Vishnu Sharma vs State Of U.P.
2017 Latest Caselaw 1389 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
AFR
 

 
Case :- JAIL APPEAL No. - 549 of 2013
 

 
Appellant :- Vishnu Sharma
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,Rajiv Lochan Shukla (Ac)
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Ashwani Kumar Mishra,J.

1. This Jail Appeal is directed against judgment and order dated 18.9.2012, passed by Additional Sessions Judge, Ex-Cadre-3, Saharanpur, in Session Trial No.341 of 2012, State vs. Vishnu Sharma, whereby appellant has been found guilty of offence under section 304 I.P.C. and sentenced to undergo 10 years rigorous imprisonment together with fine of Rs.25,000/-. In the event of non deposit of fine, appellant is directed to undergo one year additional rigorous imprisonment.

2. Prosecution version, in brief, is that informant, a journalist, while sitting in his office at about 12.30 PM on 9.1.2012, saw two persons fighting amongst themselves and when he came out to stop them, alongwith one Ashok Batra, one of them i.e. accused-appellant pushed the other such that he fell in the drain. With public help the other person was taken out from drain but by then he had already died. The accused was apprehended on the spot while trying to flee. He identified himself as Vishnu Sharma son of Girish Sharma. The deceased however could not be identified. A police report at the behest of informant was lodged on the same day at about 1.30 PM, under section 304 I.P.C. at Police Station Kotwali Nagar, District Saharanpur. The police having lodged the First Information Report proceeded with investigation. An inquest report was prepared, body was sealed and sent for postmortem. Statement under section 161 Cr.P.C. was recorded, site was inspected, and a site plan drawn. In the postmortem report, ante mortem injury on face measuring 2cm x 3cm was found alongwith lacerated wound measuring 5cm x 3cm on right cheek. Deceased was found to be a 38 year old male. Sludge and dirty water was found in his lungs and cause of death was determined as asphyxia due to drowning in sludge and water. The identity of deceased however could not be ascertained, despite beating of drum (munadi) and newspaper publication. The Investigating Officer found the incident to have happened, as alleged by the informant. A charge sheet was accordingly filed under section 304 I.P.C. Accused was furnished materials relied upon by the police against him and the case was committed to the sessions by the Magistrate concerned. Accused denied the charges and consequently trial proceeded.

3. Prosecution for proving the charges adduced informant Vinod Bagala as PW.1 and Ashok Batra as PW.2, both eye witnesses, who supported the prosecution case. Inquest proceedings were attested by Ram Ratan PW.3, whereas Dr. P.K. Bansal, who conducted postmortem examination, appeared as PW.4. Investigating Officer appeared as PW.5 and First Information Report was verified by Police Station Incharge, who appeared as PW.6. The substance of material collected and adduced was explained to the accused appellant under section 313 Cr.P.C. He denied the incident, claimed himself to be innocent and stated that deceased was already lying in the drain when he had gone picking up waste papers etc. (accused claims to be a rag picker). As per him the informant asked him to take out the dead body lying in the drain but he refused as his cloths would get dirty and that is why he has been falsely implicated in this case. Sessions Court after hearing the A.D.G.C. (Criminal) and Amicus Curiae, appearing on behalf of accused appellant, found that prosecution had established guilt of the accused appellant and consequently awarded sentence, already noticed above. Aggrieved by it, the appellant-accused has filed the present Jail Appeal.

4. Perusal of the record goes to show that informant reported in the F.I.R. that he had seen the two persons fighting amongst themselves and that while he tried to stop them, alongwith Ashok Batra i.e. P.W.2, the accused pushed deceased such that he fell in the drain. However, in his statement before court as P.W.1, he has stated that while he was sitting alone in his office, which is fitted with dark glasses, he saw the accused badly beating the other person i.e. the deceased. He stated that distance between his office and place of occurrence would be about 35 fts. He stated that when he came out of his office and shouted for help crowd gathered around him. He further stated that he ran towards spot but in between the accused got hold of deceased's legs and pushed him in the drain, whereafter accused attempted to flee. Informant asked persons gathered at the spot to take out deceased from the drain and actually got him taken out. The deceased at the time when he was brought out was alive, and after 2-3 minutes he died. The accused was apprehended at the scene of occurrence. Police was called and that the dead body and the accused were taken by them to the Police Station. He however states that he wrote the F.I.R. thereafter at Ghantaghar and gave it to the police party.

