Allahabad High Court
Neeraj Kumar vs State Of U.P. on 9 October, 2018
Bench: Pritinker Diwaker, Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 3
CRIMINAL APPEAL No. - 7055 of 2011
Neeraj Kumar ....Appellant
Versus
State Of U.P. ....Respondent
For Appellant : Vinay Kumar Singh, Capt Seema Singh,
Noor Mohammad and Sanjay Kumar
For Respondent : Purshottam Maurya, Govt. Advocate
___________________________________________________
Hon'ble Pritinker Diwaker,J.
Hon'ble Dr. Kaushal Jayendra Thaker,J.
Per: Dr. Kaushal Jayendra Thaker,J.
1. By way of this appeal the accused-appellant has felt aggrieved by his conviction rendered in Sessions Trial Nos.221 of 2006 and 222 of 2006 by Additional Sessions Judge, Shahjahanpur vide judgment and order dated 5.11.2011 convicting the appellant under Section 302 of Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.').
2. The facts as they are culled out from the record are that the appellant was having one sided love for the daughter of the deceased. On 8.10.2005, there was a telephonic discussion between the accused and the deceased. The appellant immediately after the heated discussion went to the residence of the deceased and fired from the country made pistol on the vital part of the body of the deceased. The widow of the deceased Nisha Saxena lodged the First Information Report stating that on 7.10.2015 at about 10.00 am when their daughter Priti Saxena was alone at home, the accused phoned her and conveyed that he was not afraid of her father. This incident was narrated to the father and the father telephoned the accused as to why he was phoning the daughter of the deceased. There were heated discussion. Both of them were to come out of their respective houses and as soon as both came, at about 8.45 at night, just near the house of the deceased, the accused fired at the deceased from his country made pistol. The deceased fell down on the ground and while being shifted to the hospital, succumbed to his injuries. Several people of the area saw this incident but, being scared from the accused, they ran away to their homes.
3. On the basis of F.I.R., case was registered and investigation was carried out. Inquest report was prepared, formalities for postmortem examination was caused and autopsy was conducted. After investigation charge sheet against the accused was submitted and the case was committed to the Court of Sessions by the Magistrate as it was a Sessions triable case.
4. The prosecution so as to bring home the charges have examined the following witnesses who are ten in number:
Nisha Saxena
19.4.2006
20.4.2006
PW1
Priti Saxena
3.5.2006
5.5.2006
PW2
Harinandan Sharma
16.5.2006
PW3
Mahesh Chandra Sharma
22.5.2006
PW4
Ram Siromani Sajoj
29.5.2006
PW5
Dr. A.K. Nigam
9.6.2006
3.8.2006
PW6
Om Prakash Pathak
01.09.2006
PW7
Karan Singh
01.04.2008
18.11.2008
PW8
Ram Kishore Pandey
06.01.2011
PW9
Vinod Kumar Pandey
21.01.2011
14.02.2011
PW10
5. In support of the ocular version of the witnesses, following documents were produced and contents were proved by leading evidence:
F.I.R.
08.10.2005
Ex.Ka-2
2.
Recovery memo of Tamancha
23.10.2005
Ex.Ka.4
3.
Postmortem Report
09.10.2005
Ex.Ka.6
4.
Written Complaint
08.10.2005
Ex.Ka.1
Recovery memo of bloodstained and plain earth
09.10.2005
Ex.Ka.13
Recovery memo of empty cartridge
09.10.2005
Ex.Ka.14
Recovery memo of sleeper
09.10.2005
Ex.Ka.15
Recovery memo and supurdginama of torch
09.10.2005
Ex.Ka.16
Report of Vidhi Vigyan Prayogshala
26.9.2006
Ex.Ka.23
Report of Vidhi Vigyan Prayogshala
24.4.2006
Ex.Ka.24
Site plan with index
09.10.2005
Ex.Ka.12
Site plan with index
24.10.2005
Ex.Ka.17
Site plan with index
01.11.2005
Ex.Ka.18
6. On the witnesses being examined and the prosecution having concluded its evidence. The accused was put questions 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.
