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2016 DIGILAW 1921 (ALL)

Anil Kahar v. State of U. P.

2016-05-17

ANIL KUMAR SRIVASTAVA-II, SURENDRA VIKRAM SINGH RATHORE

body2016
JUDGMENT Surendra Vikram Singh Rathore, J. – Mr. Rajeev Mishra, Advocate, holding brief of Ms. Soniya Mishra, learned counsel for the appellant and Mohd. Yusuf Ansari, learned Additional Government Advocate were heard at length. 2. Under Challenge in the instant criminal appeal is the judgment and order dated 01.04.2011 passed by learned Additional Sessions Judge, Court No. 6, Hardoi, in Sessions Trial No. 542 of 2009, arising out of Case Crime No. 269 of 2009, and Sessions Trial No. 543 of 2009 arising out of Case Crime No. 270 of 2009, Police Station Lonar, District Hardoi under Sections 302, 307, IPC and Section 25 of Arms Act, whereby the appellant Anil Kahar was convicted for the offence under Section 302, IPC and was sentenced to undergo imprisonment for life and also with fine of Rs. 5,000/- with default stipulation of one year additional imprisonment. He was further convicted for the offence under Section 307, IPC and was sentenced to undergo rigorous imprisonment for a period of seven years and also with fine of Rs. 2500/- with default stipulation of six months' additional imprisonment. He was also convicted for the offence under Section 25 of Arms Act and was sentenced to undergo rigorous imprisonment for a period of one year and six months and also with fine of Rs. 500/- with default stipulation of one month's additional imprisonment. 3. All the sentences were directed to run concurrently. 4. Brief facts of the case are that the complainant Kaptan lodged an FIR at Police Station Lonar, District Hardoi which was scribed by Harnam Singh s/o Jadunath Singh on 20.05.2009 at 17: 30 hours alleging therein that Anil Kahar was living in his village which is the village of his wife and was running a grocery shop in a small khokha (portable wooden shop). Chhotey Lal, younger brother of the complainant had taken some goods of Rs. 100/- on credit. On 20.05.2009 when Chhotey Lal was busy in some work in front of his house and his wife Smt. Kusuma, Munna Lal Sharma, Susheel Kumar Sharma and Sobaran Yadav were also present there then at about 4.30 p.m. appellant Anil Kahar came armed with sword in his hand and demanded Rs. 100/- from Chhotey Lal, who replied that he has no money right now. He shall make arrangement of the same and shall make payment tomorrow. 100/- from Chhotey Lal, who replied that he has no money right now. He shall make arrangement of the same and shall make payment tomorrow. Hearing such reply appellant started abusing the complainant then the complainant asked him not to abuse. Feeling provoked by this act of Chhotey Lal, appellant gave a blow of sword on the neck of his brother. When his wife Smt. Kusuma tried to save him then she was also given a blow of sword due to which she has also sustained injury in her hand. Appellant Anil Kahar wanted to run away from the place of occurrence but he was apprehended on the place of occurrence by the persons present there along with sword. The deceased died on the spot. FIR was lodged only after one hour of the incident. 5. After registration of the case, the Investigating Officer came to the village and inspected the place of occurrence and prepared its site plan. Appellant was taken into custody and its memo was prepared. After conducting the inquest report and completing other necessary formalities the dead body was sent for post-mortem which was conducted on 21.05.2009 at 3.00 p.m. and duration of death was reported to be about one day and following ante-mortem injuries were reported by the doctor: - (i) Incised wound 13 cm x 2.5 cm x trachea deep present on left side of neck at the level of fifth vertebra underneath structures including veins arteries, trachea found clean cut. Margins and edges were clean cut. In the opinion of the doctor, the cause of death was shock and haemorrhage as a result of ante-mortem injuries. 6. Injured Smt. Kusuma was also sent for her medical examination. She was medically examined on 20.05.2009 at 8.30 p.m. at District Hospital, Hardoi, and following ante- mortem injuries were noted on her person: - (i) Incised wound 2 cm x 1 cm x bone deep middle inner phalynx just dorsum of right index finger bleeding present. (ii) Wound 2 cm x 1 cm x bone deep on terminal joint on dorsal side of middle finger right. Margins were sharp and bleeding was present. Above injuries were reported by the doctor to have been caused by sharp edged object, X-ray of right hand was advised. 7. (ii) Wound 2 cm x 1 cm x bone deep on terminal joint on dorsal side of middle finger right. Margins were sharp and bleeding was present. Above injuries were reported by the doctor to have been caused by sharp edged object, X-ray of right hand was advised. 7. Appellant was also taken into custody by the police and a separate case for recovery of the sword was registered and a recovery memo was prepared on the same day. 8. After concluding the investigation charge-sheet was filed against the appellant. 9. The case of the defence was that the appellant has been falsely implicated in this case due to village party bandi and actually the deceased had died inside his house and subsequently this false case was concocted in collusion with the police. 