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2016 DIGILAW 1937 (ALL)

Kamlesh v. State of U. P.

2016-05-18

ANIL KUMAR SRIVASTAVA-II, SURENDRA VIKRAM SINGH RATHORE

body2016
JUDGMENT Per Surendra Vikram Singh Rathore, J. 1. Heard Shri Manish Kumar Singh, learned counsel for the appellant and Shri Umesh Verma, learned AGA for the State. 2. Under challenge in the instant criminal appeal is the judgment and order dated 03.03.2016 passed Additional Sessions Judge, Court No.2, Barabanki, in Sessions Trial No.103-A of 1998, arising out of Case Crime No.85 of 1997, Police Station Safdarganj, District Barabanki, whereby appellant Kamlesh was convicted for the offence under Section 302 IPC with imprisonment for life and also with fine of Rs.5,000/- with default stipulation of six months' additional imprisonment. However, he was acquitted of the charge under Section 323 IPC read with Section 34 IPC. 3. In brief, the case of the prosecution was that complainant Ram Naresh lodged a first information report on 06.04.1997 at 08.00 PM at Police Station Safdarganj, Barabanki, alleging therein that on that day his brother Shiv Kumar had taken the cattles for grazing in a grove situated outside the village. At about 05.00 PM appellant Kamlesh and his maternal cousin Durbal were bitten by honey bees. On this point, Kamlesh and Durbal started quarrelling with Shiv Kumar. At that time, Arvind Kumar @ Dewari and Suresh were also grazing their cattles along with Shiv Kumar. Kamlesh and Durbal came towards their house challenging that they will just come and teach him a lesson. Because of the fear of these persons Shiv Kumar was coming back to his house. When the complainant got the information of this incident which took place in the grove through Suresh then the complainant, his mother Sundara, Ajay Kumar and Santram rushed towards grove from their house. On the way at about 05.20 when they reached in front of the house of Mahadeo then they saw that Kamlesh and Durbal, who were armed with country made pistol and knife respectively, were threatening Shiv Kumar that they shall kill him. When the complainant and the persons who were with him challenged the accused persons then on the exhortation of Durbal, Kamlesh fired with his country made pistol on the abdomen of the deceased. When the mother of the deceased tried to apprehend Kamlesh then Durbal also gave blows of knife to her due to which she also sustained injuries. Thereafter, accused persons ran away in northern direction. When the mother of the deceased tried to apprehend Kamlesh then Durbal also gave blows of knife to her due to which she also sustained injuries. Thereafter, accused persons ran away in northern direction. The complainant took his brother to Barabanki hospital where during treatment he succumbed to the injuries and the complainant informed the police about this incident. 4. On the basis of this information, the case was registered, investigation proceeded, inquest proceedings were conducted and after completing necessary formalities the dead body was sent for post-mortem, which was conducted on 07.04.1997 at 03.40 PM in District Hospital, Barabanki. As per post-mortem report, one firearm wound of entry 4 cm x 4 cm x cavity deep on the abdomen left side 8 cm above and outer to umbilicus was found. The margins of the wound were inverted. Intestines were coming out of the wound. The wound of entry was directed downward and medially. One litre of blood mixed with faecal matter was present in the abdominal cavity. The cause of death was shock and haemorrhage as a result of aforementioned injury. 5. Smt. Sundara, who happens to be the mother of the deceased, had also sustained injuries, which were as under: - (i) One lacerated wound over chin 3 cm x 1 cm. Fresh blood was present. (ii) Lacerated wound on upper lip inner side middle region. (iii) One lacerated wound 1 cm x 0.5 cm at tip of left middle finger. Fresh blood was present. 6. After completing the investigation, charge sheet was filed against the appellant. 7. The case of the defence was that the appellant has been falsely implicated in this case due to enmity. The witnesses have given false evidence. It was also stated that due to absence of original post-mortem report, the witnesses could not be properly cross-examined. 8. In order to prove its case, the prosecution has examined PW-1 Ram Naresh, who has fully supported the case of the prosecution, PW-2 Dr. D.R. Singh, who has medically examined Smt. Sundara, PW-3 Smt. Sundara - mother of the deceased who has also supported the case of the prosecution, PW-4 Shyam Sunder Grover - the Investigating Officer of this case, PW-5 Dr. Chandra Prakash Srivastava, who has medically examined injured Shiv Kumar, PW-6 Shivaji Singh, who has prepared inquest report, PW-7 Dr. D.R. Singh, who has medically examined Smt. Sundara, PW-3 Smt. Sundara - mother of the deceased who has also supported the case of the prosecution, PW-4 Shyam Sunder Grover - the Investigating Officer of this case, PW-5 Dr. Chandra Prakash Srivastava, who has medically examined injured Shiv Kumar, PW-6 Shivaji Singh, who has prepared inquest report, PW-7 Dr. B.P. Azad who has conducted post-mortem on the body of the deceased Shiv Kumar. 