Allahabad High Court
Ramendra Yadav vs State Of U.P. on 11 November, 2020
Bench: Manoj Misra, Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 14.10.2020 Delivered on 11.11.2020 Court No. - 48 REPORTABLE Case :- JAIL APPEAL No. - 4354 of 2015 Appellant :- Ramendra Yadav Respondent :- State of U.P. Counsel for Appellant :- From Jail,Sarvesh Kumar Dubey, Shashi Shekhar Mishra Counsel for Respondent :- A.G.A. Hon'ble Manoj Misra,J.
Hon'ble Saumitra Dayal Singh,J.
(Delivered by Hon'ble Manoj Misra, J.)
1. This jail appeal has been filed against the judgment and order of conviction dated 11.02.2015 and order of sentence dated 13.2.2015 passed by the Additional Sessions Judge, Second, Gautam Budh Nagar in S.T. No.381 of 2011 (State Vs. Ramendra Yadav) whereby the appellant Ramendra Yadav has been convicted for offence punishable under Section 302 IPC and has been sentenced to undergo imprisonment for life along with fine of Rs.50,000/- and default sentence of one year simple imprisonment.
2. The prosecution case, in nutshell, as taken in the FIR (Ex. Ka 1) is that PW-2's (informant's) brother-in-law, Indrajeet Singh Rathore (deceased no.1 - D-1) and one Sachin Tomar (deceased no.2 - D-2) were working for Pawan Security for the last two months. About four days before the date of incident, they were removed. On 15.02.2011, at about 7 pm, PW-2 with D-1 and D-2 visited Colonel Hostel of Sharda University for settlement of their dues. When D-1 and D-2 went to fetch their belongings from the guardroom, the appellant-Ramendra Yadav, the gunman, restrained them from picking the goods on which a fight broke out. The gunman picked up his double barrel gun and fired one shot at D-1 and the other at D-2, resulting in serious injuries to both of them. PW-2 and Pawan Security Supervisor, namely, Gurvinder Singh (P.W.6), who were there, arrested the accused on the spot with his double barren gun. The two injured were rushed to Sharda Hospital where they were declared dead. The FIR of the incident was registered at P.S. Kasna, District Gautam Budh Nagar at 20.10 hours on 15.02.2011, which was proved by the informant (PW-2).
3. The postmortem report (Ex. Ka-5) of D-1 prepared and proved by Dr. Raj Singh (PW3) disclosed a circular 6 cm x 5 cm bone deep firearm entry wound at left inguinal region with same sized hole on overlying shirt and pant with blackening. All the vascular channels (femoral artery and vein) ruptured. A plastic wad and deformed metallic foreign body was recovered from inguinal region near femur. The cause of death was due to excessive bleeding on account of firearm injury to main vascular vessel.
4. The postmortem report of D-2 (Ex. Ka-6) prepared and proved by PW3 revealed a circular firearm entry wound 3 cm x 3 cm at left side chest and left side abdomen, 13 cm above umbilicus at 1 O'clock position, through which intestine was coming out. Blackening was found around the wound. Cause of death was due to shock and haemorrhage on account of ante mortem firearm injury.
5. Inquest was held at Sharda Hospital. Inquest reports were exhibited as Ex. Ka-7 and Ex. Ka-12 on the testimony of Sub Inspector Anang Pal Singh (P.W.4) as also constable Ravindra Singh (P.W.5). The investigation was carried out by Preetam Pal Singh, S.H.O. Kasna (P.W.7) resulting in charge sheet (Ex. Ka-22). Memorandum of taking possession of the weapon of assault i.e. double barrel gun with eight live cartridges was prepared and exhibited as Ex. Ka-4 on the testimony of PW2 and PW6. Fard of plain floor obtained from the guardroom of Colonel Hostel of Sharda University was marked Exhibit Ka-17 and Fard of blood stained floor picked up from guardroom of Colonel Hostel of Sharda University was marked Exhibit Ka-18 on the testimony of PW7. Fard of blood stained bed sheet, etc., picked up from the guardroom, was marked Exhibit Ka-19 on the testimony of PW7.
