Allahabad High Court
Gajadhar & Another vs State Of U.P. on 12 December, 2012
Bench: Rakesh Tiwari, Anil Kumar Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved
Criminal Appeal No. 104 of 1996
1- Gajadhar son of Ram Lakhan
(Died during pendency of appeal)
2- Vijay Kumar son of Gajadhar ... ... ... Appellants
Versus
State of U.P. ... ... ... ... ... ... Respondent
Counsel for the appellants: Sri Satish Trivedi, Senior Advocate, assisted by Arvind Kumar Singh, Rajiv Gupta and Dilip Kumar, Advocates.
Counsel for the complainant: Sri Kamal Krishna, Senior Advocate, assisted by Sri Abhishek Kumar Saroj
Counsel for the State: Sri R . Y. Pandey, A.G.A.
Hon'ble Rakesh Tiwari, J.
Hon'ble Anil Kumar Sharma, J
(Delivered by Justice Anil Kumar Sharma)
Challenge in this appeal is to the judgment and order dated 12.1.1996, passed by the then 1st Addl. Sessions Judge, Jaunpur in S.T. No. 185 of 1991, whereby each appellant has been convicted and sentenced as under :-
Name of appellants
Sections
Imprisonment
Gajadhar
Vijay Kumar
302/34 IPC
Imprisonment for life
307/34 IPC
Seven years R.I.
324/34 IPC
Two years R.I
All the sentences of each appellant were ordered to run concurrently. The appeal of co-accused/appellant Gajadhar stood abated on account of his death, vide order dated 8.11.2012.
2. The prosecution story in nutshell is that on 27.3.1991 at about 7.15 p.m. Dinesh son of Ram Pal submitted a written report of Ram Tahal son of Ram Lakhan Sunar resident of Patti Narendrapur, P.S. Sarpataha, District Jaunpur in police station Sarpataha, wherein it was stated that his brother Gajadhar separated from his three brothers and there was dispute between them regarding partition of the house and shops. On 27.3.1991 at about 6.30 p.m. the complainant along with his brothers Ram Pal and Ram Kripal and nephew Gyan Chand were sitting on their jewellery and cloths shop situated near the main crossing of Narendrapur. Gajadhar (brother of the complainant) along with his son Vijay Kumar armed with knives came at their shop and started wielding knife on Rampal, Ram Kripal and Gyan Chand. This incident was witnessed by complainant, Thakur Prasad Sharma, Vakil Ahmad and several others. The accused persons assaulted the aforesaid persons with intention to kill and thereafter made their escape good. The complainant sent written report to the police station through aforesaid Dinesh Kumar and took the injured to the hospital, however, during transit Rampal succumbed to the injuries. Ram Kripal was medically examined by Dr. S.L. Gupta in Government Male Hospital Shahganj on 27.3.1991 at 7.45 p.m. He found the following injuries on his person :
Ram Kripal: 50-years' old
1. Incised wound 3 cm x 1.5 cm x muscle deep on the left side of chest 4 cm below and outer to the left nipple. Edges of the wound are cleanly out. Clotted blood present.
2. Incised wound 4 cm x 1.5 cm x bone deep on the back of upper part of left fore-arm 3 cm below the left elbow joint. Clotted blood present. Edges of the wound are cleanly out. Wound is directed downwards.
3. Stab wound 5 cm x 3 cm x peritoneal cavity deep on the right side of abdomen overlying the sub-costal margin 13 cm below the right nipple. Loops of intestine coming out of the wound. Bleeding present.
He was semi-unconscious and his general condition was low. His pulse was 110/mt, Resp. 24/mt and BP was 100/60 mm Hg. In the opinion of the doctor the above injuries were caused by sharp edged object. Injury nos. 1 and 2 were simple in nature, however, Injury no. 3 was kept under observation and referred to Surgeon (Dr. Prem Chandra) for further management and expert opinion. Duration of injuries was within one day.
