HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Reserved AFR Case :- CRIMINAL APPEAL No. - 182 of 1984 Appellant :- Nankau And Another Respondent :- State Of U.P. Counsel for Appellant :- Subodh Kumar Shukla,A.S. Chaudhary,Subodh Kumar Shukla Counsel for Respondent :- Govt. Advocate Hon'ble Ritu Raj Awasthi,J.
Hon'ble Mahendra Dayal,J.
(Delivered by Hon Mahendra Dayal, J) The appellants have been convicted by the Sessions Judge Bahraich in Session Trial No.196 of 1983 arising out of Crime No.130 of 1983 relating to police station Payagpur, District Bahraich. The appellant no.1 Nankau was convicted under Section 302 IPC and was sentenced to undergo life imprisonment while the appellant no.2 Ram Charan was convicted under Section 302 read with Section 109 IPC and was also sentenced to undergo life imprisonment.
The appellant Nankau died during the pendency of this appeal and therefore the appeal stood abated against him.
We have heard Sri Subodh Kumar Shukla learned counsel appearing for the appellant no.2 and Sri Umesh Verma learned Additional Govt. Advocate and also perused the record.
The prosecution case in short is that about 15 days prior to the occurrence, the nephew of the informant, namely, Shyam Sundar son of Sumai was assaulted by appellant Ram Charan. On 21.05.1983 at about 10.00 a.m. when Shyam Sundar was going to Bahraich and reached near the tube well of Om Prakash, the appellants met him and both of them again assaulted him with Jhakhar. Shyam Sundar then straight away went to his father and complained about the physical assault by the appellants. When the father of Shaym Sundar, namely, Sumai was going to the house of Ram Charan, the accused-appellants met him and thereupon Sumai made complaint to them as to why they assaulted his son Shyam Sundar. Both the appellants then started abusing Sumai. When Shyam Sundar stopped them from doing so, the appellant no.2 Ram Charan exhorted the appellant no.1 Nankau and thereupon the appellant no.1 gave blow with the reverse side of Kudal. It is stated that Sumai fell down and became unconscious.
The report was lodged by the complainant Jhingai, brother of the deceased on the same day at 11.45 a.m. The case was initially registered under Sections 308, 109, 504 IPC but when Sumai died, the case was converted into Sections 304 and 323 IPC.
The investigating officer on receiving the information about the death of the deceased, went to the hospital and prepared inquest. The body of the deceased was sent for postmortem. The investigating officer interrogated the complainant and other witnesses. He also visited the place of occurrence and prepared site-plan. He also took into possession the blood stained cloths of the deceased. The doctor who conducted the postmortem, found one lacerated wound 3.5 cm x 1 cm x bone deep in the middle of skull. Right parietal and temporal bones were fractured. In the opinion of the doctor, the deceased had died due to coma and injury to brain. The investigating officer after completion of investigation, submitted charge-sheet.
The learned trial court framed charge against the appellants under Section 302 read with Section 34 IPC. In the alternative charge under Section 304 read with Section 34 IPC was also framed. The accused-appellants denied the charge and claimed to be tried.
The prosecution in order to prove its case and the prosecution papers, examined 11 witnesses. Two prosecution witnesses, namely, Shyam Sundar and Jhingai supported the prosecution case while three other prosecution witnesses of fact, namely, Changur, Ram Lal and Udai Raj, turned hostile. The other witnesses examined by the prosecution are formal witnesses.
It has been argued by the learned counsel for the appellant that the main assailant who was convicted for the offence under Section 302 IPC, namely, Nankau has died during pendency of appeal. The appellant no.2 Ram Charan has been assigned the role of instigation and his conviction is under Section 302 IPC read with Section 109 IPC. The case of the prosecution is that because of the instigation by the appellant no.2, the appellant no.1 Nankau killed the deceased. Appellant no.2 Ram Charan was, therefore, guilty of abatement and was punished with the punishment provided for the offence of murder.
The submission of the learned counsel for the appellant no.2 is that the prosecution witnesses, namely, Shyam Sundar and Jhingai are highly interested witnesses and are not reliable. The independent witnesses examined by the prosecution have turned hostile and have not supported the prosecution case. The alleged place of occurrence as suggested by the prosecution is also doubtful for the reason that the investigating officer did not find any blood stain on the earth while making inspection. The learned counsel for the appellant has referred to the inquest report to show that the occurrence as alleged in the FIR took place on 21.05.1983 at 10.00 a.m. The FIR was lodged on the same day at 11.45 a.m. In the inquest report, the date of occurrence is mentioned as 22.05.1083 time 8.00 a.m. and the date of lodging FIR is also mentioned as 22.05.1983 time 9.00 a.m. This discrepancy in the FIR and the postmortem, creates doubt about the prosecution story and indicates that either the date mentioned in the FIR is wrong or the FIR was not in existence till the time the inquest report was prepared. According to the learned counsel for the appellant, if the FIR, which is the basis of the prosecution, becomes doubtful, the entire prosecution case falls on the ground and conviction of the appellants can be set aside on this ground alone.
