HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 36 Case :- CRIMINAL APPEAL No. - 5691 of 2003 Appellant :- [ENTITY] Respondent :- [ENTITY] Counsel for Appellant :- [ENTITY],[ENTITY],[ENTITY],[ENTITY] Counsel for Respondent :- [ENTITY],J.
Hon'ble [ENTITY],J.
1. Heard Sri [ENTITY], Advocate holding brief of Sri [ENTITY], learned counsel for the appellant and Sri [ENTITY], learned A.G.A. for the State.
2. The present Criminal Appeal is directed against the judgment and order dated 26.07.2001 passed by XIIth learned Additional Sessions Judge, Ghaziabad in [CASE NUMBER] arising out of [CASE NUMBER], under [SECTION] [ACT], Police Station Noida, Sector -20, District Gautam Budh Nagar (State vs. [ENTITY]. By the impugned judgment learned trial Judge has convicted and sentenced the appellant-accused under [SECTION] [ACT] to serve life imprisonment along with fine of Rs. 5,000/- and to undergo six months further imprisonment in default of payment of fine.
3. Briefly the facts of the case are as follows:-
4. Informant [ENTITY] PW-6 son of [ENTITY], resident of Village-Vasskot, Post Liwa, Police Station Varade, District Baglung Nepal presently residing with his family at the address care of [ENTITY], Village-Haraula, Sector-5. On 14.08.1998 he had gone to A-64, Sector-4 on his duty. Husband of his wife's sister ([ENTITY] son of [ENTITY], resident of Village-Koreed, Post Purtighat, District Gulmi Nepal presently residing at Village-Devli, Delhi had come over to his house at about 6:00 P.M. His neighbour appellant-accused [ENTITY], son of [ENTITY], resident of Village- Leelapani, Police Station Bhakunde, District Syangja Nepal presently residing at Village- Haraula, Sector -5 came into his home. At the same time, his wife having taken bath entered into the room. He with ill intention started teasing his wife. When his wife opposed his move, appellant-accused [ENTITY] stabbed his wife [ENTITY], aged about 24 years with a knife. His [ENTITY] and neighbours admitted her to Government hospital Sector-30 Nithari in injured condition, where she died. He got a report Exhibit Ka-5 written by one [ENTITY] given by the informant [ENTITY] PW-6, a case was registered at Police Station, Sector-20 Noida, District Gautam Budh Nagar on [CASE NUMBER], under [SECTION] and [SECTION] [ACT] on the same day at about 8:30 P.M.
5. Constable [ENTITY] had prepared chik FIR Exhibit Ka-6 and GD Exhibit Ka-7. Thereafter, Investigating Officer Sub-Inspector [ENTITY] PW-7 in whose presence the offence was registered commenced the investigation into crime. He went to prepare the inquest report but there was no proper arrangement of light, so he could not prepare the inquest report on 14.08.1998. On next day he went with informant [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY] and prepared inquest report Exhibit Ka-8 and other relevant papers i.e. photo lash, challan lash, sample of seal etc. Exhibit Ka-9 to Exhibit Ka-11 were also prepared. Investigating Officer also recorded the statement of eye witness [ENTITY] and collected plain earth and blood stained earth and recovery memo Exhibit Ka-1 and Exhibit Ka-2 were prepared. Spot inspection was also conducted by the Investigating Officer and site plan Exhibit Ka-12 was sketched. On 16.08.1998, the Investigating Officer along with Sub-Inspector [ENTITY] PW-4, [ENTITY] PW-1 and [ENTITY] PW-2 apprehended the appellant-accused and on the pointing out of the appellant-accused knife which was used in commission of crime was recovered under the earth of northern and western gate of a stopped factory situated at Sector-5, B-95 in Noida and recovery memo Exhibit Ka-3 and site plan Exhibit Ka-13 were prepared. On 16.08.1998 case was converted into [SECTION] [ACT] and [ENTITY] G.D. Exhibit Ka-14 was also prepared. Investigating Officer during the course of investigation recorded the statement of witnesses. After completion of investigation charge-sheet Exhibit Ka-15 forwarded against the appellant-accused and F.S.L. report Exhibit Ka-16.
