Kamlesh (in Jail) vs State of U.P.

M.C. Jain, J.—The Appellant Kamlesh has been convicted u/s 302 read with Section 34, I.P.C. and sentenced to life imprisonment by Sri V. P. Kalra, the then Sessions Judge (Non-Metropolitan Area), Kanpur, by judgment dated 24.12.1983 recorded in Sessions Trial No. 256 of 1983. The broad spectrum of the case as surfacing from the F.I.R. and the evidence adduced in the Court is necessary for proper appreciation so as to reach the right conclusion. The occurrence took place on 8.9.1982 at about 11 a.m. near the field of Rampal Singh in village Rajepur, P. S. Sheorajpur, district Kanpur Dehat. The report was lodged on 8.9.1982 at 1 p.m. by P.W. 3 Anant Ram, an eye-witness and son of the deceased. The distance of the police station from the place of occurrence was 4-1/2 Kms. The victim of the offence was Sukhrani. The Appellant allegedly had illicit relations with one Km. Nokha, daughter of Jagan Nath. The deceased saw the Appellant and Km. Nokha in a compromising position on 8.9.1982 and she scolded them, resulting in exchange of abuses between them and the deceased Sukhrani. She also threatened to disclose the affair to the parents of Km. Nokha. At about 11 a.m. on the fateful day, the deceased was returning to her house after grazing her goats. When she reached in front of the field of Rampal Singh, the Appellant armed with a khurpi (used to scrap grass) and Km. Nokha armed with a danda started assaulting her. She fell down on the ground and raised alarm. Her son P.W. 3 Anant Ram and witnesses P.W. 4 Babu Lal, Hori Lal and Hulla reached the spot and witnessed the incident. Kamlesh and Km. Nokha fled from the scene, but Km. Nokha was apprehended at the spot while Kamlesh managed to escape. Sukhrani, who had sustained multiple injuries on her person, was then taken on a cot to the police station. In the way, P.W. 1 Ananti Devi, Pradhan of the village Bilhan enquired about the cause of the incident from her and she disclosed to her that she had been assaulted by the Appellant and Km. Nokha. P.W. 1 Ananti Devi recorded the statement given to her by Sukhrani. She died of her injuries a little before reaching the police station. P.W. 3 Anant Ram son of the deceased got report scribed by Mahabir Prasad and lodged the same at the police station.

The police took up the investigation which was first made by P.W. 7 S.I. Ram Sewak Singh and was ultimately concluded by P.W. 9 S.O. Om Prakash Ojha.

The post-mortem over the dead body of the deceased was conducted by P.W. 8, Dr. S. K. Upadhyaya on 9.9.1982 at 3.15 p.m. The deceased was aged about 60 years and about one day had passed since she died. The following ante-mortem injuries were found on her person:

(1) Incised wound 2 cm. - 0.1 cm. - bone deep on the right side face extending from nose towards right side ear.

(2) Incised wound 2.5 cm. - 0.2 cm. - bone deep right side face 1.0 cm. below right ear.

(3) Contusion 9.0 cm. - 5 cm. on the right side face extending from nose towards right side ear.

(4) Incised wound 1.5 cm. - 0.3 cm. - bone deep on the right bridge of nose right side.

(5) Incised wound 4.0 cm. - 2.0 cm. - bone deep on the left side of bridge of nose.

(6) Incised wound 2.5 cm. - 1.0 cm. - bone deep on the hind side of the bridge of nose.

(7) Incised wound 2.3 cm. - 0.3 cm. - bone deep on the left eye-brow.

(8) Incised wound 1.0 cm. - 0.5 cm. - bone deep on left side cheek 2.0 cm. of left eye.

(9) Incised wound 3 cm. - 0.5 cm. - bone deep on left side of chin.

(10) Contusion 11.0 cm. - 9.0 cm. in front of the neck on both sides of neck.

(11) Contusion 2.0 cm. - 1.0 cm. on left forearm, 6 cm. below left elbow.

(12) Incised wound 0.5 cm. - 0.2 cm. on back of left palm, 7.0 cm. above left wrist.

(13) Incised wound 0.5 cm. - 0.2 cm. - muscle deep on the forearm 1.0 cm. below injury No. 2.

(14) Incised wound 1.0 cm. - 0.2 cm. - skin deep, 2 cm. above left wrist back side.

(15) Incised wound 6.0 cm. - 1.5 cm. - bone deep on the left side scalp at the back, 7.0 cm. away from left ear.

(16) Contusion 4.0 cm. - 2.0 cm. on the right side scalp, 3.0 cm. backwards to right ear.

On internal examination, fracture of right frontal bone corresponding to Injury No. 3 was found. There was also fracture of occipital bone on right side corresponding to Injury No. 15. As per the opinion of the doctor, the death had occurred due to shock and haemorrhage as a result of ante-mortem injuries found on the person of the deceased.