It is next submitted by the learned counsel for the appellant that no independent witness has supported the prosecution case and the complainant has partially disowned the FIR. The learned counsel has referred to the statement of P.W.2 Jhingai who has stated during his cross-examination that when his brother Sumai fell down on the ground, he kept his head on his lap. When the witness was converted on this point as to how it was not mentioned in the FIR, he answered that although he told it to the scribe but he cannot say as to why this fact was not mentioned in the FIR.
The submission on behalf of the appellant is that when the prosecution felt that the investigating officer did not find any blood stained earth on the place of occurrence, a story was developed and the complainant was asked to make statement before the court that immediately after felling down of his brother Sumai, he kept his head on his lap and therefore no blood was shed on the ground. The alleged eye witness Shyam Sundar, who was allegedly present at the time of occurrence, has stated during his cross-examination that about 15 days prior to the occurrence, he had some scuffle with appellant Ram Charan. The scuffle took place because Shyam Sundar had gone to pick fallen mangoes and Ram Charan had asked him as to why he picked up mangoes from his grove. It was at that moment, that Ram Charan assaulted Shyam Sundar with Lagghi. Thereafter this witness Shyam Sundar came back to his home and complained to his father. After about 15 days of this occurrence when he was going Bahraich and reached near the tube well of Om Prakash, the appellant no.1 Nankau stopped him and gave two three blows on his back with Jhakar. He then instead of going to Bahraich came back to his home and again complained to his father. Thereafter he alongwith his father decided to visit the house of Nankau. When both of them were going to the house of Nankau, several persons present in front of the house of Dhodhe met them and they were also told that Nankau had assaulted Shyam Sundar with Jhakar. Thereafter as soon as the deceased and Shyam Sundar proceeded, they saw Nankau and Ram Charan coming from the opposite direction. Nankau was having Kudal in his hand while Ram Charan was empty handed. When Sumai asked the appellant as to why they assaulted his son Shyam Sundar, Ram Charan instigated Nankau upon which Nankau gave a blow with the reverse side of the Kudal and the deceased Sumai received serious head injury. As soon as he fell down, he kept his head on his lap and thereafter both the appellants escaped from the place of occurrence.
The learned counsel has referred to the cross-examination of this witness to show that the occurrence which took place near the tube well of Om Prakash is narrated by this witness P.W.1 who has stated that Nankau and Ram Charan both were present in their fields. There was considerable distance between the fields of Nankau and Ram Charan. At that time no conversation or scuffle took place between Shyam Sundar and Ram Charan. The contention on behalf of the appellant is that since no scuffle took place with Ram Charan, therefore he had absolutely no motive to kill the father of Shaym Sundar. Moreover, the instigation as alleged by the prosecution is not proved. There is no evidence of instigation except the statement of two prosecution witnesses who are highly interested witnesses. The independent witnesses had not supported the prosecution case and therefore there is no evidence of instigation.
Learned Additional Govt. Advocate in reply to the aforesaid arguments has submitted that it is established from the evidence produced by the prosecution that appellant Ram Charan intentionally instigated the co-appellant Nankau to kill the deceased and acting upon the instigation of Ram Charan, Nankau intentionally gave blow on his head as a result of which he sustained injuries on the head and died. Learned Additional Govt. Advocate has referred to the statement of the prosecution witnesses to show that there is unrebutted evidence to the effect that because of the instigation by appellant Ram Charan, Nankau killed the deceased. The learned trial court has, therefore, not committed any error in convicting appellant Ram Charan for the offence of murder with the aid of Section 109 IPC after recording specific finding that the appellant Ram Charan was guilty of abetement.
The abetement of an offence is defined in Section 107 of the Indian Penal Code, which is reproduced as under:-
"107. Abetment of a thing- A person abets the doing of a thing, who-
First- Instigates any person to do that thing; or Secondly- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if any act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly- Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1-A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing."
Section 109 provides punishment for abetment if the act abetted is committed in consequence of such abetement.
The definition of abetement makes it clear that in order to prove abetement, it must be proved that the abettor has instigated any person to do a particular thing. Even if the prosecution case is believed to be true, the appellant no.2 Ram Charan only exhorted appellant no.1 Nankau to beat Somai. There was no intention of any of the appellants to kill Sumai. It has no where come in evidence that appellant no.2 Ram Charan instigated or abeted Nankau to kill Somai. Thus, there was no intention to cause the death of Sumai. The manner in which the occurrence has taken place also does not suggest that there was any intention to kill Sumai. The conviction of the appellant no.2 under Section 302 read with Section 109 IPC is, therefore, against the evidence on record.
The offence of abetment under the Indian Penal Code is a separate and distinct offence. A person is said to have abeted the doing of a thing when he instigates any person to do that thing or engages with one or more persons in a conspiracy for doing of that thing or intentionally aid, by act or illegal omission, the doing of that thing. These are the essential ingredients of the offence of abetement. The meaning of abetment being a separate and distinct offence is the reiteration of the rationale behind punishing the preparatory stages of a crime so that the law is a deterrence not only in theory but also in practice.
