Allahabad High Court
Prem Lal vs State on 19 August, 2017
Bench: Bharat Bhushan, Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 44
Case :- JAIL APPEAL No. - 7072 of 2007
Appellant :- Prem Lal
Respondent :- State
Counsel for Appellant :- From Jail,Manish Tiwari,Sudisht,Yogesh Srivastava
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. This appeal challenges the judgment and order dated 16.4.1999 in Sessions Trial No. 853 of 1996 passed by the Addl. Sessions Judge, Ghaziabad, convicting accused-appellant Prem Lal under Section 302 I.P.C. and sentencing him to undergo life imprisonment and fine of Rs. 5,000/- and in default, six months further imprisonment under Section 302 IPC.
2. The accused is in Jail for about 22 years more particularly December, 1995. It is submitted that consumption of liquor is harmful and it has proved so in the present case. The father is alleged to have done away with his two minor children when he in the evening got intoxicated and was returned back from his labour work and his wife also returned home from labour work. He demanded money from her. On refusal to pay, he got annoyed. He was so agitated as per the say of the counsel for the appellant that he lost his mental balance and has, therefore, submitted that if this Court does not accept the submission that it is a clean case of acquittal, the second option available to him exception 4 of provisions of Section 300 of IP Code would be available to decide the appeal. In this backdrop of facts, we are deciding this appeal.
3. The factual background as culled out from record is that the accused is charged with offence of commission of murder of his two minor children namely Raju and Kalu in the evening. The children were aged 4 year and 1 year respectively. The dead body of one was found on the back side of the house unconscious clubbed with mud and the other one lost his breath in the hospital where he was declared dead.
4. A First Information Report was lodged by the mother of the children namely Kasturi, wife of the appellant herein. On this First Information Report, the investigation, culminated into laying of chargesheet against the accused. The charge-sheet was laid before the Magisterial Court was committed to the court of sessions as accused was charged with commission of murder of his 2 children and the case was triable by the court of sessions. On being summoned from the Jail by the court of sessions, he pleaded not guilty and wanted to be tried. The trial court framed the charge on 4.1.1997 on the accused. On 21.5.1998 deposition of witnesses started. The prosecution examined about 14 witnesses, out of which Dhani Ram - PW2 and Ganesh Lal-PW10, who were eye witnesses did not support the case of the prosecution. The wife Kasturi-PW9 supported the case of the prosecution and her version came to be corroborated by the evidence of Dr.V.K. Purang-PW3 and Dr.N.K. Agrawal-PW12, who had performed the post-mortem of the two children.
5. To bring home the charges against the appellant, the prosecution examined about 14 witnesses, before the trial court:-
Deposition of Ali Mohd.
21.5.1998
PW1
Deposition of Dhani Ram
09/12/98
PW2
Deposition of Dr.V.K. Purang
05/01/99
PW3
Deposition of Nawab
11/01/99
PW4
Deposition of Karimuddin
11/01/99
PW5
Deposition of Shiv Singh
11/01/99
PW6
Deposition of Ali Husain
11/01/99
PW7
Deposition of Lal Chandra
11/01/99
PW8
Deposition of Kasturi
11/01/99
PW9
Deposition of Ganeshi Lal
25.1.1999
PW10
Deposition of Narpat Singh
25.1.1999
PW 11
Deposition of Dr.N.K. Agarwal
05/02/99
PW 12
Deposition of Mohan Lal
05/02/99
PW 13
Deposition of Ali Abbas Zaidi
22.3.1999
PW 14
6. In support of their ocular version following documents were filed:
1.
F.I.R.
12/12/95
Ex.Ka.19
2.
Written Report
Ex.Ka.1
3.
Death Report
12/12/95
Ex.Ka.5
4.
Request for Postmortem
Ex.Ka.6
P.M. Report
12/12/95
Ex.Ka.2
Report of Forensic Medicine
01/01/96
Ex.Ka.12A
Statement of Kasturi
15.12.1995
Statement of Nawab
12/12/95
Ex.Ka.8
Ali Mohd.
