Chhabey Lal vs State
2021 Latest Caselaw 1049 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 49
 

 
Case :- JAIL APPEAL No. - 7185 of 2008
 

 
Appellant :- Chhabey Lal
 
Respondent :- State
 
Counsel for Appellant :- From Jail,Krishna Kumar Mishra,Satyendra Mishra
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Gautam Chowdhary,J.

1. We have taken the aid of learned AGA appearing for the State and perused the urgency application filed by Shri Krishna Kumar Mishra, learned counsel for the appellant.

2. This appeal has been preferred against the Judgement and order dated 02.08.2008 passed by learned Additional Sessions Judge, Court No.1, Allahabad, in Sessions Trial No.52 of 2007 arising out of Case Crime No.200 of 2006 under Section 302 I.P.C., Police Station-Colonelganj, District-Allahabad, whereby the accused was convicted under Section 302 I.P.C.

3. The prosecution story as per the F.I.R. is that informant Santosh Kumar Singh had lodged the first information report on 30.06.2006 stating that on 29.06.2006 at about 04:00 p.m., his father Late Nagendra Bahadur Singh (deceased) was sitting in his shop at Kamla Nagar Crossing. At that time, the accused Chabbey Lal came and demanded some money from his father and when his father refused to pay the amount, he started rebuking him and with the intention to kill the deceased, the accused stabbed in the back causing grievous injuries to his father, which was witnessed by many persons. Subsequently, with the aid of people, the deceased was admitted in SRN Hospital, Prayagraj for treatment, where he died. The case was registered under Section 302 IPC and after investigation, the charge-sheet was submitted. The Chief Judicial Magistrate, Allahabad, committed the case to the sessions vide order dated 25.01.2007.

4. On 07.02.2007, charge was framed against the accused-appellant under Section 302 IPC. The accused-appellant denied the charge and preferred to be tried.

5. The informant gave written report regarding incident at the police station whereupon Chik First Information Report was lodged on 30.06.2006 at 04:20 a.m. as aforementioned Case Crime No.200 of 2006. Incident was investigated by Sri Sail Kumar Singh (PW8). Panchayatnama of the deceased was done by Sri V.P Upadhyay (PW6) on 30.06.2006 from 04:20 a.m. to 08:00 a.m. Post mortem of the deceased was conducted by Dr. P.K. Srivastava at T.B. Saproo Hospital, Prayagraj. In the opinion of the doctor, the deceased had died in SRN Hospital on 30.06.2006 at 02:45 a.m. On external examination, stabbed would 5 x 0.5 c.m. Cavity deep on right side back of chest 11 c.m. Inferior angle of scapula and one abrasion 5 x 0.5 c.m. On left lumber region 10.00 c.m from mid line was found. On internal examination, one metallic piece of knife 19.5 c.m. Long pointed on one end and 3.5 c.m. Broad at another would was recovered from liver area, in the chest cavity. The injury could have been caused on 29.06.2006 at about 4:00 p.m.

6. The prosecution so as to bring home the charges examined eight witnesses, who are as under:-

Santosh Kumar Singh

P.W.1

2.

Vinod Kumar Singh

P.W.2

3.

Raj Narayan Yadav

P.W.3

4.

Constable Nankoo Ram

P.W. 4

5.

Dr.P.K.Sirvastava

P.W. 5

6.

S.I. V.P.Upadhyay

P.W. 6

7.

Dr.R.P.Mishra

P.W.7

8.

S.I.Shail Kumar Singh

P.W.8

7. In support of the ocular version of the witnesses, following documents were produced and contents were proved by leading evidence:-

Written report

Ext. Ka-1

2.

FIR

Ext. Ka-2

3.

Post Mortem Report

Ext. Ka-4

4.

Site Plan with Index

Ext. Ka-5

5.

Panchayatnama

Ext. Ka-6

6.

Recovery Memo of Blood Stained Clothes

Ext. Ka-12

7.

Injury Report

Ext. Ka-13

8.

Charge sheet (Mool)

Ext. Ka-14

8. Learned counsel for the appellant has heavily relied on the Judgement of this Court rendered in Criminal Appeal No. 1839 of 2004, Veersen Vs. State of U.P., decided on 20.9.2017 and submitted that Incident goes to show that the accused did the act in heat of moment and there was no premeditation.

9. Considering the evidence of the witnesses recorded before the court below and also considering the medical evidence including post mortem report, there is no doubt left in our mind about the guilt of the present appellant. 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.

10. The academic distinction between ''murder' and ''culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if hurts 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.

11. It is clear that no blood was found from the place of occurrence and whether it was the accuse and accused alone who was author of the crime and whether his intention was to done to death was also to be examined though the same has not been examined. P.W. 2 is a witness who was not present at the place of occurrence. The weapon also is according to the counsel planted.

12. In view of the facts and submissions and also the Judgment rendered in Veersen (supra), appeal is partly allowed while maintaining the conviction. We are of the view that ends of justice would be met in case the sentence of life imprisonment under Section 302 I.P.C. is altered under Section 304 IP Code to ten years. However, the fine imposed by the trial court is maintained.

13. Period of incarceration awarded under Sections 452, 506 I.P.C. is over as all the sentences were to run simultaneously as per direction of the trial court. Thus, if period of ten years' incarceration is over and accused-appellant is not required in any other case, he be released from jail forthwith.

14. Lower court record be sent to the court below forthwith.

15. Let a copy of this Judgment be sent to the Jail Authorities concerned and District Magistrate for compliance.

Order Date :- 19.01.2021

LNTripathi