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2022 DIGILAW 285 (ALL)

Sanjay v. State of U. P.

2022-03-03

SUNEET KUMAR, VIKRAM D.CHAUHAN

body2022
JUDGMENT : Suneet Kumar, J. 1. Heard Sri Sunil Singh and Sri Vivek Singh, learned counsels for the appellants and Sri Vikas Goswami, learned counsel appearing for the State and perused the lower court record with the assistance of the respective counsels. 2. The instant appeal has been filed against the judgment and order dated 3 January 2018 passed by the Additional Sessions Judge, Court No. 4, Kanpur Dehat, whereby, appellant has been convicted under Section 302 IPC and sentenced to life imprisonment with fine of Rs.20,000/-. On default of deposition of fine, appellant shall serve additional six months rigorous imprisonment. 3. The incident is of 6.3.2016, at about 9:00 p.m. and F.I.R. came to be lodged after the death of the deceased on 10.3.2016, at about 12:30 p.m. The informant/complainant (P.W.-1) is the brother of the deceased. It is alleged that his younger brother Ajay (deceased), aged about 20 years, on the day of terhavi ceremony, on 5.3.2016 all brothers had assembled for the ceremony. His elder brother Sanjay with the intention to kill the deceased assaulted him with danda in front of the house at the municipal tap; deceased incurred severe head injury on the head, face and back; deceased was carried to the hospital at 2:00 a.m.; on 10.3.2016 he succumbed to the injuries. Scribe of the report is Rohit Singh who was not examined by the prosecution. The post-mortem on the body of the deceased was conducted on 10.3.2016 at 4:15 p.m. The following antimortem injuries on the dead body of the deceased are noted : External examination - Deceased was of average built, his height at 160 cm. Dried blood was present inside left ear. Rigor mortis was present in the upper and lower part of the body. External Injuries - 1. 4cm stitched wound going through left ear bone towards posterior part of the head, bone on the back part was found to be fractured when stitch was opened. Temporal bone on the back of the nose was found to be fractured. 2. Abrasion measuring 2cm x 1cm at a distance of 2cm from the right eye 3. Abrasion measuring 7cm x 3cm present towards left part of the back along with swelling. 4. Abrasion measuring 2cm x 2cm on the front part of left leg one cm below the knee. 2. Abrasion measuring 2cm x 1cm at a distance of 2cm from the right eye 3. Abrasion measuring 7cm x 3cm present towards left part of the back along with swelling. 4. Abrasion measuring 2cm x 2cm on the front part of left leg one cm below the knee. Internal Examination - swelling present in brain membrane, brain was lacerated and clotted blood was present, 16/16 teeth present, mouth, tongue, internal part of the neck, larynx, thyroid cartilage were normal. Wind pipe was having a hole for inserting tube. Ribs and food pipe were normal, lung membranes and lungs were congested. Right part of the heart was filled with blood, left part was empty, big blood vessels were normal, 100 grams of liquid food was present in the stomach, digested food was present in small intestine along with gases, gases and faecal material was present in the large intestine. Liver was congested, gall bladder was semi filled, spleen, pancreas and both lungs were congested, urinary bladder was empty. Reproductive organs were normal. Opinion - The death occurred due injuries on the head, approximately one day ago. The ante mortem injuries are possible by a hard and blunt object. Post mortem commenced at around 4.15 in the afternoon and ended at 4.45. 4. The panchayatnama was conducted on the body of the deceased on 10.3.2016 at 12:30 p.m. As per panch witnesses, elder brother (accused) of the deceased caused injury with danda. After investigation, charge sheet came to be submitted. The accused was summoned under Section 302 IPC to stand trial. 5. The prosecution examined in all six witnesses, Vinod Kumar (PW-1) brother of the deceased, Smt. Shanti Devi (PW-2) mother of the deceased, Head Moharrir Dhruv Chandra (PW-3), Dr. Avadhesh Kumar (PW-4), S.I. Anoop Kumar Dubey (PW-5) and S.H.O. Ravindra Kumar Tiwari (PW-6). PW-1 and PW-2 are the witnesses of fact and rest of the witnesses i.e. PW- 3 to PW- 6 are formal witnesses. 6. The following documents were exhibited : 1. F.I.R. 10.03.16 Ex. Ka. 2 2. Written Report 10.03.16 Ex. Ka. 1 3. General Diary Ex. Ka. 3 4. Recovery Memo of Earth Blood Stained & Plain 10.03.16 Ex. Ka. 5 5. P.M. Report 10.03.16 Ex. Ka. 4 6. Panchayatnama 10.03.16 Ex. Ka. 6 7. Final Form/Report 04.06.16 Ex.Ka. 13 8. Site Plan with Index 10.03.16 Ex. Ka. 4 9. Site Plan with Index 10.05.16 Ex. Ka. Ka. 1 3. General Diary Ex. Ka. 3 4. Recovery Memo of Earth Blood Stained & Plain 10.03.16 Ex. Ka. 5 5. P.M. Report 10.03.16 Ex. Ka. 4 6. Panchayatnama 10.03.16 Ex. Ka. 6 7. Final Form/Report 04.06.16 Ex.Ka. 13 8. Site Plan with Index 10.03.16 Ex. Ka. 4 9. Site Plan with Index 10.05.16 Ex. Ka. 12 7. The accused on being confronted with the prosecution evidence, in his statement under Section 313 Cr.P.C., denied the charge; he further stated that he has been falsely implicated as he had earlier lodged FIR against the accused for having caused injury to his wife. He demanded trial. 