Smt. Kanti And Another vs State
2019 Latest Caselaw 1082 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
                   A.F.R.
 
Court No. 4
 
Case :- CRIMINAL APPEAL No. - 591 of 1987
 

 
Appellant :- Smt. Kanti And Another
 
Respondent :- State
 
Counsel for Appellant :- R B Singhal,Kapil Kumar,Prashant Vyas,Sandhya Singh
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Ghandikota Sri Devi,J.

Heard learned counsel for the appellants and Smt. Manju Thakur, learned A. G. A.-I for the State.

This criminal appeal has been filed by the appellants against the judgement and order dated 24.2.1987 passed by III Additional Sessions Judge, Ghaziabad in S. T. No. 45 of 1986; State Versus Smt. Kanti and another by which the appellants have been convicted and sentenced to undergo life imprisonment under Sections-302/34 and and six months' R. I. under Sections-323/34 I. P. C.

Record of this appeal shows that A 1 Smt. Kanti died during the pendency of this appeal before this Court, hence this appeal was dismissed as abated qua A 1 Smt. Kanti vide order dated 25.7.2018.

The facts of the case briefly stated are as hereunder:

On the basis of the oral report lodged by informant P. W. 1 Gaffar on 19.2.1985 at P. S.-Sahibabad, district-Ghaziabad at about 11.00 A. M. in respect of an incident which had taken place earlier on the same day at about 9.00 A. M. in Sanjay Colony which was at a distance of about five kms. from the police station, Case Crime No. 49 of 1985 under Section-302 I. P. C. was registered against A 1 Smt. Kanti deceased and A 2 Suman, chek F. I. R. and relevant G. D. entry vide rapat No. 31 time 11.00 A. M. dated 19.2.1985 were prepared by P. W. 6 Head Constable Ishwar Chandra (Exts. Ka 1 and Ka 6 respectively).

As per the prosecution story spelt out in the chek F. I. R., Qamarjahan, sister of P. W. 1 Gaffar who was a resident of Sanjay Colony had come to his house about fifteen days before the incident. A drain was flowing in front of houses of the informant, his neighbour Dharampal and other houses in the locality. An altercation had taken place between the wife of Gaffar, Bano with Smt. Kanti, wife of Dharampal and his daughter Suman over the cleaning of the aforesaid drain. On the date of the occurrence while P. W. 1 had gone somewhere in connection with some work and his sister and his wife Bano were sitting on his shop, an altercation again took place between Qmarjahan, Kanti and Suman over the cleaning of the drain, on which Kanti and Suman started abusing Qmarjahan, came in front of his shop, and both started grappling with Qmarjahan in front of his shop. In retaliation Qamarjahan also hurled abuses at them. On which, Smt. Kanti told Suman that since Bano was a very sharp tongued woman, they should finish her. Uttering the aforesaid words, both of them made Qamar Jahan fall on the ground by pushing her and thereafter Suman mounted herself on her chest and in the meantime Smt. Kanti brought a "danda" from her house, then both Suman and Smt. Kanti pressed "danda" against the neck of Qamar Jahan. When Bano tried to save her, they beat her also. On the noise made by them, P. W. 1 Gaffar, his neighbours Sirajuddin, Aziz and Radheyshyam etc. arrived at the place of incident and pulled away Suman and Kanti from Qamar Jahan who by that time had become unconscious. They took her to Mohan Nagar Hospital where the doctor after examining her, declared her brought dead.

The investigation of the case was taken up by P. W. 7 Inspector M. L. Ghai, who after registration of the case reached the place of occurrence accompanied with S. I. Mulayam Singh, two other sub-inspectors and four constables. The inquest on the body of the deceased Qamar Jahan was conducted by S. I. Mulayam Singh who after completing inquest proceedings prepared inquest report Ext. Ka 7 and other related documents namely sketch of the dead body Ext. Ka 8, challan lash Ext. Ka 9, letter addressed to the C. M. O. Ext. Ka 10 and letter addressed to R. I. Ext. Ka 11, sample seal Ext. Ka 12. He also prepared the site plan of the place of occurrence at the instance of eyewitnesses Radheshyam, P. W. 4 Sirazuddin and others Ext. Ka 13. He also seized the "danda" which was allegedly used by the accused in committing the offence and prepared its recovery memo Ext. Ka 5 on the spot. The "danda" was produced during the trial and marked as material Ext. Ka 2. On the same day, he arrested both the accused, deceased A 1 Smt. Kanti and A 2 Suman from the house of Maharajsingh, the brother-in-law (sister's husband) of Smt. Kanti in Arthala. After completing the inquest proceedings, he got the dead body of Qamarjahan sealed and dispatched to the District Hospital, Ghaziabad for post mortem examination.