10. In order to prove its case the prosecution has examined PW-1 Kaptan, the complainant, PW-2 Smt. Kusuma an injured witness and wife of the deceased, PW-3 Dr. Shiv Kumar, who has medically examined Smt. Kusuma, PW-4 Sushil Kumar Sharma is also a witness of fact, PW-5 Rajbahadur Dwivedi, the Investigating Officer of this case, PW-6 S.I. Chandrapal Mishra, who has prepared the chik report and G.D. of this case and has also investigated the case under Section 4/25 Arms Act, PW-7 Dr. T. S. Arya, who has conducted the post-mortem on the body of the deceased and PW-8 Constable 321 Rajendra Prasad who has prepared the chik report and G.D. of this case. 11. In defence DW-1 Awadhesh Pandey has been examined who has given evidence in support of defence case. 12. After appreciating the evidence on record, the trial court has convicted the appellant as above, hence the instant appeal. 13. Submission of the learned counsel for the appellants was that in the instant case he does not want to challenge the conviction of the appellant. The only submission of the learned counsel for the appellant is that the incident of this case has taken place on spur of the moment. There was no prior intention or prior planning of the appellant to commit the murder of the deceased and it was only due to non-payment of the amount due and because of hurling of abuses this incident has taken place all of a sudden. In these circumstances this offence would fall under Section 304 , part I IPC and not under Section 302, IPC. In these circumstances this offence would fall under Section 304 , part I IPC and not under Section 302, IPC. This aspect of the matter has not been considered by the learned trial court. 14. Learned Additional Government Advocate has submitted that the judgment of the learned trial court is well reasoned and there is direct eye-witness account of the witnesses and particularly PW-2 Smt. Kusuma who happens to be wife of the deceased and was the most natural and an injured witness so the learned trial court has not committed any illegality in relying upon the prosecution evidence and convicting the appellant. 15. On the point urged by the learned counsel for the appellant, Learned A.G.A. has submitted that it is true that the incident has taken place on the spur of the moment and no undue advantage was taken by the appellant. 16. Though learned counsel for the appellant has not challenged the conclusion of the learned trial court that the prosecution has been successful in proving its case beyond reasonable doubt but being the court of first appeal, we have examined the prosecution evidence on this point. PW-1 the complainant and PW-2 Smt. Kusuma are the members of the family of the deceased. The incident has taken place at their house, therefore, they were the most natural witnesses and they have fully supported the case of the prosecution. Apart from it, PW-4 Sushil Kumar Sharma has also supported the case of the prosecution and nothing material in their evidence could be extracted in their cross examination to lend support to the appellant. Appellant was arrested on the spot also along with weapon of offence. The injury of Smt. Kusuma also establishes her presence at the scene of occurrence as she has also received incised wounds which was found on the body of the deceased. It also provides medical corroboration to the evidence of the three witnesses. Thus the learned trial court was absolutely correct in holding that the prosecution has been successful in proving its case beyond any reasonable doubt. In this background, we do not intend to go into detail in this matter as this aspect of the case has not been challenged in the instant appeal. 17. Thus the learned trial court was absolutely correct in holding that the prosecution has been successful in proving its case beyond any reasonable doubt. In this background, we do not intend to go into detail in this matter as this aspect of the case has not been challenged in the instant appeal. 17. The appellant is the sole accused in this case and there is no occasion for the complainant and Smt. Kusuma to falsely implicate the appellant in the murder case of their own family member sparing the real assailants. Apart from it, he was arrested on the spot along with weapon of offence. When the police came then he was formally arrested by the police and memo of arrest was prepared. 18. Now the point to be considered in the instant case is as to what offence would be made out against the appellant on the basis of the proved facts. Admittedly in this case, the incident does not appear to be an intended act of the appellant though he has come to the place of occurrence with a sword but he has come only to demand his money back. When the money was not paid by the deceased then hurling of abuses started and in the same heat of passion one blow of sword was given by him on the neck of the deceased which proved fatal. The appellant was arrested on the spot by the persons present there along with sword and it appears that in such effort, injuries to Smt. Kusuma were also caused. Injuries of Smt. Kusuma were simple in nature and were not on vital part of the body. There is no x-ray report or supplementary report of her medical examination to conclude that she had sustained grievous injuries. It is true that the appellant has not taken any undue advantage of such sudden provocation and has not acted in any unduly cruel manner. No effort was made by him to repeat the blows. 