Ashwani Sharma And Another vs State Of U.P.
2023 Latest Caselaw 23733 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:173768-DB
 
A.F.R.
 
Court No. - 44
 

 
Case :- CRIMINAL APPEAL No. - 5776 of 2017
 

 
Appellant :- Ashwani Sharma And Another
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Vikas Sharma,Anil Kumar Dubey,Anurag Pathak,Bed Prakash Rai,Chandra Bhan Dubey,Garun Pal Singh,Harshit Pathak
 
Counsel for Respondent :- G.A.,Pradeep Kumar Rai,Saurabh Trivedi
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Umesh Chandra Sharma,J.

(Per Umesh Chandra Sharma,J)

1. Heard Sri Bed Prakash Rai, learned counsel for the appellants and learned A.G.A. for the State.

2. This appeal challenges the judgment and order dated 28.8.2017 passed by Additional Sessions Judge, Court No.11, Meerut, in Sessions Trial No. 979 of 2014 (State vs. Monu and Another) convicting accused-appellants under Section 302 read with Section 34 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and sentenced the accused-appellants to undergo imprisonment for life with fine of Rs.10,000/- and in case of default of payment of fine, further to undergo imprisonment for a period of one year and under Section 504 IPC to undergo imprisonment for one year each.

3. In brief, facts of the case are that informant Jitendra Kumar on 14.4.2014 at 23:46 moved Tehrir, Ex. Ka-1, alleging therein that his brother Indresh Kumar, deceased, lived at Ganga Nagar along with his family. On 14.4.2014 in the morning his niece Shiwangi was teased by three boys namely Nishu, Rahul and Monu @ Mayank sons of Ashwani Sharma. The mother of the boys was apprised about the aforesaid incident. At about 8:00-8:30 P.M. when his brother alongwith his wife was coming from his Parichitgarh clinic and when they reached in front of Jagdamba Health Club in O block Ganga Nagar Meerut, the aforesaid three boys along with their father surrounded his brother and started beating him. On hue and cry, Neetu Sharma @ Jitendra son of Ramesh Chandra Sharma also reached there, he and his brother's wife told that Monu @ Mayank and Rahul had caught hold of Indresh and Nishu Sharma and their father Ashwani Sharma with intention to kill, gave multiple blows from baseball.

4. On the aforesaid Tehrir an F.I.R., Ex. Ka-4, Case Crime No. 221 of 2014 under Section 302 I.P.C. was lodged at Police Station Inchauli, District Meerut against the accused Monu @ Mayank, Ashwani Sharma, Nishu and Rahul.

5. On investigation being put into motion, the investigating officer recorded the statements of all the witnesses and submitted the charge-sheet to the learned Magistrate. The learned Magistrate on finding the offences to be triable by Court of Sessions, committed the case to the Court of Sessions. However, the accused Nishu Sharma and Rahul Sharma were minor hence their case was not committed.

6. On 9.3.2016 the charges under Section 302/34 and 504 I.P.C. were framed against the accused. The accused-persons pleaded not guilty and wanted to be tried. The Trial started and the prosecution examined 8 witnesses who are as follows:

Jitendra Kumar-

PW1

Neelam Sharma

PW2

Neetu Sharma

PW3

Constable Pramod Kumar

PW4

Dr. Vinay Bhargav

PW5

S.I. Hans Ras Bhadoriya

PW6

S.I. Mukesh Kumar

PW7

Inspector Pramod Kumar Singh

PW8

7. In support of ocular version following documents were filed:

F.I.R.

Ex.Ka.1

Inquest

Ex.Ka.2

Chik F.I.R.

Ex. Ka.3

Corbon copy report no. 45 dated 14.4.2014

Ex.Ka.4

Post-mortem report

Ex.Ka.5-6

Site Plan

Ex.Ka.7

Arrest Memo of the accused and recovery memo of baseball

Ex.Ka.8

Site Plan of recovery

Ex.Ka.9

Letter of S.I.

