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2018 DIGILAW 504 (UTT)

SURENDRA KUMAR SAINI v. STATE OF UTTARAKHAND

2018-12-20

RAVINDRA MAITHANI, SUDHANSHU DHULIA

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JUDGMENT Sudhanshu Dhulia, J. (Oral) This criminal appeal has been filed by the appellant against the judgment and order dated 16.12.2010, passed by learned District & Sessions Judge, Haridwar in Sessions Trial No. 429 of 2008, whereby the appellant has been convicted under Section 302 I.P.C. and has been sentenced to life imprisonment and to pay fine of Rs. 5000/- under Section 302 I.P.C. 2. The incident, which gave rise to the criminal case as per the prosecution is as follow:- An F.I.R. was lodged at Kotwali, Haridwar by the complainant Raju Kashyap, who is also PW1 before this Court stating that on 06.07.2008, the son of the accused Surendra Kumar Saini was fighting with his nephew Neetu, who was 14 years of age. Surendra Kumar Saini came out of his jhuggi and started beating his nephew. He had a knife in his hand, with which he stabbed on the left side of the chest of Neetu, and as a result of which, Neetu collapsed on the ground. The incident is of 10:15 a.m. in the morning at Vishnughat Rodi, Belwala, Haridwar. The nephew was then taken to the Government hospital, where the doctors declared him dead. The present accused was immediately arrested from the spot. The F.I.R. was registered on 06.07.2008 at 12:30 p.m. afternoon. Immediately thereafter, the Police reached the spot. The people of the slum area, when this crime was committed, by that time, had taken the appellant into their custody and brought him to the Police Station. 3. The weapon of the crime, which was a knife was also placed before the Police authorities. It was about 7 inches in length. On the right side of the knife, there was an inscription – Lord Stainless Rust free Inoxjer. There were blood stains found on the knife. Having the knife wrapped with cotton, it was kept in a white cloth and sealed. The knife had blood stains on both sides. The clothes of the accused, which he was wearing at the time of commission of the incident, were also taken and made part of the exhibit. Meanwhile, these clothes were sent for forensic examination and the forensic report confirms that all the exhibits, which were sent such as knife and clothes worn by the applicant, were having human blood. The clothes of the accused, which he was wearing at the time of commission of the incident, were also taken and made part of the exhibit. Meanwhile, these clothes were sent for forensic examination and the forensic report confirms that all the exhibits, which were sent such as knife and clothes worn by the applicant, were having human blood. The inquest report is also on record, which was completed at 4:00 p.m. on the same day and at the signature of five Panchas, the body was sent for postmortem. The postmortem was conducted the next day at 12:30 p.m. in the afternoon. The following ante-mortem injuries were found on the person of the deceased:- (1) surgical dressing at the left side at 6:00 o'clock position on the left side of the chest below the left nipple. (2) the surgical dressing there is a incise wound 1.5 c.m. x .8 c.m. into chest cavity deep. (3) On opening the injury, all the structures underneath the injury i.e. muscles, muscles, pericardm muscles were ruptured. (4) The heart arterial chamber of heart aorta are raptured, only 1500 m.l. of blood was present in the cavity. 4. The cause of death is due to shock and hemorrhage, due to ante-mortem injury. Both the chambers of heart were empty. 5. Police after investigation filed the chargesheet under Section 302 I.P.C. 6. PW1 Raju Kashyap, who is an eye-witness was examined on 05.05.2010. He states that his name is Raju Kashyap and he is a labourer. He is a permanent resident of Pilkhuan Khera Ghaziabad and presently residing at Vishnughat, Haridwar. The incident is of 06.07.2008 at about 10:15 a.m. in the morning, when children of Surendra (accused) as well as his children were playing. A fighting started between the children, and the matter was taken by Neetu to Surendra. Surendra, in turn, slapped Neetu, who fell down. At that time, Surendra was carrying a knife in his hand, which was inserted on the left side of the chest of the Neetu. Neetu was taken to the hospital and by that time, he was declared dead. He mentioned many other persons of Jhuggi Jhopri, who witnessed commission of the crime. Surendra was arrested at the spot and taken to the Police Station and thereafter, he explained as to how inquest report was prepared. Neetu was taken to the hospital and by that time, he was declared dead. He mentioned many other persons of Jhuggi Jhopri, who witnessed commission of the crime. Surendra was arrested at the spot and taken to the Police Station and thereafter, he explained as to how inquest report was prepared. In his cross examination, he says that children of Surendra and his children were playing. Meanwhile, the child of Surendra had beaten his nephew, which was complained to Surendra by the nephew of complainant i.e. deceased, on which he was stabbed. This witness was put to cross-examination, but he sticks to his version given in his examination-in-chief. Nothing has come out of his cross-examination, which may cause any sort of doubt in his statement. 7. PW2 Mani Kashyap is another eye witness of the incident, whose statement is corroborated with the statement already given by PW1 Raju Kashyap. 8. PW1 Raju Kashyap, PW2 Mani Kashyap and PW3 Peeru Ali all are eye-witnesses, who are residents of the same Jhuggi Basti. 9. One thing, which has come out clearly in the statement and cross-examination of these eye-witnesses is that the incident started due to a fight between the children. The matter reached the accused, who stabbed the deceased with the knife. Apparently, from the statement and cross-examination of all these three witnesses as well as in the postmortem report, it is clear that there is only one stab wound on the deceased on the left side of his chest and the death was actually caused because of the rupture of heart and excessive loss of blood. 