Nanhau @ Ramkishore Lodh vs State Of U.P.
2015 Latest Caselaw 1632 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 28                                                              (Reserved- A.F.R.)
 

 
Case :- CRIMINAL APPEAL No. - 1565 of 2008
 

 
Appellant :- Nanhau @ Ramkishore Lodh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Virendra Chaudhary,Begum Sabiha Kamal,D.S. Pandey,Mohd. Shahid Akhtar
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Arvind Kumar Tripathi,J.

Hon'ble Mrs. Ranjana Pandya,J.

(Delivered by Hon.Arvind K.Tripathi,J)

1-The present appeal has been preferred by Nanhau alias Ram Kishore Lodh against the judgment of conviction and sentence dated 3.6.2008 passed by Learned Additional Sessions Judge, Court No. 2 Raebareli passed in Sessions Trial No.344/2004 under sections 302/307/504/506/120B I.P.C. PS. Bachharawan, District Raebareli.

2-The First Information Report was lodged by Jogeshwar, uncle of the deceased Virendra Kumar at Police Station Bachharawan on 16.7.2004.

3-According to the version of the First Information Report on 16.7.2004 at about 7.00 P.M. The informant, his nephew Virendra Kumar s/o Lodeshwar and Jitendra Kumar s/o Bhawareshwar and other family members were present there. Nanhau alias Raj Kishore, s/o Chhanga who was living in front of the informant started abusing using filthy language against his mother and sister. He stated that 'Tum Sale Pahle Makan Bana Liye Hai Aur Mai Bana Raha Hoon To Tum Sale Zalte Ho". His nephew Virendra Kumar and Jitendra Kumar asked them not to abuse, at this Ram Kishore went to his house and came out with double barrel licensed gun and fired with an intention to cause death causing firearm injuries to Virendra Kumar on right lateral side of chest who fell down. When they picked up Virendra Kumar to take him inside the house, Nanhau alias Ram Kishore, the appellant shot second fire at them causing injuries to Jitendra Kumar on outer and front aspect of upper right thigh. After hearing the sound of fire shots Guru Charan son of Kallu Prasad of the same village and Rajendra Prasad Gupta, son of Jaggannath, who were present in the village, reached there. Ram Kishor fired a third shot and abused and threatened and went towards the north. Gurucharan and Rajendra Prasad Gupta chased him. However, he could not be apprehended. The informant with the assistance of other villagers took the injured Virendra and Jitendra on 'bullock cart' to the Government Hospital, Bachhrawan. In the hospital Virendra was declared dead and Jitendra was referred to the Government Hospital, Rae Bareli. Thereafter after making arrangement he was taken to Rae Bareli. The dead body was lying in the Government Hospital, Bachharawan. It was further stated that Ram Kishore alias Nanhau was roaming the whole day with Ram Kumar s/o Satti Din Lodh, and Ram Adhar s/o Vijay Bahadur. Since the economical condition of the informant was better, hence the accused was inimical to the informant and had motive to commit murder. The First Information Report was lodged by the informant Jogeshwar, which was registered at Police Station Bachharawan bearing Case Crime No.477/2004 under sections 302/307/504/506/120B I.P.C. against Nanhau alias Ram Kishore and co-accused Ram Adhar, Ext.Ka.16. Investigation was conducted by sub inspector of Police Bachharawan. Post mortem examination on the body of Virendra Kumar was conducted by Dr. Mohd.Zalaluddin, PW-3, Government Hospital, Rae Bareli on 17.7.2004 at 3.00 P.M. According to post-mortem examination report there was a large lacerated wound 8 cm x 6 cm x upto abdominal cavity deep inside vertically oval in shape on right lateral part aside of chest 1.5 cm above the right margin of ribs. Ribs 7 to 9 were fractured and crushed in pieces. Peritoneum was ruptured. Right kidney and liver were ruptured and lacerated. Small intestine was also lacerated.