8. The informant/complainant (PW-1) in examination-in-chief stated that on 5.3.2016, on the terhavi ceremony of his father he had come from Delhi; he is employed in a company at Delhi; accused is his younger brother and rickshaw puller; deceased, the youngest brother, also had come from Delhi. On 6.3.2016 at about 9:00 p.m., deceased Ajay had gone to the municipal tap to fetch water; at that moment, accused came on the spot with danda, with an intention to kill the deceased, consequently, caused several assault on the deceased. He further stated that wife of the accused had died two years back, accused suspected that she succumbed to burn injuries due to the deceased. After 10 months of the incident accused had lodged FIR against the deceased. This is the reason that accused was inimical towards the deceased. He further stated that the injured was carried to the hospital where he succumbed to the injuries at about 2:00 a.m. Thereafter, a report was lodged, scribed by Rohit Singh. 9. In cross-examination, PW-1 stated that he along with two other brothers had come to the village to attend terhavi ceremony of his father. There was no dispute amongst the brothers on the day of the ceremony. He further stated that the incident is of 7.3.2016 at about 9:00 p.m. The municipal tap is at 40 steps from the house; it was a dark night and there was no electricity; deceased had gone to fetch water from the municipal tap. He (PW-1) was at his house. He further stated that the incident is of 7.3.2016 at about 9:00 p.m. The municipal tap is at 40 steps from the house; it was a dark night and there was no electricity; deceased had gone to fetch water from the municipal tap. He (PW-1) was at his house. He further stated in his cross that on reaching the spot, 30-40 people were present; there was some dispute going on between the deceased and the accused; he further stated that he reached the spot after the on going dispute and saw that his brother Ajay (deceased) lying unconscious. PW-1 placed his unconscious brother on his lap. On specific query, he stated that he had not seen as to whether the accused was present at the spot or not. He further stated that he had not seen accused of having caused injury with danda upon the deceased. Thereafter, he stated that he carried the injured to Akbarpur govt. hospital where he stayed for an hour, thereafter, injured was carried to a hospital at Kanpur on reference. He further stated that scribe of the report, Rohit Singh had not read out the report to him; PW- 1 stated that he merely put his signature on the report. He further stated that the police officials had not recorded his statement and if it has been recorded then he is not aware. On a suggestion he stated that he signed the report on the asking of Rohit Singh; while writing the report he was not in a stable mental state. 10. In nutshell, the statement and cross-examination of PW-1 reflects: (i) the alleged incident occurred at the municipal tap; (ii) PW-1 reached the site of the incident post occurrence; (iii) accused was not present; (iv) it is a dark night, no electricity; (v) 30-40 residents of the locality present; (vi) PW-1 states the probable motive. 11. PW-2, Shanti Devi, mother of the deceased stated that she has four sons, three of them work at Delhi; on 5.3.2016 her family assembled for terhavi ceremony of her husband; on 6.3.2016, younger son Ajay (deceased) while fetching water form municipal tap, accused and the deceased entered into an altercation; deceased fell down on the brick road and incurred injury. PW-2, Shanti Devi, mother of the deceased stated that she has four sons, three of them work at Delhi; on 5.3.2016 her family assembled for terhavi ceremony of her husband; on 6.3.2016, younger son Ajay (deceased) while fetching water form municipal tap, accused and the deceased entered into an altercation; deceased fell down on the brick road and incurred injury. She further stated that wife of the accused died two years earlier suffering burn injury; accused suspected the deceased and had grudge against him; it is for this reason that on the night of 6.3.2016, at about 9:00 p.m., accused inflicted injury with danda; she then stated that deceased succumbed to the injury due to falling on the brick road. She further stated that police officials has not recorded any statement of hers. 12. In cross examination, PW-2 stated that she is an illiterate lady; she resides in a thatched hut separately from the house of her sons which is 10 houses away, outside the village. At the time of incident she was at her hut; some unknown person informed her that some altercation took place between her sons; she further stated that around 10:00 p.m. she reached the spot, deceased was not present; none of her sons were present. She further stated that she had not seen the accused and deceased indulging in maarpeet. On query by the court, she stated that her deceased son received several injury on the right side by falling on the ground. However, she had not seen him falling. On information form others she reached the spot and found her son lying on the ground. Her sons Vinod and Pramod had taken the injured son to the hospital; she further stated accused had not gone to the hospital as he had committed the offence. 