Dayaram vs State of U.P.

Surendra Vikram Singh Rathore, J.—1. Mr. Amit Chaudhary, learned amicus curiae for the appellant and Mr. Sharad Dixit, learned A.G.A. for the State were heard and lower court record was perused.

Under challenge in this appeal is the judgment and order dated 13.3.2007 passed by learned Additional Sessions Judge, Court No. 3, Sultanpur in Sessions Trial No. 263 of 2003, arising out of Case Crime No. 154 of 2003, Police Station Haliyapur, District Sultanpur whereby present appellant Dayaram was convicted for the offence under Section 302 I.P.C. and was sentenced with imprisonment for life and also with fine of Rs. 5,000/- with default stipulation of six months additional imprisonment. He was further convicted for the offence under Section 324 I.P.C. and was sentenced with two years imprisonment. Both the sentences were directed to run concurrently.

In brief the case of the prosecution, as disclosed in the F.I.R., was that complainant Prahlad S/o Siyaram lodged an F.I.R. on 9.6.2003 alleging therein that appellant Dayaram, happens to be his real Pattidar. In the noon of the same day, the buffalo of appellant Dayaram had eaten the dried piece of mango (Khatai), which were spread in the sunlight for drying, by the family of the complainant. Due to which, the wife of the complainant made a complaint at the house of Dayaram. Feeling agitated by this, in the night at about 8:00 p.m., when the complainant along with other family members, was sitting at the door of his house and Ramesh Kumar son of Ram Dayal and Keshav Ram son of Sampati and the ladies of the family were also sitting there, in the meantime, appellant Dayaram came armed with knife in his hand and abused the complainant, and extended threats of dire consequences and with the intention to kill him gave a blow of knife on his head, when his mother Parvati came for his rescue then he also gave a blow on her neck causing her instantaneous death. Complainant''s nephew Suraj aged about ten years also came for rescue then he was also given a blow with knife on his back. The appellant was chased by Ramesh Kumar, then he was also caused injuries with knife. However, hearing the noise and the alarm raised by the complainant side, several persons of the village apprehended appellant Dayaram and thereafter the complainant side along with accused persons went to the police station Haliyapur, which was at a distance of about half kilometer from the place of occurrence, got the F.I.R. scribed by Basant Lal son of Parasnath and lodged the same.

On the basis of this F.I.R., the case was registered. The appellant was taken into custody. The injured persons and Dayaram were referred for their medical examination. Because of insufficiency of light, the Investigating Officer could start the inquest proceedings in the following morning at 5:30 a.m., which stood concluded at 7:00 a.m. On 10.6.2003. Along with annexures and other papers of the inquest report, the dead body was sent for postmortem and postmortem on the body of the deceased was conducted on the same day at 4:00 p.m. On the same day, when Investigating Officer went back to police station after completing this part of investigation, he recorded the statement of appellant Dayaram, who was in custody at the police station. He confessed the offence and told him that while he was trying to make good his escape, he had hidden his knife and offered that he can get the same recovered, therefore the Investigating Officer came to the place of occurrence along with accused appellant Dayaram and on his pointing out, the weapon of offence i.e. knife was recovered and a separate recovery memo was prepared, and recovered knife was also sent along with bloodstained and plain earth of the place of occurrence and also with the bloodstained clothes of the deceased for chemical examination. As per the report of the chemical examiner dated 9.6.2004, human blood was found on the recovered knife.

After completing the investigation, charge sheet was filed.

The defence of the appellant that emerges from his statement under Section 313 Cr.P.C. and also by the suggestion given to the witnesses in cross-examination was that the appellant has been falsely implicated due to enmity. In his statement recorded under Section 313 Cr.P.C., he has admitted that he had received injuries. However, he pleaded his ignorance as to how, other injured persons received injuries or Smt. Parvati died. In the defence suggestion, it was pleaded that some unknown persons had caused this offence and the appellant has been falsely implicated due to enmity. It has also been suggested to the witnesses that actually it was a case of dacoity and in the process of dacoity, Smt. Parvati died and other persons were injured and the appellant has been falsely implicated in this case.

Before proceeding further, we would like to reproduce the medical examination reports and postmortem of the deceased, which read as under:-

"Complainant Prahlad was medically examined at P.H.C. Baldirai District Sultanpur on 10.6.2003 at 10:0 a.m. and following injuries were found on his body:-

(i) Lacerated wound 3 c.m. x.5 c.m. x scalp deep on right forehead to mid line, 8 c.m. above from midline and right eyebrow. Serum discharge on touch.

