Tota Ram vs State Of U.P.
2023 Latest Caselaw 6009 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
Reserved on 21.2.2023
 
Delivered on 24.2.2023
 
Court No. 14
 
Case :- CRIMINAL APPEAL No. - 693 of 1998
 

 
Appellant :- Tota Ram
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Kr.S.Prakesh,Mukesh Singh,Neeta Singh Chandel,Santosh Srivastava
 
Counsel for Respondent :  - Government    Advocate
 
Hon'ble Suresh Kumar Gupta,J. 

1. Heard Mr. Santosh Srivastava, learned Amicus Curiae appearing for the appellant, Mr. S.P.Tiwari, learned A.G.A. for the State as well as perused the record.

2. The present appeal has been preferred against the judgment and order dated 15.12.1998 passed by the VIth Additional Sessions Judge, Lucknow in S.T. No. 269 of 1995 arising out of crime no. 277-A/1994 under Sections 304, 323, 504 I.P.C. whereby the appellant was convicted and sentenced the appellant under Section 304 I.P.C. to undergo 7 years rigorous imprisonment and for under Section 323 I.P.C. convicting and sentencing for six months' rigorous imprisonment and both the sentences shall run concurrently.

3. The brief facts of the present case emerges as such F.I.R. of the alleged incident has been lodged on 5.8.1994 by first informant- Smt. Chunni W/o Istyaq, Police Station- Hasanganj, District- Lucknow with the allegation that on 5.8.1994 she had kept her vegetables on the platform in front of the house of Asharfi Lal Yadav. A day before the complainant/ first informant- Smt. Chunni had purchased curd of Rs. 2/- and had gone to her home. On the day of occurrence i.e. on 5.8.1994 the first informant- Smt. Chunni had gone to her home after closing her shop. On that date at about 2:00 p.m. Guddu, who is dewar of the first informant/complainant- Smt. Chunni and one another person Shiv Prasad Jamadar had drunk wine and came near Joshi Tola crossing where Chunni sells vegetables. The first informant/complainant- Chunni thought that there may be some quarrel of his Dewar with somebody in intoxication. Therefore, Chunni went to call him along with her son Imtiyaz. In the crossing accused/appellant- Tota Ram Joshi met her and began to abuse and said why she had taken his curd in the last night. Saying this accused/appellant- Tota Ram began to beat Chunni and caught hold of her hair and began to dragged her. Shiv Prasad and brother-in-law (Dewar) -Guddu @ Mustaq came to help of Chunni then accused/appellant- Tota Ram left her and began to beat Guddu with legs, fists and sticks. Iqbal Ahmad @ Jagga, who is other dewar of first informant/complainant- Chunni came on the spot and save him. Thereafter, accused/appellant- Tota Ram left that place and went his house. Guddu fell down on the platform of Asharfi Yadav. Chunni tried to lift him but Guddu did not get up from the platform. Chunni thought that Guddu is under intoxication and when intoxication decline, Guddu would come to his home. When Guddu did not return to his house upto 5:00 p.m. then Chunni again went to call Guddu and saw that his condition was serious. In order to save Guddu, Chunni took him to Balrampur Hospital where medical officer declared death of the Guddu.

4. The first informant/complainant- Chunni lodged F.I.R. Ext-Ka-1, which was written by Chandra Prakash Verma and gave it in the police station. On the basis of this report Ext-Ka-1, chik report- Ext-Ka-5 was prepared in the police station and the matter was incorporated in G.D. Entries of G.D. are Ext-Ka-6.Thus, the F.I.R. against the appellant was lodged under Section 304, 323 and 504 I.P.C. Investigation of this case was entrusted to the Investigating Officer. During investigation, the Investigating Officer went on the spot and he took the dead-body of Guddu in his possession and prepared Inquest report as Ext-Ka-2. Investigating Officer further prepared letter Ext-Ka-13 to the C.M.O. for conducting the postmortem of the body of the deceased. Investigating Officer also prepared Challan of the dead body as Ext-Ka-12 of the deceased- Guddu and also prepared Khaka of the dead body as Ext-Ka-11. Dead body of the deceased- Guddu was sealed. Specimen seal is Ext-Ka-10. Investigating Officer also prepared inquest report of the deceased- Guddu. This inquest report is Ext-Ka-2. Dead body of the deceased was sent for postmortem. This postmortem report of the deceased- Guddu is Ext-Ka-4.

5. Investigating Officer also prepared site plan of the place of the occurrence. The site plan is Ext-Ka-8. Smt. Chunni got injuries on her body at the time of occurrence and she was sent to Balrampur Hospital, Lucknow for medical examination where her injuries were examined by the Emergency Medical Officer, Balrampur Hospital, Lucknow. Injury report of Smt. Chunni is Ext-Ka-3. Investigating Officer took the statement of the witnesses and after completing investigation, Investigating Officer submitted charge sheet against the accused/appellant- Tota Ram as Ext-Ka-9 under Sections 304, 323, 504 I.P.C.