Ex.Ka.10

Letter to C.M.O.

Ex.Ka.11

Ex.Ka. 12

Ex.Ka. 13

Sealed

Ex.Ka. 14

Charge-sheet

Ex.Ka. 15

F.S.L. Report

Ex.Ka.16

8. At the end of the trial and after recording the statement of the accused under section 313 Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the appellants as mentioned aforesaid.

9. In brief the relevant evidence of the prosecution witnesses are as follows:

(a) P.W.-1, informant, Jitendra Kumar, has deposed that the deceased was his younger brother who used to live at Ganga Nagar along with his family. On 14.4.2014, in the morning his niece Shiwangi was teased by three boys namely Nishu, Rahul and Monu @ Mayank sons of Ashwani Sharma. The mother of the boys was apprised about the incident. The deceased also informed the informant about the aforesaid incident. At about 8:00-8:30 P.M. when his brother alongwith his wife was coming from his Parichitgarh clinic and when they reached in front of Jagdamba Health Club in O block Ganga Nagar Meerut, the aforesaid three boys along with their father surrounded his brother and started beating him. On hue and cry, Neetu Sharma @ Jitendra son of Ramesh Chandra Sharma also reached there, he and his brother's wife told that Monu @ Mayank and Rahul had caught hold of Indresh and Nishu Sharma and their father Ashwani Sharma with intention to kill, gave multiple blows from baseball due to which he becoming unconscious fell down. On hue and cry Neetu Sharma @ Jitendra and other people reached there and the assailants ran away. Indresh was rushed to Surya Nurshing Home by these people where during the treatment Indresh died. Thereafter a complaint scribed by his younger brother Sanjeev was produced by this witness in the police station Inchauli at 11:45 P.M. on which police reached there and conducted inquest, prepared inquest report Ex. Ka-2 which has been proved by this witness. This witness admits that he is not an eyewitness of the incident.

(b) P.W.-2, Smt. Neelam Sharma, who was present on the spot, has deposed in support of prosecution version and has deposed that the accused persons were already present on the spot and when they reached there, the accused persons surrounded them, Rahul and Monu @ Mayank caught hold of her husband, accused Ashwani Sharma and Neeshu Sharma assaulted him by baseball due to which he fell down unconscious. On commotion Neetu Sharma @ Jitendra and other people reached there. During the course of deposition this witness identified the accused persons. She also deposed that at the time of incident there was street light and bulb of the nearby houses. This witness has given intact evidence even in cross-examination.

(c) P.W.-3, Neetu Sharma, an independent witness, has deposed in support of prosecution version that at about 8:30 P.M. on 14.4.2014, he was buying goods in the Ganga Market, he heard commotion coming from the side of Jagdamba Health Club and reached there and saw that 3-4 persons were assaulting Indresh, two persons had caught hold of him and two other were hitting him from baseball and a woman who claimed herself to be wife of the victim, was crying nearby. At the time of deposition this witness recognized two accused persons in the Court. He further deposed that when he and other persons reached on the spot, accused persons ran away. The deceased was lying in unconscious state. He and other persons transported the deceased to Surya Nurshing Home and had admitted there. The deceased had communicated the reason behind the incident was teasing of his daughter by the sons of Aswani Sharma when she used to go to school.

(d) P.W.-4, Constable Pramod Kumar, has proved chik F.I.R., Ex. Ka-3 and Kayami G.D. E.x Ka-4.

(e) P.W.-5, Dr. Vinay Bhargav, has conducted the autopsy of the dead body of the deceased at 1:40 P.M. on 15.4.2014 and found following injuries on the person of the deceased:

External Injury:

(i) There were swelling on the left side of the head in an area of 10 cm X 8 cm.

(ii) There was an injury on the forehead of the skull in an area of 6 cm X 2 cm.

(iii) Swelling on the right temporal region in an area of 12 cm X 8 cm, blood was oozing from right ear. There was also swelling in the lower part of the neck in an area of 10 cm X 8 cm.

