Allahabad High Court

Gopal vs State Of U.P. on 20 August, 2015

Bench: Amreshwar Pratap Sahi, Pramod Kumar Srivastava




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
  
 
Court No. - 36
 

 
Case :- CRIMINAL APPEAL No. - 3411 of 2006
 

 
Appellant :- 	Gopal
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Sri Prakash Dwivedi, I.M. Khan, Sudeep Dwivedi
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Pramod Kumar Srivastava,J.

(Delivered by Hon'ble Pramod Kumar Srivastava, J.)

1.This appeal has been preferred against the judgment of conviction dated 27.04.2006 and of sentence dated 28.04.2006 passed by Additional Sessions Judge, Court No. 4 Mirzapur in S.T. No. 26 of 1993 (State Vs. Gopal) under Section 307, 323 and 302 IPC in case crime no. 331 of 1991, p.s.-Kotwali Katra, Mirzapur by which accused-appellant Gopal had been convicted for the charge under Section 302 IPC and sentenced with imprisonment for life and fine of Rs. 5000/- (in default of payment further imprisonment for six months) and for the charge under Section 323 IPC with imprisonment for six months; and it was directed that both the sentences would run concurrently.

2.The prosecution case in brief was that appellant Gopal was landlord of the house in which informant's father Fakir Chand was tenant and was living with his family. They had tenancy disputes for which litigation was pending. In the night of 17/18-7-91 at about 3:00 am, Fakir Chand was sleeping outside his house, when accused Gopal came and started beating Fakir Chand with a "paati" (wooden arm of a cot), then on alarm of Fakir Chand, informant and other persons came there. Accused Gopal had inflicted many injuries on Fakir Chand, and when Bhaggu Mallah, his daughter-in-law, his wife and children came there then accused had also injured them with the same "paati". At the time of incident, witnesses Vijay Kumar, Kallu Khan came there and saw the incident. After this incident, accused Gopal fled away from the spot. Fakir Chand was taken to the hospital and on the way he succumbed to his injuries. After this, informant Raj Narayan reported this matter at the police station in the morning of 18.07.1991 at 06.10 am., on the basis of which case crime no. 331 of 1991 u/s 302 IPC was registered. After completition of investigation, charge-sheet was submitted against Gopal for the offence u/s 304 IPC, on the basis of which Sessions Trial No. 26 of 1993 was registered.

3.In sessions trial, accused Gopal was charged for offences under Section 302, 307, 323 IPC, which he denied and claimed to be tried. The prosecution examined PW-1, Vijay Kumar, PW-2 Bhagggu Lal, PW-3 Kallu, PW-4 Dr. Dinesh Swarup , PW-5 Raj Narayan, PW-6 Narendra Prasad Singh, PW-7 Constable Israrul Hasan and PW-8 Dr. K.P.Singh. These witnesses had proved the documentary evidence as well as material exhibits of the prosecution side.

4.After closure of the prosecution evidence, statement of accused was recorded in which he had denied the prosecution evidence and stated that he had been a person of unsound mind since his childhood for a long period and had suffered from fits of insanity. He does not remember any incident of the day of the charged incident. In support of his defence version, he also stated during trial that he was in jail. During his incarceration he was sent by the Chief Medical Officer (CMO), through the Court, to Mental Hospital, Varanasi, where his treatment was carried out for one year. Thereafter, he had returned to face the trial in custody, and then again he became insane and was sent again to the Mental Hospital, Varanasi. When he came back from there after treatment, then his trial resumed. He had no enmity with injured/victims of this case. He had filed documents relating to the treatment showing that at the time of the incident, he was not in his senses.

5.Accused had also examined defence witnesses DW-1 Dr. Kashi Prasad, DW-2 Dr. Dr. Amrendra, DW-3 Dr. C.P. Singh and DW-4 Kalam, who had proved the defence documents including registers relating to the treatment of the accused for his mental illness.

6.After closure of evidence of both sides and after affording opportunity of hearing the lower court passed the impugned judgment dated 27.04.2006/ 28.04.2006, by which accused Gopal was convicted as mentioned above, against which, he has preferred the present appeal.

