Satish Verma vs State Of U.P.
2016 Latest Caselaw 5288 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved 							AFR
 
Court No. - 22
 

 
Case :- CRIMINAL APPEAL No. - 3598 of 2011
 

 
Appellant :- Satish Verma
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Radhey Shyam,Mukesh Kumar,Suresh Chandra Verma
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Amar Singh Chauhan,J.

This Criminal appeal has been filed against the judgement and order dated 27.4.2011 passed by the Additional Sessions Judge, Court No. 7, Farrukhabad in ST No. 280 of 2007 arising out of case crime No. 10 of 2007, under sections 304 and 336 IPC, PS Kamalganj, district Farrukhabad whereby the learned Judge convicted and sentenced the appellant to three months' simple imprisonment under section 336 IPC, ten years RI under section 304 IPC and a fine of Rs. 25,000/- with default stipulation.

The brief facts giving rise to the present appeal are that a written report was handed over on 20.1.2007 by the complainant Bhagwan Singh to the SO, police station Kamalganj, district Farrukhabad to the effect that his son Mahaveer, the deceased aged about 25 years, who was handicapped, was taken away by Satish, the appellant for the purpose of drinking liquor. When Satish and Mahaveer were returning, there had been altercation between them. Smt. Ram Dulari came for rescue. At that time the appellant hit the head of the deceased with brick, who fell on the ground. On hearing the noise of Ram Dulari, the complainant and others reached at the spot, but due to serious injuries, the deceased succummed to the injuries. The appellant taking advantage of darkness, ran away in the field.

On the basis of the aforesaid written report, a case was registered at case crime No. 10 of 2007, under sections 336, 304 IPC at PS Kamalganj, district Farrukhabad (Ext. Ka-4), which was entered into GD vide Report No. 28 at 23.00 hours. After the registration of the FIR, the investigation of the case was entrusted to SI Rahimuddin Khan, who prepared Panchayatnama (Ext. Ka-8). He also prepared letter for CMO (Ext. Ka-9), Challan Laash (Ext. Ka-10) and photo laash (Ext. Ka-11). He also inspected the spot and prepared site plan (Ext. Ka-6). Thereafter the investigation of the case was transferred to SI T. R. Verma, PW 3, who after completing the remaining investigation, submitted the charge sheet against the appellant under sections 336, 304 IPC (Ext. Ka-7).

To bring home the guilt of the appellant, the prosecution has examined as many as five witnesses.

PW 1, Bhagwan Singh is the complainant of the case. He reiterated the versions given in the FIR. He further deposed that his son was taken away by the appellant on the pretext of drinking liquor. When his son did not return, then at about 8.00 PM he along with his other son Manoj went in search of his son-Mahaveer. When he was searching his son, he saw Satish, the appeallnt running away. When the complainant asked the appellant that there are blood on his shirt and pant, then the appellant replied that go and save your son, Kanjad are beating him. He saw the blood in the light of torch. When he reached the spot, he found his son dead. Thereafter he lodged the report, which he proved as Ext. Ka-1.

PW 2, Manoj is the son of the complainant and brother of the deceased. He deposed that at 6.00 PM, Satish Verma took his brother Mahaveer on the pretext of drinking liquor and said that they will return within an hour or two. When he did not return, then he went for his search. When he reached near pond outside village, some altercation was going on between them. Ram Dulari Kanjad was cooling the matter down. When he intervened, then the appellant threw the lathi on the deceased and hit his brother with brick with the intention to kill him. His brother fell down and there was bleeding from the head. The appellant ran away from the spot. On his cry, several persons of the village rushed to the spot. They were searching for the conveyance, but no conveyance was found. In the meantime, his brother succumed to the injuries. He further deposed that his father lodged the report.

The evidence of PW 3, T.R. Verma has already been discussed above.

PW 4 is Dr. Kuldeep Kumar Yadav. He deposed that on 21.1.2007 he was entrusted the work of post-mortem. On that date at 8.30 PM he conducted the post mortem on the body of the deceased, who was brought by constable Anurudh Singh. The deceased was of average built. His both the eyes were closed. Mouth was also closed. Doctor found the following anti-mortem injuries on the person of the deceased:

1. Lacerated wound 3 cm x 1.5 cm x skin deep left side back at head 8 cm behind left ear. Fracture of bone underneath injury. Membrance was also torn.

