Rajendra Prasad vs State Of Uttarakhand
2023 Latest Caselaw 2465 UK

                          Judgment reserved on: 04.07.2023
                          Judgment delivered on: 24.08.2023

     IN THE HIGH COURT OF UTTARAKHAND AT
                   NAINITAL
             Criminal Appeal No.209 of 2016

Rajendra Prasad                                  ........Appellant

                             Versus

State of Uttarakhand                          ........Respondent
Present:-
      Mr. D.S. Mehta, learned counsel for the appellant.
      Mr. J.S. Virk, learned Deputy Advocate General for the State.

                          JUDGMENT

Coram: Hon'ble Manoj Kumar Tiwari, J.

Hon'ble Pankaj Purohit, J.

Per: Hon'ble Pankaj Purohit, J.

This Appeal is preferred by the appellant to set aside the judgment and order dated 7/8.04.2016, passed by learned Sessions Judge, Nainital in Session Trial No.31 of 2015, "State of Uttarakhand Vs. Rajendra Prasad", whereby the appellant has been convicted under Section 302 of IPC and sentenced to undergo life imprisonment with fine of Rs.25,000/- and, in default of fine, he was sentenced to undergo two years' additional imprisonment.

2. The facts of the case in brief are that on 20.11.2014, an FIR was lodged by Smt. Govindi Devi (PW-2) at Thana Kathgodam, with the allegations that on 20.11.2014 at about 04:45 AM, his nephew Sunny S/o Shri Rajendra Prasad came and told her that his father Rajendra Prasad had beaten his grandfather Ram Prasad to death. His father had gone in the marriage from home.

The dead body of grandfather was lying on the bed. After hearing this, she went to see her father at his home where his dead body was lying on bed; his brother Rajendra Prasad killed her father Ram Prasad.

3. On the basis of this First Information Report (Ext. Ka-2), a chick FIR (Ext.Ka-5) was registered on 20.11.2014 at 07:30 AM in Police Station Kathgodam, District Nainital, against the appellant Rajendra Prasad and a Case Crime No. 72 of 2014 under Section 302 IPC was registered. The investigation ensued after the registration of the crime, the Investigating Officer drawn Inquest Report on the deceased and sent the dead body of deceased Ram Prasad for post-mortem.

4. The Investigating Officer conducted the investigation of the case and after doing necessary formalities and arresting the appellant, submitted a charge-sheet (Ext.Ka-22) against the appellant in the court. Investigating Officer also sent the recovered axe and wooden stick for forensic examination. The report given by the concerned FSL is also on record as (Ext.Ka-

21).

5. The learned Magistrate took cognizance against the appellant under Section 302 IPC and committed the appellant for trial before the learned Sessions Judge, Nainital. The learned Sessions Judge, finding sufficient grounds, framed charges on 08.04.2016, against the accused-appellant Rajendra Prasad under Section 302 of IPC.

6. The appellant pleaded not guilty, hence claimed for trial.

7. As many as nine witnesses were produced by the prosecution to prove its case against the appellant to the hilt. They are PW1-Ganesh Prasad (brother-in-law of deceased), PW2- Smt. Govindi Devi (daughter of deceased and informant), PW3- Sunny (eye-witness, grandson of deceased), PW4-Cons. 377 CP.Gopal Ram (Chick and G.D.writer), PW5-Dr. D.Bankoti (Doctor, who conducted post-mortem), PW6- Mahesh Joshi, PW7- S.I. Rajesh Kumar (First Investigating Officer), PW8- S.I. Indra Jeet & PW9-Ret.S.I. Ashok Kumar Arora (Second Investigating Officer), who proved documents put forth by the prosecution.

8. Thereafter, the statements of accused-appellant were recorded under Section 313 Cr.P.C. in which he denied the allegation levelled against him.

9. The trial court on conclusion of trial, found the case of the prosecution proved against the appellant beyond all reasonable doubt and it accordingly proceeded to convict and sentence the appellant as mentioned in paragraph no.1 of this judgment.

