Ram Autar vs The State of U.P.

Pratyush Kumar, J.—The instant Criminal Appeal, filed by the accused-appellant, is directed against the judgment and order dated 17.03.2005 passed by Sri Ram Krishna Shukla, the then Additional District and Sessions Judge, Hardoi in Sessions Trial No. 257 of 2003 [State v. Ram Autar] arising out of Case Crime No. 70 of 2003, under section 302 IPC, P.S. Behta Gokul, District Hardoi convicting the appellant under section 302 IPC and sentencing him to under go life imprisonment and fine of Rs. 2000/- and in default of payment of fine six months additional imprisonment.

Prosecution version, in the present appeal may be summarized as under:--

"That on 18.03.2003 at 2.40 P.M. Pappu @ Prabhu Dayal handed over his written report addressed to P.S. Behta Gokul mentioning therein that he had some altercation with Ram Autar on account of egress of water by his Nali. Though the matter was amicably settled but Ram Autar bore enmity with him and that they at 1.45 P.M. along with other persons of the village were returning after keeping Akshat on the Holi occasion, Ram Autar, who was armed with double barrel gun was coming back after keeping Askshat and was walking ahead, when he reached at the door of the house of first informant, he abused Arvind @ Bhalu brother of the first informant, who sat on the Chabutara of the Chhappar and shot him twice by his gun, his brother had fallen down, Ram Autar was chased by them, who ran away after throwing his gun, his brother had died."

On this written report chik FIR was scribed and case Crime No. 70 of 2003 under Section 302 , 504 I.P.C. Was registered and entered into G.D. of the police station. Postmortem examination of the dead body of the deceased was conducted. After completion of the investigation charge-sheet was submitted against the present appellant. By the court of Session the present appellant was charged under Section 302 I.P.C., which he denied and claimed to be tried.

On behalf of prosecution besides documentary evidence, five witnesses were examined. Thereafter statement of the accused appellant was recorded under Section 313 Cr.P.C. In the defence one defence witness Dr. R.C. Agrawal was examined and documentary evidence in the form of x-ray report, medical examination report and certified copies of the complaint and the statement recorded under section 200 Cr.P.C. were filed.

Learned trial Judge after conclusion of the trial had convicted the present appellant under Section 302 I.P.C. and sentenced him for life imprisonment.

Aggrieved with the impugned judgment and order the present appeal has been filed.

We have heard Ms. Sonia Misra, learned counsel for the appellant and Ms. Madhulika Yadav, learned Additional Government Advocate for the State and perused the record.

Before we propose to deal with the arguments submitted by the respective parties, we would like to recollect the manner in which appeal against conviction is required to be considered by this Court and scope of jurisdiction conferred on the Court by Sections 374 and 386 Cr.P.C. Further we would like to refresh the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni Vs. State of Gujarat, . Para-4 of the judgment reads as under:

"4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained."

In the case of Lal Mandi Vs. State of West Bengal, , the Apex Court in para-5 of the report has given the caution to the High Court reminding its duty in the matter of hearing of appeal against conviction. It would be gainful to reproduce the observation made in para-5 of the report, extracted below:

"5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh''s case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence."

On behalf of the appellant, learned counsel for the appellant has submitted that the impugned judgment and order suffers factual and legal infirmities. According to him only one gun shot injury was sustained by the deceased as per evidence of the doctor. Ocular version stands contradicted by the medical evidence. The learned trial Judge has erred in ignoring the defence version. Even if, the prosecution version is taken to be true the offence proved against the present appellant does not amount to murder but only culpable homicide not amounting to murder.

On behalf of the State learned Additional Government Advocate has submitted that the prosecution has successfully proved its case against the present appellant. In this case two gun shots were fired which show that the intention of the present appellant was to murder the deceased, hence the learned trial Judge has rightly held it to be a case of murder.

On behalf of the defence during trial homicidal death of Arvind @ Bhalu was not disputed. Even during cross-examination Dr. C.P. Rawat, Senior Medical Officer, District Hospital, Hardoi P.W.3, no serious challenge on the point of homicidal death of the deceased was made by the defence. The only point on which the Doctor was questioned about the number of gun shot sustained by the deceased causing two ante mortem injuries.