9. No evidence in defence was adduced on behalf of the appellant. 10. After appreciating the evidence on record, learned trial court has convicted the appellant, as above, hence, the instant criminal appeal. 11. In this case, initially the appellant was convicted vide judgment and order dated 20.09.2007. Against the aforesaid order, Criminal Appeal No.2999 of 2007 was filed by the appellant, which was disposed of by a coordinate Bench of this Court vide order dated 09.07.2013 with the following observation: - "Therefore, in the facts and circumstances of the case and in the ends of justice, we direct the Sessions Judge to record the testimonies of PW-4, PW-5, PW-6 and PW-7 and proceed with the trial in accordance of Section 273 Cr. P.C. or if necessary, evidence may be taken on record under Section 294 Cr.P.C. The appellant is in jail, therefore, we deem it appropriate to direct the trial court to record the remaining evidence and conclude the trial, if possible, within a period of two months from the date of receipt of a certified copy of this order and the lower court record. We direct accordingly." 12. After compliance of the aforesaid order, the case was again decided by the impugned judgment and the appellant was again convicted as mentioned above. 13. Submission of learned counsel for the appellant was that even if the entire prosecution case is taken to be true even then the offence would not travel beyond the purview of Section 304 Part I IPC and the appellant has already remained in custody for a long period of 13 years. 14. Learned AGA has vehemently argued that the offence committed by the appellant would fall within the purview of Section 302 IPC as both the accused persons after the incident went back to their house and they came back armed with respective weapons. 14. Learned AGA has vehemently argued that the offence committed by the appellant would fall within the purview of Section 302 IPC as both the accused persons after the incident went back to their house and they came back armed with respective weapons. So they had sufficient time to get their passions cooled down but they came back armed with weapons to the place of occurrence and fired at the deceased due to which he died. Specific role of firing and causing death of the deceased has been assigned to the present appellant. 15. Learned counsel for the appellant has submitted that during trial present appellant absconded for a considerable long period of several years due to which his case was separated and co-accused Durbal was tried separately and has been acquitted. 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 in spite of that we have gone through the entire prosecution evidence and we find that there is direct eyewitness account of the incident. There is evidence of the injured witness Smt. Sundara against the present appellant. She has named the present appellant and has assigned the role of firing and causing death of his son. The evidence of all the witnesses of fact stands fully corroborated by the medical evidence. This conclusion of the learned trial court has also not been challenged by the learned counsel for the appellant. 17. Submission of learned counsel for the appellant is that the offence would not travel beyond the purview of Section 304 Part I IPC. In support of his submission, he has placed reliance on the pronouncement of Hon'ble the Apex Court in the case of Bivash Chandra Debnath @ Bivas D. & Ors. 17. Submission of learned counsel for the appellant is that the offence would not travel beyond the purview of Section 304 Part I IPC. In support of his submission, he has placed reliance on the pronouncement of Hon'ble the Apex Court in the case of Bivash Chandra Debnath @ Bivas D. & Ors. v. State of West Bengal reported in [2015 (2) JIC 414 (SC)] and has drawn our attention towards paragraph 19 wherein Hon'ble the Apex Court has observed as under: - "On appreciation of evidence on record of the present case, we agree with the contention of the learned senior counsel for the Appellants that since it is a case of sudden fight and there was no premeditation on the part of the Appellants and the offenders have not acted in "unusual manner", their acts are covered under Exception 4 to Section 300 Indian Penal Code. In the similar case in Pulicherla Nagaraju alias Nagaraja Reddy v. State of A.P. (2006) 11 SCC 444 , in paragraph 29, this Court has discussed the issue as to when the conviction can be converted from an offence punishable Under Section 302 Indian Penal Code to Section 304 Part I or 304 Part II Indian Penal Code and