6. The charge sheet was filed before the VIIIth Additional Chief Judicial Magistrate, Lucknow, who committed the case for trial before the court of Sessions. The charges against appellant were framed on 7.8.1995 by the Additional Sessions Judge. The charges were read over to the appellant in Hindi. The appellant denied the charges levelled against him and claimed to be tried.

7. During the course of the investigation following witnesses were examined by the prosecution, which are read as under:-

(i) P.W.-1- Chunni, who is the first informant and injured and she fully supported the version of the prosecution. P.W-1 proved the written report as Ext. Ka-1.

(ii) P.W.-2-Iqbal Ahmad @ Jagga, who is the eye witness account of the alleged incident, has fully supported the version of the prosecution. He also proved the inquest report as Ext. Ka-2.

(iii) P.W.-3-Imtiyaz, who is the eye witness account of the alleged incident, has fully supported the version of the prosecution.

(iv) P.W.-4-Dr. Rakesh Kumar Khattar, who examined the injury of Chunni, complainant/first informant and found following injury on her body.:-

1. Contusion 3 cm.x 3 c.m on left side face 1 cm. below & away eye.

2. Abraded contusion 2 cm.X 1 cm. on posterior aspect of right elbow.

3. Complain of pain of the injured in right knee and back.

According to the opinion of the Medical Officer injuries on the body of the injured Chunni were caused by hard and blunt object. Nature of injuries was simple. and duration is stated to be fresh. Medical Officer Dr. Rakesh Kumar Khattar P.W.4 proved the injury report of the injured Chunni as Ext.Ka-3.

(v) P.W.-5- Dr.Y.P. Tewari, was posted as Medical Officer in Balrampur Hospital, Lucknow on 6.8.1994. He did the post-mortem on the body of the deceased Guddu and found ante-mortem injuries on his body as follows :-

1. Multiple abraded contusion in an area of 8.5 cm.X 6 cm. present on forehead bothside 1 cm. above root of nose with black left eye.

2. Contusion 4.5 cm.x 2 cm. on Lt. occipital region 11.5 cm. above left ear.

3. Multiple abraded contusion 6 cm. x 3.5 cm. Present on back of left elbow joint.

4. Abraded contusion 3 cm. x 2 cm. on back of right elbow.

5. Multiple abraded contusion in area 8.5 cm. X 4.5 cm on front of right knee & upper part of right leg.

6. Abraded contusion 2.5 cm. X 1.5 cm. on front of left knee joint.

7. Multiple abraded contusion 31.5 cm. x 6 cm. on right side back below & adjacent to interior angle right scapula.

8. Abraded contusion 1 cm. x 0.5 cm. on anterior surface of right ankle joint on opening enymosis present underneath the all injuries.

Fluid blood present on the body of the deceased found by the Medical officer. Rigor mortis passed off from upper limbs and present on lower limbs. Post-mortem staining present on back. Both the eyes were closed. Mouth was also closed, fluid blood present coming from nostril and present on face, also coming from mouth. Liver and gallbladder half full. Bladder empty. Digested food and gases were present in small intestine. Fecal matter and gases were also present in another intestine. Gall bladder was congested, spleen and kidneys were also found congested. Cause of death of the deceased was shock and haemorrhage due to ante-mortem injuries. Dr.Y.P.Tewari, P.W.5 has proved the post-mortem report of the deceased Ext.Ka-4

(vi) P.W.-6- Brijraj Singh was posed as Head Moharrir in P.S.- Hasanganj on 5.8.1994. He prepared the chik report as Ext-Ka-5 in his hand writing and also incorporated the matter in G.D. and proved the entries of G.D. Ext-Ka-6. This witness also proved Chitti Majroobi as Ext-Ka-7 prepared by him in his hand-writing.

(vii) P.W.-7- S.I.-Ram Prasad Bharati, who was posted as S.S.I. on 5.8.1994 in P.S.-Hasanganj, Luknow, has recorded the statement of the Chunni and Imtiyaz. He also prepared site plan of the occurrence and proved Ext-Ka-8. He also filed charge against the appellant-Tota Ram and proved the charge-sheet as Ext-Ka-9.

(viii) P.W.-8, S.I. Sri pal Singh, who prepared the inquest report of the deceased- Guddu. He prepared papers inquest report as Ext-Ka-2, Specimen seal as Ext-Ka-10, photo of the dead body (lash) form as Ext-Ka-11, challan of the dead body (lash) as Ext-Ka-12 and also prepared letter to C.M.O. as Ext-Ka-13 for conducting postmortem of the deceased.