The defence of the Appellant was of denial and of false implication because of his having litigation with Dulla, a cousin of P.W. 3 Anant Ram (informant). The Appellant in his defence examined Lekhpal D.W. 1 Chhangu Lal. He proved the situation of certain plots at the spot including that of Ram Pal. His statement does not appear to us of any consequence as it is incapable of throwing light on the issue at hand.

The prosecution in all examined 10 witnesses at the trial including Investigating Officers, Doctor who conducted the post-mortem on the dead body of the deceased and formal witnesses. P.W. 1 Ananti Devi was the Pradhan of the village and had been produced to prove the dying declaration made before her by the deceased. The eye-witnesses of the occurrence were P.W. 3 Anant Ram (informant) who also happens to be the son of the deceased and P.W. 4 Babu Lal.

We have heard Sri P. N. Mishra, learned Counsel for the Appellant in support of the appeal and learned A.G.A. in opposition from the side of State. The record of the case has also been examined by us.

It may first be observed that the report of this incident was promptly lodged by an eye-witness-P.W. 3 Anant Ram (son of the deceased). The incident had taken place at 11 a.m. and the report was lodged that day at about 1 p.m. The lodging of the F.I.R. within the shortest time of the occurrence furnishes valuable corroboration to the prosecution version as established by the trustworthy evidence adduced at the trial.

Moreover, besides the oral evidence of the eye-witnesses, there is dying declaration too of the deceased made by her to P.W. 1 Ananti Devi, Pradhan. After the incident, she was being taken to the police station in injured condition on a cot. The house of P.W. 1 Ananti Devi, Pradhan fell in way. P.W. 3 Anant Ram, son of the deceased, called P.W. 1 Ananti Devi, Pradhan from inside her house. It sounds to be natural that he thought it fit to inform her of the incident as she was the Pradhan of the village. She herself availed of the opportunity to enquire about the incident from the deceased who disclosed to her that the present Appellant and Km. Nokha were her assailants. She prepared memorandum in his behalf (Ext. Ka-1). Undoubtedly, it has to be treated as the dying declaration of the deceased. The fact that it was not signed by the deceased would not detract from authenticity of the same and would not render it inadmissible. P.W. 1 Ananti Devi was not a legal expert and the memorandum of the dying declaration of the deceased prepared by her cannot be flawed on the ground that she did not obtain her signature/thumb impression thereon. The injured died a little later before reaching the police station. It itself indicates that she was in precarious condition. It was rather wise on the part of P.W. 1 Ananti Devi not to detain her while preparing the memorandum of her dying declaration as she was in great pain and was struggling between life and death. The eye-witnesses of the incident, namely, P.W. 3 Anant Ram and P.W. 4 Babu Lal have also spoken about the factum of dying declaration made by the deceased to P.W. 1 Ananti Devi. P.W. 1 Ananti Devi is an independent witness and there is no reason for her to depose falsely against the Appellant.

We also find that the testimony of eye-witnesses P.W. 3 Anant Ram and P.W. 4 Babu Lal has the ring of truth. P.W. 4 Babu Lal had accompanying the informant P.W. 3 Anant Ram to the police station at the time of the lodging of the F.I.R. Both of them have given plausible explanation regarding their presence at the spot. P.W. 3 Anant Ram had gone for scrapping grass from his house in the morning at about 8.30 a.m. and at the time of incident he was scrapping grass from public passage and his mother was grazing goats at a distance of about 100 or 150 paces away. He heard the cries of his mother. On rushing towards the field of Rampal he saw the Appellant and Km. Nokha assaulting his mother. Appellant had a khurpi in his hand with which he was striking his mother whereas Km. Nokha was using stick.

P.W. 4 Babu Lal had taken the fields of Ram Pal and Ram Prasad on batai and he was present there near the scene of occurrence, when he had heard the alarm raised by the daughter of Budha, who was present at her field. The field of Budha adjoined the fields of this witness. This witness also saw the Appellant and Km. Nokha assaulting the deceased with khurpi and stick respectively. Learned Counsel for the Appellant argued that both the eye-witnesses are related and their presence at the scene of occurrence was doubtful. Obviously, the incident took place in broad daylight when several persons were expected to be in the fields with which they were associated. It appears that P.W. 3 Anant Ram was a man of small means. His mother used to graze cattle every day and there is no reason to disbelieve this witness that he had also come to the fields for scrapping grass. It has to be kept in the mind that he is also the first informant who lodged the report promptly. Mere fact that he happens to be the son of deceased does not justify the rejection of his testimony which has been tested by searching cross-examination. Being a close relative of the deceased, he would not let go the real assailant and implicate the Appellant falsely without any motive.