7. We have heard learned counsel for the parties and perused the record and paper book.
8. Learned counsel for the appellant has taken us through the entire evidence which we have very minutely scrutinized. He has submitted that the recovery of the gun which was a country made pistol was recovered after 15 days from the date of incident. The injured was taken to the hospital and the time of admission in the hospital has been shown as 8.10 p.m. whereas in the F.I.R. it was mentioned that the incident occurred at 8.45 p.m. which clearly shows that the F.I.R. was manipulated. It is further submitted by the learned counsel for the appellant that no independent witness was examined. The credibility of the two relative eye-witnesses and the medical officer was doubtful and the gun was planted and no proper recovery of the article of offence was ever made. There is no forensic report which would conclusively prove that the death was because of the gunshot injuries from the gun said to be possessed by and used by the appellant.
9. It is further submitted that even in the F.I.R., it is mentioned that the deceased and the accused were having altercation and, therefore, in the alternative, if this Court does not accept his submission, the accused cannot be held guilty under Section 302 of I.P.C. but must be awarded lesser punishment under Section 304 (I) of I.P.C. and to bring home his submission, learned counsel for the appellant has relied on the judgments in Jhaptu Ram Vs. State of Himachal Pradesh, 2014 LawSuit (SC) 440, Manjeet Singh Vs. State of Himachal Pradesh, (2014) 5 SCC 697, Suresh Singhal Vs. State (Delhi Administration), 2017 LawSuit and State of Madhya Pradesh Vs. [email protected] Vishnu & Others, 2018 LawSuit (SC) 655.
10. While going through the record, the learned A.G.A. has submitted that the F.I.R. was lodged by the eyewitness who has seen her husband being shot from a close range and she would not implicate the person falsely. There is no improvement in her statement even while recording her ocular version as PW-1.
11. It is submitted by learned A.G.A. that the submission of the learned counsel for the appellant that there was no light and the deceased was not properly seen also cannot be believed as the torch in which the incident was seen has been recovered and has been exhibited.
12. We have perused the entire record. The alternative submission of the learned counsel for the appellant has to be dealt first. Whether the case of the appellant would fall within the purview of Section 304 (I) or (II) of I.P.C. will have to be looked into on the touchstone of the principle enunciated by the Apex Court in several pronouncements.
13. This takes us to the issue whether the offence would be punishable under Section 302 or Section 304 I.P.C.
14. Considering the evidence of these witnesses and also considering the medical evidence including postmortem 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.
15. 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.
16. 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 302 of the IPC.
17. From the upshot of the aforesaid discussions, it appears that the death caused by the accused was premeditated, accused had intention to cause death of deceased, the injuries were sufficient in the ordinary course of nature to have caused death, accused had intention to do away with deceased, hence the instant case would not fall under the Exceptions 1 and 4 to Section 300 of IPC. While considering Section 299 as reproduced herein above offence committed in this case would not fall under Section 304 Part-I on the basis of 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.
18. We are convinced that the judgments cited by the counsel will not aid the appellant to lessen his offence, reason being, the death was culpable homicide and medical evidence which is produced goes to show that though there was one gun shot injury, it was a brain deep. The postmortem report shows the following injuries:
"I. Fire arm wound entry of 0.9 cm x 0.8 cm x brain deep and through and through upper part of right side of neck and 4 cm away from the pinna of right ear at 9 o' clock position. Bleeding and tattooing is present around and margin invested.
ii. Fire wound of exit in 2 cm x 1.5 cm connected to left side of the brain and upper side of the ear lobe."
Cause of death due to coma as a result of fire arm injuries.
19. This medical evidence of postmortem has been proved by the ocular version of the Doctor who has been examined as PW-6 and he has in his oral as well in his testimony confirmed the findings in the postmortem report and according to him the death was between 8.00 to 9.00 p.m. He has withstood the cross-examination and has negatived the question whether as to the death having taken place much prior to the incident.
20. The evidence of doctor leads support to the version of PW-1 and PW-2, the widow and the daughter of the deceased respectively.
