Uttarakhand High Court
Satyaveer Singh & Another ... vs State Of Uttarakhand on 11 October, 2018
Equivalent citations: AIRONLINE 2018 UTR 952
Author: Lak Pal Singh
Bench: V. K. Bist, Lak Pal Singh
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No. 364 of 2012
Satyaveer Singh & another ................ Appellants
Versus
State of Uttarakhand ................ Respondent
With
Criminal Appeal No. 376 of 2012
Avinash @ Mohit ................ Appellant
Versus
State of Uttarakhand ................ Respondent
Mr. S.K. Agarwal and Ms. Pushpa Joshi, Senior Advocates along with Mr.
Swapnil Bisht, Advocate for the appellants
Mr. Amit Bhatt, Dy. Advocate General with Mr. Kuldeep Singh Rawal, Brief
Holders for the respondent-State.
Dated: 11.10.2018
Coram : Hon'ble V. K. Bist, J.
Hon'ble Lak Pal Singh, J.
[Per: Hon'ble V.K. Bist, J.] Both these appeals have been preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.) against the judgment and order dated 10.12.2012 passed by the Sessions Judge, Haridwar, in Sessions trial No. 332 of 2008, State vs Satyaveer and two others, whereby the accused-appellants were convicted of the charge of offences punishable under Sections 147, 148, 504, 307/149 and 2 302/149 of IPC. All the accused-appellants were sentenced to undergo rigorous imprisonment for a period of one year under Sections 147 and 148 of IPC; rigorous imprisonment for a period of six months under Section 504 of IPC; five years rigorous imprisonment under Section 307 / 149 of IPC and life imprisonment under Section 302 / 149 of IPC. The trial court has directed that all the sentences shall run concurrently.
2) Prosecution story, in brief, is that complainant Raj Kumar lodged a complaint (Ext. A-
1) with R.O.P. G.R.P. Roorkee, P.S. G.R.P. Laksar on 12.05.2008, at 12:00 P.M., alleging therein, that he was going to Roorkee with his nephew Amit in the morning in connection with some personal work by Rishikesh-Delhi Passenger Train. Amit was a student of B.C.A. in Bishambar Sahay Degree College, Roorkee and was going to his College. At about 07:45 a.m., five passengers came to them and asked them to leave the seat. When the complainant and Amit told them that they are coming from Laksar and have to de-board at Roorkee, then three boys out of the five, namely Satyaveer, Avinash and Prashant took out knives and started hurling abuses to them. The other two took out iron chain and belt. All of them started assaulting Amit. When Kuldeep, Gurdeep and Sandeep tried to intervene they were assaulted and sustained injuries in the scuffle. Two unknown accused fled away from the train, when the train stopped at Dhandhera railway station. Remaining 3 three accused were apprehended with the help of co-passengers and the injured persons. On being asked, the accused persons, who were apprehended, disclosed their names as Satyavir, Avinash @ Mohit and Prashant Malik. The incident occurred in the train between Laksar and Roorkee railway stations. The complainant took Amit along with injured to the Govt. hospital Roorkee, where Amit was declared dead.
3) On the basis of said complaint, case crime no. 16 of 2008, under Sections 147, 148, 302, 324, 504 of IPC was registered at police out post G.R.P. Roorkee, P.S. G.R.P. Laksar on 12.05.2008, at 12:00 P.M., against accused Satyaveer, Avinash @ Mohit and Prashant Malik and chik FIR (Ext. A-
10) was prepared. The investigation of the case commenced. The Investigating Officer sent the dead body for postmortem, took evidence of the witnesses, inspected the place of incident and prepared site plan.
4) Dr. S.N. Singh (PW6) conducted postmortem examination on the dead body of Amit on 12.05.2008, at 04:00 P.M., and prepared postmortem report (Ext. A-8). The Medical Officer found following ante mortem injuries on the dead body of Amit at the time of autopsy:-
i) 3 x 2 cm incised wound over left lateral aspect of chest, 4 cm lateral to sternum and 6 cm below left nipple at 8 o'clock position.
Finger can be insinuated inside the wound. Blood discharge coagulated.