Thus, the prosecution in order to prove his case produced P.W.1 to P.W.8 as oral evidence and relied upon Ext. Ka.1 to Ext.Ka-13 as a documentary evidence.

8. After recording the testimony of the witnesses, the statements of the accused/appellant recorded under Section 313 Cr.P.C. by the trial court explaining the entire evidence and other incriminating circumstances against the appellant. In the statement recorded under Section 313 Cr.P.C. , the appellant denied the entire prosecution story in toto he has stated that the appellant has been falsely implicated by the first informant due to personal vengeance.

9. In his defence, one witness D.W.-1 Lallan was examined by the appellant. He stated on oath that Chunni and Shiv Prasad drunk the wine and was having a good friendship. On the date of occurrence Guddu, Chunni and Shiv Prasad were quarreling with each other at about 2:00 p.m. and at that time all of them had drunken wine. Due to this quarrel, the deceased- Guddu fell down. Immediately, Chunni and Shiv Prasad ran away from the spot but Guddu remain lying on the platform of Asharafi. He further submitted that at the time of incident the appellant was not present on the spot. After sometime when Chunni reached the spot then she found that Guddu died.

10. After hearing learned counsel for both the parties and appreciating the oral and documentary evidence available on record, the learned trial court convicted the accused/appellant as aforesaid. Being aggrieved with the order dated 15.12.1998, the present appeal has been filed by the appellant.

11. Learned counsel for the appellant submitted that only interested witnesses have supported the prosecution version but the independent witness, who has been examined before the trial court, have not supported the prosecution version. He further submitted that prosecution has failed to prove the motive of murder of the deceased-Guddu. He further submitted that there is material contradiction in the statement of prosecution witnesses. Learned trial court without appreciating the evidence available on record has wrongly convicted the appellant.

12. Learned counsel for the appellant submitted that due to sudden quarrel the appellant had beaten the deceased- Guddu with kick, fists and the stick. He further submitted that in fact the injury was caused to the injured/deceased- Guddu due to fell down on the paved road and due to this injury the deceased- Guddu ultimately died due to loss of blood. He further submitted that due to previous enmity, the appellant has been falsely implicated in the present case. Learned counsel for the appellant submitted that if the prosecution case is admitted as such then due to sudden fight, injury was inflicted to the deceased- Guddu and due to ante mortem injury ultimately Guddu died thus, the offence against the appellant does not trave beyond the offence of culpable homicide not amounting to murder as defined under Section 300 Exception-4. The provisions of Section 300 Exception- 4 is read as under :-

" Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the head of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner."

13. Lastly, Learned counsel for the appellant submitted that if the prosecution case is admitted in toto, then offence is made out under Section 304 sub clause II I.P.C. and the case of the appellant is covered under Section 300 Exception-4 is made out against the appellant. under Section 304 sub clause II punishment may extend up to 10 years or fine or for both. He further submitted that during investigation and during trial, the total period of incarceration of the appellant is for about 5 months. He further submitted that in pursuance of the non bailable warrant issued by this Court he was sent to jail on 3.10.2022 and presently, the appellant is in jail. Thus, during filing of the appeal after conviction the appellant was in jail for 5 months and 17 days. Thus, the total period of incarceration of the appellant is more than 10 months. He also submitted that the matter is pertained to the year, 1994 and 29 years has already passed, therefore, no useful purpose would be served to send the appellant again in jail. Learned counsel for the appellant submitted that the trial court convicted the appellant for seven years rigorous imprisonment under Section 304 I.P.C. Now, total period of incarceration of appellant is more than 10 months, therefore, he claimed leniency. He also submitted that presently both the parties are well rooted in society and they have amicably settled their old enmity. The appellant has no previous criminal history. Therefore, he prays for probation.

14. Learned A.G.A. vehemently opposed and submitted before the Court that the prosecution is fully able to prove the charges against the appellant. Therefore, learned trial court after appreciating the evidence available on record rightly convicted the appellant.

15. By means of oral as well as documentary evidence, the prosecution has fully established his case, so, in my considered opinion, no inference is warranted against the conviction of the appellant under Section 304 Part 2 I.P.C. Coming to the sentence to be imposed on the appellant, since the incident occurred near about 29 years ago and during intervening period the appellant has not indulged into any criminal activity nor he had any criminal background. So in view of the above, considering the entire facts and circumstances of the case and on the perusal of the record, it appears that injury was caused to the appellant due to marpit during sudden quarrel. Therefore, I am of the view that the prosecution has fully proved the case against the appellant and now the question arises whether the conviction U/s 304 IPC for sentence period of 7 years is sustainable or not. Since the deceased died due to ante mortem injury on account of sudden quarrel but there was no premeditation or meeting of mind of the appellant to commit murder of the deceased. As per prosecution version, I am of the view that the the appellant case comes within the purview of exception 4 of Section 300 IPC. Thus, I find that the appellant is guilty of offence of culpable homicide not amounting to murder punishable U/s 304 (II) of IPC.

