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2023 DIGILAW 439 (ALL)

Anees @ Gama v. State of U. P.

2023-02-14

AJIT SINGH, KAUSHAL JAYENDRA THAKER

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JUDGMENT : 1. Heard Sri Ajay Kumar Mishra, learned counsel for the appellants and learned A.G.A. for the State. Sri Lokesh Kumar Mishra, learned counsel for the informant has absented himself. 2. This appeal challenges the judgment and order dated 5.8.2010 passed by Additional Sessions Judge Fast Track Court No.1, Meerut in Sessions Trial No. 735 of 1997 (State vs. Anees and others) convicting accused-appellants under Section 302/149 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and sentenced the accused-appellants to undergo imprisonment for life with fine of Rs.2,000/- each and in case of default of payment of fine, further to undergo imprisonment for a period of two years. 3. The five accused were alleged to have committed an offence, on 15.4.1997 when all of them pursuant to their common intention to do away with Ajeej s/o Ahmad Majeed, who had borrowed the sum of Rs.50,000/- from one Anees @ Gama. On 15.4.1997 at about 6:00 PM, when informant and his brother went the residence of Anees @ Gama for getting back the money. At that time, Anees @ Gama holding an iron rod, Nasreen also had an iron rod, Firoz was having a brick, Nafees had stick in his hand and Hafeez Khurshid, Ujer and Anees @ Gama tried to assault the persons and exalted that as the deceased and his brother were daily demanding money, they be done to death. A quarrel ensued between the parties. Anees @ Gama did away with Ajeej on F.I.R. being lodged, the prosecution was moved into motion and accused were alleged to have committed an offence under Section 147, 148 read with section 302 I.P.C. 4. On investigation being put into motion, the investigating officer recorded the statements of all the witnesses and submitted the charge-sheet to the learned Magistrate. The learned Magistrate summoned the accused and committed to them to Court of Sessions as prima facie charges were for offences under Sections 302 I.P.C. 5. On being summoned, the accused-persons pleaded not guilty and wanted to be tried. The Trial started and the prosecution examined 6 witnesses who are as follows : 1. Mohd. Tahir PW1 2. Summar Ahmad PW2 3. Dr. N. Nathani PW3 4. Dev Dutt Sharma PW4 5. Sagir Ahmad PW5 6. Ranvir Singh PW6 6. In support of ocular version following documents were filed : 1. F.I.R. Ex.Ka.3 2. Written Report Ex.Ka.4 3. The Trial started and the prosecution examined 6 witnesses who are as follows : 1. Mohd. Tahir PW1 2. Summar Ahmad PW2 3. Dr. N. Nathani PW3 4. Dev Dutt Sharma PW4 5. Sagir Ahmad PW5 6. Ranvir Singh PW6 6. In support of ocular version following documents were filed : 1. F.I.R. Ex.Ka.3 2. Written Report Ex.Ka.4 3. Recovery memo Ex. Ka.6, 7, 8 & 16 4. Postmortem Report Ex.Ka.2 5. Site Plan Ex.Ka.9 7. After prosecution witness were over and the documents being exhibited, the accused-appellants examined D.W.-1 & 2 namely, Mohd. Yamin and Mohd. Nausad. 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 appellants as mentioned aforesaid. 8. The main assailant Anees @ Gama has passed away during the pendency of this appeal. The other co-accused, who is assigned the role and portrayed as Nasreen @ Naseem, Firoz and Uzair. The three accused, who have been assigned the role of doing away with the deceased, the accused have been tried for commission of offence under Section 302 read with section 149 I.P.C. and have been convicted for the same. 9. Learned counsel for the appellants has submitted that the alteration of charge, after the trial was over, could not have been framed and this is bad in the eye of law. In support of this submission he has relied on the decision of the Division Bench of this Court penned by one of us (Dr. K.J. Thaker) in Criminal Appeal No. 5657 of 2011 (Santosh vs. State of U.P.) decided on 22.2.2021. Charges could not have been re-framed so as to take it to the higher charge. 10. It is further submitted that the incident occurred at the spur of moment. There is no premeditation between the accused to do away with the deceased. It was only after the deceased demanded the amount of Rs.50,000/- borrowed from him, which caused this incident to occur. 11. It is further submitted that conviction under Section 302 is not made out. It is further submitted that the incident occurred at the spur of moment. There is no premeditation between the accused to do away with the deceased. It was only after the deceased demanded the amount of Rs.50,000/- borrowed from him, which caused this incident to occur. 11. It is further submitted that conviction under Section 302 is not made out. In alternative, it is submitted that at the most, the death can be homicidal death not amounting to murder and punishable under Section 304 II or Section 304 I of I.P.C. If the Court decides that the accused is guilty, then the accused may be granted fixed term punishment of incarceration. 12. In support of his arguments, learned counsel for the appellant has relied on the decisions in Hardev Singh and another vs. State of Punjab, AIR 1975 SC 179 , Zahoor & Others Vs. State of U.P., 2011 (15) SCC 218 and Kandhai & Others Vs. State of U.P., 2014 (0) Supreme (All) 2597, decisions of this Court in Criminal Appeal No.4722 of 2015 Ram Roop Vs. State of U.P., Smt. Rama Devi Vs. State of U.P., 2017 (0) Supreme (All) 2554, Bengai Mandal @ Begai Mandal vs. State of Bihar, 2010 (1) Supreme 49 , Sampat Babso Kale and Anr. Vs. State of Maharashtra, 2019 0 Supreme (SC) 415, Dukhmochan Pandey vs. State of Bihar, 1997 LawSuit, (SC) 1219 & Jainul Haque v. State of Bihar, AIR 1974 SC 45 , K. Ramachandra Reddy vs. Public Prosecutor, 1976 LawSuit (SC) 214, Sanjay Maurya vs. State of U.P., 2021 (0) Supreme (All) 132. 