Charanjeet Singh @ Tinku vs State of U.P.

Arun Tandon and Ramesh Sinha, JJ.—Heard Sri P.N. Mishra, learned senior counsel assisted by Sri. Apul Mishra, learned counsel for the appellant. Sri Sunil Singh, Advocate holding brief of Sri J.S. Sengar and Sri Jitendra Prasad, learned counsel appearing on behalf of the complainant and Sri. Arunendra Kumar Singh, learned A.G.A. for the State. This criminal appeal is directed against the common judgment and order dated 19.2.2005 passed by the Additional Sessions Judge, Court No. 2, Kanpur Nagar in Sessions Trial No. 554 of 2004 u/s 302 as well as the order passed in Sessions Trial No. 557 of 2004 u/s 25/4 of the Arms Act, State v. Charanjeet Singh, Police Station Fazalganj, District Kanpur Nagar arising out of Case Crime No. 63 of 2004 and 64 of 2004 respectively. The appellant has been found guilty of an offence u/s 302, I.P.C. and has been punished with life imprisonment and a fine of Rs. 5,000 in default of payment of fine he has further to undergo simple imprisonment for six months. The appellant has also been convicted u/s 25/4 of the Arms Act and has been sentenced for imprisonment for six months.

The case of the prosecution as disclosed and relevant for the purpose of the appeal is as follows:

A written report-Ex. Ka-1 was lodged by the informant Mohan Singh stating therein that his son Saran Jit Singh had gone to meet his friend at 7: 45 p.m. At around 9: 30 p.m. on 12th March, 2012, Mohan Singh was informed that his son Saran Jit Singh was lying injured on the road in front of the shop of Mohan Tyres at Kabadi Market. Kanpur Nagar upon which he alongwith his grandson Karamvir Singh and others went to the reported place and found his son lying on the road in injured condition. He was immediately taken to the hospital by Autorickshaw where he was declared dead. The body of Saran Jit Singh bears marks of injury. The informant was told that his son has been assaulted by the Charanjeet Singh @ Tinku resident of Kabadi Market whereupon a first information report was lodged by him which was registered as Case Crime No. 63 of 2004 u/s 302, I.P.C. at police station Fazalganj, District Kanpur Nagar at about 23: 30 p.m. naming Charanjeet Singh @ Tinku as the accused. Investigation was started, inquest report was prepared and the body of the deceased Saran Jit Singh was sent for post-mortem. The Investigating Officer recorded the statement of witnesses, prepared the site plan and after completing the investigation, submitted charge-sheet against the accused. The case of accused Charanjeet Singh was committed to the court of Session Judge where he was charged u/s 302, I.P.C. and 25/4, Arms Act and he pleaded not guilty and claimed to be tried.

In support of its case, the prosecution examined as many as eight witnesses, namely, Mohan Singh (P.W. 2), the complainant of the case and Sushil Kumar Toni (P.W. 2), Jagtar Singh (P.W. 3), who were the eye-witnesses of the crime. Constable 234 Suresh Chandra, who had prepared the Chik F.I.R. (Ex. Ka-2) and G.D. (Ex. Ka-3). He also prepared Chik F.I.R. (Ex. Ka-4) and G.D. (Ex. Ka-5). S.I. Ravindra Singh (P.W. 5), who had arrested the accused and recovered blood stained knife from his possession and had prepared a Fard (Ex. Ka-6). Dr. K.P. Madheshiya, who had conducted the post-mortem examination on the body of the deceased. Head Constable Bhumiraj Singh (P.W. 7), who had investigated the case of Arms Act and prepared Site Plan (Ex. Ka-8) and submitted charge-sheet (Ex. Ka-9) against the accused. Ashok Kumar Rawat (P.W. 8), who had conducted the investigation and submitted charge-sheet u/s 302, I.P.C.

The accused was examined u/s 313, Cr. P.C. and he denied the prosecution version and has claimed that he has been falsely implicated in this case. It was his case that he was arrested from his house and a false recovery has been shown against him. In respect of eye-witnesses, it was stated by him that they had deposed against him because of business rivalry and he had not borrowed any money from Saran Jit Singh, the deceased.

The trial court after noticing the contention raised on behalf of the prosecution complainant and after considering the evidence both oral as well as documentary on record. proceeded to hold the accused guilty of offence u/s 302, I.P.C. in Case Crime No. 63 of 2004 and of an offence u/s 25 (4) of the Arms Act in Case Crime No. 64 of 2004. The accused was sentenced for both the offences as noted above.

