Rajapoot vs State of U.P.

Pratyush Kumar, J.—The present criminal appeal, filed on behalf of the appellant-accused, is directed against the judgment and order dated 07.09.2004 passed by Sri S.K. Singh, Additional Sessions Judge/Fast Track Court No. 3, Hardoi in Sessions Trial No. 748 of 2002 [State vs. Raja Poot], under Section 302 I.P.C., P.S. Shahabad, district Hardoi, whereby the appellant has been convicted under Section 302 I.P.C. and sentenced to undergo imprisonment for life along with fine of Rs. 5000/- in default thereof two years simple imprisonment.

In the appeal prosecution case in brief is that on 15.05.2002 at about 11.30 AM at police station Shahabad, District Hardoi, Ram Kisan/first informant gave a written report stating therein that on 14.05.2002 after closing his shop he was coming back home alongwith his brother Hari Kishan. When they reached near Imali tree (Tamarind tree) on Bejharoad Samha Bazar at about 9.00 P.M. Raja Poot met them and asked them to give money for drinking liquor. On their refusal, while abusing his brother he struck him with knife. His brother sustained injuries and on their cry Harish Chandra, who was coming by his tractor and Prem Chandra came there and saw the incident in the light of tractor. On their coming Raja Poot left them and ran away. They took his brother to the hospital and leaving him there, he came to the police station to lodge the FIR.

On this Chik FIR was scribed and Case Crime No. 169 of 2002 under Sections 324 , 504 I.P.C. was registered. Relevant entry was made in the General Diary. Investigation was started. On 24.05.2002 during treatment injured Hari Kishan expired. After postmortem Section 302 I.P.C. was added in the said case crime number. After completion of the investigation charge-sheet was filed. During postmortem on the dead body of Hari Kishan following ante mortem injuries were recorded by the doctor.

Three stab wounds present in left side abdomen present in an area of 14.00 x 9.00 cm measuring 3.00 x 1.5 x abdominal cavity deep to 2.00 x 1.00 x abdominal cavity deep gravitation of tissues present.

Two stab wounds present on Rt side abdomen and chest to an area of 8.00 x 4.00 cm measuring 2.5 x 1.5 x cavity deep and other measuring 3.00 x 15.00 x chest cavity deep margins are gravitated.

Surgical stitched wound present in front of abdomen vertically placed measuring 17.00 cm eighteen stitches present.

Septic wound 4.0 cm x 3.0 cm present on anterior aspect of Right wrist joint.

Stitched wound 5.00 cm present on anterior aspect of Right elbow joint. Three stitches present.

After committal of case to the Court of Session accused was charged under Section 302 I.P.C., who pleaded not guilty and claimed to be tried.

Besides the documentary evidence on behalf of prosecution six witnesses were examined. Ram Kishan P.W. 1, is the first informant, who has reiterated the version contained in the FIR and proved written report Ex. Ka-1. Prem Chandra P.W. 2 also supported the prosecution version. Inspector Ashok Dixit, P.W. 3 is the IIIrd Investigating Officer, who submitted the charge-sheet and proved the charge-sheet Ex. Ka-2, Chik FIR Ex. Ka-3 and copy of G.D. Entry Ex. Ka-4. Dr. C.K. Gupta, P.W. 4, Medical Officer, District Hospital, District Hardoi, deposed that on 15.5.2002 at 11.45 P.M., he medically examined the injured Hari Kishan aged 45 years and found four stab wounds which according to him were caused by sharped edged and long weapon. He proved injury report Ex. Ka-5. Dr. M. Lal, P.W. 5, Medical Officer, District Hospital, Hardoi conducted the postmortem on the dead body of the deceased Hari Kishan on 25.05.2002 and recorded afore-quoted ante mortem injuries in the postmortem report. According to this witness death had occurred due to Septicemia & Toxemia. He proved the postmortem report Ex. Ka-6. B.P. Singh, P.W. 6 is the IInd Investigating Officer, who described the steps taken by him during investigation and proved statement of injured Harish Chandra Ex. Ka-7. Shiv Poojan Chaubey, HCP P.W. 7, who conducted the inquest proceedings, proved the inquest Ex. Ka-5 and other requisite papers necessary for sending the dead body Ex. Ka-10 to Ka-14.

After hearing the arguments of both the parties, learned Additional Session Judge, Hardoi found the eye witnesses trustworthy and convicted the appellant under Section 302 I.P.C. while rejecting the arguments advanced on behalf of the defence that it was a case of murder to commit culpable homicide not amounting to murder for the reason that due to negligence of the Doctor the injured could not recover and died due to Septicemia & Toxemia.

We have heard Sri R.N.S. Chauhan, Amicus Curiae appearing for the appellant and learned Additional Government Advocate for the State and perused the record.

On behalf of the appellant at the very outset correctness of the findings of the fact was not disputed and the impugned judgment was assailed only on the point of findings recorded by the learned Additional Sessions Judge that it was a case of murder and not of culpable homicide not amounting to murder.

On behalf of the State it has been argued that the deceased sustained four stab injuries that too on vital parts which resulted in death of the deceased, it was rightly held to be a case of murder.