3.Dr. Gupta had also examined another injured Gyan Chand on 29.3.1991 at 3.30 p. m. and he found the following injuries on his person :
Gyan Chand: 20-years' old
(1)Incised wound 3 cm x 0.5 cm x bone deep on the lower part of left side of back 12.5 cm below the inferior angle of left scapula and 11 cm outer to the mid-line. Direction of wound is vertically down- wards. Edges of the wound is cleanly out. Evidence of sepsis present.
(2)Abraded contusion on the right wall of nose 3 cm x 3cm. Bluish in colour, scab present.
(3)Abraded contusion on the dorsum of right leg 2 cm x cm including the base of its little finger. Blue in colour. Scab present.
(4)Contusion 5 cm x 3 cm on the outer side of left arm 6 cm above the elbow joint. Blue in colour.
In the opinion of the doctor all the injuries were simple in nature. Injury no. 1 was caused by sharp edged object, while injury nos. 2 to 4 were caused by blunt object. The duration was within 1-2 days.
4.On the basis of the written report of the complainant the case at crime no. 29 of 1991 under section 307/324 IPC was registered at police station Sarpataha, investigation whereof was taken over by S.O. Deep Narain Yadav. He interrogated the complainant and proceeded for the spot. He found electric light and search light in front of the shop of the complainant and on the pointing out of Dinesh prepared the site plan and also seized the plain and blood stained earth from the spot through memo Ext. Ka-3. On 27.3.1991 at about 9.30 p.m. on the basis of the information conveyed by constable Manoj Kumar regarding death of injured Rampal, the case was converted into section 302 I.P.C. He also informed that there was no Sub-Inspector in P.S. Shahganj, so the I.O. reached Shahganj Hospital at about 10.30 p.m. and conducted inquest upon cadaver of the deceased and sent the same in a sealed cover along with usual papers.
5.Dr. D.B. Singh conducted autopsy on the corpse of the deceased on 28.3.1991 at 2.30 p.m. He found that 45-years' old deceased was of average built and muscularity. Rigor mortis had passed from upper extremities, but was present in lower extremities. He found the following ante mortem injuries on his person:-
(1) Incised wound 4 cm x 2.5 cm x thoracic cavity deep on the left side chest 7 cm below and inner to the left nipple towards epigastrium on probing direction of wound found upward.
(2) Incised wound 1.5 cm x 0.5 cm x muscle deep on the outer aspect of left elbow joint.
(3) Contused abrasion 2.0 cm x 1.0 cm on the outer part of the left side back.
(4) Incised wound 1.5 cm x 0.5 cm x muscle deep on back of base of left thumb.
(5) Contused abrasion 1.5 cm x 1.0 cm on the top of right shoulder.
(6) Incised wound 2.0 cm x 0.5 cm x muscle deep on outer aspect of lower part of right middle finger.
(7) Abraded contusion 2.0 cm x 1.5 cm on the lower part of inner aspect of right thigh.
In the internal examination the doctor found that brain, spleen, gall bladder and kidneys were congested, pleura, left lung, pericardium, left ventricle of the heart were ruptured, and left side of thoracic contained large amount of blood. Small intestines were half full, while large intestines contained fecal matters. In the opinion of the doctor the deceased suffered death one day before due to shock and hemorrhage as a result of ante mortem injuries.
6. The investigating officer interrogated eye witnesses Thakur Prasad, injured Gyan Chand and Ram Kirpal in the hospital. Accused Vijay Kumar was arrested on 28.3.1991. On interrogation he confessed his guilt and offered to get the knife (weapon of offence) recovered. Thereafter he took the police two furlongs ahead of Patti Narendrapur crossing in south and from eastern patri took out a knife from the bushes. He also allegedly told the police that he has assaulted the injured in self defence. The memo was prepared on the spot and knife was sealed. After completing other formalities of investigation, the investigating officer submitted charge sheet against the accused persons u/s 302, 307 and 324 IPC. The case property was also sent to Forensic Science Laboratory for examination.
7.After committal of the case to the Court of Session charges for the offence punishable u/s 302, 307 and 324 IPC read with section 34 IPC were framed against both the accused, who abjured their guilt and claimed trial.
