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2019 DIGILAW 966 (ALL)

Deoki Nandan v. State of U. P.

2019-04-16

PRITINKER DIWAKER, RAJEEV MISRA

body2019
JUDGMENT : PRITINKER DIWAKER, J. 1. This appeal arises out of impugned judgment and order dated 9.12.2009 passed by Additional Sessions Judge, Court No. 2, Bareilly in Sessions Trial No. 548 of 2007 and 549 of 2007 (State Vs. Devki Nandan and another) and (State Vs. Sunder @ Shyamsunder), convicting accused-appellant, Deoki Nandan under Sections 302/34 of IPC and accused-appellant, Suder @ Shyamsunder under Sections 302 of IPC and 25 of the Arms Act and sentencing them to undergo life imprisonment and a fine of Rs. 2,000/-, in default thereof, six months additional sentence; and to undergo life imprisonment and further to undergo two years rigorous imprisonment, with a fine of Rs. 2000/-, in default thereof, six months additional sentence respectively, with a direction that all the sentences to run concurrently. 2. As per prosecution case, the appellants are real brothers whereas deceased Sompal was their neighbour. It is alleged that on 6.10.2006 at about 7:30 PM, when deceased Sompal had gone to take country made Cheroots (Beedi) in the shop of Shanker Lal, accused-appellants reached there, abused him and caused one firearm injury, resulting his instantaneous death. Incident has been witnessed by Ramman Lal, PW-1 and Shanker Lal, PW-2. At 9:05 pm, on the basis of written report Ex. Ka-1, FIR Ex. Ka-21 was registered against the appellants under Section 302/34 of IPC. From the possession of accused-appellant no. 2, Suder @ Shyam Sunder, a 12 bore country made pistol was seized on 10.11.2006 vide Ex. Ka17. However, there is no ballistic expert report in respect of the weapon. 3. Inquest on dead body of the deceased was conducted on 07.10.2006 vide Ex. Ka-11 and the body was sent for postmortem which was conducted on the same day by Dr. V.K. Yadav (PW-6) vide Ex. Ka-7. 4. As per postmortem report, following injury was noticed on the body of the deceased: 1. A fire arm wound of entering 3.5 x 3 cm chest cavity deep on sternum 2 cm lateral to Rt. nipple. Margin inverted blackening and tattooing present around the wound. On opening of wound underneath heart and both lungs lacerated. Sternum fractured. A plastic piece and metallic small pallets excavated from chest cavity and heart. 5. While framing charge, trial Judge has framed the charge against the accused no. 1, Deoki Nandan under Sections 302/34 of IPC whereas against accused no. Margin inverted blackening and tattooing present around the wound. On opening of wound underneath heart and both lungs lacerated. Sternum fractured. A plastic piece and metallic small pallets excavated from chest cavity and heart. 5. While framing charge, trial Judge has framed the charge against the accused no. 1, Deoki Nandan under Sections 302/34 of IPC whereas against accused no. 2, Suder @ Shyam Sunder, charge was framed under Section 302 of IPC. 6. So as to hold accused persons guilty, prosecution has examined seven witnesses. Statement of accused persons were also recorded under Section 313 of Cr.P.C in which, they pleaded their innocence and false implication. 7. By the impugned judgment, the trial Judge has convicted the accused-appellant no. 1, Deoki Nandan under Sections 302/34 of IPC and accused-appellant no. 2, Suder @ Shyam Sunder under Sections 302 of IPC and 25 of the Arms Act and sentenced them as mentioned in paragraph no. 1 of this judgment. Hence this appeal. 8. Learned counsel for the appellants submits: (i) that there was no motive on the part of accused-appellants to commit the murder. (ii) that no previous enmity or any sort of quarrel at the place of incident, prior to the occurrence, has been proved by the prosecution. The cause of death of deceased was due to shock and hemorrhage as a result of antemortem firearm injury. (iii) that there was no sufficient source of light at the place of occurrence. (iv) that at the time of occurrence, Shanker Lal, PW-2, was inside his house and, therefore, question of his seeing the incident does not arise. (v) Ramman Lal, PW-1 being brother of the deceased is an interested witness and he has falsely implicated the appellants. (vi) that there was no premeditation on the part of appellants to commit the incident. The incident occurred in a sudden fight in the heat of passion upon a sudden quarrel and, therefore, at best, appellants can be convicted