Mukesh alias Tipla (In Jail) vs State

Saroj Bala, J.—The judgment and order dated 30.9.2004 passed by F.T.C. Court No. 4/Additional Sessions Judge Badaun in S.T. No. 467 of 2002 and S.T. No, 698 of 2002 whereby convicting and sentencing the accused-appellant Mukesh alias Tippla with rigorous imprisonment for life and fine of Rs. 10,000/- for the offence u/s 302 I.P.C., two years R.I. and Fine of Rs. 2000/- for the offence u/s 324 I.P.C, and rigorous imprisonment for one year and fine of Rs. 1000/- for the offence u/s 4/25 Arms Act is under challenge in this jail appeal.

The prosecution case redundant of unnecessary details as unfolded during trial is as follows:

The mother of the deceased after the death of his father remarried. The accused appellant was the son born to the mother of deceased from her second husband. On 9.2.2002 at about 6 P.M. the appellant along with his associate Dinesh alias Pahari came to the residence of the deceased and after having dinner the appellant, his associate, the deceased and his wife Smt. Sondha alias Shakuntla (P.W. 1) the first informant were engrossed in conversation with each other. At the same time the appellant asked the first informant to go away as he wanted to talk to his brother in privacy. The first informant went away and lay in the room adjacent to; the place where her husband, appellant and his accomplice were present. Half an hour after her leaving the spot there had been an acrimonious verbal exchange between her husband and appellant. On hearing the raised voice she reached at the spot and saw the appellant armed with knife whereas his companion was catching hold of her husband. When the first informant asked as to what the appellant was doing he said that his share of land having not been given to him he was Reading a life of vagabond and would take revenge. The accused appellant showing a plastic pistol threatened to kill her. At about 11.15 P.M. the appellant gave a knife blow in the abdomen of first informant''s husband. The incident was viewed by the wife of deceased in the light of kerosene lamp. When the first informant intervened to save her husband she was also given knife blows by the accused appellant. The accused-appellant was captured by the first informant and witnesses Jugendra Singh (P.W. 2) and Raju. The accused-appellant caused knife injury to himself to save his skin. The accused-appellant along with knife and plastic pistol was taken to the police station. The first informant got scribed the written report (Ext. Ka-1) of the incident by Balbir Singh and lodged it at P.S. Islam Nagar District Badaun on 10.2.2006 at 6.05 A.M. On the basis of written report Ext. Ka-1) chick F.I.R. (Ext. Ka 4-A) was prepared by H.M. 1991 Jorawar Singh (P.W. 3) and crime was registered at serial number 10 of the general diary, the carbon copy of which is (Ext. Ka 5). The knife and plastic pistol were taken into police custody under the memo (Ext. Ka 2 and 3).

The inquest on the dead body was conducted by Brij Kishore Dwivedi (P.W.7) the then S.H.O.P.S. Islam Nagar, and Investigating Officer of this case. The inquest memo (Ext. Ka-8) was prepared. During the course of inquest challan lash (Ext. Ka-9), photolash (Ext. Ka. 10), letters to R.I. and C.M.O. (Ext. Ka-11 and Ext. Ka-12) and specimen seal (Ka-13) were prepared. The dead body in sealed bundle was handed over to the constables Rishi Pal and Ram Naresh Pal Singh for transportation to the mortuary for postmortem.

The autopsy on the dead body of Sukh Pal Singh was conducted by Dr. A.K. Verma (P.W. 4) on 10.2.2002 at 4.15 P.M. and postmortem report (Ext. Ka 4 B) was prepared. According to the postmortem report the following ante-mortem injuries were found on the person of deceased:

(1) Stab wound 3 cm. X 2 cm. X cavity deep on right side abdomen 10 cm. from umbilicus at 11 O''clock position, underneath injury muscles, peritoneum incised. Right lobe of liver stabbed 3 cm X 2 cm. X 16 cm. Fluid and clotted blood about two liter present in abdominal cavity.

(2) Teeth mark (bite) in back of right arm 4 cm. above elbow in two semicircular shaped in size of 5.5 cm. X 5 cm.

(3) Abraded contusion 4 cm. X 3 cm. over right knee.

In the opinion of the autopsy surgeon the death was caused due to shock and haemorrhage as a result of ante mortem injuries. He opined the possibility of death due to knife injury at about 11 P.M. on 9.2.2002. The injury No. 1 was sufficient in the ordinary course of nature to cause death.

