Satyanarain @ Babloo vs State Of U.P.
2019 Latest Caselaw 2686 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 25.03.2019
 
                    Delivered on 09.04.2019
 
Court No. - 34
 

 
Case :- JAIL APPEAL No. - 4303 of 2013
 

 
Appellant :- Satyanarain @ Babloo
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,Rajesh Kumar Singh (A.C.),Vinod Kumar Kushwaha
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Rajendra Kumar-IV,J.

(Delivered by Hon'ble Rajendra Kumar-IV,J)

1. Present Jail Appeal is directed by accused-appeallant-Satya Narain @ Babloo through Superintendent of Jail, against the judgment and order dated 07.06.2013 passed by Additional Session Judge / Special Judge S.C./S.T., Act, Kannauj in Session Trial No.195 of 2010 (State versus Satya Narain @ Babloo), under Section 302 IPC, Police Station Tirwa, District Kannauj, whereby Trial Court has convicted accused Satya Narain @ Babloo and sentenced him to life imprisonment and a fine of Rs.15,000/-. In default of payment of fine, he shall undergo further simple imprisonment for five months.

2. Factual matrix of the case as emerging from First Information Report (hereinafter referred to as "FIR") as well as material placed on record is as follows.

3. A written report Ex.Ka-1 dated 31.01.2010 was presented in Police Station Tirwa, District Kannauj by Informant PW-1 Smt. Jagrani, alleging that on 31.01.2010 at about 07:00 PM she was cooking food when her son Daya Narain came there and sat for dinner, then her elder son Satya Narain @ Babloo (accused) came and told her to make tea. In between there was a verbal altercation between two. Daya Narain victim, who was in drunken position, got up and fell down on the bricks in court yard. Suddenly accused Satya Narain @ Babloo assaulted victim Daya Narain with bricks due to which he became unconscious and after some time he succumbed to injury.

4. On receipt of written report Ex.Ka-1, Chik Report Ex.Ka-8 was prepared by Constable Sarvesh Singh PW-5, who registered the case under Sections 304 IPC as Case Crime No. 48 of 2010. An entry of case was made in General Diary on 31.11.2010 at 22:40 PM, a copy thereof is Ex.Ka-9 on record.

5. Immediately after registration of case, investigation was undertaken by PW-6 S.I. Sri Shekh Ahmad, posted at Police Station Tirwa, who took copies of written report and Chik FIR and proceeded to place of occurrence, prepared site plan Ex.Ka-10. Thereafter he apprehended accused, recorded his statement of witnesses and submitted charge sheet Ex.Ka.11 under Section 304 IPC against the accused.

6. H.C.P. Ganesh Prasad Mishra PW-4 held inquest over the dead body of Daya Narain, prepared Panchayatnama Ex.Ka-3 and other relevant papers relating thereto. Body was duly sealed and sent to District Hospital, Kannauj for post mortem examination.

7. Dr. K.N. Katiyar, PW-3 conducted autopsy of deceased Daya Narain and prepared postmortem report (Ex.Ka-2) under his signature, expressing his opinion that death might have been caused ¾ day prior to postmortem and it was due to shock and hamarrage on account of ante mortem injuries.

8. Case, being exclusively triable by Court of Sessions, was committed to Session Judge for trial, wherefrom it was transferred to Special Judge, SC/ST Act, Kannauj for disposal according to law.

9. Trial Court, after considering the entire material on record, framed charge against accused-appellant on 11.11.2010 under Section 302 IPC to which accused denied and claimed trial. Charge reads as under:

"eS pUnziky fo'ks"k U;k;k/kh'k ,l0lh0,l0Vh0 ,DV] dUukSt esa vki vfHk;qDr lR;ujk;u dks fuEu vkjksi ls vkjksfir djrk gwWA

01- ;g fd fn0&31-01-10 dks le; djhc 7-00 cts 'kke LFkku edku okfnuh xzke xwjk Fkkuk frokZ ftyk dUukSt esa vkius okfnuh txjkuh ds iq= n;kujk;u ds bZV ekj djds lk'k; mldh e`R;q dkfjr djds gR;k dhA bl izdkj vki us Hkk0n0la0 dh /kkjk 302 ds v/khu n.Muh; vijk/k dkfjr fd;k tks U;k;ky; ds izlaKku esa gSA

eS ,rn~}kjk funsZf'kr djrk gwW fd vkidks mijksDr vkjksiksa ds fy;s bl U;k;ky; }kjk ijh{k.k fd;k tk;sA "

"I, Chandra Pal, Special Judge, SC/ST Act, Kannauj do hereby charge you, the accused, Satya Narain with the following offence:

1. That on 31.01.2010 at around 7 pm at the house of the complainant situated at Village Goora, PS Tirwa, Kannauj, you hit Daya Narainn S/o complainant Jagrani with a brick, thereby killing him with an intent to do so. In this way, you have committed an offence punishable u/s 302 of IPC, which is within the cognizance of this court.

