Ganga Ram vs State Of U.P.
2023 Latest Caselaw 16089 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Neutral Citation No. - 2023:AHC:111544-DB
 
Reserved on 01.05.2023
 
Delivered on 22.05.2023
 
A.F.R.
 
Court No. - 44
 

 
Case :- CRIMINAL APPEAL No. - 3 of 1991
 

 
Appellant :- Ganga Ram
 
Respondent :- State of U.P.
 
Counsel for Appellant :- R.B. Sahai,Radheshyam Yadav,Radheshyam Yadav (A.C),Sudhir Bharti
 
Counsel for Respondent :- D.G.A,A.G.A.
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Shiv Shanker Prasad,J.

(Per Dr. Kaushal Jayendra Thaker,J.)

1. Present criminal appeal challenges judgment and order dated 17.04.1979 passed by the VIth Additional Sessions Judge, Fatehpur, in Sessions Trial No.287 of 1978, whereby the learned VIth Additional Sessions Judge, Fatehpur has convicted the accused-appellant, Ganga Ram for commission of offence under Section 302 of Indian Penal Code, 1860 (for short 'IPC') and sentenced him to life imprisonment.

2. Heard Sri Radheshyam Yadav, learned counsel for the accused-appellant and learned A.G.A. for the State.

3. Brief facts of the case are that the deceased, Bhanna @ Manna Yadav was the resident of village Budhramau, Police Station Asothar, District Fatehpur. The accused Ganga Ram is the son of elder brother of the deceased and their houses are adjacent to each other. On 7.4.1978, there was a quarrel between the deceased and the accused because the goat of the accused had entered in the field of the deceased and grazed the crop. On 08.04.1978, in the evening , deceased Bhanna was milking the buffaloes at the door of his House. His daughter, Km. Meena, the complainant/informant (P.W.-1) was also standing in front of the hutment of Islam and was talking to Sheo Bhajan (P.W.-3). Bhulli (P.W.-2), the nephew of the deceased was also sitting at the door of the deceased. All of sudden, the accused armed with a Pharsa came from his house and started attacking the deceased. On receiving the first blow, the deceased fell down on the ground and was further attacked by the accused. When he was almost dead, the accused left and ran away towards south of the village. Bhanna immediately died and his dead body was placed on a cot inside the Chaupal.

4. The F.I.R. was lodged at Police Station Asothar at about 11.00 P.M. on the same day against the accused on the oral report of the informant/P.W.-1, which was scribed by Ram Sajivan Upadhya (P.W.-7) and the investigation was carried out. On investigation being put into motion, Sri Sadanand Roy, the Investigation Officer recorded the statements of Km. Meena (P.W.-1), complainant/informant and other witnesses Bhulli (P.W.-2), who had accompanied the complainant/informant. The Investigating Officer arrived at the place of occurrence on the same night and started further investigation on 9.4.1978 at 6:00 A.M. The inquest report (Exh. Ka-2) was prepared and the dead body was sealed and sent for postmortem. The blood stained and plain earth (Exh. 4 and 5) were also collected and sealed and recovery memo (fard) (Exh. Ka-8) was prepared. At that very time, an information was received that the accused Ganga Ram was hiding in a Matth towards south of the village. The Investigating Officer accompanied with Kedar Prasad @ Lakkar and Tej Narain went there and arrested the accused. On the pointing out of the accused the Pharsa with which he had committed the murder, was recovered of which recovery memo was prepared and marked as Exhibit-Ka/9. The statement of the witnesses were recorded. The accused alongwith the Pharsa was brought to the police station and the F.I.R. (Exh. Ka-11) under Section 25 of the Arms Act was lodged.

5. On 28.05.1978, the statement of other eye-witness Sheo Bhajan (P.W.-2) was recorded under Section 161 Cr.P.C.

6. The Investigation was completed and the charge-sheet (Exh. Ka.-12) came to be submitted against the accused-appellant.

