Research › Search › Judgment

Allahabad High Court · body

2023 DIGILAW 732 (ALL)

Dharmendra Kumar v. State of U. P.

2023-03-17

ARUN KUMAR SINGH DESHWAL, KAUSHAL JAYENDRA THAKER

body2023
JUDGMENT : (Arun Kumar Singh Deshwal, J.) 1. By way of present criminal appeal, the appellant has challenged the judgement and order dated 30.10.2015 passed by the Special Judge (Essential Commodity Act)/Additional Sessions Judge, Ghaziabad in Sessions Trial No.483 of 2012 (State Vs. Dharmendra Kumar) arising out of Case Crime No.1591 of 2011, under Section-302 IPC, Police Station-Indrapuram, District-Ghaziabad. By the impugned judgement, the Sessions Judge convicted the appellant under Section-302 IPC and imposed punishment of life imprisonment along with fine of Rs.40,000/-on the appellant and in case of non-payment of penalty, it was directed that he would be further liable to undergo one year imprisonment. Prosecution Case 2. First informant Phoola Devi (PW-1) submitted a tehrir dated 13.09.2011 in Police Station-Indrapuram. In that tehrir, it was mentioned that first informant Phoola Devi had been residing along with her family at RC/51 N Hayatnagar Khoda. Accused Dharmendra came to her house to call her son Awadhesh Chandra Yadav. Thereafter, between 3 to 4 brother of Dharmendra, Harendra Kumar came to her house and told her to take his son as he has suffered several knife injuries. Thereafter, she along with her younger son Mahesh went to the house of appellant, then he saw that accused persons were taking out her son from house and told her loudly to take the dead body of her son. Thereafter, she and her son brought Awadhesh along with police at metro hospital where the doctors declared him dead. 3. On the basis of above tehrir dated 13.09.2011, a case in case crime no.1591 of 2011, under Section-302 IPC was registered against the accused Dharmendra and Harendra at 18:15 hours. S.I. Munshi Lal was handed over the investigation of the aforesaid case who after recording the statement of first informant went on the spot and prepared site plan at the place of incident and after recording the statement of witnesses, collected blood-stained floor and normal soil along with pillow and blood-stained bed sheet as well as blood stained knife. Panchayatnama of the body of Awadhesh aged about 21 years was also prepared on 13.09.2011 at 16:30 at Metro Hospital, Noida in presence of witnesses. Thereafter, postmortem of the body of Awadhesh was also conducted at District Hospital by Dr. K.N. Tiwari on 14.09.2011 at 2:15 pm. Panchayatnama of the body of Awadhesh aged about 21 years was also prepared on 13.09.2011 at 16:30 at Metro Hospital, Noida in presence of witnesses. Thereafter, postmortem of the body of Awadhesh was also conducted at District Hospital by Dr. K.N. Tiwari on 14.09.2011 at 2:15 pm. As per the postmortem report, following antemortem injuries were found on the person of deceased Awadhesh Chandra Yadav : (i) 11 incised (punctured) wound in the abdomen over the area of 20 x 20 cm of size 4 x 2 cm to 1.50 x 1 cm; (ii) three wounds were found at the left side and; (iii) 8 wound were found at the right side. All wound were deep in abdomen. In internal examination of dead body, blood was also found in the abdomen. Small intestine, liver were having cut, 100 ml semi digested food was also found large intestine. 4. As per the opinion of the doctor, cause of death is hemorrhage and shock due to above injuries. Panchayatnama of dead body of Sapna Kumari aged about 17 years was also conducted on 13.09.2011 at Metro Hospital, Gautam Buddh Nagar at 16:30 in presence of witnesses. Thereafter, her body was also sent for postmortem which was conducted by Dr. K.N. Tiwari on 14.09.2011 at 2:45 pm. As per the postmortem report, several incised wound were also found on different parts of her body including abdomen. In internal examination, blood was also found in her abdomen and chest. As per the opinion of the doctor, Kumari Sapna also died due to haemorrhage, shock, due to ante-mortem injuries. But as a trial is with regard to Awadhesh Kumar, therefore, detailed discussion of the injury of Kumari Sapna is not relevant, at present, as no case was registered for her death. 5. After preparation of panchayatnama and postmortem, investigation was handed over to new Investigating Officer, Ram Pawan Singh on 27.11.2011 and on receiving the investigation, he recorded the statement of several witnesses and found that the co-accused Harendra was not involved in the aforesaid incident as he was not present at the place of incident, therefore, his name was removed during investigation and present appellant, Dharmendra was arrested by police on 18.03.2012 and thereafter, on the basis of available evidence, charge-sheet dated 21.03.2012 was submitted against the appellant under Section 302 IPC. Additional Sessions Judge framed charges against appellant on 08.06.2012 under Section-302 IPC and appellant denied the charges and requested for trial. Prosecution Evidence 6. In support of prosecution, 12 witnesses were examined in which Phoola Devi as PW-1, Ramu Singh as PW-2, Mahendra Singh as PW-3, Awadhesh Bhagat as PW-4, Harendra Kumar as PW-5, Sub-Inspector Chaman Prakash Sharma as PW-6, Dr. K.M. Tiwari as PW-7, Constable Mool Chandra Sharma as PW-8, Usha wife of Prabhu Dayal as PW-9, also, Ram Sen Singh as PW-9, Manju as PW-10, Inspector Munshi Lal as PW-11. 