6. Postmortem examination on dead body of deceased [ENTITY] was performed by the Doctor [ENTITY] PW-5 on 15.08.1998 at about 3:00 P.M. The dead body was brought to the Doctor by the Constable C.P. 251 [ENTITY] and Constable C.P. 461 [ENTITY] who had identified the dead body. On his cadaver Doctor had noted the following ante-mortem injuries:-
1. Incised wound 3 Cm. x 1 Cm. x Chest cavity deep on the chest left side just outer to sternum lower part 6 Cm. below and middle to left nipple oblique in posterior.
2. Multiple abrasion 10 Cm. x 5 Cm. on the left side face.
3. Multiple abrasion 10 Cm. x 10 Cm. on the right side back thorased region.
7. Cause of death of deceased was shock and haemorrhage as a result of ante-mortem injuries. Postmortem examination report of the deceased is Exhibit Ka-4.
8. On the strength of submitted charge-sheet appellant-accused was summoned. Since disclosed offence was exclusively triable by the Sessions Court, the learned Chief Judicial Magistrate (C.J.M.), Ghaziabad committed the case to the Court of Sessions, where it was registered as [CASE NUMBER] (State vs. [ENTITY]). The aforesaid sessions trial was transferred to the Court of XII Additional Sessions Judge, Ghaziabad for trial.
9. Learned trial Judge charged the appellant-accused with offence under [SECTION] [ACT] on 15.01.1999. Charge being read over and explained to the appellant-accused. The appellant-accused pleaded not guilty and claimed to be tried and consequently sessions trial procedure was restored to establish the guilt of the appellant-accused.
10. In order to prove its case prosecution has examined informant [ENTITY] PW-6, [ENTITY] PW-1, [ENTITY] PW-2 and [ENTITY] PW-3 as the witnesses of fact. Doctor [ENTITY] PW-5, Sub-Inspector [ENTITY] PW-4, Sub-Inspector [ENTITY] CW-1 and Investigating Officer Sub-Inspector [ENTITY] PW-7 are the formal witnesses.
11. [ENTITY] PW-1 and [ENTITY] PW-2 are not the eye witnesses of the occurrence. [ENTITY] PW-1 and [ENTITY] PW-2 have deposed that on the pointing out of the appellant-accused the knife which was used in commission of crime was recovered under the earth of northern-western gate of a stopped factory situated at Sector-5, B-95 and recovery memo Exhibit Ka-3 was prepared.
12. [ENTITY] PW-3 has deposed that Investigating Officer has collected the plain earth and blood stained earth from the place of occurrence and also has prepared recovery memo Exhibit Ka-1 and Exhibit Ka-2. His evidence shows that he had also not seen the occurrence.
13. Sub-Inspector [ENTITY] PW-4 along with the Investigating Officer had arrested the appellant-accused on 16.08.1998 and on inquiry he had given information which led to the recovery of knife mentioned in Exhibit Ka-3 in presence of witnesses [ENTITY] PW-1, [ENTITY] PW-2.
14. Doctor [ENTITY] PW-5 is formal witness who has proved postmortem examination report Exhibit Ka-4.
15. After the evidence of prosecution statement of the appellant-accused was recorded under [SECTION] [ACT] appellant-accused has pleaded that he has been falsely implicated in this case and witnesses have deposed false story against him. He has also stated that on the date of incident he was serving in Escort situated in Sector-10, D-171 and he was on duty from 8:00 A.M. morning to 8:00 P.M. evening. At the time of incident he was not present at the place of occurrence. No evidence in defence was adduced on behalf of the appellant-accused.
16. Learned trial Court believed the prosecution case and therefore convicted the appellant-accused of the framed charge under [SECTION] [ACT] and sentenced him accordingly, vide impugned judgment and order dated 26.07.2001 which decision has now been called in question in the instant appeal.