In the cross examination, informant stated that drain flows from West to East and is to the South of his office, whereas the incident occurred to the North of the drain i.e. across the drain. He further denied the suggestion that incident occurred towards South of drain between his office and the drain. He reaffirmed that the incident actually occurred on the other side of the drain. He further denied suggestion that the entire story has been fabricated only to create headlines for his newspaper. He also feigned ignorance about number of fists punched upon the deceased. He however admitted that by the time he reached the spot, the accused had already pushed deceased in the drain. He further states that Super Market in which his office situates is on the ground floor of the building which has a basement towards its back, and that ground floor has shops, offices and godowns. Office of Sahara India situates on the first floor. He further denied suggestion that on account of animal's roaming on either side of the drain passers by often fall in the open drain. He further pleaded ignorance of the reason of fight or from where they had come. He also denied suggestion that deceased had fallen in the drain while saving himself from the animal's roaming on nala patri. He also denied the suggestion that since the accused refused to take out the body from drain, therefore, he was falsely implicated.

5. P.W.2 has also supported the prosecution case. He states that at the time of occurrence of incident he was sitting in his shop in Super Market, and saw two persons fighting. He also states that he saw the accused pushing deceased on account of which he fell in the drain and by the time he was brought out, he had died. He also identified the accused in Court.

In cross examination, he has denied knowledge as to in which direction the drain flows, width of nala patri etc. He has explained that his shop faces on two sides and there are two shutters. Situation of his shop is tried to be explained by stating that one of his shutters opens towards the market and other towards passage, which joins the road that lead to Ambala Road. He further denied specific suggestion given to him that while sitting at his shop he could not have seen the incident. However, he has stated to have gone with the informant to the Police Station on his scooter. He further states that the F.I.R. was written at the Police Station by the informant on the dictation of Sub-Inspector.

6. The Investigating Officer has also appeared as P.W.5. Although he has supported the prosecution story, but in his cross examination he states that he had recorded during investigation that accused was brought by the informant to the Police Station, whereafter he was put in lock up. He has further denied that accused was apprehended by Police. At this stage, it would be relevant to observe that a site plan has been drawn to substantiate place of occurrence. The site plan shows office of informant, facing the nala patri, whereafter flows the drain to be followed with nala patri on the other side, whereupon exists a Madarsa, and a shop of Sunrise Optical. In the site plan, shop of P.W. 2 has not been shown. In his cross examination, P.W. 5 has admitted that he has not shown the shop of P.W. 2 in the site plan and that he does not remember as to whether shop of P.W. 2 situates in the vicinity or not. He later said that the shop is within the market. He has further stated that he has not been able to measure the width and breadth of drain, nor the depth of water flowing in the drain and that the body of deceased was lying drenched.

7. Learned Amicus Curiae submits that there are only two witnesses who have seen the occurrence, and their testimony is not reliable. Various inconsistencies in the statement of P.W. 1 viz-a-viz averments in the F.I.R. have been highlighted to submit that his statement made before the court is a case of clear improvement. It is pointed out that the evidence of P.W.1 is not reliable and that inconsistencies in his statement are not explained. He further submits that neither identity of deceased has been established nor motive of fight is known. It is also stated that the prosecution has failed to establish as to who was the aggressor, and it could not be ascertained as to whether the fight started due to an act of provocation by the deceased or the accused? He further submits that the statement of P.W.2 is wholly unreliable, inasmuch as his shop is not identified in the site plan, and if that be so, line of sight for P.W.2 could not be proved. Whether it was a friendly push or deliberate is also not explained. It is sought to be suggested that deceased may have fallen in the drain, on his own, and that the informant in order to cook up story for his newspaper has falsely framed the accused appellant.

8. Sri B.A. Khan, learned A.G.A, on the other hand, has supported the prosecution case and contended that the guilt of accused is clearly established. He further contends that mere minor contradiction in the statement would not be sufficient to doubt the prosecution story. It is further stated that F.I.R. is not an encyclopedia. Reliance is placed upon judgments of Apex Court in State of U.P. Vs. Naresh and others reported in (2011) 4 SCC 324, Gangabhavani Vs. Rayapati Venkat Reddy & Ors, reported in 2013 (15) SCC 298, as well as in Faiyaz Vs. State of U.P., reported in 2014 (5) ADJ 710.