under Section 304 Part II of IPC. (vii) that appellant no. 2, Suder @ Shyam Sunder is in jail since last more than 7 years and, therefore, he be set free forthwith after reducing his sentence. (viii) that in respect of appellant no. (vii) that appellant no. 2, Suder @ Shyam Sunder is in jail since last more than 7 years and, therefore, he be set free forthwith after reducing his sentence. (viii) that in respect of appellant no. 1, Deoki Nandan, it has been argued that considering the role assigned to him, the fact that he is on bail and remained in jail for about one year, therefore, no useful purpose would be served in sending him back to jail. His sentence may also be reduced for the period already undergone by him. In case, his sentence is reduced, he will compensate the family of the deceased Sompal. 9. On the other hand, supporting the impugned judgment, it has been argued by State counsel: (i) that conviction of the appellants is in accordance with law and there is no infirmity in the same. (ii) that even if the statement of Shanker Lal, PW-2 is ignored, statement of Ramman Lal, PW-1 is good enough to uphold the conviction of the appellants. 10. We have heard counsel for the parties and perused the record. 11. Ramman Lal, PW-1, is a brother of the deceased, informant and eye witness of the incident. While supporting the prosecution case, he has stated that on the date of incident, when he was sitting along with Ramswaroop in the shop of Shanker Lal (PW-2) where the gas light was on, his brother Sompal (deceased) came there for purchasing 'Beedi' and then both the accused persons started abusing him. The act of the accused-appellants was opposed by the deceased and soon thereafter accused no. 1, Deoki Nandan asked accused no. 2, Sunder @ Shyam Sunder to kill the deceased. It is then that accused no. 2 caused firearm injury to the deceased by a country made pistol, resulting in his instantaneous death. In cross examination, he states that there was no previous quarrel between the parties and the incident occurred all of a sudden. This witness was subjected to lengthy cross examination but he remained firm to his main statement. 12. Shanker Lal, PW-2, is a shopkeeper in whose shop Ramman Lal, PW-1 was sitting and where the deceased had gone to purchase 'Beedi'. This witness was subjected to lengthy cross examination but he remained firm to his main statement. 12. Shanker Lal, PW-2, is a shopkeeper in whose shop Ramman Lal, PW-1 was sitting and where the deceased had gone to purchase 'Beedi'. He states that at the time of occurrence of the incident, he was taking his meal inside his house and upon hearing the sound of gun shot, he came out from the house at the shop and found number of persons around his shop and that deceased was lying in dead condition. 13. Constable, Subash Chand Sharma, PW-3, assisted during investigation. 14. Shiv Charan Singh, PW-4 and D.P. Singh, PW-5, conducted investigation in respect of case crime number under the Arms Act. 15. Dr. V.K. Yadav, PW-6, conducted postmortem on the body of the deceased. 16. Subash Chand Yadav, PW-7, is the investigating officer. 17. Close scrutiny of the evidence makes it clear that on 6.10.2006 at about 7:30 PM, when deceased Sompal had gone to take 'Beedi' in the shop of Shanker Lal, accused-appellants reached there, abused the deceased and caused one firearm injury to him, resulting in his instantaneous death. Though Shanker Lal, PW-2 does not appear to be an eye witness but he reached the place of occurrence immediately after it had taken place. Considering the statement of Ramman Lal, PW-1, an eye witness and the postmortem report of the deceased, complicity of the accused persons in commission of the offence has been duly proved. 18. The question which arises for consideration before this Court is as to whether the act of accused-appellants would come within the definition of murder or it would be culpable homicide not amounting to murder. Admittedly, there was no premeditation on the part of the accused to kill the deceased and the incident occurred on the spur of moment. From the evidence, it appears that there was sudden quarrel between the appellants and the deceased without premeditation in the heat of passion, injury has been caused to the deceased, unfortunately resulting in his death. 19. Keeping in view all aspects of the case, we are of the opinion that the case of appellants would fall under Exception 4 of Section 300 of IPC and accordingly, we hold that the act of accused appellants would be 'culpable homicide not amounting to murder'. 