Postmortem report Exhibit Ka-2, proved by Dr. C.P. Rawat P.W.3, reveals that he recorded the following ante mortem injuries on the dead body of the deceased:

"1. Fire arm wound of entry 2.5 cm x 2 cm x chest cavity deep put on Rt. Side chest 6 cm below from Rt nipple at 5 O'' clock position. Margins are lacerated inverted. Blackening, Tattooing present around the wound. Direction front to back.

Fire are wound 15 cm x 10 cm x bone deep present on Rt. Anterior aspect of forearm standing from medial side of elbow joint to post aspect of middle of forearm (entry side). Margins are irregular inverted. Lacerated on Rt. Posterior aspect of forearm blackening around. Margins (exit side) are everted and regular on medial side of elbow joint."

Thus, homicidal death of the deceased on the stated date and time stands proved.

Now we would like to take into account eye witness account of the prosecution witnesses. It consists of testimonies of Pappu @ Prabhu Dayal P.W.1, first informant and brother of the deceased, Santosh P.W.2 an eye witness. Pappu @ Prabhu Dayal has given his reason to be present on the spot. During cross-examination this fact remains undemolished. Enmity is admitted. Relation between the witnesses and the deceased is admitted. However, only on this ground his testimony cannot be rejected. During cross-examination he gave satisfactory answer to the questions put to him. Therefore, we find him to be a natural and probable witness.

Santosh P.W.2 has also substantiated the prosecution version, his name finds place in the FIR, he has also disclosed reason to be present on the spot. During cross-examination nothing adverse has come out to make his testimony doubtful, therefore, we find that both the eye witnesses are natural and probable witnesses. They are worthy of reliance to the extent what facts they deposed.

The arguments has been advanced on behalf of the appellant that on the strength of testimony of Dr. C.P. Rawat P.W. 3 both the ante mortem injuries could have been caused by a single shot. We find that during cross-examination, doctor has categorically stated that it is not a case of single fire, thus, there is no contradiction between the ocular testimonies of witnesses and the medical evidence. Ocular version of the eye witnesses is substantiated by the prosecution. Relying upon them, we hold that on the stated date and time the appellant had done to death the deceased Arvind @ Bhalu by firing two shots from his gun.

Now the only question remains whether the crime committed by the present appellant would fall within the definition of murder punishable under section 302 IPC or it would amount culpable homicide not amounting to murder punishable under section 304-I IPC.

On this point learned counsel for the appellant has referred to following cases to substantiate his argument.

"1. Rampal Singh Vs. State of U.P., . Paras-24 to 30 have been referred and relied upon. In para 29 of the report the Division Bench of this Court has referred the case of Vineet Kumar Chauhan Vs. State of U.P., , in that case Hon''ble Apex Court prescribed the mode to decide whether culpable homicide would amount to murder or would not so amount and after considering the facts of the case held it to be a case of culpable homicide not amounting to murder though the accused fired indiscriminately on account of hostile attitude of the family of the deceased and sudden quarrel taken place between the appellant and the son of the deceased."

In the case of Murlidhar Shivram Patekar Vs. State of Maharashtra, , learned counsel for the appellant placed reliance on para-19 of the report which is quoted as below:

"19. The question however still remains as to the nature of the offence committed by the accused and whether it falls under Exception 4 of Section 300 , IPC.

In the case of Surinder Kumar (supra), this Court has held as under:--

"7. To invoke this Exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) The assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this Exception provided he has not acted cruelly."

Further in the case of Arumugam v. State, in support of the proposition of law that under what circumstances Exception 4 to Section 300 , IPC can be invoked if death is caused, it has been explained as under:--

"18. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender''s having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the ''fight'' occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression ''undue advantage'' as used in the provision means ''unfair advantage''."

Further in the case of Satish Narayan Sawant v. State of Goa, this Court has held as under:

" 24. .......Section 304 IPC further provides for the Exceptions which will constitute culpable homicide not amounting to murder and punishable under Section 304 . When and if there is intent and knowledge then the same would be a case of Section 304 Part I 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.

