Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1550 of 2001 (Old No. 827 of 1998) Sanjay S/o Shri Ram, R/o 84, Dhak Patti, P.S.Rajpur, District Dehradun ……..... Appellant(In jail) Versus State of U.P (Uttarakhand) ……….Opposite party Shri Shobhit Saharia, Advocate, and Smt Gaura Devi Dev, Amicus Curiae, present for the appellant Shri S.S.Adhikari, A.G.A and T.C.Aggarwal, A.G.A are present for the State. Coram: Hon’ble Prafulla C. Pant, J. Hon'ble Nirmal Yadav, J. Oral: Hon'ble Prafulla C.Pant, J. This appeal, preferred under section 374 of Code of Criminal Procedure, 1973, (for short Cr.P.C), is directed against the judgment and order dated 10.03.1998 passed by First Additional Sessions Judge Dehradun, in Sessions Trial No. 56 of 1993, whereby appellant Sanjay has been 2 convicted under section 302 Indian Penal Code 1860 (for short I.P.C) and sentenced to imprisonment for life and also directed to pay fine of Rs. 5,000/-, in default of payment of which he is further directed to undergo rigorous imprisonment for a period of six months. (2) Heard learned counsel for the parties and perused the lower court record. (3) Prosecution story in brief is that PW5 Ajit Singh, complainant lodged First Information Report (Ex A-1) on 21.02.1993 at Police Station Rajpur, at 8.10 p.m, stating that his brother Narayan Singh (deceased) and accused/appellant Sanjay used to work together. Both of them were painters. They had some dispute over accounting of their earning. On 21.02.1993, at 5.30 p.m, when Narayan Singh, was proceeding for Dhakpatti, accused Sanjay met him and asked as to why he (Narayan Singh) does not come with him (accused Sanjay) for 3 doing the work. Narayan Singh replied that he does not want to work with him (Sanjay). On this Sanjay got enraged, took out knife and stabbed Narayan Singh on his stomach. PW9 Roshan Lal also witnessed the incident. In the First Information Report (ExA-1) it is further mentioned that the complainant Ajit Singh (PW5) took his brother to Doon Hospital for medical treatment and thereafter got scribed report (Ex A1) from PW1 Trilok Singh, and gave at the police station. On the basis of said report police registered crime no. 53 of 1993 related to offence punishable under section 324 I.P.C. PW8 Sub Inspector Ram Kumar Sharma started investigation, and interrogated the injured and the witnesses. Considering the precarious condition and the injured, PW7 Satish Chandra Badoni (a Sub Divisional Magistrate) was requested to record dying declaration of the injured Narayan Singh. He recorded the 4 same (Ex A-7) on 21.02.1993, after taking endorsement from the Medical Officer as to the fit state of mind of the injured to make the statement. In the early hours of 22.02.1993 the injured succumbed to injuries. The information was sent to the police station about death of the injured on which PW3 Sub Inspector Sarla Rawat went to hospital, took dead body of Narayan Singh in her possession and prepared inquest report (Ex A-3). After preparing other necessary papers, the dead body was sent for Post Mortem Examination in a sealed condition. PW2 Dr. Rakesh Shamsheri conducted the Post Mortem Examination on dead body of Narayan Singh on 22.02.1993 at about 3.15 p.m, and prepared autopsy report (Ex A-2) after recording the ante mortem injuries. He opined that the deceased had died due to shock and hemorrhage ,as a result of ante mortem injuries. On this, the crime was 5 converted relating to offence punishable under section 302 I.P.C, and investigation was taken over by PW10 Sub Inspector Jagram Singh, who completed the investigation and submitted charge sheet (Ex-A-11) against the accused Sanjay Son of Shri Ram, for his trial in respect of offence punishable under section 302 I.P.C. (4) The Magistrate, on the reciept of the chargesheet, after giving necessary copies as required under section 207 of Cr.P.C, appears to have committed the case to the court of Sessions for trial. The trial court, after hearing the parties on 15.07.1993, framed charge of offence punishable under section 302 I.P.C., against accused Sanjay who pleaded not guilty and claimed to be tried. On this prosecution got examined PW1 Trilok Singh (scribe of the F.I.R), PW2 Dr. Rakesh Shamsheri, who conducted Post Mortem Examination, PW3 Sub Inspector 6 Sarla Rawat , who prepared inquest report, PW4 Dr. Jaydeep who recorded the injuries on the person of Narayan Singh when he was brought in the hospital, PW5 Ajit Singh, complainant and eye witness, PW6 Mohan Singh witness of recovery of knife, PW7 Satish Chandra Badoni, Sub Divisional Magistrate who recorded dying declaration, PW8 Sub Inspector Ram Kumar Sharma who started investigation, PW9 