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2022 DIGILAW 1012 (ALL)

Rajesh Singh v. State of U. P.

2022-07-06

AJAI TYAGI, K.J.THAKER

body2022
JUDGMENT : Ajai Tyagi, J. 1. Heard Sri Surendra Singh, learned counsel for the appellant and Sri Nagendra Kumar Srivastava, learned A.G.A. for the State. 2. This appeal challenges the judgment and order dated 2.12.2011 passed by Additional Sessions Judge, Court No.1, Kanpur Nagar in Sessions Trial No.1057 of 2007 convicting accused-appellant under Section 302 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and sentenced him to undergo imprisonment for life with fine of Rs.20,000/-and in default of payment of fine, further to undergo imprisonment for six months and in Sessions Trial No. 1058 of 2007 convicting him under Section 25 of Arms Act and sentencing him to undergo six months imprisonment with fine of Rs.1,000/- and in case of default of fine, further to undergo one month imprisonment. 3. Brief facts giving rise to this appeal are that a first information report was lodged by the complainant Balister Singh, Manager of New Dharamshala Hotel, Kanpur Nagar with the allegations that last night two persons namely, Mahesh and Pooran stayed in the aforesaid hotel and told their address as Mohalla Khataina House No.10/275, Agra. On the next morning, i.e., 04.06.2007, the day of FIR, the Manager took round of the room of the hotel at 8:00 am. When he called the above guests in room No.45 none responded. The Manager thought that the guest would have been sleeping. At 2:00 pm, when he again called from outside the room and none responded again, then he pushed the door of the room and it opened. The Manager entered the room and saw a person lying on the bed in a dead position and a blood stained brick was also lying there on the bed. The bed and wall of the room were also having blood on it. The Manager informed the owner of the hotel Sunny Singh and told him that the name of the dead person is Pooran and his associate Mahesh has run away after killing Pooran. Investigating officer took up the investigation. Blood stained pillow cover, blood stained plain earth, piece of bed sheet and sleepers etc were taken into possession. A knife was also recovered from the room. A sketch of the accused-Mahesh was circulated and on 22.07.2007, accused Mahesh was arrested by the I.O. During the course of investigation inquest report was prepared. Investigating officer took up the investigation. Blood stained pillow cover, blood stained plain earth, piece of bed sheet and sleepers etc were taken into possession. A knife was also recovered from the room. A sketch of the accused-Mahesh was circulated and on 22.07.2007, accused Mahesh was arrested by the I.O. During the course of investigation inquest report was prepared. Post mortem of the dead body of the deceased was conducted and after completion of the investigation, charge sheet was filed against the accused in the name of Rajesh Singh because the earlier name Mahesh was wrongly informed to the hotel deliberately and the actual name of deceased was Brijendra Singh. 4. The offence committed being exclusively triable by court of sessions the learned Magistrate committed the case to court of sessions. 5. The accused was summoned and on appearing he was read over the charges. the accused pleaded not guilty and wanted to be tried, hence, the trial started and the prosecution examined 9 witnesses who are as follows: 1 Balister Singh PW1 2 Sani Singh PW2 3 Mahesh Chandra Gupta PW3 4 Dr. A.K. Nigam PW4 5 Shiv Narain Singh PW5 6 Dori Lal Gautam PW6 7 Rakesh Chandra PW7 8 Shiv Kumar Gupta PW8 9 Harpal Singh PW9 6. In support of ocular version following documents were filed: 1 F.I.R. u/s 302 IPC Ex.Ka4 2 F.I.R. u/s 25 Arms Act Ex.Ka19 3 Written Report Ex.Ka2 4 Recovery Memo of Blood Stained pillow cover & Knife, blood stained & plain earth, piece of Bedsheet & Slippers, Coins Beedi and Matchstick Ex.Ka13 5 Recovery memo of 'Tamancha', Live Cartidges & Arrest of Memo Ex.Ka14 6 Postmortem Report Ex. Ka3 7 Panchayatnama Ex.Ka2/6 8 Site Plan u/s 302 IPC Ex.Ka12 9 Site Plan u/s 25 Arms Act Ex.Ka16A 10 Charge-sheet u/s 302 IPC Ex.Ka15 11 Charge sheet u/s 25 Arms Act Ex.Ka 17 7. At the end of the trial and after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the appellant as mentioned above. 8. The accused-appellant is in jail since 22.7.2007. Learned counsel for the appellant has made three fold submissions. At the end of the trial and after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the appellant as mentioned above. 8. The accused-appellant is in jail since 22.7.2007. Learned counsel for the appellant has made three fold submissions. One, it is a clear case of acquittal as the circumstantial evidence is not sufficient and the chain is not complete which would point only to the guilt of accused-appellant who is in jail. Two, in the alternative, he has submitted that the injuries which are found though on the temporal part of the deceased, there is only one blow and that was with the brick and not by sharp edged knife which was found from the accused. There is no mention of any incised wound on the body of the deceased and, therefore, the offence is one which would be punishable under Section 304 Part I of IPC. Three, in the alternative, he has submitted that even if it is considered that the accused has committed the offence punishable under Section 302 of I.P.C., the term "life" in view of the judgments of the Apex Court in Maru Ram Vs. Union of India, 1981 (1) SCC 107 and in Vikas Yadav Vs. State of U.P, 2016 (9) SCC 541 , would not be till last breath of appellant as it cannot be said that the death is so gruesome, that the appellant should be incarcerated in jail till the end of his life. 9. Sri N.K. Srivastava, learned A.G.A. for the State submits that it is not a case of acquittal as reason given by the learned Sessions Judge are cogent and the accused appellant cannot be given benefit of doubt. It is further submitted that this is also not a case which falls under Section 304 Part I. It is a clear case of murder and punishment under Section 302 of I.P.C does not call for interference. 