Soni @ Ashwani vs State of U.P.

K.S. Rakhra, J.—This is an appeal against the judgment and order dated 16121999 passed by VII Additional Sessions Judge, Kanpur Nagar whereby the appellant Soni alias Ashwani son of Bachchoo Lal resident of Mohalla Gwal Toli District Kanpur Nagar has been held guilty and convicted under Section 302 IPC. He has been sentenced to life imprisonment and a fine of Rs. 10,000/. The impugned judgment has been rendered in Sessions Trial No. 1671 of 1998, State v. Soni, arising out of crime No. 282 of 1998 of police station Gwal Toli District Kanpur Nagar.

The charge against the appellant was that on 691998 at about 3.40 p.m. he attacked Manoj Sharma alias Roop Kumar with a RAPI (a sharp edged long instrument used by cobbler for cutting leather). On account of the injuries caused by the appellant the victim died before he could be given any medical aid in the hospital.

The F.I.R. in this incident was lodged by Sanjay Sharma who is brother of the deceased and was accompanying him at the relevant time. Lodging the report on the same day at 6.30 hours Sanjay Sharma mentioned that the deceased was going with him to the market. At about 3.30 p.m. when the two brothers reached in front of tobacco shop of Fatte Lala in Mohalla Gwal Toli they happened to meet the appellant. The deceased had lost his bicycle about one and, half months ago. He was suspecting that it has been stolen by the appellant.

The prosecution story is that some people had conveyed to the appellant that the deceased was suspecting him in connection with the theft of his bicycle. It was also conveyed to him that the deceased had lodged some F.I.R. against the appellant although in fact no F.I.R. had been lodged. In the F.I.R. Sanjay Sharma mentioned that on seeing the appellant in front of the shop of Fatte Lala the deceased remarked �Tumko meri hi bicycle churane ko mili thi� (you could get only my bicycle for stealing). This infuriated the appellant and led to altercation between him and the deceased. When altercation was going on, the appellant picked up a Rapi from the cobbler shop on the footpath. He gave Rapi blows on the chest and back of the head of the deceased.

The informant P.W.1 Sanjay Sharma raised alarm whereupon the accused ran away and also took RAPI alongwith him. He claims that this was witnessed by one Virendra Kumar. The informant with the help of Vijay Soni and Battar Singh rushed the victim to the Ursala hospital on rickshaw. The doctor on seeing the victim declared him dead. It is after this that the informant lodged a written report on the police station.

The police claims that the appellant was apprehended by P.W.5 Rakesh Kumar Sharma, S.H.O. Gwal Toli, P.W.2 S.K. Rathor, S.I., P.W.3 constable Nam Singh and others on 791998 at 17.35 hours at Macrobertganj which is close the place of occurrence. The prosecution further claims that on the disclosure made by the appellant, while in police custody, the police discovered on the pointing of the appellant, the instrument of assault i.e. RAPI buried under the Sahjan tree.

The accused pleaded not guilty to the charges and claimed that he has been implicated on account of enmity.

The prosecution examined P.W. 1 Sanjay Sharma the informant, P.W. 2 S.K. Rathor, S., P.W. 3 Nam Singh, P.W. 4 Dr. Jitendra Agarwal, P.W. 5 Rakesh Kumar Sharma, S.H.O., P.W. 6 Premanand Sharma, Head Moharrir and P.W. 7 constable Kali Charan. No oral evidence has been led in defence. The prosecution has filed documentary evidence.

The trial Court after examining and appreciating the evidence carefully came to the conclusion that the prosecution story with regard to date, time and place of occurrence, manner of assault and the role of the appellant was fully reliable. On the basis of this conclusion the trial Court recorded conviction under Section 302 IPC.

Sri O.P. Singh, learned Counsel for the appellant after taking us through the evidence on record submitted that though the prosecution story was reliable but he case would not fall under Section 302 IPC but may fall under Section 304 Part II IPC. Learned AGA on the other hand contended that the prosecution evidence was fully reliable.

After carefully going through the evidence on record in the light of submissions made by two sides, we find that the prosecution evidence on record with regard to the date, time and place of occurrence, the manner of assault and the role attributed to the appellant is fully reliable. The prosecution has successfully established its case by cogent evidence. There is statement of P.W. 1 Sanjay Sharma who is eyewitness of the occurrence. There is no previous enmity between the accused and the complainant and therefore, there was no basis for false implication. Sanjay Sharma has stated that although he is a teacher and is also employed in Godrej company but on the fateful day it was Sunday and therefore, he had holiday and that is why he was going with his brother at 3.30 p.m. The statement of Sanjay Sharma that the appellant attacked victim with Rapi is corroborated by medical evidence. Dr. Jitendra Agarwal, P.W. 4 who conducted the autopsy on the deadbody found the following antemortem injuries :

(1) Incised wound 6 cm x 2.5 cm, chest cavity deep, margins were regular and clean cut tailing downward, extending from (Right) margins of sternum 4 cm below in sternal Notch going downward and left to left margin of sternum.

(2) Incised wound, 3 cm x 1 cm, chest cavity deep piercing bone scapula left, 3 cm. Below the tip of shoulder left, tailing upward, regular clean cut margin over scapular region (Left).

(3) Incised wound 4 cm x 1.5 cm regular margin, muscle deep left side of flank, tailing upward on back 17 cm below the interior angle off scapula left.

(4) Incised wound 3 cm x 1 cm, regular margin over the top of head 14 cm above the Bridge of nose and the underneath bone is cut.

