Allahabad High Court
Surendra Kumar vs State Of U.P. on 22 December, 2022
Bench: Kaushal Jayendra Thaker, Ajai Tyagi
HIGH COURT OF JUDICATURE AT ALLAHABAD
[A.F.R.]
Court No. - 44
Case :- CRIMINAL APPEAL No. - 4666 of 2014
Appellant :- Surendra Kumar
Respondent :- State of U.P.
Counsel for Appellant :- S.P. Sharma,Ajay Kumar Pandey,Gaurav Kakkar,Kartikeya Saran
Counsel for Respondent :- Govt.Advocate,Km. Rachna Tiwari
Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Ajai Tyagi,J.
(Per: Hon'ble Ajai Tyagi, J.)
1. This appeal has been preferred against the judgement and order dated 27.11.2014 Sessions Judge, Hamirpur in Session Trial No.9 of 2009 (State Vs. Surendra Kumar) arising out of Case Crime No.02 of 2008 under Section 302, 323 IPC, Police Station- Chikasi, District- Hamirpur, whereby the accused-appellant was convicted under Section 302 IPC and sentenced to imprisonment for life with fine of Rs.20,000/- and in case of default of payment of fine, to undergo further imprisonment for two year and under Section 323 and sentenced to one year with fine of Rs.1,000/- and in case of default of payment of fine, to undergo further imprisonment of three months.
2. The brief facts as cull out from the record are that a first information report was lodged by informant Sanjay Kumar at Police Station- Chikasi, District- Hameerpur on 02.01.2008. At about 7:15 pm, the informant was going to his quarter after having the tea at the gate of police station. At that time constable Surendra Kumar of the same police station- Chikasi came with the rifle in his hand and started abusing him. When he was stopped from abusing then he beat the informant with the butt of the refile. He ran inside the police station and fell down. His mother Maya Dubey came there and asked who has beaten him. At that very moment constable Surendra Kumar cake there and fired at the mother of the informant with his government rifle, which hit in the leg of his mother.
3. I.O. tookup the investigation, visited the spot, prepared site plan and mother of the informant was taken to the Government Hospital, Rath and got admitted there. Her dying declaration was recorded by Naib-Tehshildar on the same day. I.O. recorded the statements of witnesses u/s 161 and 164 Cr.P.C. Recovery memo of refile and live as well as empty cartridges were prepared. During the course of treatment the injured mother of the informant passed and the case was converted into Section 302 of IPC. Post mortem of the deceased was conducted and post mortem report was prepared by the doctor after inquest proceedings. After completion of investigation, charge sheet was submitted by I.O. against the appellant Surendra Kumar u/s 307/302, 323 and 409 IPC and under Section 29 Police Act.
4. The case being exclusively triable by court of sessions was committed to the sessions court.
5. The learned trial court framed charges against the appellant u/s 302 and 323 of IPC. The accused denied the charge and claimed to be tried. The prosecution so as to bring home the charge, examined five witnesses, who are as under:-
Sanjay Kumar Dwivedi
P.W.1
2.
Archana Dwivedi
P.W.2
3.
Deen Dayal
P.W.3
4.
Km. Parul
P.W. 4
5.
Dr. Arvind Kumar Jain
P.W. 5
6.
Umesh Kumar
P.W.6
7.
Asharam Verma
P.W.7
8.
Vivek Singh
P.W.8
9.
Salikram
P.W.9
10.
Dr. R.K. Verma
P.W.10
6. In support of the ocular version of the witnesses, following documents were produced and contents were proved by leading evidence:
1.
F.I.R.
Ext. Ka2
2.
Written report
Ext. Ka1
3.
Dying declaration
Ext.Ka16
4.
Recovery memo of rifle, live cartridges & empty cartridge
Ext. Ka5
5.
Recovery memo of blood stained and plain earth
Ext. Ka7
6.
Injury report
Ext.Ka17
7.
P.M. report
Ext. Ka4
8.
Report of Forensic Science Laboratory
Ext.Ka18
9.
Report of Forensic Science Laboratory
Ext.Ka19
10.
