Om Prkash Nai vs State Of U.P.
2017 Latest Caselaw 3061 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 40 
 

 
Case :- CRIMINAL APPEAL No. - 1338 of 1990
 

 
Appellant :- Om Prakash Nai
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Siddharth Shukla,S.V.Singh,Amicus Curie
 
Counsel for Respondent :- GA
 

 
Hon'ble Bala Krishna Narayana,J. 

Hon'ble Arvind Kumar Mishra-I,J.

(By the Court)

1. Heard Sri S.V. Singh, learned amicus curiae for the appellant and Sri A.N. Mulla, learned AGA for the State.

2. This appeal has been preferred by the appellant- Om Prakash Nai against the judgment and order dated 01.06.1990 passed by Sessions Judge, Gorakhpur in Sessions Trial No. 64 of 1990 (State Vs. Om Prakash Nai) arising out of Case Crime No. 78 of 1989 at Police Station Nautanwa, District Gorakhpur by which the appellant has been convicted and sentenced to imprisonment for life under Section 304 IPC.

3. Briefly stated the facts of this case are that on the basis of the written report Ext. Ka1 which was scribed by PW5 Mohd. Nazir on the dictation of PW1 Bhola elder brother of the deceased-Paltan and given at Police Station Nautanwa, District Gorakhpur on 5.7.1989 at about 3:20am, Case Crime No. 78 of 1989, under Section 302 IPC was registered against the accused-appellant-Om Prakash Nai. In the FIR it was alleged that PW2 Smt. Awadhi widow of Adharey Harijan was residing in her house in Village Sheotara Tola Marjadpur, Police Station Bargadwa, District Maharajganj. Towards the south of her house is the house belonging to one Baran, further south is the house of deceased Paltan and his brother Bhola PW1. Smt. Awadhi had a young daughter Bindi PW3 who was married but she most of the time used to stay in her maternal home with her mother. The accused-appellant-Om Prakash Nai had also started residing in Village Shoetara Tola Marjadpur in the house of one Banda who was a man of known bad character. The accused-appellant used to visit the house of PW2 Smt. Awadhi as he had an eye upon her younger daughter Bindi who often stayed with her in her house which was objected to by Smt. Awadhi as well as by deceased Paltan.

4. Before the incident accused-appellant had asked Paltan to repair the thatched roof of his house but the deceased-Paltan had refused to do so. In the intervening night of 4th/5th July, 1989, PW4 Ram Bilas, cousin brother of the husband of Bindi had come to the house of Smt. Awadhi and had brought a tape recorder with him with the plan to stay during the intervening night of 4th/5th July 1989 in the house of Smt. Awadhi. When they started playing songs on the tape recorder several villagers namely Bhagwane and Chithru came to the house of Smt. Awadhi and shortly thereafter they were joined by deceased-Paltan also because he was a member of the the dance party which was formed by Ram Bilas. While Smt. Awadhi and her younger daughter Bindi and the aforesaid persons were sitting in the 'osara' of her house where the tape recorder was being played, at about 11pm, the accused-appellant also came there and sat inside the osara. Smt. Awadhi and Paltan objected to his presence on which Om Prakash Nai told Paltan that it appears that he was not going to give up his hooliganism, and at once pulled out a country made pistol and fired at Paltan causing firearm injury on his head and as a result of injury so received by him he fell down in the ground and died instantaneously and the accused ran away from the place of occurrence. Thereafter, the information of the incident was given by Smt. Awadhi and Bindi to deceased's elder brother PW1 Bhola. He came to the house of Smt. Awadhi and found his brother Paltan lying dead.

5. Thereafter, Bhola went to the house of Mohd. Nazeer, pradhan of village and brought him to the house of Smt. Awadhi. Thereafter, the written report of the occurrence Ext. Ka1 was scribed by Mohd. Nazeer on the dictation of PW1 Bhola on which PW1 Bhola had put his thumb impression. Thereafter, accompanied by the Chaukidar Pardeshi and Ram Briksh and other residents of the Village, PW1 Bhola went to Police Station to lodge the FIR of the incident.

6. On the basis of the written report of the occurrence Ext. Ka1, case crime no. 78 of 1989, under Section 302 IPC was registered against the accused-appellant, chek FIR Ext. Ka3 and the relevant GD entry vide rapat no. Ext. Ka were prepared by Constable K.K. Pandey.