7.Sri Sudeep Dwivedi, learned counsel for the appellant argued that he is not challenging the fact of charge of causing death of the deceased Fakir Chand by accused appellant, but from the evidence, appellant appears to be entitled to the benefit of Section 84 IPC because he had been under treatment for his unsoundness of mind at the time of the charged incident. In the alternative, he has fairly contended that if his plea by defence under Section 84 IPC is not accepted in that case also the incident in question is not an offence of murder punishable u/s 302 IPC, but is a culpable homicide not amounting to murder. Therefore the punishment awarded may be mitigated. It was also contended that the appellant's family was dependent on him. He being the only bread winner of his family, this being his first guilt and his hailing from a poor family, the award of life sentence and fine of Rs. 5,000/-, in default to undergo further imprisonment for six months is very excessive. He urged that these points were raised by the appellant's counsel during arguments before the trial Court, but were not properly considered because of his conviction u/s 302 IPC. His alternative argument is that in any case, considering the plea of unsoundness of the mind at the time of the charged incident as well as the circumstances that the appellant accused had no previous intention or pre-planning to cause death, and suddenly caused injuries without using any formal weapon, and used only a "paati" (that is wooden arm of a cot) which in no way is a weapon but a thing of domestic use his sentence should be mitigated. Had he fostered any intention to cause death and pre-planned the same, he would have used any weapon at least a stick or anything like that during the incident.

8.Learned counsel for the appellant also pointed out that from evidence, it is proved that at the time of the incident and before, the appellant was a man of unsound mind and even at the time of incident, he had caused injuries not only to informant's father Fakir Chand but also to many other individuals. It was argued that in these circumstances the sentence of the appellant Gopal should be mitigated and converted u/s 304 IPC, and his punishment should be reduced to the period already undergone or any other period because he is in jail from the time of incident since 1991.

9.Learned AGA appearing for the respondent State submitted that though there is evidence of prosecution and defence witnesses regarding intermittent and periodical unsoundness of mind of the appellant, but it has not been proved beyond doubt that at the time of the charged incident the appellant was under the state of unsoundness of mind. He contended that had the appellant been a person of unsound mind then apart from causing injuries to other persons he would have tried to cause injuries to himself also. In alternative, learned AGA has fairly submitted that the Court is at liberty to impose an appropriate sentence on the appellant.

10.We have given our consideration to the rival submissions and perused the material and evidence available on record.

11.This fact relating to charge was not challenged by the learned counsel for the appellant that on the date of charged incident, accused Gopal had inflicted injuries on the body of sleeping Fakir Chand and also on the body of several other persons who had came there to protect Fakir Chand. It was also admitted that those injuries were caused by a "paati" (wooden arm of a cot). It was not challenged by the appellant that due to injuries caused by him, informant's father Fakir Chand got injured and died. Thus, it is proved that at the time of incident no weapon was used by the appellant for injuring sleeping Fakir Chand or other witnesses who came to rescue him. Though, there was some dispute between the appellant and deceased relating to a tenancy issue but for that a litigation was already pending and no earlier serious altercation had happened. It is also proved that other witnesses, namely, Hari Shankar Singh, Ram Sewak Singh, Bhaggu, Kumari Sumari had also sustained simple injuries of the "paati" when they came to protect the deceased and these witnesses had no enmity with the accused appellant. These facts prove that at the time of the charged incident accused appellant had started inflicting injuries on the deceased as well as every person who came near him and many persons had sustained injuries without any reason or enmity. Such acts are not committed by a person of normal prudence. The defence witnesses DW-2 and DW-3 are doctors and they had proved unsoundness of mind and of insanity of the appellant Gopal during his period of detention in jail. We are in agreement that the believable evidence of these two defence witnesses, namely, DW-2 and DW-3 are evidence of unsoundness of mind of the appellant after the date of incident.

12.Ex-Ka-43 is a letter dated 22.07.1991 sent by the Superintendent District Jail, Mirzapur to the CJM Mirzapur in which he had mentioned that accused Gopal was admitted in the jail on 19.07.1991 (since the next day of charged incident dated 18.07.1991) and from the time of his entry in the jail, his mental condition is bad, he involves himself in violent activities like injuring other prisoners, injuring his own head against the wall, dipping his head in water; therefore he is kept in of solitary barrack under medical observation. Jail Superintendent has requested that the accused may be sent before a Medical Board for examination and treatment. On this letter of the Jail Superintendent, CJM, Mirzapur had sent him before the CMO and thereafter he was sent to the mental hospital. This fact proved that immediately after the charged incident the activities of the appellant Gopal were not of a normal man and he was behaving abnormally and used to indulge in violent activities including injuring himself also. DW-2 and DW-3 were doctors who had proved that during his custody, he was found mentally ill due to Mechanical Depression Psychosis and after treatment, he was cured. But the evidence could not be proved beyond doubt that on the date of the charged incident the appellant was under influence of insanity.

13.DW-1 Kashi Prasad had proved that before the charged incident accused Gopal was under fits of madness several times, for which he was being treated. At the time of the charged incident, he was not in his senses. DW-4 Kalam is also one of those persons who were injured with deceased Fakir Chand at the time of charged incident. He had stated that at the time of incident, accused Gopal was under influence of madness at about 3:00 am at night and for that reason he had inflicted injuries on many persons including him, due to which he had sustained injuries on his right shoulder. Apart from him 8 to 10 person were injured due to injuries caused by the accused Gopal and one of them was Fakir who had succumbed to the injuries inflicted by appellant accused. But Gopal had not injured him or deceased Fakir or any other person due to any enmity. He was not in his senses due to insanity. Then the police had taken Gopal in custody. During and after the incident, he was insane. This statement of DW-4 has been found to be correct and was supported by other oral and documentary evidence.

