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2021 DIGILAW 158 (ALL)

Sunil Kumar Pandey Alias Sonu v. State of U. P.

2021-01-28

GAUTAM CHOWDHARY, K.J.THAKER

body2021
JUDGMENT : 1. Heard Shri Sanjay Pathak, learned counsel for the appellant and learned AGA for the State. 2. As per order sheet dated 22.1.2021, Shri Ulljhan Singh Bind, learned counsel for the private respondent has absented himself. Today when the hearing was started once again he has absented himself. 3. This appeal has arisen from the judgment and order dated 15.3.2012 passed by learned Additional Session Judge, Court No.1, Sidharth Nagar in Session Trial No.111 of 2010, titled State v. Sunil Kumar Pandey alias Sonu has been convicted for the offence under Section 302 I.P.C. and awarded the sentence of Life Imprisonment and a fine of Rs.20,000/-(in default of payment of fine to further undergo 20 months Additional Imprisonment) and also under Section 323 I.P.C. and awarded the sentence/fine of Rs.500/-(in default of payment of fine to further undergo 1 month Additional Imprisonment), Police Station Etwa, District Sidharth Nagar. 4. The complainant's uncle Uday Pratap Pandey said in the complaint on 23.2.2010 when the complainant took his son Amarmani Pandey with his uncle Uday Pratap pandey for taking medicine. Chandrabhanu Pandey who is the cousin of the complainant demanded land without money from his uncle. Uncle was not willing to give the land, on the said date at about 2.30 pm, the accused merciless started beaten on uncle with wooden shaft of the seat (takhat), the uncle died on the spot. The prosecution filed the charge-sheet against the accused and as a case was triable by the court of session, the magistrate committed the court of session on 30.4.2010 charges under sections 302 and 307 were framed on the accused. 5. The prosecution examined several witnesses so as to bring home the charge framed against the accused as enumerated hereinbelow : 1. Deposition of Dr. Ram Kumar Verma 12.01.01 PW1 2. Deposition of Dr. Vijay Kumar Vaid 31.03.11 PW2 3. Deposition of Rajaram Pandey 31.03.11 PW3 4. Deposition of Purshottam Singh 13.04.11 PW4 5. Deposition of Amar Mani Pandey 07.06.11 PW5 6. Deposition of Pradeep Tiwari 05.07.11 PW6 7. Deposition of Chandrabhan Mishra 04.08.11 PW7 8. Deposition of Vashistha Narayan Singh 02.09.11 PW8 9. Deposition of Surya Prasad Gautam 17.12.11 PW9 6. In support of ocular version following documents were filed by the prosecution which we have been taken through by both the counsels:- 1. First Information Report 23.02.10 Ex.Ka.5 2. Written Report 23.02.10 Ex.Ka.3 3. Deposition of Chandrabhan Mishra 04.08.11 PW7 8. Deposition of Vashistha Narayan Singh 02.09.11 PW8 9. Deposition of Surya Prasad Gautam 17.12.11 PW9 6. In support of ocular version following documents were filed by the prosecution which we have been taken through by both the counsels:- 1. First Information Report 23.02.10 Ex.Ka.5 2. Written Report 23.02.10 Ex.Ka.3 3. Recovery Memo of blood stained, plain earth and Wood from leg of bed 23.02.10 Ex. Ka.4 4. Injury Reports 23.02.10 & 24.02.10 Ex. Ka.2 5. Post mortem report 24.02.10 Ex.Ka.1 6. Report of Vidhi Vigyan Prayogshala 04.09.10 Ex. Ka.12 7. Panchayatnama 23.02.10 Ex. Ka.4A 8. Charge-sheet (Mool) 12.03.10 Ex. Ka.7 9. Site Plan with Index 23.02.10 Ex. Ka.8 7. Learned counsel for the appellant has contended that the offence was not committed or rather even if this court come to the conclusion not of the highest decree the accused was not armed hence contended that the medial evidence may also be perused by this court and the cumulative effect on the evidence on record be considered. The accused would be given benefit of lesser sentence under Section 304 and 307. 8. Per contra, the learned AGA has vehemently objected to the same that the accused had the knowledge and intention to do away with the deceased and it was not culpable homicide or murder simpliciter. 