7. The investigation of the case was taken up by the Stationer Officer S.I. Ram Raj Singh PW6 who after recording the statements of PW1 Bhola, Chaukidar Pardeshi and Ram Briksh who had accompanied PW1 (informant) Bhola to the police station reached the place of occurrence at about 6am and held the inquest. After completing the inquest of the dead body of the Paltan he prepared the inquest report Ext. Ka4 and other related documents namely photo lash, challan lash and two letters addressed to CMO Ext. Ka5 to Ext. Ka9 respectively. Thereafter, the dead body of the deceased-Paltan was sealed and handed over to Constable Bhaiya Lal and Home Guard Tara Prasad Pandey for being taken to the mortuary. The Investigating Officer after inspecting the place of occurrence prepared the site plan Ext. Ka13. He also seized one churila and a pair of slippers of the deceased and one dhebari from the place of occurrence which was given by him in the supurdagi of Smt. Awadhi and recovery memo of the aforesaid articles Ext. Ka12 was prepared by him on the spot. He also collected bloodstained and plain earth from the place of occurrence and prepared recovery memo Ext. Ka10. He recorded the statements of Bilas, Chithru, Bhagwane, Quddus and other witnesses on 6.7.1989. The postmortem on the dead body of deceased-Paltan was conducted by PW7 Dr. Rajesh Kumar, Medical Officer, District Hospital, Gorakhpur on 6.7.1989 at 4pm. The following ante-mortem injuries were found on the dead body of Paltan :-

(i) contusion 3 cm x 3 cm around the left eye.

(ii) gunshot wound of entry 3 cm x 3 cm x brain cavity deep, brain matter coming out right side face just anterior to right ear. Blackening, charring, margins inverted, direction right to left upwards.

On internal examination, under injury no. 1 haematoma was found all over and multiple fracture of skull bones was found. The brain membrances were found ruptured, lacerated and brain was coming out from the wound. Twenty-three small metallic pellets and three pieces of cork wads were found in side. The base of the skull was also found fractured. In the stomach semi-digested 6 oz. food material including rice and dal was found. The small intestine was empty and the large intestine was full.

The death had occurred about two days before the postmortem and this death occurred due to hemorrhage and shock as a result of ante-mortem gun-shot injuries.

8. The Investigating Officer after completing the investigation filed charge-sheet Ext. Ka14 against the accused-appellant under Section 302 IPC before Judicial Magistrate-III, Gorakhpur. Since the offence enumerated in the charge-sheet was triable exclusive by the Court of Sessions, Judicial Magistrate-III, Gorakhpur committed the case for trial of the accused to the Court of Sessions Judge, Gorakhpur where it was registered as Session Trial No. 64 of 1990 (State Vs. Om Prakash Nai) and who on the basis of the material collected during investigation and after hearing the prosecution as well as the accused on the point of charge, framed charge under Section 302 IPC against the accused who abjured the charge and claimed trial.

9. The prosecution in order to prove its case against the accused-appellant examined as many as seven witnesses and filed the affidavit of Bhaiya Lal who had taken the dead body of the deceased Paltan from the place of occurrence to the mortuary for conducting postmortem.

10. PW1 Bhola (informant) the real brother of the deceased-Paltan, PW2 Smt. Awadhi, PW3 Bindi, PW4 Ram Bilas and PW5 Mohd. Nazir who had scribed the FIR were examined as witnesses of fact while PW6 Ramraj Singh and PW7 Rajesh Kumar were produced as formal witnesses. The accused-appellant in his statement recorded under Section 313 Cr.P.C., stated that he neither knew Smt. Awadhi nor her daughter Bindi. He further stated that he neither resided in Village Sheotara Tola Marjadpur nor he had ever visited the house of Binda or the house of Smt. Awadhi. He also denied that he had ever asked deceased Paltan to repair the thatched roof of his house. The murder of Paltan was not committed by him and he had falsely been implicated in the present case by PW5 Mohd. Nazir (pradhan of the village) because he had supported the rival candidate Sattar Singh in the last election held for the office of Pradhan of the village. The accused-appellant did not examine any witness in defence.

11. The learned Sessions Judge, Gorakhpur after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the evidence on record, convicted the accused-appellant under Section 304 IPC and sentenced him to imprisonment for life.

12. Hence this appeal.

13. Sri S.V. Singh, amicus curiae appearing on behalf of the appellant Om Prakash Nai submitted that he is confining his submission only to one ground; he expressly gave up his challenge to the findings of the Trial Court so far as the conviction of the appellant under Section 304 IPC is concerned and he confined his challenge to the quantum of punishment (life imprisonment awarded to him) alone. According to Sri S.V. Singh, amicus curiae having regard to all the circumstances which resulted in appellant's conviction and the provisions of Section 304 IPC, this Court should alter the award of life sentence to that for imprisonment of either description for a term which may extend to 10 years. Learned amicus further submitted that although Section 304B which consists of two parts prescribes awarding of imprisonment for life or imprisonment of either description for a term which may extend to 10 years together with fine, if the act by which the death is caused is done with the intention of causing death (Part I) or with imprisonment of either description for a term which may extend to 10 years or with fine or with both, if the act is done with the knowledge that it is likely to cause death but without any intention to cause death (Part II), yet according to him the instant case is not a case where the Trial Judge should have awarded life sentence to the appellant. Learned amicus submitted that any term upto 10 years would meet the ends of justice. This Court, should allow the appeal to this extent by modifying the impugned judgment in so far as as the quantum of sentence is concerned and reduce the same from life imprisonment to that of either description for a term which may extend to 10 years together with fine.

