Allahabad High Court
Buchanu Rai @ Narendra vs State Of U.P. on 1 August, 2022
Bench: Kaushal Jayendra Thaker, Ajai Tyagi
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 44 Case :- CRIMINAL APPEAL No. - 2367 of 2013 Appellant :- Buchanu Rai @ Narendra Respondent :- State of U.P. Counsel for Appellant :- I.K. Chaturvedi,Amit Kumar Rai,Mohd Imran Khan,Vikram D. Chauhan Counsel for Respondent :- Govt. Advocate and Case :- CRIMINAL APPEAL No. - 2462 of 2013 Appellant :- Subhash Maurya Respondent :- State of U.P. Counsel for Appellant :- Mohd. Naushad Siddiqui,Bipin Kumar,Mohd Imran Khan,Pushkar Srivastava,Satya Dheer Singh Jadaun Counsel for Respondent :- Govt. Advocate Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Ajai Tyagi,J.
(1) As both these appeals arise out of a common judgment and order dated 15.5.2013, are being disposed of by this common order.
(2) These appeals have been preferred against the judgment and order dated 15.5.2013, passed by the learned Sessions Judge, Chandauli, in Session Trail No.84 of 2006 (State of UP vs. Subhash Maurya and another) arising out of Case Crime No.96 of 2004, under Section 302/34 IPC, Police Station Dhina, District Chandauli, whereby the accused-appellants were convicted and sentenced for the offence under Section 302/34 IPC for life imprisonment with a fine of Rs.10,000/- and in default of payment of fine, further imprisonment for four months rigorous imprisonment and in Session Trial No.83 of 2006 arising out of Case Crime No.103 of 2004, under Section 25/27 Arms Act, Police Station Dhina, District Chandauli, whereby the accused Subhash Maurya was convicted and sentenced for the offence under Section 25/27 Arms Act for three years rigorous imprisonment with a fine of Rs.5,000/- and in default of payment of fine, further imprisonment for two months rigorous imprisonment.
(3) The first information report was lodged at Police Station Dhina, District Chandauli by the informant, namely, Sadafal with the averments that his elder brother Ram Bhuwan had purchased some cement and steel on credit from the Shop of Subhash Maurya before 16 months of the occurrence. He could not repay the aforesaid money due to financial conditions, due to that reason, there was enmity between them. On 08.11.2004 at about 10 P.M., Subhash Maurya and Buchanu Rai came to the house of Ram Bhuwan and demanded the aforesaid money. Ram Bhuwan and his brother Tribhuwan showed their showed their inability to repay the money because they were not having money at home. On this, Subhash Maurya, Buchanu Rai and their companion opened 3-4 fires towards his brother Tribhuwan out of sudden provocation. Tribhuwan was critically injured and all the aforesaid persons fled away.
(4) After registration of case, investigation was taken by the Investigating Officer who recorded the statements of witnesses and prepared site plan. The inquest report of the body of deceased was prepared and post-mortem was conducted thereafter. After completion of investigation, chargesheet was submitted against the accused-appellant Subhash Maurya and Buchanu Rai @ Narendra under Section 302 IPC. During the course of investigation, a countrymade pistol of 315 bore and empty cartridges were recovered on 04.12.2000 on the pointing out of the accused Subhash Maurya and another case was registered under Section 25/27 of the Arms Act in which chargesheet was submitted against Subhash Maurya after completion of investigation.
(5) The case was triable exclusively by the Court of Sessions, hence it was committed by the learned Magistrate to the Court of Sessions where, the learned Sessions Judge framed charges against Subhash Maurya and Buchanu Rai under Section 302 IPC read with Section 34 of IPC and additional charges under Section 25/27 of Arms Act was also framed against the accused Subhash Maurya. Both the accused denied the charges and claimed to be tried.
(6) To bring home the charges, following witnesses were examined by the prosecution:
1Sada Bhawan PW1
2. Ram Bhuwan PW2
3. Sonia PW3
4. Ram Narayan PW4
5. Ramnagina Ram PW5
6. Dr. V.K. Srivastava PW6
7. Const. Hardev Pandey PW7
8. S.I. K.K. Dwivedi PW8
9. Shivdhari Yadav PW9 (7) Apart from oral evidence, following documentary evidence were produced by prosecution and proved by leading the evidence:
1.