17. Learned counsel for the appellant-accused has submitted that looking to the postmortem report and testimony of the Doctor, part of the body selected to inflict injuries, nature of injuries and surrounding circumstances guilt of the appellant-accused does not cross the ambit of [SECTION] [ACT] and therefore conviction under [SECTION] [ACT] cannot be sustained. It was further submitted that the prosecution has failed to get it elicited from the testimony of the Doctor that any of the injury was sufficient in ordinary course of nature to cause the death of the deceased, therefore offence committed by the appellant-accused should mollified and he should be convicted only under [SECTION] [ACT] to culpable homicidal not amounting to murder. It was next submitted that if the appellant-accused is not conferred with clear benefit of doubt and awarded clean acquittal, since appellant-accused has already served more than 18 years in jail that should be let off by sentencing him to the period of imprisonment already undergone by him. Lastly it was submitted that the part of the body which were inflicted show that intention of appellant-accused can be safely gathered from the injuries caused. There were three injuries on the body of deceased. Out of three injuries two injuries were simple in nature and were on non vital parts of the body. It was next submitted that the safest course to be adopted should be that knowledge to cause death can be imputed to the appellant-accused and not the intention to commit murder and therefore offence of the appellant-accused will not fall outside of the purview of the culpable homicide not amounting to murder. It was also submitted that the appellant-accused has no criminal history. In support of his submission he has placed reliance on the judgment of the Hon'ble Apext Court which are given below:-
1. [PRECEDENT]
2. [PRECEDENT]
3. [PRECEDENT]
4. [PRECEDENT]
5. [PRECEDENT]
6. [PRECEDENT]
18. Learned Additional Government Advocate has submitted that from the evidence of the prosecution guilt of the appellant-accused is established beyond all reasonable doubt. Appellant-accused has failed to dislodge the prosecution story and testimonies of the fact witnesses and therefore his participation in the offence is undisputed and is a foregone conclusion. Causing three injuries in which two injuries were on the non vital part of the body and simple in nature does not necessarily take out the case of the appellant-accused out of purview of [SECTION] [ACT] and it should be presumed that he has committed murder of deceased. Learned A.G.A. has therefore submitted that the appeal lacks merit and should be dismissed.
19. We have heard learned counsel for the parties and perused the learned trial Court's judgment and record.
20. On appreciation of testimonies of the fact witnesses it cannot be said that the witnesses are untrustworthy and unreliable. From the deposition of [ENTITY] PW-1, [ENTITY] PW-2 and informant [ENTITY], it is clear that they had not seen the incident. Testimonies of the [ENTITY] PW-1 and [ENTITY] PW-2 show that on the pointing out appellant-accused the knife used in commission of crime was recovered. Appellant-accused had confessed that he had committed the murder of the deceased. [ENTITY] (Sarhu) of the informant is said to be the eye witness of the occurrence, but he has not been examined by the prosecution. Why he was not examined is some what shrouded in mystery. We have seen that as incident had occurred on the spur of movement and it could not be said that the appellant-accused intended to cause the death of the deceased or intended to cause the particular bodily injury which he had in fact inflicted. The evidence does not show any intention on the part of the appellant-accused to kill the deceased and since only one fatal blow had been given by the appellant-accused upon the deceased therefore the appellant-accused would punishable only under [SECTION] [ACT] and not under [SECTION] [ACT] In support of our view, we rely upon the following decisions of the Hon'ble Apex Court:-
21. In case of [PRECEDENT] the Hon'ble Apex Court has held as under:-
"10. In Para 3 Dr. [ENTITY] stated, "in our opinion, the death of the deceased may have been caused due to ante-mortem injuries, bleeding and shock". In Para 6, Dr. [ENTITY] opined that the injuries on the body of the deceased could be caused by lathi and that ante-mortem injuries were ordinarily sufficient to cause death. In view of this, it is not safe to rely on the testimony of P.W. 8 for recording a firm conclusion that injuries inflicted by the appellant were sufficient to cause death in the ordinary course of nature and the High Court cannot be said to have erred in altering the appellant's conviction from [SECTION], [ACT]"
22. In case of [PRECEDENT] Hon'ble Apex Court has held as under:-
"5. Now coming to the nature of the offence, according to the eye-witnesses the three accused came together armed with sharp edged weapons and inflicted injuries which resulted in the fracture of the skull bones. The fracture of the tibia, fracture of the metacarpal bone and some other injuries were also caused. However, if their intention was to cause death, they should have inflicted some more injuries on any vital prat of the body but they have given one blow only with the blunt side of the axe and the deceased died only six days later. Therefore, in these circumstances, it cannot be said that they had a common intention for causing the death. But they must be attributed that by inflicting such injuries they were likely to cause the death of the deceased, in which case the offence will amount only to culpable homicide and not murder."