14. Sri A.N. Mulla, learned AGA appearing for the State, while countering the submission made by counsel for the appellant submitted that having regard to the totality of the circumstances emerging out from the evidence and the facts that a young man was murdered while enjoying songs on a tape recorder only for his objecting to the presence of the accuse-appellant at the place where the tape recorder was being played where two ladies including one young girl were also sitting, the award of sentence of life imprisonment to the appellant is wholly justified and hence this Court should not interfere with the quantum of sentence.

15. After having heard the learned counsel for the parties and on perusal of entire record of the case, we are inclined to allow this appeal in part, finding some force in the submission urged by the learned amicus.

16. Though the appellant did not make any attempt to assail the finding of his conviction on merits, yet with a view to satisfy ourselves as to whether the finding of the court below on conviction is legally sustainable or not, we perused the record and specially the evidence therein. Having so perused, we are satisfied that no case is made out to interfere in the findings of the court below on merits for the following reasons.

17. Firstly the FIR of the incident was lodged by PW1 Bhola, brother of the deceased promptly on 5.7.1989 at about 3:20am with regard to the occurrence which had taken place in the intervening night of 4th/5th July, 1989 ; secondly all the witnesses of fact including eye-witnesses PW2, PW3 and PW4 had fully supported the prosecution case as spelt out in the FIR. They were subjected to a gruelling cross-examination by the defence counsel but they failed to illicit anything from them which may discredit their testimony; thirdly the medical evidence on record fully corroborates the ocular version ; and lastly the prosecution had fully succeeded in proving by cogent and reliable evidence that the occurrence had taken place at the time, place and manner as narrated in the FIR.

18. Thus in view of the above, we find that the Trial Judge did not commit any illegality in convicting the accused-appellant under Section 304 IPC. Considering the manner of assault and the weapon used by the appellant in committing the murder of Paltan, we have no hesitation in holding that the act by which the death of Paltan was caused clearly falls under Section 304 Part (I) IPC.

19. Now, the question arises as to whether we should reduce the appellant's sentence and if so, to what extent, as urged by the appellant's counsel.

20. In order to appreciate the submission advanced by the learned amicus curiae for reducing the appellant's sentence it would be useful to extract Section 304 IPC herein below :

304. Punishment for culpable homicide not amounting to murder.--Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

21. Even the most plain reading of Section 304 IPC indicates that the Court, upon convicting an accused under Section 304 Part (I) IPC, as is the present case, is not bound always to punish him with imprisonment for life and the Court can in place of awarding life imprisonment may punish the convict with imprisonment of either description for a term which may extend to 10 years and also with fine. Where the conviction is under Section 304 Part (II) IPC, the Court can punish the accused on conviction with imprisonment of either description for a term which may extend to 10 years or with fine or with both. Thus it is not at all mandatory for a Court to award imprisonment for life to an accused, convicted under Section 304 Part (I) IPC and imprisonment for a term which may extend to 10 years together with fine can also be awarded.

22. Upon perusing the impugned judgment, we have found that the learned Trial Judge while awarding the extreme sentence of imprisonment for life to the accuse-appellant has failed to give any reason. Moreover the sentencing part of the judgment indicates that the accused-appellant's counsel was not heard by the Trial Judge on the question of sentence and the extreme sentence of life imprisonment was awarded to the accused-appellant.

23. Thus in view of the above and considering the facts inter alia that the accused-appellant at the time of the incident was aged about 25 years and presently he is aged about 52 years, that incident was neither preplanned nor premeditated but was a result of sudden provocation, that there was no previous enmity between the deceased and the accused-appellant and that appellant has no criminal antecedent to his credit, we are of the considered opinion that the ends of justice would be met if we reduce the sentence of the appellant from life imprisonment to that of 10 years term. In our view, this case does not fall in the category of a 'rare case' so as to award the life imprisonment.

24. For the aforesaid reasons, the sentence of life imprisonment awarded to the appellant is liable to be altered.

25. In view of the foregoing discussion, this appeal succeeds and is allowed in part. The recorded conviction of the appellant under Section 304 IPC is upheld but the awarded sentence of life imprisonment to him is reduced to 10 years rigorous imprisonment and a fine of Rs. 10,000/- and in default of payment of fine 2 years additional rigorous imprisonment. The appellant is on bail. His bail bonds are cancelled and his sureties discharged. He shall be taken into custody and sent to jail forthwith for serving out the remaining part of his sentence.

26. There shall be however no order as to costs.

Order Date:- 08.08.2017

SA