Manoj Alias Billu vs State Of Uttarakhand

Lok Pal Singh, J

Criminal Misc. application (CRMA 3771 of 2019) has been filed by the appellant through Superintendent of District Jail, Dehradun for early hearing of the jail appeal.

The application is allowed.

This criminal jail appeal has been received through Superintendent, District Jail, Dehradun and is directed against the judgment and order dated 02.08.2017 passed by 1st Addl. District and Sessions Judge, Rishikesh, District Dehradun in Sessions Trial no.116 of 2016, whereby the appellant has been convicted under Section 304 Para II of IPC and has been sentenced to undergo rigorous imprisonment for a period of five years.

Prosecution story in brief is that on 08.07.2013 PW1 Amit Thapa lodged a report at Police Station-Rishikeh, District Dehradun with the averments that on 08.07.2013, at about 18.15 PM, when his son was standing on the road outside the house, suddenly a loader vehicle (Chota Hathi) bearing registration no. UA-07 R 7830, being driven by its driver rashly and negligently, hit his son, namely, Mohit Thapa, who sustained serious injuries and was immediately rushed to the Government hospital, where the doctor declared him dead. The complainant came to know that the vehicle was driven by appellant-Manoj@Billu. It is also stated in the said complaint that on the date of incident Nandkishore Thapa, Deepak Verma, Rohit Kumar, Mamta and Manoj Sharma were also present on spot. On the basis of said F.I.R., Case Crime No.239/2013 was registered against the accused Manoj@Billu in respect of offence punishable under Section 279 & 304-A I.P.C. at Police Station Rishikesh, District Dehradun. Investigation of the case was carried out and on completion of investigation charge sheet was filed against accused Manoj@Billu under Section 304 of I.P.C.

Additional Chief Judicial Magistrate, Rishikesh on receipt of charge sheet, committed the case to the court of Sessions for trial. Addl. Sessions Judge, after hearing the parties, framed charges u/s 304 IPC against the accused. The charge was read over and explained to the accused, to which he pleaded not guilty and claimed to be tried.

On denial of guilt, the prosecution got examined P.W.1 Amit Thapa (complainant), P.W.2 Constable Roshan Singh Rana, P.W.3 Dr. Mahesh Kumar Saini (Medical Officer), P.W.4 Nand Kishor Thapa (eye witness), P.W.5 Manoj Sharma, PW6 Suraj Bhan (eye witness), PW7 Deepak Verma (eye witness) and PW8 S.I. Deepak Rawat. Thereafter, oral and documentary evidence was put to the accused under section 313 Cr.P.C in the form of questions, in reply to which he stated that he has been falsely implicated in the case due to previous enmity. However, he did not lead any evidence in defence.

The trial court after hearing the parties and on perusal of evidence, vide impugned judgment and order, convicted and sentenced Manoj@Billu, as above. Feeling aggrieved, convict/appellant Manoj@Billu has preferred this appeal from District Jail, Dehradun, where he is currently lodged.

PW2 Constable Roshan Singh Rana has made entry in G.D. regarding registration of F.I.R. No. 134 of 2013 (Case Crime No. 239 of 2019) under Sections 279, 304-A I.P.C. against accused Manoj@Billu.

PW3 Dr. Mahesh Kumar Saini (Medical Officer), was posted in Government Hospital, Rishikesh, who conducted postmortem examination on the dead body of deceased on 09.07.2013 and opined that the cause of death the deceased ante-mortem head injury. PW3 has proved the postmortem examination report (Ext A-6).

PW4 Nand Kishore Thapa (eye witness) has stated on oath that on the date of accident i.e. 08.7.2013 at about 2.30 to 3.00 P.M., when he was standing outside the shop, a vehicle (Chota Hathi) bearing no. U.K. 07CC-2038 driven by Manoj@Billu coming from the side of the cremation ground with a high speed, crushed the 4 year-old child, namely, Mohit who was playing on the roadside, PW4 and others screamed and asked the driver to stop the vehicle but he immediately turned back the vehicle and again crushed the child. The child was immediately taken to the Government Hospital, Rishikesh, where the doctor declared him brought dead.