Report of Forensic Science Laboratory
Ext.Ka20
11.
Panchayatnama
Ext.Ka10
12.
Charge sheet
Ext. Ka8
13.
Site plan with Index
Ext. Ka6
14.
Site plan with Index
Ext. Ka9
7. After completion of prosecution evidence, the accused was examined under Section 313 Cr.P.C. The accused examined one witness in his defence.
8. Learned trial court after hearing both the sides convicted the accused appellant u/s 302, 323 IPC and sentenced accordingly. Hence this appeal.
9. Heard Shri Satish Trivedi, learned Senior Advocate, assisted by Shri Sheshadri Trivedi, learned counsel for the appellant and Shri Patanjali Mishra assisted by Shri N.K. Srivastava, learned AGA as well as perused the record.
10. Learned counsel for the appellant submitted that there is major contradictions in this matter, which goes to the root of this case because in first information report, the informant himself alleges that the bullet hit the leg of his mother while the post mortem report shows that the bullet was inserted in the stomach of the injured/deceased. The evidence of doctor PW5, who conducted the post mortem, also goes to show that injury No.1 is entry wound of gun shot in the stomach and injury No.2 is exit wound of the same entry wound. Hence, informant is not the eye witness. It is next submitted that there was no enmity between the appellant and the deceased.
11. After some length of arguments, learned counsel for the appellant submitted that he is not asking for clean acquittal but there is important aspect in this case that this is not the case of murder because there was no intention of appellant to do away with the deceased. The act was not premeditated nor there was any enmity between the deceased and the appellant. Moreover, in her dying-declaration also, the deceased has stated that fire was triggered all of sudden. Hence, if the prosecution case is admitted as true even then it does not travel beyond the scope of Section 304 of IPC. Learned counsel relied on the judgements of this Court in Criminal Appeal No.890 of 2002 (Javed Vs. State of U.P.) delivered on 02.08.2022 and Criminal Appeal No.4718 of 2018 (Niranjan Singh Vs. State of U.P.) delivered on 16.12.2021.
12. 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.
13. 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."
14. 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."
15. 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 if 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.
16. In the case in hand, there was quarrel between the informant and the appellant at the gate of police station. Appellant and informant both are constable posted at the same police station. When the informant was beaten up by the appellant, the deceased, who was mother of the informant, came in between. Then the fire was triggered by the appellant, which hit the body of the deceased, there was dying declaration on record, in which the deceased has stated that fire was triggered all of sudden. There was no enmity or quarrel between the appellant and the deceased. Hence, it can be safely opined that the appellant did not want to do away with the deceased. Clearly the matter hinges on two aspect. One is dying declaration of the deceased by which it is not transpired that there was intention of appellant to murder the deceased as discussed above. The second aspect is that there was some quarrel with the son of the deceased earlier at the gate of the police station, where informant and appellant were posted. It is evident that the occurrence had taken place on the spur of the moment. Hence, the judgements relied by the appellant in Criminal Appeal No.4781 of 2018 and Criminal Appeal No.890 of 2002 (supra) apply in full force to the facts of this case. It is submitted by Shri Mishra, learned AGA that the accused is in jail since 27.01.2017.
17. On overall scrutiny of the facts and circumstances of this case coupled with dying declaration and other evidence on record, we are of the considered opinion that offence would be punishable under Section 304 (Part I) because it appears that the death of the deceased was not premeditated and it is a case of single gun shot. This case falls within the purview of culpable homicide not amounting to murder.
18. As far as the quantum of punishment is concerned, the period of sentence should be in conformity with the gravity of the offence.
19. In Mohd. Giasuddin Vs. State of AP, [AIR 1977 SC 1926], explaining rehabilitary & reformative aspects in sentencing it has been observed by the Supreme Court:
"Crime is a pathological aberration. The criminal can ordinarily be redeemed and the state has to rehabilitate rather than avenge. The sub-culture that leads to ante-social behaviour has to be countered not by undue cruelty but by reculturization. Therefore, the focus of interest in penology in the individual and the goal is salvaging him for the society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today vies sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of a social defence. Hence a therapeutic, rather than an 'in terrorem' outlook should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries."