14.Prosecution witnesses PW-1 Vijay Kumar had supported the prosecution case but during cross-examination, he admitted that before the incident in question, there was no dispute between accused Gopal and the deceased or his son. He admitted that in the night of charged incident, Gopal had injured not only Fakir Chand, but 5 to 6 persons of the family of Bhaggu also and had caused injuries to the students, who were sleeping at the temple at the time of incident. Gopal was beating everyone who met him. PW-2 Bhaggu Lal is also an injured witness of this case who had admitted during cross-examination that though he was injured by accused Gopal but had no enmity with him. He was informed that Gopal used to go mad from time to time. He had admitted from his knowledge that before the charged incident, once Gopal was under the influence of madness and was sent for treatment to a mental hospital. PW-2 had also admitted that before and after the charged incident, Gopal was insane. The evidence of the prosecution has supported the argument of the learned counsel for the appellant that the appellant had been a person of unsound mind from time to time just before and just after the charged incident and at those times he was incapable of knowing the nature of his acts or that he was doing anything right or wrong. From the above discussion, it is also proved that the charged act was committed by the appellant without intention of murder, without use of any formal weapon and without any pre-planning. From the evidence, it appears probable that the appellant had willfully caused injures to every person who was found near him and these injures were inflicted indiscriminately without properly knowing as to whether they may cause death or not. Therefore, in such circumstances, it has to be well thought out as to whether the act causing injuries to Fakir Chand resulting in his death was murder or whether it was a culpable homicide not amounting to murder.

15.Culpable homicide is a murder if act which causes death is done with the intention of causing death or is done with intention of causing a bodily injury and injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. All murder is culpable homicide but not vice versa. This is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree.

16.In "Kesar Singh v. State of Haryana, (2008) 15 SCC 753" Hon'ble Apex had held :

"To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 "Thirdly":

First, it must establish, quite objectively, that a bodily injury is present;

Secondly, the nature of the injury must be proved; these are purely objective investigations.

Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.

Once these three elements are proved to be present, the enquiry proceeds further and,

Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.

Once these four elements are established by the prosecution (and, indisputably, the burden is on the prosecution throughout) the offence is murder under Section 300 "Thirdly". It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury is actually found to be proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional."

17. In the matter in hand it is proved from the evidence that the charged act was committed by the appellant without intention of murder, without use of any formal weapon and without any pre-planning. From the evidence, it appears probable that the appellant had willfully caused injuries to every person who was found near him and these injuries were inflicted indiscriminately without properly knowing as to whether they may cause death or not. Though the injuries caused by him were grievous but there was every possibility of the deceased's survival. Apparently knowing these facts fully well the appellant Gopal had inflicted blows on the deceased and after that he had caused injuries to others also without any motive or reason. It is also proved that the appellant had inflicted injuries without discriminating between vital and non-vital parts of the bodies of injured. The unsoundness of the mind of appellant at the time of the charged incident is not proved beyond doubt, but it is apparent that he had been a man of a comparitively weak mental status. These facts are proof of the facts for the death of injured Fakir Chand that was caused due to the act committed without premeditation and due to all of a sudden provocation after seeing Fakir Chand, who was a tenant and had been retaining his house without paying rent for a long time. This matter comes within exception 1 of Section 300 IPC. Therefore the appellant is found guilty of an act of culpable homicide not amounting to murder which is punishable under section 304 IPC.

18. It is settled law that the courts are obliged to respect the legislative mandate in the matter of awarding of sentences in all such cases. In "Hazara Singh v. Raj Kumar, (2013) 9 SCC 516" Hon'b'e Apex Curt had held that :

"it is clear that the maximum punishment provided therein is imprisonment for life or a term which may extend to 10 years. Although Section 307 does not expressly state the minimum sentence to be imposed, it is the duty of the courts to consider all the relevant factors to impose an appropriate sentence. The legislature has bestowed upon the judiciary this enormous discretion in the sentencing policy, which must be exercised with utmost care and caution. The punishment awarded should be directly proportionate to the nature and the magnitude of the offence. The benchmark of proportionate sentencing can assist the Judges in arriving at a fair and impartial verdict."

"17. We reiterate that in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment."

19. Only because Section 304 IPC provides the life imprisonment as the maximum sentence, does not mean that Court should mechanically proceed to impose the maximum sentences, more particularly when the incident had occurred suddenly, during the heat and passion of quarrel.