4ii) 2 x 2 cm deep incised wound over right side of sternum wall. 6 cm lateral to midpoint of sternum and about 6 cm below right nipple at 5 o'clock position. No discharge coming out. Finger cannot be passed.
According to the Medical Officer the cause of death was shock and haemorrhage due to ante mortem injuries.
5) PW5 Dr. Yogesh Kumar, who prepared the injury reports (Ext. A-5), (Ext. A-6) and (Ext. A-
7) respectively, opined that whereas injuries sustained by injured Kuldeep and Gurdeep were caused by some sharp edged weapon, the injuries sustained by injured Sandeep were caused by sharp edged weapon and hard blunt object. The duration of all the injuries was reported to be fresh.
6) After completion of investigation, charge sheet (Ext. A-16) was submitted against the accused-appellants Satyaveer, Avinash @ Mohit and Prashant Malik for their trial in respect of offences punishable under Sections 147, 148, 302, 307, 504 of IPC. The concerned Magistrate on receipt of the charge sheet, after giving necessary copies to the accused persons, committed the case to the court of sessions for trial. The learned Sessions Judge, Haridwar after hearing the parties on 07.11.2008, framed charge relating to the offences punishable under Sections 147, 148, 302/149, 307/149 and 504 of IPC against the accused-appellants. Subsequently on 20.05.2010, charge no. 4 and 5 so framed were amended in compliance of order dated 5 23.03.2010 as there was mistake in mentioning the names. All the accused-appellants denied the charges levelled against them and claimed to be tried.
7) On this, the prosecution examined PW1 Raj Kumar (complainant); PW2 Sandeep (injured eyewitness), PW3 Gurdeep (another injured eyewitness), PW4 Kuldeep (another injured eyewitness), PW5 Dr. Yogesh Kumar (Medical Officer who examined the injuries on the person of injured witnesses), PW6 Dr. S.N. Singh (Medical Officer, who conducted the autopsy); PW7 Dharmendra, PW8 Head Constable Ramesh Chand and PW9 In Charge Inspector Vijay Chandra Singh (Investigating Officer). Accused persons were offered as to whether they wish to adduce evidence in defence. In response the accused persons led defence evidence and DW1 Gopal Ram was examined in defence. The oral and documentary evidences were put to the accused- appellants under Section 313 of the Cr.P.C., to which they alleged that they have been falsely implicated in the crime due to suspicion.
8) After hearing the parties, the learned Sessions Judge, Haridwar found all the accused- appellants guilty of the charge of offences punishable under Sections 147, 148, 504, 307/149 and 302/149 of IPC and each one of them was convicted and sentenced to undergo rigorous imprisonment for a period of one year under Sections 147 and 148 of IPC; rigorous imprisonment for a period of six months under Section 504 of IPC; five years rigorous imprisonment under Section 307 / 149 of IPC and life imprisonment under Section 302 / 149IPC.
69) Feeling aggrieved against impugned judgment and order passed by learned Sessions Judge, Haridwar present criminal appeals have been preferred.
10) We heard learned counsel for the parties and perused the entire evidence on record.
11) PW1 Raj Kumar stated in his examination-in-chief that on 12.05.2008, he along with his nephew Amit were travelling by Rishikesh- Delhi passenger train from Laksar to Roorkee. Amit was pursuing B.C.A. from Bishambar Sahay Degree College and was going to his college. At about 07:45-08:00 A.M., five boys came to them and asked Amit to leave the seat. On this, the complainant and Amit told them that we are already sitting here and will de-board at Roorkee. A scuffle took place between them. Satyaveer, Avinash @ Mohit and Prashant inflicted knife blow to Amit. Two unknown accused also took part in the assault. On raising an alarm, the co-passengers came at the place of occurrence. The above three accused persons also inflicted knife blow to Gurdeep, Sandeep and Kuldeep. PW1 further stated that whereas three accused persons were apprehended on the spot, two other unknown accused succeeded in fleeing away at Dhandhera railway station when the train stopped for a short period. Satyaveer, Avinash @ Mohit and Prashant were apprehended on the spot and were brought to police out post G.R.P., Rookee. Complainant took Amit along with other injured persons to the Govt. hospital, 7 Roorkee. There the doctors declared Amit dead on arrival. The injured persons were given medical treatment there. Thereafter, complainant got lodged the report of the incident with G.R.P., Roorkee. On being asked the accused persons disclosed their names as Satyaveer, Avinash @ Mohit and Prashant at police out post G.R.P., Roorkee.
