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2022 DIGILAW 2046 (ALL)

Jamshed v. State of U. P.

2022-12-23

SUNEET KUMAR, SYED WAIZ MIAN

body2022
JUDGMENT : Syed Waiz Mian, J. 1. This Criminal Appeal under Section 374 (2) Cr.P.C. has been preferred by appellant/accused, Jamshed, against the judgment and order dated 26.10.2006, passed by Additional Session Judge, (Fast Track Court), Chandauli, in Session Trial No. 29 of 2022 (State vs. Jamshed) whereby, he has been convicted and sentenced, under Section 302 I.P.C. to undergo Imprisonment for life with a fine of Rs. 10,000/-, and under Sections 323, 504, 506 I.P.C. 6 months, one year and 1 and half year, simple imprisonment, respectively, and in the event of default in payment of fine, he has to further undergo one year simple imprisonment. All the sentences have been directed to run concurrently. 2. Heard Shri Sagir Ahmed, learned Senior Advocate, assisted by Mohd. Farooq, learned counsel for the appellant and Shri Ratnendu Kumar Singh, learned A.G.A. for the State respondent and perused the record. 3. Brief facts of the prosecution story unfolds as under: 4. One Vijendra Yadav-informant, on 05.07.2001 at about 20.30 hours, presented a written First Information Report, whereupon, First Information Report No. 96 of 2001, Case Crime No. 113 of 2001, under Sections-302, 323, 504 and 506 I.P.C., at Police Station-Balua, District-Chandauli, came to be registered against the appellant/accused. 5. In the First Information Report, it is alleged that on 05.07.2001, Satish Yadav, after taking kerosene oil from the Fair Price Shop, was on the way to his house; as soon as, he had reached at the tea and beetle shop at 6.30. p.m. of Nahku Prajapati, near square, the accused riding upon motor bike, came there and started to hurl abuses at him. When Satish Yadav cautioned him, the appellant got down from the vehicle and started to beat him with fists and kicks; witnesses, Lal Ji, Sanjay and others, who were present there, intervened and separated Satish Yadav from accused and also reprimanded the accused against his action; but he (accused) threatened them to leave the place, otherwise, he would shoot them; witnesses challenged him by saying that it was not easy for him to kill them, on which accused got infuriated and fired with gun on the chest of Rajvansh, who fell down and died on the spot. The accused brandishing his gun threatened the witnesses and he took to his heels leaving the people on the spot, frightened. 6. The accused brandishing his gun threatened the witnesses and he took to his heels leaving the people on the spot, frightened. 6. Substance of the First Information Report was got entered into G.D. on 05.07.2001 and the investigation was handed over to the incharge of the Police Station who took it and commenced the same. 7. At the instance of the informant, site plan of the place of the occurrence was prepared. Inquest over the body of the deceased was conducted and the dead body of the deceased along with inquest report and other necessary papers was forwarded to the district mortuary to ascertain the real cause of the death of the deceased. 8. During investigation, the investigating officer, recorded the statement of P.W.-1, and other witnesses. On 08.07.2001, accused got arrested who confessed to the incharge of the police station Samant Bhadra Shukla that in connection with the present incident he had killed Rajvansh by licensee fire arm DBBl gun .12 bore and had concealed the weapon in the bushes, near old Idgah at village Nathupur. He also disclosed to the arresting officer that he can get the same recovered from the said place, whereupon, the investigating officer Samant Bhadra Shukla, incharge of the police station, along with witnesses Raja Ram Yadav and Rajendra Yadav, in the hope of such recovery, took the accused at the given place, where he, at 14:00 hours, got recovered DBBl gun from the bushes and admitted to have killed the deceased on 05.07.2001. He also pointed out that his brother Tanjeen Ahamad, was the license holder of the weapon who was serving in Military and posted in Jammu and Kashmir. In the cover of butt, of the recovered DBBl gun, three live cartridges were also got recovered. Both articles, ie. DBBL gun and recovered live cartridges, in the presence of the accused and witnesses were got sealed separately in a piece of cloth and memo of recovery, paper no. Exhibit-Ka15, 212 was prepared by the investigating officer Samant Bhadra Shukla and accused and others also signed the same. 9. The recovered DBBl gun was sent to CFL, Uttar Pradesh, Mahanagar, Lucknow, for examination. CFL examination report of the assault weapon, paper no. 6Ka is on record. 