Niranjan Singh vs State Of U.P.
2021 Latest Caselaw 11488 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 
Delivered on 16.12.2021
 
Court No. - 21
 
Case :- CRIMINAL APPEAL No. - 4718 of 2018
 
Appellant :- Niranjan Singh
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Yogesh Kumar Srivastava,Dileep Kumar
 
Counsel for Respondent :- G.A.,Gaurav Kakkar
 
& 
 
Case :- CRIMINAL APPEAL No. - 4859 of 2018
 
Appellant :- Bangali Babu And Anr.
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Yogesh Kumar Srivastava,Dileep Kumar
 
Counsel for Respondent :- G.A.,Gaurav Kakkar
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajai Tyagi,J.

(Per Hon'ble Ajay Tyagi, J.)

1. Both these appeals have been preferred by the appellants against the judgment and order dated 7.8.2018, passed by learned Additional Sessions Judge, Fast Track Court No.1, Firozabad in Sessions Trial No. 7 of 2016 (State of Uttar Pradesh v. Bangali Babu and others) arising out of Case Crime No.142 of 2015, under Sections 452, 506, 302 read with Section 34 of Indian Penal Code, 1860 (in brevity 'IPC'), Police Station Pachokhara, District Firozabad, whereby, accused-appellants, Bangali Babu and Pinki alias Ramakant have been convicted and sentenced under Section 302 read with Section 34 of IPC for life imprisonment and fine of Rs.50,000/- each. They were further directed to undergo 1 year simple imprisonment in case of default of fine. Accused-appellant, Niranjan Singh, was convicted and sentenced under Section 302 of IPC for life imprisonment and fine of Rs. 50,000/-. He was further directed to undergo 1 year simple imprisonment in case of default of fine. All the accused-appellants namely, Bangali Babu, Niranjan Singh and Pinki alias Ramakant were further convicted and sentenced under Section 452 of IPC for rigorous imprisonment of 7 years and fine of Rs.5,000/- each. They were further directed to undergo 6 months simple imprisonment in case of default of fine. They were also convicted and sentenced under Section 506 (Part 2) of IPC for 7 years rigorous imprisonment and fine of Rs.5,000/- each and they were directed to further undergo 6 months simple imprisonment in case of default of fine. All the sentences were directed to run concurrently.

2. Brief facts giving rise to this appeal are that a written report (Ex.Ka.1) was submitted by the complainant, Bobby alias Nar Singh Pal at Police Station Pachokhara, Firozabad with the averments that in the night of 30.3.2015 at about 10.00 p.m., complainant's mother Tanushree and daughter, Kumari Shalini were sleeping in the house on separate cots. Light was on. On that time residents of same village, Bangali Babu, s/o Bachha Singh, Niranjan Singh s/o Bangali Babu and Pinki alias Ramakant, s/o Singh Pal Singh entered the house by opening the main gate with country made pistol in their hands. Just entering the house, Bangali Babu fired at the complainant with intention to kill him but he saved himself and climbed on the roof using staircase and screamed from there. Gunshot was fired at the mother of the complainant, Tanushree, with intention to kill her which hit in her stomach. On hearing the screaming of complainant and noise of fires, many people gathered on the spot who saved complainant and others. All the accused persons ran away after giving life threat to the complainant. The complainant took his injured mother, Tanushree, to the Police Station but his report was not lodged in Police Station and she was sent to District Hospital, Agra where she was medically examined and was referred to S.N. Medical College, Agra but looking to the serious condition of his mother, the complainant admitted her mother in Akash Hospital, Agra, where she was treated.

3. On this written report, First Information Report was registered at Police Station Pachokhara on 2.4.2015 under Sections 307, 452 & 504 of IPC. During treatment, Tanushree, the mother of the complainant, succumbed to the injuries after two months of the occurrence.

4. Investigation was taken up by S.I. Vijendra Kumar Singh. He visited the spot, prepared site plan and recorded statements of witnesses under Section 161, Cr.P.C. Medical examination of injured mother of the complainant was conducted and medical report was prepared. During course of investigation, dying declaration of Tanushree was recorded. After two months of the occurrence, Tanushree died due to septicemia which took place due to injury caused to her in the occurrence. After the death of the injured Tanushree, case was converted into Section 302 of IPC. Postmortem of the deceased was conducted after inquest report and postmortem report was prepared. After completing investigation, charge-sheet was submitted by Investigating Officer against the accused persons Bangali Baba, Niranjan Singh and Pinki alias Ramakant under Section 452, 506 & 302 IPC. The case being triable exclusively by the Court of Sessions was committed to the Court of Sessions by the competent Magistrate for trial.