21. The cumulative effect of the evidence would show that it was a premeditated shot on the vital part of the body. The medical evidence also supports the case of the prosecution. The facts remains that the offence was not committed by grave and sudden provocation rather the taste suggested cannot bring the case of the appellant to fall under Section 304 part I or II of I.P.C. The recovery and discovery are relevant facts and the same have been properly appreciated by the court below. The deceased was fired at by country made pistol which was recovered at the behest of the appellant from a place which would be within his special knowledge and thus the doctrine of the confirmation by subsequent event is attracted.
22. Even incriminating circumstances were put to the appellant but except making bald denial no proper explanation was given by him which is also a circumstance which has read against him.
23. It has to be seen with what the ferocity with which even one fire shot is made. It would not be out of place to hold that the accused had in heat of the moment fired the gunshot.
24. In this case, the intention was quite clear. There were phone calls from the appellant time and again harassing the family members of the deceased mainly the younger daughter which has come up in the evidence and has been proved to the hilt. The judgment of the Trial Court cannot be said to be so perverse which would permit us to take any other view than that taken by the Trial Court.
25. In the final analysis the presence of the accused is established. The requirement of law and the scrutiny made therein is saying that the accused have not been falsely implicated. Some omissions in the F.I.R. would not weigh against the prosecution. The impact of omission as is discernible from the law propounded by this Court and the apex court would so that the circumstances and veracity of evidence proved involvement of the accused and none other. There is no indication of fabrication and merely because there are some minor contradictions and inconsistencies in testimony of the injured eye-witnesses would not make testimony untrustworthy and unreliable.
26. 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 marshaled the facts and evidence adroitly. Sufficient evidence has been placed to establish the guilt of the appellant.
27. 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.
28. We are even fortified in our view by additional circumstance namely that the accused person voluntarily produced the pistol from a place which was secluded place and it cannot be said that it was planted by the investigating authority. The aforesaid plea of the appellant cannot be accepted in view of the recent decision in Raja @ Rajinder Vs. State of Haryana reported in JT 2015 (4) SC 57 and the case before the Apex Court was similar.
29. We are fortified in our view as a similar view regarding discovery/recovery at the instance of the accused has been considered by the High Court of Gujarat in Criminal Appeal No. 37 of 2010 where in it has been held as under:
"4.5 At this stage, it is required to be noted that dead body has been discovered at the instance of the accused person. At this stage, decision of the Hon,ble Supreme Court in the case of Raja @ Rajinder vs State of Haryana reported in JT 2015 (4) SC 57 is required to be considered. The case before the Hon'ble Supreme Court was on circumstantial evidence and there was a recovery of knife, blood stained clothes and the ashes of the burnt blanket. The accused pleaded that disclosure statement made before the police custody and case were planted by the Investigating Agency. Not accepting the aforesaid plea of the accused, relying upon the decision of the Hon'ble Supreme Court in the case of Deoman Upadhyaya (supra) and Damu (supra), the Hon'ble Supreme Court has held that if an accused give information which relates to discovery of facts in consequence of information received, only that much of the information is admissible. In para 12 to 15, the Hon'ble Supreme Court has observed and held as under:
"12.Another circumstance that has been proven is about the recovery of knife, bloodstained clothes and the ashes of the burnt blanket. The seizure witnesses Sukha, PW7 and Nanak, PW9 have proven the seizure. It is submitted by the learned counsel for the appellant that police had recorded the confessional statement of the accused-appellant at the police custody and thereafter, as alleged, had recovered certain things which really do not render any assistance to the prosecution, for the confession recorded before the police officer is inadmissible. That apart, the accused had advanced the plea that the articles and the weapon were planted by the investigating agency. To appreciate the said submission in proper perspective, we may profitably reproduce a passage from State of U.P. v.Deoman Upadhyaya[5]:
"The expression, ''accused of any offence' in Section 27, as in Section 25, is also descriptive of the person concerned i.e. against a person who is accused of an offence, Section 27 renders provable certain statements made by him while he was in the custody of a police officer. Section 27 is founded on the principle that even though the evidence relating to confessional or other statements made by a person, whilst he is in the custody of a police officer, is tainted and therefore inadmissible, if the truth of the information given by him is assured by the discovery of a fact, it may be presumed to be untainted and is therefore declared provable insofar as it distinctly relates to the fact thereby discovered. Even though Section 27 is in the form of a proviso to Section 26, the two sections do not necessarily deal with the evidence of the same character. The ban imposed by Section 26 is against the proof of confessional statements. Section 27 is concerned with the proof of information whether it amounts to a confession or not, which leads to discovery of facts. By Section 27, even if a fact is deposed to as discovered in consequence of information received, only that much of the information is admissible as distinctly relates to the fact discovered."