8.In order to prove its case, the prosecution examined complainant Ram Tahal PW-1, injured Gyan Chand PW-2, Thakur Prasad PW-3, injured Ram Kirpal PW-4, SI D. N. Yadav PW-5, Dr. S. L. Gupta PW-6 and Dr. D. B. Singh PW-7 in support of the case.
9.In their separate statements u/s 313 Cr.P.C. both the accused have admitted their relationship with the deceased and the injured as also their shops of gold, silver jewellery and cloths and ancestral houses. However, they have denied the other part of the prosecution story pleading ignorance and false implication. The accused also filed documents in their defence.
10.The learned trial Court after hearing the parties' counsel had found that the prosecution has successfully proved its case beyond all reasonable doubt against both the accused persons and had sentenced them as noted in para-1 of the judgment. Aggrieved, the appellants have come up in appeal. However, appellant no. 1 Gajadhar had died during the pendency of appeal.
11.We have heard the learned counsel for the surviving appellant, for the complainant, the learned AGA for the State and perused the original record of the case carefully.
12.Learned senior counsel for the appellant has argued:
I) that the FIR is ante-timed;
II) that there was no motive for the appellants to kill and assault their own kith and kins but some unknown persons have caused injuries to them and the accused were falsely implicated in the case due to property dispute;
III) that there was no light on the spot at the alleged time of incident and that the prosecution has made material improvements in its story;
IV) that the incident has not taken in the manner as allege by the prosecution;
V) that the alleged eye witness account of the incident does not match with the medical evidence;
VI) that at the most the case appears to be the result of sudden provocation and fight, so the case does not travel beyond the scope of Section 304-II Indian Penal Code;
VII) that the surviving appellant was less than 18-years' of age at the time of alleged incident, so he is entitled to get benefit of Juvenile Justice Act.
13. Per contra, learned AGA and the learned senior counsel for the complainant have argued that the FIR of the incident was lodged promptly; that the incident had taken place due to property dispute as Gajadhar with dishonest intention was not complying the compromise decree and there is no reason why the other real brothers of Gajadhar would falsely implicate him and his son in the case; that the incident has been fully proved by the testimony of injured witnesses and independent witness Thakur Dass, which is fully corroborated by the medical evidence; that appellant Vijay Kumar was not a juvenile on the date of incident and no evidence has been adduced by him in support of this plea, so the appeal has no merits and is liable to be dismissed.
14. In order to appreciate the evidence led by the prosecution in support of the charges, it would be useful to narrate the undisputed pedigree of both the parties, which is as under:
Ram Lakhan
Ram Pal Ram Kirpal Gajadhar Ram Tahal
(Deceased) (Injured, PW-4) (Appellant no.1) (PW-1)
| | | Vijay Kumar (has two more brothers)
Lal Gyan Dinesh (Appellant no.2)
Chand Chand (carried report to P.S.)
(Injured, PW-2)
The above pedigree shows that out of four sons of Ram Lakhan, Gajadhar and his son Vijay Kumar are accused in the case and remaining three along with Gyan Chand s/o deceased Ram Pal were victims in the case.
15. The alleged incident took place on 27.3.1991 at about 6.30 P.M. in village Narendrapur Patti at the shop of complainant and its report was lodged by him at police station Sarpataha at 7.15 P.M. the same evening. The distance between the village of incident and the police station as per check report is 8 kilometers. In the incident three persons of complainant's family were injured with sharp edged weapons including the deceased, who succumbed to the injuries on way to the hospital. The complainant has stated that after the incident he wrote the written report and sent the same to police station through his nephew Dinesh Kumar to police station and he took the injured in a taxi to Shahganj hospital, but before reaching there Ram Pal died. The written report of the complainant carried by Dinesh Kumar was registered at the police station at 7.15 P.M. and case was registered at crime no. 29/91 u/s 307/324 IPC vide GD report no. 33 at 19.15 hrs, its copy is Ex. Ka-14. Learned counsel for the defence has dispensed with the formal proof of check report and copy of this GD. Since the defence has not challenged the registration of the case at the time mentioned in the check report and copy of GD, so it cannot be said that it is in any manner ante-timed. There are certain omissions in the written report e. g. i) source of light has not been mentioned, ii) holding of panchayat to resolve the property dispute between the parties prior to the incident and iii) scuffle between the accused and the injured prior to actual murderous assault on them. The complainant has fairly admitted in his cross-examination that he did not mention these facts in the report, but he has not been asked reason there for. We can very well understand the traumatic condition of the complainant when he was scribing the written report Ex. Ka-1. His two brothers and one nephew were lying injured (two of them were in critical condition) and he was in a hurry to take them to the hospital. Since the condition of deceased Ram Pal was precarious, so he rightly took them to the hospital instead of first going to police station and in that process he had sent the written report of the incident to police station through his nephew Dinesh Kumar. Had the report not been written soon after the incident, then the facts which are not mentioned therein, must have been noted by the complainant. The aforesaid omissions in the written report lends credence to its promptness.