2. Lacerated would 2.00 cm x 1 cm skin deep left side behind left ear. There was clotting on the head.

In the opinion of the doctor, the death was caused due to the anti-mortem injuries received by the deceased

PW 5 is Parokar Phool Chand. He deposed that Panchayatnama was prepared by SI Rahimuddin on 21.1.2007, who was posted as SO, police station Kamalganj. This witness has further proved the papers prepared by SI Rahimuddin.

After close of the evidence the statement of the accused was recorded under section 313 Cr.P.C., who stated that he has falsely been implicated in the present case and claims to be tried. However, in his defence, the accused-appellant has examined DW 1, Ram Dulari and DW 2, Dharmveer.

DW 1 Smt. Ram Dulari has deposed that on the date of incident at about 5.00 AM when she had gone to attend the call of nature, she saw that a dead body was lying on Nala (rivulet). One brick was also lying stained with blood near the dead body. It appears that Mahaveer fell into the Nala and died due to fall. She further deposed that the deceased was heavy drunkard. She neither saw not heard any altercation between Satish and Mahaveer.

DW 2 is Dharmveer. He deposed that at 5.30 AM when he reached at the place of incident, he saw that dead body of Mahaveer was lying into the Nala. Near the dead body a brick stained with blood was also lying. 10-15 persons were standing there and all of them were saying that Mahaveer fell into the Nala after taking liquor. Mahaveer was handicapped. Satish and Mahaveer had a good relations.

Learned lower court after hearing and perusing the record came to the conclusion that prosecution had established his charge under section 336 and 304 IPC and, therefore, convicted and and sentenced the appellant as already mentioned herein above vide judgement and order, hence this appeal for quashing the said judgement.

Heard learned counsel for the appellant and learned Additional Government Advocate and perused the record of the case.

It is submitted by the learned counsel for the appellant that the appellant is not challenging the order of conviction. The only question remains for consideration is as to whether offence committed by the appellant comes within the purview of section 304 Part II. It is also contended that maximum sentence has been awarded under section 304 IPC.

It is further contened that at the spur of mement, during altercation, injury was caused with the brick and there is no evidence that there was intention to cause death as altercation took place on taking liquor and in absence of repetition of blow, mens rea could not be attributed.

Learned Additional Government Advocate concedes that marpit took place after taking liquor as in the Post-mortem report,smell of alcohol also reported. It is also contended that the act by which the death is done with the knowledte that it is likely to cause death, but the act of the accused cannot be said preplanned.

In the case in hand, smell of liquor was reported in the post-mortem report. It is not denied that accused as well as deceased were heavy drunkard, the accused in a sudden quarrel hit the brick on head of deceased and deceased succummed to head injury. since the deceased and accused were under influence of liquor and suddently in the spur of moment a quarrel took place and deceased sustained injury on the head. There is no predetermination and intention to cause death, the offence in such case will always be punishable under section 304 Part II IPC as held by Hon'ble Apex Court in the cases of State of M.P. Vs. Deshraj, AIR 2004 SC 2764 and State of Punjab Vs. Guru Charan, AIR 1998 SC 3115.

The alleged acts of accused which constitute the offence come within purview of culpable homicide amounting to murder or not amounting to murder?

In this respect Hon'ble Supreme Court in Kandaswamy Vs. State of Tamil Nadu, 2008(62) ACC 969 has held as under:

"This bring us to the crucial question as to which was the appropriate provision to be applied. In the scheme of the IPC 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 is culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the I.P.C. practically recognizes 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 section 300 as 'muder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of section 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.

The ingredients of clause "thirdly" of section 300 IPC were brough out by the illustrious Judge in his terse language as follows:

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."

Privy Council in Reg Vs. Govinda, 1876 ILR 1876 Bom 342, decided on 18.7.1876, held has under:

"Whether the offence is culpable homicide or murder, depends upon the degree of rish to human life. If death is a likely result, it is culpable homicide, it it is the most probable result, it is murder."

In this case, act of the accused was not preplanned and there is no intention to cause death as decesased sustained injury in the altercation took place during influence of liquor. It is clear that it is case of culpable homicide not amounting to murder of the third degree which is punishable under section 304 Part-II IPC. In this case minimum sentence would be upto four years, but I certainly find his case to be a fit case to reduce the sentence of imprisonment to a period of 6 years and this will serve the end of justice.

In view of what has been indicated herein above, the appeal is partly allowed. The conviction of the appellant under sections 336 and 304 IPC is upheld. However, the sentence of the appellant under section 304 IPC is reduced to six years, but imposition of fine shall remain intact.

Office is directed to send a copy of this order to the court concerned for compliance.

Dated: 19.8.2016

Ishrat