4-According to injury report of Jitendra Kumar Verma, injury noted was gun shot wound of entry multiple in number with inverted margin in an area of 11 X 6 cm on outer and front aspect of upper part of right thigh just below inguinal area blackening present all around the wound. Fresh bleeding present. As per opinion of the doctor the injury was caused by firearm, fresh in duration kept under observation. X-ray advised of right hip joint including upper part of right thigh. After completing investigation charge sheet was submitted against Nanhau alias Ram Kishore and Ram Adhar under sections 302/307/504/506/120B I.P.C. The case was committed to court of sessions.

5-On 8.11.2004 the charges were framed by learned Sessions Judge against the appellant Nanhau alias Ram Kishore and Ram Adhar under sections 302/307/504/506/120B I.P.C. and against the accused Ram Adhar under section 120B and 302 read with section 34 I.P.C. They denied the charges and pleaded to be tried.

6-The prosecution to prove its case examined nine witnesses. Four witnesses of fact PW-1 Jageshwar, the informant, who proved the First Information Report, PW-2 Jitendra Kumar, injured witness, PW-4 Guru Charan,PW-5 Rajendra Prasad Gupta. The formal witnesses were PW-3 Dr.Mohd.Jalaluddin, who conducted the post mortem-examination on the body of the deceased Virendra Kumar, Ext.Ka.2, PW-6 Gopal Ji Gupta, Medical Officer, who proved the injuries of Jitendra Kumar, PW-7 Ramesh Chandra Pushkar, who proved the site plan Ext.Ka.9 and recovery of blood stained earth and pellets Ext.Ka.10 & 11. The site plan and recovery memo of weapon of assault is Ext.Ka.12 & 13. The charge sheet Ext.Ka.14 and case property being materials exhibits Ext.1 to 30, PW-8 S.I. Jawahar Ram proved the inquest report, Ext.Ka.15, PW-9 Head constable Udai Pratap Upadhyay proved the chick report, registration of the First Information Report and G.D. Entry, Ext. Ka.16-17. After the evidence was closed by the prosecution, the statement of the accused appellant was recorded under section 313 Cr.P.C. who denied the allegation and stated that he had not fired. Due to enmity he was falsely implicated in the present case. He further stated that Lodheshwar and Bhawreshwar, the brother of the informant jointly fired with an intention to kill him. In self defence, he fired in the air and the shot fired by Lodheshwar and Moreshwar hit both the nephews of the informant. From defence side papers regarding Original Suit No.101/2004 and 3908/2000 and S.T. No.332/05 were filed. After hearing the parties the trial judge convicted and sentenced the accused appellant Nanhau alias Ram Kishore for life imprisonment with fine of Rs.20,000/- under section 302 I.P.C., seven years' R.I. under section 307 I.P.C. with fine for a sum of Rs.5000/-. In default of payment of fine further awarded one year's additional sentence by impugned order dated 3.6.2008, hence being aggrieved against the above-noted judgment the present appeal has been filed assailing the impugned judgment of conviction and sentence. However, the co-accused Ram Adhar was acquitted.

7-Ms. Begum Sabina Kamal, Advocate appeared on behalf of the appellant and Shri Umesh Verma appeared on behalf of the State.

8-Heard learned counsel for the parties and judgement was reserved on 8.7.2015.

9-Learned counsel for the appellant submitted that the appellant was falsely implicated due to enmity. In fact in defense there was firing in the air from the side of the appellant and two shots were fired by the brother of the informant at the appellant, which caused injuries to the deceased and injured Jitendra. On the basis of the same evidence co-accused Ram Adhar was acquitted. However, the appellant has been convicted and sentenced for life imprisonment. She further submitted that even if the prosecution case is accepted, it was a case of sudden provocation, then the offence would not travel beyond the section 304(1) I.P.C. Hence the impugned judgment and order of conviction and sentence is liable to be set aside.