13. The statement and cross-examination of PW-2 shows: (i) statement of PW-2 is on hearsay information; (ii) she reached the spot after the incident; (iii) she did not find any of her sons; (iv) the cause of death of her son is by falling on the brick road; (v) she states the probable motive. 14. Dr. Avadhesh Kumar (PW-4), conducted the post-mortem on the body of the deceased. The injuries found on the body of the deceased has already been noted earlier. 14. Dr. Avadhesh Kumar (PW-4), conducted the post-mortem on the body of the deceased. The injuries found on the body of the deceased has already been noted earlier. In cross-examination, PW-4 stated that antemortem injuries was received by the deceased one day earlier, possibly caused by hard and blunt object. It is noted in the impugned judgment that the defence counsel did not appear to examine the witness, nor seek adjournment. Accordingly, examination of PW-4 was closed. 15. The Trial Court upon considering the statement of prosecution witnesses and documentary material convicted the accused under Section 302 IPC. 16. It is submitted by learned counsel for the appellant that the ingredients of the offence under Section 302 IPC is not made out taking the prosecution evidence on face value; motive set up by the prosecution is that death of the wife of the accused that occurred two years prior to the incident and accused suspected deceased for the death of his wife. As per prosecution case, it is proved that the incident took place while fetching water form municipal tap at a public place; it could be a case of sudden quarrel; the intention to cause injury to kill deceased is not borne out from the prosecution evidence taken on face value. It is further submitted that neither PW-1 nor PW-2 were present on the spot at the time of incident; they clearly stated that they had not found the accused present on reaching the spot; PW-1 categorically stated that he had not seen the accused causing injury with danda upon the deceased. PW-1 and PW-2 reached the spot post occurrence of the incident. In this backdrop it is urged that even taking a case that the accused had caused injury by hard and blunt object, finding could not travel beyond Section- 304 Part- II IPC. It is further urged that the finding returned by the trial court is per-se perverse, the presence of the accused on the spot at the time of the incident is not proved; the fatal injury on the head of the deceased could have been caused by falling on the brick road as testified by PW-2. 17. It is further urged that the finding returned by the trial court is per-se perverse, the presence of the accused on the spot at the time of the incident is not proved; the fatal injury on the head of the deceased could have been caused by falling on the brick road as testified by PW-2. 17. In rebuttal, learned A.G.A. submits that conviction of the accused has been proved by the prosecution beyond reasonable doubt; witnesses of fact deposed that the accused had caused injury with danda at the municipal tap; motive had been clearly spelled out; conviction is based on statement of occular witness which is duly corroborated by medical expert opinion. 18. We have given our thoughtful consideration to the rival contentions and have carefully gone through the record with the assistance of learned counsel for the parties. On careful reading of the testimony of prosecution witnesses of fact, it is evident that in examination-in-chief one of the witness (PW-1) stated that injury was caused by the accused with ‘danda’. The other witness (PW-2) stated that the injury was caused by falling on the brick road. The motive assigned is that accused suspected the deceased being the cause for the death of his wife. In cross-examination both witnesses admitted of having reached the spot of the incident after the injury was caused to the deceased; PW-1 found the deceased lying unconscious. He further stated that 30/40 persons of the locality had assembled on the spot but accused was not seen on the spot. In other words, PW-1 had not seen the incident, nor the accused of having caused injury, nor, was he present on the spot. PW-2, mother of the deceased, stated that she lives separately outside the village in a thatched hut. Some unknown person informed her of the incident, followed by a quarrel between the brothers. She stated in cross-examination that on reaching the spot neither the deceased nor the accused was present on the spot; she reached after an hour of the incident. She, however, stated that injury was caused as the deceased fell down on the ground and his head hit the brick road. It is a dark night and no electricity. No independent witness was examined. 19. Learned counsel for the appellant has placed reliance on the decision rendered in Augustine Saldanha Vs. She, however, stated that injury was caused as the deceased fell down on the ground and his head hit the brick road. It is a dark night and no electricity. No independent witness was examined. 