6. The prosecution examined two witnesses of fact, namely, PW-2 and PW-6. Four police witnesses, namely, Constable clerk Jeet Singh (P.W.1), who proved the Chik FIR (Ex.Ka1) and its G.D. Entry (Ex. Ka 2) at 20.10 hrs on 15.02.2011; P.W.4, who proved the inquest proceedings and the papers connected therewith; Constable Ravindra Singh (P.W.5) who took the sealed bodies for post-mortem to the mortuary; and PW7 who proved the various stages of the investigation. PW3 proved the post mortem reports.
7. PW-2 deposed that he along with two deceased had gone to Colonel Hostel of Sharda University. There, when the two deceased entered the guardroom to take their goods, the accused, who was there as a guard with gun, restrained them from picking the goods. This resulted in a quarrel. The accused thereafter picked up his gun and fired one shot each at the two deceased. Upon hearing gun shots, the other security guard (PW-6) rushed to the spot. Whereafter, PW2 with the help of PW6 arrested the accused on spot and took his gun with live cartridges. Thereafter, he went to the hospital with the two deceased where they were declared dead. Immediately, thereafter, he along with PW-6, went to the police station, handed over the accused and the gun to the police.
8. PW-6, the other security guard posted at the Hostel, stated that upon hearing gun shots, he rushed to the spot and found the accused with gun in his hand and two deceased lying injured and bleeding profusely. He stated that he with the help of PW2 arrested the accused on spot and took possession of his gun.
9. The incriminating circumstances borne out from the prosecution evidence were put to the accused under Section 313 Cr.P.C. The accused denied the prosecution case by stating that the prosecution case is incorrect and he has been falsely implicated. He, however, disclosed no reason for his false implication and led no evidence in defence.
10. The trial court after examining the prosecution evidence held that the prosecution was successful in proving the charge of murder punishable under section 302 IPC beyond reasonable doubt and punished the appellant accordingly.
11. We have heard Sri Brijesh Sahai, learned Senior Counsel, assisted by Sri Sarvesh Kumar Dubey, for the appellant; Sri Ankit Srivastava, learned A.G.A., for the State.
12. Sri Brijesh Sahai, learned counsel for the appellant, submitted that as per the prosecution case the incident was witnessed only by PW-2 because PW-6 arrived at the spot on hearing the shots. Hence, actual firing has allegedly been witnessed only by PW2. PW-2 is a chance witness who resides in District Kanpur Nagar whereas the incident took place in District Gautam Budh Nagar. According to PW-2, he had come to Delhi on that day in the morning and had met his brother-in-law (D-1) at Pari Chowk. From there, they, along with D-2, went to Sharda University to settle the accounts. It has been submitted that PW-2 has been set up as a witness though he did not witness the incident. He next submitted that the alleged spot arrest of the accused is rendered doubtful from the testimony of PW-2, inasmuch as, according to PW-2, he and the other guard (PW-6) had arrested the accused with his double barrel gun and eight live cartridges on the spot and, later, the accused was handed over to the police with the double barrel gun and live cartridges at the police station, which is belied by the own testimony of PW-2 which is that after arresting the accused he had proceeded to the hospital with the two deceased in the ambulance. It has been submitted that the story that on return from the hospital he took the accused to the police station appears unbelievable because the accused admittedly had a gun with eight live cartridges and could easily have managed his escape therefore, it appears, the incident occurred in some other manner than alleged by the prosecution. In respect of PW-6, the other eye witness, the learned counsel for the appellant submitted that PW-6 is not an eye witness as he arrived at the spot when he heard gun shots. Hence, his testimony alone is not sufficient to record conviction.