the same is reproduced hereunder: 29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls Under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters -- plucking of a greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable Under Section 302 , are not converted into offences punishable Under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable Under Section 302 . It is for the courts to ensure that the cases of murder punishable Under Section 302 , are not converted into offences punishable Under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable Under Section 302 . The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may." 18. He has also placed reliance on the pronouncement of Hon'ble the Apex Court in the case of Ramanlal & Anr. v. State of Haryana reported in [2015 (2) JIC 694 (SC)] and has drawn our attention towards paragraphs 16 and 17 wherein Hon'ble the Apex Court has observed as under: - "16. Applying the above to the case at hand, we have no difficulty in holding that keeping in view the nature of the injury, the vital part of the body on which the same was inflicted and the weapon used by the accused appellant-Har Chand, and the medical evidence, that the said injury was sufficient in the ordinary course to cause death, culpable homicide would, in the case at hand, tantamount to murder but for the application of Exception 4 to Section 300 . The question, however, is whether Exception 4 really applies and, if so, whether the injury was inflicted with the intention of causing death or of causing such bodily injury as is likely to cause death. The circumstances of the case to which we have referred in the earlier part of this judgment, however, leave no manner of doubt that the incident was without any pre-meditation and a sudden fight upon a sudden quarrel. The injuries upon the deceased were inflicted in the heat of passion and without the appellant taking any undue advantage or acting in a cruel or unusual manner. The fact situation of the case, therefore, attracts Exception 4 especially when in terms of explanation to Exception 4, it is immaterial in such cases which party offers the provocation or commits the first assault. That being so, the offence committed by the author of the injury is not murder but culpable homicide not amounting to murder punishable under Section 304 of the IPC. 17. Coming then to the question whether the act committed by Har Chand- appellant was with intention to cause death or of causing such bodily injury as was likely to cause death, we are of the opinion that even when the act may not have been committed with the intention of causing death, the same was intended to cause such bodily injury as was likely to cause death, within the meaning of Section 304 Part I." 19. In the case of K. Ravi Kumar v. State of Karnataka reported in [2015 (1) JIC 508 (SC)], Hon'ble the Apex Court in paragraphs 14 and 15 has observed as under: "14. Keeping in view the approach of this Court for giving benefit of Exception 4 to Section 300 IPC in cases mentioned above and applying the same to the facts of this case, we are inclined to give benefit of Exception 4 to Section 300 IPC to the appellant by altering his sentence awarded to the appellant punishable under Section 304 Part II IPC. This we say so in the facts of this case for more than one reason. Firstly, even according to the prosecution, there was no premeditation in the commission of crime. This we say so in the facts of this case for more than one reason. Firstly, even according to the prosecution, there was no premeditation in the commission of crime. Secondly, there is not even a suggestion or we may say conclusive evidence that the appellant had any pre-determined motive or enmity to commit the offence against the deceased leave alone a serious offence like murder. Thirdly, incident that occurred was due to sudden quarrel which ensued between the appellant-accused and the deceased-Padma on the issue of going to village Mandya to see the ailing appellant's father. The appellant, on receiving this news, had become upset and, therefore, his insistence to see his ailing father immediately was natural and at the same time, Padma's refusal to leave could lead to heated exchange of words between them. True, it is that it reached to its extreme inasmuch as the appellant in heated exchange of words lost his mental balance and poured kerosene on Padma setting her to burn. However, the fact remains that it was an outcome of sudden outburst and heated exchange with no predetermined motive per se to kill her. Fourthly, no conclusive evidence was adduced by the prosecution to prove any kind of constant quarrel ever ensued in the last 9 long years between the couple and that too for a cause known to others which could lead to killing Padma or whether any unsuccessful attempt was ever made by the appellant to kill her in past and lastly, we have not been able to see from the post-mortem report that any stab injury on Padma's body was caused nor prosecution was able to prove that any blood stained knife from the place of occurrence was recovered at the instance of the appellant or of any witness. 