Roshan Lal (declared hostile), and PW10 Sub Inspector Jagram Singh, who completed investigation. Oral and documentary evidence was put to the accused, in reply to which he alleged the same to be false. However, no oral evidence in defence was adduced. The trial court after hearing the parties found accused Sanjay guilty of charge of offence punishable under section 302 I.P.C. After hearing on sentence the convict was sentenced to imprisonment for life and also directed to pay fine of Rs. 5,000/- in default 7 of payment of which he was directed to undergo further rigorous imprisonment for a period of six months. Aggrieved by said judgment and order dated 10.03.1998 passed by First Additional Sessions Judge, Dehradun, in Sessions Trial No. 56 of 1993, this appeal was filed by the convict before Allahabad High Court on 08.05.1998 where it was admitted on 11.05.1998. The appeal is received by this court under section 35 of U.P. Reorganization Act 2000 (central Act 29 of 2000), for its disposal. (5) Before further discussion this court thinks it just and proper to mention the ante mortem injuries recorded by PW2 Dr. Rakesh Shamsheri, at the time Post Mortem Examination, on the dead body of Narayan Singh. The same are being reproduced from autopsy report (Ex A-2) as under :- (i) Stitched incised wound 22cm x 1/2 cm x cavity deep, on 8 the centre of abdomen and pelvis vertically placed with 10 stitches. (ii) Incised wound 3cm x 1 cm cavity deep on the right lower part of abdomen with rubber drain. (iii) Incised wound 3cm x 1cm on the left lower part of abdomen with rubber drain. PW2 Dr. Rakesh Shamsheri after external and internal examination mentioned in the autopsy report (Ex A-2) that the deceased had died due to shock and hemorrhage as a result of ante mortem injury. We have also checked the corresponding injury said to have been inflicted by the accused Sanjay on person of Narayan Singh, whereafter he was admitted in the hospital. PW4 Dr. Jaydeep has stated that on 22.02.1993 he was on emergency duty in Doon Hospital where Narayan Singh Son of Shri Dhan Bahadur, was brought in an injured condition at about 9 5.55 p.m. The said Medical Officer (PW4) has further stated that he noticed following injury on the person of the injured on record the same in (Ex A-4) Incised wound 3 cm x 1cm left side abdomen , 4 cm above umbilicus , at 2'0 clock position. Fresh bleeding present. (6) PW4 Dr. Jaydeep observed in his report (Ex A-4) that the injury was fresh and caused by some sharp edged weapon. The injury was kept under observation. The patient was referred to surgeon for expert opinion. The injury recorded by PW4 Dr. Jaydeep corresponds to the one of the injuries mentioned as ante mortem injuries recorded by PW2 Dr. Rakesh Shamsheri in autopsy report ( Ex A-2). The other two incised wounds recorded by PW2 Dr. Rakesh Shamsheri appear to have been made due to surgery performed on the person of the injured. From the above 10 discussion we find that it is proved on the record that Narayan Singh suffered injury with the sharp edged weapon in his stomach on 22.02.1993, and succumbed to the same in early hours on the next day. As such the homicidal death of Narayan Singh has been established on the record. Now, this court has to see whether accused Sanjay caused the injury on person of Narayan Singh and committed culpable homicide or not. (7) PW5 Ajit Singh, complainant is the sole eye witness of the incident in this case. He is brother of the deceased. This witness has stated that on 21.02.1993 at about 5.30 p.m his brother (Narayan Singh) was passing through upper canal when he met accused Sanjay. According to this witness he (PW5) along with Roshan Lal (PW9) was about 20 steps behind Narayan Singh. PW5 Ajit Singh further stated that Sanjay was asking for money from Narayan Singh and when later refused to oblige, Sanjay took 11 out knife and stabbed Narayan Singh. The witness further states that Narayan Singh shouted for help on which he was immediately taken to Doon hospital. The witness further states that thereafter he lodged First Information Report (Ex A-1) with police station Rajpur. PW1 Trilok Singh the scribe has proved First Information Report (Ex A-1) and stated that he wrote the same on dictation of Ajit Singh. However, PW9 Roshan Lal did not support the prosecution story and told that he did not witness of the incident. He was got declared hostile by the prosecution. (8) Now, we come to the dying declaration (Ex A7) recorded by PW7 Satish Chandra Bodoni, a Sub Divisional Magistrate. PW7 Satish Chandra Badoni. He has stated that on 21.02.1993, he received an information from Control Room for recording dying