13. In the alternative, the learned counsel for the appellant submitted that even if the court finds that the prosecution testimony is reliable then too an offence of murder cannot be said to have been committed as, admittedly, the accused was posted as a guard on duty at the time of the incident and in good faith he had restrained the two deceased from picking up goods lying in the guardroom which resulted in a sudden fight and the shots were fired in the heat of passion upon a sudden quarrel or it could be said that the two deceased by their conduct provoked the accused so much that he lost self control and fired the shots resulting in death. Thus, in any view of the matter, the offence, if any, committed by the accused would fall either in Exception 1 or Exception 4 of Section 300 IPC and therefore conviction could only be for an offence of culpable homicide not amounting to murder. To support the above contention, attention of the Court was invited to the postmortem reports to suggest that D-1 was shot not at vital part but at the inguinal region and the other shot fired at D-2 was in quick succession as a consequence of having already lost the power of self control on account of sudden surge of emotions caused by sudden quarrel and fight. He submitted that the accused has already suffered incarceration since 15.02.2011 and therefore it is a fit case where the sentence of the appellant be reduced to imprisonment already undergone.
14. Per contra, learned A.G.A. submitted that the prosecution story is natural. PW2's presence cannot be doubted because he is also witness of the inquest proceeding which started at about 8.30 pm at Sharda Hospital. If he had been at Kanpur, as suggested by the defence, he could not have attended the inquest proceeding. Thus, his presence at the place of occurrence is not impossible but quite natural as having accompanied his brother in law for settlement of dues. Moreover, his presence is proved by PW6. He submitted that the place of occurrence is the guardroom of the hostel, close to which is the hospital, therefore it was quite natural for PW2 to rush the deceased to the hospital and on return reach the police station with the accused. More so, when there was another guard (PW6) to detain the accused who was apprehended with his gun on the spot. Hence, merely because the informant went to the hospital and on return took the accused along with other security guard (PW6) to the police station cannot be said to be an unnatural conduct on the part of the informant so as to cast a doubt on the prosecution story. He further submitted that there is no allegation of any kind of enmity or mala fide against PW2 or the police, therefore there is no reason at all to doubt the prosecution story which is corroborated by the facts and circumstances brought on record. Further, PW-6 corroborates the testimony of PW-2. Besides, there is no dispute with regard to the place and time of occurrence and the ocular version is fully corroborated by medical report. Hence, there is no shadow of doubt that the appellant is guilty. On the question of sentence, the learned A.G.A. submitted that it is not a case of a single gun shot but of two gun shots. Even if it is assumed that the first gun shot was on the inguinal region, the second gun shot was directly on vital part i.e. the abdomen near the chest. Thus, the trial court was justified in convicting the accused for an offence punishable under Section 302 IPC.
15. We have considered the rival submissions and have perused the record carefully.
16. In so far as the guilt of the appellant in respect of commission of culpable homicide is concerned, the prosecution evidence through PW2 is straight forward and leaves no shadow of doubt that the gun shots at the two deceased were fired by the appellant. The presence of PW2 at the place of occurrence is quite natural being brother in law of the deceased and having accompanied him to the University for settlement of his dues. His presence is also corroborated from police papers such as the FIR, inquest report and Fard of handing over the accused and his gun. Further, PW6 certifies P.W.2's presence on the spot at the time of the incident. With regard to the reliability of the testimony, there is no suggestion to PW2 as to why PW2 would be lying. Further, there is no suggestion to any of the prosecution witnesses that the two deceased were shot at by some other person in some other manner and at some other place or time. There is also no challenge to the prosecution evidence that the appellant was posted as a guard at Colonel Hostel of Sharda University where the incident took place. There is also nothing on record to show that the two deceased were armed and had caused any kind of injury to the accused. The prosecution story finds corroboration not only in the medical evidence but also in the testimony of PW6, who is an independent witness and, at the time of the incident, was in another room of the hostel and had rushed to the spot on hearing gun shots. There he found the appellant with gun in his hand and the two deceased lying on the floor. He corroborated the testimony of PW2 by stating that, thereafter, he, with the help of PW2, who had come with the two deceased, apprehended the accused on spot.