7. After conclusion of prosecution witnesses, appellant was examined under Section 313 Cr.P.C. In his examination, appellant clearly denied his involvement in the murder of Awadhesh and pleaded his false implication by the first informant. In additional examination under Section 313 Cr.P.C., the appellant refused to give any evidence and pleaded that he has been falsely implicated merely because the alleged incident occurred in his house. Contention of Appellant 8. The sole contention of the appellant is that present case does not fall under Section 302 IPC but falls under Section 304 IPC, in view of Exception 1 of Section 300 IPC because death of Awadhesh if caused by the appellant is due to losing his self control after seeing the deceased Awadhesh in a compromising position with his daughter, Sapna. Contention of Prosecution 9. Learned AGA contended that from the evidence it is clear that the appellant has killed his daughter Sapna and son of first informant namely Sheru alias Awadhesh with knife and the appellant has also confessed his involvement in the aforesaid crime before the Investigating Officer and police has recovered a blood-stained knife from the place of incident. Forensic Science Laboratory report also established this fact and further contended that from the facts and circumstances, allegations against the appellant under Section 302 IPC is clearly established, therefore, judgement and order of Sessions Judge is absolutely correct. Discussion on Prosecution Evidence 10. In the statement, first informant PW-1 had stated that she is last seen witness of deceased Awadhesh going to the house of Dharmendra and she stated in her statement that on the date of incident i.e. 13.9.2011, she was suffering from fever and her son Awadhesh was also lying with her and then son of appellant, Dharmendra, Roshan came to her house to call deceased Awadhesh. When she asked Awadhesh where he is going to, then Awadhesh told her that Roshan son of Dharmendra had come to call him. Thereafter, he left the house and she further stated in the statement that Harendra had come to her house between 3 to 4 and told her that her son has received knife injuries. When she went at the place of incident, then she found one policeman and one boy bringing out his son from the house of appellant. At the place of incident, she had seen that there were several injuries on the back of her son, Awadhesh and blood was oozing out but because of crowd, she could not see other injuries. Her son, Awadhesh died on the way when he was taken to hospital. Thereafter, she reached police station at 6:00 pm. She also proved tehrir before the court which was marked as Ext No.Ka-1. PW-2 Ramu Singh did not support the prosecution story, therefore, he was declared hostile. Similarly, PW-3 Mahendra Singh also did not support the prosecution story and he was also declared hostile. Prosecution witness Awadhesh Bhagat, PW-4 was a witness of panchayatnama and he admitted in his statement that he had signed the panchayatnama and proved the same as Ext Ka-2. PW-4 also proved memo of recovery regarding collected blood-stained soil and normal soil with cement floor and also proved blood-stained pillow, bed sheet and knife recovered from the place of incident. PW-5 Harendra Kumar did not support the prosecution story and was declared hostile. PW-6 Sub-Inspector Chaman Prakash Sharma was the formal witness regarding preparation of panchayatnama as well as preparation of memo regarding collection of blood-stained soil and simple soil, blood-stained bed sheet, pillow, blood-stained knife recovered from the place of incident near the dead body. PW-7 Dr. K.N. Tiwari, who conducted the postmortem of dead body of the deceased Awadhesh Chandra as well as Kumari Sapna and he proved postmortem report and stated that death of Awadhesh and Kumari Sapna was caused due to antemortem injuries. Another, formal witness PW-8 Mool Chandra Sharma proved chik and GD carbon copy. PW-7 Dr. K.N. Tiwari, who conducted the postmortem of dead body of the deceased Awadhesh Chandra as well as Kumari Sapna and he proved postmortem report and stated that death of Awadhesh and Kumari Sapna was caused due to antemortem injuries. Another, formal witness PW-8 Mool Chandra Sharma proved chik and GD carbon copy. PW-9 Usha, wife of Prabhu Dayal was the tenant of appellant-Dharmendra Kumar and she stated that the deceased used to come to the house of appellant for the last one year and she had seen the deceased with Kumari Sapna at 2:30 pm and she also proved recovery of dead body of Kumari Sapna and deceased Awadhesh from the house of Dharmendra. 