Shrawan Kumar vs State of U.P.

Pratyush Kumar, J.—1. The instant appeal filed on behalf of the accused-appellant, is directed against the judgment and order dated 29.06.2013 in Gangster Case No. 306 of 2008 [State v. Shrawan Kumar and three others] passed by Additional District & Sessions Judge/Special Judge (Gangster Act), Gonda, whereby he convicted the present appellant under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay fine of Rs. 25,000/-, failing which to further undergo one year simple imprisonment. However, the accused-appellant was acquitted from the charge framed under Section 3(1) of the U.P. Gangster & Anti Social Activities (Prevention) Act. Three other co-accused of the present case were acquitted from all the charges framed against them.

The facts of the prosecution case in brief are as under:

"That on 10.07.2003 at 12.30 PM, Ram Nath handed over a written report at P.S. Kotwali Nagar, District Gonda, mentioning therein that on that day he along with his son Prem Nath came to the Court of Tehsildar (Judicial), Gonda in connection with case of inheritance, wherein Shanti Devi was other party. At about 12.30 PM when he along with his son came in the Varandah of the Court room his son was caught hold by Shrawan Kumar (present appellant), Vinod Kumar, Bhanu Pratap and Rajjan and in order to murder him Shrawan Kumar (present appellant) fired his country made pistol on him, the shot struck his son above right side of back. Hearing the sound of fire many persons gathered there and appellant and other co-accused persons brandishing country made pistol and threatening the persons present there made good their escape. He took his injured son to the Government Hospital for treatment and hospitalized him, in the last he prayed that the suitable action be taken on his report."

On this chik FIR was scribed, case crime No. 230 of 2003, under Section 307 IPC was registered at the police station and investigation was entrusted to Sub Inspector Sri K.D. Singh.

On 14.07.2003 at 12.15 PM at Medical College, Lucknow the injured succumbed to his injuries and died. The then Station House Officer, Kotwali Nagar took over the investigation and on 15.07.2003 at 8.40 PM proceeded from the police station along with a police party to investigate the matter and finding out whereabouts of the accused persons. Accused Rajjan was arrested and he confessed his guilt and disclosed that the weapon of murder, country made pistol was hidden in the house of his friend Arvind Kumar Shukla, which was recovered on is pointing out. A separate case crime No. 236 of 2003, under Section 3/25 Arms Act was registered and investigated. After death of injured Prem Nath Section 302 IPC and Section 3(1) of the U.P. Gangster & Anti Social Activities (Prevention) Act was added in the former case crime number and charge-sheet was submitted accordingly.

All the accused persons stood trial before the Court of Special Judge where they were charged to which they denied and claimed to be tried.

On behalf of the prosecution besides documentary evidence, in oral evidence fifteen witnesses were examined. Out of which Ram Nath P.W.1 is the first informant and eye witness of the occurrence, Shiv Prasad P.W.2, Deo Raj Shukla P.W.3, Rakesh Kumar P.W. 4., Dr. P.K. Srivastava (Radiologist) P.W. 5, Ram Bhawan Singh (Tehsildar)P.W. 6, Dr. Alok Kumar Agrawal P.W.7, Ramesh Pratap (Investigating Officer) P.W.8, Sub Inspector K.D. Singh P.W.9, Head Constable Ramakant P.W.10, Sub Inspector Avinash Chandra Thakur P.W.11, Sub Inspector Suresh Dutta Mishra P.W.12, Head Constable Hari Prasad Shukla P.W.13, Awadhesh Narayan Singh P.W.14 and Shailendra Kumar Mishra, Sub Divisional Magistrate P.W.15 are the other witnesses.

After close of prosecution evidence, statements of the accused were recorded under Section 313 Cr.P.C. wherein they denied the prosecution version and facts stated by the witnesses. According to them, they have been falsely implicated and manufactured evidence was procured to strengthen the prosecution case.

In the defence one Sri Vivek Mishra, D.W.1 was examined.

The learned Special Judge (Gangster Act) after hearing the arguments of the parties, convicted the present appellant under Section 302 IPC and sentenced him as above. Other co-accused were acquitted from all the charges and the present appellant was also acquitted under Section 3(1) of the U.P. Gangster & Anti Social Activities (Prevention) Act.

Feeling aggrieved the present appeal has been preferred by the present appellant.