19. Learned counsel for the appellant has placed reliance on the decision rendered in Augustine Saldanha Vs. State of Karnataka (2003) 10 SCC 472 , wherein, it has been held: "In the scheme of the IPC culpable homicide is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice-versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder is culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognizes three degrees of culpable homicide. The first is, what may be called, 'culpable homicide of the first degree'. This is the greatest 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. Then, there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is, also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304." 20. In Surinder Kumar Vs. Union Territory, AIR 1989 SC 1094 , it has been held that: "To invoke Exception 4 to Section 300 I.P.C. four requirements must be satisfied, namely (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion, and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this Exception provided he has not acted cruelly." 21. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this Exception provided he has not acted cruelly." 21. Admittedly, as per prosecution case, injured/deceased was carried to government hospital at Akabarpur, PW-1 along with injured stayed for one hour and on reference by the government hospital, injured was carried to the hospital at Kanpur. Prosecution has not produced the examination report of the injured so as to prove whether injury caused upon the deceased was by a blunt object or sharp weapon or by any other weapon. As per post-mortem report conducted after four days of the incident, stitched wounds were found on the body and the report is based on examining the external and internal injury after opening the stitched wounds. In the circumstances, it is urged that opinion of the medical expert that injury possibly could have been caused by hard and blunt object cannot be taken as a definite opinion. Injury could have been caused either by a sharp weapon or by falling on the bricks as per testimony of PW-2. 22. Further, it is urged that the recovery of alleged danda employed by the accused was recovered on 10.05.2016 i.e. after two months of the incident from an open field. In the circumstances, it is urged that danda being very common in a village, therefore, it cannot be said that the recovered danda from an open place, after two months, was employed in commission of the offence. Further, even taking the prosecution evidence on face value, the ingredients of the offence under Section 302 I.P.C. is not made out. It could be a case of sudden quarrel at the municipal tap, but that is not the prosecution case. Further, as per testimony of the prosecution witnesses, there was no electricity and it was a dark night; the prosecution witnesses admittedly were not present at the site. None of the residents of the locality (about 30-40 person) who had gathered at the place of incident, was examined to corroborate the prosecution case. The finding reached by the trial court is not sustainable in the backdrop of the prosecution evidence. We, therefore, find that the prosecution has utterly failed to prove the case beyond reasonable doubt. 23. None of the residents of the locality (about 30-40 person) who had gathered at the place of incident, was examined to corroborate the prosecution case. The finding reached by the trial court is not sustainable in the backdrop of the prosecution evidence. We, therefore, find that the prosecution has utterly failed to prove the case beyond reasonable doubt. 23. With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material objects and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution. (Refer : Mustkeem @ Sirajudeen vs. State of Rajasthan, (2011) 11 SCC 724 ) 24. Suspicion, however, strong is not sufficient to be taken as proved. The conviction and death sentence imposed on the accused is totally unsustainable in law, therefore, appeal is liable to be allowed and the impugned judgment and order of conviction and sentence is liable to be set aside. 25. That apart, in the case of circumstantial evidence, two views are possible on the case of record, one pointing to the guilt of the accused and the other his innocence. The accused is indeed entitled to have the benefit of one which is favourable to him. All the judicially laid parameters, defining the quality and content of the circumstantial evidence, bring home the guilt of the accused on a criminal charge, we find no difficulty to hold that the prosecution, in the case in hand, has failed to meet the same. (Refer : Devi Lal vs. The State Of Rajasthan, (2019) 19 SCC 447 ) 26. The jail appeal is allowed. The impugned judgment and order of conviction and sentence is set aside. The appellant Sanjay is directed to be released forthwith, if not required in any other offence. 27. The appellant on being released the mandate of Section 437-A Cr.P.C. to be complied. 28. Let the lower court record be sent back to court below forthwith along with a copy of this judgment, for ascertaining necessary compliance.