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2012 DIGILAW 407 (UTT)

HARISH PRASAD v. STATE OF UTTARANCHAL

2012-07-23

SERVESH KUMAR GUPTA, SUDHANSHU DHULIA

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JUDGMENT Per: Hon’ble Sudhanshu Dhulia, J. (Oral) Since the appellant was not being represented by any counsel, this Court vide order dated 2.7.2012 had appointed a practicing advocate of the Court Sri R.S. Bisht, as amicus curiae, to assist the Court on behalf of the accused/appellant. 2. Heard Mr. R.S. Bisht, learned amicus curiae, present for the appellant and Mr. R.P. Nautiyal, learned Deputy Advocate General (Crl), along with Mr. S.A. Siddiqui, AGA, for the State/respondents. 3. This criminal appeal arises out of the judgment and order dated 25/26.3.2004 passed by the Sessions Judge, Bageshwar in Sessions Trial No.11 of 2003, State Vs. Harish Prasad, whereby the sole appellant/accused Harish Prasad has been convicted u/s 302 IPC and sentenced to undergo imprisonment for life along with fine of Rs.5,000/-, and in default of payment of fine, to undergo one year’s additional R.I. 4. Brief facts of case are that an FIR was lodged on 4.4.2003 at 7:15 PM by one Rajendra Kumar, according to which, at about 6:30 in the evening, when his brother Harish Ram was going from a place ‘Jasar’ to ‘Manura’ and when he reached ‘Nauladhara’, suddenly the accused Harish Prasad, who was having a ‘Belcha’ in his hand (an instrument used by workers to lift stones etc. in construction work) came chasing Harish Ram from behind and attacked him by the said ‘Belcha’ on his head, as a result of which his brother died on the spot. On the background of this narration, complainant states that about one year back, the accused Harish Prasad was married to one Bimla Devi and there was a rumour in the village that Harish Ram (deceased) was having illicit relations with the wife of accused. On this suspicion, his brother was attacked and murdered by the accused. The complainant further states that his brother died on the spot and his body is lying on the spot whereas the assailant had run away from the place of occurrence. When the complainant heard hue and cry, he had then reached the spot. He further states that even the mother of accused Harish Prasad had gone to pacify and stop the assailant, but in vain. 5. Thereafter, the inquest was conducted on the next day which concluded at about 10:30 AM on 5.4.2003. When the complainant heard hue and cry, he had then reached the spot. He further states that even the mother of accused Harish Prasad had gone to pacify and stop the assailant, but in vain. 5. Thereafter, the inquest was conducted on the next day which concluded at about 10:30 AM on 5.4.2003. The report of inquest states that that the deceased has died because of the assault made by the accused Harish Prasad on his head and in order to ascertain the exact facts, the dead body was sent for post-mortem. Consequently, the post-mortem of the dead body was conducted on 5.4.2003 itself at about 12:20 PM by PW7 Dr. R.S. Kunwar. It has come in the post-mortem report (Ex.A-16) that the age of the deceased was 26 years, he was said to be an average built muscular and the following ante-mortem injuries were found in the body of deceased: - 1. “Incised wound over occipital region, brain deep. Brain matter protruding out 8 x 1 cm extending upto right parietal region. 2. Multiple incised wound over occipital region. brain deep, four in number. 3. Incised wound over left parietal region 6 x 1 cm, brain deep, brain matter protruding out. 4. Laceration over forehead just above left eyebrow, 2 x 1 cm, bone deep. 5. Abraded contusion over right lumber region 8 x 1 cm, horizontally. It was also stated that brain matter protruding out from fractured (cut) skull from occipital and left parietal region. The cause of death was due to coma as a result of ante-mortem head injury.” 6. The police, after investigation, filed a chargesheet against the appellant/accused u/s 302 IPC. Thereafter, the matter was committed to the court of Sessions on 12.6.2003. 7. Subsequently, on 25.6.2003, the Sessions Judge, Bageshwar framed charge against the accused u/s 302 IPC. 8. The prosecution, in order to prove its case, has produced as many as seven witnesses. 9. PW1 Rajendra Kumar is the brother of deceased, who had reached the spot after the incident had taken place, and though he is not an eyewitness to the crime, nevertheless he is an important link as to what happened subsequently thereafter. He is the one who ultimately lodged the FIR. 10. PW2 Geeta Devi and PW3 Haruli Devi are the two women eyewitnesses of the incident who belong to the same village. He is the one who ultimately lodged the FIR. 10. PW2 Geeta Devi and PW3 Haruli Devi are the two women eyewitnesses of the incident who belong to the same village. They have, in their deposition, narrated the identical nature of the facts as have been narrated the FIR, such as that the incident took place on 4.4.2003 at about 6:30 PM when they were coming from the agricultural fields after giving manure to their fields. At that time, they saw the accused Harish Prasad running towards Harish Ram with a ‘Belcha’ in his hand. The accused subsequently attacked Harish Ram with his ‘Belcha’ on the back of the head of the deceased and thereafter repeated his assaults, as a result of which Harish Ram fell down and died immediately. It has also come in the narration that many people from the village came to the spot, which included the mother of assailant Harish Prasad. All tried to stop the accused, but in vain. 11. PW4 Pani Ram is also an important eyewitness who saw the assailant attacking the deceased with a ‘Belcha’ in his hand and subsequently running away from the spot. 12. On the next day of incident, the accused was arrested and the ‘Belcha’, which was used in the commission of crime, was also recovered by the police on the pointing out of accused from a place in front of his house where the ‘Belcha’ was lying hidden in a mould of sand. Thus, apart from PW2 Geeta Devi and PW3 Haruli Devi, PW4 Pani Ram is also the eyewitness of the incident and a witness of recovery of weapon ‘Belcha’. This recovery also links the accused with the crime, as is admissible against the accused under Section 27 of the Evidence Act. 13. PW7 