12) In his cross-examination, PW1 stated that the three accused persons were taken into custody by the police. Statement of PW1 was taken in the hospital on the date of incident itself. PW1 further stated that he purchased the ticket from Laksar station. He was present at the time of preparation of inquest report. He has not appended his signatures on the inquest report. On being asked regarding his statement recorded under Section 161 Cr.P.C., wherein he has stated that - the other two also grappled with them, PW1 deposed that he cannot say why the Inspector has not recorded these words. PW1 denied the fact that they have not handed over the accused persons to the police. He also denied the fact that he was not present at the time of incident. He also denied that the time shown in the report is not the correct time.
13) PW1 Raj Kumar is a natural and trustworthy witness. Nothing has come in his cross examination which creates doubt over the prosecution story. Perusal of evidence available on record would reveal that PW1 has supported the prosecution story beyond reasonable doubt. There 8 cannot be a false implication of the accused- appellants in the case as there was no previous enmity between the appellants and the prosecution witnesses.
14) PW2 Sandeep, PW3 Gurdeep and PW4 Kuldeep were the injured eyewitnesses. PW2
deposed that on 12.05.2008, he was travelling from Laksar to Roorkee in Rishikesh-Delhi passenger train. At abut 07:45 A.M., when the train was about to reach Dhandera railway station, an altercation was going on in respect of sharing of seat between some local passengers and the group of boys who were returning after participating in a rally for recruitment in Tripura Rifles. Gradually, the altercation turned into a scuffle. PW2 further deposed that Satyaveer, Avinash @ Mohit and Prashant took out knives and the other two accompanying them took out their belts. PW2 deposed that accused persons inflicted two knife blow on Amit and, when he intervened, he also sustained knife blow on his ribs at left side of abdomen. When PW3 and PW4 also tried to intervene, the accused persons also inflicted knife blow to them. PW2 deposed that he caught hold of one of the accused and the remaining two were apprehended by other passengers. The two accused accompanying these three accused fled away by jumping from the train, when the train was about to reach Dhandera railway station. The injured were given medical treatment at the civil hospital. The 9 evidence adduced by PW2 was fully corroborated by PW3 and PW4 in their statement.
15) The eye account rendered by eye witnesses PW2, PW3 and PW4 is also natural and trustworthy. Perusal of evidence on record would reveal that there is nothing to doubt the ocular evidence given by them. Nothing adverse has come in the cross-examination of these witnesses which creates reasonable doubt over their testimony.
16) PW5 Dr. Yogesh Kumar (Medical Officer) medically examined the injured witnesses on 12.05.2008. He proved the injury reports prepared by him. PW5 was cross-examined on behalf of all the accused, but nothing has come in his cross- examination that could be of any help to the accused-appellants.
17) PW6 Dr. S.N. Singh (Medical Officer) conducted autopsy on the dead body of Amit. PW6 has proved the postmortem report of deceased Amit. Accused-appellants have not denied the veracity of the postmortem report. It is not necessary to reproduce the ante mortem injuries found on the person of the deceased as the same have already been discussed in the foregoing paragraph. PW6 was also cross-examined on behalf of the defence. Nothing has come in the cross-examination of PW6 to demolish the case of prosecution and to support the defence version. Ante mortem injuries as mentioned earlier which include one incised wound on chest and deep incised wound over right side of 10 sternum wall read with the statement of PW6 Dr. S.N. Singh corroborate the prosecution story to the extent that the injuries were caused on the person of the deceased and that the death had probably occurred between 6-12 hours from the time postmortem was conducted, i.e., 04:00 P.M. on 12.05.2008.
18) PW7 Dharmendra Kumar is one of the witnesses of preparation of inquest report. He
appended his signatures on the inquest report and proved the same as Ext. Ka-9. In his cross- examination, PW7 deposed that deceased Amit was his neighbour. In his cross-examination, he denied the fact that he is giving false evidence as the deceased was his relative.