Learned A.G.A. vehemently opposed the aforesaid prayer and submitted that there was active participation of Nanhau alias Ram Kishore and charge sheet against the accused Ram Adhar was under section 120B I.P.C., hence the case of the appellant is entirely different from the case of Ram Adhar and the specific role of firing was assigned to the appellant Nanhau alias Ram Kishore. There is no material contradiction in the statement of witnesses. There was no sudden provocation from side of the informant and the deceased. It was not a case of sudden provocation and heat of passion, hence the case is not covered under section 304 I.P.C. rather the appellant was rightly convicted and sentenced under section 302 I.P.C. The present appeal has no merit and the same is liable to be dismissed.

11-We considered the submissions of counsel for the parties and perused the record.

12-So for as the argument of counsel for the appellant is concerned, defence is that there was fire shot by Lodheshwar and Bhaureshwar, the brother of the informant and thereafter in self defence the appellant fired in the air. So far as the defence case that the alleged fire by brothers of the complainant hit his both nephews is concerned, no evidence has been adduced in support of the defence version and no witness has been examined from side of the defense though burden is not upon the defence to prove the defence taken by the appellant to negate the prosecution case. But when when the prosecution has produced the eyewitness and other witnesses to prove the case which are reliable, then the defence version is required to be proved by reliable evidence to corroborate the plea of defence.

13-In the present case three witnesses of fact, PW-1 Jogeshwar, PW-2 Jitendra Kumar who is injured witness, and PW-5 Rajendra Prasad Gupta were examined who have supported the version of the First Information Report with regard to the incident dated 16.7.2004. According to PW-1 Jogeshwar who is complainant, the appellant Nanhau alias Ram Kishore abused using filthy words against the mother and sister of the informant, and when objection was raised by his nephew Virendra and Jitendra, the appellant went to his house and brought a double barrel gun and shot at the deceased and injured with an intention to kill. Firearm injuries were caused to Virendra and Jitendra. Injury caused to Virendra was on right lateral side of chest and injury caused to Jitendra Kumar on outer and front upper part of right thigh. After hearing firing Gurucharan and Rajendra of the same village reached on the spot. The appellant fired third shot time and went towards the north. The witnesses tried to apprehend him, however, since he was having a firearm, hence he could not be apprehended. The distance from where fire was opened, was about 4-5 ft. The blackening was present all around the firearm wound caused to Jitendra on thigh. Jitendra Kumar, injured witness PW-2 has also supported the prosecution case. When the appellant abused and objection was raised by injured, then Nanhau appellant went to his house and came with double barrel gun and fired with an intention to kill causing injury to him and his cousin Virendra who fell down and when they tried to pick up him, he fired shot again causing injuries on upper part of right thigh. The injury report as well as post-mortem examination report supported the prosecution version. Dr.Mohd.Zalaluddin PW 3 and Dr.Gopal Ji Gupta, PW-6 who conducted the post-mortem examination and examined the injured, have proved the post-mortem examination report and injury report respectively, which supported the prosecution case. According to Dr.Gopal Ji Gupta who examined the injured Jitendra, firearm injury could have been caused from three ft. or more than 3 ft.

14-The incident took place on 16.7.2004 at about 7.30 P.M. and First Information Report was lodged on the same day at 10.00 P.M. The distance from the place of the incident to the police station was 6 km. Double barrel gun was recovered from the appellant on 19.7.2004. Live and empty cartridges were also recovered. Recovery memo Ext.Ka.3 was prepared and copy was handed over by S.H.O. Bachharawan, Raebareli.

15-PW-4 Guru Charan and PW-5 Rajendra Prasad who were independent witness of the same village have also supported the prosecution versions and specific role of firing causing firearm injury to the deceased and injured Jitendra was assigned to the appellant. Hence the defence version that fire by brother of the informant caused injuries to the deceased Virendra and injured Jitendra is without any basis. There is no material contradiction in the statement of PW-1, PW-2, PW-4 and PW-5 who are witnesses of fact and their statement have been supported by the doctor and other formal witnesses. Their statement are credible and trustworthy, hence the finding and order passed by the trial court, holding the appellant guilty is correct and it does not require any interference.