12/12/95
Ex.Ka.9
Statement of Nawab
12/12/95
Ex.Ka.3
Statement of Ganeshi Lal
13.12.1995
Ex.Ka.7/4
7. While going through the evidence of Kasturi-PW9, it is very clear that it is a case of homicidal death. We come to the conclusion based on the medical evidence and testimony of both the document. This takes us to the submission of the learned counsel for the appellant. This was not a premeditated murder but was actuated with sudden quarrel under influence of alcohol by a person belonging to the last strata of life. It is submitted that the conviction could not have been based only on the oral testimony of PW9 and PW13. It is submitted that in one breath it is stated that both the children were taken to the hospital whereas PW13-the investigator has in his oral testimony stated that when he went to the place of incident, dead-body of a child was found near the house of the accused. From there the body was collected whereas the mother i.e. Kasturi-PW9 states that both the children were taken to the hospital. It is submitted that occular version coupled with the testimony of the hostile witnesses and documentary evidence will be sufficient to acquit the accused.
8. The evidence, which is laid, will permit us to hold that it was the accused alone, who had committed the offence. Just because his wife has remarried will not make any deal as far as the conviction is concerned. The medical evidence goes to show that death of both the children was homicidal. The submission that his statement under Section 313 Cr.P.C. shows his innocence is devoid of merits. The occular version of the eye witnesses and even that witnesses will not permit us to take a different view than that taken by the trial court that it was the accused alone against whom the charges levelled on 4.1.1997 were proved to the hilt by the prosecution and we hold that he is guilty of the commission of offence. This takes us to the core issue that whether in the facts and circumstances of the case it was a case which would be shown to be corroborate homicidal to the murder and corroborate homicidal not to the murder.
9. 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.
10. 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. 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.
11. 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.
12. 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.
13. This takes us to the second submission of the Counsel for alternative prayer. It is true that we will have to evaluate the evidence of PW9. Learned Counsel for the appellant has tried to rely on the statement under Section 313 Cr.P.C. of the appellant in counter to the submission of learned A.G.A. that wife could have no motive to implicate her husband. The statement of the appellant under Section 313 Cr.P.C., reads as under:-
"Name: Prem Lal, Fahter's name: Khalaiyan, Age: 30-35 years, Occupation: Labourer R/o Village Dehri, P.S. Orchha, District Chhatarpur, Madhya Pradesh:
Question No. 1: It has come out in the prosecution evidence that you, with the intention of causing death, killed your sons Raju aged 4 years and Kallu aged 1 year by violently beating them up, thus, causing serious injuries on their persons at Ekta Colony, Sahibabad under Sahibabad Police Station in Ghaziabad district at 6 P.M. On 11.12.1995. What you to say in this respect?
Answer: No, Sir.
Question No. 2: It has come out in the prosecution evidence that PW-1 Ali Mohammed prepared the complaint-report (tehrir) in connection with the occurrence on being dictated by Smt. Kasturi Devi, and got her thumb impression taken thereon. What have you to say in this respect?
Answer: I don't know why it was got written.
Question No. 3: It has come out in the prosecution evidence that PW-9 Smt. Kasturi lodged tehrir (complaint report) in connection with the occurrence at the Police Station Sahibabad after getting it written by another person. What have you to say in this respect?
Answer: I don't know. I cannot say anything about it.
Question No. 4: It has come out in the prosecution evidence that PW-13 Mohan Lal investigated into the case and prepared panchanama Ex-ka-2A of the body of Kallu, challan laash (body) Ex-ka.-13, photo laash (body) Ex.-Ka-14, letter to CMO Ex.-Ka-15, sample of the seal Ex-ka-16, and he got the post-mortem of the body conducted, prepared the site map Ex.-ka-17 after inspecting the occurrence spot, recorded the statements of the witnesses and on the basis of evidence filed charge-sheet Ex.-ka-18 in the court against you. What have you to say in this respect?
Answer: It is wrong. I don't know.
Question No. 5: It has come out in the prosecution evidence that PW-3 Dr. V.K. Purang conducted post mortem examination on the person of deceased Kallu on 12.12.1995, and stated that the bone at the rear part of head was broken and haematoma was present, as a result of which the deceased died. The said witness has prepared the post mortem report. What have you to say in this respect?
Answer: I don't know why he is giving statement. He may be giving the statement as the injuries might have sustained.