17. In so far as the spot arrest of the appellant is concerned, it is not doubtful. It is to be noted that the gun used by the appellant was a double barrel gun. He had already fired two shots. It is thus possible that before he could reload the weapon there was ample opportunity for PW2 and PW6 to catch and overpower him. Thus the testimony that PW2 and PW6 had arrested the appellant and took away his gun and eight live cartridges is not unbelievable at all. The plea of the learned counsel for the appellant that spot arrest becomes doubtful because straightaway the accused was not produced at the police station but was produced after PW-2 returned from the hospital is not acceptable because Sharda Hospital is within the campus of Sharda University. This argument might have had some weight if the hospital had been far off and if there had been no other person to take control of the appellant. In the instant case, the incident occurred in the guardroom of the hostel. PW6 himself was there in another room as a guard and there were several other persons also present, as has come in the testimony. Therefore, if the appellant had been overpowered and his gun had been snatched, he could have easily been detained for sometime at the hostel before being taken to the police station. Thus, if he was produced at the police station by PW2 and PW6, after PW2 returned from the hospital, which was nearby, the prosecution case with regard to spot arrest of the accused-appellant is not rendered doubtful in any manner.
18. Under the circumstances, we do not find any such suspicious circumstance in the prosecution evidence which may lead us to disbelieve the straight forward prosecution evidence more so when no motive has been attributed to the witnesses to falsely implicate the appellant. Thus, we are of the view that the prosecution has been able to successfully prove beyond reasonable doubt that the appellant fired two shots, one at D-1 and the other at D-2. Even assuming that injury caused to D-1 was below his waist, near the inguinal region, the second gun shot fired at D-2 was above the umbilical region near the chest therefore, as both shots were from a close range, it can safely be concluded that the shot fired at D-2 was with the intention of causing such bodily injury as is likely to cause death of D-2.
19. Now, we shall proceed to examine the merit of the alternative submission made by the learned counsel for the appellant which is that the case of the appellant would fall in any one or more of the Exceptions provided under Section 300 IPC so as to make it an offence of culpable homicide not amounting to murder.
20. In this regard, the learned counsel for the appellant had strenuously urged that it is established from the prosecution evidence that the incident occurred in the guard-room of the University. The accused-appellant was the guard on duty. D-1 and D-2 wanted to take goods from the guard-room. The prosecution has not shown that D-1 and D-2 were authorised by any lawful order to take goods from the guard-room. Rather, admittedly, they were put off duty and had come to the campus only for settlement of their dues. Thus, the appellant, who was posted as a guard on duty, had every right to restrain D-1 and D-2 from taking away the goods. As it is proved that when the appellant restrained D-1 and D-2 from taking away the goods altercation started between them, considering that there was no premeditated intention to cause death and the two shots were fired in quick succession, in the heat of passion, when the accused was provoked by the act of the two deceased, and such provocation was not sought by the appellant, it is a clear case where the shots were fired in the heat of the moment whilst deceased had lost the power of self control on account of grave and sudden provocation in a sudden fight upon a sudden quarrel, therefore his case would fall both in Exceptions 1 and 4 of Section 300 IPC.
21. In response to the above submission, the learned A.G.A. submitted that in so far as the first shot at D-1 is concerned, that is on or about the thigh / inguinal region whereas the second shot at D-2 is placed high on abdomen near the chest region. Thus, the accused has caused such bodily injury which he knew that it is likely to cause death. Hence, in view of clause (secondly) to section 300, it is murder. In so far as bringing the case under any of the Exceptions, no defence evidence has been led and it has not come on record that the accused suffered any injury therefore it appears just to be a case of quarrel and not sudden fight. Accordingly, Exception 4 of Section 300 would not come into play. In so far as Exception 1 is concerned, that would not be applicable because it is a case where a second shot was fired.