10. Prosecution case is that before one day of the occurrence, accused and deceased stayed in New Dharamshala Hotel, Kanpur Nagar with fake names. Next day, deceased Brijendra Singh, earlier Pooran, was found dead in room No.45 of the hotel and the accused Rajesh Singh, earlier Mahesh, was found absconded from there. A blood stained brick was also found lying on the bed. Next day, deceased Brijendra Singh, earlier Pooran, was found dead in room No.45 of the hotel and the accused Rajesh Singh, earlier Mahesh, was found absconded from there. A blood stained brick was also found lying on the bed. There is no eye-witness of the occurrence. It is a case of circumstantial evidence. In a case of circumstantial evidence, the chain of circumstances should be completed in such a manner, as there is left no doubt that offence is not committed by anyone else but the accused only. During the course of the investigation, the motive is established, which was usurping the amount of Rs.1,50,000/-from the deceased. Evidence is there that the accused withdrew the amount from the account of the deceased by using his ATM card. Hotel record goes to show that accused and deceased stayed together in the same room of the hotel and the deceased was last seen in the company of the deceased by the Manager of the hotel and after that deceased was not seen with anybody-else. It is also a circumstance against the accused that he absconded from the hotel without informing the hotel staff and arrested later on by the investigating officer with the help of his sketch. 11. Considering the evidence of the 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 appellant. 12. 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 I.P.C. 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." 13. The academic distinction between ‘murder’ and ‘culpable homicide not amounting to murder’ has always vexed the Courts. 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 of I.P.Code. 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 if 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. 14. At the time of post mortem of the deceased following ante mortem injuries were found as per the post mortem report:- (i) One contused swelling of 15cm x 10cm on the right side of the head, just above ear and there were several lacerated wounds just above it of size 1cm x 1cm (ii) Behind the head in the area of 7cm x 5 cm there was contused swelling in which there were several lacerated wounds of size 1cm x 1cm 15. On internal examination a 10cm long fracture in temporal and parietal bone was found. 16. The above ante mortem injuries were inflicted by the brick which was found on the bed where the dead body was lying. On internal examination a 10cm long fracture in temporal and parietal bone was found. 16. The above ante mortem injuries were inflicted by the brick which was found on the bed where the dead body was lying. It is very relevant to mention that a knife was also recovered from the room of the hotel but there was no injury of incised wound on the person of the deceased, which goes to show that the knife was not used by the accused. 17. On overall scrutiny of the facts and circumstances of the present case coupled with the opinion of the Medical Officer and considering the principle laid down by the Apex Court in the Case of Tukaram and Ors Vs. State of Maharashtra, reported in (2011) 4 SCC 250 and in the case of B.N. Kavatakar and Another Vs. State of Karnataka, reported in 1994 SUPP (1) SCC 304, we are of the considered opinion that the offence would be one punishable under Section 304 part-I of the IPC as there are no injuries caused by knife found from room where dead body was found. 18. From the upshot of the aforesaid discussions, it appears that the death caused by the accused was not premeditated, but the intention has to be inferred as the injuries were sufficient in the ordinary course of nature to have caused death, hence the instant case falls under the Exceptions 1 and 4 to Section 300 of IPC. While considering Section 299 as reproduced herein above offence committed will fall under Section 304 Part-I as per the observations of the Apex Court in Veeran and others Vs. State of M.P. Decided, (2011) 5 SCR 300 which have to be also kept in mind. 19. In view of the above, we hold that the accused has committed culpable homicide not amounting to murder and punish him to undergo rigorous imprisonment for 10 years and fine of Rs.10,000/-. Sentence of default is maintained. Period of sentence for six months imprisonment under Section 25 Arms Act has already been undergone by the appellant. Fine and imprisonment for default under Section 25 Arms Act is maintained. If 10 years' incarceration is over, the Jail authority would release the accused if not wanted in any other offence. 20. This appeal is partly allowed. Record and proceedings be sent back to the Tribunal forthwith.