16.In the written report, the complainant has very clearly stated that his brother Gajadhar (accused) had separated from the three brothers and dispute over partition of house and shops was pending. In support of this contention the complainant has filed the certified copy of decree dated 27.1.1991 passed by Munsif, Shahganj in O.S. No. 1016/90 Ram Tahal Vs. Rak Kirpal and three others. Perusal of this decree shows that the aforesaid partition suit was filed by Ram Tahal on 26.11.1990 and within two months it was decided on the basis of compromise between the parties. The terms of compromise further show that the property was not divided with metes and bounds. Moreover, being a partition suit, the decree passed therein was a preliminary decree and final decree was yet to see the light of the day. Learned counsel for the appellant has argued that the property was in the name of accused Gajadhar and even then he had agreed to give share to his other three brothers, and this conduct shows his fairness. However, after perusing the statement of PW-1, PW-2 and PW-4, we find that the property of all sons of Ram Lakhan was joint and that's why Ram Tahal had to file partition suit in the Court of Munsif. This suit was compromised between the parties within two months of its institution. However, the contention of the complainant is that accused Gajadhar was not obeying the compromise decree. In order to resolve this controversy the statements given by both the accused in their separate statements u/s 313 Cr.P.C. are relevant, which are reproduced as under:
iz'u&1% lk{; esa vk;k gS fd jkey[ku ds pkj yM+ds jke d`iky pksVfgy] jkeiky e`rd] xtk/kj vfHk;qDr o jke Vgy oknh gq;sA jke iky e`rd ds rhu yM+ds gSaA yky pUn] Kku pUn o fnus'k gSaA xtk/kj vfHk;qDr ds yM+ds fot; dqekj gSA bl lEcU/k esa D;k dguk gS\
mRrj% lgh gSA pksVksa ds ckjs esa ugha irkA
iz'u&2% lk{; esa vk;k gS fd iV~Vh ujsUnziqj esa vkids ifjokj dh ekS:lh lEifRr gS tgkW lksus] pkWnh o diM+s dh nqdkus gS vkSj mlds iwjc yxHkx nks QyakZx dh nwjh ij ekS:lh edkukr gSA bl lEcU/k esa D;k dguk gS\
mRrj& lgh gSA
The above question-answers given by both the accused clearly indicate that the property between the parties was joint and not separate. Both the accused have in answer to question no. 3 have falsely denied the institution of partition suit in the Court of Munsif, Shahganj and compromise therein. This clearly indicates their ill-intention. The consistent case of the prosecution is that on the day of incident panchayat was held at the shop of complainant in which Thakur Dass PW-3 was present as panch, but the parties could not settle the dispute. Although this fact is not mentioned in written report of the complainant, but it does not appear to be an after thought as no contradiction with reference to police statements of PW-1, PW-2 and PW-4 had been proved by the defence. Thus, we find that the alleged motive for the accused to commit the crime has been duly proved by the prosecution.
17.Now as regards the source of light at the time of incident is concerned, it is not very much material for the purpose of the case because both the accused are family members of the deceased and injured, so there is no question of any mis identity of the assailants. Further the incident took place at 6.30 p.m. on 27.3.1991, so at that time it was not so dark. In the incident knives have been used, which do not cause injury from some distance. However, the investigating officer has found electric light and search light at the scene of occurrence. Further the occurrence took place at the shop in the market, where presence of source of light can be assumed. All the witnesses of fact have unanimously stated about presence of electric light at the place of incident. If the complainant in a hurry could not mention the light in his written report, it cannot be termed as an improvement.