He has also clearly stated that the injuries found on the person of the deceased could have been caused on 691998 at 3.40 p.m. and that the death of the deceased must have occurred about three quarter of the day prior to the postmortem examination which was conducted on 791998 at 11.30 p.m. The doctor has further reported that antemortem injuries could have been caused by Rapi which is instrument used by cobbler. P.W.5 Rakesh Kumar Sharma who is also Investigating Officer and had recovered Rapi on the pointing of the accused has proved the recovery memo in which it is mentioned that RAPI had a sharp blade of two fingers width, while its length was nine fingers.

We have seen the antemortem injuries and are of the view that antemortem injuries suffered by the victim could have been caused by the RAPI in question.

There was no undue delay in lodging of the F.I.R. P.W.1 Sanjay Sharma showed natural conduct and tried to get medical aid for the victim at the earliest and rushed him to the hospital where he was declared dead and therefore, he returned home, got written report prepared and gave it to the police station. There is nothing on record to show that there was any delay in lodging of the F.I.R. The Investigating Officer Rakesh Kumar Sharma, P.W.5 had visited the place of occurrence and he found bloodstained earth and collected the sample of surface of road. In view of the above facts and the circumstances we have no doubt in our mind that the appellant had committed this offence by inflicting RAPI blows to the deceased.

Having held appellant guilty of the crime now we turn towards the offence which has been committed by the appellant. Trial Judge has held him guilty of culpable homicide amounting to murder under Section 302 I PC and has convicted him with lesser of the two sentences for life imprisonment under Section 302 IPC. However after going through the evidences on record and cogitating over the facts of the case we find ourselves in disagreement with the said conviction and sentence recorded by the trial Court for the reasons sketched below.

According to the prosecution version itself the cycle of deceased was stolen for which he had suspected appellant to be the culprit thief. Appellant was informed that a F.I.R. has also been lodged against him by the deceased which fact even though was not true but must have imbibed appellant with a feeling of insult. On the day of the incident deceased met with the appellant all of a sudden at a public place in public gaze and accosted him of being a thief of his cycle. This was affronting the appellant with temerity who must have felt immensely insulted and humiliated in public view. Adding insult to injury was engagement of the deceased with the appellant in tiradic onslaught over the said aspect of the matter. To us, the act of the deceased was an actionable wrong and was a crime and certainly was not a damnum. In such circumstances if the appellant outraged by the insult implanted on him, in public view, picked up Rapi, assaulted the deceased and committed culpable homicide, his act will fall within the purview of 1st exception to Section 300 IPC and no further and to us, will be outside the scope of all the four clauses of that section for making out offence of murder. Appellant certainly committed homicide but out of grave and sudden provocation which was not engineered by him. Firstly he was dubbed as thief and then was dragged in scandalous altercation and then the assault was made by the appellant after packing up Rapi from a near buy cobbler shop as he was bare handed in the beginning of the incident all these proven circumstances of the prosecution version unerringly points out that the attack was made by the appellant in a sudden impulse deprived of self control for the ignominy spated on him. Thus the offence with which the appellant can be held to be guilty can only be culpable homicide not amounting to murder punishable under Section 304 IPC and not under Section 302 IPC for murder. It is not a case of premeditated calculated attack with intention to commit murder. To make our view clear we refer relevant portion of statute (IPC) below:

�300. Murder. Except in the cases hereinafter excepted, culpable homicide is murder if the act by which the death is caused is done with the intention of causing death, or

Secondly, If it is done with the intention of causing such bodily injury as the offender known to be likely to cause death of the person to whom the harm is caused, or

Thirdly, If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or

Fourthly, If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

Exception1. When culpable homicide is not murderCulpable homicide is not murder if the offender, whilst deprived of the power of self control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.�

The above exception is subject to the following provisos:

�First. That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly. That the provocation is not given by any thing done in obedience to fie law, or by a public servant in the lawful exercise of the powers of such public servant.

Thirdly.That the provocation is not given by anything done in the lawful exercise of the right of private defence.

Explanation.Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

Punishment for culpable homicide not amounting to murder.Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.�

Attour, there is yet another surreal glaring feature of the case and that is that appellant made no attempt to assault first informant when tried to intervene to save the deceased with Rapi but gave him fist blows. Had the intention of the appellant would have been to commit murder he would certainly have assaulted the informant also with Rapi. To us this conduct of the appellant indicate that he only wanted to cause grievous injury to the deceased for his insulting act but in that process he over stepped his action and caused injuries to the deceased which was likely to cause death and hence we find that the conviction of the appellant under Section 302 IPC recorded by the trial Court cannot be sustained and instead the appellant has to be held guilty for culpable homicide not amounting to murder punishable under Section 304 Part I IPC. Looking to the nature of injuries caused to the deceased we reject the argument of Sri O.P. Singh, learned Counsel for the appellant, for holding appellant guilty under Part II of Section 304 IPC.

In the case of Shital Singh v. State of Punjab reported in AIR 1983 SC 652, there was no premeditation and therefore, the conviction of accused under Section 302 IPC was altered to Part I of Section 304 IPC.

In the case of Madkami Laka v. State of Orissa reported in 1995 Criminal Law Journal 1484, the conviction under Section 302 IPC was altered to Part I of Section 304 IPC on the ground that accused being infuriated by abuses hurled by his mother, gave single blow on the head of his mother by Tangia but not from sharp side, resulting into death, it was found that he was guilty of culpable homicide not amounting to murder.

In view of facts and circumstances of the case we are of the definite view that conviction of the appellant ought to have been under Section 304 Part I of the IPC. We, therefore, partly allow the appeal. The conviction of the appellant under Section 302 IPC and sentence passed thereon are set aside and he is convicted under Section 304 Part I of the IPC and sentenced to ten years rigorous imprisonment and a fine of Rs. 5,000/ in default of payment of which he shall undergo further rigorous imprisonment for one year.