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2023 DIGILAW 1435 (ALL)

Krishna Kumar v. State of U. P.

2023-05-25

MANISH KUMAR NIGAM, SIDDHARTHA VARMA

body2023
JUDGMENT : (Manish Kumar Nigam, J.) 1. This appeal has been filed challenging the judgment and order dated 22.11.2008 passed by the learned Additional Sessions Judge, Varanasi by which the appellants Krishna Kumar, Hirawati and Lalman had been awarded life imprisonment in Sessions Trial No.291 of 2022 arising out of Case Crime No.167 of 2000 under sections 147, 148, 302, 323 and 149 of Indian Penal Code and the appellant-Ram Achal had been awarded life imprisonment in Sessions Trial No.291-A of 2002 arising out of Case Crime No.167 of 2000 under sections 147, 148, 149, 302 and 323 of Indian Penal Code. 2. Upon an incident having taken place on 15.9.2000 at around 4.00 PM, the first informant namely Dinesh Kumar Yadav lodged a First Information Report on the very same day at around 23.05 PM. 3. As per the prosecution case, which can be gleaned out from the First Information Report, the first informant, aggrieved by the death of his brother Ramesh, had lodged the First Information Report. The First Information Report had stated that Shiv Kumar Yadav son of Lalman Yadav was taunting his sister Saroja and upon hearing the taunt, Dinesh Kumar-the first informant and Ramesh-the deceased, ran up to Shiv Kumar Yadav where his mother Smt. Hirawati was also there and they asked Shiv Kumar Yadav and Hirawati (the mother) as to why they were taunting. It is the further case of first informant that as a result of their questioning as to why the taunting was being made, the male members of the family of Shiv Kumar namely Lalman Yadav, Kamlesh Yadav, Krishna Imar Yadav and Ram Achal Yadav came there with lathis in their hands. Hirawati the mother of the accused who herself was made an accused in the FIR, was having a Hasiya in her hands. It has further been stated in the FIR that the deceased Ramesh and the first informant Dinesh Kumar were beaten with lathis and Hasiya and because of the beating, Ramesh fell on the ground and became unconscious. It has also been stated that even Dinesh Kumar (the first informant) was given a beating. It has further been stated in the FIR that the deceased Ramesh and the first informant Dinesh Kumar were beaten with lathis and Hasiya and because of the beating, Ramesh fell on the ground and became unconscious. It has also been stated that even Dinesh Kumar (the first informant) was given a beating. Thereafter Dinesh along with his mother and father took Ramesh in an auto-rickshaw to the Government Hospital where the doctors at Government Hospital referred Ramesh to Kabir Chaura Hospital and since Kabir Chaura Hospital was also unable to treat Ramesh, it referred Ramesh to BHU for further treatment where at 8.40 PM, it has been alleged, Ramesh died and, therefore, the First Information Report was lodged. The lodging of the FIR resulted in Case Crime No.167 of 2000 and thereafter investigation had followed. 4. Upon the investigation having been done, charges were framed and were submitted to the Sessions Court which after framing charges tried the accused Krishna Kumar, Hirawati and Lalman in Sessions Trial No.291 of 2002 and Ram Achal in Sessions Trial No.291-A of 2002. Both the Sessions Trials were tried together and when by the judgment and order dated 21.11.2008 the accused were found guilty under sections 147 and 302 read with section 149 IPC and section 323 read with section 149 IPC, the instant appeal has been filed by the accused Krishna Kumar, Smt. Hirawati, Lalman and Ram Achal. 5. Two accused namely Shiv Kumar and Kamlesh Kumar were declared juvenile and it has been stated by learned counsel for the appellants that Juvenile Justice Board, Varanasi on 25.11.2021 had acquitted them. 6. At the trial stage, the first informant Dinesh Kumar Yadav gave his statement in chief and was also cross-examined as PW-1. Smt. Phoolpatti, the mother of the deceased and the first informant had come into the witness box as PW-2. Dr. B.K. Dubey who had examined the injuries on the body of Dinesh Kumar Yadav, was examined as PW-3. Dr. D.K. Singh, the incharge doctor of the Government Hospital, Phoolpur, Varanasi, who had examined the injuries of Ramesh (deceased) at the Government Hospital and had also examined the injuries on the body of Smt. Geeta, was examined as PW-4. Dr. R.A. Singh, Surgeon, District Hospital Jaunpur was examined as PW-5 and he has proven the post-mortem of the deceased Ramesh. D.K. Singh, the incharge doctor of the Government Hospital, Phoolpur, Varanasi, who had examined the injuries of Ramesh (deceased) at the Government Hospital and had also examined the injuries on the body of Smt. Geeta, was examined as PW-4. Dr. R.A. Singh, Surgeon, District Hospital Jaunpur was examined as PW-5 and he has proven the post-mortem of the deceased Ramesh. PW-6 Constable Ram Awadh Yadav; PW-7 Ram Kumar Chaudhary and PW-8 Sub-Inspector Bharat Dayal Singh were examined as formal witnesses who had done the investigation. Lalman who was an accused was brought in as a Court Witness. After the prosecution witnesses were examined, the accused gave their statements under section 313 Cr.P.C. and claimed innocence. 