The accused-appellant was medically examined by Dr. A.K. Verma (P.W. 4) on 10.2.2002 at 2.50 P.M. According to the injury report (Ext. Ka-5-A) the following injuries were found on his person:

1) Stab wound placed over abdomen 9 cm. above umbilicus at 11 O''clock position, size 2 cm. X 1.5 cm. X cavity deep omentum coming out of wound.

2) Abraded contusion 1.2 cm. X 1cm. over left eyebrow.

3) Contusion 2 cm. X 2 Cm. on back of right side skull.

4) Contused abrasion 1 cm. X 1 cm. on ventral aspect of left wrist joint.

5) Contused abrasion 0.5 cm. X 0.5 cm. on dorsal aspect of left wrist finger.

6) I.W. 2 cm. X 0.3 cm. X skin deep on postero lateral aspect of right index finger.

7) I.W. 2 cm. X 0.2 cm. X Skin deep on palmer aspect of bone of thumb.

8) I.W. 1 cm. X 0.5 cm. X skin deep palmer aspect of right hand proximal to little finger.

9) I.W. 1 cm. X 0.5 cm. X skin deep on lateral aspect of right ring finger.

10) I.W. 1.5 cm. X 0.5 cm X skin deep on lateral aspect of right middle finger destal part.

11) Contusion 2 cm. X 2 cm. on top of left shoulder.

12) Contusion 2 cm. X 2 cm. on superior border of right shoulder mid point.

13) Complaint of pain in both thighs, no marks of injuries.

The injuries No. 1, 6, and 7 were caused by sharp object and remaining caused by hard and blunt object. The injury No. 1 was kept under observation and rest simple. X-ray of abdomen was advised.

Smt. Shakuntla (P.W. 1) wife of deceased was medically examined by Br. Zulfikar Ali (P.W.5) oil 10.2.2002 at 11 A.M. and as per injury report (Ext. Ka-6) I.W. 3 cm. x 0.2 cm X muscle deep on the ventral medial side of left forearm horizontal 7 cm. above wrist, I.W. 1.5 cm X 0.2 cm X muscle deep on denomeal side of left lower arm oblique 6 cm. below elbow and contusion 3 cm x 2 cm redish blue on the right tibial crest middle part were found.

The injuries No. 1, 2, and 4 were simple. Injuries No. 1 and 2 were paused by sharp edged weapon and injury No. 4 was caused by hard blunt object.

The Investigating Officer visited the place of offence and prepared the site plan (Ext. Ka-14). He collected blood stained and plain earth from the spot under the memo (Ext. Ka-15). He examined the kerosene lamp and handed over to the first informant Smt. Sondha alias Shakuntla for safe custody and prepared the memo (Ext. Ka-4). He examined the torches of the witnesses Jogindar Singh and Raju and handed them for safe custody and prepared the memo (Ext. Ka-16).

The knife used in the commission of offence, blood stained and plain earth, blood stained clothes of deceased were sent to Forensic Science Laboratory for chemical examination on 22.3.2002. After interrogation of witnesses and completing the necessary formalities the Investigating Officer submitted the charge sheet for the offence u/s 4/25 of Arms Act (Ext. Ka-17) against accused -appellant. After his transfer from P.S. Islam Nagar the investigation of the case was resumed by S.H.O. Ramesh Chandra Sharma (P.W. 6) who submitted the charge sheet (Ext. Ka-7) for the offences under Sections 302, 324, 506 I.P.C.

The committal proceedings wire conducted by the C.J.M. Badaun Who by the orders dated 3.6.2002 and 6.8.2002 committed the accused-appellant to the court of Sessions for standing trial for the offences punishable under Sections 302, 324, 506 I.P.C. and Section 4/25 of Arms Act.

The accused-appellant was charged by the Special Judge (E.C. Act)/Additional Sessions Judge for the offence under Sections 302 307 I.P.C. and Section 4/25 Arms Act.

In order to substantiate the charges prosecution examined Smt. Kondha alias Shakuntla (P.W. 1) first informant and an eyewitness, Jogendra Singh (P.W. 2), H.M. Jorawar Singh (P.W. 3) Dr. A.K. Verma (P.W. 4) Dr. Zulfikar Ali (P.W. 5), S.I. Ramesh Chand Sharma (P.W. 6) and S.O. Brij Kishore Dwivedi (P.W. 7) the Investigating Officers.

The plea of accused-appellant was that of total denial. He did not adduce evidence in defence. On appraisal of evidence the trial court found the testimony of Smt. Sondha alias Shakuntla (P.W.I) and Jugendra Singh (P.W. 2) trustworthy and recorded the finding of conviction and sentenced the accused-appellant accordingly.

We have heard Shri Samit Gopal, learned Amicus Curie appearing on behalf of the appellant, learned A.G.A. and have perused the original record.