Written Report Ex. Ka1
2. FIR Ex. Ka8
3. Copy of G.D. Ex. Ka9
4. Inquest Report Ex. Ka2
5. Postmortem report Ex. Ka7
6. Site-plan Ex. Ka10
7. Recovery-memo of R/M Ex. Ka11
8. Site-plan of recovery of weapon Ex. Ka4
9. Charge-sheet u/s 302 IPC Ex. Ka15
10. Charge-sheet u/s 25/27 Arms Act Ex. Ka16
11. Site-plan of recovery of weapon Ex. Ka17 (8) The evidence against the accused persons was put to them under Section 313 Cr.P.C. in which they had stated that false evidence was led against them and false implication due to enmity was also stated. No witness was examined by the accused persons in defence.
(9) Heard Mr. Imran Khan, learned counsel for both the appellants and Mr. Akhilesh Kumar Tripathi, learned counsel appearing on behalf of the State.
(10) Both the accused faced the trial for conviction of offence under Section 302 IPC which had reason because during the treatment, the deceased breath the last. The custody of the accused is since 27.11.2004 to 10.02.2005, thereafter Subhash Maurya released on bail and when the trial ended and culminated into conviction, the accused, namely, Subhash Maurya and Buchanu Rai taken into custody on 15.05.2013. Till date, they are in jail. We have got the jail report up to 01.05,2022. It is clear that still they are in jail and not bailed out.
(11) Learned counsel for the appellants has submitted that while going through the FIR, it has submitted that the incident was not premeditated. It has submitted that the name of Buchanu Rai has been subsequently mentioned in the FIR. There is nothing against him. It was the money of Subhash Maurya which had to be repaid. Learned counsel for the appellants also submitted that there was no motive that the appellants to commit the crime like murder because as per the statement of prosecution witnesses, there was only issue of small amount i.e. Rs.40-50 and no one will commit murder on account of such a small amount. Learned counsel next submitted that as per the prosecution story, appellant Subhash Maurya was having enmity with Ram Bhuwan. In the said occurrence Ram Bhuwan has not sustained any injuries while he was also said to be present at the place of occurrence. Learned counsel also submitted that there is no evidence on record that the pellets which make entry wounds in the body of the deceased were fired from the countrymade pistol which is said to be recovered on the pointing out of the appellant Subhash Maurya. Hence, he cannot be connected with the crime.
(12) Alternatively, it is further submitted by learned counsel for the appellants that if prosecution case is believed even then the offence of the appellants does not travel beyond the scope of Section 304 IPC because the act was not premeditated and as per the prosecution case itself, the appellants had gone to the house of the deceased to take their own money which owed to the deceased.
(13) Learned AGA vehemently opposed the arguments placed by the appellants and submitted that eye witnesses P.W.-1, 2, 3 and 4 have supported the prosecution case. There is no material contradictions in their statements which can go to the root of the case. It is further submitted that in post-mortem, ante-mortem injuries show that there were four entry wounds in the body of the deceased, hence the medical offence also corroborates the testimony of the eye-witnesses. Learned AGA also submitted that the weapon used in the crime was recovered at the pointing out of the accused Subhash Maurya and the discovery under Section 27 of the Indian Evidence Act has been proved by the witnesses. Hence, there is no illegality or infirmity in the impugned judgment and it does not call for interference by this Court.
(14) Learned counsel has prayed for consideration of the evidence in this case from the point of view that which offence is committed by the appellants. Learned counsel has submitted that if the prosecution case is to be believed even then the offence does not go beyond the scope of Section 304 of IPC because it was not a pre-meditated act and no one can commit murder on small issue of demanding back a small amount of money.
(15) The role which has been assigned to the accused Subhash Maurya and Buchanu Rai, has been proved by the witnesses of fact. Section 27 of the Evidence Act reads as follows:-
"27. How much of information received from accused may be proved.-- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
(16) The evidence of the witnesses corroborate the presence of the accused. The witnesses have testified to the effect that it was Subhash Maurya to whom the deceased owned money and the deceased did not pay the money and thereafter this incident occurred. We are satisfied that this finding of fact cannot be disturbed.
(17) The alternative prayer is that this case should fall within Section 304 Part I of IPC.