7. The PW-1 Dinesh Kumar Yadav has stated that because of the taunt which was there viz.-a-viz. his sister Saroja from Shiv Kumar and because of the verbal altercation he i.e. Dinesh Kumar Yadav had reached the spot where his sister Saroja was grazing the cattle. When he reached there, Hirawati with her Hasiya (sickle) in her hand also reached the spot. Similarly, while verbal altercation continued between Dinesh Kumar Yadav (first informant) and Shiv Kumar, the other accused namely Krishna Kumar, Lalman, Ram Achal and Kamlesh with lathis and dandas reached the spot and started hitting Dinesh and Ramesh. It has been stated in his examination in chief, that Hirawati, however, hit them by the opposite side of the sickle i.e. by the side which was not sharp. When Dinesh and Ramesh shouted, their mother Phoopatti Devi (PW-2) and their bhabhi Geeta Devi came on the spot to save them. They were also hit by the accused persons and they all had sustained injuries. He has further stated that because of the marpeet, his brother Ramesh had received grievous injuries and he also had received injuries over his hands and waist. He has further stated that Ramesh after being hit escaped from the spot and saved himself by hiding himself in the Dhan crops. He has further stated that after going about 15-20 steps Ramesh had fainted and had also fallen down. It has been stated that the other villagers also reached the spot. PW-1 has stated that he had taken his brother to the Primary Health Centre, Basani where investigation was done by the doctors and primary medication was also given. He has further stated that after going about 15-20 steps Ramesh had fainted and had also fallen down. It has been stated that the other villagers also reached the spot. PW-1 has stated that he had taken his brother to the Primary Health Centre, Basani where investigation was done by the doctors and primary medication was also given. Since the condition of Ramesh was not good, the doctors had referred him to the Kabir Chaura Hospital and at the Kabir Chaura Hospital, the case was referred to Banaras Hindu University where at 8.40 PM his brother Ramesh had died. He also proved his written information which he had given to the police. Further in his cross-examination, the PW-1 had stated that initially Hirawati was not there at the spot and upon the shouting of his brother because of the hitting by Shiv Kumar, the other persons had come. However, this very prosecution witness namely Dinesh Kumar Yadav had stated that there was absolutely no pre-existing enmity between the families and the incident had taken place only due to certain verbal altercation of obscene words spoken by Shiv Kumar. He has, however, throughout stated that maarpeet had taken place suddenly on a provocation. 8. PW-2 Phoolpatti has also stated that the altercation had taken place because of the fact that the co-accused Shiv Kumar had taunted her daughter Saroja. PW-2 has virtually repeated what the PW-1 had stated. She has, however, stated that the aggressors were the accused persons and not her sons. 9. The doctors PW-3, PW-4 and PW-5 have proved the injury reports and the post-mortem reports. 10. Learned counsel for the appellants Sri I.K. Chaturvedi, learned Senior Advocate assisted by Sri Saurabh Chaturvedi has submitted that if all the evidence is read in their totality, it becomes clear that none of the accused persons were present at the place of incident and that they have all been falsely implicated. In the alternative he has also submitted that definitely there was no premeditation of the accused persons to commit the crime of murder. He submits that if all the evidence, as a whole, is read together, then it would become clear that if at all the incident had occurred, it was a case of sudden fight and it was not a planned murder. He submits that if all the evidence, as a whole, is read together, then it would become clear that if at all the incident had occurred, it was a case of sudden fight and it was not a planned murder. Learned counsel for the appellant has, relying on certain statements of the prosecution, argued :- (i) The FIR and the statements of PW-1 and PW-2 itself, if they are read, learned counsel for the appellants states that everything had happened on the spur of the moment without any pre-meeting of mind and without any plan of committing the crime of murder. In fact, he submits that such was the suddenness of the whole incident that even in the FIR the words which might have been spoken by the accused Shiv Kumar and were not liked by