10. We have heard learned counsels for the parties and perused the entire oral and documentary evidence available on record.

11. To prove its case, the prosecution produced Ganesh Prasad as PW1 in the court. He deposed that deceased Ram Prasad was his brother-in-law. On 20.11.2014 in the morning, when he was going for his labour work, he came to know that Ram Prasad had died at night. On information, he went to his house. The dead body of Ram Prasad was lying on the bed, there were a lot

of people gathered, and the police had also reached. The proceedings of Panchayatnama of the dead body was done by the police by appointing him as Panch. After sealing the corpse, it was sent for post-mortem. On seeing Panchayatnama 15Ka/1 to 15Ka/3 he deposed that this was the same Panchayatnama, which was prepared at the spot, after reading and hearing it, he also put his thumb impression on it, which he confirmed to be correct, which was exhibited as Ext.Ka-1. He further deposed that he was unaware, whether Ram Prasad and present accused Rajendra, who is his nephew, used to fight or not after having alcohol. There was a talk that Rajendra and Ram Prasad had a fight and died due to injury.

12. PW-2 Smt. Govindi Devi, who was daughter of the deceased and sister of the accused, deposed that on 20.11.2014 at about 05:00 AM, his nephew Sunny came to her and told that his father Rajendra Prasad had beaten his grandfather Ram Prasad, due to which grandfather had died. The dead body of grandfather was lying on the bed. The report of the incident was written by Jassi Arya in Damuwadhunga, on paper no.-4Ka, what she said was only written, she signed on this paper, proved and exhibited it Ext. Ka-2. On 20.11.2014, the police in front of her and Surendra Kumar and Rajeshwari recovered an axe and stick from the room of the accused. The axe and stick was sealed by white cloth and fard Ext. Ka-3 was prepared. Appellant Rajendra Prasad was arrested and she affirmed her signature on Ext. Ka-3. She also accepted in cross-examination that deceased used to drink alcohol and her brother appellant Rajendra Prasad also used to drink with his father Ram

Prasad and after drinking, they used to fight with each other.

13. PW3- Sunny, who was less than 11 years of age, deposed that accused is his father and Ram Prasad was his grandfather. He deposed that on 19.11.2014 at about 02:00 PM, as soon as his father came home, his father and grandfather were having a fight, then he went to Kumaon Colony to attend the marriage, his father was at home. After maarpeet, grandfather had lied on the bed. Other day at about 05:00 AM, he went to his aunt Govindi and his father also told her that father Ram Prasad had died. He also told his aunt that father and grandfather had a fight. At this, his aunt came to his home. Police had recovered axe and stick from home. Blood clot was found on the axe and also on the stick. Grandfather had marks of axe and stick on his head. Axe and stick was put in the corner of room. He was also slept with his grandfather and father at this room, that night he was also slept with his father at this room. Even before this incident, his father also used to fighting and beating his mother and threw his mother out of the house, due to this quarrel, his mother was living at Khutani, Bhimtal, long before the incident. He and his brother Dev lived with their father, before the incident. After the incident, he and his brother lived with their mother. His father used to drink alcohol. At the time of incident his father- appellant had drank alcohol with his grandfather (deceased), both had a fight. For which purpose, he could not tell. He identified the axe and stick, which was used to beat his grandfather, in the Court.

14. PW4-Cons. 377 CP. Gopal Ram is a formal witness, who had prepared chick FIR and G.D. and he proved the chick FIR Ext. Ka-5 and G.D. Ext. Ka-4, 6, 11,

19.

15. PW5-Dr. D. Bankoti has conducted post- mortem on the deceased at Soban Singh Jeena Base Hospital, Haldwani on 20.11.2014 at about 12.30 hrs. at noon and has stated about the injuries which he found on the person of the deceased. He proved post-mortem report (Ext.-Ka-7) and he found following external anti-mortem injuries on the person of deceased:

"1. Incised wound over right side temporal area 1 cm above right ear. 3cm X 1cm X bone deep, spindle shaped, sharp cut margin, scab present.

