Allahabad High Court
Gulab Yadav vs State Of U.P. on 11 November, 2021
Bench: Kaushal Jayendra Thaker, Ajai Tyagi
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 50
Case :- JAIL APPEAL No. - 4583 of 2012
Appellant :- Gulab Yadav
Respondent :- State of U.P.
Counsel for Appellant :- From Jail,Devendra Mohan Singh,Rajrshi Gupta(A.C.)
Counsel for Respondent :- A.G.A.
Hon'ble Dr. Kaushal Jayendra Thaker, J.
Hon'ble Ajai Tyagi, J.
(Oral judgment by Hon'ble Ajai Tyagi, J.)
1. This appeal has been preferred by the appellant- Gulab Yadav against the judgment and order dated 22.08.2012, passed by Sessions Judge, Mahoba, in Session Trial No.67 of 2011 (State vs. Gulab Yadav) arising out of Case Crime No.200 of 2011 under Section 302, 506 IPC, Police Station-Panwadi, District- Mahoba, whereby the appellant-accused was convicted and sentenced for life imprisonment and fine of Rs.20,000/- under Section 302 IPC. He was directed to undergo further imprisonment for two years, in case of default of fine. The appellant was further convicted and sentenced for two years R.I. under Section 506 IPC. All sentences were directed to run concurrently.
2. The facts giving rise to this appeal are that First Information Report was lodged by complainant Ram Babu at Police Station- Panwadi, District- Mahoba stating that on 26.02.2011 at about 12:00 noon Gulab Yadav, resident of that village, came and started demanding Rs.200/- for labour charges from the wife of complainant Ram devi. She told that she was going to her house for lunch and would pay rupees after that. As soon as she started walking towards her house, Gulab Yadav hit the wife of the complainant at her neck with the axe in his hand. She sustained injury due to which after some time she died. Accused fled away from the spot by intimidating the persons present at the spot.
3. On the basis of above written report, a Case Crime No.200 of 2011 was registered at Police Station- Panwadi, District- Mahoba, under Section 302 and 506 IPC. S.O. Vishnu Pal Singh took up the investigation and recorded statements of witnesses under Section 161 Cr.P.C. I.O. prepared site-plan on the pointing out of the Kumari Shilu, daughter of the complainant. He also prepared site-plan and collected plain and blood stained earth from the place of the occurrence and the dead body was sent for post mortem. During the course of investigation, the Axe used for commission of crime was recovered on the pointing out of the appellant. After completing the investigation, charge sheet was submitted against the appellant under Section 304 and 506 IPC. The case being exclusively triable by court of session was committed to the court of competent Magistrate for trial.
4. Charges were framed by learned trial court against the accused under Sections 302 and 506 IPC. Charges were read over to the accused, who denied the charges and claimed to be tried.
5. To bring home the charges, following witnesses were examined by the prosecution:
Ram Babu
PW1
2.
Shilu
PW2
3.
Harendra
PW3
4.
Dr. Anurag Purwar
PW4
5.
Rampal
PW5
6.
Gangacharan
PW6
7.
Vishnupal Singh
PW7
8.
Udit Narain Singh
PW8
6. Apart from oral evidence, following documentary evidence were produced by prosecution and proved by leading the evidence:
1.
F.I.R.
Ex. Ka3
2.
Written report
Ex. Ka1
3.
Recovery-memo of blood-stained and plain-earth
Ex. Ka5
4.
Recovery-memo of blood stained Axe
Ex. Ka7
5.
P.M. Report
Ex. Ka2
6.
Report of Vidhi Vigyan Prayogshala
Ex. Ka10
7.
Report of Vidhi Vigyan Prayogshala
Ex. Ka11
8.
Panchayatnama
Ex. Ka12
9.
Charge-sheet Mool
Ex. Ka9
7. Statement of accused was recorded under Section 313 Cr.P.C., in which he said that false evidence is produced against him. Accused produced two witnesses in his defence.
