Ravinder & Others vs State Of U.P.
2017 Latest Caselaw 2999 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
AFR
 
RESERVED
 
Case :- CRIMINAL APPEAL No. - 3505 of 2003
 

 
Appellant :- Ravindra & Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Ajay Kumar Singh,Vivek Kumar Singh,Yogesh Kumar Srivastava
 
Counsel for Respondent :- Govt. Advocate,Rupak Chaubey
 
AND
 
Case :- CRIMINAL APPEAL No. - 6630 of 2004
 

 
Appellant :- Sanjay
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Ajay Kumar Singh,A.C.Srivastava,A.K.Srivastava,Harish Chandra Tiwari A.C,Jitendra Pratap Singh,Vivek Kumar Singh,Yogesh Kumar Srivastava
 
Counsel for Respondent :- Govt. Advocate,Rupak Chaubey
 

 
Hon'ble Bharat Bhushan,J.

Hon'ble Shailendra Kumar Agrawal,J.

(Delivered by Hon'ble Bharat Bhushan,J)

1. By these appeals, appellants have assailed judgment and order dated 02.07.2003 passed by the then I-Additional Sessions Judge, Baghpat in Sessions Trial No. 211 of 2000 arising out of Crime No 251 of 2000, Police Station (in short ''P.S.') Baghpat, District Baghpat whereby appellants Sanjay, Ravindra and Satish were convicted under section 302 Indian Penal Code (in short ''IPC') and sentenced to life imprisonment. Similarly, late appellant Chandki was also convicted under section 302 IPC and sentenced to life imprisonment separately on 04.07.2003. All appellants were however, acquitted under section 323 IPC.

2. Two separate appeals were filed by appellants. Appellants Ravindra, Satish and late Chandki filed Criminal Appeal No. 3505 of 2003 against aforesaid judgment and order while appellant Sanjay filed separate Criminal Appeal No. 6630 of 2004. As both the appeals stem from the single judgment and order, they have been heard together and are being decided by common judgment.

3. Appellant no. 2 late Chandki in Criminal Appeal No. 3505 of 2003 has died as per office report dated 22.05.2017 and report dated 01.05.2017 of the then Chief Judicial Magistrate, Baghpat, therefore, the appeal filed on his behalf stand abated.

4. Sri Harish Chandra Tiwari, Advocate was appointed Amicus Curiae on behalf of appellant Sanjay Kumar by co-ordinate Bench of this Court vide order dated 10.07.2012 while remaining appellants namely Ravindra and Satish in Criminal Appeal No.3505 of 2003 were represented by Sri Yogesh Kumar Srivastava, Advocate. Sri Rajeev Sharma, AGA has addressed this Court on behalf of the State.

5. Prosecution allegations in brief are that on 19.04.2000 deceased Krishna was going back to his ''gher' (compound) after taking bath at tubewell of one Surjee. As soon as deceased Krishna reached in front of house of one Sukhveer (P.W.-2), appellants Sanjay, Satish, Ravindra and late Chandki accosted him. Deceased Krishna raised alarm whereupon P.W.-1 Meer Chand, P.W. 2 Sukhveer, Om Pal, Sumer etc., reached the spot but Sanjay meanwhile gave single blow of knife to Krishna, who died immediately. It is alleged that P.W. 2 Sukhveer also sustained minor injuries in the scuffle while trying to rescue Krishna.

6. It is claimed that 2-3 days prior to this incident, a row had erupted between the daughters of informant, P.W.-1 Meer Chand and women of family of late Chandki, creating antagonistic relationship between the rival families.

7. Informant P.W. 1 Meer Chand got a written report scribed by one Brijesh Sharma and lodged it at P.S. Baghpat at 7.30 A.M. i.e., within 90 minutes of the incident. It is noteworthy that P.S. Baghpat was located at 8 Kilometers away from the place of occurrence. The case was registered as Crime No. 251 of 2000, under section 302 and 323 IPC by P.W. 3 Head Constable (in short 'H.C.') Devendra Singh. The investigation was entrusted to P.W.-7 Sub Inspector (in short ''S.I.') Suresh Chandra Gangwar, who recorded statements of various witnesses and conducted inquest proceedings in the light of two gas lanterns. The cadaver of deceased was sent for post mortem through P.W.-4 Constable Khushnood Ali and Constable Devender. The autopsy was conducted by P.W. 5 Dr. Deepak Raj Agarwal, who found following ante mortem injuries on the person of the deceased:

Incised wound 4 x 2 x cavity deep on left side front of chest, about 6 cm from the umbilicus at approx 6 O'Clock-cut 7th rib on front.