9. PW-1, Dr. Ram Kumar Verma, in his ocular version has stated the following injuries were found on the dead body of which he conducted the post mortem : ^^¼1½ QVk /kko 2 lsehŒ x 0-5 lsehŒ lj ds ck, rjQ- ¼2½ lj ds fiNs dh gM~Mh dà txg VwVh Fkh efLrd dh f>Yyh QVh Fkh rFkk [kwu dk FkDdk efLrd ds ds xqns esa Fkk- ¼3½ [kjksp flgr uhyxw fu'kku ck, dku ds ihNs 1-5 x 2 lsŒ ehŒ Fkk- ¼4½ isV esa 150 xzke v/kipk Hkkstu ekStwn Fkk e`rd dh e`R;q lkd ,oa jDrfj";ko ls gqà Fkh- ;g iksLVekVZe fjiksVZ esjs ys[k o gLrk{kj esa gS- bldh iqf"V djrk gw¡ bl ij Án'kZ d&1 Mkyk x;kA** 10. From the evidence on record of PW-3, who has given the First Information Report it is revealed that the accused did not have the stick in his hand when he came to the place where the incident occurred, he was the behind his uncle as per prosecution witness No.3. 11. From the evidence on record of PW-3, who has given the First Information Report it is revealed that the accused did not have the stick in his hand when he came to the place where the incident occurred, he was the behind his uncle as per prosecution witness No.3. 11. The accused is in jail for more than a decade. 12. Looking to the facts of this case and the evidence on record, it would be necessary for us to evaluate as to whether the accused has committed murder or culpable homicide not amount to murder. The evidence and record goes to show that the accused did not come with arm. There were altercation between the deceased and the accused. The medical evidence will also have to be looked into. 13. This takes us to the issue of whether the offence would be punishable under Section 299 or Section 304 I.P.C. 14. Considering the evidence of these witnesses and also considering the medical evidence including post mortem report, there is no doubt left in our mind about the guilt of the present appellants and admission on part of accused. However, the question which falls for our consideration is whether, on reappraisal of the peculiar facts and circumstances of the case, the conviction of the appellant under Section 302 of the Indian Penal Code should be upheld or the conviction deserves to be converted under Section 304 Part-I or Part-II of the Indian Penal Code. It would be relevant to refer Section 299 of the Indian Penal Code, which read as under : "299. Culpable homicide: Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide." 15. The academic distinction between ‘murder’ and ‘culpable homicide not amounting to murder’ has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Section 299 and 300. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Section 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences. Section 299 Section 300 A person commits culpable homicide if the act by which the death is caused is done- Subject to certain exceptions culpable homicide is murder is the act by which the death is caused is done. INTENTION (a) with the intention of causing death; or (1) with the intention of causing death; or (b) with the intention of causing such bodily injury as is likely to cause death; or (2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; KNOWLEDGE KNOWLEDGE (c) with the knowledge that the act is likely to cause death. (4) with the knowledge that the act is so immediately dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above. 16. While going through the record, we are convinced that the accused had knowledge that the injury would cause death and hence the case would fall within the Section 304 Part-I of the I.P.C. as the Doctor has also opined that he was not very sure whether the death occurred due to injury no.2 or not. 17. We held that the sentence under 302 is substituted under 304(I) of I.P.C. to that already undergone and that the fine is reduced to Rs.10,000/-with default sentence of three months. As far as Section 323 I.P.C. is concerned, the sentence is maintained as he has already undergone the sentence, but fine is also maintained and default sentence is maintained. 18. The appeal is partly allowed 19. Record and proceedings be sent back to the trial court. 20. This court is thankful to Shri Noor Mohmmad and learned AGA for ably assisting this Court in getting this old matter disposed of.