18.All the witnesses of fact have stated in unison that on the day of incident panchayat was held at the shop of the complainant till 6 P.M. but nothing could be settled, as the accused did not want to give any share to deceased Ram Pal. The factum of panchayat has been proved by Thakur Dass PW-3, who is an independent witness. According to PW-1 the panchayat ended at about 6 P.M. and 10-15 minutes thereafter scuffle took place between Ram Pal, Ram Kirpal, Gyan Chand, Vijay Kumar and Gajadhar. At about 6.30 P.M. both the accused armed with knives arrived at the shop of PW-1 and started assaulting Ram Kirpal, Ram Pal and Gyan Chand in order to kill them. All the three sustained knife injuries and the incident was witnessed by Thakur Prasad, Vakil Ahmad and and PW-1. This manner of incident has been corroborated by PW-2 to PW-4. Out of the four eye witnesses, two namely - Gyan Chand PW-2 and Ram Kirpal PW-4 are injured witnesses. The testimony of an injured witness is very important in a criminal trial, as his presence at the spot cannot be doubted. At the same time it is also true that whatever an injured states in his deposition is also not gospel truth. His testimony is to be tested with the other facts and circumstances appearing in the case. Apart from deceased Ram Pal, injured Ram Kirpal has suffered two incised wounds and a stab wound on the right side of abdomen. The doctor has noted that loops of intestines were coming out of the wound. His general condition was low and he was semiconscious. This injury was kept under observation and was referred to surgeon for further management. On account of this critical condition, Ram Kirpal PW-4 could not rightly state as to whether Ram Pal died on the spot or in hospital or on way to hospital. He could also not state as to when he was admitted in hospital. PW-1 to PW-3 have stated that Ram Kirpal was taken for surgery. Although no record about surgery of Ram Kirpal has been filed and proved by prosecution, but the condition of injury no. 3 as noted by Dr. Gupta PW-6 in his medico-legal report Ex.Ka-16 clearly shows that this injured was in serious condition. His intestines were coming out of the wound, so they could not be restored back without surgery.
19. Learned counsel for the appellants has vehemently argued that in the FIR the complainant has not noted that prior to wielding of knives by the accused, the accused and the injured grappled, however, during trial evidence has been led on this count to explain the injuries which may be caused by blunt object on the person of deceased and injured Gyan Chand. They have raised finger about ante-mortem injuries no. 3, 5 and 7 found on the person of the deceased and injury no. 2 to 4 of injured Gyan Chand. All the injuries could not be caused by knives. Gyan Chand PW-2 has stated in his examination-in-chief that after sustaining knife injury he fell facing head downwards and the same has also been reiterated by him in cross-examination, so he could have sustained injury nos. 2 to 4. The injuries of this injured have been proved by Dr. S. L. Gupta PW-6, but no question had been asked from this witness in his cross-examination as to whether injuries no. 2 to 4 can be caused to him by fall on the ground. Rather question had been asked from Dr. Gupta about injury on the back of PW-2, but no such injury was found on the person of this injured witness. Dr. D. B. Singh PW-7 has stated in cross-examination that except injuries no. 1, 2, 4 and 6, other ante-mortem injuries of deceased Ram Pal could be caused either by blunt object or by fall on the ground. He has further clarified that these injuries could be sustained by the deceased by falling many times. Surprisingly no question had been asked either from PW-1 or PW-2 whether during the incident Ram Pal had fallen on the ground or was hit by some blunt object like wall etc. Gyan Chand PW-2 has stated in cross-examination that apart from knife injury near the chest, his father had sustained injuries in fingers of both hands and he does not know about other injuries. If in an incident two accused have assaulted the three persons, causing many injuries to them, then it would be difficult for any surviving injured to explain all the injuries sustained by others, as in that event being injured he would be in pain and his attention would be to save himself at the hands of the accused persons not to see as to how and where the other injured have been assaulted. Thus, it cannot be said that ante-mortem injuries no. 3, 5 and 7 of deceased and injuries no. 2 to 4 of PW-2 are not explained or they do not match with the prosecution story.