The learned Amicus Curie argued that there was no motive for killing. The incident took place all of a sudden in a heat of moment and there was no intention or knowledge to cause death. The accused-appellant also sustained injuries in the same course of the incident which indicates suppression of genesis of crime. The First Information Report was lodged after a delay of seven hours. There are material contradictions and discrepancies in the depositions of eyewitnesses (P.W. 1 and P.W. 2). Even if the occurrence is admitted to have taken place in the manner as suggested by the prosecution the appellant cannot be held guilty for the commission of offence punishable u/s 302 I.P.C. and is entitled to the benefit of Exception 4 of Section 300 I.P.C. which is punishable u/s 304 I.P.C.

At the very outset a brief narration of ocular testimony would not be out of place for the appreciation of the arguments raised by the learned Amicus Curie.

The witness Smt. Sondha alias Shakuntla (P.W. 1) is the wife of deceased. She is an inmate of house and an injured witness. She stated that at about 6 P.M. the accused-appellant came to her residence along with Dinesh. Her husband offered food and after having dinner her husband, accused-appellant and his companion had been talking to each other in the room. At about 11 P.M. her husband and accused Mukesh entered into a verbal dual and quarrel. She went there and saw the accused Mukesh with a knife in his hand and Dinesh catching hold of her husband. Accused Mukesh gave a knife blow in the abdomen of her husband. When she tried to intervene, she was also subjected to assault with knife. The accused Mukesh was captured at the spot with knife with the help of witnesses Jugendra Singh and Raju. Co-accused Dinesh managed his escape. She did not go to the police station at night due to non-availability of conveyance and out of fear. She went to the police station Islam Nagar along with villagers in the morning taking the accused-appellant Mukesh with knife. She got the written report scribed by Balveer Singh, a co-villager. The report was scribed by him at her dictation and she put her thumb impression after it was read over to her. She refuted the suggestion that her husband was assaulted at night by some other person and accused appellant was falsely implicated to deprive him of his share in the house and land. She denied the Suggestion that she herself killed her husband.

The witness Jugendra Singh (P.W. 2) reached the spot along with Raju on hearing the outcries and saw the accused with a knife in his hand and wife of Shukhpal was catching hold of him. When he tried to catch hold of accused-appellant he inflicted abdominal knife injury to himself. The accused-appellant was captured with knife. He saw that Sukhpal was lying dead and his wife had sustained knife injuries. He testified that he along with Smt. Sondha alias Shakuntla, accused-appellant Mukesh and witness Raju went to the police station where report was lodged by Smt. Sondha alias Shakuntla (P.W. 1) Accused-appellant, knife and plastic pistol were handed over the police.

H.M. Jorawar Singh (P.W. 3) proved the chick F.I.R., G.D. entry of registration of crime and seizure memo of knife.

Dr. A.K. Verma (P.W. 4) is the autopsy surgeon. He proved the postmortem report and injury report of the accused-appellant.

Dr. Zulifikar Ali (P.W. 5) proved injury report of Smt. Shakuntla (P.W. 1) (Ext. ka. 6). He stated the possibility of injured sustained injuries at about 11 P.M. on 9.2.2002. According to him infliction of injuries No. 1 and 2 was possible by sharp edged weapon such as knife.

S.I. Ramesh Chand Sharma (P.W. 6) proved the charge sheet (Ext. Ka 7)-

S.H.O. Brij Kishore Dwivedi (P.W. 7) proved the inquest memo and other documents, site plan, memo of blood stained and plain earth and Supurdginama of kerosene lamp (Ext. Ka 4) burning at the spot and of torches of witnesses (Ext. Ka-16).

We first deal with the question of presence of light at the spot. The incident took place at about! 11.15 P.M. at the house of the deceased. The deceased and accused-appellant were engrossed in talks at the time of incident and kerosene lamp was burning there. The source of availability of right finds mention in the First Information Report as well as in the depositions of Smt. Shakuntla (P.W. 1) and Jugendra Singh (P.W. 2). The consistent of testimony of Smt. Shakuntla (P.W. 1) was that kerosene lamp was burning at the spot. Not only this, the kerosene lamp was taken in police custody and entrusted for safe custody to the witness (P.W. 1) and memo (Ext. Ka-4) was prepared by the Investigating Officer bearing the signatures of Smt. Shakuntla (P.W. 1) and two other witnesses Pramod Kumar and Hari Om Sharma. The kerosene lamp was found burning by the Investigating Officer (P.W. 7) at the time of spot inspection as mentioned in the memo (Ext. Ka-4). So the argument about the absence of light and offence being committed in the darkness of night has no legs to stand.

