Riyasat vs State Of U.P.
2016 Latest Caselaw 3617 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 

 
COURT NO-4
 

 
CRIMINAL APPEAL NO. 2654 OF 2004
 

 
Riyasat								....Appellant
 
Versus
 
State of U.P. 							.....Respondent
 
**********
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Vinod Kumar Srivastava-III,J.

( Delivered by Hon'ble Ramesh Sinha, J.)

1. This criminal appeal has been filed against the judgment and order dated 30.11.2004 passed by Special Additional Sessions Judge, (E.C. Act), Hardoi, passed in Sessions Trial No. 694 of 2002, by which the appellant has been convicted under Section 302 I.P.C. and has been sentenced to undergo imprisonment for life and a fine of Rs.5,000/- has been imposed upon the appellant, and in default of payment of fine, further imprisonment of one year.

2. The prosecution case in brief is that the sister of informant namely Smt. Latifa Bano was married to the accused-appellant Riyasat, who have five children out of their wedlock and one eldest child was aged about 22 years. Prior to one year of the incident sister of the informant Smt. Latifa Bano along with her children used to live with him at village Mangiyawa. The accused used to harass and assault his sister on account of which she was not going to her in-laws house. Therefore, the accused was having inimical relationship with the family of informant. On 2.5.2002 in the morning the informant along with his brother Shabir and cousin brother Khalil was going for work and when they reached near Ghantaghar Chauraha at about 07:30 A.M. the accused-appellant Riyasat armed with an axe came to his brother and uttered that he would killed him today as he has separated him from his children. After which he suddenly gave a blow by an axe on his head to kill him, on account of which his brother Shabir was injured and he had fallen on the ground. The informant and other persons witnessed the incident and tried to apprehend the accused but he fled away. The injured Shabir was lying in a pool of blood and the axe was also lying at the spot. Police arrived at the spot and took the informant's brother to the hospital and after admitting him he gave a written report which is Ex-Ka 1 at the concerned police station. The informant in his report stated that the present incident was committed by the accused-appellant Riyasat in conspiracy with his brother and family members.

3. On the basis of the written report an F.I.R. was lodged on 2.5.2002 at 08:40 A.M. and a chik F.I.R. was prepared as Ex-Ka 9. The incident was also endorsed in G.D. Rapat No. 14 at the same time, a carbon copy of the same is Ex-Ka 10. The injured Shabir died on the same day and the case was converted under Section 302 I.P.C. and endorsement was also made in G.D. of the concerned police station, carbon copy of the same is Ex- Ka 11.

4. The inquest report of the dead body of the deceased was prepared as Ex-Ka 3, other police papers were also prepared i.e. Form 13 which is marked as Ex-Ka 4, photo lash Ex-Ka 5, information to R.I. and C.M.O. Ex-Ka 6 and Ex-Ka 7. The dead body of the deceased was sealed and sent for post-mortem, which was conducted on the same day on 2.5.2002 at 05:55 P.M. which is marked as Ex-Ka 2.

5. The Investigating Officer conducted the investigation and prepared the site plan Ex-Ka 12 and recovered the axe from the place of occurrence and prepared the memo Ex-Ka 13 and also took plain earth and blood stained earth and prepared recovery memo which is Ex-Ka 14. He recorded the statement of the witnesses and submitted the charge-sheet against the accused-appellant Riyasat before the Court which is marked as Ex-Ka 15.

6. The case was committed to the Court of Sessions by the Magistrate, on which the trial Court framed charge against the accused-appellant Riyasat under Section 302 I.P.C. Accused-appellant Riyasat has denied the charge and claimed trial.

7. The prosecution in support of its case examined PW-1 Shakir informant of the case PW-2 Khalil eye witness of the occurrence. PW-3 Dr. V.V. Tripathi who conducted the post-mortem of the deceased. PW-4 Shambhunath who is the scribe of the F.I.R. and proved the written report Ex-Ka 1. PW-5 Dori Lal Chaudhary who prepared the Panchayatnama and papers relating to post-mortem which is marked as Ex-Ka-3 to Ex-Ka 8. PW-6 H.C. Hemraj who has prepared chik report Ex-Ka 9 and G.D. Ex-ka 10 and Ex-Ka 11. PW-7 Indramohan Badola, Investigating Officer of the case who has prepared the site plan, recovery memo of axe, blood stained earth and plain earth and submitted the charge-sheet against the accused-appellant Riyasat which is Ex-Ka 12 to Ex- Ka 15.

8. The statement of the accused was recorded under Section 313 Cr.P.C. and he has admitted the fact that the informant was his cousin brother-in-law (Sala) and has denied the rest of the prosecution case. He further stated that the Investigating Officer has submitted wrong charge-sheet against him and the witnesses have deposed against him on account of inimical relationship and further he was having some enmity on account of election of Chairmanship.

