Rajvir vs State Of U.P.
2011 Latest Caselaw 14 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 46
 

 
Case :- CRIMINAL APPEAL U/S 374 CR.P.C. No. - 6252 of 2008
 

 
Petitioner :- Rajvir
 
Respondent :- State Of U.P.
 
Petitioner Counsel :- O.P. Dwivedi,Vishwa Ratna Dwivedi
 
Respondent Counsel :- Govt. Advocate
 

 
Hon'ble Amar Saran,J.

Hon'ble Naheed Ara Moonis,J.

(Delivered by Hon'ble Amar Saran, J)

This criminal appeal arises out of a judgement and order of Additional Sessions Judge ( Court no.2), Kannauj dated 20.8.2008, convicting and sentencing the appellant to imprisonment for life and fine of Rs. 5000/ under Section 302 IPC. In default of payment of fine, the appellant was to further undergo additional imprisonment of six months.

We have heard Sri O.P. Dwivedi, learned counsel for the appellant and the learned A.G.A and have perused the record.

The prosecution version as mentioned in the FIR lodged by PW-1 Smt. Rani wife of deceased Yogendra alias Dangali at P.S. Gursahaiganj, district Kannauj at 4.10 P.M on 26.12.05 was that there was some earlier dispute of the deceased with the appellant Rajvir over a passage regarding which the matter had been compromised at the instance of villagers. On 25.12.2005, the deceased Yogendra Singh Jatav alias Dangali, the appellant Rajvir and some others were playing cards under a 'Jamun' tree, opposite the 'Khandahar' of Dhannu in village Bargawa. At about 5.00 P.M, the informant Smt. Rani, her younger son Dileep aged about 8 years and her father Ram Nath reached there to call her husband. There she found that the appellant and the deceased were quarrelling over wins and losses in the card game. At that time the appellant Rajvir, after abusing the deceased, stabbed him on the left side of his chest with a knife. The informant rushed her husband on a tractor to Dr. Subhash's hospital. She returned to her village thereafter but as her husband's condition started deteriorating she carried her husband on a 'Marshal Jeep' to Kanpur. But on the way he died and the dead body of the deceased was carried to her village. After leaving the dead body there, she went to the police station Gursahaiganj, district Kannauj, where she lodged the report (Ext. Ka-1) against the appellant at case crime No. 1350 of 2005, under Section 302/504 I.P.C on 26.12.05.

Autopsy was conducted on the body of the deceased on 27.12.2005 at 3.00 P.M by Dr. Brijesh Singh PW-3.He found the following ante-mortem injury on the deceased:

1.Stab wound 2.5 cm x 1 cm into chest cavity deep over Rt. Lateral side of chest 11 cm below of lateral Rt. Nipple of 8'O clock position. Margins clean cut, one angle sharp, on dissection right pleura anterior cut right side, chest cavity full of blood.

According to the doctor, the cause of death was due to shock and haemorrhage as a result of ante-mortem injury.

Only two eye witnesses PW-1 Smt. Rani and her 8 years old son Kuldeep alias Dileep PW-2 have been examined to support the prosecution case. Apart from the said two eye witnesses, PW-3 Dr. Brijesh Singh who has conducted the post-mortem, PW-4 Constable Phool Singh who prepared the check FIR and made the G.D. entry, PW-5 Man Singh Yadav SI and PW-6 Onkar Nath Shukla SI who prepared the inquest have been examined as formal witnesses by the prosecution. PW-5 SI Man Singh Yadav, who was the second I.O and recovered the knife at the instance of the appellant and submitted the charge sheet has also been examined by the prosecution.

One witness DW-1 Badkau has been examined as a defence witness, who denied that no gambling had taken place at the place alleged.

PW-1 Smt. Rani reiterated her version given in the F.I.R. She further stated that she has got the report scribed by Karan Singh, the village Pradhan, Rajapurwa and that the police had recorded her statement under Section 161 Cr.P.C regarding the incident.

After satisfying itself of his capacity to comprehend and to depose truthfully her eight years old son Kuldeep alias Dileep has been examined as PW 2, who stated that his father and the appellant had quarrelled under a Jamun tree. His father had asked his mother for some money but she refused, then his father reached the spot where Makauwa, Rajvir and Barkau were gambling and started demanding money. At that time it was 5' o clock. This incident took place near his house. This witness and his mother and grand-father( Nana) arrived there soon thereafter to call his father. He saw that the appellant Rajvir had a knife in his hand, which he lunged into the stomach of his father. It has been elicited in the cross examination of this witness that his father had drunk alcohol on the date when he was stabbed. There was the usual quarrel between his mother and father. He further stated that after Rajvir stabbed his father, he fell on the ground. The next day his father was admitted to hospital but he succumbed to his injury.