We have heard Sri R.P. Mishra, learned counsel for the surviving appellants and Sri Uttam Kumar Gaur, learned Additional Government Advocate for the State, Sri Satish Chandra Kashish, leaned counsel appearing for the complainant and pursed the record.

At the very outset learned counsel for the appellant has stated that he is not disputing the correctness of the findings recorded by the learned Special Judge except that from the facts proved by the prosecution evidence, the offence proved against the present appellant falls in the category of culpable homicide not amounting to murder punishable under Section 304-I IPC and not amounting to murder punishable under Section 302 IPC. Thereafter, he has submitted that the facts emerging from the prosecution case reveal that only one shot was fired and the occurrence took place on the spur of moment without any premeditation.

On behalf of the State-respondents these arguments have been replied and it has been argued that the shot was fired, without premeditation, by the appellant, therefore, the learned Special Judge has rightly convicted the present appellant under Section 302 IPC.

Here we would like to refresh our memory by recalling the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni v. State of Gujarat [, 1995 Supreme Court Cases (Crl) 222]. 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, Appellant v. State of West Bengal, Respondent [, 1995 CRI.L.J.2659 (Supreme Court), 2659], 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."

As an appellate Court this Court not only has jurisdiction but also duty to see that from the evidence led by the prosecution the appellant has been correctly convicted and sentenced for the crime proved against him.

Though in the present case homicidal death by firearm injury is not in dispute. Even then we have perused the evidence of Dr. Alok Kumar Agarwal, who medically examined the injured Prem Nath and proved injury report Ext. Ka-4, statement of Dr. P.K. Srivastava, Radiologist, Gonda, who x-rayed and found radio opaque shadow in the right side of the abdominal region of the injured. He proved x-ray report Ext. Ka-3, x-ray plate Ext. Ka-13. Awadhesh Narayan Singh P.W.14 by way of secondary evidence has proved postmortem report Ext. Ka-18 and deposed that Dr. R.K. Nayyar on 14.07.2003 at 3.00 PM at Mortuary Lucknow conducted the postmortem examination of the dead body of the deceased Prem Nath. Ext. Ka-18 is the postmortem report wherein five wounds have been recorded on the dead body of deceased Prem Nath. I, II, III and IV wound appear to have been caused by surgical operations. Only injury No. 5 is firearm wound of entry 1 cm x 1 cm x abdominal cavity deep. In the postmortem report time of death has been mentioned at 2.15 PM on that day and cause of death has been opined to be septicemia as a result of anti mortem injuries.

Now we have to address the arguments advanced on behalf of the appellant on two points:

"(a) Whether from the ocular version of the testimony, it was the case of murder or culpable homicide not amounting to murder?

(b) Whether considering the cause of death, charge framed under Section 302 IPC could have been established or not?"

Perusal of the FIR Ext. Ka-1 reveals that only one shot was fired that too on right side of the back. Though intention has been alleged to cause the murder but necessary facts in this regard have not been mentioned in the FIR. Ram Nath P.W.1 corroborated the version contained in the FIR and added that the deceased was fired at very close range but he is conspicuously silent about any exhortation or preparation to commit murder of Prem Nath.

Shiv Prasad P.W.2 other eye witness of the occurrence has been declared hostile.

Sri Ram Bhuwan Singh P.W.6, Tehsildar (Judicial) before whose court occurrence took place did not see the occurrence and he was only informed that he has been shot.

The most important piece of evidence is dying declaration of the deceased Ext. Ka-19. This dying declaration has been proved by the Magistrate Sri Shailendra Kumar Mishra P.W.15, who at the relevant time was posted as Tehsildar, Gonda, had recorded it. In the dying declaration the deceased had stated that when he was coming from the chamber of his advocate the appellant fired on his back side from his country made pistol.

Here we will examine the oral evidence along with medical evidence. In the oral evidence there is no evidence regarding exhortation or preparation to commit murder. From the seat of injury as revealed by the medical evidence, we gather that shot was fired on the back side and the same cannot be said to on vital part of the body. In the injury report the Doctor, who medically examined the injured at District Hospital, Gonda, i.e. Dr. Alok Kumar Agarwal P.W.7 has stated that he found one gun shot wound 1 cm x 1 cm x abdominal cavity deep (sic) as part lateral aspect of rt. side abdomen 18 cm above rt. iliac crest. Margins inverted, irregular. He does not say that injury was dangerous to life. Subsequent development also reveals that the injury in itself was not vital and death has resulted on account of septicemia developed after surgical operations.