Post mortem on the body of the deceased Qamarjahan was conducted by P. W. 8 Dr. R. L. Saraswat on 19.2.1985 at 3.3.0 P. M. who also prepared her post mortem report Ext. Ka 15. Following ante-mortem injuries were found on the person of Qamar Jahan :-

(1) A contusion round the neck centerially and slight on sides also with petichial haemorrhage.

(2) An abrasion 1 x ½ cm on the left side cheek, right side lower llip, right knee and left hand.

Bano was medically examined on the same day at 1.20 P. M. by P. W. 2 Dr. Akhilesh Gautam who noted multiple abrasion on her right neck, right ear lobule, back of elbow joint and left knee joint and sides.

Both the accused appellants were also sent for medical examination through Constable Madan Pal.

P. W. 3 Dr. S. C. Sharma who had medically examined A 1 Smt. Kanti (deceased) at 2.35 P. M. had found a faint contusion on left side of her face and an abrasion on her right knee joint. He also examined A 2 Suman on the same day at 2.45 P. M. but did not find any external mark of injury on her person.

After completing the investigation he filed charge-sheet Ext. Ka 14 against both the accused appellants before the C. J. M., Ghaziabad.

Since the offences mentioned in the chargesheet were triable exclusively by the Court of Sessions, C. J. M., Ghaziabad committed both the accused-appellants to the Court of Sessions for the trial where Case Crime No. 49 of 1985 was registered as S. T. No. 45 of 1986, State Versus Smt. Kanti and another and made over for trial from there to the Court of III Additional Sessions Judge, Ghaziabad who on the basis of the material on record and after affording opportunity of hearing to the prosecution as well as the accused appellants framed charge under Sections 302/34 I. P. C. and 323/34 I. P. C. against both the accused appellants who abjured the charge and claimed trial.

The prosecution in order to prove its case against the accused examined P. W. 1 informant Gaffar, the brother of the deceased Qamarjahan, P. W. 4 Sirajuddin and P. W. 5 Smt. Bano, wife of the complainant as witnesses of fact while P. W. 2 Dr. Akhilesh Gautam, who had examined the injuries of Bano, P. W. 3 Dr. S. C. Sharma who had medically examined the two accused appellants, P. W. 6 Head Constable Ishwar Chandra who had scribed the chek F. I. R. and prepared G. D. entry and P. W. 7 Inspector M. L. Ghai, the Investigating Officer of the case and P. W. 8 Dr. R. L. Saraswat who had conducted autopsy on the corpse, were produced as formal witnesses. Formal link evidence of Constable Sukhram Singh who had taken the corpse for autopsy to the mortuary was tendered on affidavit.

Both the accused-appellants in their examination under Section 313 Cr. P. C. denied their participation in the crime and alleged false implication. A 1 Smt. Kanti further stated that her daughter had come to Arthala to the house of her aunt (mausi) where she had gone to meet her. According to her, both of them were arrested from there. The same plea was adopted by A 2 Suman by stating that one day before the incident she had come to the house of her Mausi in Arthala and when her mother had gone to meet her there, both of them were arrested by the police. The accused-appellants did not however adduce any evidence in defence.

The III Additional Sessions Judge, Ghaziabad by the impugned judgement and order convicted both the appellants under Section-302/34 I. P. C. and 323/34 I. P. C. and awarded the aforesaid sentences to them.

Hence, this appeal.

It has been contended by learned counsel for the appellants that even if the entire allegations made in the F. I. R. of the incident Ext. Ka 1 and the facts testified by the three eyewitnesses produced by the prosecution during trial are taken to be true and accepted on their face value, even then, the offence, if any, committed by the surviving appellant A 2 Suman, which emerges out from the evidence on record, does not travel beyond Section 304 Part II I. P. C. in view of the admitted fact that the incident was neither premeditated nor pre-planned but was committed in a sudden fight in the heat of passion as a result of sudden provocation and no deadly weapon was used by the accused-appellants and further that there is no evidence that A 2 Suman had taken any undue advantage or treated the deceased in a cruel or unusual manner and both the accused-appellants had also received injuries in the incident which the prosecution had failed to explain, neither the recorded conviction of the appellants nor the life imprisonment awarded to her can be sustained and her conviction is liable to be converted under Section 304 Part II I. P. C. and sentence of life imprisonment awarded palliated to a lesser period of imprisonment.

Per contra, Smt. Manju Thakur, learned A. G. A.-I appearing for the State has submitted that it is proved from the evidence on record, both oral as well as documentary, that the accused had pressed the neck of the deceased by putting a "danda" against her neck, fully conscious of the fact that their act was likely to cause death of the deceased and hence, no interference either with the recorded conviction of the appellant or the sentence of life imprisonment awarded to her is required. This appeal lacks merits and is liable to be dismissed.