It is worthwhile to record that the trial court specifically noticed that the eye-witness account of the incident as disclosed by the two eyewitnesses, namely, P.W. 2 and P.W. 3, could not be shaken by the accused. The ocular testimony of the witnesses was corroborated by the recovery of knife which contained blood stain of human being as reported in the Serologist report which was also on record disclosing the recovered knife contained human blood. The lodging of the F.I.R. was prompt. It was, therefore, held that the charge u/s 302, I.P.C. was established against the accused appellant as also the offence u/s 25/4, Arms Act.

Challenging the order of the trial court, Sri P.N. Mishra, Advocate, has given following submissions before us:

A. That the presence of the eye-witnesses, i.e., P.W. 2 and P.W. 3 on the spot at the time of alleged assault was doubtful, inasmuch as, the F.I.R. did not disclose the name of the eyewitnesses although P.W. 2 in his statement had stated that he was frequent visitor to the house of the deceased and it was he, who had reported about the incident of assault upon Saran Jit Singh on 12th March, 2004. The submission that the recovery of the knife from the pocket of the accused after three days is highly improbable, inasmuch as, no normal human being will carry the knife used for assault for three days in his pocket without even washing the blood stains. It is also contended that there was absolutely no evidence to establish that any loan was taken by the accused from Saran Jit Singh and. therefore, the motive for assault had not been established. It is also contended that the conduct of the persons said to have been present at the time of assault including P.W. 2 and P.W. 3 as disclosed, is not of a normal human being, inasmuch as, it was their case that there was a scuffle between Charanjeet Singh and the deceased Saranjit Singh yet no attempt was made by any person sitting at the time of incident including P.W. 2 and P.W. 3 to intervene and to separate them from the scuffle.

Sri Mishra contends that the normal conduct, for the eyewitness P.W. 2 and P.W. 3, who admitted to be known to the deceased, would have to make an attempt to save the deceased both at the time of scuffle and after he had been injured was to run to have shifted him to a hospital instead of leaving him bleeding on the road and to have rushed to his residence for giving information of the incident. No attempt was made by the P.W. 2 and P.W. 3 to verify for themselves as to whether the deceased had expired at that point of time or not. Further, they could have easily informed the police as the police station was at a distance of 100-150 paces from the place of occurrence.

Sri Mishra lastly contends that if it is established in the facts of the case that the death of Saran Jit Singh has occurred due to assault made by the appellant then in the facts of the case no offence u/s 302, I.P.C. was made out and the case would not travel beyond Section 304, Part I or Part II, I.P.C. The appellant has already been confined for more than 8 years and, therefore, in the facts of the fact, the Court may convert the offence from u/s 302, I.P.C. to u/s 304. Part I or 304, Part II, I.P.C. and the appellant may be released after sentencing him for the period he has already undergone imprisonment.

On behalf of the complainant, it is stated that the contentions raised by Sri P.N. Mishra, Advocate have no substance. The eye-witnesses had not been named in the F.I.R. but the statement of the complainant was recorded in the same night u/s 161. Cr. P.C. and in the statement so recorded the name of the eye-witnesses was specifically mentioned.

He then submits that the facts relating to the incident as disclosed by the eye-witnesses P.W. 2 and P.W. 3 were substantiated by other evidence on record as well as by the medical evidence Including the recovery of the blood stained knife from the possession of the accused. Since traces of human blood on knife was established from the report of the Serologist, there is no reason to disbelieve the statement of the eyewitnesses. Neither any hostility was alleged against the eye-witnesses nor was there any suggestion as to why the two eye-witnesses will falsely implicate the appellant.

He further submits that P.W. 2 was incapacitated in the left arm. It is normal human conduct that on seeing a person being assaulted by knife, the witness may run to the place of residence of the victim so as to inform as to what has happened instead of coming to rescue of the injured. He, therefore, submits that no adverse inference can be drawn from the fact that the eye-witness rushed to the place of residence instead of taking the victim to the hospital. The conduct could not be said to be unnatural. He further submits that in the facts of the case, the findings recorded by the trial court after analyzing the evidence, cannot faulted with. This court may affirm the conviction and sentence so imposed.

In respect of alternative plea that only an offence u/s 304, Part I or Part II. I.P.C. was made out. he explains that the mere fact that assailant had stabbed four times in a short duration of one or two minutes is in itself sufficient to establish that he was cruel and the injury inflicted was of a nature that a normal human could be done to death and for the purpose he has referred to the report of the doctor and the post-mortem report as well as the statement made by doctor concerned and P.W. 6 who stated that the injuries inflicted were sufficient to cause death within six hours of the assault.

We have heard learned counsel for the parties and examined the record.