20. In Hem Chand v. State of Haryana, (1994) 6 SCC 727 Hon'ble Apex Court had held that :

"As mentioned above, Section 304-B IPC only raises presumption and lays down that minimum sentence should be seven years but it may extend to imprisonment for life. Therefore awarding extreme punishment of imprisonment for life should be in rare cases and not in every case."

21. In Devidas Ramachandra Tuljapurkar v. State of Maharashtra, (2015) 6 SCC 1 Hon'ble Apex Court had held :

"While we see no reason to differ with the concurrent findings recorded by the trial court and the High Court, we do see some substance in the argument raised on behalf of the appellants that keeping in view the prosecution evidence, the attendant circumstances, the age of the accused and the fact that they have already been in jail for a considerable period, the Court may take lenient view as far as the quantum of sentence is concerned. The offences having been proved against the accused and keeping in view the attendant circumstances, we are of the considered view that ends of justice would be met, if the punishment awarded to the appellants is reduced."

22. In 'Ramashraya Chakravarti v. State of M.P., (1976) 1 SCC 281' Hon'ble Apex Court had observed :

"To adjust the duration of imprisonment to the gravity of a particular offence is not always an easy task. Sentencing involves an element of guessing but often settles down to practice obtaining in a particular court with inevitable differences arising in the context of the times and events in the light of social imperatives. It is always a matter of judicial discretion subject to any mandatory minimum prescribed by law."

"In judging the adequacy of a sentence the nature of the offence, the circumstances of its commission, the age and character of the offender, injury to individuals or to society, effect of the punishment on the offender, eye to correction and reformation of the offender, are some amongst many other factors which would be ordinarily taken into consideration by courts trial courts in this country already overburdened with work have hardly any time to set apart for sentencing reflection. This aspect is missed or deliberately ignored by the accused lest a possible plea for reduction of sentence may be considered as weakening his defence. In a good system of administration of criminal justice pre-sentence investigation may be of great sociological value."

23. One of the prime objectives of the criminal law is imposition of an appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of the crime and the manner in which the crime is done. For sentencing an accused on proof of crime the courts have evolved certain principles; the twin objective of the sentencing policy is deterrence and correction. It lies within the discretion of the court to choose a particular sentence within the available range from minimum to maximum. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances.

24. In considering the adequacy of the sentence which neither be too severe nor too lenient the court has, therefore, to keep in mind the motive and magnitude of the offence, the circumstances in which it was committed and the age and character (including his antecedents) and situation in life of the offender.

25. In Gurmukh Singh v. State of Haryana, (2009) 15 SCC 635 Hon'ble Apex Court had discussed points to be taken into account before passing appropriate sentence as under :

"23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under:

(a) Motive or previous enmity;

(b) Whether the incident had taken place on the spur of the moment;

(d) Whether the death ensued instantaneously or the victim died after several days;

(e) The gravity, dimension and nature of injury;

(f) The age and general health condition of the accused;

(g) Whether the injury was caused without premeditation in a sudden fight;

(h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;

(i) The criminal background and adverse history of the accused;

(j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock;

(k) Number of other criminal cases pending against the accused;

(l) Incident occurred within the family members or close relations;

(m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment?

These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused.

24.The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused."

26. Now the matter is limited to sentence for offence u/s 304 IPC, and we have to consider about the appropriate sentence for the appellant in this case. For it aggravating circumstances relating to the crime while mitigating circumstances relating to the criminal has to be considered. From facts and circumstances of the case it is clear that the appellants and victim are neighbours and had initially no intention or premeditation for murder/ homicide as they had been involved in a civil litigation. He had not used any formal weapon in the incident. Appellant had no criminal history and is in incarceration for about 24 years. Apart from these mitigating circumstances, it is noteworthy that the charged incident was due to a sudden provocation without any inducement. Appellant had committed the charged act without any sufficient reason and due to provocation caused by his own act as he is a person of weak brainpower who very often fails to control himself.

27. When we apply the settled principles of law which has been enumerated in the aforementioned cases, the sentence of life imprisonment of the appellant under Section 304 IPC appears to be excessive and inappropriate. In the present case after considering the circumstances presented before the Sessions Judge and before us during hearing of appeal, it appears appropriate that, in the present case the sentence should not exceed more than 10 years' imprisonment. But since he has already been under imprisonment for about 24 years, therefore we are of the view that ends of justice would be met if he be sentenced for the period already undergone.

28. In view of the above facts and discussion, the order of conviction u/s 302 IPC imposed on the appellant is hereby modified u/s 304 IPC, and the sentence of imprisonment for life is modified to the period of imprisonment already undergone. With this modification of conviction, punishment and sentence, the appeal stands disposed off.