Mahesh Kumar vs State Of Uttarakhand

Ravindra Maithani, J

Present appeal has been directed against the judgment and order dated 25.08.2015/28.08.2015, passed in Sessions Trial No. 02 of 2015, State Vs. Mahesh Kumar (for short "the case") by the learned Sessions Judge, Bageshwar. By the impugned judgment and order appellant Mahesh Kumar has been convicted under Section 302 IPC and sentenced to imprisonment for life & a fine of Rs. 2,000/-.

Briefly stated, according to the prosecution, on 20.11.2011, the appellant and deceased, both brothers, were abusing each other and fighting in their house. Suddenly, the appellant went inside the house and brought a knife and attacked the deceased Dinesh Kumar. The deceased was taken to the hospital, but he succumbed to the injuries. The deceased was declared brought dead by the doctor. The incident was witnessed by the father of the deceased PW1 Hayat Ram, his brother PW2 Deepak Kumar, his mother Madhuli Devi and his wife PW8 Kamla Devi. Report of the incident was lodged on 21st November, 2014 at 10:00 AM at the concerned Revenue Police Station. Prior to it, on 20th November, 2014 at about 10:36 PM information was sent by the Hospital authorities about the death of the deceased. On 21st November, 2014, PW5 Puran Chandra Joshi prepared the inquest of the dead body. Post mortem was conducted on the same day at 12:45 P.M. Initially, PW6 Mohan Singh Nayal, Naib Tehsildar conducted the investigation, prepared the site plan, arrested the appellant and at the instance of the appellant, a knife used in the incident was recovered by him. Subsequent to it, investigation was transferred to PW9 Sub Inspector, S.K. Kushwaha. The appellant was also medically examined. He had received some injuries, which would be discussed at a later stage. At the instance of the appellant, the clothes worn by him at the time of incident were also recovered. The articles were sent for forensic examination. Report received. After investigation, charge-sheet was submitted against the appellant. Cognizance was taken. On 26.02.2015, charge under Section 302 IPC was framed against the appellant, to which, he denied and claimed trial.

Prosecution, in order to prove the case, examined as many as nine witnesses, namely, PW1 Hayat Ram, PW2 Deepak Kumar, PW3 Dr. Akhilesh Kumar, PW4 Gokul Ram, PW5, Sub-Inspector, Puran Singh, PW6 Mohan Singh Nayal, PW7 Dr. Rajesh Singh Gunjiyal, PW8 Kamla Devi and PW9 Sub Inspector, Surendra Singh Kushwaha.

Appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"). According to him, he has been falsely implicated in the case. Appellant did not adduce any evidence in his defence. After hearing the parties, the learned court below convicted and sentenced the appellant, as stated hereinbefore. Aggrieved, the instant appeal.

Heard learned amicus curiae, learned counsel for the State and perused the record.

Learned amicus curiae would submit that he would argue on the point of sentence only. According to him, the deceased and the appellant, both were brothers; there was no enmity between them; the appellant had no intention to kill him; nobody actually saw the appellant killing the deceased; it was a sudden fight and a single blow was inflicted. Therefore, the case falls under Exception 4 to Section 300 IPC, which may be punishable under Section 304 IPC.

On the other hand, learned State counsel would argue that though hostile, PW1 Hayat Ram, father of the deceased, PW2 Deepak Kumar, brother of the deceased and PW8 Kamla Devi wife of the deceased have proved that there was a fight between the appellant and the deceased and soon thereafter, the deceased died. Learned State counsel would fairly concede that this case falls under Section 304 IPC and not under Section 302 IPC.

PW1 Hayat Ram is the informant in the case. Unfortunately, he is father of the deceased as well as the appellant. He lost a son in the fight between his two sons. In his examination-in-chief, he states that on the date of incident, he saw a cut wound on the neck of the deceased. He was not present in his house. People were saying that the appellant killed the deceased. A sickle was lying on the place of incident. The deceased fell on it and sustained injury and died. This witness has been declared hostile by the prosecution and he was cross examined. Even the court put questions to this witness. In answer to the questions put by the court, this witness states that at the instance of the appellant, a knife was recovered from the wall (Bhera). The appellant took the knife out from the wall (Bhera) and handed it over to the Police.