20. 'Proper Sentence' was explained in Deo Narain Mandal Vs. State of UP [(2004) 7 SCC 257] by observing that Sentence should not be either excessively harsh or ridiculously low. While determining the quantum of sentence, the court should bear in mind the 'principle of proportionality'. Sentence should be based on facts of a given case. Gravity of offence, manner of commission of crime, age and sex of accused should be taken into account. Discretion of Court in awarding sentence cannot be exercised arbitrarily or whimsically.
21. In Ravada Sasikala vs. State of A.P. AIR 2017 SC 1166, the Supreme Court referred the judgments in Jameel vs State of UP [(2010) 12 SCC 532], Guru Basavraj vs State of Karnatak, [(2012) 8 SCC 734], Sumer Singh vs Surajbhan Singh, [(2014) 7 SCC 323], State of Punjab vs Bawa Singh, [(2015) 3 SCC 441], and Raj Bala vs State of Haryana, [(2016) 1 SCC 463] and has reiterated that, in operating the sentencing system, law should adopt corrective machinery or deterrence based on factual matrix. Facts and given circumstances in each case, nature of crime, manner in which it was planned and committed, motive for commission of crime, conduct of accused, nature of weapons used and all other attending circumstances are relevant facts which would enter into area of consideration. Further, undue sympathy in sentencing would do more harm to justice dispensations and would undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to nature of offence and manner of its commission. The supreme court further said that courts must not only keep in view the right of victim of crime but also society at large. While considering imposition of appropriate punishment, the impact of crime on the society as a whole and rule of law needs to be balanced. The judicial trend in the country has been towards striking a balance between reform and punishment. The protection of society and stamping out criminal proclivity must be the object of law which can be achieved by imposing appropriate sentence on criminals and wrongdoers. Law, as a tool to maintain order and peace, should effectively meet challenges confronting the society, as society could not long endure and develop under serious threats of crime and disharmony. It is therefore, necessary to avoid undue leniency in imposition of sentence. Thus, the criminal justice jurisprudence adopted in the country is not retributive but reformative and corrective. At the same time, undue harshness should also be avoided keeping in view the reformative approach underlying in our criminal justice system.
22. Keeping in view the facts and circumstances of the case and also keeping in view criminal jurisprudence in our country which is reformative and corrective and not retributive, this Court considers that no accused person is incapable of being reformed and therefore, all measures should be applied to give them an opportunity of reformation in order to bring them in the social stream.
23. Since the learned counsel for the appellant has not pressed the appeal on its merit, however, after perusal of entire evidence on record and judgment of the trial court, we consider that the appeal is devoid of merit and is liable to be dismissed. Hence, the conviction of the appellant is upheld.
24. As discussed above, 'reformative theory of punishment' is to be adopted and for that reason, it is necessary to impose punishment keeping in view the 'doctrine of proportionality'. It appears from perusal of impugned judgment that sentence awarded by learned trial court for life term is very harsh keeping in view the entirety of facts and circumstances of the case and gravity of offence. Hon'ble Apex Court, as discussed above, has held that undue harshness should be avoided taking into account the reformative approach underlying in criminal justice system.
25. As the accused has already served the sentence of 10 years and 7 months with remission as per jail report and also he would have lost his job because he was a police constable, we deem it proper to award the punishment of sentence already undergone by the appellant.
26. The conviction of appellant u/s 302 IPC is converted into Section 304 (Part I) IPC and appellant is sentenced for the period already undergone by him with the fine of Rs.5,000/-. The appellant shall undergo three months simple imprisonment in case of default of fine. Conviction and sentence for the offence u/s 323 of IPC has already been undergone by the appellant. Fine for the offence u/s 323 IPC and default sentence in the same shall remain intact.
27. Accordingly, the appeal is partly allowed with the modification of the sentence, as above.
28. Record and proceedings be sent back to the court below for compliance.
(Ajai Tyagi, J.) (Dr.Kaushal Jayendra Thaker, J.)
Order Date: 22.12.2022
Ashutosh Pandey