5. Learned Trial Court framed charges against all the accused persons under Sections 452, 302 read with 34, and 506 of I.P.C. Accused persons denied the charges and claimed to be tried.

6. To bring home charges, prosecution produced following witnesses:

[email protected] Nar Singh Pal

PW1

Pushpa Devi

PW2

Shalini Yadav

PW3

Dr. Alok Kumar

PW4

Dr. Dharmveer Singh

PW5

Vijendra Kumar Singh

PW6

Krishna Pal Singh

PW7

Kamlesh Singh

PW8

7. In support of ocular testimony of the witnesses, prosecution filed following documentary evidence :

F.I.R.

Ex.Ka.9

Written Report

Ex.Ka.1

Statement of Tanushree

Ex.Ka.6

Panchayatnama

Ex. Ka.11

Postmortem Report

Ex.Ka.3

Site Plan

Ex.Ka.4

Charge-sheet

Ex.Ka.8

8. After completion of prosecution evidence, statements of accused persons were recorded under Section 313 of Cr.P.C., in which they had told that false evidence was led against them and they were implicated falsely due to enmity with the complainant. Six witnesses, namely, Mishri Lal, D.W.1, Hari Vilas, D.W.2, Vinod Kumar, D.W.3, Gopal Singh, D.W.4, Dharmendra Singh @ Dharmveer, D.W.5, and Pushpendra Singh, D.W.6,were examined in defence.

9. Heard Sri Rajarshi Gupta and Sri Yogesh Kumar Srivastava, learned Advocate for accused-appellants, Sri Gaurav Kakkar, learned counsel for the complainant and learned A.G.A. for the State.

10. Learned counsel for the appellants submitted that First Information Report of this case was lodged after the delay of three days which is not explained either in the F.I.R. itself or in the statement of complainant. Learned counsel submitted that delay of 3 days in lodging F.I.R in such type of case clearly shows that it was lodged after consultation to implicate the appellants falsely due to previous enmity between parties, hence, delay in lodging F.I.R. is fatal to the prosecution case.

11. Learned counsel for the appellants further submitted that perusal of written report (Ex. Ka.1) shows that it is dated as 2.4.2015 which means that it was written by the complainant on 2.4.2015 while the alleged occurrence took place on 30.3.2015.

12. Learned counsel for the appellants next submitted that medical evidence of this case does not match with the averments of F.I.R. and the evidence of so called eye-witnesses. In F.I.R. it is specifically stated that fire was made at the mother of the complainant with intention to kill her which hit in her stomach. Same statements were given by P.W.1, P.W.2, and P.W.3 but the medical examination of deceased-Tanushree which was conducted by Dr. Alok Kumar who was examined as P.W.4 speaks otherwise. He has described the injury of deceased-Tanushree as ''lacerated wound size 1 x 1 c.m. in the lower side of the stomach'. He has specifically stated that there is no blackening and tattooing around the wound and further in cross examination, he has stated that it is correct that at the time of medical examination he did not find any gunshot injury on the body of the injured-Tanushree.

13. Learned counsel for the appellants vehemently argued that the aforesaid statement of P.W.4, Dr. Alok Kumar, has shattered the prosecution case because no gunshot injury was found by the doctor on the body of injured-Tanushree while prosecution has brought specific case that a fire was made towards Tanushree with intention to kill her which hit in her stomach, hence, there are serious contradictions in ocular testimony and medical evidence which go to the root of the case and it is proved that entire story of prosecution is fabricated just to implicate accused persons falsely due to ongoing previous enmity between them.

14. Learned counsel for the appellant also submitted that six witnesses were examined by the accused persons in defence. Their statements also indicate that there was previous enmity between complainant and the accused persons but Trial Court did not consider this aspect. Learned counsel for the appellants further submitted that injured-Tanushree died after two months of the occurrence due to septicemia, hence, cause of death was not hitting the bullet if prosecution case is to be believed for a while. It is argued that Dr. Dharmveer Singh, P.W.5, was produced by prosecution who conducted the postmortem of the deceased who has stated in examination in chief that cause of death of the deceased was septicemia shock which was due to septicemia in entire body.