PW2 Deepak Kumar is brother of the deceased as well as the appellant. According to him, on the date of incident, at about 6:00-7:00 PM, there was a fight between the appellant and the deceased, which was creating a lot of noise. Hearing it, he also went at the place of fight and saw the deceased dead having an injury of sickle on his neck. PW2 Deepak Kumar has also been declared hostile. He admits that he accompanied PW1 Hayat Ram, his father, for lodging the FIR. Another witness of fact is PW8 Kamla Devi, she is wife of the deceased. According to her, both appellant and the deceased were drunk on the date of incident. They were abusing each other. This witness was in another room. When she went out, she saw her husband, the deceased down on the ground. He had injury on his neck. He was declared dead. According to her, in a fight between both the brothers, the deceased had been killed.

PW1 Hayat Ram is a witness to the inquest also, which was prepared by PW5 Puran Chandra Joshi. In this inquest, it is categorically stated that appellant had killed the deceased Dinesh Kumar with a knife. What is important to notice is that, according to PW5 Puran Chandra Joshi, at the time of preparing the inquest, the father of the deceased Hayat Ram had told it to him that the deceased was attacked with a knife?

PW3 Dr. Akhilesh Kumar conducted post mortem of the deceased and found the following injuries:

"(i) Incised wound present on right side of neck in the middle part measuring 2.0 m x 1.5 cm x 6.0 cm with sharp margin and tailing present; penetrating in nature."

According to him, injuries could have been caused by the sickle Ex.1.

It may be noted here that PW1 Hayat Ram had proved the sickle, which was recovered by the appellant. PW6 Mohan Singh Nayal is the first Investigating Officer, who prepared the site plan and arrested the appellant on 22.11.2014. According to him, the appellant recovered the sickle Ex. 1. PW4 Gokul Ram is another witness of recovery of sickle by the appellant. According to him, when questioned, appellant told it to the Naib Tehsildar that he could get the sickle recovered, by which, he had killed the deceased. Thereafter, the appellant got the sickle out from the wall (bhera) and handed it over to the Police.

The appellant was medically examined, after he was arrested on 22.11.2014. PW7 Dr. Rajesh Singh Gunjiyal proved the injuries on his person as hereunder:

"(i) Lacerated wound over base of left hand thumb.

(ii) Lacerated wound 7.5 cm left side of face from base of nose to across cheek bone."

According to him, these injuries may be sustained in a fight between two persons.

PW9 Sub-Inspector, Surendra Singh Kushwaha is the second Investigating Officer, who took the investigation from PW6 Sub-Inspector, Mohan Singh Nayal. He has stated about the steps taken by him during investigation; he sent the articles for forensic examination and submitted charge sheet.

Admittedly, none of the witnesses have stated that they saw the appellant attacking the deceased with a knife. But, if statement of PW1 Hayat Ram, father of the deceased, PW2 Deepak Kumar, brother of the deceased and PW8 Kamla Devi wife of the deceased are read together, it categorically establishes that it is the appellant and the appellant alone, who killed the deceased with a sickle (knife).

In the trial court, arguments have been advanced with regard to the identity of weapon, by which, the deceased was killed. In fact, the weapon has been named "sickle" as well as the "knife". In the recovery memo Ex A2, which has been proved by the Investigating Officer PW6 Mohan Singh Nayal, it has been named as sickle (knife). What PW1 Hayat Ram has stated is that he saw his son's dead body in the house having a wound on his neck. But, in the last line at Page 1 to his examination, he would say that the injury was sustained by him by falling on a sickle. It means that the sickle was there, when deceased was dead. But, PW6 Mohan Singh Nayal has categorically stated that after the arrest on 22.11.2014, the appellant got recovered the sickle from a wall, which was at a distance at about 20 meters from his house. This falsifies the statement of PW1 Hayat Ram that the deceased died due to fall on the sickle. In fact, in page 2 of the statement, PW1 Hayat Ram contradicted his own statement recorded in his examination-in-chief, when he says that the sickle was recovered by the appellant from a wall.