7. After submission of the charge-sheet the concerned Magistrate took cognizance and on 18.12.1978, the case was committed to the court of Sessions as the offence alleged to have been committed were triable by the Sessions Court. On 16.03.1978 the learned Sessions Judge has framed the charges against the accused under Section 302 I.P.C.

The accused pleaded not guilty to the charge and demanded trial.

8. The trial started and the prosecution has examined seven witnesses, who are as follows:-

Km. Meena, the complainant, daughter of deceased.

PW1

Bhulli (eye witness of the incident)

PW2

Sheo Bhajan (eye witness of the incident)

PW3

Kedar Prasad (witness of the arrest of the accused)

PW

Sadanand Roy (Investigating Officer)

PW5

Dr. M.M.S.A. Khan, who has conducted the post mortem and prepared the post mortem report.

PW6

Ram Sajiwan Upadhya, who has recorded the F.I.R. and also registered the case under Section 302 I.P.C.

PW7

9. In support of ocular version following documents were filed and proved:

First Information Report dated 08.04.1978

Ex.Ka.-1

Recovery memo of blood stained and plain earth dated 09.04.1978

Ex.Ka.-8

Recovery memo of 'Farsa' dated 09.04.1978

Ex. Ka.-9

Panchayatnama dated 09.04.1978

Ex.Ka.-2

Site plan with index dated 09.04.1978

Ex.Ka.-7

Site plan with index dated 09.04.1978

Ex. Ka.-10

Post Mortem Report dated 10.04.1978

Ex. Ka.-13

Report of Chemical Examiner & Serologist

Ex.Ka.-17

Affidavit of Maqsood Arif, dated 03.04.1979

Ex. Ka-19

Affidavit of Shiv Ratan Lal, dated 03.04.1979

Ex. Ka-21

Affidavit of Shyam Lal Yadav, dated 04.04.1979

Ex. Ka-18

Affidavit of Ram Ashcharya Pandey, dated 04.04.1979

Ex. Ka-20

10. The accused in his statement recorded under Section 313 Cr.P.C. has denied to have committed the alleged offence. He has stated that he had gone to his sister's place on the previous evening and when he returned to his house, he found the dead body of the deceased. At that time, the Investigating Officer was also present, who brought him to the police station and falsely implicated him at the instance of the Pradhan of the village.

11. The trial court on the basis of evidence so led by the prosecution has found the guilt of the accused-appellant to have been proved beyond reasonable doubt after recording its finding that the injuries received by the deceased were caused by the accused-appellant and has convicted the accused-appellant and sentenced him to undergo life imprisonment for the offence punishable under Section 302 I.P.C. In fact Ganga Ram was an under trial prisoner during the period of trial and that is how he was incarcerated for 15 years and some months.

His counsel did not appear before the court and that is why the Court issued non-bailable warrant against him and since 27.01.2020 he has been languishing in jail.

12. The incident occurred in the year 1978.

13. The submission of the counsel that the informant is the daughter of the deceased and they were inimical to the accused. The evidence of P.W.-5 also would go to show that the appellant has been roped in the offence. In the statement recorded under Section 313 Crc.P.C., the accused-appellant has stated that he has not committed any offence. The informant/P.W.-1 is the daughter of deceased and she has named the accused Ganga Ram to be the assailant and author of the crime when as a matter of fact the deceased was looking after him and was nurturing him. The statements of the accused-appellant under Section 313 Cr.P.C. have totally been ignored by the trial court while returning the impugned judgment of conviction. Accused-appellant, Ganga Ram, is now again in jail since 27.01.2020 after he was granted bail by this Court pursuant to his conviction, he was arrested as none appeared for him.

14. It is further submitted that prosecution has not established any motive for the accused to commit the murder of the deceased and it creates a reasonable doubt about the version of the prosecution.

15. It is further submitted that conviction under Section 302 IPC is not made out as no overt act as per Section 300 I.P.C. is made out. In alternative, it is submitted that at the most, the death event is homicidal death it would not amount to murder and would be punishable under Section 304 II or Section 304 I of I.P.C. If the Court decides that the accused is guilty under Section 302 of IPC, then the accused may be granted fixed term punishment of incarceration as it is not a gruesome act on the part of the accused.