8. P.W.-6 Dr. RG Verma conducted medical examination of injured P.W.-2 Sukhveer on the next day i.e., 20. 04.2000 and found following injuries on his person:

(I) Abraded contusion 5 cm x 2 cm on lateral side head, 6 cm above left ear soft.

(II) Scabbed abrasion 1½ cm x 1 cm on left shoulder.

9. The Investigating Officer (in short ''I.O.'), found sufficient evidence against all accused appellants and submitted charge sheet under sections 302 and 323 IPC. The then Sessions Judge, Baghpat framed charges against all accused appellants under sections 302 and 323 IPC on 05.09.2000. Accused persons denied all allegations and desired to be tried.

10. Prosecution adduced evidence of P.W. 1 Meer Chand informant, P.W.2 Sukhveer (injured), P.W.-3 H.C. Devendra Singh [recorded First Information Report (hereinafter referred as ''FIR')], P.W. 4 Constable Khusnood Ali (transported cadaver), P.W. 5 Dr. Deepak Raj Agarwal (conducted autopsy), P.W.-6 Dr. RG Verma (examined P.W. 2 Sukhveer) and P.W. 7 S.I. Suresh Chandra Gangwar (conducted investigation).

11. The statements of accused were recorded under section 313 of the Code of Criminal Procedure (in short ''Cr.P.C.') wherein they denied all allegations and claimed false implication. The accused persons did not give any evidence in defence.

12. Prosecution proved written report as Exhibit Ka-1, inquest report as Exhibit Ka-2, Chik report as Exhibit Ka-3, Carbon copy of entries of General Diary (in short ''G.D.') as exhibit Ka-4, Post mortem report of deceased Krishna as Exhibit Ka-6, Injury report of P.W.-2 Sukhveer Singh as Exhibit Ka-7, site plan prepared by I.O. as Exhibit Ka-8, Fard Baramadgi of knife as Exhibit Ka-9 and charge sheet as Exhibit Ka-10.

13. The impugned judgment reveals that some mistakes were noticed in the numbers of the exhibited documents but it was finally corrected on 26.04.2003.

14. On conclusion of the trial, the Additional Sessions Judge, Baghpat found all appellants guilty of offence under section 302 IPC on 02.07.2003 and accordingly convicted appellants Sanjay, Ravindra and Satish to life imprisonment on the same day. However, appellant Chandki did not appear in the court, therefore, non bailable warrant was issued. He was subsequently arrested and produced before the trial judge on 04.07.2003. Chandki, too, was sentenced to life imprisonment on that day. Record reveals that appellant Sanjay escaped while being transported to District Jail and was subsequently arrested by the police. The appeal filed by Chandki stand abated in view of his death, as said earlier.

15. Prosecution has produced two eye-witnesses of the incident namely P.W.1 Meer Chand (informant) as well as P.W.-2 Sukhveer (injured). P.W.-1 Meer Chand is the uncle of deceased Krishna. He was standing near the house of Sukhveer with P.W. -2 Sukhveer, Ompal (not examined) and Sumer (not examined). They reached the place of occurrence on the commotion made by the deceased Krishna.

16. Meer Chand has testified that his nephew, deceased Krishna, was grabbed by accused persons including late Chandki but stabbed only by appellant Sanjay. He has also stated that P.W.- 2 Sukhveer sustained minor injuries in the scuffle, when he tried to rescue the deceased.

17. Similar evidence has been given by P.W. -2 Sukhveer. He has also stated that a single blow of knife was given by appellant Sanjay to deceased Krishna. Remaining accused persons had surrounded the deceased. The testimony of both eye-witnesses is quite natural, in accordance with normal human conduct, credible and trustworthy. An intensive cross-examination was conducted with these eye-witnesses but nothing adverse could be extracted by the defence counsel.

18. It is pertinent to point out that FIR was lodged within 90 minutes at P.S. Baghpat, which was almost 8 kilometers away from the place of occurrence. In this written report, Exhibit Ka-1, all details of the incident have been mentioned including the names of assailants as well as names of the witnesses. Inquest report, Exhibit Ka-2 was signed by five witnesses including P.W. -1 Meer Chand and P.W.-2 Sukhveer. This inquest report was prepared in the same night. The incident occurred at 6.00 P.M. FIR was lodged at 7. 30 P.M. Inquest proceedings were initiated at 9.00 P.M. and were concluded by 10.00 P.M., meaning thereby, that inquest proceedings were concluded within four hours of the incident.

19. Inquest report contains the crime number as well. The signatures of P.W.-1 Meer Chand and P.W.-2 Sukhveer on inquest report establish the presence of both these eye-witnesses on the spot. In any case this incident occurred in village Mavikalan where both P.W. -1 Meer Chand and P.W. -2 Sukhveer reside, therefore, their presence in the village was natural unless proved contrary. No contrary evidence has been produced in this regard.