15. In the light of the aforementioned reasons, which, in our opinion, emerge from the evidence on record, we are of the considered view that these reasons are sufficient to give benefit of Exception 4 to Section 300 IPC to the appellant and enables the Court to hold that the offence in question was not murder but it was an offence of culpable homicide not amounting to murder as specified in Exception 4 to Section 300 and hence punishable under Section 304 part II IPC." 20. Learned counsel for the appellant has placed great emphasis on the pronouncement of Hon'ble the Apex Court in the case of Manjeet Singh v. State of Himanchal Pradesh reported in (2014) 5 SCC 697 . He has drawn our attention towards the facts of that case which were mentioned in Paragraphs 2 and 3 of the judgment. The said paragraphs on reproduction read as: - "2. The facts of the prosecution case as stated by Jai Pal (PW. 5) are that he was carrying business of taxi in Shimla. On 31st December, 2000 at about 9 p.m. he had gone to Hotel Apsara at Cart Road, Shimla to inquire from Budhi Singh (PW. 8), Manager of the Hotel Apsara regarding the booking of his taxi by some passenger staying in the Hotel. Budhi Singh (PW. 8) asked Jai Pal (PW. 5) to come after some time. Both of them then went together to Hotel Basant for celebrating New Year. They took wine and dinner together and remained in the said Hotel till 12 o'clock. Thereafter, Budhi Singh(PW. 8) returned to Hotel Apsara while Jai Pal (PW. 5) came towards Cart Road where he met Romi Kapoor (PW. 6), Pawan Kumar (PW. 7), Deep Chand and Rajnish alias Rintu who inquired about the booking of a room in the Hotel as earlier agreed upon. Jai Pal (PW. 5) went to the Hotel Apsara where he did not find Budhi Singh (PW. 8), Therefore, he went upstairs in the Hall of the Hotel where he found accused Manjeet Singh along with Balraj and Surender Kumar were taking liquor. Jai Pal (PW. 5) inquired from the Appellant-accused, Manjeet Singh about the Manager of the Hotel to which the accused was alleged to have retorted that he was not the Chowkidar of the Hotel so as to know and tell about the Manager. Accused-Manjeet Singh was further alleged to have started abusing Jai Pal (PW. 5) by proclaiming that he was serving in Punjab Police. The accused was further alleged to have started beating Jai Pal (PW. 5) by giving him a fist blow on his mouth. 3. Jai Pal (PW. 5) ran outside. He met the above-named Romi Kapoor (PW. 6), Deep Chand, Pawan Kumar (PW. 7) and Rajnish. He narrated the incident to them. Romi Kapoor (PW. 6), Rajnish alias Rintu and Pawan Kumar (PW. 5) by giving him a fist blow on his mouth. 3. Jai Pal (PW. 5) ran outside. He met the above-named Romi Kapoor (PW. 6), Deep Chand, Pawan Kumar (PW. 7) and Rajnish. He narrated the incident to them. Romi Kapoor (PW. 6), Rajnish alias Rintu and Pawan Kumar (PW. 7) went inside the Hall while Jai Pal (PW. 5) and one Roshan remained standing at the entrance of the Hotel. Rajnish alias Rintu inquired from the accused-Manjeet Singh as to the cause of his having given beatings to Jai Pal (PW. 5). The accused was alleged to have told his companions, Balraj and Surender Kumar to tell Rajnish and his friends about the cause of the beatings to Jai Pal (PW. 5). Balraj and Surender Kumar were then alleged to have abetted and instigated the accused by saying "Carbine Ka Kamal Dekhao". Whereupon accused was alleged to have fired shots from his Carbine which hit Rajnish alias Rintu, Romi Kapoor (PW. 6), Jai Pal (PW. 5) and Pawan Kumar (PW. 7). Rajnish alias Rintu sustained two shots on his chest and he fell down on the ground. The accused and Balraj were alleged to have run away after the gun shots. Jai Pal (PW. 5) lifted Rajnish alias Rintu and carried him to I.G.M.C. Hospital, Shimla, where he was declared dead." 21. Learned counsel for the appellant has also drawn our attention towards paragraph 25 of the aforesaid judgment, which on reproduction reads as: - "25. The question now requires to determine is as to what is the nature of offence that the accused has committed. The evidence produced against the accused does not show that the accused had any motive to cause death of the deceased or have intended to cause such bodily injuries which were sufficient in the ordinary course of nature to cause the death of the deceased. Evidence on record also does not establish that the injuries caused on the body of the deceased must in all probability cause his death or likely to cause his death. On the spur of the moment, during the heat of exchange of words accused caused injuries on the body of the deceased which caused his death. Therefore, the ingredients