19) PW8 Ramesh Chandra was posted as Head Constable at police out post G.R.P., Roorkee on the date of incident and prepared chik report, which was written as per the information received. PW8 proved the chik report (Ext. A-10) and his signatures thereon. He also proved the entry (Ext. A-11) made in the G.D. to this effect. Nothing has come in his cross-examination which could be of any help to the accused-appellants.
20) PW9 Incharge Inspector Vijay Chandra Singh Gusain is the Investigating Officer of the case. PW9 recorded the statements of the complainant as well as of the accused persons. He also prepared arrest memo and information memo in his handwriting and also appended his signatures over 11 the same. PW9 appointed panches and got prepared the inquest report on the dead body of Amit. He proved the inquest report (Ext A-13) and signatures appended thereon. PW9 also proved sketch of dead body (Ext. A-12), sample seal (Ext A-
14), letter sent to the C.M.S. with a request to conduct postmortem on the dead body of Amit (Ext. A-15). On 16.05.2008, PW9 recorded the statements of Dr. S.N. Singh and recorded the same in the case diary. On the same day statements of Dr. Yogesh Kumar were also recorded. After completion of investigation, PW9 submitted charge sheet (Ext A-
16) against all the accused-appellants. PW9 was cross-examined at length. Nothing has come out in his evidence which comes to the rescue of the accused-appellants.
21) In defence, DW1 Gopal Ram was got examined. In his examination-in-chief, DW1 stated that on 12.05.2008 he was posted as constable clerk at P.S. Kotwali Gangnahar. He stated that the carbon copy of the G.D., which was called for, is before him and the original copy is in the C.O. Office. He proved Ext. B-1 and Ext. B-2 respectively, i.e., copy of G.D. no. 24 and G.D. no.
15. DW1 also deposed that civil hospital, Roorkee comes within the jurisdiction of P.S. Gangnahar and the P.M. number was issued by the P.S. Gangnahar. DW1 further deposed that in special circumstances, local police can enter the railway station. This witness was available for cross-examination.
1222) Mr. S.K. Agarwal, learned Senior Counsel for the appellants would submit that the FIR is ante timed as the accused-appellants were apprehended at 07:45 A.M. on the date of incident and the report of the incident was registered at 12:00 P.M. at police out post G.R.P., Roorkee and, as such, the accused- appellants have been falsely implicated in the crime. On careful perusal of the evidence on record, this Court finds that the delay in lodging the FIR has been sufficiently explained. Firstly, the complainant and other witnesses tried to save the life of the injured persons and it is a natural human behaviour to first take care of the injured and thereafter to set the criminal law into motion. No prudent person will first lodge the FIR and thereafter proceed for the treatment of injured persons. Thus, the delay in lodging the FIR has been sufficiently explained and the same is not fatal to the prosecution case. The said argument also does not help the accused-appellants in any way.
23) It is also submitted on behalf of the appellants that no test identification parade of any of the accused-appellants was conducted before the Magistrate. In the opinion of this Court, there was no requirement of conducting test identification parade in the case in hand because the accused- appellants were apprehended on the spot with the help of co-passengers. Moreover, the injured eyewitness as well as the complainant identified all the accused in the court.
1324) It is a case of sudden fight between two groups of railway passengers. The one group consists of daily passengers and the other group was of the boys, who were returning to their respective places after participating in a rally for recruitment in Tripura Rifles. Due to sudden scuffle between the two groups a sudden fight broke out. The three accused-appellants took out knives and inflicted blows on Amit, nephew of the complainant, resulting in his death. The three witnesses namely, Kuldeep Gurdeep and Sandeep, who tried to intervene, sustained injuries of sharp edged weapon, in the melee. However, the knives used in the commission of crime were not recovered, but the prosecution witnesses have proved that the accused-appellants, who were arrested on the spot, were the assailants and two of their accomplice, who attacked the injured witnesses with iron chain and belt fled away from the place of occurrence by jumping from the train. These two accused could not be traced out by the Investigating Officer.
25) Learned Senior Counsel appearing on behalf of the appellants would further submit that as all the accused persons, including the present accused-appellants, are residents of different places and were returning after participating in a rally for recruitment in Tripura Rifles, therefore, it cannot be said that the act was done with premeditation. Learned Senior Counsel would further submit that it was a case of sudden fight and the crime was committed instantaneously. The learned trial court 14 convicted the accused-appellant under Sections 147, 148, 504, 307/149 and sentenced them appropriately on these counts. But the sentence of imprisonment for life under Section 302 read with Section 149 of IPC passed against the accused- appellants seems to be excessive.