19. Before proceeding further in the matter, we would like to consider the law on this point. In the case of Jhaptu Ram v. State of Himachal Pradesh reported in (2014) 12 SCC 410 Hon'ble the Apex Court in paragraph no. 7 has held as under: - "7....... There is no iota of evidence to show that there was any prior intention of the Appellant to kill the deceased. In the case of Jhaptu Ram v. State of Himachal Pradesh reported in (2014) 12 SCC 410 Hon'ble the Apex Court in paragraph no. 7 has held as under: - "7....... There is no iota of evidence to show that there was any prior intention of the Appellant to kill the deceased. As per the medical and ocular evidence, there was only gunshot fired by the Appellant which proved to be fatal for deceased. Moreso, the prosecution failed to marshal any evidence to show that the gun was in his hand when the deceased entered his house. In such peculiar facts and circumstances of the case, we agree with the submissions advanced by Shri. Sreyas, learned Counsel for the Appellant." In the case of State of Madhya Pradesh v. Shiv Shankar reported in (2014) 10 SCC 366 , the death was caused by a firearm and in the facts of that case, the appellant has been convicted under Section 302, I.P.C. while altering the finding of the High Court, Hon'ble the Apex Court has considered the law on this point in detail. Hon'ble the Apex Court was of the view that where the accused gets time to cool down his passion and thereafter commits an offence then the same would fall within the ambit of Section 302, I.P.C. Hon'ble the Apex Court in paragraph No. 12 of the said judgment has quoted paragraph No. 7 of its earlier judgment in the case of Sridhar Bhuyan v. State of Orissa reported in (2004) 11 SCC 395 , which reads as under: - "7. For bringing in operation of Exception 4 to Section 300 , Indian Penal Code, it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. 8. The fourth exception of Section 300 , Indian Penal Code 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. 8. The fourth exception of Section 300 , Indian Penal Code 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 , Indian Penal Code is not defined in Indian Penal Code. 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 , Indian Penal Code is not defined in Indian Penal Code. 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 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 a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage". In the case of Chenda alias Chandaram v. State of Chhattisgarh reported in (2013) 12 SCC 110 , Hon'ble the Apex Court in paragraph no. 23 has held as under: - "23. Having regard to the parameters indicated in Gurmukh Singh case (2009) 15 SCC 635 , the offence seems to fall under the second part. There is no evidence of motive or previous enmity. The incident has taken place on the spur of the moment. There is no evidence regarding the intention behind the fatal consequence of the blow. There was only one blow. The accused is young. There was no premeditation. The evolution of the incident would show that it was in the midst of a sudden fight. There is no criminal background or adverse history of the Appellant. It was a trivial quarrel among the villagers on account of a simple issue. The fatal blow was in the course of a scuffle between two persons. There has been no other act of cruelty or unusual conduct on the part of the Appellant. There is no criminal background or adverse history of the Appellant. It was a trivial quarrel among the villagers on account of a simple issue. The fatal blow was in the course of a scuffle between two persons. There has been no other act of cruelty or unusual conduct on the part of the Appellant. The deceased was involved in the scuffle in the presence of his wife and he had actually been called upon by her to the spot so as to settle the score with the accused persons. The deceased had, in the scuffle, overpowered the first accused. That first accused was acquitted." In the case of Budhi Singh v. State of Himachal Pradesh reported in (2012) 13 SCC 663, the facts were that the appellant gave two repeated blows on the head with a small axe, which resulted into the death of the deceased. In the circumstances in which the offence was committed, it was held that it was not premeditated and had taken place on the spur of moment and in this background, Hon'ble the Apex Court in paragraph no. 26 has held as under: - "26. Thus, in the facts of the present case, a sudden and grave provocation took place which would bring the offence within the ambit of exception 1 of Section 300 , Indian Penal Code and hence Under Section 304 , Part I Indian Penal Code as the accused had caused such bodily injury to the deceased which, to his knowledge, was likely to cause death as he had inflicted injuries on the head of the deceased. Having held the accused guilty of an offence Under Section 304 , Part I, Indian Penal Code, we award the sentence of 10 years rigorous imprisonment and to a fine of Rs. 5,000/- in default thereto to undergo further imprisonment of six months." In the case of Sudhakar v. State of Maharashtra reported in (2012) 9 SCC 725 , the case was of giving a single blow of knife without premeditation and Hon'ble the Apex Court has observed that the offence would fall under Section 304 , Part I, Indian Penal Code. 5,000/- in default thereto to undergo further imprisonment of six months." In the case of Sudhakar v. State of Maharashtra reported in (2012) 9 SCC 725 , the case was of giving a single blow of knife without premeditation and Hon'ble the Apex Court has observed that the offence would fall under Section 304 , Part I, Indian Penal Code. In the case of Rampal Singh v. State of Uttar Pradesh reported in (2012) 8 SCC 289 , Hon'ble the Apex Court has considered the legal aspect as to when culpable homicide would amount to murder and when it would not amount to murder. Hon'ble the Apex Court has held in paragraph no. 22 as under: - "22. Thus, where the act committed is done with the clear intention to kill the other person, it will be a murder within the meaning of Section 300 of the Code and punishable under Section 302 of the Code but where the act is done on grave and sudden provocation which is not sought or voluntarily provoked by the offender himself, the offence would fall under the exceptions to Section 300 of the Code and is punishable under Section 304 of the Code. Another fine tool which would help in determining such matters is the extent of brutality or cruelty with which such an offence is committed." 