It was submitted by the learned counsel for the appellant that as per the statement of this witness, his mother had reached the spot later, hence she was not an eye witness of this incident. Furthermore the evidence of the child witness could not be relied upon without corroboration. No other witness has come forward to depose in this case and the child witness could be tutored to give evidence as per the dictates of the prosecution.

It was also submitted that no other witness apart from these interested witnesses has come forward in support of the prosecution case and it would be unsafe to base a conviction only on the testimony of the partisan witnesses.

In the alternative a submission was raised by the learned counsel for the appellant that in all likelihood the incident had taken place after a sudden quarrel between the deceased and the appellants who were gambling over the wins and losses in a card game, and the case would not go beyond section 304 part II at the highest.

Learned AGA on the other hand submits that there is reliable evidence in this case of PW 1 Smt. Rani Devi, the wife of the deceased and PW 2 Kuldeep, the young son of the deceased. There is no ground to doubt the veracity and reliability of the statement of the child witness. No reason exists why the wife and son of the deceased would falsely implicate the appellant in this incident sparing the real assailant. As complete reliance can be placed on the testimony of these two witnesses, it is immaterial if the prosecution has not been able to produce other witnesses in support of the prosecution case.

Learned AGA also submitted that PW-5 SI Man Singh has also deposed about the recovery of a knife from under the water in a pond at the instance of appellant and the recovery memo Ex. Ka 6 was prepared on 2.1.2006 at 0.05 A.M. This is a further circumstance which provides corroborative evidence of the complicity of the appellant in this offence. Looking to the gravity of the blow which was given in the chest only an offence under section 302 IPC was disclosed.

We are not in agreement with the submissions of learned counsel for the appellant so far as the complicity of the appellant is concerned. In this case only the appellant has been made an accused and there was no reason for his false implication, if someone else has stabbed the deceased Yogendra Singh. The earlier dispute over the right of use of the passage had already been resolved after the villagers had effected a compromise between the parties. This fact is mentioned in the FIR itself.

It is also not very material whether Smt. Rani Devi had reached the place of incident at the very moment the deceased was stabbed or whether she reached there a few moments later and learnt about the fact that the deceased had been stabbed by the appellant from her child. The evidence of the said witness can therefore be safely acted upon even without corroboration. The prosecution has not been able to dislodge the testimony of the child witness by an extensive cross-examination who was also examined by the Court as to his ability to testify and his realization of the need to be truthful.

It is also common knowledge that third persons are very reluctant to give evidence in any dispute between parties, because they feel it does not concern them, and they are not inclined to get embroiled in the dispute between others which they consider to be their purely private dispute. Though this is a selfish attitude, but unfortunately this has become common in these times. Therefore, non appearance of other independent witnesses can not be considered fatal for the prosecution, and this Court can safely act even on the testimony of partisan or related witnesses, if it sees no reason to doubt the reliability and truthfulness of their testimony. Here we find that PW-1 Smt. Rani Devi and PW 2 Kuldeep alias Dileep have supported the prosecution case, and nothing has been elicited to doubt the credibility of their testimony. The recovery of the knife at the instance of the appellant from under the water in a pond also is an important circumstance for corroborating the evidence of Smt. Rani and Kuldeep for showing his involvement in this offence.

However so far as the alternative contention raised by the appellant's counsel is concerned we find some substance in this contention. We see that a single knife blow was given without repetition or pre-meditation to the deceased by the appellant. There was also a fight when the appellant arrived at the place and demanded money, perhaps to gamble some more. It was in that spur of the moment after a quarrel between the appellant and the deceased that the appellant appears to have lost his head and to have given the single unrepeated knife blow on the chest of the deceased. It is apparent that the offence was committed without pre-meditation. In such circumstances it cannot be said that the appellant nurtured any previous intention to kill the deceased. It can also not be ruled out that the fatal blow may have accidentally landed at the spot 11 cm. below and lateral to right nipple, where it cut his right pleura and resulted in the death of Yogendra on the next day. Also in view of the fourth exception to section 300 IPC as the offence appears to have been committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel, without the offender having undue advantage or acted in a cruel or unusual manner, the offence would be an offence of culpable homicide not amounting to murder andnot an offence of murder, hence in these circumstances it would be proper to substitute the conviction of the appellant from one under section 302 to one under section 304 IPC.

One question which still remains to be considered is whether the offence committed would fall under part I or part II of section 304 IPC. We think that in the circumstances the injury inflicted on the deceased by the appellant was not caused with either the intention to cause death or with the intention of causing such bodily injury as was likely to cause death. At the highest it could be said that the act done committed with the knowledge that it was likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. These facts would thus bring the case within the purview of Part II of section 304 I.P.C.

In this view of the matter we alter the conviction and sentence of the appellant from one under section 302 IPC to one under section 304 part II IPC. We also substitute the sentence of imprisonment for life and a fine of Rs. 5000 to eight years RI under section 304 part II IPC.

With the aforesaid modification, the appeal is partly allowed.

Order Date :- 3.3.2011

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