately caused after giving the blow. 12. We, therefore, are of the considered opinion that although it is a case of culpable homicide not amounting to murder, but considering the nature of the injuries which was caused on a vital part of the body, we are of the considered, view that there was intention on the part of the accused-appellant to cause death of the deceased. 13. We, therefore, alter the conviction of the appellant from Section 302 , IPC to Section 304 Part I IPC. In our, considered opinion, custody and sentence of 10 years would be appropriate and sufficient. The accused-appellant shall undergo imprisonment for a term of 10 years, if not already undergone, in terms of this order." In Kashi Prasad v. State of Uttar Pradesh: AIR 2009 SC ( Supp) 753 it has been held by the apex court as under:- "9. The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused ( a) without premeditation, ( b) in a sudden fight; ( c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and ( d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300 IPC is not defined in the IPC. It takes two to make a fight. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300 IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is no possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'. 10. Considering the factual scenario as projected by the prosecution, the proper conviction would be under Section 304, Part I IPC. Custodial sentence of 10 years would meet the ends of justice." Without being verbose and ostentatious, we wrap up our discussion by allowing the appeal in part. While the conviction of the appellant Babbu is maintained but he is convicted under section 304 Part( I)/34 instead of 302/34 I.P.C. For the offence under section 304 Part( I) I.P.C, looking to the period undergone between the date of the incident and today, as well as looking to the age of the appellant, which is 63 years and also considering the fact that appellant has no criminal background or conviction to his credit, he is sentenced to 7 years R.I. with Rs.25,000/- fine, which in our opinion will meet the ends of justice. The appeal therefore is allowed in part, as above. Appellant Babbu is convicted under section 304 Part( I)/34 I.P.C. and is sentenced to 7 years R.I. with fine of Rs. 25,000/-. Appellant is allowed one month time to deposit entire amount of fine, failing with he shall serve another 2 years R.I. as default sentence. The appeal therefore is allowed in part, as above. Appellant Babbu is convicted under section 304 Part( I)/34 I.P.C. and is sentenced to 7 years R.I. with fine of Rs. 25,000/-. Appellant is allowed one month time to deposit entire amount of fine, failing with he shall serve another 2 years R.I. as default sentence. If the fine is deposited, Rs.20,000/- out of it shall be paid, as compensation, to the widow of the deceased, if alive or heirs of the deceased by the learned trial Judge within one month of it's deposit, after noticing them. Appellant is on bail, he is directed to be taken into custody forthwith to serve out remaining part of his sentence. His personal and bail bonds are hereby discharged. Let a copy of the judgment be certified to the trial court for it's intimation and further action.