We have very carefully considered the submissions advanced before us by learned counsel for the parties and perused the entire lower court record.

The only question which arises for our consideration in this appeal is whether the conviction of A 2 Suman recorded by the court below under Section 302 I. P. C. and life sentence awarded to her is liable to be altered to one under Section 304 Part II I. P. C. and the sentence of life palliated to a lesser period of imprisonment.

It is borne out from the record that a few days before the incident, quarrel had taken place between the deceased and her sister-in-law Bano, wife of P. W. 1 Gaffar and the accused over the cleaning of the drain which was flowing in front of their houses. They were somehow pacified on that day but an altercation between them again started on the date of the occurrence over the same issue and A 1 Smt. Kanti started abusing the deceased Qamarjahan, the sister of complainant, P. W. 1 Gaffar who had come to visit his house while she was sitting in the shop of P. W. 1 in his absence along his wife Bano. In retaliation deceased also uttered some objectionable words, on which, A 1 Smt. Kanti exhorted that Qamarjahan was a very sharp tongued woman and she should be finished. Both the accused-appellants thereafter pushed Qamarjahan as a result she fell in the lane while A 2 Suman sat on her chest, A 1 Smt. Kanti brought a "danda" from her house and both of them pressed the "danda" against the neck of Qamarjahan and when Bano tried to save her, she was also beaten. On the alarm raised by them, the complainant along with his neighbours arrived there and rescued the victim. By that time, Qamarjahan had become unconscious. She was rushed to Mohan Nagar hospital where she was declared brought dead. The incident is alleged to have taken place on 19.2.1985 at about 9.30 P. M. The F. I. R. of the incident registered on the oral report of P. W. 1 informant Gaffar at P. S.-Sahibabad was given promptly on the same date at 11.00 A. M. The injured Bano as well as both the accused-appellants were medically examined on the same day.

We have already taken note of the injuries found on their persons by P. W. 2 Dr. Akhilesh Gautam and P. W. 3 Dr. S. C. Sharma. The injury report of Bano Ext. Ka 2 was proved by P. W. 2 Dr. Akhilesh Gautam who had examined her medically on 19.2.1985. He had deposed that it was possible that the injuries which he had noted on the person of Bano, were caused to her on the same day in the morning possibly at 11.00 A. M. He further opined that the injury nos. 2 and 3 of Bano could be caused if the injured lady was grappling with some other person.

P. W. 3 Dr. S. C. Sharma who had examined the injuries of A 1 Smt. Kanti (deceased) and A 2 Suman on 19.2.1985 at 3.35 P. M. and prepared their injury reports and proved the same as Ext. Ka 4, deposed that the injuries received by A 1 Sm.t Kanti could be caused at about 11.00 A. M. by a "danda". As regards A 2 Suman, he has stated that upon her medical examination, he had not found any external marks of injury on her person.

Thus, from the evidence of P. W. 2 and P. W. 3 it is established that apart from Bano, deceased A 1 Smt. Kanti had also received injuries in the occurrence which could have been caused by a "danda". The F. I. R. is absolutely silent about the circumstances under which deceased A 1 Smt. Kanti had also received injuries in the incident. The post mortem on the body of the deceased Qamarjahan was conducted by P. W. 8 Dr. R. L. Saraswat on 20.2.21985. He deposed that he had found the eyes congested and pupils dilated with blood coming out from the mouth. The brain as well as its membranes were congested with petichial haemorrhage. The hyoid bone was very much congested and loose but not fractured. Larynx and trachea were congested and crushed. Both the lungs were congested and crushed. Both the lungs were congested with petichial haemorrhage and dark blood was noticed on cutting. Both the cartoids were crushed. The tongue was swollen.

Thus, upon the perusal of medical evidence on record, it transpires that the deceased had died as a result of shock due to asphyxia from ante mortem injuries. Her post mortem report indicates two ante mortem injuries, one contusion around the neck and abrasion on the left side cheek, right side lower lip, right knee and left hand. As far as the second injury noted on the body of the deceased is concerned, the same could have been caused on her falling on the ground. The medical evidence, however, conclusively established that the deceased's death was homicidal.

Now, we proceed to examine whether the act of the accused-appellants was culpable homicide amounting to murder or not in the light of the evidence on record ?

We first propose to have a glance at the law on the issue.

The Apex Court in the case of Mani vs. State of Kerala and others [(2019) 2 SCC (Criminal)] has in paragraphs 23, 24 and 25 of the aforesaid case which are being reproduced hereinbelow, held as hereunder:-

" Exception 4 to Section 300 of the IPC applies in the absence of any premeditation. This is very clear from the wordings of the Exception itself. The Exception contemplates that the sudden fight shall start upon the heat of passion on a sudden quarrel. The fourth exception to Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of provocation not covered by the first Exception, after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1, but the injury done is not the direct consequence of that provocation. In fact, Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon an equal footing. A "sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor could in such cases the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner, and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage".