20. It is pertinent to point out that P.W.-1 Meer Chand and P.W. -2 Sukhveer both belong to depressed classes of society. P.W. -1 Meer Chand has testified that he works as cleaning staff in Kisan Intermediate College and that his brother Fakeer Chand, father of the deceased Krishna used to work in Delhi, again as a cleaning staff. Deceased Krishna, too, was working as a cleaning staff but he used to come back every day from Delhi to Baghpat. It is pertinent to point out that district Baghpat is located at the out-skirts of Delhi. A judicial notice of this fact can be taken that large number of people move to and fro every day between Baghpat and Delhi. The incident occurred in the evening at 6.00 P.M., near the house of Sukhveer, therefore, the presence of P.W.- 2 Sukhveer cannot be doubted. No contrary evidence in this regard has been given. The evidence given by both P.W. -1 Meer Chand and P.W. -2 Sukhveer is consistent not only with the original prosecution story but also with the post-mortem report of deceased Krishna, Exhibit Ka-6, injury report of Sukhveer, Exhibit Ka- 7, testimony of P.W. -5 Dr. Deepak Raj Agarwal (conducted autopsy) and P.W.- 6 Dr. RG Verma (conducted medical examination of P.W.- 2 Sukhveer).

21. Learned counsel has pointed out certain contradictions in the evidence of P.W.- 1 Meer Chand. They have argued that details of injuries sustained by P.W.-2 Sukhveer, as given by P.W.-1 Meer Chand are not consistent with the testimony of P.W.- 2 Sukhveer. We do not agree with this argument. The core of evidences of both eye-witnesses is that deceased Krishna was accosted by four appellants including late Chandiki and he was then stabbed by appellant Sanjay. It is also said that an attempt was made by P.W.- 2 Sukhveer to rescue deceased but he himself sustained minor injuries in the scuffle. These injuries were sustained by P.W.- 2 Sukhveer. P.W. 6 Dr. RG Verma has pointed out that an abraded contusion and scabbed abrasion were found on the person of injured P.W.- 2 Sukhveer. He has given his opinion that these injuries could have been sustained at 6.00 P.M. on 19.04.2000. We do not think that medical examination on next date of the incident i.e., 20.04.2000 creates any doubt about these injuries. These injuries were minor. The grave incident had occurred wherein 20-21 years old boy was murdered, therefore, all energy was naturally diverted towards managing subsequent event. Failure of Sukhveer to immediately go to doctor must be taken into consideration in the context of the incident. The injuries sustained by Sukhveer were ordinary in comparision of murder of deceased Krishna.

22. Learned Amicus Curiae as well as counsel for the appellants have argued that trial judge did not trust the injuries sustained by Sukhveer. They have also drawn attention of the Court towards the observation of the trial judge wherein it has been written that the prosecution has not established the manner of injuries on the person of Sukhveer. It is true that a conclusion in this regard has been made by the trial judge but we do not agree with the conclusion of the trial judge for the simple reason that in earlier part of his judgment he has specifically said that it is proved that Sukhveer sustained injuries in the same incident but later on the learned Additional Sessions Judge concluded that prosecution had failed to prove the manner of causing injuries on the person of Sukhveer. This observation of the trial judge is contradictory. The trial judge was convinced that P.W.-2 Sukhveer sustained injuries in the same episode. The injuries were also proved by medical report of the injured, which is available on record as Exhibit Ka- 7. It is pertinent to point out that these injuries were proved by P.W. 6 Dr. RG Verma. The testimony of Dr. RG Verma has not been disbelieved by the trial judge, therefore, a half-hearted fag end observation of trial judge that manner of causing injuries had not been proved by prosecution is not sustainable and we reject this conclusion. We believe that injuries sustained by P.W.- 2 Sukhveer, in fact, have established his presence on the spot, which was in front of his house.

23. In the instant case, FIR was lodged promptly. Inquest proceedings were concluded within four hours of the incident. Medical evidence is consistent with the oral testimony. Ocular testimony is completely trustworthy. Appellant Ravindra was arrested immediately on 20.04.2000. Other appellants, including Chandki were also arrested on 22.04.2000 from another village at 3.30 A.M. A blood stained knife was recovered at the instance of appellant Sanjay. We also have carefully examined all the material on record and we are convinced that deceased Krishna was done to death by stab wound caused by appellant Sanjay.

24. We also believe that prosecution has been able to prove his case beyond all reasonable doubts, as far as the role of appellant Sanjay is concerned. We believe that the incident is proved. Presence of all appellants has been established. However, the prosecution story indicates that deceased Krishna was done to death by the attack committed by appellant Sanjay. Remaining appellants namely Ravindra, Satish and Chandki were also convicted, apparently with the aid of section 34 IPC. However, no charge under section 34 IPC was framed. It is pertinent to point out that even in conviction order, section 34 IPC was not mentioned.