16-The second argument on behalf of the appellant was that this case will not travel beyond section 304(1) I.P.C. because it was sudden quarrel. There was no premeditation. Since some quarrel took place, hence the appellant went to his house and came back with gun and fired. It was further submitted that since the incident took place due to grave and sudden provocation, heat and passion as such the conviction and sentence under section 302 I.P.C. is liable to be set aside as it will not travel beyond the scope of section 304 I.P.C. She relied upon the judgment of the Apex Court in the case of Rampal Singh vs. State of Uttar Pradesh, (2012) 8 SCC 289.

17-In the case of Rampal(Supra) the observation by the Apex Court was that there was nothing that the relation between the family members of the deceased and the appellant was not cordial. On the contrary there was evidence that the relation between them were cordial as deposed by PW-1. The dispute between the parties arose with specific reference to the ladauri and the observation was that the appellant had not committed crime with any premeditation and there was no intention on the part of the accused to kill the deceased. The entire incident took place within a very short span of time. The deceased and the appellant had altercation and the appellant was thrown on the ground by the deceased, who was 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 one M he shot at the deceased. In that case it was held that the appellant was guilty but the case of the section 302 I.P.C. was converted into one section 304 I.P.C.

18-Whether it is a case of only 'culpable homicide' liable to be punished under section 304 I.P.C. or is murder requires, it has to be examined, considering the definition of section 302 I.P.C. with exception.

19-Although there is no clear definition of the 'murder' in section 300 I.P.C. but it is well settled that 'culpable homicides' is the genus and 'murder' is its species and all 'murders' are culpable homicides' but all culpable homicides are not murders. It has been mentioned in 300 I.P.C. as to what kinds of acts done with an intention of causing death or bodily injury as the offender knows to be likely to cause death or bodily injury to any person sufficient in ordinary course to cause death or the person causing injuries knows that it is so imminently dangerous that it must in all probability cause death, would amount to 'murder'. However, exceptions are provided under section 300 I.P.C. If an act is done in the heat of passion and without premeditation or where in grave and sudden provocation the offender being deprived of the power of self control causes death of a person who caused provocation or causes death of any other person by mistake or accident is culpable homicides and would not be a murder. This aspect has to be decided in view of the fact and circumstances of each case, whether the same would be covered under exception or not.

20-Learned A.G.A. relied upon the judgment of the Apex Court reported in the case of Gangabhavani vs. Rayapati Venkat Reddy & Ors, 2013 CRI L.J.4618 and Sukhlal Sarkar vs. Union of India, 2012 CRI.L.J. 3032:

Para 8 to 13 of the judgment in case of Sukhlal Sarkar(supra) are quoted herein below:

Para-8 "Learned Senior Counsel appearing for respondents submitted that the Division Bench of the High Court had correctly appreciated the evidence of PW-1 and came to the right conclusion that ingredients of offence of murder punishable under section 302 I.P.C. were clearly made out. Learned counsel also referred to the evidence of PW-1 and submitted that there was no grave and sudden provocation for the appellant to claim the first exception of Section 304-I.P.C."

9-We have critically gone through the evidence on record especially the evidence of PW-1. Considerable thrust was made by the counsel appearing for the appellant on the following evidence of PW-1 which reads as follows:Infuriated, Sanjay Kumar Dubey slapped and pushed the accused and the accused fell down". Learned Single Judge, it may be noted, had opined that the provocation was mild, but was sudden and hence the exception to Section 300 would apply.

10-The meaning of expressions "grave" and "sudden" provocation has come up for consideration before this Court in several cases and it is unnecessary to refer to the judgments in those cases. The expression "grave" indicate that provocation be of such a nature so as to give cause for alarm to the appellant. "Sudden" means an action which must be quick and unexpected so far as to provoke the appellant. The question whether provocation was grave and sudden is a question of fact and not one of law. Each case is to be considered according to its own facts."