23. In case of [PRECEDENT] Hon'ble Apex Court has observed as under:-
"9. We have gone through the evidence carefully. It seems that as soon as the accused entered the house, there appeared to be some quarrel with his wife and in that fight first, he threw a water-pot and thereafter a kerosene lamp. The burning seems to be more out of the fact that unfortunately at that time, the lady was wearing a nylon sari. Had she not been wearing a nylon sari, it is difficult to imagine how she could have been burnt to the extent of 70%. In our view this was a case which clearly falls under [SECTION] [ACT] since there was a sudden fight. There was no premeditation either. Therefore, the appellant-accused is liable to be convicted for the offence punishable under [SECTION]"
24. In case of [PRECEDENT] Hon'ble Apex Court has observed as under:-
"7. Before we turn to the facts of this case, it is apposite to take note of the principle of law laid down by this Court as to in which circumstances, the accused is held entitled to claim the benefit of [SECTION] [ACT] thereby is entitled to seek conversion of the offence committed by him from murder to culpable homicide not amounting to murder. Indeed, the principle of law on this issue remains no longer res integra and settled by a series of decisions of this Court. What has varied is its application to every case.
8. [SECTION] reads as under:
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-
[SECTION]: Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Explanation-It is immaterial in such cases which partly offers the provocation or commits the first assault."
25. In case of [PRECEDENT] this Court has held as under:
"That in a heat of passion there must be no time for the passion to cool down and that the parties had in that case before the Court worked themselves into a fury on account of the verbal altercation in the beginning. Apart from the incident being the result of a sudden quarrel without premeditation, the law requires that the offender should not have taken undue advantage or acted in a cruel or unusual manner to be able to claim the benefit of [SECTION] [ACT]. Whether or not the fight was sudden, was declared by the Court to be decided in the facts and circumstances of each case. The following passage from the decision is apposite:
10 The help of [SECTION] can be invoked if death is caused: (a) without premeditation; (b) in a sudden fight; (c) without the offender's 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 [SECTION] all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in [SECTION] [ACT] is not defined in the [ACT]. 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 have 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 [SECTION], 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".
xxx xxx xxx
11 After the injuries were inflicted the injured had fallen down, but there is no material to show that thereafter any injury was inflicted when he was in a helpless condition. The assaults were made at random. Even the previous altercations were verbal and not physical. It is not the case of the prosecution that the accused-Appellants had come prepared and armed for attacking the deceased. This goes to show that in the heat of passion upon a sudden quarrel followed by a fight the accused persons had caused injuries on the deceased, but had not acted in a cruel or unusual manner. That being so, [SECTION] [ACT] is clearly applicable
26. In case of [PRECEDENT], Hon'ble Apex Court has held as under:-
"The Appellant caused two Bhala blows on the vital part of the body of the deceased that was sufficient in the ordinary course of nature to cause death. The High Court held that the Appellant had acted in a cruel and unusual manner. Reversing the view taken by the High Court this Court held that all fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of [SECTION] [ACT]. In cases where after the injured had fallen down, the Appellant-accused did not inflict any further injury when he was in a helpless position, it may indicate that he had not acted in a cruel or unusual manner. This Court observed:
19 All fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of not availing the benefit of [SECTION] [ACT]. After the injuries were inflicted and the injured had fallen down, the Appellant is not shown to have inflicted any other injury upon his person when he was in a helpless position. It is proved that in the heat of passion upon a sudden quarrel followed by a fight, the accused who was armed with bhala caused injuries at random and thus did not act in a cruel or unusual manner."