The incident had taken place on 12th March. 2004 at around 9.30 p.m., the F.I.R. was lodged on the same day at around 11.30 p.m. The injured was taken to the hospital where he was declared dead and the post-mortem report prepared by the doctor shows that the death of the deceased was due to the assault made by knife. The eye-witnesses P.W. 2 and P.W. 3 gave a detailed account of the incident and there is hardly any discrepancy in the evidence of eyewitnesses. The ocular testimony of P.W. 2 and P.W. 3, has been accepted by the trial court, it was corroborated by other material evidence on record Including recovery of knife used for the assault from the possession of the accused. The knife contained stains of human blood as reported by the Serologist. The trial court has come to a specific conclusion on the basis of material evidence that it was the accused who has assaulted the deceased with knife resulting in his death. We find no illegality or perversity in the finding so arrived at by the trial court. The eye-witnesses account which is corroborated by other material evidence as noted above has rightly been accepted by the trial court. It is not necessary to record the name of the eye-witness in the F.I.R. nor the case of the prosecution can be disbelieved merely because the name of the eye-witness is not recorded in the F.I.R. nor it shall prove fatal to the case of the prosecution. It is relevant to notice that P.W. 2 Sushil Kumar Toni had specifically deposed that informant P.W. 1 did not recognize him by face. This was the reason that the name of P.W. 2 could not be mentioned in the F.I.R. P.W. 2 had informed the grandson of P.W. 1, namely, Karan Dhir about the Incident and Karan Dhir was minor son of deceased in time informed his grandfather about the incident. The Hon''ble Apex Court in the case of State of U.P. Vs. Krishna Master and Others, , in para-15 has held as follows:

The purpose of the F.I.R. is to set the criminal law in motion and it is not customary to mention every minute detail of the prosecution case in the F.I.R. F.I.R. is never treated as a substantive piece of evidence and has a limited use, i.e., it can be used for the corroborating or contradicting the maker of it. Law requires F.I.R. to contain basic prosecution case and not minute details. The law developed on the subject is that even if an accused is not named in the F.I.R. he can be held guilty if prosecution leads reliable and satisfactory evidence which proves his participation in crime. Similarly, the witnesses whose names are not mentioned in the F.I.R. but examined during the course of trial can be relied upon for the purpose of basing conviction against the accused. Non-mentioning of motive in the F.I.R. cannot be regarded as omission to state important and material fact.

We are also of the opinion that presence of the eye-witnesses cannot be doubted at the place of occurrence on the plea that they instead of involving themselves in the scuffle or taking the injured to the hospital rushed to the residence of the deceased for giving the information of the incident. P.W. 2 and P.W. 3 left the place of assault immediately after seeing the injured lying on the road after assault. Nothing unnatural can be attributed to such act of the person present at the time of the incident. The response, behavior of individuals in such situations differs from person to person and it cannot be said that response of every and any human being will be similar in such situation. The recovery of the weapon with stains of human blood used, from the accused is well established from the evidence on record.

We hold that the finding of the trial court to the effect that the death has been caused to the accused by the appellant cannot be faulted with.

The issue which now remains for consideration before this Court is as to whether in the facts of the case as found established will fall u/s 302, I.P.C. or the facts relating to an offence may result in an offence u/s 304, Part I or 304, Part II, I.P.C. only:

Learned counsel for the appellant has relied upon the judgment of Apex Court in Arvind Kumar vs. State of Uttar Pradesh, 1988 SCC (Cri.) 132 , in which the Apex Court has analyzed the circumstances when conviction can be altered from Section 302, I.P.C. to Section 304, Part I. I.P.C.

After examining the entire evidence which has been led on behalf of the prosecution in detail, we find that there is no evidence that there was any predetermination of the appellant to cause brutal injury to the injured so as to do him to death. On the contrary, we find from the evidence of eye-witnesses that initially some hot talks took place between the deceased and the accused, and thereafter scuffle resulted. Within a short span of 1-2 minutes the accused under heat of passion had dealt four blows with knife to the deceased. In these set of facts, it cannot be said that the injury which has been caused by the accused to the deceased was premeditated or predetermined act on the part of the accused to do the deceased to death. In our opinion, the conviction of the appellant u/s 302. I.P.C. deserves to be converted into Section 304, Part I, I.P.C. We accordingly hold the appellant guilty u/s 304, Part I, I.P.C. Accordingly, the conviction of appellant u/s 302, I.P.C. is converted into Section 304 Part I, I.P.C. The appellant is sentenced to undergo rigorous imprisonment for 10 years and a fine of Rs. 50,000 the amount of fine if recovered shall be paid to the legal heirs of the deceased Saran Jit Singh by way of compensation. In default of payment of fine, the appellant shall undergo further simple imprisonment of one year.

The appeal is partly allowed subject to the aforesaid modifications.