(ii) Contusion 3 c.m. x 1.5 c.m. on right forehead 4 c.m. above from right eyebrow colour reddish.

In the opinion of the doctor, all the injuries were simple in nature and caused by hard and blunt object and duration was about half day old.

Injured Ramesh Kumar was examined on the same day at 10:15 a.m. and following injuries were reported by the doctor:-

(i) Lacerated wound 3 c.m. x 2 c.m. x muscle deep on back of left ear. Serum discharge on touch.

(ii) Linear abrasion 12 c.m. x.2 c.m on right front of neck and the chest on right sterno clavicular joint. Abrasion covered with dry clotted blood.

(iii) Abraded contusion 2 c.m. x 1 c.m. on front of right elbow joint. Abrasion covered with dry clotted blood and colour of contusion was reddish.

(iv) Abrasion.5 c.m. x.2 c.m. on palmer aspect of right hand, 1 c.m. Above from metacarpal phalangeal joint right little finger. Wound was surrounded by dry clotted blood.

In the opinion of doctor, all the injuries caused by hard and blunt object except injury No. (ii) and (iv) caused by friction against any pointed surface. Duration was bout half day old.

Injured Suraj was medically examined on the same day at 10:30 a.m. and following injury was reported by the doctor:-

(i) Incised stitched wound 3 c.m. x.3 c.m. x depth not measured due to stitch wound on left side back of chest, 10 c.m. below and medial to inferior angle of left scapula and 3 c.m. lateral to mid-line. Serum discharge on touch.

Injuries was simple in nature, caused by some sharp-edged weapon and duration was about half day old.

On the same day, appellant Dayaram was also examined by the same doctor at P.H.C. Baldirai at 10:45 a.m. and following injuries were found on his body:-

(i) Contusion 4 c.m. x 1.5 c.m. on left side face just below left lower eyelid, colour reddish.

(ii) Lacerated wound 1 c.m. x.5 c.m. x muscle deep on left side mandible 1 c.m. lateral to mid-line on left mandible. Serum discharge on touch.

(iii) Traumatic swelling 3 c.m. x 2 c.m. on back of left forearm, 5 c.m. above from left wrist joint colour reddish.

(iv) Lacerated wound 1 c.m. x.5 c.m. x muscle deep on back of left hand 2.5 c.m. below from left wrist joint.

In the opinion of the doctor, injuries were simple in nature, caused by hard and blunt object. Duration was about half day old.

The postmortem on the body of Parvati (deceased) was conducted on 10.6.2003 at 4:00 p.m. and duration of death was reported by the doctor about one day old and following ante-mortem injuries was found:-

(i) Incised wound 3.5 c.m. x 1 c.m. x 5 c.m. On left side neck just above and lateral to the left sterno clavicular underneath left carotid artery was cut.

In the opinion of the doctor, the death occurred due to hemorrhage and shock as a result of ante mortem injury."

In order to prove its case, the prosecution has examined PW-1 complainant Prahlad injured, PW-2 Suraj, the other injured, PW-3 Ramesh Kumar, injured witness of this case. PW-4 Dr. B.R. Yadav, who has medically examined all the three injured and also appellant Dayaram. PW-5 Dr. Shri Ram Gupta, who has conducted postmortem on the body of the deceased. PW-6 Kanhaiya Lal Kaul, Investigating Officer of this case and PW-7 Constable Keshav Kumar, who has prepared chik report and G.D. of this case.

No evidence in defence was adduced on behalf of the appellant.

After appreciating the evidence available on record, the trial court has convicted the appellant as above, hence the instant criminal appeal.

Submission of learned counsel for the appellant was that in the instant case, origin of F.I.R. was doubtful. The recovery of weapon of offence on the pointing out of appellant was also doubtful and on this basis, it has been argued that the appellant deserves to be acquitted in this case. However, in the alternative an argument was raised that the deceased and the appellant were closely related and were the members of the same family. There was absolutely no occasion or prior enmity to infer that the intention of the appellant was to cause death of the appellant. It has also been argued that even if the entire case of the prosecution is taken to be true even then the offence would not travel beyond the purview of Section 304 Part I Indian Penal Code. It has also been argued that the appellant, from the date of incident, is continuously in jail, therefore, he may be punished with the period already undergone by him.