PW5 Manoj Sharma (witness) stated on oath that his shop is situated at Tilak Nagar, Rishikesh and the incident took place two and half years ago, therefore, he could not remember anything. He also stated that he was busy in inauguration of his shop on the date of accident. PW5 was declared hostile.

PW6 Surajbhan (witness) has stated on oath that on the date of accident at about 2.30 p.m. to 3.00 p.m., a vehicle bearing registration no. U.K. 07-C-2038 was mounted on the child and the Driver of the said vehicle fled away from the spot. He also stated that he alongwith others immediately took the child to the Government Hospital, Rishikesh, but the doctor declared him dead.

PW7 Deepak Verma (in his examination-in-chief) has stated that on 08.07.2013 at about 2.30 to 3.00 p.m. a vehicle (chota hathi) bearing registration no. U.K. 7CC-2038 coming from the side of the cremation ground with a high speed, crushed the 4 year-old child, namely, Mohit who was playing on the roadside, PW7 screamed and asked the driver to stop the vehicle but he immediately turned back the vehicle and again crushed the child. The child was immediately taken to the Government Hospital, Rishikesh, where the doctor declared him dead.

PW 8 Deepak Rawat (Sub Inspector) has conducted the investigation of the case and on completion of investigation submitted charge sheet against the accused. PW8 has proved the charge sheet (Ext. A-10).

In addition to the oral evidence prosecution has also filed documentary evidences in support of its case.

The appellant-accused denied his guilt in his statements recorded under Section 313 Cr. P.C..

Trial court by means of judgment and order dated 02.08.2017, after appreciating oral and documentary evidence produced before it, came to the conclusion that the charges against accused-appellant were found proved beyond reasonable doubt and the appellant-accused/Manoj@Billu was convicted under Section 304 Para II of I.P.C., and was sentenced as referred to hereinabove. Aggrieved by the same the appellant has preferred this appeal.

Learned counsel for accused- appellant at the very outset submits that he does not want to argue the matter in regard to the conviction of the appellant but, in the present case from the statement given by the prosecution witnesses, it is borne out that there is no intention on the part of accused-appellant to kill the child. He further submits that on the fateful day i.e. on 08.07.2013, when the incident took place, appellant has no intention to kill the child.

On behalf of the accused-appellant it is also argued, that the accused-appellant had no intention to commit culpable homicide of the deceased, as it was just an accident and accused had no enmity with the family members of the deceased, therefore, at the most, the act on the part of the accused-appellant can be stretched to be covered by the offence punishable under Section 304A of I.P.C..

In support of his contention, he placed reliance upon the judgment of Hon'ble Apex Court in Bunnilal Chaudhary Vs. State of Bihar reported in (2006) 10 SCC 639, wherein it has been held that :

"11. That Section requires that the bodily injury must be intended and the bodily injury intended to be caused must be sufficient in the ordinary course of nature to cause death. This clause is in two parts: the first part is a subjective one which indicates that the injury must be an intentional one and not an accidental one; the second part is objective in that looking at the injury intended to be caused, the court must be satisfied that it was sufficient in the ordinary course of nature to cause death. We think that the first part is complied with, because the injury which was intended to be caused was the one which was found on the person of Shambhu Raut. But the second part, in our opinion, is not fulfilled because but for the fact that the injury caused had penetrated the lung, death might not have ensued. In other words, looking at the matter objectively, the injury, which Bunnilal Chaudhary intended to cause, did not include specifically the cutting of the left lungs but to wound Shambhu Raut in the neighbourhood of the nipple on left side of chest. Therefore, we are of the opinion that Clause (iii) of Section 300 does not cover the case. Inasmuch as death has been caused, the matter must still come within at least culpable homicide not amounting to murder. There again, Section 299 is in three parts. The first part takes in the doing of an act with the intention of causing death. As we have shown above, Bunnilal chaudhary did not intend causing death and the first part of Section 299 does not apply. The second part deals with the intention of causing such bodily injury as is likely to cause death. Here again, the intention must be to cause the precise injury likely to cause death and that also, as we have shown above, was not the intention of Bunnilal Chaudhary. The matter, therefore, comes within the third part. The Act which was done was done with the knowledge that Bunnilal Chaudhary was likely by such act to cause the death of Shambhu Raut. The case falls within the third part of Section 299 and will be punishable under the second part of 19. Hon'ble Apex Court in the case of Richhpal Singh Meena vs. Gheesa alias Gheesa and others reported in (2014) 8 SCC 918 has held as under:

