Arvind Sharma vs State Of U.P.
2017 Latest Caselaw 3397 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 44
 
Case :- CRIMINAL APPEAL No. - 5441 of 2003
 
Appellant :- Arvind Sharma
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- K.K. Srivastava,Apul Mishra,P.N. Mishra,Rajeshwar Tiwari,Vivek Kumar Singh
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Bharat Bhushan,J.

Hon'ble Dr. Kaushal Jayendra Thaker,J.

(Oral Dr. Kaushal Jayendra Thaker,J.)

1. Heard Sri Rajeshwar Tiwari, learned counsel for the appellant and Shri Ajit Ray, learned A.G.A. for State.

2. By way of this appeal, the appellant who is in jail since 24.5.2002 has approached this Court challenging the judgment and order dated 16.10.2003 in Sessions Trial No. 842 of 2002 and 843 of 2002 passed by the Additional Sessions Judge, Saharanpur pursuant to F.I.R. lodged against him dated 24.5.2002.

3. On the F.I.R. being lodged, the investigation was moved into to motion and after recording the statement of various persons, the Investigating Officer submitted the charge-sheet to the competent court and as the accused was facing charges which were exclusively triable by the Court of Sessions, he was committed to it. On being summoned from jail, he pleaded not guilty and wanted to be tried. The prosecution examined about 9 witnesses which are as follows:

1.

Deposition of Mahendra Pal

3.4.2003

8.5.2003

30.6.2003

PW1

Deposition of Sumer Chand

3.7.2003

9.7.2003

PW2

Deposition of Smt. Kanti Devi

9.7.2003

PW3

Deposition of Dr. Ashok Agrawal

21.7.2003

PW4

Deposition of Dr. Manoj Chaturvedi

1.8.2003

PW5

Deposition Jai Bahadur Singh

13.8.2003

PW6

Deposition of S.K. Rana

12.9.2003

PW7

Deposition of Sahdev Singh

12.9.2003

PW8

Deposition of Jasveer Singh

16.9.2003

PW9

4. In support of their ocular version following documents were filed:

1.

F.I.R.

Ex.Ka.4 & Ex.Ka.6

2.

Written Report

Ex. Ka.1

3.

Recovery Memo of Double mouthed Knife

Ex. Ka. 14

4.

Injury Report

Ex.ka.3

5.

Postmortem Report

Ex.ka. 2

5. On the witnesses being examined and the prosecution having concluded its evidence, the accused were put question under Section 313 Cr.P.C. but except pleading that he did not know anything and/or he has been falsely implicated, no material was placed nor any witness was examined as defence witness.

6. It is submitted by learned Counsel for the appellant that the incident was on the spur of the moment and there is a single blow which proved fatal to the uncle of the accused-appellant. He further submit that there were certain property disputes going on and therefore, his case would fall within the purview of Exception to section 300 I.P.C and not within Section 300 I.P.C.

7. Per contra, learned A.G.A. has vehemently submitted that no leniency can be shown though it was a single blow of knife, the same was on the vital part of the body and therefore, punishment cannot be easily interfered by this Court.

8. We have not discussed the evidence at length as the learned counsel for the appellant has requested this Court to consider his case under Section 304 part I and/or in the alternative to observe that life would not mean till the last breath and, therefore, the evidence has been sifted, reevaluated, re-appreciated and we hold that the accused was the perpetrator of the crime and his presence is well established.

9. Dr. Ashok Agrawal (P.W.4) and Dr. Manoj Chaturvedi (PW5) deposed that the injuries could be caused by knife. He proved the injury report and said that the injuries were sufficient to cause death and the death was homicidal. The prosecution also says that the accused stabbed the deceased with knife which results the death of the deceased. Thus medical evidence corroborates the prosecution case. Injuries pointed out on the body of deceased are as follows:

1. Incised wound 6 cm x 3 cm x cavity deep on front of abdomen and 3 cm in the armpit at 9 o' clock position, margins of injury inverted, injury horizontally tailing downwards.

2. Incised wound 6 cm x 3 cm x cavity deep on the left abdomen on posterior auxiliary line, 4 cm above posterior iliac spine, margins inverted, intestine protruding.

3. Contusion 2 cm x 1 cm close to left nipple on the chest.

Peritoneum ruptured. Around 500 ml blood was present in the cavity. Small and large intestine were incised and blood was clotted.

10. In light of the decision rendered by the Apex Court in R. Shaji v. State of Kerala, AIR 2013 SC 651, it would be relevant for us to not only refer to testimony of witnesses but to also give our findings on the aspect whether guilt is proved to the hilt or not. In the said decision, the Apex Court held that in matter of appreciation of evidence of witnesses, it is not the number of witnesses but, the quality of their evidence, which is important, as there is no requirement in the law of evidence stating that a particular number of witnesses must be examined in order to prove/disprove a fact. It is a time honoured principle that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise.

11. This Court is mindful of the fact that in trial for the offence of murder, where the witness is a close relative of victim, it is necessary to examine the evidence given by such witness very carefully and scrutinize the infirmities in that evidence before deciding to act upon it. However, relationship is not a factor to affect the credibility of a witness. It is trite law in criminal jurisprudence that version of an eyewitness cannot be discarded merely on the ground that such witness happened to be a relative of the deceased. Where the presence of eyewitness is proved to be natural and the statement given by such witness is nothing but, truthful disclosure of actual facts leading to occurrence, then such statement could not be discarded.

12. In the final analysis, the evidence of the witness who were present and who have testified will be more important if the evidence is qualitative in nature. We have to see the quality of evidence and not the quantity. In this case it is an admitted position of fact that on the basis the circumstances and subsequent facts, independent source of information, except the police official, other persons present refused to testify and none was available.