Learned A.G.A. has submitted in the instant case a very prompt F.I.R. has been lodged, which gives credence and lends support to the prosecution case. He has also argued that all the three injured witnesses have been examined by the prosecution. Their presence on the scene of occurrence cannot be doubted. The appellant was arrested on the spot and was taken to the police station. The bloodstained knife recovered on his pointing out was found to be stained with human blood. Therefore, there was voluminous evidence against the appellant to connect him with the offence. Learned A.G.A. has further submitted that the deceased has caused injury on the neck of Smt. Parvati (deceased), which was a vital organ and the depth of the wound was 5 c.m., which was sufficient in the ordinary course of nature to cause the death, hence, the knowledge can be attributed to the accused that he caused such an injury to the deceased, which in all probability would result into the death of the deceased. So the said offence would fall within the purview of Section 302 I.P.C. and the trial court has rightly convicted the appellant for the said offence.

In view of the rival submissions of learned counsel for the parties, the first point to be considered is the F.I.R. According to the prosecution case, the incident of this case took place on 9.6.2003 at 9:00 p.m. and F.I.R. of this case was lodged at 9:30 p.m. According to the chik F.I.R., the distance of the police station from the place of occurrence was about half kilometer.

Submission of learned counsel for the appellant was that F.I.R. was not in existence, when the inquest proceedings were conducted because in the inquest report, the distance from police station has been mentioned as half kilometer while in the F.I.R. it was one and a half kilometer. Apart from it, F.I.R. was seen by C.J.M. On 1.7.2003 i.e. after several days of the incident. Our attention has also been drawn towards the evidence of PW-2 Suraj wherein he has stated that F.I.R. was scribed by Basant Lal on the dictation of Investigating Officer in village and on the strength of these circumstances, it has been argued that once the origin of F.I.R. comes under shadow of doubt, then the same would be sufficient to discard the entire case of the prosecution. In support of his submission, he has placed reliance on the pronouncement of Hon''ble the Apex Court in the case of Marudanal Augusti v. State of Kerala reported in , (1980) 4 SCC 425.

We have given our anxious consideration towards the submission of learned counsel for the appellant. In the instant case, PW-1 complainant Prahlad is a rustic, illiterate villager, who was not even capable of putting his signature. He has put his left thumb impression on the F.I.R. Law is settled on the point that the evidence of such a rustic, illiterate villager has to be scrutinized with a different yardstick. The same standard of appreciation of evidence which the court adopts while appreciating the evidence of an educated witness cannot be adopted while appreciating the evidence of such a rustic witness. Reference on this point may be made to the pronouncement of Hon''ble the Apex Court in the case of Govindaraju v. State of Karnataka reported in , (2009) 14 SCC 236 wherein Hon''ble the Apex Court in paragraph No. 27 has observed as under:-

"27. The High Court has appreciated the evidence very deeply and in our opinion, the Sessions Judge had gravely erred in not accepting the evidence of this witness without any justifiable reason. It is a basic principle that the evidence of witness has to be appreciated as a whole, when the evidence of an ordinary witness, who is not much educated and comes from a poor strata of society not having the advantage of education. The Court has to keep in mind all these aspects. The witness is not expected to remember every small thing, more particularly when he faces the shock of the untimely death of his near relative."

Hon''ble the Apex Court in the case of State of Uttar Pradesh v. Krishna Master and others reported in , (2010) 12 SCC 324 has held in paragraph No. 23 and 24 as under:-

"23......................... A rustic witness, who is subjected to fatiguing, taxing and tiring cross-examination for days together, is bound to get confused and make some inconsistent statements. Some discrepancies are bound to take place if a witness is cross-examined at length for days together. Therefore, the discrepancies noticed in the evidence of a rustic witness who is subjected to grueling cross-examination should not be blown out of proportion. To do so is to ignore hard realities of village life and give undeserved benefit to the accused who have perpetrated heinous crime.

The basic principle of appreciation of evidence of a rustic witness who is not educated and comes from a poor strata of society is that the evidence of such a witness should be appreciated as a whole. The rustic witness as compared to an educated witness is not expected to remember every small detail of the incident and the manner in which the incident had happened more particularly when his evidence is recorded after a lapse of time. Further, a witness is bound to face shock of the untimely death of his near relative(s). Therefore, the court must keep in mind all these relevant factors while appreciating evidence of a rustic witness."

Hon''ble the Apex Court in the case of Sukhwinder Singh v. State of Punjab reported in , (2014) 12 SCC 490 has observed in paragraph No. 13 as under:-

"13........................................ They are rustic witnesses. Their evidence must be read bearing their simple background in mind. PW 2 Labh Singh had lost his daughter. Besides, they were deposing in 1994, almost three years after the incident. Hence, allowance must be made for minor discrepancies, if any, in their evidence."