In order to further explain the ingredients of abetement, we have to consider that there are different stages of crime. The first stage is formation of mens rea meaning thereby that a criminal must have criminal intention to do a crime. The second stage of the crime is preparatory phase which is the preparation stage. A person who intends to commit a crime has to make certain preparation in order to give effect to his intention. The third stage is acting in accordance with the preparation. This is called attempt. The fourth stage is obviously the injury or the damage caused.
In the light of the aforesaid preposition, we have to examine as to whether in the present case, appellant Ram Charan has committed any crime. There are three types of abetement as indicated in the definition of abetment. The first kind of abetment is instigation. The other is engaging any person or persons in conspiracy for doing of a thing and the third kind is intentionally aiding by act or illegal omission. In the case in hand, the prosecution case is that appellant Ram Charan abeted the commission of crime by instigation. We have to examine from the evidence on record as to whether there is any instigation on the part of appellant Ram Charan so as to constitute the offence under Section 109 IPC.
The case of Sanjay Singh Sengar Vs. State of M.P. (2002) 5 SCC page 371 is the landmark judgment in this regard. The Hon'ble Supreme Court while deciding the aforesaid appeal, observed that in abetement by instigation, there has to be some active involvement of the abettor towards the preparatory phase of crime. There needs to be sufficient proof that the individual has willfully influenced and coerced the individual to commit crime.
In the aforesaid background, if we examine the prosecution case and the evidence in the case in hand, we find that about 15 days prior to the occurrence, there had been some scuffle between Shyam Sundar and appellant Ram Charan. Thereafter on 21.05.1983 when the occurrence took place, the brother of appellant Ram Charan, namely, Nankau again met Shyam Sundar near the tube well of Om Prakash where he was again assaulted with Jhakhar. Till this stage, there was no intention of any of the appellants to kill Shyam Sundar or anyone else. It started after some time when Shyam Sundar alongwith his father was going to the house of Ram Charan for raising objection as to why Shyam Sundar was beten. It is said that instead of feeling sorry, both the appellants started abusing the deceased. When the brother of the deceased stopped them from doing so, appellant Ram Charan exhorted to beat deceased and there upon the deceased appellant Nankau gave below on the head of the deceased with reverse side of Kudal. The manner in which the occurrence has taken place, clearly reveals that all this happened in a spur of moment and it was not pre-planned that the deceased would be killed. The exhortation by appellant Ram Charan also does not indicate that he had any intention that Sumai should be killed. There has been admittedly no involvement of appellant Ram Charan towards crime, except exhortation. Thus, in the present case the first and second stage of the crime that is mens rea and preparatory phase are missing. It is not established from the prosecution evidence that both the appellants had decided to kill the deceased before they met with the deceased.
The Hon'ble Supreme Court in the case referred to above has observed that if the accused appellant told the deceased to go and die, the same itself will not constitute the ingredient of instigation. According to the Hon'ble Supreme Court the word instigate denotes incitement or urging to do some drastic or unadvisable action or stimulate or incite. Presence of mens rea, therefore, is the necessary ingredient of instigation. It is common knowledge that the word uttered in a quarrel or in a spur of moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotion. Hence in such circumstances, the accused would not be guilty.
In the case in hand, it appears that when the deceased raised objection as to why his son was beaten, the appellant became angry and started abusing. When the appellants were stopped from abusing the deceased, they became so much annoyed that in a spur of moment they gave blow on the head of the deceased without intending to kill him. Thus, in view of the observations of the Hon'ble Supreme Court, the exhortation or instigation made by appellant Ram Charan was as a result of such quarrel and in a spur of moment without any mens rea. Whatever was said by appellant Ram Charan, was in a fit of anger. There was neither any intention nor any preparation for commission of the crime.
In this view of the matter, we are of the view that appellant Ram Charan had no intention that the deceased should be killed and whatever he exhorted, was in a fit of anger and therefore will not constitute the offence of abetement. Although appellant Nankau has died and the appeal is abated against him but if he would have been alive, he could have been guilty for the offence of culpable homicide not amounting to murder. Since appellant Nankau is no more, therefore, we do not propose to enter into the merit so as to find out as to whether the offence could be converted to culpable homicide not amounting to murder appellant Ram Charan has been convicted under Section 302 IPC with the aid Section 109 IPC and as discussed above, the offnence of abetement is not proved and therefore he cannot be held guilty.
In the result, appeal is allowed and the conviction of appellant Ram Charan for the offence under Section 302 read with Section 109 IPC is set aside. He is acquitted of the charge under Section 302 read with Section 109 IPC. Appellant Ram Charan is in jail. He shall be released forthwith if not wanted in any other case.
Let a certified copy of this judgment alongwith lower court record be sent to the court concerned for information.
August 3, 2018 ank