I do hereby direct you to be tried by this court for the aforesaid charge."

(English Translation by Court)

10. In order to substantiate its case, prosecution examined as many as six witnesses, out of them PW1-Smt. Jagrani, PW-2-Sachin are witnesses of fact and PW-3 Dr. K.N. Katiyar, PW4- H.C.P. Ganesh Prasad Mishra, PW-5-Contable Sarvesh Singh, PW-6- S.I. Shekh Ahmad are formal witnesses.

11. On closure of prosecution evidence statement of accused under Section 313 Cr.P.C. was recorded by Court explaining all incriminating and other evidence and circumstances. Accused denied prosecution story in toto and all formalities of investigation were said to be wrong. He claimed false implication and statement of witnesses is said to be on account of enmity. He did not choose to adduce evidence in defence. In response of question no.12, he answered that victim was habitual of liquor hence he had fallen from intoxication and he died on this count.

12. After hearing the counsel for the parties and analyzing entire evidence led by prosecution on record, learned trial court has found the accused-appellant guilty and convicted him as stated above. Feeling aggrieved with impugned order of conviction and sentence, the present appeal has been filed through Jail.

13. We have heard Sri Rajesh Kumar Singh, Advocate (Amicus Curiae) for appellant and Sri Ratan Singh, learned A.G.A for State-respondent at length and have gone through the record available on file carefully with the valuable assistance of learned Counsel for parties.

14. Learned Amicus Curiae appearing for appellant has challenged conviction and sentence of accused-appellant, advancing his submissions, in the following manners :-

(i) PW-1 Smt. Jagrani is mother of deceased i.e. relation witness.

(ii) There is no motive to accused to commit the present crime.

(iii) Evidence of P.W.-1 is not supported with any other evidence. No independent witness is produced from the side of prosecution to prove its case.

(iv) There are several contradictions rendering prosecution case doubtful.

(v) FIR has been lodged by PW-1 (mother of deceased) close relative of deceased after delay more than three hours without explaining sufficient reason for delay in lodging FIR.

15. Per contra learned AGA opposed submissions and urged that PW-1 is mother of deceased as well as accused, she is a witness of fact, who has supported prosecution and established that deceased is assaulted by accused with bricks in her house. Therefore, she is the natural witness. Prosecution has established its case beyond reasonable doubt. Medical evidence also supports the prosecution version.

16. We now proceed to consider rival submissions on merits.

17. It will be appropriate to briefly consider the evidence on record. PW-1 Smt. Jagrani (mother of deceased as well as accused) claims to be eye witness to incident during which Daya Narain was assaulted by accused-appellant with bricks causing serious bodily injuries to which he finally succumbed, supporting the prosecution case deposed that on the fateful day at about 07:00 PM she was cooking food when her son Daya Narain aged about 28 years came and sat for dinner. At that time his elder son Satya Narain (accused) also came and there was an altercation between two. Accused picked a brick lying in the court yard and gave blows to victim due to which he sustained injuries and succumbed to injuries. She gave Tahrir scribed by one Rakesh in the police station concerned. In cross examination, she admitted that her daughters were not present in the house in the fateful day. Her sisters-in-law were also not present. She was alone in the house and cooking food when both the sons arrived there. She has further deposed that the place where accused Satya Narain assaulted Daya Narain by brick was two steps far from where she was cooking food. There were injuries on his face alone. She did not count injuries. Witness was cross examined at length but in entire cross examination nothing material could be brought on record which could dent the prosecution story.

18. PW-2 Sachin aged about 11 years son of accused Satya Narain appeared in the Court for examination but did not tell anything about the incident.

19. PW-3 Dr. K.N. Katiyar has deposed that on 01.02.2010, he was posted as Medical Officer in New Primary Health Center, Gursahaiganj. He conducted autopsy on the person of deceased at 01:30 PM which was brought by Police and prepared postmortem report, Ex-Ka-2, under his signature. He opined that cause of death was due to shock and haemarrage on account of ante mortem injuries. He further opined that death might have occurred 3/4 days prior to postmortem. He found seven ante mortem injuries on the body of deceased which reads as under:

1. Lacerated wound 14 x 4 cm bone deep over forehead under which bone fractured into many pieces, brain material coming from the wound.