PW-2 injured Suraj is a young body of about ten years. Law is settled on the point that while appreciating the evidence of a witness, his entire statement has to be considered. Perusal of evidence of PW-2 injured Suraj shows that he has fully supported the case of the prosecution and has also proved the arrest of appellant Dayaram by the villagers in the village. He has stated that thereafter they went to the police station and the F.I.R. was scribed. In his cross-examination, he has stated that when he reached the police station then the appellant was sitting in the police station. Appellant reached the police station about 2-3 minutes prior to them. This statement of the witness virtually supports the case of the prosecution. According to the documentary evidence and according to the evidence of witnesses, several persons had accompanied the complainant and had taken the appellant to the police station. It has come in the evidence that F.I.R. was scribed by Basant Lal outside the police station. So if the other persons had taken the appellant inside the police station and after getting the F.I.R. scribed, this witness had gone inside the police station then simply because of the abovementioned statement, his evidence or the prosecution case, cannot be doubted. It is true that the distance in the chik report and distance in the inquest report has some variance. PW-1 complainant Prahlad in his evidence has stated that the distance from the place of occurrence to the police station was about one kilometer. In the case law relied upon by the learned amicus curiae, apart from some weaknesses regarding the origin of the F.I.R. Hon''ble the Apex Court has also taken into account several other circumstance, which created serious doubt on the prosecution case and all such circumstances have been summarized in the later part of the said judgment. So it was not only on the basis of the F.I.R. alone but keeping in view the other factual circumstance, the appeal was allowed. While in the facts of the instant case, other conditions are absolutely different. If only on the basis of a difference in distance in the inquest report, the case of the prosecution is thrown out then the result of every criminal trial would go into the hands of erring police officers, conducting inquest proceedings by mentioning the incorrect distance in the inquest report, which is not the intention of the law. In the instant case, copy of the F.I.R. was also annexed with the inquest report. The inquest stood concluded on the following morning at 7:00 a.m. The copy of the F.I.R., which was sent along with the dead body as annexure of the inquest report was also seen and signed by the doctor conducting the postmortem.

Apart from it, in the instant case, simply because copy of F.I.R has been sent with delay to the Magistrate would not adversely affect the case of the prosecution because the appellant was arrested on the spot. He was sent to the court for remand on the following day so the copy of the F.I.R. must have been sent along with remand of the appellant and it has been sent. Therefore, the grounds to doubt the origin of the F.I.R. raised on behalf of the appellant have no substance. Thus in the instant case, the origin of F.I.R. cannot be doubted and we are of the considered view that it came into existence at the time as alleged by the prosecution.

We have gone through the evidence on the point of recovery. As per the recovery memo, one Prabhat Singh and Hari Ram were the witnesses of said recovery of knife. The said two witnesses have not been examined by the prosecution. Only PW-6 Kanhaiya Lal Kaul, Investigating Officer of this case has been examined on this point. Perusal of his evidence shows that on 9.1.2007, his examination in chief, was concluded. Though under his signature he has mentioned the date as 9.1.2006 but correct date is mentioned in the order sheet, and also under the signatures of the Presiding Officer. It transpires from the perusal of the order sheet that on the said date, learned counsel for the appellant was not present. On the request of the appellant that he is Harijan and is unable to engage any counsel to defend him, he was offered the services of amicus curiae and as per the list Mr. Rajeet Singh, Advocate was appointed his amicus curiae to defend him. It appears that thereafter PW-6 Kanhaiya Lal Kaul was never called for cross-examination and no cross-examination was done to this witness. Since no opportunity to cross examine PW-6 Kanhaiya Lal Kaul was given to the amicus curiae, so the evidence of Investigating Officer on the point of recovery, cannot be considered in this case. Law is settled on the point that it is the substantive evidence of the witnesses on the basis of which, case has to be decided. In the instant case, even if we exclude the evidence of the Investigating Officer even then there is eyewitness account of three injured witnesses. The incident has taken place at the house of the complainant. The complainant and other injured persons are close relative, having their houses in the vicinity, so all were the most natural witness and their presence at the scene of occurrence cannot be doubted because they have also received injuries. All the three injured witnesses have supported the case of the prosecution and have stated that the appellant was the person who has committed this offence. It has also come in evidence that appellant Dayaram was the uncle of the complainant. The appellant has absolutely failed to show as to why he has been falsely implicated. Injuries to Dayaram are the result of his spot arrest and he cannot get any benefit of the same.