26) In our opinion, the incident in question appears to be a result of sudden fight between the two groups in the heat of passion upon a certain quarrel and there was no premeditation and the accused-appellants have acted in a fit of anger. The deceased and the injured persons were the aggressors. Therefore, the appellants acted in their self-defence and it is not a case of culpable homicide from any stretch of imagination.
27) The definition of culpable homicide under Section 299 of IPC is extracted hereunder:
"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."
28) Since the ingredients of Section 299 of IPC are not attracted in the present case, therefore, in our considered opinion, present case falls within the ambit of Exception 4 to Section 300 of IPC, inasmuch as it was not a case of premeditation in a sudden fight in the heat of passion upon a sudden quarrel, as such, the accused-appellants ought to have been charged under Section 304 Part II of IPC 15 and not under Section 302 read with Section 149 of IPC.
29) A Culpable homicide does not amount to murder if it is covered under exception 4 mentioned in Section 300 of the I.P.C. Exception 4 to Section 300, Indian Penal Code reads as under:-
"Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a certain quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner."
30) It is settled principle of law that Section 304 Part II gets attracted when it is proved that even if the accused had no intention to cause such bodily injury as was likely to cause death but had the knowledge that the injury was likely to cause the death. In the case of Madhusudan Sathpathy and others V. State of Orissa reported in 1995 Supreme Court Cases (Cri) 155, it was held that when the accused was found to have caused the death of deceased in scuffle and medical evidence show only one fatal injury on the head of the deceased and other injuries were simple in nature, then the accused had only knowledge that injury inflicted by him was likely to cause death and had no intention to cause death. In view of the principle of law laid down in the judgment (supra), in the present case, the accused-appellants should have been convicted only under Section 304 Part II of IPC 16 and not under Section 302 read with Section 149 of IPC.
31) In view of this Court, the accused- appellants have wrongly been convicted for the offence punishable under Section 302 read with Section 149 of IPC. The case in hand falls under Section 304 Part II of IPC and not under Section 302 read with Section 149 of IPC. Thus, we hold that the impugned judgment and order passed by learned trial court does not reflect the correct proposition of law on facts. This Court is of the firm opinion that present case falls under Section 304 Part II of IPC. Thus, the conviction of the accused- appellants recorded under Section 302 read with Section 149 of IPC is liable to be modified and the accused-appellants are liable to be convicted under Section 304 Part II of IPC.
32) In view of the above, the conviction of the accused-appellants recorded under Section 302 read with Section 149 of IPC is not sustainable. Rather the accused-appellants are convicted under Section 304 Part II of IPC. Having considered the young age of the accused-appellants, who are students, we are of the view that sentence of rigorous imprisonment for 10 years would meet the ends of justice.
33) Consequently, both the appeals deserve to be allowed partly. The same are partly allowed. The conviction and sentence recorded against the 17 accused-convicts namely, Satyaveer, Prashant Malik and Avinash @ Mohit by the trial court in respect of offences punishable under Sections 147, 148, 504, 307/149 of IPC is found to be correct and the same does not require any interference by this Court. Their conviction in respect of offence punishable under Section 302 read with Section 149 of IPC and sentence awarded to them is liable to be interfered with as it cannot be said that all the appellants had common intention in committing the murder of Amit, with whom they had a sudden scuffle. Accordingly, the impugned judgment and order dated 10.12.2012 is modified. All the accused- appellants are convicted under Section 304 Part II of IPC instead of Section 302 read with Section 149 of IPC and sentenced to undergo 10 years rigorous imprisonment. The period already undergone by them shall be adjusted / set off against the sentence awarded by this Court. The accused- appellants are in jail. A copy of this judgment be sent to the Superintendent of jail concerned, where they are currently serving out their sentences.
34) Let a copy of this judgment alongwith the lower court record be sent to the court below for ensuring compliance.
(Lok Pal Singh, J.) (V.K. Bist, J.) Dt. October 11, 2018. Negi