In the internal examination, this witness found that the meninges were reddish and there was bleeding. The interior and the temporal regions of the brain were also reddish. The cause of the death was head injury caused on 14.4.2014 at 9-10 P.M. The witness has deposed that the clothes of the deceased were sealed. This witness has proved the post-mortem report as Ex. Ka-5 & Ex. Ka-6.

During the cross-examination, on being asked by counsel for the defence, this witness has deposed that it it difficult to say that the injury occurred due to falling on the road after coliding of head of the deceased from a strong object. He further deposed that it is also difficult to say that the injuries are accidental or inflicted by someone.

(f) P.W.-6, S.I. Hansraj Singh Bhadauriya, I.O. being in-charrge of S.O. of Police Station- Inchauli, has deposed that he had copied the chik F.I.R., written complaint, statement of the informant and after inspecting the place of occurrence on the pointing of the informant, had prepared site plan, Ex. Ka-7, he had arrested accused Neetu and Ashwani from Kaseru Baxar Chauraha and on the pointing of accused Neeshu, recovered baseball used in commission of crime and has prepared recovery memo Ex. Ka-8 and site plan of the recovery, Ex. Ka-9. He had also copied post mortem report and after obtaining N.B.W. against absconding accused Rahul and Monu, had initiated the proceeding under Section 82 & 83 Cr.P.C. Lastly they had surrendered on 24.4.2014 thereafter he had recorded their statements.

(g) P.W.7, S.I. Mukesh Kumar, has conducted inquest, Ex.Ka-2, and related paper viz report R.I., report C.M.O., Challan Lash, Photo Lash, Ex. Ka-10 to Ka-13 and has proved them. He deposed that he had sent the dead body for post-mortem.

(h) P.W.-8, Inspector Pramod Kumar Singh, has deposed that after transfer of first I.O., he had received the investigation and had copied the inquest and post-mortem report in C.D. and had recorded the statement of S.I. Mukesh Kumar, constable Rajendra Kumar and constable Manoj Kumar and witness of the inquest Jitendra Kumar along with statement of Smt. Neelam. After finding sufficient evidence, he had submitted charge-sheet, Ex. Ka-15.

10. All the formal witnesses have proved the documentary evidence prepared by them during their deposition.

11. The learned counsel for the accused-appellants has relied on the judgment of Nirmala Devi Vs. State of Himanchal Pradesh, 2023 INSC 662, wherein the Apex Court has held in para 13 & 14 as follows:

"13. It is to be noted that the weapon used in the crime is a stick which was lying in the house, and which, by no means, can be called a deadly weapon. Therefore, the possibility of the appellant causing the death of the deceased while being deprived of the power of self-control, due to the provocation on account of the deceased not agreeing to pay Rs.500/- to PW-1, cannot be ruled out.

14. We further find that it will also be necessary to take into consideration the background in which the offence took place. There used to be persistent quarrels between the deceased and the appellant. In one of such incidents, the leg of the appellant was fractured by the deceased, and a case was already pending against him for the said offence."

12. On the basis of above pronouncement the learned counsel for the appellants argued that in this case, the crime is said to be caused by baseball stick which can not be said to be a deadly weapon. It can not be said that it is sufficient to commit an offence of murder as defined under Section 302 I.P.C. He further argued that if there was any Mens Rea of killing the deceased, the accused would have taken and used any other deadly weapon like fire-arm, pierce, gadasa etc.

13. From the perusal of evidence of the witnesses, it has been established that there is no undue or unreasonable delay in lodging the F.I.R. The accused were identified by P.W.-2, wife of the deceased who was present on the spot. P.W.3 Neetu Sharma, has also remained intact in support of prosecution and has also recognized two accused who were present in the Court at the time of his deposition. The trivial personal motive behind the commission of crime has also been established. It can not be disputed that forehead of a person is not the vital part and if anyone with intention to kill a person gives only one blow with all his force, the person may die.