2. Incised wound over left side temporal area 5 cm above left ear, 3.5cm X .7cm X bone deep, spindle shaped, sharp cut margin, scab present.

3. Incised wound over left side, temporal area, 2 cm below injury number two, 2cm X .5cm X muscle deep, spindle shaped, scab present.

4. Incised wound over left side temporoperital region behind left ear, 3cm X 1cm X bone deep, scab present.

5. Bruise over left ear and trages, 4cm X 2.5cm X bluish colour.

6. Incised wound over left hand, ring finger, 4cm X .5cm X muscle deep.

7. Bruise over right side of chest wall. Lateroposterior surface, 10cm X 6cm X bluish colour.

8. Bruise over right eyebrow medial side near joint, 2cm X 1cm bluish colour."

After the dissection of skull, there were some spots of blood beneath the skin, there was some spots of the blood on both the sides; sixth, seventh, eighth and ninth ribs were also found broken on the right side. There was some clotting of blood in the right chest and the lung was completely ruptured. He has opined that the deceased died due to shock and profuse bleeding due to the injuries received before death. He has further opined that above injuries nos. 1, 2, 3, 4 & 6 were inflicted by axe and injuries nos. 5, 7 & 8 were caused by stick. He has further proved that the death of the deceased took place possibly about 02.00 PM on 19.11.2014.

16. PW6- Mahesh Joshi, who was Gram Pradhan at the time of incident deposed that on 20.11.2014 in the morning, deceased's grandson Sunny had informed that there was fight between his father and grandfather; his grandfather had died. At this, he at about 07:00 AM informed about the incident to police station Kathgodam. On being informed he went to Ram Prasad and saw that deceased was lying on bed. After sometime, police had also reached. Police sealed the dead body in front of him. He also witnessed the recovery of axe and stick, which were lying near the dead body.

17. PW-7 S.I. Rajesh Kumar is the First Investigating Officer of the case. He had recovered the axe and stick from the room, where the dead body was lying and sealed it in front of Govindi Devi, Surendra Kumar, Rajeshwari on 20.11.2014 at 08:45 AM, whose fard was written by S.I. Indrajit Singh PW-8 with his writing and signature, which was Ext.Ka-3 on the record. By taking

possession of axe and stick, he sealed it exhibited seal- sample as Ext.Ka-10. He prepared site plan (Ext.-Ka-12) also.

18. PW-8 S.I. Indra Jeet is a formal witness, who had sent the dead body for post-mortem Ext. Ka-17.

19. PW-9-Ret. S.I. Ashok Kumar Arora is second Investigating Officer. He has proved extract of General Diary (Ext.-Ka-19) and other documents. He had sent clothes of the deceased and weapons of assault for forensic examination. The report given by the concerned FSL is on record as (Ext.Ka-21). After conducting the investigation of the case and after doing necessary formalities and arresting the accused persons, Investigating Officer submitted a charge-sheet (Ext.Ka-22) against the accused person (appellant herein) in the court.

20. The learned trial court after appreciation of the evidence and material available on record convicted the appellant as stated above. Now the appellant is before this Court in appeal, assailing the aforesaid conviction and the sentence.

21. Heard learned counsels for the parties and perused the record.

22. The learned counsel for the appellant did not dispute the conviction, but emphatically submitted that the conviction of the appellant should be under Section 304 Part-I of the IPC and not under Section 302 of the

IPC as recorded by the learned trial court. In order to substantiate his argument, he further submitted that from the entire evidence there is no indication of any motive assigned to the appellant to commit the crime.

23. It is submitted by the learned counsel for the appellant that though the appellant killed his father, but from the appreciation of the evidence, only this much can be concluded that it was without any premeditation in a sudden fight, in the heat of passion upon sudden quarrel. In order to substantiate his argument learned counsel for the appellant took us through the evidence of PW-3- Sunny, where it can be deciphered that it was a case of sudden quarrel between the appellant and his father, in which the deceased-Ram Prasad lost his life, when he was assaulted by the appellant with an axe and danda. He further submitted that though PW-3-Sunny was declared hostile by the prosecution, but when he was cross- examined, he had stated that on 19.11.2014, his father and grandfather were sitting together and having drinks at 02:00 PM, he saw scuffle and maarpeet between his father and grandfather when he reached home. It is this witness who informed PW-2-Smt. Govindi devi his bua (sister of his father-appellant), about the death of his grandfather Ram Prasad at 05:00 AM on 20.11.2014. After seeing his father dead, PW-2-Govindi Devi, lodged FIR (Ext. Ka-2) in police station Kathgodam.