22. Before we take a decision on the rival submissions, on the above aspect, it would be apposite to notice few proven facts. D-1 was himself a security guard and was an ex-army personnel, as is the prosecution case. Likewise, D-2 was also a security guard though it has not come on record whether he was an ex-army personnel. Admittedly, both D-1 and D-2 were discharged by the security service which was managing the security at the University and, admittedly, at the time of the incident, the accused-appellant was on duty and had a gun in connection with his duty. According to the prosecution case, both D-1 and D-2 had gone to settle the accounts and when they had gone to the guardroom to collect their goods, the appellant, who was the guard on duty, restrained them from doing so. Nothing has been brought in the prosecution case to demonstrate that D-1 and D-2 had permission of any authority to pick up goods from the guardroom which they had shown to the accused-appellant. Further, nothing has been shown by the prosecution that the accused-appellant was aware that the goods, which D-1 and D-2 were planning to lift, were of D-1 and D-2. Under the circumstances, the appellant, being the guard, had a right to restrain them. This resulted in heated altercation between the guard on duty and the two deceased. In that heat of the moment, it appears, the deceased fired the first shot at D-1. This shot was from close range, as ascertainable from the post-mortem report which discloses blackening and presence of wad, and on the inguinal region not head/chest/ abdomen. Thus, it can be said that while firing the first shot, the appellant may not have had the requisite intention to cause such bodily injury as is likely to cause death. But the second shot fired at D-2 is above the umbilical region on or about the chest. This shot too was from close range as would be clear from presence of blackening, etc. This shot has been fired clearly with the knowledge that it is likely to cause death therefore the act of the accused-appellant would fall in clause secondly of Section 300 IPC. As, it is not shown that D-1 and D-2 were armed or had caused any bodily injury to the accused-appellant, hence those shots being in self defence so as to attract Exception 2 of Section 300 IPC is out of question.
23. Now, we shall examine whether the act of the appellant would fall under Exception 4 of Section 300 IPC.
24. Exception 4 of Section 300 IPC reads as follows:-
"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.
Explanation.- It is immaterial in such cases which party offers the provocation or commits the first assault".
25. The ingredients of Exception 4 are (i) there must be a sudden fight; (ii) there was no pre-meditation; (iii) the act was committed in heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. If the said ingredients are present, the cause of quarrel would not be material as to who offered the provocation or started the fight. Although the term fight has not been defined in IPC but the consistent view is that it implies mutual assault by use of criminal force and not mere verbal duel. In Bhagwan Munjaji Pawade v. State of Maharashtra, (1978) 3 SCC 330 (Para 6), it was observed that where the accused is armed and the deceased is unarmed, Exception 2 can have no application and Exception 4 to Section 300 would not apply if there is sudden quarrel but no sudden fight between the deceased and the accused. It was held that ''Fight' postulates a bilateral transaction in which blows are exchanged.
26. In the instant case, the defence led no evidence and from the prosecution evidence, that is the testimony of PW2, it appears that only verbal duel and altercation took place, inasmuch as though he uses the words "Vaad Vivad" and "Jhagda" but does not state that any physical blows were exchanged. Vaad Vivad in vernacular is used for dispute and in the context of the case could be taken as verbal duel. Jhagda in vernacular is used for fight. But more often than not, in vernacular, it is also used for heated altercation. As the appellant seeks to bring his case within the four corners of an exception the burden is on him to demonstrate that his act falls within that exception. No doubt, even if no defence evidence is led, the accused can demonstrate from the facts and circumstances of the case, borne out from the prosecution evidence, that his case falls within that exception. But, here, the prosecution evidence is silent with regard to exchange of blows. Hence, we are of the considered view that the act of the appellant would not fall within the four corners of Exception 4 of Section 300 IPC.
27. Now, we shall examine whether the act of the appellant can come within the purview of Exception 1 of Section 300 IPC. Exception 1 of Section 300 IPC reads thus:
"Exception 1-- When culpable homicide is not murder.-- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisos:-
First.- That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly.- That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly.- That the provocation is not given by anything done in obedience to the lawful exercise of the right of private defence.
Explanation.- Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is question of fact."
28. To seek the benefit of Exception 1, following conditions are to be satisfied: (i) there must be provocation to the accused; (ii) the provocation must be grave; (iii) the provocation must also be sudden; (iv) the provocation must have deprived the accused of his power of control; (v) the offence must have been committed during loss of self control; and (vi) the person killed must have been the person giving provocation, or another by mistake or accident. In K.M. Nanavati V. State of Maharashtra, AIR 1962 SC 605 it was held that the test of grave and sudden provocation is whether a reasonable man, belonging to the same class of society, to which the accused was placed, would be so provoked to lose his self control.