declaration in district hospital (Doon 12 hospital). The witness further stated that he went to the hospital, and after the Medical Officer on duty certified (Ex A-5) that the injured (Narayan Singh) was in a fit state of mind to make statement, recorded dying declaration ( Ex A-7). The witness further states that the injured put his thumb impression in the statement and thereafter Medical Officer once again made endorsement (Ex A-6) relating to fit state of mind of the injured to make the statement. The dying declaration made by deceased Narayan Singh in ( ExA-7) is being reproduced below:- c;ku Jh ukjk;.k flag S/o Jh /ku cgknqj] 21 ohj x<+h okyk] jktiqj] nsgjknwu] mez 33 o"kZA pkdw dh ?kVuk vkt fn% 21-02-1993 dh gS A ;g ?kVuk ckcwjke /kksch ds lkeus] dfczLrku ds lkeus] jktiqj dh gS A le; yxHkx 5-10 cts lk;% A eS isUVj g¡w A lgL=/kkjk dqYgku Hkkjr lw lekpkj lfefr esa dke djrk g¡wA eSa vkt NqV~Vh ij FkkA eSa 5-10 ij okfil dqYgku tk jgk Fkk A jkLrk esa ,d yM+dk ftldk uke lat; firk dk uke jkepUnz] dfczLrku ds s 13 ikl jgrk gS] feyk rFkk dgk fd 'kjkc ds fy;s iSl ekxsa A iSls u nsus ij mlus esjs Åij pkdw ls okj fd;s A pkdw ekjdj og Hkkx x;k A mldh esjs ls iqjkuh nq'eukbZ ughsa gS] esjs lkFk dke djrk FkkA Bsdsnkj us mls fudky fn;k Fkk A mlus eq>s dsoy 15 :i;s 'kjkc ihus ds fy;s ekxa djus ij us nsus ij ekjk] og ml le; 'kjkc fi;s Fkk A fu v%&ukjk;.k flag c;ku esjs }kjk Loa; This is to certify that vfHkfyf[kr fd;k x;kA the patient was conscious 21-02-01993 and in full senses through (,l lh cMksuh ) out period while declaration was being recorded. S.D. 21.02.1993 7.05 p.m Medical Officer emergency Doon Hospital (9) The aforesaid dying declaration read with the statement of PW5 Ajit Singh, and the Medical report discussed above, proves on record that accused Sanjay has caused death of Narayan Singh by inflicting on him 14 knife injury. Now this court has to see whether the act on the part of accused/appellant Sanjay constitute culpable homicide amounting to 'murder ' or “not amounting to murder”. In this connection on behalf of the appellant attention of this court is drawn to the case of Shaukat vs. State of Uttaranchal (2010) 5 SCC page 68, and it is argued that the present case is covered under Exception 4 to section 300 of I.P.C. It is contended that even if it is proved that the accused Sanjay caused the injury to which Narayan Singh succumbed , in the facts and circumstances of the case constitutes an offence of culpable homicide not amounting to murder. Under Exception 4 to section 300 I.P.C., following four ingredients are required to be satisfied:- (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of 15 passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. (10) In the present case their appears to be no premeditation on the part of the accused Sanjay. In the facts and circumstances of the case, it can be said to be a case of sudden fight and the accused has acted in a heat of passion. Also, since only one injury was inflicted by the accused as such it can not be said that he (accused Sanjay) acted in cruel manner. That being so, we agree with the contention of learned counsel for the appellant that it is a case of culpable homicide not amounting to murder. Therefore, in our view the charge proved against the accused is that of section 304 part I, and not that of section 302 I.P.C. (11) On behalf of the appellant it is also argued that PW5 Ajit Singh did not know 16 accused Sanjay and his testimony should not be believed. In this connection attention of this court is drawn to the Test Identification Report (Ex-B1) on the record. After going through the record of the case we find that after four months of the incident the accused demanded Test Identification Parade and witness Ajit Singh could not identify him on 29.06.1993, but he had correctly identified the accused in the court. In our opinion the aforesaid Test Identification Parade report (Ex-B1) is of no help to the accused, as the complainant had already named accused Sanjay in the First Information Report, on the very day of the incident i.e. 21.02.1993. It was not a case where the complainant did not know the accused. (12) For the reasons as discussed above, this appeal deserves to be partly allowed. Conviction and sentence recorded by the trial court in respect of offence punishable 17 under section 302 I.P.C., is set aside. Instead, he (accused Sanjay) is convicted under section 304 part I I.P.C., and sentenced to rigorous imprisonment for a period of ten years. He is in jail. Let a copy of this judgment be sent to the Superintendent of the jail concerned. Lower court record be sent back. (Nirmal Yadav, J.) (Prafulla C. Pant, J.) N.P 25.08.2010