13. Learned counsel for the State has submitted that though role of surviving accused is not that of assailants, the punishment with the aid of Section 149 of IPC will not permit this Court to show any leniency in the matter. It is further submitted by learned A.G.A. that the decisions referred by counsel for the appellants will not apply to the facts of this case. 14. 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 appellants. The conviction under Section 302 I.P.C. is bad in the eye of law and the matter would fall within Section 304(I) of I.P.C. 15. 14. 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 appellants. The conviction under Section 302 I.P.C. is bad in the eye of law and the matter would fall within Section 304(I) of I.P.C. 15. 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." 16. 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. 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 it was a case of homicidal death not amounting to murder. 18. From the upshot of the aforesaid discussions, it appears that the death caused by the accused was not premeditated, accused though had knowledge and intention to cause bodily harm to the deceased but did not want to do away with the deceased. 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 latest decision in Khokan@ Khokhan (Supra) where the facts were similar to this case, the Apex Court has allowed the appeal of the accused appellant. The decision of the Apex Court in the case of Anversinh v. State of Gujarat, (2021) 3 SCC 12 which was related to kidnapping from legal guardian, wherein it was established that the Court while respecting the concerns of both society and victim, propounded that the twin principle of deterrence and correction would be served by reducing the period of incarceration already undergone by the accused. In our case, this is not that gruesome matter where the accused cannot be dealt with in light of all these judgments. Judgments in Pravat Chandra Mohanty v. State of Odisha, (2021) 3 SCC 529 & Pardeshiram v. State of M.P., (2021) 3 SCC 238 will also enure for the benefit of the accused. 20. In our case, this is not that gruesome matter where the accused cannot be dealt with in light of all these judgments. Judgments in Pravat Chandra Mohanty v. State of Odisha, (2021) 3 SCC 529 & Pardeshiram v. State of M.P., (2021) 3 SCC 238 will also enure for the benefit of the accused. 20. The judgments cited by the learned counsel for the appellant and facts and evidence as sited above, would permit us to uphold our finding which we conclusively hold that the offence is not punishable as per Section 302 of I.P.C. but is culpable homicide not amounting to murder, punishable U/s 304 (Part I) of I.P.C. 21. We now come to the role of the accused-appellants. All the four accused-appellants were convicted for the offence punishable under Section 302 read with Section 149 of IPC. 22. On perusal of the record in the light of Section 149 of I.P.C., It cannot be said that there was common intention or object to do away with the deceased. There was no premeditation of minds as the F.I.R. itself states that the deceased had gone to the residence of the accused to demand his money and that infuriated the accused and non lethal weapon was used though a cartridge and a country made pistol has been recovered from the accused Anees @ Gama but while going through the record and while going through the post-mortem report, while going through the medical report it is very clear that fire arm is not used and the deceased did not receive any fire arm injury nor was a fire arm used, which shows that there was no intention of doing away with the deceased and the object was only to teach a lesson to the deceased. The deceased did not succumbed to the injuries on the spot, the informant @ brother of the deceased took him to the hospital and during treatment, he was declared dead. Therefore, the offence cannot be said to be one under which can be punished with the aid of Section 149 I.P.C. 23. The accused-appellants are convicted for culpable homicide not amounting to murder with punishment of sentence of ten years and fine of Rs.1,000/- each. If the fine is not paid, default sentence of three months, which would start after the tenth year of incarceration. The ten years of incarceration would be with remission. 24. The accused-appellants are convicted for culpable homicide not amounting to murder with punishment of sentence of ten years and fine of Rs.1,000/- each. If the fine is not paid, default sentence of three months, which would start after the tenth year of incarceration. The ten years of incarceration would be with remission. 24. The appeal is partly allowed. In view of the matter, the case would fall within Section 304-I I.P.C. Fine substituted to Rs.1,000/- each and if the fine is not paid, the default sentence would start after ten years of incarceration with remission. If the accused has served out their period, they released. 25. Record and proceedings be sent back to the Court below forthwith. 26. This Court is thankful to learned Advocates for ably assisting the Court.