29. Applying the above tests, we find from the evidence brought on record that the accused-appellant was posted as a guard on duty in the guardroom with a gun on the date and time of the incident. The two deceased had gone to the guardroom to pick up some goods. The appellant restrained them from doing so. This resulted in altercation between the appellant and the two deceased. In that heat of the moment the appellant lifted his gun and fired two shots in quick succession. One hit D-1 on the inguinal region. The other hit D-2 above the umbilical region near the chest. Considering that the appellant was guard on duty, his primary responsibility was to restrain unlawful entry and removal of goods / property from the campus/ place which he was supposed to guard. Nothing has come in the prosecution evidence that the two deceased had permission to enter the guard room and take goods from there and if any such permission was obtained that was shown to the accused-appellant. Under the circumstances, if the appellant had restrained them from picking up the goods, he was well within his authority as a guard. Therefore, the reaction of the two deceased which constituted the provocation for the appellant to react and commit the offence was not sought or voluntarily provoked as an excuse for killing or doing harm to them. Now, the issue is whether the heated quarrel or altercation which followed could be considered as grave and sudden provocation so as to deprive the appellant of the power of self-control. In this regard, we would have to take into consideration the class of society to which the appellant belonged. Admittedly, the appellant was a guard. Ordinarily, a guard is expected to be tough and no nonsense kind of a person because without that kind of an attitude a person would not be suitable for that job. Hence, a strong reaction is expected from a guard, if a guard on duty is provoked. In the instant case, the two deceased not only tried to lift goods lying in the guardroom despite being restrained by the appellant but they also entered into altercation. Under the circumstances, keeping in mind that the two deceased were themselves ex-guards, the passions surged from both sides and, therefore, it was quite natural for the appellant to lose the power of self control, particularly, when he had the gun to exhibit his authority. Therefore, under that heat of passion or fit of rage, so to say, the appellant, who had a gun for duty, lost self-control and fired two shots in quick succession. Noticeably, it is not the prosecution case that the second shot was fired with some delay, that is when the passion had died down. Thus, both shots were fired by the appellant whilst he was deprived of the power of self control on sudden surge of emotions provoked by the two deceased who entered the guardroom and tried to lift goods despite being asked to desist from doing so and, thereafter, entered into a heated altercation with the appellant, who was the guard on duty. Hence, in our considered view, the appellant is entitled to the benefit of Exception 1 of Section 300. But since the injury caused to D-2 was such which the offender knew that it is likely to cause death, the appellant is liable to be convicted under Section 304-Part-1 IPC though not under Section 302 IPC.
30. On the question of sentence, though the maximum sentence prescribed for an offence punishable under Section 304 Part 1 is imprisonment for life but there are mitigating factors here. Firstly, the appellant was a guard on duty and, secondly, he did not act cruelly by repeating the shots or by assaulting the two deceased once they had fallen. It may also be noticed that no sooner the surge of emotions died down, the appellant neither tried to escape nor tried to reload his gun to fire another shot. All this suggests that his act was on account of sudden surge of emotions which deprived him of his power of self control and no sooner the emotions subsided he became calm, perhaps repentant of what he had done, and, therefore, could be arrested with his gun and eight live cartridges. It be noted that it is not the prosecution case that to overpower the accused-appellant any serious force had to be used. Under the circumstances, in our considered view, the ends of justice would be served if the sentence is reduced from life to 10 years of rigorous imprisonment along with fine as awarded by the court below.
31. Accordingly, the appeal is partly allowed. The conviction of the appellant under Section 302 IPC is converted to that under Section 304-Part-1 IPC. The sentence of the appellant is reduced from imprisonment for life to 10 years rigorous imprisonment. The fine of Rs.50,000/- and the default sentence of one year simple imprisonment awarded by the trial court is maintained. The appellant is in jail, he shall serve out the sentence awarded above.
32. Let a copy of this order be sent to the trial court concerned for compliance.
Order Date :- 11.11.2020 AKShukla/-