2. Lacerated wound 5 x 2 cm over left side of eye.

3. Lacerated wound 4 x 1 cm below right eye, bone fractured.

4. Lacerated wound 3 x 1 cm over chin, clotted blood present.

5. Lacerated wound 2 x 0.5 cm over the injury no.4.

6. Inciser and canial of both jaw are broken up.

7. Lacerated wound 5 x 2 cm over right side of cheek under which zygotic bone fractured.

20. PW-4 H.C.P. Ganesh Prasad Mishra has deposed that he was posted as H.C.P. in Police Station Tirwa on 31.02.2010 on the information of Smt. Jagrani he himself, Constable Malkhan Singh, Surendera Singh and Sukhveer Singh visited the spot with relevant papers where mother of deceased and villagers were present. He held inquest over the dead body, prepared inquest report Ex.Ka.3 and other papers relating thereto.

21. From the evidence of PW-1, PW-3 and PW-4 adduced by prosecution following circumstances are clearly established :

A. Smt. Jagrani was present and cooking food at the time of incident.

B. She is the only witness who was present there.

C. There had been a quarrel between deceased and accused Satya Narain.

D. Victim was assaulted with brick, sustained serious injuries and succumbed to injuries in the court yard of house.

E. Postmortem report reveals that death of Daya Narain might have occurred 3/4 day prior to postmortem due to shock and hammarage on account of ante mortem injuries.

22. Now the crucial question remain for consideration is "whether Satya Narain committed murder of Daya Ram and conviction and sentence awarded by Court below is justified"

23. PW-1 happens to be mother of deceased as well as accused. She has given statement against accused in which she has stated that she was cooking food when victim and accused came there and a quarrel started between both. Accused assaulted Daya Narain with brick due to which Days Narain received injuries and succumbed to injuries, she lodged FIR against the accused.

24. It is relevant to mention here that incident took place in the evening, in dwelling house where presence of PW-1 is quite natural, she is mother of deceased as well as accused. She had only two sons; one is killed and second is in jail. She also admitted that she has had equal affection with both of them. There is nothing on record to show that she has any reason to connect the accused falsely with the present crime. Medical evidence is also compatible with the ocular version.

25. Another argument advanced by learned counsel for the appellant is that witnesses of fact, PW-1 is the real mother of deceased, so her testimony can not be said to be reliable and trustworthy.

26. Admittedly, PW-1 is the real mother, who claimed to be witness of occurrence. PW-1 established the presence of accused in the fateful evening in the house where Daya Narain was seriously injured, thereafter succumbed to injuries. PW-1 is mother of both and was cooking food, therefore, her presence in the house is quit natural and she is natural witness. We are not impressed with the submission of counsel for appellant in this regard.

27. In Ganga Bhawani v. Rayapati Venkat Reddy and Others, 2013(15) SCC 298, the Supreme Court has held as under :-

"11. It is a settled legal proposition that the evidence of closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon.

(Vide: Bhagalool Lodh & Anr. v. State of UP, AIR 2011 SC 2292; and Dhari & Ors. v. State of U. P., AIR 2013 SC 308)."

28. It is settled law that merely because witnesses are closely relative to deceased, their testimonies cannot be discarded. Relationship with one of the parties is not a factor that affects credibility of witness, more so, a relative would not conceal the actual culprit and make allegation against an innocent person that too his own real son. However, in such a case Court has to adopt a careful approach and analyse the evidence to find out that whether it is cogent and credible evidence.

29. In so far as discrepancies, variation and contradiction in the prosecution case are concerned, we have analysed entire evidence in consonance with the submissions raised by learned counsel's and find that the same do not go to the root of case.

30. In Sampath Kumar v. Inspector of Police, Krishnagiri, (2012) 4 SCC 124, Court has held that minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and sense of observation differs from person to person.

31. We lest not forget that no prosecution case is foolproof and the same is bound to suffer from some lacuna or the other. It is only when such lacunae are on material aspects going to the root of the matter, it may have bearing on the outcome of the case, else such shortcomings are to be ignored. Reference may be made to a recent decision of the Apex Court (3 Judges) in Criminal Appeal No. 56 of 2018, Smt. Shamim v. State of (NCT of Delhi), decided on 19.09.2018.

32. So far as motive is concerned, it is well settled that where direct evidence is worthy, it can be believed, then motive does not carry much weight. It is also notable that mind set of accused persons differs from each other. Thus merely because that there was no strong motive to commit the present offence, prosecution case cannot be disbelieved.