Dr. R.S. Kunwar, who conducted the autopsy on the deceased, in his examination-in-chief, has opined that the injuries could have been caused from the sharp edged side of ‘Belcha’. It is thus become ample clear that all the eyewitnesses PW2 Geeta Devi, PW3 Haruli Devi and PW4 Pani Ram are unanimous in their testimony regarding the fact that the assailant had reason to attack and kill the deceased, as it was rumoured in the village that the wife of assailant was having illicit relations with the deceased. It is thus become ample clear that all the eyewitnesses PW2 Geeta Devi, PW3 Haruli Devi and PW4 Pani Ram are unanimous in their testimony regarding the fact that the assailant had reason to attack and kill the deceased, as it was rumoured in the village that the wife of assailant was having illicit relations with the deceased. Apart from this, PW2 Geeta Devi, PW3, Haruli Devi and PW4 Pani Ram are the independent eyewitnesses and therefore, we have come to the considered conclusion that the trial court has done no wrong in coming to the conclusion that it is indeed a case of homicide. 14. Towards the end of the argument, though the learned amicus curiae, too fairly conceded that there is an overwhelming evidence which all point out to the fact that it was the assailant who attacked and killed the deceased Harish Ram. However, at this juncture, the amicus curiae submitted that even if the act is done by the appellant, however, considering the nature of the act, more pertinently considering the nature of weapon which in fact is not a “weapon” but only an instrument used for construction purposes and in normal circumstances, rarely used as a weapon, it is a case not of pre-meditated crime but only a case of sudden fight committed in the heat of passion, and hence it would, at best, be culpable homicide not amounting to murder, but cannot be a case of murder. Learned amicus curiae, in support of his arguments, cited a judgment of Division Bench of this Court in the case of “Anand Ram alias Anandi Vs. State of Uttarakhand reported in 2012 (1) U.D. 160” where the Court had converted the findings of murder into one of culpable homicide not amounting to murder, for the reason that in the act, what was used for commission of crime was a pair of scissors which is not a normal weapon used for killing a person and accordingly, converted the finding of murder into culpable homicide not amounting to murder. While doing so, the Court in paragraph 40 observed as under: - “40. We are inclined to agree with the submission of learned counsel for the accused/appellants on this aspect that there was no predetermination of mind on the part of the accused/appellants. It was the outcome of sudden quarrel. While doing so, the Court in paragraph 40 observed as under: - “40. We are inclined to agree with the submission of learned counsel for the accused/appellants on this aspect that there was no predetermination of mind on the part of the accused/appellants. It was the outcome of sudden quarrel. Scissors is not a normal weapon used for killing a person and we are of the opinion that the act on the part of the accused/appellants constitutes offence of culpable homicide not amounting to murder and not culpable homicide amounting to murder. That being so, we are of the view that the accused/appellants Anand Ram alias Anandi and Jeet Ram should be held guilty of charge of offence punishable under Section 304 read with Section 34 of I.P.C. alongwith other offences for which learned trial court has convicted them.” 15. Learned amicus curiae has vehemently argued that considering the entire facts of the case and the manner in which the incident has taken place, it comes within the purview of Exception 4, as enumerated under Section 300 IPC which provides as under: - “Exception 4- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.” 16. In order to bring an act of culpable homicide within the four corners of fourth Exception, it must have four ingredients, (1) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. 17. There is no doubt in our mind that the nature of weapon used in this case, which is a “Belcha”, as also the fact that it has been done in broad day light, definitely there was no-premeditation in the case. It is also a case where the offender has not taken any undue advantage or acted in a cruel manner. It has also been submitted by learned amicus curiae on behalf of the appellant that this is an overwhelming evidence that the deceased was having illicit relations with the wife of accused. It is also a case where the offender has not taken any undue advantage or acted in a cruel manner. It has also been submitted by learned amicus curiae on behalf of the appellant that this is an overwhelming evidence that the deceased was having illicit relations with the wife of accused. In other words, the evidence is overwhelming to the fact that the crime was committed in a sudden fight, in a heat of passion. Considering these factors, a reasonable presumption can be given in favour of the accused that he committed the act by way of a sudden fight in heat of the passion. Therefore, we bring the present under the Fourth Exception and hold that it is a case of culpable homicide not amounting to murder and not that of murder. We, consequently, alter the findings of the trial court from that of murder to that of culpable homicide not amounting to murder and convict the accused Harish Prasad under Section 304 (Part I) IPC. We also feel that it would serve the ends of justice if the sentence of seven years’ R.I. is awarded under the said offence with fine of Rs.5,000/-. 18. The appeal is, accordingly, partly allowed. The conviction and sentence of the appellant/accused u/s 302 IPC for imprisonment of life with fine of Rs.5,000/-, is hereby set aside. The appellant, though is found guilty under Section 304 (Part I) IPC and is sentenced to undergo seven years’ R.I. with fine of Rs.5,000/- and in case of default of fine, he shall undergo further imprisonment for three months. The appellant is in jail. He shall serve out the sentence, as awarded against him by this Court. However, the period of imprisonment, already undergone by him shall be adjusted after verifying the records. 19. Let the lower court record, along with a copy of this judgment, be sent back to the trial court.