14 In this case the deceased has died during the course of treatment. A trivial dispute between the parties took an adverse turn which resulted into death of a guardian of the family.

15. Now the question arises as to whether it is a case of murder as defined under Section 300 I.P.C. and punishable under Section 302 I.P.C. or it is a culpable homicide not amounting to murder as defined under Section 299 IPC and punishable under Section 304 IPC.

16. We are convinced that it was homicidal death but, it would be seen whether it is homicidal death punishable under Section 302 or Section 304 Part I or Part II of IPC?

17. 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."

18. 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.

19. In latest decision in Khokan@ Khokhan Vishwas v. State of Chattisgarh, 2021 LawSuit (SC) 80, where the facts were similar to this case, the Apex Court has allowed the appeal of the accused appellant and altered the sentence. The decision of the Apex Court in the case of Anversinh v. State of Gujarat, (2021) 3 SCC 12 which was related to kidnapping from legal guardian, wherein it was established that the Court while respecting the concerns of both society and victim, propounded that the twin principle of deterrence and correction would be served by reducing the period of incarceration already undergone by the accused. In our case, this is not that gruesome matter where the accused cannot be dealt with in light of all these judgments. Decisions in Pravat Chandra Mohanty v. State of Odisha, (2021) 3 SCC 529 & Pardeshiram v. State of M.P., (2021) 3 SCC 238 will also enure for the benefit of the accused.

20. On overall scrutiny of the facts and circumstances of the present case coupled with the opinion of the Medical Officer and considering the principle laid down by the Apex Court in the Case of Tukaram and Ors Vs. State of Maharashtra, reported in (2011) 4 SCC 250 and in the case of B.N. Kavatakar and Another Vs. State of Karnataka, reported in 1994 SUPP (1) SCC 304, we are of the considered opinion that it was a case of homicidal death not amounting to murder.

21. From the upshot of the aforesaid discussions, it appears that the death caused by the accused was not premeditated, accused though had knowledge and intention that his act would cause bodily harm to the deceased but did not want to do away with the deceased. Hence the instant case falls under the Exceptions 1 and 4 to Section 300 of IPC. While considering Section 299 as reproduced herein above offence committed will fall under Section 304 Part-I as per the observations of the Apex Court in Veeran and others Vs. State of M.P. Decided, (2011) 5 SCR 300 which have to be also kept in mind.

22. We come to the definite conclusion that the death was not premeditated. The precedents discussed by us would permit us to uphold our finding which we conclusively hold that the offence is not punishable under Section 302 of I.P.C. but is culpable homicide not amounting to murder, punishable U/s 304 (Part I) of I.P.C.

23. This takes us to the alternative submission of learned counsel for the appellant that the quantum of sentence is too harsh and requires to be modified. In this regard, we have to analyse the theory of punishment prevailing in India.

24. 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."

25. '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.

26. 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.

27. 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.

28. 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. We may also record that while going through the factual scenario the appellant cannot be said to have a motive or intention to do away with the deceased who was his relative. The motive is not spelt out from any of the evidence.

29. Therefore, on totality of the facts and circumstance and the oral testimony of the eye-witnesses coupled with the medical evidence permit us to convert the conviction of the accused-appellant from Section 302 I.P.C. to Section 304 Part-I I.P.C. The fact that the accused-appellants were incarcerated in jail for more than 11 years and six years respectively, the sentence is reduced to the period already undergone. Fine of Rs. 10000/- to be deposited within four weeks of release from incarceration. If fine is not deposited within four weeks they shall be lodged in jail to undergo default sentences of three months.

30. In view of the above, this criminal appeal is partly allowed. Record and proceedings be sent back to the Court below forthwith.

 
Order Date :- 29.8.2023
 
S.Verma/Vinod
 

 

 

 
	     (Umesh Chandra Sharma,J.)    (Dr. Kaushal Jayendra Thaker,J.)