.........Records clearly establish that there was indeed a scuffle between the parties with regard to the availability of electricity in a particular room and during the course of scuffle the appellant also received an injury which was simple in nature and that there was heated exchange of words and scuffle between the parties before the actual incident of stabbing took place. There is, therefore, provocation and the incident happened at the spur of the moment. That being the factual position, we are of the considered view that the present case cannot be said to be a case under Section 304 IPC but it is a case falling under Section 304 Part II IPC. It is trite law that Section 304 Part II comes into play when the death is caused by doing an act with knowledge that it is likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as is likely to cause death."

Thus, if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not intention to cause murder and bodily injury then the same would fall under Section 304 Part II. We are inclined to the view that in the facts and circumstances of the present case, it cannot be said that the appellants/accused had any intention of causing the death of the deceased when they committed the act in question. The incident took place out of grave and sudden provocation and hence the accused are entitled to the benefit of Section 300 Exception 4 of IPC.

Thus, in entirety, considering the factual scenario of the case on hand, the legal evidence on record and in the background of legal principles laid down by this Court in the cases referred to supra, the inevitable conclusion is that the act of the accused-appellants was not a cruel act and the accused did not take undue advantage of the deceased. The scuffle took place in the heat of passion and all the requirements under Section 300 Exception 4, IPC have been satisfied. Therefore, the benefit of Exception 4 under Section 300 , IPC is attracted to the fact situations and both the appellants are equally entitled to this benefit."

In the case of Vijay NarayanMishra v. State of U.P. [2014(1) JIC 345 (Alld)] on the point that when the injuries of the accused side could not be explained by the prosecution even if plea of self defence has not been specifically taken but if a case of its exercise is made out, the accused would be entitled to be benefited on this point.

Before answering the question formulated by us, we would like to briefly deal with the defence evidence. Dr. V.B. Tripathi D.W.2 had medically examined Smt. Bitoli wife of the present appellant and Rajiv son of the appellant on 24.03.2003 at 1.30 and 1.45 P.M. Respectively. He found four injuries caused by blunt object on the person of Smt. Bitoli and three injuries caused by blunt object on the person of Rajiv. Injuries of Rajiv were simple. One injury of Smt. Bitoli sustained on 3rd Metacarpus bone of left hand was found to be grievous. In the opinion of the Doctor duration of these injuries were old.

The defence case is that appellant was dragged, by Arvind @ Bhalu with the help of one other person. Deceased was armed with country made pistol, inside the house of the first informant, hearing the scuffle Smt. Bitoli came to rescue the present appellant her husband and sustained injuries. Rajiv was accompanied by his father and he also sustained injuries. During the scuffle deceased accidentally sustained one firearm wound from country made pistol. The appellant was dragged from his house and on the basis of concocted facts prosecution case was fabricated.

To substantiate this defence version only certified copies of the complaint filed by Smt. Bitoli and her statement recorded under section 200 Cr.P.C. were filed, neither the appellant has himself examined nor Smt. Bitoli was examined to substantiate the defence version.

Factual aspect could only be substantiated by substantive piece of evidence, in absence thereof documentary evidence would not be admissible and without factual version medical evidence adduced in the defence would have no bearing on the point of private defence.

However, recovery of the gun from the spot is a fact which to some extent supports the defence version that during altercation some scuffle took place, which culminated in depriving the possession of the gun by the appellant. Had prosecution story in this regard been taken to be true that there was no scuffle and it was only an altercation, the appellant would never have left his gun on the scene of occurrence. Taking into account all the peculiar facts of this case, we come to the opinion that the appellant though bearing gun had no intention of murdering the deceased, he had merely a gun by way of precaution and coming home. Gun was taken by him on account of incident took place on the occasion of keeping of Akshat in the previous year. Firing by the present appellant is prompted by the altercation with the deceased with whom Ram Autar had constrained relations. Thus, we find there was no intention to commit murder.

In view of the observations made by the Apex Court in the Murlidhar Shivram Patekar (supra), the crime committed by the present appellant would fall with the category of homicidal death not amounting to murder punishable under section 304-I IPC.

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 IPC are not sustainable.

For the reasons noted above, we hold the appellant guilty of committing culpable homicide not amounting to murder of deceased Arvind @ Bhalu punishable under section 304-I IPC. The appellant is in jail for last more than nine 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 IPC are set aside and he is now convicted under section 304-I IPC and is sentenced to imprisonment 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 copy of this order to the court concerned forthwith and send back the lower court record.