It is not disputed that the deceased Hari Kishan on the date, time and place sustained four stab injuries. It is also not disputed that he died on 24.05.2002.

Before dealing with the argument advanced on behalf of the appellant we would like to place on record that from the testimonies of Ram Kishan P.W. 1 and Prem Chandra P.W. 2, we find that the injured was immediately taken to hospital, which completely rules out the possibility that the witnesses were not present at the relevant time, therefore, their presence is natural and probable. The source of light has been disclosed at the very outset, thus, the witnesses had opportunity to see the occurrence, they successfully faced the cross-examination, we find deposition of these two witnesses trustworthy, thus, we have satisfied ourselves that Hari Kishan died on 24.05.2002 and the occurrence was seen by these two witnesses.

With these observations, we find that substratum of the prosecution story is true. The only question is whether the offence committed by the appellant amounted to murder or culpable homicide not amounting to murder. This question has two angles; first, whether death of the deceased could be attributed directly to the misdemeanor of the appellant and secondly can, appellant be said to be guilty of an act falling within the ambit of Section 300 I.P.C.

Two examine these, we would like to discuss the scope of Sections 299 and 300 I.P.C. For this we can do no better than to recall the observations of the Hon''ble Apex Court in the case of Siri Kishan and Others Vs. The State of Haryana, . The relevant observations find place in para-21 of the report, which reads as under:

"21. The academic distinction between ''murder'' and ''culpable homicide not amounting to murder'' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300 I.P.C. The following comparative table will be helpful in appreciating the points distinction between the two offences.

With this clear legal position the second aspect stands clearly thatched out as prosecution nowhere alleged such intention on the part of the appellant.

Now we would like to delve on the first aspect i.e. approximate cause for death of the deceased.

To answer this point Explanation-2 of Section 299 I.P.C. is relevant, which is extracted below:

Explanation 2. Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented.

Since Septicemia & Toxemia are the consequence of several knife blows inflicted by the appellant and better medical attention could have saved the deceased, is no defence to the charge of murder framed against the appellant.

Thus, there remains only the argument that the appellant never intended to cause murder of the deceased. This question we have to answer in the light of the facts stated by the eye witness account. Though in the medical evidence, it has come out that ante mortem injuries were sufficient in the ordinary course of nature to cause death. However, this essential ingredient finds place in Section 299 I.P.C. Section 300 is the first and the most serious kind of culpable homicide referred to in Section 299 I.P.C. Section 300 I.P.C. categorizes the culpable homicide when it would amount to murder. First criteria is there must be intention to cause death. Second criteria is when there is an intention to causing such bodily injuries as the appellant knows to be likely to cause death of the person, third, when the offender has intention of causing bodily injury to any person and such injury intended to be inflicted is sufficient in the ordinary course of nature to cause death and the last criteria is that the offender knows that his act is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death without any justification.

In the present case, it is not the case of prosecution that the appellant intended to cause the death of the deceased. He merely asked for money to purchase liquor. On refusal first he abused then he inflicted knife injuries.

Dr. C.K. Gupta, P.W. 4, merely opined that the death of Hari Kishan injured was ''possible'' due to injuries sustained by him. Dr. M. Lal, who conducted the postmortem is conspicuously silent on this point, rather he opined that death occurred due to Septicemia & Toxemia.

In the teeth of this medical evidence, it is evident that the prosecution has not adduced any evidence regarding intention to commit murder and in the opinion of the doctors the injuries inflicted by the appellant were of serious nature but in their opinion death was by default. They were not so imminently dangerous that it must, in all probability cause death. Thus, we hold that as per clause-4 to Section 300 I.P.C. the appellant cannot be saddled with the charge of voluntarily causing culpable homicide amounting to murder of the deceased.

Though this point was raised before the learned trial court, who has rejected this argument for the reason that the accused must have been aware of the fact that where he was inflicting injuries, the death of the injured was possible. Perhaps clause-4 to Section 300 I.P.C. has escaped the attention of the learned trial Judge, which resulted in rejection of the argument advanced on behalf of the accused-appellant.

In view of above, we are of the opinion that the impugned judgment and order to the extent of convicting and sentencing the present appellant under Section 302 I.P.C. are not sustainable.

For the reasons noted above, we hold the appellant guilty of committing culpable homicide not amounting to murder of deceased Hari Kishan punishable under Section 304-I I.P.C. The appellant is in jail for last more than thirteen years. In the facts and circumstances of the case, the sentence of imprisonment already undergone would serve the ends of justice. Therefore the Criminal Appeal is partly allowed. The impugned judgment and order are modified to the extent that the conviction and sentence of appellant under Section 302 I.P.C. are set aside and he is now convicted under Section 304-I I.P.C. and is sentenced to imprisonment with the period already undergone by him. In case, appellant is not wanted in any other case, he be released subject to his filing of personal bonds and two sureties in the like amount to the satisfaction of the Sessions Judge, Hardoi in compliance of Section 437-A Cr.P.C.

Office is directed to certify this order to the court concerned forthwith to ensure compliance and also to send back the lower court record.