11- Under Exception 1 of Section 300 provocation must be grave and sudden and must have by gravity and suddenness deprived the appellant of the power of self-control, and not merely to set up provocation as a defense. It is not enough to show that the appellant was provoked into loosing his control, must be shown that the provocation was such as would in the circumstances have caused the reasonable man to loose his self control. A person could claim the benefit of provocation has to show that the provocation was grave and sudden that he was deprived of power of self-control and that he caused the death of a person while he was still in that state of mind.

12-We have critically gone through the evidence of PW-1, the eye-witness, and we are of the considered view that the deceased had not provoked the appellant in inviting him to fire from his rifle so as to kill him. The deceased, it may be noted was unarmed. PW-1 was only trying to wake up the appellant so as to to do patrolling duty. Assuming that the deceased had slapped and pushed the appellant, such an action of the deceased could not be characterized as grave and sudden, so as to provoke the appellant to fire at the deceased killing him at the spot.

13-We, therefore, find no infirmity, in the reasoning of the Division Bench of the High Court in declining to convert the conviction to Section 304-I IPC. We, therefore, dismiss the appeal.

21-The case of Gangabhavani (supra) was relied by learned A.G.A. in support of his contention that merely on the basis of minor contradiction in deposition of the witnesses their statement has not to be ignored and if the statement of eyewitness account are found credible and trustworthy, even the medical opinion to alternative possibilities are not to be accepted as conclusive. He relied para-18 of the judgment. According to para 18 the defence cannot rely on nor can the court base its finding on a particular fact or issue on which the witness has not made any statement in examination-in-chief and the defence has not cross examined him on the said aspect of the matter. So if any fact has not been stated in examination-in-chief and merely a new fact has been suggested in cross examination, even without reliable evidence to corroborate the same the defense cannot rely on that particular fact.

22-The fact in the case of Sukhlal Sarkar(supra) was that the deceased Sanjay Dubey had slapped and pushed the appellant down and provoked him to open fire from his rifle. The deceased shook the appellant's leg with his hand in order to wake him up and all those deeds committed by the deceased caused grave and sudden provocation to commit the offence. It was held by the Apex Court that the deceased has not provoked the appellant in inviting him to fire from his rifle so as to kill him. The deceased was unarmed. PW-1 only tried to wake up the appellant so as to do patrolling duty. Assuming that the deceased had slapped and pushed the appellant. Such an act of the deceased could not be characterized as grave and sudden, so as to provoke the appellant to fire at the deceased killing him at the spot.

In the present case when the abusive language was used by the appellant, then only objection was raised why he was abusing, so there was no provocation from side of the informant and the deceased.

23-Further this question of 'grave and sudden provocation' is a question of fact, which has to be considered, according to the fact and circumstances of each case. In view of the fact in present case there was no such grave and sudden provocation from the side of the deceased so that the accused would have been deprived of the power of self control causing death of a person and causing grievous injury to another person. Hence this contention of counsel for the appellant is also not acceptable that the case would be covered under section 304 I.P.C. In view of the fact it is clear that with an intention to kill appellant shot at deceased and injured and according to post-mortem examination report cause of death was shock and haemerharrge as a result of anti mortem firearm injury. The appellant was rightly convicted and sentenced under section 302 I.P.C. with other sections. Since the bail application was rejected, appellant is reported to be in jail.

24-In view of the aforesaid discussion, there is no illegality in the judgment of conviction and sentence dated 3.6.2008 passed by Learned Additional Sessions Judge, Court No.2 Raebareli passed in Sessions Trial No.344/2004 under sections 302/307/504/506/120B I.P.C. PS. Bachharawan, District Raebareli. Accordingly the present appeal being devoid of merit is hereby dismissed.

25-Let a certified copy of the judgment be sent forthwith to the trial court for ensuring compliance which should be reported to the Court within eight weeks.

Order Date 5.8.2015

RK