16. Learned counsel for the State has submitted that there is no reason for false implication of the accused and the complainant had no motive to falsely implicate the accused. There is reliable oral testimony supported by the recovery of the weapon of assault at the instance of the accused, thus the argument that absence of motive creates a doubt about the version of the prosecution, has no legs to stand. Evidence of other prosecution witnesses will not permit this Court to show any leniency in the matter. It is further submitted by learned A.G.A. that the ingredients of Section 300 of IPC are rightly held to be made out by the learned Sessions Judge who has applied the law to the facts in case.

17. The post-mortem of the dead body of deceased Bhanna @ Manna Yadav was conducted by Dr. M.M.S.A. Khan, Medical Officer, District Hospital, Fatehpur on 10.04.1978 at about 2:15 P.M. The postmortem report Exh. Ka-13 was prepared and the following ante-mortem injuries were found on the body of the deceased:-

1. Abraded contusion 7.5 cm x 5 cm bones underneath fractured present over the left temporal region. 5 cms. Above the left ear, tissue shows extension of blood.

2. Abraded contusion 7.5 cm x 2.5 cm present over the right side of forehead. 1.25 cm above the right eye brow. Bones underneath fractured.

3. Incised wound 6.5 cm x 1.5 cm x bone deep present obliquely over the left cheek extending from 1.25 cm above the left angle of mouth upto the middle of left cheek. Margins clean cut, bones underneath clean cut, wound gaping.

4. Incised would 5 cm x 1.5 cm x bone deep present 2.5 cm below the injury no.3 over the left chin.

5. Abraded contusion 5 cm x 3.5 cm present over the right side of face and over the nose, bones underneath fracture.

6. Incised wound 5 cm x 0.8cm x skin deep present over the left side of chest 7.5 cm above the left nippel. Margin clean cut.

7. Incised wound 10 cm x 0.8 cm x skin deep present obliquely over the outer scapulare region. Margins clean cut."

18. In the opinion of the doctor, the deceased was aged about 50 years and the duration of injuries was about two days. On external examination the doctor found the following injuries:-

The deceased was of average built body. Rigor mortis was absent. Eyes were closed and mouth were also closed. Abdomen was distended and greenish discolouration was present at the iliac fossae.

19. While considering the evidence of P.W.1 to P.W.7 in cumulative nature, the death can be said to be homicidal death. Postmortem report goes to show that the injuries on the body of the deceased would be the cause of death and that it was homicidal death.

20. 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?

21. It would be relevant to refer to 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."

22. The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts loose sight of the true scope and meaning of the terms used by the legislature in these sections, and allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be is 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.

23. In latest decision in [email protected] 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.

24. 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.

25. 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.

26. 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.

27. 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.

28. 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."

29. '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.

30. 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.

31. 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.

32. 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.

33. 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 302 I.P.C. to Section 304 Part-I I.P.C. The fact that the accused-appellant was incarcerated post trial after passing of the impugned judgment for more than 2 years and some months before he was ordered to be enlarged on bail on 05.02.1993 and thereafter he has been incarcerated in jail since 27.01.2020 after issuance of non-bailable warrant, meaning thereby the total period of incarceration of the accused-appellant is approximately four years now without remission. The incident is of the year 1978, the fact that the accused-appellant is of 75 years of age, the sentence is reduced to the period already undergone by the accused-appellant i.e. approximately four years with remission. Fine of Rs. 5000/- to be deposited within four weeks of release from incarceration. If fine is not deposited within four weeks he shall be enlarged in jail to undergo default sentences of three months.

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

35. Sri Radheshyam Yadav, learned Amicus Curiae has ably assisted this Court and would be entitled to his fee for a sum of Rs. 10,000/- from the High Court Legal Services Committee.

Order Date:-22.05.2023

Abhishek Singh