11. Ram Sen Singh, who received investigation on 20.12.2011 was also examined as PW-9, and submitted that after recording statement of remaining witnesses and on completing his investigation, he found sufficient evidence against the appellant, therefore, he submitted charge-sheet against him and proved the same before the Court. Prosecution witness PW-10 Manju Rani was also the tenant of appellant-Dharmendra and she also stated that deceased Awadhesh was having friendship with the son of appellant and he used to come to the house of appellant and on the date of incident at about 2 to 2½ during day time, deceased Awadhesh came to the house of appellant and at that time Sapna was alone in her house. When she came out of her room then she had seen that both Awadhesh and Sapna were lying injured at the gate and she also proves that one knife was also found near the body of Sapna and body of deceased Awadhesh was lying upon the body of Sapna. Earlier, Investigating Officer Munshi Lal, was also examined as PW-11, who proved the fact that he initiated investigation of this case and also prepared site plan at the place of incident and also recorded statement of witnesses. He also proved the challan of dead body of deceased Awadhesh as well as challan of dead body of Sapna, prepared in the writing of Sub-Inspector Chaman Prakash Sharma. The Forensic Science Laboratory report dated 19.09.2013 which is also on record as Paper No.26Ka/2 shows that recovered knife, pillow, bed sheet and plaster were blood-stained. Analysis of Evidence 12. He also proved the challan of dead body of deceased Awadhesh as well as challan of dead body of Sapna, prepared in the writing of Sub-Inspector Chaman Prakash Sharma. The Forensic Science Laboratory report dated 19.09.2013 which is also on record as Paper No.26Ka/2 shows that recovered knife, pillow, bed sheet and plaster were blood-stained. Analysis of Evidence 12. From the perusal of record, it is clear that deceased Awadhesh came to the house of appellant where he was seriously injured because of knife injuries along with the daughter of the appellant Sapna. Though, PW-2 and PW-3, PW-5 did not support the prosecution story and were declared hostile but from the evidence of PW-9 Smt. Usha as well as PW-10 Smt. Manju, who were the tenants in the house of appellant, it is clearly established that the dead body of deceased Awadhesh was found at the house of appellant. Similarly, from the statement of PW-1, it is also established that she had lastly seen the deceased Awadhesh while he left for the house of appellant on the fateful day. Therefore, applying the presumption of Section 106 of The Indian Evidence Act, 1872 (hereinafter referred to as the 'Evidence Act'), it is a duty of the appellant to explain about the death of deceased Awadhesh as the dead body of the deceased was recovered from the house of the appellant. It also appears from the record that though initially appellant confessed under Section 161 Cr.P.C. that he had killed deceased Awadhesh in a fit of moment when he saw him in a compromising position with his daughter Sapna. Sessions Judge also convicted the appellant on the ground that body of the deceased Awadhesh was found from his house and it appears from circumstantial evidence as well as subsequent conduct of appellant that he killed Awadhesh by causing him knife injury when he had seen him in a compromising position with his daughter at his house. Even the appellant did not give sufficient explanation in his statement recorded under Section 313 Cr.P.C. for finding the dead body of deceased Awadhesh from his house. Therefore, presumption under Section 106 Cr.P.C. was rightly invoked by the Sessions Judge against the appellant. 13. Even the appellant did not give sufficient explanation in his statement recorded under Section 313 Cr.P.C. for finding the dead body of deceased Awadhesh from his house. Therefore, presumption under Section 106 Cr.P.C. was rightly invoked by the Sessions Judge against the appellant. 13. Learned counsel for the appellant also contended that the appellant has committed the murder of Awadhesh in a fit of moment due to sudden provocation when he had seen the deceased Awadhesh with his daughter Sapna in a compromising position, therefore, the present case falls under Section 304 IPC instead of Section 302 IPC. After considering the evidence as well as the contention of appellant, sole issue for consideration here is whether the death of Awadhesh is culpable homicide not amounting to murder or culpable homicide amounting to murder. 14. From perusal of evidence, it is clearly established that appellant has caused death of Awadhesh by causing him knife injury when he had seen him in a compromising position with his daughter. On perusal of Exception 1 of Section 300 IPC, it is clear that culpable homicide is not murder if the offender is deprived of the power of self control by grave and sudden provocation which causes the death of person who gave the provocation. Exception 1 of Section 300 IPC is being quoted as below: "300. Murder.—Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or— Secondly.—If it is done 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, or— Thirdly.—If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or — Fourthly.—If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Exception 1.—When culpable homicide is not murder.—Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:— First.—That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly.—That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly.—That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.—Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact." 15. Therefore, contention of learned counsel for the appellant that the present case does not fall under Section 302 IPC but falls under Section 304 IPC because this case is covered under Exception 1 of Section 300 IPC appears to be correct because on seeing Awadhesh in a compromising position with his daughter appellant lost his self control by grave and sudden provocation by this incident in which the deceased Awadhesh was found in a compromising position with the daughter of appellant. In support of his case, learned counsel for the appellant has also relied upon judgements of Apex Court in Criminal Appeal No.734 of 2014 decided on 03.04.2014 in the case of Saroj @ Suraj Panchal and Anr. Vs. State of West Bengal as well as judgement of Andhra Pradesh High Court in Criminal Appeal No.219 of 2013 decided on 21.05.2020 in the case of Thiruchanur Amaranath Vs State of A.P. rep. by Public Prosecutor Hyderabad. In the above cases, the Hon'ble Court observed that death caused due to sudden provocation does not fall for the punishment under Section 302 IPC but falls under Section-304 IPC as the same is not culpable homicide amounting to murder. 16. by Public Prosecutor Hyderabad. In the above cases, the Hon'ble Court observed that death caused due to sudden provocation does not fall for the punishment under Section 302 IPC but falls under Section-304 IPC as the same is not culpable homicide amounting to murder. 16. In view of the above fact and circumstances, we are of the opinion that firstly, there is no direct evidence that the appellant has caused the death of deceased Awadhesh but from the circumstantial evidence as well as presumption under Section 106 of the Evidence Act, he was held guilty for causing death of Awadhesh. Secondly, this fact is also not in dispute that death of the deceased caused by the appellant was not premeditated but because of the fact he lost self control by grave and sudden provocation because he has seen deceased Awadhesh in a compromising position with his daughter Sapna and in such circumstances, this fact cannot be disputed that a father after seeing his daughter in a compromising position with a person will definitely loose self control and if he caused death in that spur of moment, then same will fall under culpable homicide not amounting to murder. Even, the Apex Court in the case of State of U.P. Vs Lakhmi in Criminal Appeal no.234 of 1993 decided on 12.02.1998 reported in AIR 1998 SC 1007 and in case of Hansa Singh Vs. State of Punjab in Criminal Appeal No.248 of 1973 decided on 20.08.1976 reported in AIR 1977 SC 1801 observed that in such situation, cases will fall under Section-304 IPC and not under Section 302 IPC. Thereafter, after considering the evidence on record as well as the contention of learned counsel for the appellant and learned AGA, it is clearly established that the present case falls under Section 304 IPC and not under Section 302 IPC, in view of the Exception 1 of Section 300 IPC. Therefore, appellant deserves to be convicted under Section 304 IPC. 17. Therefore, present appeal is partly allowed and impugned judgement of Session is modified to the extent of substituting the punishment of appellant under Section 302 IPC with the punishment under Section 304 IPC with the imprisonment of ten years along with fine of Rs.40,000/-. In case of non-payment of fine, the appellant will further undergo one year imprisonment. 17. Therefore, present appeal is partly allowed and impugned judgement of Session is modified to the extent of substituting the punishment of appellant under Section 302 IPC with the punishment under Section 304 IPC with the imprisonment of ten years along with fine of Rs.40,000/-. In case of non-payment of fine, the appellant will further undergo one year imprisonment. Period spent by the appellant in jail during pendency of trial as well as pendency of present appeal will be adjusted in imprisonment imposed by this order and if appellant has already completed ten years in jail, then he should immediately be released on depositing the fine, if he is not wanted in any other case.