10. Exhibit-Ka15, 212 was prepared by the investigating officer Samant Bhadra Shukla and accused and others also signed the same. 9. The recovered DBBl gun was sent to CFL, Uttar Pradesh, Mahanagar, Lucknow, for examination. CFL examination report of the assault weapon, paper no. 6Ka is on record. 10. On the basis of the recovery memo Exhibit Ka-15, a First Information Report No. 98 of 2001 was registered as Crime No. 115 of 2001 under Sections 3/25/27 of Arms Act, against the accused at the Police Station and investigation of it was entrusted to SGP Rana Pratap Singh who had inspected the place of the recovery of fire arm and three cartridges. The investigating officer also recorded the statements of the informant and witnesses. 11. The investigating officer, of Case No. 113 of 2001, under Sections-323, 504, 506 and 302 I.P.C., after collecting the evidence against accused under Section 161 Cr.P.C. got convinced and submitted Chalan with relevant material to the learned Court. 12. Similarly, the investigating officer, after collecting the evidence, in Crime No. 115 of 2001, under Sections-3/25/27 of Arms Act, against the accused forwarded the charge sheet to the concerned Court. 13. By means of the instant criminal appeal, the impugned judgment and order is being assailed in connection with his conviction with regard to Session Trial No. 29 of 2002, arising out of Case Crime No. 113 of 2001, under Sections-302, 323, 504, 506 I.P.C. 14. Charges against the accused under Sections 302, 323, 504 and 506 I.P.C., were framed by the learned District Sessions Court vide order dated 03.02.2003. Appellant denied the charges and claimed trial. 15. In order to prove the charges against the accused, prosecution examined P.W.-1, Brijendra Yadav, P.W.-2-Satish Yadav, P.W.-3 Lal Ji, P.W.-4 Lal Mohar Ram, P.W.-5 Shiva Chandra Tripathi, investigating officer, P.W.-6-Samant Bhadra Shukla, Investigating Officer, P.W.-7 Sunil Kumar Saxena, who in the presence of Shiva Chandra Tripathi and Panchan, prepared the inquest report-Exhibit-Ka 6 of the deceased, in his writing and signatures and had taken the sealed dead body of the deceased to district mortuary along with inquest report and other papers to ascertain the real cause of death of the deceased, P.W.-8 H.C.P. Rana Pratap Singh, who has conducted the investigation in Case Crime No. 115 of 2001, under Section 3/25/27 of Arms Act, against the accused and P.W.10-Dr. A.K. Pradhan, had conducted and examined the dead body of the deceased and prepared the autopsy report of the deceased in his signature and writing. 16. Statement of accused under Section 313 Cr.P.C. was recorded, wherein, accused has stated that evidence of informant and other witnesses is false. He has also denied that on his pointing out assault weapon i.e. DBBL gun and live cartridges were recovered. Further, he denied to have made confessional and disclosure statement to the investigating officer. He has further stated that his trial in the present case was conducted on account of his animosity. He also has claimed innocence. 17. Further, on behalf of the appellant, documentary evidence in connection with Session Trial No. 29 of 2002 vide schedule dated 09.03.2006, postal receipt no. 12 dated 08.07.2001, certified copy of telegraph message, transmitted by one Nafis Fatima and Shamim Ahmad and also documentary evidence in respect of S.T. No. 28 of 2002, by way of schedule dated 03.12.2004, certified copy of the G.D. No. 29 time 21.10 hours, dated 06.07.2001, Police Station-Balua, has been adduced. 18. After hearing the learned counsel for the accused appellant and learned DGC (criminal) for both respective parties, the learned trial Court convicted and sentenced the appellant/ accused vide conviction and sentence order dated 19.10.2006 and 26.10.2006, respectively. 19. Feeling aggrieved by the impugned judgment and order, the instant Criminal Appeal under Section 374 (2) Cr.P.C. has been preferred, where by the said impugned judgment and order is being assailed on the grounds inter alia that the conviction and sentences are against the weight of evidence on record and contrary to the law. It is also averred in the present appeal that the conviction and sentences are against the facts and are too severe. It is prayed that the impugned judgment and order dated 26.10.2006, passed by the learned Additional Sessions Judge (F.T.C.), Chandauli, be set aside and consequently he may be exonerated. 20. It is also averred in the present appeal that the conviction and sentences are against the facts and are too severe. It is prayed that the impugned judgment and order dated 26.10.2006, passed by the learned Additional Sessions Judge (F.T.C.), Chandauli, be set aside and consequently he may be exonerated. 