(18) The finding of fact regarding the presence of witnesses at the place of occurrence cannot be faulted with. Death of deceased was a homicidal death. The fact that it was a homicidal death takes this Court to most vexed question whether it would fall within the four-corners of murder or culpable homicide not amounting to murder. Therefore, we are considering the question whether it would be a murder or culpable homicide not amounting to murder and punishable under Section 304 IPC. Accused is in jail for the last more than 14 years.
(19) In State of Uttar Pradesh vs. Mohd. Iqram and another, [(2011) 8 SCC 80], the Apex Court has made the following observations in paragraph 26, therein:
"26. Once the prosecution has brought home the evidence of the presence of the accused at the scene of the crime, then the onus stood shifted on the defence to have brought-forth suggestions as to what could have brought them to the spot in the dead of night. The accused were apprehended and, therefore, they were under an obligation to rebut this burden discharged by the prosecution and having failed to do so, the trial-court was justified in recording its findings on this issue. The High Court committed an error by concluding that the prosecution had failed to discharge its burden. Thus, the judgment proceeds on a surmise that renders it unsustainable."
(20) Considering the evidence of these witnesses and also considering the medical evidence including postmortem report, there is no doubt left in our mind about the guilt of the present appellants. However, the question which falls for our consideration is whether on reappraisal of the peculiar facts and circumstances of the case, the conviction of the appellant under Section 302 IPC should be upheld or the conviction deserves to be converted under Section 304 (Part-I) or (Part-II) of the Indian Penal Code. It would be relevant to refer Section 299 of the Indian Penal Code, which reads 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."
(21) The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300 IPC. 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 is 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.
(22) In the case in hand, the doctor, conducting the postmortem, is examined as P.W.6, namely, Dr. V.K. Srivastava. According to postmortem report, the deceased sustained following ante-mortem injuries:-
(1) entry wound of fire arm 1 c.m. X .5 c.m. skin deep in front side of left ear. Blackening and tattooing was present in the area of 1.5 c.m.
(2) Entry wound of fire arm 0.5 c.m. bone deep on left shoulder, blackening was present on the area of 2 c.m.
(3) Exist wound of fire arm 1.5 c.m. x ½ c.m. on the back of left shoulder.
(4) Entry wound of fire arm 0.5 c.m. x cavity deep on the back of left side of chest.
(5) entry wound of fire arm 0.5 c.m. x cavity deep on right chest 10 c.m. below the right nipple.
(6) L.W. 2 c.m. x ½ c.m. skin deep on the right side of head above 10 c.m. of ear.
(23) Aforesaid ante-mortem injuries go to show that the fire arm injuries sustained on the chest perhaps mainly the cause of death because this is the only injury which was on the vital part of the body. Moreover the informant himself states in the FIR that when the deceased showed his inability to repay the amount then out of sudden provocation, fires were opened towards the deceased. Hence, it is case of prosecution that the assailants/appellants did not go to the house of the deceased for any pre-meditation. The deceased could not pay the money which he owed to the appellant Subhash Maurya then out of anger and sudden provocation, the aforesaid offence was committed by the appellants.
(24) On the basis of aforesaid discussions, we have reached to the conclusion that although the appellants had no intention to do away with the deceased but they intentionally caused such bodily injuries which were likely to the cause the death. Hence, the alternative prayer on behalf of the appellants is accepted.
(25) From the upshot of the aforesaid discussions it appears that the death caused by the accused persons was not pre-meditated. Hence the instant case falls under the exceptions (1) and (4) to Section 300 of IPC. While considering Section 299 IPC, offence committed will fall under Section 304 (Part-I) IPC.
(26) The alternative prayer made by Mr. Imran Khan, learned counsel for the appellants is accepted. The accused are held guilty under Section 304 Part I of IPC. Ten years would be sufficient incarceration with fine Rs.5,000/- and three months imprisonment in case of default of fine under Section 304 (Part I) of IPC. The punishment under the Arms Act would have already been over and after that the default sentence has been over and the accused need not to pay fine Rs.5,000/-. As per the case of the accused under Section 304 (Part I) IPC is concerned, the default sentence would start after ten years of incarceration that includes remission and the period within they were under trial, will also be considered. The fine be deposited within four weeks from their release. If not deposited, the accused will be lodged back to the jail to complete their sentence.
(27) These appeals are partly allowed as modified above.
(28) The record and proceedings be sent back to the lower court.
(Ajai Tyagi, J.) ( Dr. Kaushal Jayendra Thaker, J.)
Order Date :- 1.8.2022
Vivek Kr.