9. I have heard Sri Rajiv Lochan Shukla, learned Amicus Curiae on behalf of the appellant, and Sri B.A. Khan, learned A.G.A. for the State and have perused the materials brought on record.

10. In order to bring home the charge prosecution has relied upon the statement of P.W.1 and P.W.2, who are allegedly eye witnesses. So far as P.W.2 is concerned, he has a shop in the Super Market and as per him he saw the incident while sitting in his shop. He states that two persons were fighting amongst themselves and that accused had pushed the deceased on account of which he fell in the drain and when he was brought out, he was found dead. The shop of P.W.2 is not shown in the site plan. The site plan produced by the prosecution shows the place where body of deceased was kept and also the place from where it was brought out. Admittedly, there exists nala patri on either side of the drain. On its southern side exists the office of informant whereafter exists passage leading to Super Market and on the other side of this passage there are shops of courier, photo state, homeopathic store etc. On the Northern side situates shop of Sun Rise Opticals and a Madarsa.

11. As per P.W.1 fight between deceased and accused took place on Northern side of the drain flowing from West to East. Informant was on the ground floor and on the first floor of the building situates office of Sahara India Ltd. The distance from informant's office to the place of occurrence is alleged to be about 35 fts. P.W.2 claims to have seen the incident while sitting in his shop. His shop, however, is not shown in the site plan. P.W.2, in his statement stated that there are two sides to his shop, and if his statement is to be believed, his shop, at best, could be in the passage which leads to the Super Market which is to the west of informant's office.

12. Learned Amicus Curiae has laid emphasis upon the site plan to contend that line of sight is not established from the shop of P.W.2 to the place of occurrence. Having given anxious consideration to this aspect, I am inclined to accept his argument. The site plan clearly shows the shops to be existing on either side of the drain from which line of sight to the place of occurrence could be established. In case, shop of P.W.2 was on the Nala Patri, it ought to have been shown in the site plan. Its existence on nala patri is otherwise improbable as according to PW.2 his shop has two sides. If his shop situates in the passage lying to the west of informant's office then line of sight from his office to the place of occurrence is not established. There is otherwise no explanation as to why his shop is not shown in the site plan. Its situs is otherwise not explained. In such circumstances statement of P.W.2 that he saw the accused appellant fighting with the deceased or that he pushed him in the drain, would not be reliable. It is possible that P.W.2 may have come on the spot later, having heard of the incident, but his ocular statement in the manner claimed by him is rendered doubtful.

13. This leads to the statement of P.W.1 who is the informant of crime. P.W.1 states that F.I.R. was written by him and delivered to the Police when police party arrived at the place of occurrence. In the F.I.R. the informant has disclosed that while sitting in his office he saw two persons fighting on the other side of the drain and he tried to stop them, but the accused pushed the deceased in the drain. He has further stated that with the help of public, body of deceased was taken out and he was found dead. In his statement made before the court, however, there is a clear improvement. He states that the accused was badly beating the deceased. This is not what was disclosed in the F.I.R. Informant is a journalist and it is not expected of him to omit mentioning of such crucial contents in the F.I.R. He then states that he rushed out of his office and shouted for help and persons nearby gathered at the spot. He states that in between the accused got hold of deceased's feet and pulled him down in the drain. The italicized part does not figure in the F.I.R. There is no description as to who was the aggressor in the fight between the accused and the deceased, but in his statement made to court such a role is specifically assigned to the accused. There is no explanation as to why such facts were not narrated while lodging the F.I.R. In his statement made before the court, P.W.1 moreover has stated that when the deceased was taken out from drain, he was alive and he died after 2-3 minutes. This part of the statement again is at variance from what was alleged in the F.I.R. He has stated that dead body and the accused were both taken together by the Police. P.W.5 i.e. the Investigating Officer however has clearly stated that accused was brought to Police by the informant whereafter he was put in the lock up. P.W. 5 has clearly denied the suggestion that accused was brought by Police. There is thus a clear contradiction between the statement of P.W.1 and that of Investigating Officer. Suggestions are also given that he had not seen the incident and that a story was later cooked up to create publicity for his newspaper. From the consideration of statement of P.W.1 and in light of what has surfaced on record, otherwise, I am not inclined to accept the version of P.W.1, in its entirety. His statement made in court, to the extent of improvement i.e. accused badly beating the deceased or that he held his feet and pushed him in drain, do not inspire confidence. P.W.1, has stated that the place of occurrence was about 35 fts. from the informant's office and he had seen the incident from his office through dark glasses fixed in his office. I am inclined to accept only part of his testimony wherein he has stated of having seen the accused and deceased fighting amongst each other, and the accused having pushed deceased as result whereof he fell in the drain. Recovery of deceased's body from the drain and postmortem report which shows sludge and water in his body also supports it.

