Happu vs State of U.P.

Maithli Sharan, J.—This criminal appeal arises out of the judgment of conviction and sentence passed by VIIIth Addl. Sessions Judge, Lucknow on 23.2.1985 in Sessions Trial No. 252 of 1982, convicting the accused-Appellant Happu for an offence u/s 304 (Part I) of the Indian Penal Code and sentencing him to imprisonment for life.

The prosecution case, in brief, runs thus:

In the night at about 10.30 p.m. on 10.10.1981 the deceased Ram Chandra, who was rickshaw puller, was inside his house along with his wife Smt. Tara, who was cleaning utensils, outer door of the house was closed. Meanwhile two persons, out of whom one was accused-Appellant Happu and other was unknown came to the deceased''s house and knocked at the door. The deceased Ram Chandra opened the door and then the Appellant Happu along with the unknown person, who was later identified to be one Shakil, were seen the accused was having knife in his hand. The accused-Appellant Happu and Shakil threatened the deceased Ram Chandra, and abusing him they caught hold of him and dragged him to some place. There was hue and cry in the house and then Smt. Tara, the wife of the deceased Ram Chandra, raised alarm and cried for help. Accused-Appellant Happu inflicted knife injury on the thigh region of Ram Chandra, as a result of which he fell down. The Appellant Happu and the other accused Shakil thereafter ran away, but they were identified by the witnesses who had by then reached over there. The injured Ram Chandra was immediately taken to the Civil Hospital, Lucknow where he was examined by Dr. V.P. Singh and he found two injuries on his persons the first injury was an incised wound 9 cm. x 1 cm. bone deep on the front of the right thigh. The dying declaration of injured Ram Chandra could not be recorded as he was not found fit to give such a declaration. Later in the night at about 1.10 a.m. he died. Ram Chandra-- deceased''s wife Smt. Tara thereafter went to the police station and lodged the first information report.

The autopsy was done on the dead body of Ram Chandra, the next day. The police started investigation in the case, site-plan was prepared and the inquest report was also prepared, and the sample of bloodstained earth was seized. The accused-Appellant Happu was arrested and on the information given by him bloodstained knife, by which the injury on the deceased Ram Chandra''s thigh was inflicted, was discovered and it was seized and seabed by the police. The Investigating Officer also recorded the statements of the witnesses and after completing the investigation in the case charge-sheet was filed in the Court.

The learned Addl. Sessions Judge framed charge for the offence u/s 302, I.P.C. against the accused-Appellant who pleaded not guilty and claimed to be tried.

The prosecution led evidence and examined nine witnesses to prove its case. The Appellant Happu in his examination u/s 113, Code of Criminal Procedure stated that he had been falsely implicated in this case on account of enmity.

The learned trial court after the complete appraisal of the evidence adduced by the prosecution and the other material available on record came to the conclusion that it was proved beyond doubt by the prosecution that the case was covered u/s 304 (Part I) of the Indian Penal Code as the death of Ram Chandra was proved to have been caused by the accused-Appellant Happu who was aware that he was causing such bodily injury by the knife which was likely to cause the death, and Ram Chandra did die as a result of such bodily injury. Thus, the learned Addl. Sessions Judge convicted the accused-Appellant for an offence under the said Section 304 (Part I) of the Indian Penal Code and sentenced him to imprisonment for life. Being aggrieved by the judgment of conviction and sentence the accused Happu has preferred this appeal.

We have heard the learned Counsel for the accused-Appellant Happu and learned Government Advocate.

The main thrust of the learned Counsel for the Appellant Happu is on the legal aspect of the case relating to the conviction of the Appellant u/s 304 (Part I), I.P.C. Though he has drawn our attention to the complete evidence available on record, yet he has vehemently argued that in any case the accused-Appellant Happu could not have been convicted for the offence u/s 304 (Part I) of the Indian Penal Code as the prosecution could not prove at all that the Appellant had inflicted the knife injury to his victim (deceased) with intention to cause latter''s death, evidently enough injury No. 1 which was inflicted on the right thigh of the deceased Ram Chandra was on his non-vital part. His further argument is that the Appellant could have also not be said to have had the knowledge that the injury he was inflicting on the person of Ram Chandra (deceased) was likely to cause his death. He has further pointed out that the medical evidence also does not go to indicate that in the ordinary course of nature, the said injury was likely to cause the death. Amplifying his arguments on these points, the learned Counsel for the Appellant has argued that materials available on record could only go to show that the Appellant had voluntarily caused grievous hurt by the knife on the thigh of deceased Ram Chandra, and it did not matter in the eyes of law that Ram Chandra died of that injury because of shock and haemorrhage. The learned Counsel has plasify submitted that he had nothing to argue against the prosecution evidence which does go to indicate that the alleged knife injury was inflicted on the person of Ram Chandra so as to voluntarily cause grievous hurt only. In this regard, the Government Advocate has also contended that the prosecution evidence is sufficient to connect the accused-Appellant with the incident in question, but certainly he could not have either intended to cause the death of his victim Ram Chandra, and it could also not be said that he well knew that the injury he was inflicting on the person of Ram Chandra was likely to cause his death.

As already observed above, the medical evidence does go to indicate that grievous hurt was caused on the right thigh of the deceased Ram Chandra. On the basis of the arguments advanced by both the learned Counsel, it emerges that the Appellant Happu could not be taken to have intended to cause the death of his victim Ram Chandra in any case, but the fact remains that he did inflict the said injury on the right thigh of Ram Chandra. Thus, agreeing with the submissions advanced by the learned Counsel for the Appellant and taking into account the provisions of Section 326 of the Indian Penal Code, we are of the view that the case is squarely covered by these provisions. Therefore, we find ourselves unable to agree with the order of conviction and sentence u/s 304 (Part I) of the Indian Penal Code, recorded by the learned trial court against the Appellant; instead we convict him for the offence u/s 326 of the Indian Penal Code and sentence him to undergo rigorous imprisonment for ten years. In view of our conclusions, this appeal is partly allowed. Orders of the conviction and sentence passed by the learned trial court are set aside and the Appellant is convicted and sentenced u/s 326, I.P.C., as aforesaid.

The record shows that the accused-Appellant Happu was already in jail at the time of pronouncement of the judgment by the learned trial court, i.e., on 13.2.1985 meaning thereby that he has already served out the period of sentence of ten years passed by us. Therefore, it is ordered that he be released forthwith if he is not wanted in any other case.