20. The accused-appellants have tried to show that on the day of incident Gyan Chand PW-2 was abducted by some unknown persons by assaulting him, Ram and Ram Kirpal with lathi and knife, but false report was lodged against the accused and that's why injuries of Gyan Chand PW-2 could not be medically examined on 27.3.1991. No doubt suggestions to this effect have been given to both PW-1 and PW-2 in cross-examination, but they have emphatically denied the same. No other evidence has been led by the defence in support of this plea. It is very important to note here that none of accused in his statement u/s 313 Cr.P.C. has stated a single word about this story of abduction of Gyan Chand PW-2 on the day of incident and causing injuries by some unknown miscreants to him, injured Ram Kirpal and deceased Ram Pal. As noted earlier, in reply to question no.1 both the accused have in unison stated that they do not know about injuries of injured or the deceased. Thus, this argument of learned counsel for the appellant has no force.
21. Dr. S. L. Gupta PW-6 and Dr. D. B. Singh PW-7 have proved the injuries found by them on the person of injured and the deceased respectively. They have stated that all the three injured have sustained knife injuries. Dr. Gupta PW-6 had denied the suggestion in cross-examination that injuries 1 to 3 found on the person of Ram Kirpal can be caused by two different weapons. Ram Kirpal PW-4 has stated that both the accused armed with knives came in the verandah of Ram Tahal's shop where Ram Pal was sitting and they started assaulting him. At that time he, Ram Tahal, Gyan Chand, Thakur Prasad Sharma and Vakil Ahmad tried to save him, but the accused attacked Gyan Chand who fell down and then they caused knife injuries on his stomach, chest and abdomen. He has further stated that after sustaining injuries he became unconscious and regained consciousness in the hospital. Dr. Gupta has noted in the medico-legal report of Ram Kirpal that his general condition was low and was semiconscious. It has also been noted by him that loops of intestines were coming out from injury no. 3 of Ram Kirpal. Thus, we find that the ocular evidence is fully corroborated by medical evidence adduced in the case.
22. The next contention of the learned counsel for the appellants is that from the evidence led by the prosecution in the case it appears to be a case of sudden provocation and fight without any premeditation in the panchayat held to resolve the dispute over joint property without any premeditation and intention to kill, so there was no intention of any of the appellant to kill the deceased or any injured, therefore, the case is squarely covered by Section 304-II IPC, and the learned trial Court has committed illegality in convicting the appellants for the offence punishable u/s 302 IPC. Refuting this argument, the learned counsel for the complainant and the learned AGA has submitted that the panchayat ended at 6.00 P.M., while the instant incident took place at about 6.30 P.M., when both the accused armed with knife had come at the shop of Ram Tahal and assaulted the injured and the deceased. Their further contention is that the number and seat of injuries found on the person of deceased and injured clearly indicate that both the accused have requisite knowledge and intention to kill them. In this connection, learned counsel for the appellants have placed reliance on the case of Ram Pal Singh Vs. State of Uttar Pradesh (2012) 8 SCC 289, wherein the Apex Court reiterating the distinction between 'culpable homicide' and 'murder' and interpreting the law on the point has observed in paras-21 and 22 of the report as under:
"20. Thus, where the act committed is done with the clear intention to kill the other person, it will be a murder within the meaning of Section 300 of the Code and punishable under Section 302 of the Code but where the act is done on grave and sudden provocation which is not sought or voluntarily provoked by the offender himself, the offence would fall under the exceptions to Section 300 of the Code and is punishable under Section 304 of the Code. Another fine tool which would help in determining such matters is the extent of brutality or cruelty with which such an offence is committed.