The Apex Court in State of A.P. vs. Rayavarapu Punnayya and Another (1976) 4 SCC 382 while drawing a distinction between Section 302 and Section 304 of IPC held as under:

"12. In the scheme of the Penal Code, "culpable homicide" is genus and "murder" its specie. All "murder" is "culpable homicide" but not vice-versa. Speaking generally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the greatest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.

21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is "murder" or "culpable homicide not amounting to murder", on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of "murder" contained in Section 300. If the answer to this question is in the negative the offence would be "culpable homicide not amounting to murder", punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be "culpable homicide not amounting to murder", punishable under the first part of Section 304, of the Penal Code."

25. In Budhi Singh vs. State of Himachal Pradesh (2012) 13 SCC 663, the Supreme Court held as under:

18. The doctrine of sudden and grave provocation is incapable of rigid construction leading to or stating any principle of universal application. This will always have to depend on the facts of a given case. While applying this principle, the primary obligation of the court is to examine from the point of view of a person of reasonable prudence if there was such grave and sudden provocation so as to reasonably conclude that it was possible to commit the offence of culpable homicide, and as per the facts, was not a culpable homicide amounting to murder. An offence resulting from grave and sudden provocation would normally mean that a person placed in such circumstances could lose self-control but only temporarily and that too, in proximity to the time of provocation. The provocation could be an act or series of acts done by the deceased to the accused resulting in inflicting of injury.

19. Another test that is applied more often than not is that the behaviour of the assailant was that of a reasonable person. A fine distinction has to be kept in mind between sudden and grave provocation resulting in sudden and temporary loss of self-control and the one which inspires an actual intention to kill. Such act should have been done during the continuation of the state of mind and the time for such person to kill and reasons to regain the dominion over the mind. Once there is premeditated act with the intention to kill, it will obviously fall beyond the scope of culpable homicide not amounting to murder....."

Testing the evidence of three witnesses of fact on the touchstone of the aforesaid principles, we find that P. W. 1 informant Gaffar is not the eyewitness of the occurrence but he has given evidence regarding the incident which had taken place three or four days before the occurrence between the accused appellants and the deceased over cleaning of the drain which was flowing in front of their houses. From the perusal of the statements of P. W. 5 Bano and P. W. 4 Sirajuddin, it does not transpire that the act of the accused appellants was pre-meditated or preplanned. The bickering between the accused and the deceased Qamarjahan over cleaning of drain suddenly aggravated on the date of the incident and when the deceased hurled abuses at the appellants in retaliation, on sudden provocation and in the heat of passion, the accused-appellants pushed the deceased who fell on the ground and thereafter A 2 Suman ran into her house and returned with a stick, which the accused-appellants pressed against her neck rendering her unconscious and later resulting in her death. There is nothing in their evidence which may indicate that the accused A 2 Suman and deceased A 1 Smt. Kanti when the altercation had started between them and the deceased, were carrying any deadly weapon with them, not even the stick, with the aid of which, eventually the crime was committed. It is evident from the evidence on record that the deceased's assault was on equal footing on the point of defence at the onset when the deceased and the accused had started grappling. The evidence on record indicates that suddenly circumstances were created in which the accused-appellants lost self control temporarily and committed the offence.

Thus upon a wholesome consideration of the facts, attending circumstances of the case and the law on the issue, we find that in the instant case, the act committed by the accused-appellants does not fall in the category of culpable homicide amounting to murder. In our opinion, the present case is covered by the Exception 4 to Section 300 I. P. C.

In view of the above, this appeal is allowed in part. The recorded conviction of A 2 Suman is altered to one under Section 304 Part II I. P. C.

Considering the fact that at the time of the incident A 2 Suman was only eighteen years old, as is evident from her age mentioned in her statement recorded under Section 313 Cr. P C. and she is on bail since 25.2.1987 and more than thirty four years have passed since the incident took place, the sentence of life imprisonment awarded to her is reduced to the period of imprisonment already undergone by her together with fine of Rs. 50,000/- which shall be deposited by A 2 Suman within three months of her release before the C. J. M., Ghaziabad and in default of payment of fine, she shall be liable to undergo additional imprisonment of three years.

It is further directed that the sum of Rs. 50,000/- so deposited by A 2 Suman pursuant to the direction aforesaid, shall be paid by the C. J. M., Ghaziabad to the heirs and legal representative of A 1 Smt. Kanti after getting them identified properly.

Since A 2 Suman is on bail, her bail bonds are cancelled and sureties are discharged. However, she shall comply with the mandatory provision of Section 437-A Cr.P.C.

Order Date: 13.3.2019

HR