10. PW4 S.N. Khan is the Doctor, who conducted the postmortem of the body says that after removing the surgical dressing, he noticed the deep wound going right up to the chamber of the heart. All the parts of the body were peeled. Both the chambers of the heart were empty. Not only just the heart, but considerable portion below the heart was also ruptured. He answered that apart from the above, there is no other ante-mortem injury on the body of the deceased. 11. PW8 Ved Pal Singh is the Investigating Officer, who initiated the investigation. He confirms that the persons belonging to the Jhuggi Basti apprehended the accused and brought him to the Police Station. They were also having the weapon, which was used in the commission of crime. 12. 11. PW8 Ved Pal Singh is the Investigating Officer, who initiated the investigation. He confirms that the persons belonging to the Jhuggi Basti apprehended the accused and brought him to the Police Station. They were also having the weapon, which was used in the commission of crime. 12. PW7 Sub-Inspector, Kunwar Pal Singh is the person who has registered the chik F.I.R. No.537 of 2008 under Section 302 I.P.C. He narrates the incident as it had already been referred above that the accused was brought the Police Station and was immediately put to custody. The weapon of crime and clothes were also recovered. 13. PW5 Arvind Singh, PW6 Amarjeet Singh and PW7 Sub-Inspector Kunwar Pal Singh, all are Police personnel who have conducted the investigation at various stages. 14. In his defence, no witness was produced by the appellant. In his statement under Section 313 of Cr.P.C., he denies all charges. All specific questions were put to him. He denies all charges and says that evidence is false. 15. This is a case, where there are three eye-witnesses, whose presence at the commission of crime cannot be denied. They are all natural witnesses. They have been consistent in their statement. It is fully established by their statement that it was appellant/accused, who has killed a 14 year's old child by inflicting a knife blow on his chest. This is also corroborated by the postmortem and forensic report and the doctor's deposition. The only question on these set of facts and on the consideration of the totality of the circumstances is whether, it is a case of murder or merely a culpable homicide, not amounting to murder. 16. Mr. Mohd. Safdar, learned counsel for the appellant has very fairly admitted towards the end of his submission that on the consideration of the facts as well as the evidence, it cannot be a case of murder, but a case of culpable homicide not amounting to murder. He relies upon the fourth exception to Section 300 I.P.C., which exempts a particular incident from murder, and takes it to the realm of culpable homicide not amounting to murder. He relies upon the fourth exception to Section 300 I.P.C., which exempts a particular incident from murder, and takes it to the realm of culpable homicide not amounting to murder. Fourth exception to Section 300 I.P.C. reads as under:- “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's having taken undue advantage or acted in a cruel or unusual manner." 17. Learned counsel for the appellant further argued that the case of the prosecution is that firstly all evidences point out that it is an act committed without any preplanning or premeditation. Further all the evidences of the prosecution i.e. PW1 Raju Kashyap, PW2 Mani Kashyap and PW3 Peeru Ali confirmed the fact that it was in the heat of the passion upon the sudden quarrel. Finally, there is only one stab wound inflicted by the appellant on the deceased, therefore, it can also be said that the accused had not taken any undue advantage or acted in a cruel or unusual manner. 18. Indeed the crime is heinous, but then the more heinous the crime, greater the scrutiny of the Court. A 14 years child has lost his life in a drastic act at the hands of the appellant. But considering the totality of nature and circumstances of the case, particularly, the nature of injury, which is single injury on left side of the chest below the left nipple, we deem it proper that the findings of murder be converted to culpable homicide not amounting to murder. 19. Under these facts and circumstances, we are inclined to accept the submission of learned counsel for the appellant and consequently, we convert the findings of murder to culpable homicide under part 1 of Section 304 of I.P.C. 20. Appellant was arrested on 16.12.2010 and since then, he is in jail. Considering the fact that petitioner has already undergone more than eight years of imprisonment, we reduce his sentence of life imprisonment to the period already undergone and order that he shall be released from the jail. The period of sentence already undergone shall also include the term of sentence, which he otherwise was liable to undergo in default of fine. 21. In view of the above observation, appeal is partly allowed. The period of sentence already undergone shall also include the term of sentence, which he otherwise was liable to undergo in default of fine. 21. In view of the above observation, appeal is partly allowed. The judgment and order dated 16.12.2010 passed by learned District & Sessions Judge, Haridwar in Sessions Trial No. 429 of 2008 is modified to the extent that sentence of life imprisonment awarded by the trial court to the appellant Surendra Kumar Saini is reduced to the period already undergone. 22. Surendra Kumar Saini shall be released forthwith in case he is not wanted in any other crime. 23. Let a copy of this judgment along with the lower court records be sent back to the court concerned for onward compliance.