15. Learned counsel for the appellant also argued that injured-Tanushree was discharged from the hospital after 12 days of treatment. In cross-examination also Dr. Dharmveer Singh, P.W.5, has affirmed his opinion that deceased died due to septicemia.

16. After above arguments, learned counsel for the appellants has submitted that he is not inclined to argue further on merit of appeal but prayed for reduction of sentence for the reasons of aforesaid arguments.

17. Learned A.G.A. submitted that delay in lodging the F.I.R. is explained that his report was not lodged by the police just after the date of occurrence, hence, delay cannot be fatal to the prosecution case. It is further submitted by learned A.G.A. that there are eye witnesses in this case namely P.W.1, son of deceased, P.W.2, daughter-in-law of deceased, P.W.3, grand daughter of deceased. Since the incident is of 10 O'Clock in the night, the presence of all these three eye-witnesses was natural on the spot, hence their testimonies cannot be disbelieved on the ground that they are family members of the deceased.

18. Learned A.G.A. next submitted that deceased made dying declaration before her death in which she has named all the three accused persons and it was also stated by her that she sustained bullet injury in the occurrence. Learned A.G.A. stated that the bullet was recovered from the body of the deceased-Tanushree at the time of her medical examination and it was collected by the Investigating Officer from Akash Hospital, Agra where she was treated. Hence, it cannot be said that there was no gunshot injury on the body of deceased-Tanushree.

19. Learned Counsel for the appellants again reiterated that he was not arguing for clean acquittal of the appellants but sentence awarded to them must be reduced in view of the above arguments made by him. He has again reiterated that this case does not fall within the ambit of Section 302 of IPC and does not travel beyond the scope of Section 326 I.P.C. or Section 304 of I.P.C.

20. The finding of fact regarding the presence of witnesses at the place of occurrence cannot be faulted with. Death of deceased was a homicidal death. The fact that it was a homicidal death takes this Court to most vexed question whether it would fall within the four-corners of murder or culpable homicide not amounting to murder. Therefore, we are considering the question whether it would be a murder or culpable homicide not amounting to murder and punishable under Section 304 IPC.

21. In State of Uttar Pradesh vs. Mohd. Iqram and another, [(2011) 8 SCC 80], the Apex Court has made the following observations in paragraph 26, therein:

"26. Once the prosecution has brought home the evidence of the presence of the accused at the scene of the crime, then the onus stood shifted on the defence to have brought-forth suggestions as to what could have brought them to the spot in the dead of night. The accused were apprehended and, therefore, they were under an obligation to rebut this burden discharged by the prosecution and having failed to do so, the trial-court was justified in recording its findings on this issue. The High Court committed an error by concluding that the prosecution had failed to discharge its burden. Thus, the judgment proceeds on a surmise that renders it unsustainable."

22. Considering the evidence of the 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 I.P.C. 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."

23. 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 of I.P.Code. 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.

24. In the case in hand, deceased-Tanushree was first examined by Dr. Alok Kumar who was produced as P.W.4. He has mentioned following injury on the person of injured-Tanushree at the time of medical examination:

"Lacerated wound size 1 x 1 c.m. right side 5 c.m. below navel."

He has also mentioned in medical report (Ex.Ka.2) that no blackening or tattooing was present around the wound.

25. Learned counsel for the appellants has vehemently argued that there was no blackening or tattooing around the wound of the injured-Tanushree which shows that there was no gunshot injury but, we are not in agreement with learned counsel for the appellants regarding this argument because if fire is made from a distance of more than 6 ft., there is no possibility of blackening or tattooing as is the case of prosecution that fire was made towards Tanushree from distance. Although Dr. Alok Kumar, P.W. 4, has also suggested in his statement that there was no gunshot injury on the body of the deceased but it is possible that this statement was made by P.W.4, due to absence of blackening or tattooing around the wound. It cannot be ruled out that the deceased sustained bullet injury as bullet was collected by Investigating Officer from Akash Hospital, Agra where deceased-Tanushree was examined and treated further.