20. 19. Keeping in view all aspects of the case, we are of the opinion that the case of appellants would fall under Exception 4 of Section 300 of IPC and accordingly, we hold that the act of accused appellants would be 'culpable homicide not amounting to murder'. 20. The next question is as to what offence has been committed by the appellants and what would be the appropriate sentence. Considering the evidence available on record, we are of the view that their act would fall under Section 304 Part I of IPC. 21. The law takes care of such a situation. Section 300 IPC lays down the exceptions to Section 299 IPC which deals with culpable homicide not amounting to murder. Any act done upon sudden and grave provocation is the 4th exception of Section 300 IPC. It would be worthwhile to refer to the judgment of the Supreme Court in the case of Surain Singh Vs. State of Punjab reported in 2017 (5) SCC 796 , wherein paragraph 13 and 14 explain the law relating to the 4th exception, the same are reproduced below: "13. Exception 4 to Section 300 of the IPC applies in the absence of any premeditation. This is very clear from the wordings of the Exception itself. The exception contemplates that the sudden fight shall start upon the heat of passion on a sudden quarrel. The fourth exception to Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of provocation 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. 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 an 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 could in such cases 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. 14. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) without the offenders 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 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. 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”. 22. There is nothing on the record to show that there was any mens rea on the part of the present accused-appellants to commit the alleged crime or there was any such circumstance to establish the existence of a calculated mens rea to take revenge of any such act committed by the deceased or there was enmity between the two. 23. Having considered the overall facts and circumstances of the case, in particular, the fact that incident occurred about 13 years back, at the time of commission of offence, the appellants were young persons, we are of the view that ends of justice would be served if they are sentenced for eight years imprisonment. Order accordingly. 24. Accused-appellant no. 1, Deoki Nandan is reported to be on bail, his bail bond stands cancelled and he be taken into custody immediately for serving the remaining sentence. 25. So far as the sentence of accused-appellant no. 2, Suder @ Shyam Sunder is concerned, he is reported to be in jail, he be released forthwith after completion of eight years of sentence as awarded by this Court, if not required in any other case. 26. Taking cumulative effect of the evidence and the facts, and further considering the judgment of the Apex Court in Ankush Shivaji Gaikwad vs. State of Maharashtra, (2013) 6 SCC 770 , we are of the view that accused-appellants Deoki Nandan and Suder @ Shyam Sunder are liable to compensate two unmarried daughters and one unmarried son by paying a total compensation of Rs. 1,00,000/-(Rs. 50,000/-by each accused) under Section 357 of Cr.P.C. Accordingly, accused-appellant no. 2, Suder @ Shyam Sunder is directed to deposit Rs. 1,00,000/-(Rs. 50,000/-by each accused) under Section 357 of Cr.P.C. Accordingly, accused-appellant no. 2, Suder @ Shyam Sunder is directed to deposit Rs. 50,000/-within a period of six months, after being released from jail before the trial court, whereas accused-appellant no. 1, Deoki Nandan shall deposit the said amount with simple interest, as per his convenience before he being released from Jail. The amount so deposited by the accused persons before the trial Court, shall be disbursed to unmarried daughters and unmarried son of the deceased. In case, accused-appellants, Deoki Nandan and Suder @ Shyam Sunder fail to deposit the compensation within stipulated time, the Court below shall proceed against them in the light of the judgment of the Apex Court reported in Kumaran Vs State of Kerala and another (2017) 7 SCC 471 . 27. The appeal is partly allowed.