20. At the outset the learned counsel for the appellant/accused has submitted that in view of the facts of the alleged incident, the offence falls within Section 300 (exception 1) I.P.C. because as per the prosecution case the incident is alleged to have occurred without premeditation and on account of sudden quarrel and in the heat of the anger, therefore, the learned trial court has erred to convict the appellant under Section 302 I.P.C. He submits that the facts of the occurrence reflect that there was no intention/ premeditation, hence it amounts to culpable homicide. He has further contended that under the Indian Penal Code, murder and culpable homicide are separate offences. As per the prosecution story the act of the appellant/accused is covered under Section 300 (exception-1) i.e. culpable homicide not amounting to murder subject to certain provisos stipulated to exception 1 (Section-300). 21. Learned counsel has also submitted that the appellant/ accused has no previous criminal antecedents and is languishing in jail since 19.10.2006. It is submitted that at the most the appellant-accused could be convicted and sentenced for offence of culpable homicide not amounting to murder. 22. Under Section 304 I.P.C., it is stipulated that : The factors which reduce murder to culpable homicide: (a) it should have been committed without premeditation: (b) it should have been committed upon a sudden quarrel: (c) it should have been committed in the heat of passion: (d) it should have been committed without the offender’s having taken undue advantage or acted in a cruel or unusual manner: 23. Next it is submitted by the learned counsel for the appellant that under Section 304 I.P.C. the maximum sentence prescribed is 10 years, whereas, appellant/accused is suffering incarceration since 19.10.2006. 24. Learned counsel has submitted that since the appellant/accused has suffered incarceration for more than 15 years, therefore, he could be sentenced with imprisonment for which he has already undergone. 25. 24. Learned counsel has submitted that since the appellant/accused has suffered incarceration for more than 15 years, therefore, he could be sentenced with imprisonment for which he has already undergone. 25. As per the First Information Report, the incident had occurred all of sudden and it is reflected from the perusal of the material on record that act of the appellant/accused falls within the ambit of Section 300 (exception 1) as the appellant had no intention to kill the deceased and on sudden provocation and quarrel incident had occurred. Further, he had only fired once at the deceased. 26. P.W.-10, Dr. A.K. Pradhan, who has conducted the autopsy over the body of the deceased has also stated in his deposition that only one bullet in the body of the deceased was found. 27. Under the scheme of Indian Penal Code the ‘culpable homicide’ is genus and ‘murder’ is its specie. All ‘murder’ is culpable homicide but not vice versa. Speaking generally ‘culpable’ homicide sans ‘special characteristic of murder’ is culpable homicide not amounting to murder. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, culpable homicide of the first degree. This is the gravest form of culpable homicide which is defined in Section 300 as ‘murder’. The second may be termed as ‘culpable homicide of the second degree’. This is punishable under the first part of Section 304. 28. In the case of culpable homicide the intention or knowledge is not so positive or definite. An injury caused may or may not cause death. Even if the exceptions 1 to 4 to Section 300 I.P.C. are not culpable, the offence can still be culpable homicide. 29. In our opinion, offence of the accused falls within exception 1 of Section 300 I.P.C., therefore, the learned trial Court has erred by convicting the accused under Section 302 I.P.C. 30. Upon considering the rival contentions of the parties, facts and circumstances of the case, the manner of commission of the crime by the appellant, conviction of the appellant, under Section 302 I.P.C., who is in jail since 19.10.2006, is converted to Section 304 I.P.C. accordingly, the sentence is modified to the period of incarceration accused has already undergone. As such, the instant appeal stands allowed in part. 31. As such, the instant appeal stands allowed in part. 31. The impugned judgment stands modified accordingly. 32. The accused/appellant shall be released from jail as he has already served out his requisite sentence for offence under Section 304 I.P.C., if he is not wanted in any other criminal case. 33. Let a copy of this judgment along with lower court record be sent back to the court concerned for immediate compliance. 34. Office to inform the concerned Jail Superintendent through C.J.M. concerned to ensure compliance of the order.