9. The accused-appellant Riyasat did not led any evidence in defence.

10. PW-1 Shakir is the informant of the case and cousin brother of the deceased, who has reiterated the prosecution case as stated by him in the F.I.R. before the trial Court. Similarly PW-2 Khalil also happens to be cousin brother of the deceased who has supported the prosecution case as stated by PW-1 and has stated that he is witness of the incident as he was accompanying the deceased and the first informant at the time of the incident. The deceased was done to death by the appellant who assaulted him with an axe. 11. PW-3 Dr. V.V. Tripathi, conducted the post-mortem of the deceased on 2.5.2002 at 05:55 P.M. and found following injury on his person:

1. Incised wound : 12 Cm x 3 cm cranial cavity deep on the head 10 cm above the occipital point underneath occipital and both parietal bone found cut and fractured.

12. As per the opinion of the doctor PW-3 the death occurred due to coma as a result of ante-mortem injury.

13. The Investigating Officer of the case PW-7 Indramohan Badola has conducted the investigation and has submitted charge-sheet against the accused-appellant Riyasat under Section 302 I.P.C.

14. Heard, Sri Alok Kumar, learned counsel for the appellant and Sri Umesh Chandra Verma, learned A.G.A. for the State.

15. The sole ground which has been raised on behalf of the appellant that the appellant is of 72 years old and has been in jail for near about 14 years as he is stated to be in jail since 17.7.2002 and the case would not travel beyond Section 304 I.P.C. even after the prosecution case is taken on its face value, therefore his conviction under Section 302 I.P.C. and sentence for life imprisonment be set-aside and his sentence be reduced to period already undergone under Section 304 I.P.C.

16. Learned counsel for the appellant has placed reliance in support of his argument judgement of the Apex Court Gurmukh Singh Vs. State of Haryana [2009] INSC 1485 (25 August 2009) SCC, judgment and order passed by Division Bench of this Court in Criminal Appeal No. 1869 of 2008 Ramashraya Yadav Vs. State of U.P. decided on 21 July 2015 and judgment and order passed by Division Bench of this Court in Criminal Appeal No. 2177 of 2011 Phool Singh Vs. State of U.P. decided on 25 November 2011.

17. Learned A.G.A. argued that the case under Section 302 I.P.C. is clearly made out because the injury received was fatal but he could not dispute the fact that only single blow was given by the appellant and there was no repeated blow.

18. Considering the submissions advanced by the learned counsel for the parties and perused the record.

19. It appears from the post-mortem report Ex-Ka 2 of the deceased Shabir conducted on 2.5.2002 by Dr. V.V. Tripathi that the deceased received one single incised wound 12cm x 3 cm cranial cavity deep on the head 10 cm above the occipital point underneath occipital and both parietal bone found cut and fractured. The cause of death as per the post-mortem report was a result of ante-mortem injury. It is an admitted case that while the deceased was going along-with his cousin brothers i.e. the informant PW-1 and PW-2, the accused-appellant Riyasat met him on the way in the morning while they were going to work and he in a heat of passion seeing the deceased whom he thought to be responsible for separating him from his children in state of anger gave him a single blow on his head by an axe and, thereafter, he fled away from the place of occurrence leaving behind the axe on the spot, when he was tried to apprehend by the informant and other persons present there. The appellant did not repeat any blow by an axe on the deceased which shows that he had no intention to commit the murder of the deceased and he found the deceased co-incidently while he was going to work. A single blow was given without repetition in the course of the quarrel.

20. The trial Court has recorded the conviction of the appellant holding that the presence of the witnesses at the spot was natural, there was no reason for his false implication and ocular testimony corroborates the post-mortem report of the deceased. We see no error in the finding of the conviction recorded by the trial Judge.

21. The contention of the learned counsel for the appellant that even if the case is taken on its face value, the case would not go beyond under Section 304 I.P.C. hence, the conviction and sentence of the appellant under Section 302 I.P.C. be set-aside, appears to have substance, as from the evidence on record, it is apparent that the deceased was found by the appellant co-incidently while he was going to work and he in state of anger had assaulted the deceased with an axe as it was in his mind that the deceased separated him from his children. The appellant could not have any intention to commit the murder of the deceased from before and that is why he did not repeat the blow given to the deceased.

22. We are of the opinion that the appellant caused injury without pre-meditation for cruelty which has resulted into the death of the deceased.

23. In view of the above discussion, we are of the view that the conviction of the appellant under Section 302 I.P.C. may be substituted with sentence under Section 304 Part-I I.P.C. As the appellant is of 72 years old and has undergone near about 14 years in jail, it is appropriate to reduce the life imprisonment awarded to the appellant to the period of 14 years, the period already undergone by him, with a token fine of Rs.500/- and in default of payment of fine, further imprisonment of 15 days. The appellant shall be released forthwith unless he is not wanted in any other case.

24. The appeal stands partly allowed.

25. Let a copy of this judgment be sent to the learned Sessions Judge, Hardoi, for ensuring compliance.

(Vinod Kumar Srivastava-III,J.)       (Ramesh Sinha,J.)
 

 
Order Date :-  23.6.2016
 
Ishan