Question No. 6: It is in the prosecution that PW-11 A.S.I. Narpat Singh was posted at Police Outpost Ram Manohar Lohia Hospital, New Delhi, and he had sent the body for post-mortem examination after panchnama of the body of deceased Raju and other papers. The witness has proved the Post Mortem report Ex.-ka-5, letter for Post Mortem Ex.-ka-6 and copy of Roznamcha (G.D.). What have you to say in this respect?
Answer: I don't know.
Question No. 7: It has come out in the prosecution evidence that PW-11 while preparing panchanama on 12.12.1995 has recorded and proved the statements of Nawab Khan, Ganeshi Lal and Ali Mohammed with respect to the occurrence and identification of the deceased. The witness has proved the statement of Nawab Khan, Ex.-Ka-3 and Ex.-Ka-8, the statement of Ganeshi Lal, Ex.-ka-4 and Ex.-ka-12, and the statement of Ali Mohammed Ex.-ka-9. What have you to say in this respect?
Answer: I don't know. I have no enmity with anyone.
Question No. 8: It has come out in the prosecution evidence that PW-12 S.I. N.K. Agrawal has conducted post-mortem on Rajiv S/o Prem Lal and prepared a report Ex.-ka-12A, and this witness has stated that the skull bone of the deceased was fractured. What have you to say in this respect?
Answer: I don't know why he is giving statement against me.
Question No. 9: It has come out in the prosecution evidence that PW-14 Ali Abbas who was posed as HM at the Sahibabad police station on 12.12.1995 registered a case crime no. 910/95 u/s 302 IPC on the complaint report (tehrir) of Kasturi Devi, and executed the chick Ex.-ka-19 and its entry in the GD is Ex.-ka-20. What have you to say in this respect?
Answer: My wife did not want to live with me, and hence she was levelling false accusation against me.
Question No. 10: PW-9 Kasturi Devi has stated that about three years before at 6:00 P.M. in the winter season, you demanded money of her and on her rejection you thrashed the children Rajiv and Kallu, and hurled them against the wall, whereupon they sustained injuries on their heads as the result of which Kallu died on the spot, and Raju succumbed to his injuries at the Hospital. What have you to say in this respect.?
Answer: I had demanded money for the flour. I had not demanded money for liquor. She did not give anything to the children to eat. I would give the children the cow milk to drink.
Question No. 11: PW-1 to PW-14 has adduced evidence against you in the court. What have you to say in this respect?
Answer: All these witnesses in collusion with my wife are adducing evidence against me.
Question No. 12: You have accepted the medical report of Raju alias Rajiv Ex.-ka-21 and death certificate Ex.-ka-22 and formal evidence of death Samidha. What have you to say in this respect?
Answer: I don' know.
Question No. 13: Do you want to say anything?
Answer: Shiv Dayal would keep my wife for work, and in excuse of work he would take her to other places. Shiv Dayal and his saadu (husband of wife's sister) got me consume liquor and thereafter, they thrashed me badly. I don't know why they thrashed me.
Question No. 14: Have you to say anything more?
Answer: No.
Sd/- (Illegible)
01.04.1999
ASJ-XIII
Ghaziabad
Sd/- (Param Lal)"
The testimony that she has remarried according to the learned counsel for the appellant was strong reason for falsely implicating the accused.
14. We do not think that this is one reason which would permit a lady to implicate her husband when she has lost 2 children of very minor age. The husband in fit of anger, frustration and being under influence of liquor, committed the said offence and, therefore, we hold that this was not a cold blooded murder actuated with knowledge and intention. The factual scenario as it emerges goes to show that the appellant was well aware of the murder and intention to kill the minor children but as on the spur of the moment and in heat of passion and being imbued, this steps was taken by the accused but he must have been aware about the consequences of dashing young children with wall. He may have the intention but the knowledge can be attributed to him and, therefore, his case would fall within the tests laid down by the Apex Court in Viran and others (supra).
15. 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 16.4.1999 passed by the trial court is modified.
16. 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.
17. Let a copy of this judgment along with the trial court record be sent to the Court and Jail Authorities concerned and District Magistrate for compliance.
Order Date :- 19.8.2017
Irshad
