Ramashraya Yadav vs State Of U.P.
2015 Latest Caselaw 1364 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved Judgment
 

 
Case :- CRIMINAL APPEAL No. - 1869 of 2008
 
Appellant :- Ramashraya Yadav
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- P.K. Yadav, C.B. Ojha, M.P. Rai, Mohd. Alam, N.K. Yadav, Smt. Usha Srivastava, V.K. Srivastava
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Surendra Vikram Singh Rathore, J.

Hon'ble Raghvendra Kumar, J.

(Per Surendra Vikram Singh Rathore, J.)

1.The instant criminal appeal has been preferred by the appellant-Ramashraya Yadav challenging the judgment and order dated 19.02.2008 passed by learned Additional Sessions Judge, Court No.2, Azamgarh, in Sessions Trial No.64 of 2003, arising out of Case Crime No.197 of 2002, under Section 302 IPC, Police Station Raunapar, District Azamgarh, whereby the appellant Ramashraya Yadav was convicted for the offence under Section 302 IPC and was sentenced to undergo imprisonment for life and also with fine of Rs.2000/- with default stipulation of one month additional imprisonment. He was further convicted for the offence under Section 504 IPC and was sentenced with imprisonment for a period of 15 days. Both the sentences were directed to run concurrently.

2.According to the version of the FIR, the incident of this case is alleged to have taken place on 20.10.2002 at 3.00 p.m. and the FIR of this case was lodged on 21.10.2002 at 7.00 p.m. The incident is alleged to have taken place in village Chhapiya. Distance of this village from concerned police station was 15 kilometers. The FIR of this case was lodged by Ghamandi Yadav, father of the deceased, Indradeo. It was alleged in the FIR that some litigation regarding dispute of a Madaiya (Hut) and piece of a land was going on between appellant and the complainant Ghamandi Yadav. On 20.10.2002 at about 3.00 p.m. wife of appellant Ramashraya Yadav started keeping her "Pual" on the disputed land. The daughter of the complainant namely Durgawati asked her not to do so. The altercation started between the two. Indradeo, the son of the complainant also reached there and he also asked the wife of Ramashraya Yadav (appellant) not to put "Pual" on their hut. In the meantime, the appellant Ramashraya Yadav reached there, armed with lathi having a ring of iron on it and exhorted that he will kill Indradeo and settle the dispute for all time to come. Indradeo made an attempt to save his life by running away from there but the appellant gave a blow of lathi on his head due to which Indradeo fell down thereafter the appellant Ramashraya Yadav gave a kick blow on his chest and again gave lathi blow on his body. Because of the injuries Indradeo became unconscious. This incident was witnessed by Deep Narayan, Shanker, Ram Bhawan and Durgawati and several other persons of the village. The complainant took his son Indradeo, in unconscious condition, to District Hospital Azamgarh where during his treatment he succumbed to the injuries. Thereafter the FIR of this case was lodged. Since the deceased died in the hospital therefore, on the memo sent to the police station from the hospital, the inquest proceedings were conducted and thereafter the post mortem of the deceased also took place on 21.10.2002 at 4.45 p.m. The blood stained earth and simple earth were recovered. The alleged lathi was also taken into custody by the police.

3.After completing the investigation the charge-sheet was filed against the appellant Ramashraya Yadav.

4.The case of the defence was his false implication because of the enmity of the civil suit pending between the parties.

5.In order to prove its case the prosecution has examined PW-1 Ram Bhawan, grand son of the of the complainant, PW-2 is Deep Narayan, PW-3 is Shankar Yadav, eye witness who were named in the FIR, PW-4 is a formal witness who has proved the FIR due to death of complainant Ghamandi Yadav. He has stated that the FIR was written on the dictation of Ghamandi Yadav in his presence by some other persons and thereafter Ghamandi Yadav had put his thumb impression on it. PW-5 is Dr. R.K. Mal, who has conducted the post mortem of the deceased, PW-6 is Dr. Sanjeev Saxena, who has medically examined the deceased while he was alive, PW-7 is Bhanu Pratap Singh SSI, who has investigated this case and has also proved the chik report and G.D. Of this case as secondary evidence.

6.No evidence in defence was produced on behalf of the appellant.

7.According to the medical examination report following injuries were found on the body of the deceased:-

(a) Lacerated wound 7 cm. x 1.0 cm. x bone deep, back of head 12 cm above left ear with swelling.

(b) Traumatic swelling 6 cm x 4 cm on left side face 2 cm below left eye.

(c) Traumatic swelling 4 cm x 2.5 cm on right side face 1.5 cm below right eye.