27. For bringing in operation [SECTION] [ACT] it has to be established that the act was committed without premeditation all of sudden in heat of passion without offender having taken undue advantage and not having acted in a cruel or unusual manner. To bring the present case within exception (4) of [SECTION] [ACT] all ingredients mentioned in it are found. A perusal of the entire evidence shows that the appellant-accused had not taken any undue advantage. Appellant-accused has no criminal history. He had not acted in cruel or unusual manner. No effort was made to cause any injury to any other person present there. So in the facts of this case, the offence committed by the appellant-accused would fall under [SECTION] [ACT]
28. Hon'ble Apex Court has discussed the factors to be considered while awarding appropriate sentence in case of [PRECEDENT] which are as as under:-
"23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under:-
(a) Motive or previous enmity;
(b) Whether the incident had taken place on the spur of the moment;
(c) The intention/knowledge of the accused while inflicting the blow or injury;
(d) Whether the death ensued instantaneously or the victim died after several days;
(e) The gravity, dimension and nature of injury;
(f) The age and general health condition of the accused;
(g) Whether the injury was caused without premeditation in a sudden fight; (h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;
(i) The criminal background and adverse history of the accused;
(j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock;
(k) Number of other criminal cases pending against the accused;
(l) Incident occurred within the family members or close relations;
(m)The conduct and behavior of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment?
(n) These are some of the factors which can be taken into consideration while granting an appropriate sentence of the accused."
29. On considering the facts and circumstances of the case, it appears that there was absolutely no intention of the appellant-accused to cause the death of the deceased. This fact situation has arisen just only on the place of occurrence and it was not pre-planned or premeditated act of the appellant-accused. Appellant-accused has no criminal history. The incident has taken place on the spur of movement. As to statement of appellant-accused under [SECTION] [ACT] is concerned he has stated that when occurrence took place he was not present at the spot. But there is no evidence on record that appellant-accused was so far away from the place of occurrence that it was extremely improbable and would have participated in crime. Without any evidence to prove that appellant-accused was present to another place at the time of incident, such plea is liable to be rejected. Considering the evidence of the prosecution, keeping in view the aforesaid mentioned legal position in our considered opinion, the offence committed by the appellant-accused would come under [SECTION] [ACT] It is stated that at present appellant-accused [ENTITY] is in jail. A perusal of recovery memo Exhibit Ka-3 and case diary show that he was arrested on 16.08.1998, since then he is in jail. Appellant-accused has moved a [CASE NUMBER] with a prayer that he be released on personal bond. In the application he has alleged that by the impugned judgment and order dated 26.07.2001 he was awarded life imprisonment by the learned trial Court. In present appeal he was granted bail on 22.09.2004 but due to non availability of sureties he is still languishing in jail. The submission of the learned counsel for the appellant-accused appears to be correct that appellant-accused has continuously remained in jail for more than 18 years. In such facts and circumstances of the case appellant-accused may be punished with the period already undergone by him.
30. On the basis of above discussions, we are of the opinion that the conviction of the appellant-accused under [SECTION] [ACT] is not sustainable and same should be one under [SECTION] [ACT] Conviction of the appellant-accused under [SECTION] [ACT] is liable to be altered to [SECTION] and sentence from life imprisonment is modified to the period already undergone by the appellant-accused.
31. Accordingly, we partly allowed the appeal and alter the sentence to the period already undergone by the accused-appellant (which is about 18 years). It is also stated by the learned counsel for the appellant-accused that at present the appellant-accused is in jail. If the appellant-accused has served the said sentence, he shall be released forthwith if he is not wanted in connection with any other case. While deciding the period of sentence the authorities will take into consideration the remission of the sentence which the appellant-accused is entitled to in law.
32. Let a copy of this judgment along with the lower Court record be send to the learned concerned Sessions Judge forthwith for necessary compliance.
([ENTITY],J.) ([ENTITY], J.) Order Date :-08.03.2017 [ENTITY]