"To ascertain that whether the offence comes under the purview of Section 302 or 304 IPC, Court should inquire five step inquiry.

(i) Is there a homicide ?

(ii) If yes, it is a culpable homicide or non-culpable homicide? If it is culpable homicide, is the offence one culpable homicide amounting to murder (Section 300 IPC), or is it a culpable homicide not amounting to murder (Section 304 IPC) ?

(iii) If it is a non-culpable homicide then a case under Section 304-A IPC is made out.

(iv) In most cases the person who has committed homicide (culpable or non-culpable) can be identified but it is quite possible in some cases that conclusive or specific evidence is lacking to actually pen down the person who has committed homicide. (culpable or not culpable). In such cases accused would have to be given the benefit of Section 72 IPC. Such cases arise if the investigation is defective or if the evidence is insufficient but where it is possible to ascertain who is responsible for the homicide the first four steps of the five step inquiry can easily be carried out."

After analyzing the evidence on record, it is evidently clear that there was no premeditation on the part of the appellant. I am convinced that the intention of the appellant was not to kill the deceased. From the aforesaid facts and circumstances on record, it cannot either be said that the appellant had the intention that such action on his part would cause the death to the deceased and the deceased was aged four years only and there was no enmity of the appellant with the deceased or his family members.

On a careful perusal of the evidence available on record, this Court is of the view that the case falls within the parameter of Section 304-A I.P.C. and not under Section 304 Para II of I.P.C.. Applying the above settled principle of law which has been enumerated in the aforementioned cases, this court is of the view that in the circumstances where there is only negligence on the part of the accused- appellant without any premeditation or pre-planning, it is a case which falls within the ambit of Section 304-A IPC instead of Section 304 Para II of I.P.C.

Section 304-A I.P.C. reads as under:

"304-A Causing death by negligence.- Whoever causes the death of any person by doing any rash or negligent act nor amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both"

In Section 304-A of I.P.C. there is a provision of punishment with imprisonment for a period of two years, whereas the appellant has wrongly been convicted and sentenced to imprisonment for five years under Section 304 Para II of I.P.C.. Till date, the appellant has already served out more than two years of sentence.

Thus, I hold that the learned trial court has correctly appreciated the evidence but it's conclusion about holding the appellant guilty of offence punishable under Section 304 Para II I.P.C. is incorrect. The conviction recorded by the trial court against the appellant in respect of offence punishable under Sections 304 Para II I.P.C. is, therefore, set aside. Instead, the appellant is convicted of the offence punishable under Sections 304-A of I.P.C. So far as the quantum of punishment is concerned, keeping in view the fact and circumstances of the case, it is directed that the ends of justice would be met if the appellant be awarded sentenced to the period already undergone by him as he has already served more than two years in imprisonment as on date which is the maximum punishment provided under Section 304-A I.P.C. .

The appeal stands disposed of, accordingly.

Appellant is in jail. Let the appellant be released forthwith, if not required in any other case.

Let a copy of this judgment be sent to the trial court as well as Superintendent of District Jail, Dehradun for ensuring compliance.

Lower court record be also sent back to the court concerned.