Of course, P.W. 3 Anant Ram admitted that Khagai was his uncle and Dulla was his cousin being the son of Khagai. P.W. 4 Babu Lal admitted that Khagai was his phupha. This distant relationship between the two witnesses does not mean that they joined together to implicate the Appellant falsely. Learned trial Judge also rightly observed that the testimony of D.W. 1 Chhangu Lal, Lekhpal could not cast cloud as to the presence of P.W. 4 Babu Lal at the spot. Most of the fields shown by the Investigating Officer exist there even as per the testimony of the said Lekhpal, who filed village map. It is commonly to be found that the fields of one person are cultivated by another without there being any entry of such batai or lease in the revenue records. There could be no reason to disbelieve P.W. 4 Babu Lal that he used to cultivate the fields of Ram Pal and Ram Prasad on batai. We note that Lekhpal has himself stated that plot No. 89 owned by Maula Bux and other was in possession of Ram Prasad. It could, therefore, be safely taken that the land of one person may actually be in the possession of another.

We find the testimony of two eye-witnesses to be perfectly believable and the same finds full corroboration from the medical evidence also. P.W. 8 Dr. S. K. Upadhyaya, who conducted the autopsy on the dead body of the deceased, was shown the khurpi recovered from the house of Appellant which, according to the prosecution case, was used by the accused-Appellant in causing the incised wounds to her. The Doctor stated that the incised wounds sustained by the deceased could have been caused by that khurpi (on which blood was found on chemical examination). It would be recalled that as many as twelve incised wounds had been sustained by the deceased on different parts of her body.

Learned Counsel for the Appellant urged that semi-digested food was found in the stomach of the deceased and the death must have been caused 2 or 3 hours after she had taken her meals, while according to the prosecution, the deceased had left her house at about 8 a.m. We are not prepared to attach any importance to this argument. P.W. 3 Anant Ram had himself come from his house without taking meals. He did not know if his mother had taken anything before leaving the house. She was an old lady and might have consumed some food before leaving the house or might have carried some with her when she went to the fields to graze the goats.

There are two other circumstances which also heavily weigh against the deceased. The weapon of offence-khurpi had been recovered by the Investigating Officer from the house of Appellant on 9.9.1982. It is also an incriminating circumstance against him. The Appellant also remained absconder quite for long. The proceedings under Sections 82 and 83, Cr. P.C. had to be taken against him and he surrendered before the Chief Judicial Magistrate as late as on 31.5.1983.

On global consideration, we endorse the view taken by the trial court that the Appellant is one of the culprits who cut short the life of the deceased. However, we are of the opinion that instead of Section 302, I.P.C. read with Section 34, I.P.C., he should have been convicted u/s 304, I.P.C. Part I and sentenced accordingly. We should state brief reasons in this behalf. The version of P.W. 3 Anant Ram is that about 10 or 15 minutes prior to the incident, he had heard his mother accosting and abusing the Appellant and Km. Nokha, she having seen both of them in compromising position at the dera of Appellant. The witness also deposed that when he heard his mother abusing them, she was in the fields of Appellant, his dera adjoining his fields. She had also held out that she would inform the parents of Km. Nokha who was an unmarried girl. She had also told him (this witness) about it, though he had advised her not to bother. It appears that the deceased, an aged lady, demurred the conduct of the Appellant and Km. Nokha vociferously and cursed their amorous union, even threatening to inform the parents of the girl. It turned the head of the Appellant and he was deprived of the power of self-control by grave and sudden provocation. Without any premeditation, he and his girl friend Km. Nokha were overtaken by the impulse to silence her wagging tongue spreading scandal relating to their illicit connection. Obviously, such salacious piece of news is well received by idlers and many others as the same provides to them material for gossiping and cheap entertainment. Ultimately, the Appellant and Km. Nokha were to be the subject of ridicule and derision all around. The matter has to be judged in this right perspective. So considered, we find the case to be covered by Exception No. 1 to Section 300, I.P.C. The conviction should, therefore, be altered from Section 302, I.P.C. to Part I of Section 304, I.P.C. We form the opinion that rigorous imprisonment for ten years would meet the ends of justice.

We accordingly partly allow this appeal. Instead of Section 302, I.P.C. read with Section 34, I.P.C., the Appellant Kamlesh is convicted under Part I of Section 304, I.P.C. read with Section 34, I.P.C. and his sentence of life imprisonment is converted into that of rigorous imprisonment for ten years. The Appellant Kamlesh is on bail. The C.J.M. concerned shall cause him to be arrested and sent to jail to serve out ten years'' rigorous imprisonment.

Let a copy of this judgment along with record of the case be immediately sent to court below for needful action and necessary entries in the relevant register under intimation to this Court within one month.