24. Per contra, learned State Counsel seriously opposed the argument made on behalf of the appellant that this was not a case where Section 302 of IPC-

murder cannot be converted to culpable homicide not amounting to murder.

25. In order to unsettled the argument advanced on behalf of the appellant, he very strongly submitted that injuries found on the person of deceased Ram Prasad were not one or two, rather as many as eight injuries, out of which five injuries were on head of the deceased. Learned State Counsel took us to the Ext. Ka-7- postmortem report to contend that on the basis of the number of injuries inflicted upon the head of the deceased by the appellant; this case cannot be brought within the fold of Section 304 of IPC. He further submitted that although eye-witness PW-3 Sunny being minor son of the appellant was turned hostile, but in his cross-examination by the prosecution he again supported the case of the prosecution and his evidence cannot be thrown away only for the reason that he was turned hostile.

26. Before appreciating the argument of the learned counsel for the appellant to bring the case of the prosecution within the fold of Section 304 IPC, the said provision is required to be considered and thereafter on the basis of the evidence, it can be inferred as to whether on the basis of the facts and evidence on record, the ingredients to bring it within the fold of Section 304 IPC are satisfied or not. Section 300 exception 4 IPC is quoted herein under:

"Section 300 exception 4: Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner."

Only a murder can be brought under the culpable homicide if it is committed without premeditation in a sudden fight in the heat of passion, upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.

27. It appears from the evidence of PW-3-Sunny that it does not bring the incident, in which deceased Ram Prasad lost his wife, within the fold of the ingredients of Exception 4 of Section 300 IPC. From the evidence of PW-3-Sunny, it is demonstrated that both the appellant and his father (deceased) were in the house. This witness, who was also present at house when the incident happened, stated that during the day time, the appellant and his grandfather-deceased were having drinks at 02:00 PM when he came back from the house of his bua (Govindi Devi, PW-2) and when he reached home, both were having altercation and there was scuffle and maarpeet between both of them. Later on, when he came back from marriage at about 11:30 PM with his father and brother-Dev, they went to bed to sleep; in the morning when he got up, he found his father crying and he went to the house of his bua (sister PW-2 of his father- appellant), who lives nearby, to inform about the death of his grandfather, his bua-Govindi Devi (PW-2) came and lodged the first information report. The injuries found on the vital part (head) of the deceased would only indicate that the appellant has acted in a very cruel manner, disentitling him for the benefit of Exception 4 to Section 300 of IPC and out of the sweep of Section 304 of IPC

Part-I. As many as 8 injuries were found, out of which 5 were there on vital part of the body i.e. head.

28. From the appreciation of entire material on record, we are of the considered opinion that the intention of appellant is more apparent when he inflicted so many fatal injuries to his deceased father.

29. In this view of the matter, the submission made by the learned counsel for the appellant cannot be sustained; there is no reason to interfere in the judgment and order by which the conviction and sentence has been awarded to the appellant by the learned trial court.

30. The upshot of the aforesaid discussion would result only to say that there is no merit in the appeal and the same is hereby dismissed. The judgment and order dated 7/8.04.2016, passed by learned Sessions Judge, Nainital in Session Trial No.31 of 2015, "State of Uttarakhand Vs. Rajendra Prasad", by which the appellant is convicted and sentenced, is hereby affirmed.

30. The appellant is in jail. He shall serve out the sentence, so awarded. Registry to send a copy of this judgment along with the LCR to the court concerned for information and compliance.

(Pankaj Purohit, J.) (Manoj Kumar Tiwari, J.) 24.08.2023 PN