16. The Hon'ble Apex Court in the case of State of Karnataka vs. Muddappa [(1999) 5 SCC 732] had considered the question as to whether the benefit of Probation of Offenders Act could be extended to an offence under Section 304 Part-II of the IPC and concluded that there is no statutory bar for application of Probation of Offenders Act to an offence under Section 304 Part II, where the maximum punishment is neither death nor imprisonment for life. The same view has been taken by the Hon'ble Supreme Court in the case of Mohd. Monir Alam vs. State of Bihar [(2010) 12 SCC 26], wherein their Lordships had given the benefit of Section 4 of Probation of Offenders Act to the appellant and directed the trial court to release the appellant under Section 4 of Probation of Offenders Act.

17. Since learned counsel for the appellant restricted his arguments to grant benefit of probation, therefore, in these circumstances, It would be appropriate to quote Section 360 Cr.P.C., 361 Cr.PC. reads as follows:-

Section 360 Cr.P.C. reads as follows:

"360. Order to release on probation of good conduct or after admonition :-

(1) When any person not under twenty one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty-one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, Character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the Court may direct, and in the meantime to keep the peace and be of good behaviour:

Provided that, where any first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class, forwarding the accused to, or taking bail for his appearance before such Magistrate, who shall dispose of the case in the manner provided by sub-section (2).

(2) Where proceedings are submitted to a Magistrate of the first class as provided by sub-section (1), such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken.

(3) In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code (45 of 1860), punishable with not more than two years, imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the Court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition.

(4) An order under this section may be made by any Appellate Court or by the High Court or Court of Session when exercising its powers of revision.

(5) When an order has been made under this section in respect of any offender, the High Court or Court of Session may, on appeal when there is a right of appeal to such Court, or when exercising its powers of revision, set aside such order, and in lieu, thereof pass sentence on such offender according to law: Provided that the High Court or Court of Session shall not under this subsection inflict a greater punishment than might have been inflicted by the Court by which the offender was convicted.

(6) The provisions of Sections 121, 124 and 373 shall, so far as may be, apply in the case of sureties offered in pursuance of the provisions of this section.

(7) The Court before directing the release of an offender under sub-section (1), shall be satisfied that an offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which the Court acts or in which the offender is likely to live during the period named for the observance of the conditions.

(8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognisance, it may issue a warrant for his apprehension.

(9) An offender, when apprehended on any such warrant shall be brought forthwith before the Court issuing warrant, and such Court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned on his appearing for sentence and Court may, after hearing the case, pass sentence.

(10) Nothing in this section shall affect the provisions of the Probation of Offenders Act, 1958 (20 of 1951), the Children Act, 1960 (60 of 1960) or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders."

Section 361 Cr.P.C. reads as under:-

361. Special reasons to be recorded in certain cases. Where in any case the Court could have dealt with,-

(a) an accused person under section 360 or under the provisions of the Probation of Offenders Act, 1958 (20 of 1958 ), or

(b) a youthful offender under the Children Act, 1960 (60 of 1960 ), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders, but has not done so, it shall record in its judgment the special reasons for not having done so.

Section 3, 4 and 5 of the Probation of First Offenders Act reads as under:-

Section 3- Power of court to release certain offenders after admonition.

When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code or any other law, and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence, and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4, release him after due admonition.

Explanation.--For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or section 4.

Section 4 Power of court to release certain offenders on probation of good conduct.

(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour:

Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.

(2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.

(3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the offender.

(4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.

(5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned.

18. Therefore, on the basis of above discussions and considering the entire facts and circumstances of the case, the appellant deserves for probation. Thus the appeal is partly allowed. The conviction as directed by trial court is confirmed and on the point of sentence it is directed to be released the appellant on probation and under section 4 of the U.P. of the Probation of Offenders Act with stipulated condition that he will keep peace and good conduct for one year subject to furnishing personal bond of Rs.20,000/- and two sureties of the like amount before the court concerned.

19. Thus, the appeal is dismissed on the point of conviction and partly allowed on the point of sentence.

20. Since the appellant is in jail, so office is directed to communicate this order to the trial court concerned as well to the District Jail, Lucknow for necessary compliance. The trial court record be sent back.

21. As due to poor condition of the appellant was not in a position to engage a counsel during the period of trial and during pendency of the present appeal, therefore, this Court appointed Mr. Santosh Srivastava, Advocate as Amicus Curiae for arguing on behalf of the appellant, therefore, office is directed to take immediate steps for payment of Rs. 10,000/- from the appropriate head as per law to Sri Mr. Santosh Srivastava, Advocate, Amicus Curiae for his legal help rendering on behalf of the appellant.

Order Date :- 24.2.2023

Anuj Singh