26. Hence, we reached to the conclusion that injured sustained bullet injury but at the very same time after perusing the evidence of P.W.1, P.W.2 & P.W.3, threadbare as well as considering averments made in First Information Report, it is transpired that assailants made fire towards complainant Bobby with intention to kill him but complainant saved himself by running towards roof from staircase and fire hit the mother of the complainant, Tanushree, due to which she sustained injury, hence, the meticulous analysis of entire evidence available on record permits us to form the opinion that appellants were having no intention at all to kill the mother of the complainant. Dying declaration of deceased-Tanushree also suggests that appellants came to kill the complainant and not his mother but she sustained bullet injury accidentally. Hence, in this occurrence, the intention to kill or to cause such bodily injury to the deceased-Tanushree is missing.

27. Hence, on considering the principle laid down by the Apex Court in the case of Tuka Ram and others v. State of Maharashtra (2011) 4 SCC 250 and in the case of B.N. Kavadakar and another v. State of Karnataka, 1994 Supp. (1) 304, we are of the considered opinion that offence would be punishable under Section 304 Part II of IPC from the angle that there was no intention of appellants to kill the deceased or to cause such bodily injury to the deceased which was inflicted to her.

28. Another angle in this case is that the death of the deceased took place after two months of the occurrence and the postmortem report (Ex.Ka.3) shows that cause of death was septicemia shock. Postmortem of deceased was conducted by Dr. Dharmveer Singh, P.W.5. He has stated in his statement that cause of death of the deceased was septicemia shock which was due to septicemia in entire body. This opinion was also affirmed by P.W.5 in his cross examination. Evidence in this regard shows that deceased-Tanushree survived for two months after the occurrence. Hence, we are of the opinion that the direct result of death of deceased is development of infection in whole body due to the injury sustained in the occurrence that caused septicemia.

29. In Bengai Mandal alias Begai Mandal vs. State of Bihar [(2010) 2 SCC 91], incident occurred on 14.7.1996, while the deceased died on 10.8.1996 due to septicemia caused by burn injuries. The accused was convicted and sentenced for life imprsonment under Section 302 IPC, which was confirmed in appeal by the High Court, but Hon'ble The Apex Court converted the case under Section 304 Part-II IPC on the ground that the death ensued after twenty-six days of the incident as a result of septicemia and not as a consequence of burn injuries and, accordingly, sentenced for seven years' rigorous imprisonment.

30. In Maniben vs. State of Gujarat [(2009) 8 SCC 796], the incident took place on 29.11.1984. The deceased died on 7.12.1984. Cause of death was the burn injuries. The deceased was admitted in the hospital with about 60 per cent burn injuries and during the course of treatment developed septicemia, which was the main cause of death of the deceased. Trial-court convicted the accused under Section 304 Part-II IPC and sentenced for five years' imprisonment, but in appeal, High Court convicted the appellant under Section 302 IPC. Hon'ble The Apex Court has held that during the aforesaid period of eight days, the injuries aggravated and worsened to the extent that it led to ripening of the injuries and the deceased died due to poisonous effect of the injuries. Accordingly, judgment and order convicting the accused under Section 304 Part-II IPC by the trial-court was maintained and the judgment of the High Court was set aside.

31. In Chirra Shivraj vs. State of Andhra Pradesh [(2010) 14 SCC 444], incident took place on 21.4.1999. Deceased died on 1.8.1999. As per the prosecution version, kerosene oil was poured upon the deceased, who succumbed to the injuries. Cause of death was septicemia. Accused was convicted under Section 304 Part-II IPC and sentenced for five years' simple imprisonment, which was confirmed by the High Court. Hon'ble The Apex Court dismissed the appeal holding that the deceased suffered from septicemia, which was caused due to burn-injuries and as a result thereof, she expired on 1.8.1999.

32. We can safely rely upon the decision of the Gujarat High court in Criminal Appeal No.83 of 2008 (Gautam Manubhai Makwana Vs. State of Gujarat) decided on 11.9.2013 wherein the Court held as under:

"12. In fact, in the case of Krishan vs. State of Haryana reported in (2013) 3 SCC 280, the Apex Court has held that it is not an absolute principle of law that a dying declaration cannot form the sole basis of conviction of an accused. Where the dying declaration is true and correct, the attendant circumstances show it to be reliable and it has been recorded in accordance with law, the deceased made the dying declaration of her own accord and upon due certification by the doctor with regard to the state of mind and body, then it may not be necessary for the court to look for corroboration. In such cases, the dying declaration alone can form the basis for the conviction of the accused. But where the dying declaration itself is attended by suspicious circumstances, has not been recorded in accordance with law and settled procedures and practices, then, it may be necessary for the court to look for corroboration of the same.