Thus, on the basis of oral evidence as well as medical evidence, we find that the shot fired by the appellant was neither intended to commit the murder of Prem Nath nor the appellant had fired the shot with the knowledge that the shot is so eminently dangerous that it must in all probability cause death or such bodily injury is likely to cause death.

On behalf of the appellant on this point the following cases has been cited.

"1. Jabar Singh v. State of M.P. , 2011 (72) ACC 693. Reliance has been placed on para 4 of the report.

Maniben v. State of Gujarat [, 2009(8) Supreme Court Cases 796]. On behalf of the appellant reliance has been placed on para-20 of the report.

Tukaram and others v. State of Maharashtra [, 2011 (73) ACC 282]. Reliance has been placed on para-3 of the report."

In the case of Jabar Singh (Supra) appellant was convicted under Section 302 IPC. The Hon''ble Apex Court after considering the facts of the case has found that from those facts case of murder was not made out and the injured had died 14 days thereafter. The observation of the Hon''ble Apex Court made in para-4 of the report on the basis of the similarity of facts provides sufficient guidance to us. Before taking guidance from that observation the relevant observation of para-4 of the report is quoted as under:

"4. Mr. Lakhan Singh Chauhan, the learned counsel for the appellant, has however argued that in the light of the medical evidence it was apparent that a case of murder was not spelt out. He has highlighted that the incident had happened on 13th November, 1984 and the injured Sarnam Singh had died after 14 days thereafter and it was clear from the medical evidence of Dr. Bansal (P.W.4) and Dr. Upadhayay (P.W.14) that the gun shot injuries were not the immediate cause of his death and he had died due to peritonitis which could not be attributed to the gun shot injury as it had set in on account of improper care and handling by the attendants and the hospital staff. Dr. Bansal who examined Sarnam Singh on 14th November, 1984, specifically stated that the injury suffered by Sarnam Singh was not fatal to life. Dr. Upadhayay was equally categoric when he said that he death would ordinarily not have been caused as the deceased had died due to lack of care by the attendants of the deceased and as he had not been properly treated in the hospital. He also admitted that in the postmortem report he had nowhere observed that the gun shot injuries suffered by the deceased would have caused his death in the normal course of nature. In this view of the matter we are of the opinion that a case under section 302 cannot be spelt out against the appellant and he would at the most be liable for conviction under section 326 of the I.P.C. We accordingly modify his conviction from section 302 of the I.P.C. to one under section 326 of the I.P.C. and impose a sentence of R.I. of five years and a fine of Rs. 5,000/- and in default of payment of fine, to six months R.I."

In the case referred on behalf of the appellant conviction of the appellant under Section 302 IPC was altered to conviction under Section 326 IPC. Here we would like to indicate few distinguishing features in reference to nature of crime committed in the present matter. In the case referred to above there was interval of 14 days between the time when injury was inflicted and death had occurred but in the present case interval is of only 4 days. In that case gun shot was not fired from close range. In the present case it was fired from close range that makes the motive behind the shot more clear, therefore, we think that when injury inflicted was not proximate cause of the death, the offence would not amount to murder but it would amount to, depending on the facts of each case, culpable homicide not amounting to murder punishable under Section 304-I IPC or 304-II IPC or 326 IPC. In the present case after giving our anxious consideration we find clause-(iii) of Section 299 squarely covers the offence committed by the present appellant. Therefore, he is held guilty of committing culpable homicide not amounting to murder in place of committing murder of deceased Prem Nath and as such, his conviction and sentence requires to be altered and to this extent appeal succeeds.

For the reasons noted above, we hold the appellant guilty of committing culpable homicide not amounting to murder of deceased Prem Nath punishable under section 304-I IPC. The appellant is in jail for last more than 12 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 altered to section 304-I IPC and sentence 12 years imprisonment. The imprisonment already undergone by him would be adjusted in the sentence awarded by us in accordance with Section 428 Cr.P.C.

Office is directed to communicate this order to the court concerned forthwith to ensure compliance and further sent back the lower court record.