Saroja were not reproduced. He submits that in fact no other person, as has been alleged to be there at the spot and whose names are found in the FIR have come in the witness box. Even Geeta Devi, the Bhabhi had not come in the witness box. In effect, learned counsel for the appellants intends to argue that no-one was at the spot and only when they heard of some altercation, they rushed to the spot. (ii) The incident had happened in the broad daylight and no independent witness other than the mother of the deceased had come in the witness box. (iii) The injuries on all the others, other than the deceased were simple in nature. (iv) To show that the incident had occurred at the spur of the moment and on account of the grave and sudden provocation, learned counsel for the appellants specifically stressed upon a certain paragraph of the cross-examination. (iii) The injuries on all the others, other than the deceased were simple in nature. (iv) To show that the incident had occurred at the spur of the moment and on account of the grave and sudden provocation, learned counsel for the appellants specifically stressed upon a certain paragraph of the cross-examination. Since learned counsel for the appellants had read out paragraph 3 at page 30 of the paper book, the same is being reproduced here as under :- ^^bl ?kVuk ds igys Hkwr izsr dks ysdj fookn py jgk FkkA dksbZ ekjihV ugha gqbZ FkhA bl ?kVuk ds igys esjh cgu ds lkFk eqfYteku us dHkh NsM+[kkuh ugha fd;k FkkA ?kVuk okys fnu Hkh gekjh chp dksbZ okn fookn ugha gqvk FkkA f'kodqekj ljkst ds izfr cksyh cksyus ls vpkud ;g ekjihV gks x;hA vU; eqfYteku ,d lkFk vk;s Fks dze'k% ughaA f'ko dqekj o mudh eka ds fpYykus ij vU; eqfYteku vk;sA rc rd ge yksxksa us 'kksj ugha fd;k FkkA tc vU; eqfYteku vkSj ekjihV o lkFk esa rc geus 'kksj fd;kA mlds igys 'kksj ugha fd;k FkkA vU; eqfYteku ds vkus ds ckn 2&3 feuV ekjihV gqbZA^^ (v) Learned counsel for the appellant while relying on the deposition of PW-5 Dr. R.A. Singh states that the injuries sustained on the head of the deceased had caused the death. He submits that it is not certain whether the cause of the injury was the blow of lathi or because the deceased had fallen down and he received certain injuries by falling over the bricks lying there. Learned counsel, therefore, stated that it cannot be said with all certainty that the blows of the lathis by the accused persons alone were responsible for the death of the deceased. (vi) Learned counsel for the appellant relying upon the deposition of PW-7 Ram Kumar Chaudhary submits that the spot where the incident had occurred was not even but had certain protrusions of jutting wood etc. which could have been the reason for the injuries on the head of the deceased who had fallen down because of the fact that he had fainted. (vii) Learned counsel for the appellant further stated that there was no blood found on the spot. (viii) Learned counsel for the appellant, therefore, submitted that there was no premeditation or pre-plan on the part of the appellants. (vii) Learned counsel for the appellant further stated that there was no blood found on the spot. (viii) Learned counsel for the appellant, therefore, submitted that there was no premeditation or pre-plan on the part of the appellants. He submitted that due to the sudden provocation between the family of the deceased and the family of the accused persons at the spur of the moment the incident had occurred and, therefore, the accused could not be held to be guilty of the crime of murder. He submits that as has been held in Surain Singh vs. State of Punjab reported in (2017) 5 SCC 796 when there is no premeditation Exception 4 of Section 300 applies. Since learned counsel specifically relied upon paragraph 7 of the judgment, the same is being reproduced here as under : "7. Exception 4 to Section 300 of the Indian Penal Code 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 Indian Penal Code 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. 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. 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. 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 Indian Penal Code is not defined in Indian Penal Code. 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. 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"." (emphasis supplied) 11. 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"." (emphasis supplied) 11. Sri S.N. Mishra, learned AGA in opposition, however, has submitted that the blows given by the accused persons were brutal in nature, so much so that they caused the death of the deceased Ramesh and had also caused injuries to the persons present at the spot. He, therefore, submits that the the appeal be dismissed and the order of conviction be not interfered with. 12. Having heard Sri I.K. Chaturvedi, learned Senior Counsel assisted by Sri Saurabh Chauturvedi, learned counsel for the appellant; Sri S.N. Mishra, learned AGA and Sri Harivansh Singh, learned counsel appearing for the informant, we are of the view that the appeal deserves to be allowed. 