What is important here is that PW1 is the informant. He has proved his signature on the FIR, though, according to him, he had not written this document. But, PW2 Deepak Kumar admits that PW1 Hayat Ram, his father had reported the matter and he accompanied his father when the report was lodged. In the report, it is categorically stated that in a fight between both the brothers, suddenly, the appellant attacked the deceased with a knife. The statement of PW1 Hayat Ram and PW2 Deepak Kumar, in fact, supports the version of the FIR.

PW8 Kamla Devi proves the prosecution case. She states that in the room both, the deceased and the appellant were fighting; both were drunk; and then there she saw her husband dead. According to her, appellant might have killed her husband. In fact, there is no defence on behalf of the appellant.

PW3 Dr. Akhilesh Kumar, who conducted post mortem of the deceased has categorically stated that the injuries, which the deceased sustained, might have been caused by the sickle Ex.1. He has denied the suggestion that this injury could be caused by falling on a sickle. It supports the prosecution case. On 22.11.2014, the appellant was arrested. He was medically examined by PW7 Dr. Rajesh Singh Nayal. He detected two injuries on his person. But, according to the doctor, injuries could be sustained in a fight between two persons. These injuries on the person of the appellant also support the prosecution case. It supports the statement of PW1 Hayat Ram, PW2 Deepak Kumar and PW8 Kamla Devi that on the date of incident, both, the deceased and the appellant were fighting. It also supports the version of the FIR. These witnesses have also confirmed that soon after the fight, they reached at the spot. They saw the deceased dead. Sickle was recovered at the instance of the appellant. The Investigating Officer has also taken into custody the blood stained and plain soil from the place of occurrence. All the articles were sent for forensic examination. Although, it does not categorically states whose clothes were sent for forensic examination. But, one fact is revealing that according to this report, blood was not detected on the sickle. But, it also does not doubt the prosecution case.

PW1 Hayat Ram is father of the deceased as well as the appellant. At one stage, at Page four in last but one paragraph, this witness very candidly admits that his one son had died and another is in jail, he wants to save him. PW1 Hayat Ram denied of giving statement to the Investigating Officer that the appellant attacked the deceased with a knife, but PW9 Sub Inspector, Surendra Singh Kushwaha has stated that PW1 Hayat Ram told it to him that it is the appellant, who attacked the deceased with a knife. PW1 Hayat Ram to a certain extent proved the prosecution case.

A witness, who does not support the prosecution case in its entirety, does not make his entire statement unbelievable. Even if, the witnesses have not supported the case in its fullest, the part of the statement which is reliable has to be accepted.

PW1 Hayat Ram has not supported the prosecution case in its entirety. But, he has very plainly also admitted that one of his sons was dead and one of his sons is in jail and he wants to save his son, who is in jail. He also admits that he lodged an FIR Ex. A1. PW2 Deepak Kumar, is the brother of the deceased as well as the son of PW1 Hayat Ram. He also supports the prosecution case to the extent that there was a fight between the deceased and the appellant on the date of incident, soon thereafter, the deceased died due to injuries on his neck. Most importantly, PW8 Kamla Devi wife of the deceased supports the prosecution case. She confirms and proved the prosecution case.

In view of the foregoing discussion, this Court is of the view that prosecution has been able to prove that on the date of incident the appellant attacked the deceased with a knife and killed him.

The question is as to what offence has been committed by the appellant? Is it a murder, which is punishable under Section 302 IPC or does the case falls under Exception 4 to Section 300 IPC? Exception 4 to Section 300 IPC read as hereunder:

"Exception-4:- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner."

Learned amicus curiae would place reliance upon the principles of law, as laid down in the case of Kirti Ballabh and another Vs. State, 2007 (2) U.D., 409. In the case of Kirti Ballabh (supra) the conviction was altered from Section 302 IPC to Section 304 IPC. That was a case of fight on a trivial issue; a single blow on chest without any prior ill-will or inimical background.