(d) Traumatic swelling 7 cm x 4 cm right lateral part of the chest, 12 cm below right auxilla.

In the opinion of the doctor all the injuries were simple in nature except injury no.1 for which x-ray was advised and duration was fresh.

8.The post mortem of the deceased was done on 21.10.2002 at 4.45 p.m. and following ante-mortem injuries were reported by the doctor:

(a) Lacerated wound 7 cm x 3 cm over left skull x bone deep in 12 O' clock position above left ear. Underlying parietal bone was fractured. This is the only injury which was reported in the post mortem and the cause of death was this ante-mortem head injury.

9.After appreciating the evidence on record, the trial court convicted the appellant as above. Hence the instant appeal.

10.Submission of the learned counsel for the appellant was that the appellant Ramashraya Yadav has been continuously in custody from the date of judgment i.e. 19.02.2008. Apart from it, he has also remained in jail, during trial for some period. It is submitted that even if the entire case of the prosecution is taken to be true even then the offence would not travel beyond the purview of Section 304 part II IPC. Learned counsel for the appellant has submitted that so far as the finding of fact is concerned, he is not challenging the same and has restricted his arguments only to the extent that the offence under Section 304 part II IPC was made out against the appellant on the basis of admitted facts.

11.Learned Additional Government Advocate has submitted that the appellant has given repeated blows and the other injuries were also found on his body in the medical examination report. So the offence would fall under Section 302 IPC.

12.Though the finding of fact has not been challenged but inspite of that we have gone through the evidence of all the witnesses and after going through the prosecution evidence, we are of the considered view that so far as the involvement of the appellant and causing injury to the deceased with lathi blow stands fully proved. The evidence of all the witnesses of fact does not suffer from any contradiction or improbability. The witnesses have been very ineffectively cross examined on behalf of the defence and the record shows that not even a single witness of fact was cross-examined on the date when the examination-in-chief of the witness was recorded. So it cannot be said that the appellant was not afforded sufficient opportunity to cross-examine the witness but inspite of the sufficient opportunity no effective cross-examination was done on his behalf.

13.In the post mortem report only one injury on the head was found and the lathi which was recovered from the place of occurrence was also sent for Forensic Science Lab for test and the report of the Forensic Science Lab shows that it was not a solid lathi but it was a bamboo. It is admitted case of the prosecution that the incident was not pre-planned but it has taken place on the spur of moment and the appellant was provoked by the fact that his wife was obstructed by Durgawati and deceased Indradeo to put "Pual" on the hut and under this sudden provocation he gave a blow of lathi which ultimately proved fatal.

14.Submission of the learned A.G.A., that blows were repeated, does not find support from the post mortem report. Even in the medical examination report only some traumatic swellings were found, which were reported by the doctor to be simple in nature. However, no such swelling or mark of any injury was found in the post mortem. Thus the fact remains that only one injury, which was caused by bamboo on a sudden provocation, was found on the head of the deceased and no effort was made to repeat the blow on any vital part of the body of the deceased. Now the legal point to be considered is that whether in this fact situation the offence would be under Section 302 IPC or it would be of an offence under Section 304 part II IPC.

15.Hon'ble the Apex Court in the case of Daya Nand Vs. State of Haryana reported in (2008) 15 SCC 717 has considered the difference between murder and culpable homicidal not amounting to murder and has observed in paragraphs no. 24 and 25 as under:-

"24. Thus, according to the rule laid down in Virsa Singh's case, even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would not be murder. Illustration (c) appended to Section 300 clearly brings out this point.

25. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid."

16.The case of Virsa Singh Vs. State of Punjab reported in AIR 1958 SC 465 draws a distinction between -"Thirdly" of Section 300 and Exception 4 thereunder. The following are the four steps of inquiry involved:- (i) first, whether bodily injury is present; (ii) second, what is the nature of the injury; (iii) third, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended; and (iv) fourthly, it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature.

17.In the case of State of Andhra Pradesh Vs. Rayavarapu Punnayya and another reported in [1976 (4) SCC 382, it was held that culpable homicide without the special characteristics of murder is culpable homicide not amounting to murder, falling under Section 304 of the Code. It was further held that there are three degrees of culpable homicide. The first is murder under Section 300; second, culpable homicide not amounting to murder falling under the first part of Section 304; and third is culpable homicide not amounting to murder falling under the second part of Section 304.

In the scheme of the Penal Code, 'culpable homicide' is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice-versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder'. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, culpable homicide of the first degree. This is the gravest form of culpable homicide, which is defined in s. 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the 1st part of s. 304. Then there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second Part of section 304.