13. However, the complaint given by the deceased and the dying declaration recorded by the Executive Magistrate and the history before the doctor is consistent and seems to be trustworthy. The same is also duly corroborated with the evidence of witnesses and the medical reports as well as panchnama and it is clear that the deceased died a homicidal death due to the act of the appellants in pouring kerosene and setting him ablaze. We do find that the dying declaration is trust worthy.

14. However, we have also not lost sight of the fact that the deceased had died after a month of treatment. From the medical reports, it is clear that the deceased suffered from Septicemia which happened due to extensive burns.

15. In the case of the B.N. Kavatakar and another (supra), the Apex Court in a similar case of septicemia where the deceased therein had died in the hospital after five days of the occurrence of the incident in question, converted the conviction under section 302 to under section 326 and modified the sentence accordingly.

15.1 Similarly, in the case of Maniben (supra), the Apex Court has observed as under:

"18. The deceased was admitted in the hospital with about 60% burn injuries and during the course of treatment developed septicemia, which was the main cause of death of the deceased. It is, therefore, established that during the aforesaid period of 8 days the injuries aggravated and worsened to the extent that it led to ripening of the injuries and the deceased died due to poisonous effect of the injuries.

19. It is established from the dying declaration of the deceased that she was living separately from her mother-in-law, the appellant herein, for many years and that on the day in question she had a quarrel with the appellant at her house. It is also clear from the evidence on record that immediately after the quarrel she along with her daughter came to fetch water and when she was returning, the appellant came and threw a burning tonsil on the clothes of the deceased. Since the deceased was wearing a terylene cloth at that relevant point of time, it aggravated the fire which caused the burn injuries.

20. There is also evidence on record to prove and establish that the action of the appellant to throw the burning tonsil was preceded by a quarrel between the deceased and the appellant. From the aforesaid evidence on record it cannot be said that the appellant had the intention that such action on her part would cause the death or such bodily injury to the deceased, which was sufficient in the ordinary course of nature to cause the death of the deceased. Therefore, in our considered opinion, the case cannot be said to be covered under clause (4) of Section 300 of IPC. We are, however, of the considered opinion that the case of the appellant is covered under Section 304 Part II of IPC."

16. In the present case, we have come to the irresistible conclusion that the role of the appellants is clear from the dying declaration and other records. However, the point which has also weighed with this court are that the deceased had survived for around 30 days in the hospital and that his condition worsened after around 5 days and ultimately died of septicemia. In fact he had sustained about 35% burns. In that view of the matter, we are of the opinion that the conviction of the appellants under section 302 of Indian Penal Code is required to be converted to that under section 304(I) of Indian Penal Code and in view of the same appeal is partly allowed."

33. On overall scrutiny of the facts and circumstances of this case coupled with medical evidence and the opinion of medical officers and considering the principle laid down by the Courts in above referred case laws, we are of the considered opinion that in the case in hand, from the angle of septicemia also, offence would be punishable under Section 304 Part II of IPC.

34. From the upshot of the aforesaid discussion, it appears that the death of the deceased was not premeditated. Appellants had no intention to cause death of the deceased and she died due to septicemia in whole of her body which was not the direct result of the injury sustained in the accident. The instant case falls within the purview of culpable homicide not amounting to murder. Hence, entire evidence on the record and position of law in this regard permit us to convert the conviction and sentence of all the accused-appellants from the offence punishable under Section 302 of IPC into offence punishable under Section 304 Part II of IPC.

35. The conviction and sentence of accused-appellants under Section 302 read with Section 34 of IPC is converted into offence punishable under Section 304 Part II read with Section 34 of IPC and, therefore, we convict and sentence the accused-appellants for 10 years rigorous imprisonment and Rs.10,000/- fine each. They shall further undergo 1 year simple imprisonment in case of default of fine. Conviction and sentence of all accused-appellants for rest of the offences shall remain intact. All the sentences shall run concurrently.

36. In this way, appeal is liable to be partly allowed. Accordingly, the appeal is partly allowed as modified above. Record and proceedings be sent back to the Trial Court forthwith.

		(Ajai Tyagi, J.)	         (Dr. Kaushal Jayendra Thaker, J.)
 
Order Date :- 16.12.2021
 
DKS