13. A perusal of the statements of the prosecution witnesses and also all the other record inevitably leads us to conclude that there was some taunting being done by Shiv Kumar with regard 11 to the sister of the first informant and also the deceased namely Saroja and angered by this taunting, they had approached Shiv Kumar and had questioned him as to why he was taunting her. This had probably resulted in a sudden fight. In villages, mostly people keep lathis with them. Upon hearing the shouting etc., the male family members of the accused side rushed to help. It appears that because of the shouting, the mother, father and other brothers who had been made accused in the case had rushed to the spot. They were not present earlier at the spot. The statement of PW-1 clearly goes to indicate that the other co-accused were not there at the spot and they had rushed because of the shouting etc. which had occurred as a result of the questioning by Dinesh Kumar. Further we see that even Hirawati, who is the mother of Shiv Kumar and was also an accused in the case, had, as per the prosecution witness Dinesh, tried to hit them by the blunt side of the sickle. If there was any premeditated crime then the sickle could have been used from the sharper side. Further we see that even Hirawati, who is the mother of Shiv Kumar and was also an accused in the case, had, as per the prosecution witness Dinesh, tried to hit them by the blunt side of the sickle. If there was any premeditated crime then the sickle could have been used from the sharper side. The motive to kill the deceased was definitely not there. 14. Under such circumstances, we are left with no other conclusion but to hold, on the basis of the evidence which was there on the record, that the appellants-accused had assaulted the deceased Ramesh with lathi and danda in which it was just possible that the danda hit the head of the deceased in such a manner which caused the death. Also it was possible that because of one of the blows, the deceased had fallen down in such a manner that he hit himself with some hard object which caused injuries which ultimately led to his death. Definitely the incident was not pre-planned. It happened all of a sudden and there was no common intention to kill the deceased Ramesh. If at all the blows etc. were made, they were made with only an intention to teach Ramesh a lesson. 15. Since there was no intention to kill, we definitely rule out that the accused are guilty of murder i.e. an offence under section 302 of Indian Penal Code. However, this much is certain that when the deceased was being hit by lathis and dandas, the appellants had used excessive force. However, since there was no pre-mediation with regard to the killing of the deceased and since everything happened at the spur of the moment, we are of the view that there was no intention to cause death or such common intention which would cause death. 16. Under such circumstances, we hold that the accused-appellants are at the most guilty of an offence under Part-II of section 304 of Indian Penal Code. 17. So far as the question of sentence is concerned, it was argued by learned counsel for the appellants that the appellants are not criminals and putting them in jail would convert them into criminals. He, therefore, prayed that the minimum possible sentence be awarded to them. 18. 17. So far as the question of sentence is concerned, it was argued by learned counsel for the appellants that the appellants are not criminals and putting them in jail would convert them into criminals. He, therefore, prayed that the minimum possible sentence be awarded to them. 18. Having heard learned Senior Counsel for the appellants and the learned AGA on the question of sentence, we are definitely of the view that all the appellants are innocent persons who never had any criminal record. They are also on bail by this Court. Under such circumstances, we hold that the appellants be fined with a fine of Rs.20,000/- each. This fine may be treated as compensation money for the parents of the deceased Ramesh. After the amount is deposited by the appellants in the State Treasury within a period of three months from today, the entire amount be passed on to the parents of the deceased as compensation. 19. Thus for what has been stated above, we partly allow the appeal. The conviction under sections 148, 302 and 323 of Indian Penal Code be now treated to be a conviction under section 304 (II) IPC. Further since there was no common intention, the conviction under sections 147 and 149 IPC is set-aside. So far as the punishment is concerned, we have already stated that the appellants be now fined with Rs.20,000/- each and this fine be paid as compensation to the parents of the deceased.