33. In Lokesh Shivakumar v. State of Karnataka, (2012) 3 SCC 196, the Supreme Court held as under :-

"As regards motive, it is well established that if the prosecution case is fully established by reliable ocular evidence coupled with medical evidence, the issue of motive looses practically all relevance. In this case, we find the ocular evidence led in support of the prosecution case wholly reliable and see no reason to discard it."

34. In the present case, it is fully established that Daya Narain was seriously injured by accused in the house, evidence showed that the dead body of Daya Narain was found in the house at the time of inquest. The medical evidence showed that death of Daya Narain might have occurred due to ante mortem injuries at the time as alleged by prosecution. Accused-appellant in his statement under Section 313 Cr.P.C. has given reply that witnesses gave statement on account of enmity but he did not suggest as to what enmity, PW-1 Smt Jagrani, his real mother, has had with him, therefore, there cannot be any hesitation to come to conclusion that accused caused death of victim Daya Narain by causing several injuries on the body of Daya Narain with bricks due to which he succumbed to injuries.

35. The next issue is whether the incident occurred due to sudden heat of passion or a premeditated act.

36. Oral evidence of PW-1, other circumstances also point towards the complicity of the appellant in commission of crime. The nature of the injuries suffered by the deceased attributable to the assault by brick by the appellant, we find that Trial Court has justly analyzed the evidence to record the finding about the complicity of appellant in the commission of crime.

37. Noteably the evidence on record plainly establishes that a sudden quarrel took place between appellant and Daya Narain and appellant assaulted Daya Narain causing serious bodily injuries. There is no shred of evidence much less even a remote suggestion that appellant had assaulted Daya Narain with intention to cause his death. Though the Trial Court found the appellant guilty, it has not held that bodialy injuries caused by appellant were with an intention to caused death of Daya Narain.

38. Controversy in this appeal boils down to the nature of offence and sentenced to be awarded in that behalf. As aforesaid, the evidence on record as held by Trial Court is that appellant gave seven blows to Daya Narain on the fateful evening to which he succumbed. Thus, it is case of homicidal death. However, there is no evidence that injuries inflicted by appellant were with an intention to cause murder of Daya Narain. On the other hand, evidence clearly indicates that appellant assaulted Daya Narain without any premeditation. The whole incident took place suddenly and, in the heat of passion a sudden quarrel started between them resultantly appellant got enraged.

39. Taking into account the events as unfolded, it leaves no manner of doubt that appellant had no intention to cause death of Daya Narain. The incident happened without any premeditation in a sudden quarrel between Daya Narain and appellant, and appellant inflicted brick blow on Daya Narain. PW-1 mother of deceased Daya Narain also corroborates the position that there would be a quarrel between them and accused assaulted Daya Narain.

40. Taking overall view of the matter, the fact of the present case warrant invocation of exception 4 to Section 300 of IPC. It is a case culpable homicide not amount to murder in as much as incident happened on account of sudden quarrel between victim and deceased. There was no premeditation and act done by appellant appears to be in the heat of passion without appellant taken any undue advantage or acted in a cruel manner. Numbers of wound caused by appellant, it is a well established position by itself, cannot be decisive factor.

41. In Surain Singh versus State of Punjab, (2017) 5 SCC 796, Supreme Court has restated the settled legal position about the purport of Exception 4 to Section 300 of IPC. Even in that case, the accused had repeatedly assaulted the deceased with a Kripan and caused injuries resulting into death. After restating the legal position, the Court converted the offence to one under Section 304 Part-II instead of Section 302 IPC.

42. Keeping in view, the nature of injuries noticed by PW-3 Dr. K.N. Katiyar, it is difficult to accept that accused Satya Narain intended to cause the death of Daya Narain or that injuries were so dangerous that they would in all probability cause death.

43. Accordingly, we partly allowed the Jail Appeal No. 4303 of 2013 filed by accused-appellant Satya Narain and modify the impugned judgment of the Trail Court. Accused-appellant is held guilty for offence under Section 304 Part -II and sentenced to undergo rigorous imprisonment for period of ten years with fine of Rs. 20,000/-. In default to pay fine, he shall undergo further imprisonment for one year. Accused-appellant shall be entitled to set of under Section 428 Cr.P.C.

44. Lower Court record along with the copy of this judgment be sent immediately to Court and Jail Superintendent concerned for necessary compliance and to apprise the accused forthwith. Compliance report be also submitted to this Court.

45. Before parting we provide that Sri Rajesh Kumar Singh, learned Amicus Curiae for appellant who assisted the Court very diligently, shall be paid counsel's fee as Rs. 10,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad, to him without any delay and, in any case, within one month from the date of receipt of copy of this judgement.

Order Date:-09/04/2019

I.A. Siddiqui