21. An important corollary to this discussion is the marked distinction between the provisions of Section 304 Part I and Part II of the Code. Linguistic distinction between the two Parts of Section 304 is evident from the very language of this Section. There are two apparent distinctions, one in relation to the punishment while other is founded on the intention of causing that act, without any intention but with the knowledge that the act is likely to cause death. It is neither advisable nor possible to state any straight-jacket formula that would be universally applicable to all cases for such determination. Every case essentially must be decided on its own merits. The Court has to perform the very delicate function of applying the provisions of the Code to the facts of the case with a clear demarcation as to under what category of cases, the case at hand falls and accordingly punish the accused."
On the facts of the case, the Apex Court has altered the conviction of the appellant from 302 IPC to 304 Part-I IPC. In this case, both the accused and the deceased were related to each other being uterine brothers. Both were serving in the Indian Army. They had come on leave to their home and it was when the deceased was about to return to the place of his posting that the unfortunate incident occurred. The whole dispute was with regard to construction of ladauri by the deceased to prevent garbage from being thrown on his open land. However, the appellant had broken the ladauri and thrown garbage on the vacant land of the deceased. Rather than having a pleasant parting from their respective families and between themselves, they raised a dispute which led to death of one of them. When asked by the deceased as to why he had done so, the appellant entered into a heated exchange of words. They, in fact, grappled with each other and the deceased had thrown the appellant on the ground. It was with the intervention of DW1, Ram Saran and Amar Singh that they were separated and were required to maintain their cool. However, the appellant went to his house and climbed to the roof of Muneshwar with a rifle in his hands when others, including the deceased, were talking to each other. Before shooting at the deceased, the appellant had asked his brother to keep away from him. On this, the deceased provoked the appellant by asking him to shoot if he had the courage. Upon this, the appellant fired one shot which hit the deceased in his stomach. It was further observed by the Hon'ble Court that there was nothing on record to show that the relation between the families of the deceased and the appellant was not cordial. On the contrary, there was evidence that the relations between them were cordial, as deposed by PW1. The dispute between the parties arose with a specific reference to the ladauri. It is clear that the appellant had not committed the crime with any pre-meditation. There was no intention on his part to kill. The entire incident happened within a very short span of time. The deceased and the appellant had an altercation and the appellant was thrown on the ground by the deceased, his own relation. It was in that state of anger that the appellant went to his house, took out the rifle and from a distance, i.e., from the roof of Muneshwar, he shot at the deceased. But before shooting, he expressed his intention to shoot by warning his brother to keep away. He actually fired in response to the challenge that was thrown at him by the deceased. It was further observed by the Court that it is true that there was knowledge on the part of the appellant that if he used the rifle and shot at the deceased, the possibility of the deceased being killed could not be ruled out. He was a person from the armed forces and was fully aware of consequences of use of fire arms. But this is not necessarily conclusive of the fact that there was intention on the part of the appellant to kill his brother, the deceased. The intention probably was to merely cause bodily injury. However, the Court cannot overlook the fact that the appellant had the knowledge that such injury could result in death of the deceased. He only fired one shot at the deceased and ran away. That shot was aimed at the lower part of the body, i.e. the stomach of the deceased. In para-23 of the report, the Hon'ble Court has summarized the legal position for being applied by the Courts in the country, which is reproduced as under:
"23. As we have already discussed, classification of an offence into either Part of Section 304 is primarily a matter of fact. This would have to be decided with reference to the nature of the offence, intention of the offender, weapon used, the place and nature of the injuries, existence of pre-meditated mind, the persons participating in the commission of the crime and to some extent the motive for commission of the crime. The evidence led by the parties with reference to all these circumstances greatly helps the court in coming to a final conclusion as to under which penal provision of the Code the accused is liable to be punished. This can also be decided from another point of view, i.e., by applying the ''principle of exclusion'. This principle could be applied while taking recourse to a two-stage process of determination. Firstly, the Court may record a preliminary finding if the accused had committed an offence punishable under the substantive provisions of Section 302 of the Code, that is, ''culpable homicide amounting to murder'. Then secondly, it may proceed to examine if the case fell in any of the exceptions detailed in Section 300 of the Code. This would doubly ensure that the conclusion arrived at by the court is correct on facts and sustainable in law. We are stating such a proposition to indicate that such a determination would better serve the ends of criminal justice delivery. This is more so because presumption of innocence and right to fair trial are the essence of our criminal jurisprudence and are accepted as rights of the accused."