8. We have heard Shri Rajrshi Gupta, learned Amicus Curiae appearing for the appellant, learned AGA for the State and perused the record.
9. Learned counsel for the appellant submitted that appellant has been falsely implicated in this case. He is innocent. It is further submitted by learned counsel for the appellant that learned trial court has not rightly appreciated the evidence on record. The witnesses of fact produced by the prosecution are related and interested witnesses, whose testimonies cannot be relied on. No independent witnesses was produced.
10. It is next submitted by the learned counsel for the appellant that if Court reaches to the conclusion that appellant has committed the offence, then in that case also the offence does not travel beyond the scope of Section 304 IPC because as per prosecution case, a single blow of axe was inflicted by the appellant. He did not try to repeat the blows. It clearly shows that accused had no intention to kill the deceased. Hence, no case under Section 302 IPC is made out. Learned trial court has wrongly convicted the appellant for the offence under Section 302 IPC.
11. Per contra, learned AGA submitted that appellant hit the deceased on her neck with the deadly cutting instrument like Axe. The neck is vital and sensitive part of the human body. Hence, the learned trial court has rightly appreciated the evidence and convicted and sentenced the appellant for the offence under Section 302 IPC.
12. Perusal of record shows that in this case, the prosecution has produced three witnesses of fact, namely, PW1- Ram Babu, PW2- Kumari Shilu and PW3- Harendra. All the three witnesses supported the prosecution case and there are no such contradictions in the statements of the eye-witnesses, which could go to the root of the case but it is admitted case of the prosecution that a single blow was inflicted by the appellant on the neck of the deceased, due to which she sustained fatal injury. Post mortem report also shows that there is single injury on the neck of the deceased. No other injury was found on the person of the deceased.
13. 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 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 IPC 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 reads 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."
14. 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 Sections 299 and 300 IPC. 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.
15. In the case in hand, the postmortem of deceased was conducted. Postmortem report Ex.Ka-2 is on record, which shows that following antemortem injuries were found on the body of the deceased:
(a) an incised wound of size 10 cm x 4 cm over right side of the neck. It is along with the line of right side of jaw.
There was no other injury except the above said injury.
16. On overall scrutiny of the facts and circumstances of the case coupled with the opinion of the medical officer and considering the principle laid down by the Hon'ble Apex Court in the case of Tuka Ram and others vs. State of Maharashtra [(2011) 4 SCC 250] and in the case of BN Kavadakar and another vs. State of Karnataka [1994 Supp (1) 304], we are of the considered opinion that the offence would be punishable under Section 304 (Part-I) IPC.
17. From the upshot of the aforesaid discussion, it appears that the death caused by the accused was not intended and the injuries were though sufficient in the ordinary course of nature to have caused death, the accused had no intention to cause death, therefore, the instant case false under the Exceptions 1 and 4 to Section 300 IPC.
18. In the light of the foregoing discussions, the appeal is liable to be allowed in part. Appellant is held guilty for commission of the offence under Section 304 (Part-I) IPC instead of offence under Section 302 IPC along with other offence punishable under Section 506 IPC.
19. Hence, the conviction and sentence awarded to the appellant for the offence under Section 302 IPC is converted into the offence under Section 304 (Part-I) IPC and appellant is sentenced under Section 304 (Part-I) IPC for 10 years rigorous imprisonment and fine of Rs.5,000/-, which shall be paid as compensation to the complainant-husband of the deceased. The appellant shall undergo further simple imprisonment for one year in case of default of fine. Sentence awarded under Section 506 IPC shall remain intact. All the Sentences shall run concurrently as directed by learned trial court.
20. Accordingly, the appeal is partly allowed, as modified above.
(Ajai Tyagi, J.) (Dr. Kaushal Jayendra Thaker, J.)
Order Date :- 11.11.2021
Ashutosh Pandey