of the murder as defined in Section 300 , Indian Penal Code, have not been established against the accused. On the spur of the moment, during the heat of exchange of words accused caused injuries on the body of the deceased which caused his death. Therefore, the ingredients of the murder as defined in Section 300 , Indian Penal Code, have not been established against the accused. In our opinion, the accused was guilty of culpable homicide not amounting to murder Under Section 304 , Indian Penal Code, and considering the fact that the accused had no intention to either cause the death of the deceased or cause such bodily injury as is likely to cause death of the deceased, it would be sufficient to impose on accused a sentence of seven years rigorous imprisonment and to impose on him a fine of Rs. 5,000/- and in default of payment of fine, a further imprisonment of six months." 22. On the basis of observation of Hon'ble the Apex Court in the case of Manjeet Singh (supra), learned counsel for the appellant has argued that the facts of the instant case are also akin to the facts of the aforesaid case. Rather the case of the present appellant stands on better footing from that case as he has shot only one fire that too from a country made pistol. 23. On the strength of the aforementioned case laws, learned counsel for the appellant has submitted that in the facts of the instant case there is nothing to infer that there was any prior intention or prior planning of the appellant to kill the deceased. The incident had taken place on the spur of moment, under heat of passion and under sudden provocation, the offence has been committed. There was no time gap to cool down the passion. There was no previous enmity. So it will not travel beyond the purview of Section 304 Part I IPC. 24. We have examined all these points. According to the admitted case of the prosecution the deceased went to the grove for grazing his cattles at 05.00 PM he must have consumed some time to reach there. Thereafter the incident of biting by honey bees took place which erupted the altercation between the deceased on one side and appellant Kamlesh and Durbal on the other side. It is an admitted case of the prosecution that thereafter appellant along with Durbal came back towards their house. Thereafter the incident of biting by honey bees took place which erupted the altercation between the deceased on one side and appellant Kamlesh and Durbal on the other side. It is an admitted case of the prosecution that thereafter appellant along with Durbal came back towards their house. In the meantime, one Suresh is alleged to have informed the complainant side and the complainant side was also coming towards the place of occurrence. On the way, this incident has taken place. According to the admitted case of the prosecution the incident has taken place at 05.20 PM. So virtually there was no time gap in between the incident that took place in the grove and the incident in which Shiv Kumar died. So it cannot be presumed that there was sufficient time gap to cool down the passion of the appellant. Only one fire is alleged to have been fired. Even the co-accused is alleged to have caused injuries to Smt. Sundara with the blunt side of the knife which has caused lacerated wounds. There is nothing on record to infer that the appellant had any prior enmity with the deceased or he had any motive to commit this offence or he had a long time gap to make planning for the offence after cooling down his passion. Thus, in our considered view, the appellant becomes entitled to the aforementioned case laws of Hon'ble the Apex Court and in our considered opinion the offence would not travel beyond the purview of Section 304 Part I IPC. For the said offence, a period of 13 years' rigorous imprisonment would be adequate sentence to meet the ends of justice. 25. Accordingly, this appeal deserves to be partly allowed and is hereby partly allowed. Conviction of appellant Kamlesh is hereby converted under Section 304 Part I IPC and sentence of imprisonment for life is hereby reduced to a period of 13 years' rigorous imprisonment. The sentence awarded to appellant Kamlesh in default of payment of fine stands confirmed. Appellant Kamlesh is in jail. He shall serve out the sentence as modified by this Court. 26. The period of detention already undergone by appellant Kamlesh in the instant case shall be set off in his substantive sentence in accordance with the provisions of Section 428 Cr.P.C. 27. Appellant Kamlesh is in jail. He shall serve out the sentence as modified by this Court. 26. The period of detention already undergone by appellant Kamlesh in the instant case shall be set off in his substantive sentence in accordance with the provisions of Section 428 Cr.P.C. 27. Office is directed to communicate this order to the court concerned for immediate compliance and also to send back lower court record.