Keeping the above legal proposition in mind we find from the facts of instant case that the dispute over partition of family property was pending between the parties. Although they had compromised in the civil suit filed by PW-1, but that was still vague as the partition had not been effected through metes and bounds. None of the injured or deceased have provoked any of the accused-appellant to use violence, rather it was the appellant no.1 who was not acceding to the genuine demand of his other uterine brothers. Both the appellants had come at the shop of PW-1 armed with knife and started assaulting the deceased and when the others i.e. Ram Kirpal and Gyan Chand intervened they were were assaulted. The circumstances led to the incident, the kind of the weapon used and the seats and nature of injuries found on the person of the deceased and the injured clearly show that both the accused armed with knives were predetermined to kill and they assaulted with clear knowledge and intention to kill Ram Pal and when the other injured intervened life attempt was also made on them, as is evident from stab injury found on the person of injured Ram Kirpal. In these circumstances, on account of factual distinction, the law laid down by the Apex Court in the afore-noted case do not help the appellants at all. We are satisfied after reassessing the entire evidence that the appellants were rightly held guilty for the offence punishable under section 302 IPC.
23. Learned counsel for the appellants have lastly contented that accused-appellant Vijay Kumar was less than 18-years' old at the time of incident, so he is entitled to the benefit of Juvenile Justice (Care and Protection) Act. Our attention has been drawn to the statement of accused Vijay Kumar recorded on 21.3.1995, wherein he had given his age as 22 years. The date of incident is 27.3.1991, so on this date he was below 18 years of age, argued the counsel for the appellant. Per contra learned AGA and the learned counsel for the complainant have submitted that this plea had not been taken earlier and no evidence had been led by the accused to prove his age or date of birth. It is now not res integra that the plea of juvenility can be taken at any stage of the proceedings. It is true that the accused had not adduced any oral or documentary evidence to prove his age or date of birth. In such a situation, we are afraid whether any inference about the age of the accused can be drawn by the Court merely on unspecific statement of accused given in his statement u/s 313 Cr.P.C. On perusal of record, we find that on 1.10.2012, accused Vijay Kumar has filed an application in this Court intimating death of his father Gajadhar appellant no. 1 along with his affidavit dated 30.9.2012, wherein he had given his age as 30-years, meaning thereby that he was born in the year 1982 and as such he was only about 9-years' old on the date of incident. This is palpably false. It is important to note that along with his affidvit appellant Vijay Kumar has filed photo-copy of his driving licence dated 7.12.2007 wherein his date of birth 31.12.1972 has been noted. From this date of birth, the age of Vijay Kumar on the date of incident i.e. 27.3.1991 comes to more than 18-years. Thus, from any angle it is not established that accused Vijay Kumar was a juvenile on the date of incident, so he is not entitled to any benefit under the J.J. Act.
24. In view of the foregoing discussion and reassessment of evidence available on record we find that the prosecution has successfully proved its case against the accused-appellant beyond all reasonable doubt. Ram Pal was killed in the evening on account of family property dispute by accused-appellant sharing common intention with his father Gajadhar and had also made life attempt on Ram Kirpal and Gyan Chand causing knife injuries to them. The appellant no. 2 had been rightly found guilty for the offence punishable u/s 302/34, 307/34 and 324/34 IPC and adequate sentence had been awarded to each of them. Thus, the appeal sans merits and is accordingly dismissed. Appellant Vijay Kumar is on bail. His bail is cancelled and sureties are discharged. He is directed to surrender forthwith in the Court Chief Judicial Magistrate, Jaunpur to serve out the sentences awarded by the learned Addl. Sessions Judge.
25. Let certified copy of the judgment be forthwith sent to the Court concerned and the Chief Judicial Magistrate, Jaunpur for ensuring compliance, which should be reported in 4-weeks.
(Anil Kumar Sharma, J) (Rakesh Tiwari, J)
December 12, 2012
KCS/