20. Reference on this point may be made to the pronouncement of Hon'ble the Apex Court in the case of Budhi Singh v. State of Himachal Pradesh reported in 2013 Crl. L.J. 962. In the facts of that case, Hon'ble the Apex Court has considered the distinction between culpable homicide and murder and has observed in paragraph No. 13 as under: "13. The doctrine of sudden and grave provocation is incapable of rigid construction leading to or stating any principle of universal application. This will always have to depend on the facts of a given case. While applying this principle, the primary obligation of the Court is to examine from the point of view of a person of reasonable prudence if there was such grave and sudden provocation so as to reasonably conclude that it was possible to commit the offence of culpable homicide, and as per the facts, was not a culpable homicide amounting to murder. An offence resulting from grave and sudden provocation would normally mean that a person placed in such circumstances could lose self-control but only temporarily and that too, in proximity to the time of provocation. The provocation could be an act or series of acts done by the deceased to the accused resulting in inflicting of injury." In the facts of that case appellant Budhi Singh hearing the noise came out with a tobru (small axe) in his hand and gave blows on the skull of deceased due to which he succumbed to the injuries. In that fact-situation Hon'ble the Apex Court converted the conviction of appellant Budhi Singh under Section 304 , Part I, I.P.C. and awarded a sentence of ten years rigorous imprisonment with a fine of Rs. 5,000/-. 21. In the case of Jhaptu Ram (supra) the facts were that an altercation took place between the appellant and his son. The accused fired at the deceased. Receiving gun shot injury, he fell down and died. In this background, Hon'ble the Apex Court converted the conviction of the appellant under Section 304 , Part I, I.P.C. and awarded sentence of ten years rigorous imprisonment and also with a fine of Rs. 5,000/-. 22. In the case of Rampal Singh ( 2012 AIR SCW 4211 )(supra) the facts of that case were that there was no previous enmity between the two parties. The dispute between them was regarding certain construction made by the deceased on his land to prevent garbage from being thrown at his open land. Heated exchange of words took place between two sides. In the state of anger accused brought his rifle from his house went on the roof of a nearby house and fired with his rifle, which resulted into the death. In that facts circumstances, Hon'ble the Apex Court held that offence would fall under Section 304 , Part I, I.P.C. 23. Keeping in view the aforementioned pronouncement of Hon'ble Apex Court, when we examine the facts of the instant case, then the conclusion is irresistible that there was absolutely no prior intention, prior planning of the appellant to commit such offence. It was committed on the spur of moment. So the offence committed by the appellant Anil Kahar would fall under Section 304 , part I, IPC and not under Section 302, IPC. It was committed on the spur of moment. So the offence committed by the appellant Anil Kahar would fall under Section 304 , part I, IPC and not under Section 302, IPC. Since the injuries were also caused to Smt. Kusuma, so the offence regarding injuries caused to Smt. Kusuma would fall only under Section 308, IPC instead of Section 307, IPC as she has not sustained any injury on any vital part of her body and possibility cannot be ruled out that such injuries were caused while trying to apprehend the appellant on the spot. On the point of sentence, we are of the considered view that the sentence of 12 years rigorous imprisonment would be adequate to meet the ends of justice. 24. Accordingly this appeal deserves to be partly allowed and is hereby partly allowed. 25. Conviction of the appellant Anil Kahar under Section 302, IPC is hereby modified to Section 304 , part I, IPC and his sentence for life imprisonment is hereby modified to a period of 12 (twelve years) rigorous imprisonment. 26. Conviction of the appellant under Section 307, IPC is hereby altered under Section 308, IPC and sentence inflicted by the learned trial court for this offence is hereby reduced to a period of three years' rigorous imprisonment and also with fine of Rs. 2500/-, with default stipulation of one month's additional imprisonment. 27. Conviction and sentence awarded by the learned trial court for the offence under Section 25 of Arms Act is hereby confirmed. 28. Appellant- Anil Kahar is in custody. He shall serve out remaining part of his sentence as modified by this Court. Period already undergone by him in the instant appeal, shall be set off in his substantive sentence, in accordance with the provisions of Section 428, Cr.P.C. 29. Office is directed to communicate this order forthwith to the court concerned and to send back the lower court record to ensure compliance. Appeal partly allowed.