14. It may further be noticed that identity of deceased has not been ascertained. None had come forward to identify despite beat of drum and newspaper publication. It is also not clear as to what was the reason of fight between two and who of the two was the aggressor. Even if statement of P.W.1 that accused had pushed deceased such that he fell in the drain is taken to be correct, yet it would not lead to an inference that he intended to cause death of deceased. The postmortem report shows two ante mortem injuries on face of deceased measuring 2cm x 3cm and lacerated wound measuring 5cm x 3cm upon his right cheek. These injuries could easily have been caused due to fall in the drain. There is no other injury found on the body. Even otherwise the injuries found on face of deceased are simple in nature. At this juncture, it would be relevant to note that Investigating Officer in his statement made before the court has clearly admitted that drain was not so deep so as to ordinarily result in causing death due to drowning if one was to be pushed in it.

15. The only evidence against the accused appellant is of fighting with the deceased and his pushing him such that deceased fell in the drain. The two injuries on the body are also simple in nature. Prosecution witness has clearly admitted that death was not likely to be caused if a person was pushed in the drain. It is nevertheless established that the deceased died due to drowning after he was pushed. The question that arises for consideration is as to whether death of deceased would constitute Culpable homicide?

16. Section 299 I.P.C. defines culpable homicide in following words:-

"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."

17. For an act to constitute culpable homicide following contingencies must exist:-

(i) Act causing death was caused with the intention of causing death; or

(ii) With the intention of causing such bodily injury as is likely to cause death; or

(iii) With the knowledge that he is likely by such that to cause death.

18. In the facts of the present case first contingency is not established inasmuch as act on part of accused is not shown to have been caused with an intention of causing death. The act on part of accused also cannot be said to have been caused to inflict bodily injury as is likely to cause death. In view of the evidence led, it cannot be said that accused had knowledge that his act is likely to cause death. The act attributed to accused and proved by evidence at best would render him liable for causing simple injury. His act otherwise was not such as was likely to cause death nor knowledge could be attributed to him that his act was likely to cause death. Ingredients of section 299 I.P.C. are thus not made out on the evidence led in this case. In the absence of culpable homicide, punishment under section 304 cannot be imposed inasmuch as to attract punishment under either part i.e. part I or part II existence of ingredients to establish culpable homicide is must.

19. The only evidence against accused appellant is that he was fighting with the deceased and pushed him such that he fell in the drain. The postmortem discloses two simple ante mortem injuries. It is otherwise admitted that drain was not deep enough so as to cause death if one was pushed into it. The only charge made out against the accused would thus be of causing hurt for which he can be punished under section 323 I.P.C. upto a term of one year or with fine which may extend to one thousand rupees, or with both.

20. For the reasons and discussions aforesaid, conviction of appellant under Section 304 I.P.C. is set aside and is substituted with punishment for a term of one year. Since the appellant has already remained in jail for more than five years and five months, he shall be released forthwith, unless he is required in any other criminal case.

Let a copy of this order be sent to the Chief Judicial Magistrate, Saharanpur, through Registrar General of this Court, who shall ensure compliance of this order through Jail Superintendent concerned and a compliance report be sent to this Court within two weeks.

21. Learned Amicus Curiae Sri Rajiv Lochan Shukla submits that he has argued the matter pro bono and has politely declined to accept any fee. The Court records appreciation for his gesture and also for his valuable assistance extended to court.

Order Date :- 30.5.2017

Ashok Kr./Arshad

(Ashwani Kumar Mishra, J.)