In the case of State of Rajasthan Vs. Leela Ram alias Leela Dhar, 2018 SCC Online SC 3121, Hon'ble Supreme Court, inter alia held that "under Exception 4, culpable homicide is not murder if the stipulations contained in that provision are fulfilled. They are: (i) that the act was committed without premeditation; (ii) that there was a sudden fight; (iii) the act must be in the heat of passion upon a sudden quarrel; and (iv) the offender should not have taken undue advantage or acted in a cruel or unusual manner."(para 21)

In the case of Arjun and another Vs. State of Chhattisgarh, (2017) 3 SCC 247, Hon'ble Supreme Court made a distinction between Section 304 Part I and Section 304 Part II IPC. It would be apt to reproduce, as to what, the court held. It is as hereunder:-

"23. When and if there is intent and knowledge, then the same would be a case of Section 304 Part I IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II IPC. Injuries/incised wound caused on the head i.e. right parietal region and right temporal region and also occipital region, the injuries indicate that the appellants had intention and knowledge to cause the injuries and thus it would be a case falling under Section 304 Part I IPC. The conviction of the appellants under section 302 read with Section 34 IPC is modified under Section 304 Part I IPC.........."

In the case of State of Rajasthan through the Secretary Vs. Kanhaiya Lal, (2019) 5 SCC 639, Hon'ble Supreme Court, inter alia, held that "another reason given by the High Court is that there was no repeated injury. The aforesaid can hardly be a ground to convert the conviction from Section 302 to Section 304 Part I IPC. A single blow on the vital part of the body like head and that too by deadly weapon axe and used with force which proved to be fatal, was sufficient to hold that it was a case of murder within the definition of Section 300 IPC."

In the case of Tularam Vs. State of Madhya Pradesh, (2018) 7 SCC 777, Hon'ble Supreme Court interpreted as to what would be the criteria for inferring the intention in such cases. It was held as hereunder:

"12. The intention to cause death must not be readily inferred. We are afraid that both the trial court as well as the High Court have, on the basis of the mere fact that Tularam pierced the chest of Bhadri Lodhi with a ballam, assumed that he intended to cause the death of Bhadri Lodhi. There is nothing on the record to suggest such an intention and none of the witnesses have given any indication of Tularam's intention to cause the death of Bhadri Lodhi. It is quite clear that during the altercation Tularam did pierced the chest of Bhadri Lodhi but the intention to kill him is not apparent. However, Tularam must be attributed with the knowledge that piercing the left side of the chest with a spear would result in a bodily injury that is likely to cause death."

Instant is the case of fight between two brothers. Wife of the deceased PW8 Kamla Devi categorically states that both were drunk. Fight was in the house. Unfortunately, the family members heard the noise but none could predict as to what was to happen soon thereafter and when they realized, it was already too late. According to the FIR, the appellant picked a knife and suddenly attacked the deceased. PW1 Hayat Ram, PW2 Deepak and PW8 Kamla Devi all have stated that there was an injury of sickle (knife) on the neck of the deceased. It was an injury not multiple blows. There was no enmity between the appellant and the deceased. It is not a case of premeditation; it all happened in a fight; in a heat of passion; it was a sudden quarrel and nothing is cruel or unusual which had happened. The appellant did not intend to commit a crime. He did not wait and came later to kill the deceased. He picked up a sickle (knife), which according to the witnesses is used in the houses for cutting the vegetables.

The kind of injury the deceased sustained and the circumstances, under which, it was inflicted by the appellant, suggests that, in fact, the appellant had no intention to kill the deceased. Even none of the witnesses have stated that the appellant had any intention to kill the deceased. However, given the nature of injuries and especially the part of the body, where it was inflicted, the appellant must be attributed with the knowledge that inflicting on the neck with a sickle (knife) would result in a bodily injury that is likely to cause death. Having considered all the relevant and attending factors, this Court is of the view that the instant case squarely falls within Exception 4 to Section 300 IPC, which is punishable under Section 304 Part II IPC.

The question of sentence also comes up for consideration. Having considered the nature of offence and the manner, in which, it had occurred, the injuries and all the attending factors, this Court is of the view that interest of justice would be served, if the appellant is sentenced to rigorous imprisonment for a period of six years and a fine of Rs. 2000/-

Accordingly, the appeal is partly allowed.

Appellant is convicted under Section 304 Part II IPC instead of 302 IPC. Under Section 304 Part II IPC, the appellant is sentenced to rigorous imprisonment for a period of six years and a fine of Rs. 2000/-.In default of payment of fine, the appellant shall undergo simple imprisonment for a further period of three months.

Impugned Judgment and order is modified accordingly.

Let a copy of this judgment along with original record be transmitted to court below for compliance.