13. In State of Maharashtra v. Damu, while dealing with the with the fundamental facet of Section 27 of the Evidence Act, the Court observed that the basic idea embedded in the said provision is the doctrine of confession by subsequent events, which is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. It further stated that the information might be confessional or non inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information and, therefore, the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum.
14. Thus, if an accused person gives a statement that relates to the discovery of a fact in consequence of information received from him is admissible. The rest part of the statement has to be treated as inadmissible. In view of the same, the recovery made at the instance of the accused-appellant has been rightly accepted by the trial Court as well as by the High Court, and we perceive no flaw in it.
15. Another circumstance which has been taken note of by the High Court is that the bloodstained clothes and the weapon, the knife, were sent to the Forensic Science Laboratory. The report obtained from the Laboratory clearly shows that blood stains were found on the clothes and the knife.True it is, there has been no matching of the blood group. However, that would not make a difference in the facts of the present case. The accused has not offered any explanation how the human blood was found on the clothes and the knife. In this regard, a passage from John Pandian v.State (supra) is worth reproducing:
"The discovery appears to be credible. It has been accepted by both the courts below and we find no reason to discard it. This is apart [pic]from the fact that this weapon was sent to the forensic science laboratory (FSL) and it has been found stained with human blood. Though the blood group could not be ascertained, as the results were inconclusive, the accused had to give some explanation as to how the human blood came on this weapon. He gave none. This discovery would very positively further the prosecution case."
15.1 In view of the aforesaid, there is no substantial reason not to accept the recovery of the weapon used in the crime. It is also apt to note here that Dr. N.K. Mittal, PW1, has clearly opined that the injuries on the person of the deceased could be caused by the knife and the said opinion has gone unrebutted."
In the aforesaid decision, the Hon'ble Supreme Court has held that if chain of circumstance is so completed that it unerringly pointing towards guilt of the accused, even in a case of circumstantial evidence, the accused can be held guilty."
30. The said case was a case of circumstantial evidence whereas the case on hand hinges on the oral testimonies of the eye-witnesses, thus, having discussed the oral as well as the documentary evidence, which has come on the record of the case, we are of the opinion that the prosecution has succeeded in establishing its case beyond reasonable doubt against accused. Under the circumstances, we are of the opinion that the learned trial Judge was justified in recording the conviction of accused Under Section 302 of I.P.C.
31. The presence and participation of the accused in the alleged offence stands proved beyond reasonable doubt by the evidence of P.W.-1 and P.W-2, who were present at the place of offence, when the alleged incident took place.
32. The defence has not been able to controvert the evidence of these witnesses. Over and above all the other witnesses, as stated above, have supported the respective recovery and discovery documents. Thus, the guilt of the accused stands proved by the direct oral evidence of P.W.-1 and P.W.-2, who are eye witnesses to the incident, as well as by the documentary evidences. From the evidence of P.W.-6, who had performed P.M. on the body of the deceased and had noticed external injuries and it becomes clear that this is a case of homicidal death. We are, therefore, of the opinion that the learned Judge rightly held accused guilty for the act of causing death of deceased
33. In view of the aforementioned discussion, we are of the view that this appeal has to fail and is accordingly dismissed. The impugned judgment passed by the trial court is affirmed.
34. The appellant is already in jail and, therefore, no further order is required.
35. Record and proceedings be sent back to Sessions Court.
Order Date :- 9.10.2018
DKS/Irshad