25. Apparently, no specific act was attributed to appellant Ravindra, Satish and Chandki. No weapon was shown in their hands. There is no evidence on record to demonstrate that Ravindra and Satish participated in the attack on deceased Krishna. The entire prosecution evidence merely say that appellant Ravindra, Satish and late Chandki merely grabbed deceased Krishna, while the appellant Sanjay gave single knife blow to deceased Krishna, therefore, appellants Ravindra and Satish cannot be convicted of any simplicitor act. It is apparent that only way appellants Satish and Ravindra could have been convicted under section 302 IPC was with the aid of section 34 IPC.

26. Coming back to the act attributed to appellant Sanjay, it is evident that only single blow of knife was given by appellant Sanjay to deceased Krishna, FIR indicates it and testimony of P.W. 1 Meer Chand and P.W.- 2 Sukhveer prove it.

The evidence on record reveals that no other accused caused any injury to the person of the deceased Krishna except appellant Sanjay. The role of appellant Sanjay, while explicit, does not necessarily indicate intention to commit murder. There is no specific evidence on record to demonstrate that appellants were interested in committing the murder of deceased Krishna. The fact that only one injury was caused, that too, by only appellant Sanjay demonstrates the intention to cause injury to deceased Krishna but not an intention to commit murder. It is pertinent to point out that four persons had surrounded the deceased yet only one person whipped out a knife and attacked Krishna. Sanjay inflicted single knife blow on the chest of deceased despite opportunity of causing more injuries. It is pertinent to point out that Sanjay or his companions did not cause any serious injury either to P.W. - 1 Meer Chand or P.W.-2 Sukhveer. We believe that death of deceased Krishna was caused by the attack committed by appellant Sanjay in the chest of deceased Krishna but the fact that Sanjay gave single blow of knife to the deceased, makes us to seriously consider the applicability of later part of fourth exception of section 300 IPC to the present case, mainly that the appellant had not taken undue advantage or had not acted in any cruel manner.

27. We have carefully weighed the facts and circumstances of the case. We are of the opinion that appellant Sanjay did have a requisite intention of causing bodily injury but we have no material on record to demonstrate that appellant Sanjay intended to commit murder of deceased Krishna. We believe that crime of appellant Sanjay would fall within the ambit of section 304 (ii) IPC. We also believe that role of other appellants namely Ravindra and Satish are different. They were not holding any weapon. They did surround deceased Krishna but they did not cause any injury. It is true that section 34 IPC has not been mentioned by the trial judge in his judgment but we believe that even section 34 IPC cannot be used for punishing appellants Ravindra and Sanjay even under section 304 (ii) IPC.

28. In Rajesh Kumar Vs State of H .P., (2008)15 SCC 705, the Supreme Court elucidated and laid down the following principles as applicable to Section 34 IPC:

"13. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar Vs State of Punjab (AIR 1977 SC 109), the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision."

29. Thus we believe that there is no evidence on record to demonstrate that appellants Ravindra and Satish shared common intention of causing culpable homicide not amounting to murder. No such evidence is available on record. We believe that appellants Ravindra and Satish can only be convicted under section 324 IPC read with section 34 IPC.

30. In view of the aforesaid discussion, these appeals are partly allowed. Conviction of appellants Sanjay, Satish and Ravindra is set aside under section 302 IPC. We convict appellant Sanjay under section 304 Part-II IPC and accordingly sentence him to rigorous imprisonment (''R.I.') for ten years and a fine of Rs. 1,00,000/- (Rs. One Lac). In case of non-payment of fine, appellant Sanjay shall undergo further imprisonment for the period of two years. Fifty percent of the fine, when realized, shall be paid to the legal heir of deceased Krishna.

31. We also convict appellants Satish and Ravindra under sections 324 read with 34 IPC and sentence them to three years R.I. along with fine of Rs. 50,000/- (Rs. Fifty Thousand) each. In default of payment of fine, they shall undergo further imprisonment of one year each. Fifty per cent of each fine, when realized, shall be paid to legal heir of deceased Krishna.

32. Office is directed to certify the judgment to the concerned trial court within fifteen days. The concerned court shall thereafter report compliance within a month thereafter.

33. Sri Harish Chandra Tiwari, Advocate, Amicus Curiae has worked very diligently. His assistance in this case was very valuable for this Court. Office is directed to make the payment of honorarium to learned Amicus Curiae in accordance of the Rules of the Court.

34. Both the aforesaid appeals are decided accordingly.

Date: 04.08.2017

shailesh