During the course of argument, learned counsel for the appellant has fairly conceded that there is absolutely no enmity of the appellant with the complainant side. So in absence of any enmity why the complainant and the injured persons would spare the real assailants and would falsely implicate the member of their own family in such a heinous offence of murder becomes absolutely unacceptable and makes the defence of the appellant highly improbable.

Perusal of the evidence of three eyewitnesses, taken as a whole, shows that their evidence was wholly reliable. They are injured witnesses and have supported the case of prosecution and have stated that the appellant has committed the offence. So the argument of Mr. Amit Chaudhary, learned amicus curiae on this point has no force.

Now the second limb of argument is to be considered.

Submission of learned counsel for the appellant was that in the instant case, even if the entire case of the prosecution is taken to be true even then the offence would not travel beyond the purview of Section 304 Part (I) I.P.C. The incident has taken place on the spur of moment.

There is absolutely no allegation from the side of prosecution that there was any enmity between the two side. Rather it was mentioned in the F.I.R. that because of the complaint made by the wife of the complainant feeling agitated and under anger this offence has been committed. It has also come in evidence of the complainant that the appellant came to his house and abuse were hurled for a period of ten to fifteen minutes prior to this incident. It has also come in the evidence that father of the appellant was not present at the scene of occurrence and he was in his Baag, which was situated at a distance of about half to 3/4 kilometer. After getting information of this incident, he directly came to the police station. So in this background, it can also be presumed that the appellant while came back to his house and when he got the information of the complaint, made by the wife of the complainant in the evening, which provoked him and made him angry and under such sudden provocation, he came to the place of occurrence and abuses were hurled. At this stage, it is pertinent to mention here that the trial court had charged the appellant for the offence under Section 307 read with Section 34 I.P.C. for causing injuries to the three injured persons. But the appellant has been convicted for the offence under Section 324/34 I.P.C. meaning thereby the trial court was also of the view that injuries to the three injured persons were not caused with the intention to cause death. Learned trial court has concluded that only simple injuries with deadly weapon were caused, accordingly, he was convicted for the offence under Section 324/34 I.P.C.

Perusal of the allegation against the appellant shows that a blow on the neck was given. The manner in which the incident is alleged to have taken place shows that the seat of injury was not the intended seat but when the mother of PW-1 injured Prahlad came for his rescue then all of a sudden she was given the blow, which landed on her neck.

Perusal of the postmortem report shows that the underlying carotid artery was cut due to which the deceased died instantaneously. It is true that the neck is a vital organ but the appellant cannot be attributed with the knowledge that he was aware that under the seat of injury, carotid artery was situated and with the intention to damage the same has caused such injury. So in absence of such knowledge, it cannot be presumed that appellant had any intention to cut the carotid artery of the deceased and to cause her death.

In these circumstances, we are of the considered view that offence committed by the appellant would fall within the purview of Section 304 Part (I) I.P.C. and not under Section 302 I.P.C. Our conclusion finds strength with the following observation of Hon''ble the Apex Court in the case of Abdul Waheed v. State of Uttar Pradesh reported in , JT 2015 (9) SC 444, which reads as under:-

"14....................... An ordinary person is not presumed to know the precise location of the arteries in the human limbs. Therefore, if a stab with a knife or dagger, aimed at an arm or a leg, severs an artery and the injured man dies as a result, it may be reasonable to argue that he offence is not one of culpable homicide and that the assailant can only be presumed to have intended to cause hurt or grievous hurt with a dangerous weapon. The case in hand is quite different. When gun is used and the person who fires the gun must be presumed to have knowledge and intention that he is inflicting an injury which in the ordinary course of nature is sufficient to cause death and the offence is clearly murder............................. "

In view of the discussion made above, we are of the considered view that this appeal deserves to be partly allowed and is hereby partly allowed. The conviction of appellant is hereby converted from Section 302 I.P.C. to Section 304 (I) I.P.C. and the sentence is hereby substituted with the period of rigorous imprisonment for a period of thirteen years. The conviction and sentence of the appellant under Section 324/34 I.P.C. is also hereby confirmed. Appellant is in jail at present. Both the sentences shall run currently. Appellant shall serve out the sentence as modified by this Court.

Office is directed to communicate this order to the court concerned forthwith to ensure compliance and also to send back the lower court record.