Coming to the criticism of eyewitness account we have carefully scrutinised the testimonial assertions of the witnesses Smt. Shakuntla (P.W. 1) and Jugendra Singh (P.W. 2). Smt. Shakuntla (P.W. 1) being the wife of the deceased and an injured person was the most natural witness to the incident which took place at night in her house. Smt. Shakuntla (P.W. 1) emphatically stated that on the fateful day at about 11.15 P.M. her husband and accused-appellant started quarrelling with each other and the accused- appellant gave a knife blow in the abdomen of her husband. When she tried to save him she was also subjected to assault. The accused-appellant caused knife injuries to himself to save his skin from criminal liability.

Much emphasis was laid to create a dent as to the veracity of the testimony of Smt. Shakuntla (P.W. 1) on the score that there are material contradiction on the point as to who took the accused-appellant to the police ion and by whom the main gate was opened to facilitate the entry of witnesses. The contradictions and discrepancies are bound to appear in the testimony of a witness who is deposing about the incident after a gap of one and half year. The witness Smt. Shakuntla (P.W. 1) is an illiterate woman. The capacity of human brain to retain the minute details of an incident varies from individual to individual. The deposition of witness was completed in four dates. While appreciating her testimony this fact cannot be lost sight of that the accused-appellant was captured at the spot with knife and injuries suffered during the course of the incident were found on his person. The accused-appellant gave no explanation as to how he sustained injuries. It was not suggested to the witness Smt. Shakuntla (P.W. 1) that she or her husband caused injuries to accused-appellant. On the contrary the prosecution has successfully explained the injuries of accused-appellant. The sworn testimony of eyewitness Smt. Shakuntla (P.W. 1) whose presence in her house at night was natural could not be brushed aside on the basis of minor discrepancies. Such contradictions and variations were natural in the testimony of an illiterate woman produced as a witness one and half year after the incident. She was cross-examined at length on four dates but nothing substantial could be elicited to discard her testimony which receives corroboration from the evidence of witness Jugendra Singh (P.W. 2).

It was stressed that the First Information Report on which the entire superstructure of prosecution case is built was a spurious document. The incident took place on 9.2.2002 at 11.15 P.M. The written report (Fxt. Ka 1) was lodged by the wife of the deceased on 10.2.2002 at 6.05 A.M. The intervening distance of place of occurrence and police station was six km. The reason for lodging the report in the early morning as stated by its author (P.W. 1) was non-availability of means of conveyance at night and fear. The delay in lodging the First Information Report having been satisfactorily explained it was not fatal to the prosecution case.

On a threadbare analysis of prosecution evidence judged in the light of attending circumstances the testimonies of eyewitnesses Smt. Shakuntla (P.W. 1) and Jugendra Sing (P.W. 2) who reached at the spot on hearing the alarm was credible that it was the accused-appellant who stabbed the deceased.

The residuary plea relating to the applicability of Exception-4 to Section 300 I.P.C. it has to be established that the act was committed without premeditation, all of a sudden, in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. The Fourth Exception of Section 300 I.P.C. covers acts done in a sudden fight. A sudden fight implies mutual provocation and blows on each side. The accused-appellant came to the house of deceased at about 6 P.M. and both of them dined together and were engrossed in healthy conversation since evening. At about 11 P.M. deceased and accused-appellant had altercation. The accused-appellant in a heat of passion gave a knife blow in the abdomen of deceased. The accused-appellant also sustained as many as thirteen injuries, out of which injury No. 1 was stab wound placed over abdomen, cavity deep omentum coming out caused by sharp object besides two other incised wounds on thumb and finger. The remaining ten injuries were caused by blunt object. The accused-appellant having given single knife blow to the deceased had not taken undue advantage or acted in a cruel manner. He had no intention to cause death but had knowledge that it was likely by such act to cause death, therefore, the case falls within the third part of Section 299 I.P.C. and will be punishable under Part II of Section 304 I.P.C. as culpable homicide not amounting to murder.

We, partly allowing the criminal appeal No. 670 of 2005 alter the conviction of appellant Mukesh alias Tippla from Section 302 I.P.C. to Section 304 Part II I.P.C. In lieu of sentence of imprisonment for life imposed on him, we impose a sentence of rigorous imprisonment for seven years and to pay fine as imposed by the trial court and in default to undergo simple imprisonment of three months.

Certify the Judgment to the lower court within a week. The original record of the case be also transmitted to the court below immediately. The compliance shall be reported by the Chief Judicial Magistrate Badaun within four weeks from the date of receiving the copy of this order.