18.In the case of Pappu Vs. State of Madhya Pradesh reported in 2006 (7) SCC 391, Hon'ble Apex Court exhaustively dealt with the parameters of Exception 4 to Section 300 of the Code. It was held that the said Exception can be invoked if death is caused (i) without parameters; (ii) in a sudden fight; (iii) without the offender's having taken undue advantage or acting in a cruel or unusual manner; and (iv) the fight must have been with the person killed. It was further held that all the four ingredients must be found in order to apply Exception 4.

The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300 IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'. (Emphasis added).

19.In the case of Hari Ram Vs. State of Haryana reported in 1983 (1) SCC 193, the facts were somewhat identical.

In that case there was an altercation between the appellant and the deceased. The appellant had remarked that the deceased must be beaten to make him behave. He thereafter ran inside the house, brought out a jeli and thrust it into the chest of the deceased. This Court observed that in the heat of altercation between the deceased on the one hand, and the appellant and his comrades on the other, was preceded by his remark that the deceased must be beaten to make him behave. Therefore, it does not appear that there was any intention to kill the deceased. This Court, therefore, set aside the conviction of the appellant under Section 302 IPC and instead convicted him under Section 304 part II IPC and sentenced him to suffer rigorous imprisonment for five years.

In Jagtar Singh Vs. State of Punjab reported in (1983) 2 SCC 342,

In a trivial quarrel the appellant wielded a weapon like a knife and landed a blow on the chest of the deceased. This Court observed that the quarrel had taken place on the spur of the moment. There was exchange of abuses. At that time, the appellant gave a blow with a knife which landed on the chest of the deceased and therefore, it was permissible to draw an inference that the appellant could be imputed with a knowledge that he was likely to cause an injury which was likely to cause death but since there was no premeditation, no intention could be imputed to him to cause death. This Court, therefore, convicted the appellant under Section 304 Part II IPC instead of Section 302 IPC and sentenced him to suffer rigorous imprisonment for five years.

20.Keeping in view the aforesaid legal pronouncement and the fact that only one blow of bamboo lathi was given by the appellant to the deceased and no effort was made to repeat the blow on any vital part of the body of the deceased. This incident has taken place on the spur of the moment due to sudden provocation and the appellant has not taken undue advantage of the situation. Therefore, in our considered view the offence would not fall within the purview of Section 302 IPC and it would fall only under Section 304 part II IPC.

21.Now the last limb of argument is to be considered, which is regarding the offence and the sentence to be inflicted therefor. Hon'ble the Apex Court in the case of Gurmukh Singh Vs. State of Haryana reported in [(2009) 15 SCC 635] has discussed the factors to be considered while awarding appropriate sentence and has held in paragraph no. 23 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;

(c) The intention/knowledge of the accused while inflicting the blow or injury;

(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 behavior 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 of the accused."

In the facts of the instant case, a single lathi blow was given on the spur of moment resulting into death of the deceased. There was no attempt to cause any other injury to the deceased. There was no intention or premeditation in the mind of the appellant to inflict such injuries to the deceased as were likely to cause death in the ordinary course of nature. Considering the evidence of the witnesses and medical evidence, we are of the considered view that accused ought to have been convicted under Sections 304-II IPC instead of under Section 302 IPC.

22.There is no dispute to the fact that the incident had taken place on the spur of the moment. There was no intention or knowledge of the appellant that such blow would result into death of the deceased. Injury was caused without any pre meditation, in a sudden fight. Weapon used for committing the offence was not a deadly weapon. No other criminal case is pending against the appellant. No previous criminal history of the appellant has been reported by the learned A.G.A. No undue advantage of the situation was taken. There was no time gap to cool down.

23.Submission of the learned counsel for the appellant was that the appellant's family is suffering adversely because of his detention and he has already remained in custody for more than 7 years.

24.In this perspective, the offence would fall only under Section 304 part II IPC. We are of the considered view that the conviction of the appellant deserves to be modified from Section 302 IPC to Section 304 part II IPC and his sentence deserves to be reduced from imprisonment for life to the period already undergone by him (About Seven and half years).

25.Accordingly this appeal deserves to be partly allowed and is hereby partly allowed. The conviction of the appellant Ramashraya Yadav is hereby modified from Section 302 IPC to Section 304 part II IPC and his sentence is modified to the period already undergone by him in the instant case. The appellant Ramashraya Yadav is in custody. He shall be released forthwith if not wanted in any other case.

26.Office is directed to communicate this order forthwith to the court concerned and to send back the lower court record to ensure compliance.

 
Order date:21st July, 2015
 
PAL
 
Crl. Appeal No.1869 of 2008       (Raghvendra Kumar, J.)   (S.V.S. Rathore, J.)