13. The accused-appellant was found at the place of occurrence. He is the person who has inflicted the injuries and, therefore, we have no hesitation in holding that he was the person who perpetrated the crime. The prosecution has discharged its burden.

14. We are even fortified in our view that the accused was the person who had perpetrated the crime and we do not think it appropriate to take a different view then that taken by the learned Trial Judge. We are fortified in our view by the decision of this Court in Criminal Appeal No. 147 of 2003 where in reliance has been placed on the decisions in Pulukuru Kottaya & Ors. vs. Emperor, reported in AIR (34) 1947 Privy Council 67, State Of Maharashtra vs. Bharat Fakira Dhiwar, (2002) 1 SCC 622 and the subsequent decisions of the apex court in R. Shaji vs. State of Kerala, AIR 2013 SC 651, Raja alias Rajinder Vs. State of Haryana JT 2015 (4) SC 57, Soyebbhai Yusufbhai Bharania Vs. State of Gujarat, 2017 (6) JT 381 and the landmark decision in Mukesh and Anr. Vs. State for NCT of Delhi and Others, AIR 2017 SC 2161 and held that the recovery cannot be said to be bad and the trial court has not committed any mistake in considering this as a material piece of evidence pointing towards the guilt of the accused as it is discovery of a fact in consequence of information received from the accused. The recoveries were made separately at the instance of both the accused who took out the place from where they were planted and the places were such which could be known to accused only. Section 27 of the Evidence Act, 1872 also would be a foundation stone and recovery and seizure of crime weapons from the place of offence would be a pointer against the accused. We are fortified in our view by the latest decision of the apex court involving similar facts in Mukesh Vs. State of NCT of Delhi, 2017 AIR SC 2163.

15. In State of Uttar Pradesh v. Mohd. Iqram and another, (2011) 8 SCC 80, the Apex Court has made the following observations in para 26 therein;

"26. Once the prosecution has brought home the evidence of the presence of the accused at the scene of the crime, then the onus stood shifted on the defence to have brought forth suggestions as to what could have brought them to the spot in the dead of night. The accused were apprehended and therefore, they were under an obligation to rebut this burden discharged by the prosecution and having failed to do so, the trial Court was justified in recording its findings on this issue. The High Court committed an error by concluding that the prosecution had failed to discharge its burden. Thus, the judgment proceeds on a surmise that renders it unsustainable."

16. Considering all facts and circumstances of the case, it is evident that prosecution has been able to bring home the guilt of accused-appellant by trustworthy and unimpeachable evidence. Learned trial judge has marshalled the facts and evidence adroitly. Sufficient evidence has been placed to establish the guilt of the appellant.

17. Considering the evidence of these witnesses and also considering the medical evidence including post mortem report, there is no doubt left in our mind about the guilt of the present appellants. However, the question which falls for our consideration is whether, on reappraisal of the peculiar facts and circumstances of the case, the conviction of the appellant under Section 302 of the Indian Penal Code should be upheld or the conviction deserves to be converted under Section 304 Part-I or Part-II of the Indian Penal Code. It would be relevant to refer Section 299 of the Indian Penal Code, which read as under:

"299. Culpable homicide: Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

18. The academic distinction between ''murder' and ''culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Section 299 and 300 of I.P.Code. The following comparative table will be helpful in appreciating the points of distinction between the two offences.

Section 299

Section 300

A person commits culpable homicide if the act by which the death is caused is done-

Subject to certain exceptions culpable homicide is murder is the act by which the death is caused is done.

INTENTION

(a) with the intention of causing death; or

(1) with the intention of causing death; or

(b) with the intention of causing such bodily injury as is likely to

cause death; or

(2) with the intention of causing such bodily injury as the offender knows to be likely to

cause the death of the person to whom the harm is caused;

KNOWLEDGE

KNOWLEDGE

(c) with the knowledge that the act is likely to cause death.

(4) with the knowledge that the act is so immediately dangerous

that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.

19. On overall scrutiny of the facts and circumstances of the present case coupled with the opinion of the Medical Officer and considering the principle laid down by the Apex Court in the Case of Tukaram and Ors Vs. State of Maharashtra, reported in (2011) 4 SCC 250 and in the case of B.N. Kavatakar and Another Vs. State of Karnataka, reported in 1994 SUPP (1) SCC 304, we are of the considered opinion that the offence would be one punishable under Section 304 part-I of the IPC.

20. From the upshot of the aforesaid discussions, it appears that the death caused by the accused was not premeditated, accused had no intention to cause death of deceased, the injuries were though sufficient in the ordinary course of nature to have caused death, accused had no intention to do away with deceased, hence the instant case falls under the Exceptions 1 and 4 to Section 300 of IPC. While considering Section 299 as reproduced herein above offence committed will fall under Section 304 Part-I as per the observations of the Apex Court in Veeran and others Vs. State of M.P. Decided, (2011) 5 SCR 300 which have to be also kept in mind.

21. Hence we hold the accused-appellant guilty under Section 304 Part-I and sentence him to undergo 14 years incarceration. He has been in jail since 2002 if 14 years is over he shall be released forthwith.

22. In view of the aforementioned discussion, we are of the view that this appeal has to be partly allowed hence, the same is partly allowed. The impugned judgment and order dated 16.10.2003 passed by the trial court is modified.

23. The accused-appellant shall be released from jail immediately if not required in any other case. Default sentence, if the fine is not paid, will also run from the 14th year if the fine has yet not paid. He shall be entitled to all remissions as admissible under law.

24. Let a copy of this judgment alongwith the trial court record be sent to the Court and Jail Authorities concerned and District Magistrate for compliance.

Order Date :- 19.8.2017/DKS