Allahabad High Court
Hansraj Singh vs State Of U.P. on 23 February, 2021
Equivalent citations: AIRONLINE 2021 ALL 243
Bench: Kaushal Jayendra Thaker, Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 49 Case :- CRIMINAL APPEAL No. - 2278 of 2015 Appellant :- Hansraj Singh Respondent :- State of U.P. Counsel for Appellant :- Ajay Pandey,Vindeshwari Prasad Counsel for Respondent :- Govt.Advocate Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Gautam Chowdhary,J.
1. Heard Shri Vindeshwari Prasad, learned counsel for the appellant and learned A.G.A. for the State.
2. This appeal, arises out of judgment and order dated 13.04.2015 passed by court of Additional Sessions Judge, Kaushambi, in Sessions Trial No. 218 of 2008, (State Vs. Hansraj Singh) arising out of Case Crime No. 181 of 2008, under Sections 302, 307 I.P.C., Police Station- Sarai Akil, District- Kaushambi, whereby the accused has been convicted for life imprisonment for commission of offence under section 302 I.P.C. with fine of Rs.10,000/- and for seven years for commission of offence under section 307 I.P.C. with fine of Rs.5,000/- and further period of 6 months additional imprisonment in default payment of fine.
3. The F.I.R. shows that deceased who was the wife of the appellant was in the matrimonial home; when her dead body was found and the accused Hansraj was found running from his house at night and on his way he injured Shiv Singh with the intention to cause his death. The F.I.R. was lodged on 15.5.2008. The informant of the incident is one Shiv Karan Singh who heard the sound of shouting and when he looked at Hansraj's house he saw his cousins Vinod Singh and Yogendra Singh and other people running towards Hansraj's house. The accused was seen running out from his house with a dagger in his hand and her wife Rannodevi was found lying dead on the floor. On his way running through the field Hansraj also assaulted at his uncle Shiv Singh. The accused Hansraj had distrust on the character of his wife with one Vinod Singh who happens to be his cousin brother and for this reason the accused Hansraj committed the alleged offence. After occurrence of the said incident the police started investigation and led the charge-sheet.
4. The trial was to be conducted by the court of Sessions as it was Sessions triable case, hence the case was committed to the court of sessions.
5. The accused was charged on 29.07.2009 and alternative charge was framed on 02.12.2009 by the learned Additional Sessions Judge. The accused pleaded not guilty and claimed to be tried. The prosecution examined the following witnesses :-
1.
Shiv Karan Singh P.W.1
2. Shiv Singh P.W.2
3. Yogendra Singh P.W.3
4. Gulab Singh P.W.4
5. Vinod Singh P.W.5
6. Dr. S.M. Ahmad P.W.6
7. Imamuddin P.W.7
8. Ranjana Sachan P.W.8
9. Dr. Ashutosh Pandey P.W.9
10. Lavkush Singh P.W.10
11. Surendra Bahadur Singh P.W.11
12. Dr. Vibha Kumari P.W.12
6. In order to substantiate the oral testimony of the witnesses and their medical evidence, documentary evidence were also produced which are as follows :-
1.
Written report Ext. Ka-1
2. F.I.R.
Ext. Ka-2
3. P.M. Report Ext. Ka-3
4. Site Plan with Index of deceased Ext. Ka-4
5. Site Plan with Index of 2nd incidence Ext. Ka-5
6. Recovery memo of blood stained and plain earth Ext. Ka-6
7. Recovery memo of blood stained and plain earth Ext. Ka-7
8. Recovery memo of pieces of quilt Ext. Ka-8
9. Recovery memo of pieces of ''Kathari' and cover of pillow Ext. Ka-9
10. Recovery memo of shirt and arrest of accused Ext. Ka-10
11. X-Ray report Ext. Ka-11
12. Charge-sheet mool Ext. Ka-12
13. Paper no.13ग/12 Ext. Ka-13
14. Panchayatnama Ext. Ka-14
7. The learned counsel for the appellant has contended that he has been convicted because of the inculpatory statement made by him and because the knife alleged to be instrument of offence was recovered at his behest. It is submitted that the learned judge has materially added in relying on the judgment of Sharad Birdi Chandra Sharda Vs. State of Maharashtra 1984 SCC (Crl) 487 and on Padala Veerareddy Vs. State of Andhra Pradesh AIR 1990 SC 79 in convicting the accused for commission of offence.
8. Learned counsel for the appellant submits that P.W.4 has turned hostile. P.W.1 has partly supported the case of the prosecution as far as second incidence is concerned. The theory of dacoits has been not believed by the learned trial judge is the submission of the counsel for the State. The counsel for the State has heavily relied on provisions of section 106 read with 114 of the Indian Evidence Act and has contended that P.W.1 and P.W.2 have testified. P.W.2 did see the accused. It is submitted by counsel for the State that P.W.8 saw the accused and the reliance of the learned judge in Amit Singh Bheekam Singh Thakur Vs. State of Maharashtra 2007 (1) ACR 543 (SC) we should concur with the said finding.
9. It is submitted by learned counsel for the appellant that it is very clear from the injuries and the statement of P.W.1 in the F.I.R. that they heard commotion in the house of accused and it is very clear that due to this commotion caused by dacoits they might have injured his wife and out of fear the accused ran away from the house. The inculpatory statement under section 27 of the Evidence Act which has been believed by the learned judge, could not and are not to be acted on but here is a reverse case and in the alternative it is submitted that entire statement be lead where he confesses that out of anger he committed this act and the injuries also go to show that and the evidence of P.W.1 and P.W.8 should satisfy us that this is a case of 304 (1) I.P.C. and not of 302 I.P.C. code.
10. Learned counsel for the appellant has further contended that if this Court feels that the case is made out against the accused and they are not to be accorded benefit of doubt, he presses into service the provisions of Section 304 of I.P.C. According to learned counsel, the learned Judge could not have framed fresh charge.
11. The following judgments of the Supreme Court are heavily relied by the learned counsel for the appellant so as to contend that offence under Section 302 I.P.C. is not made out :
(i) Palvinder Kaur Vs. State of Punjab, 1952 AIR 354
(ii) Aghnoo Nagisia Vs. State of Bihar, 1966 AIR 119
12. The police authorities who were thereafter examined as ocular version stated that they had taken the statement of the witnesses and testified the statements made by them during investigation. The accused was put to test as per section 313 Cr.P.C. and his statements was recorded.
13. It is further submitted by learned counsel for the appellant that the evidence was very scanty and oral testimony on the record of the trial Judge was not so on which conviction could be returned under Section 302 I.P.C., but it appears that the learned Judge has convicted the accused on the basis of his own ideology and on the basis of the testimony of hostile witnesses.
14. It is submitted that this is a case of no evidence as far as conviction under section 302 I.P.C. is concerned, however, the accused is in jail for more than ten years. The learned Judge had relied testimony which could not have been made the basis for conviction in fact the conviction of the accused should not have been recorded, but as the learned counsel for the appellant has submitted that it is not a case where conviction under Section 302 I.P.C. could be recorded but case for lesser sentence.
15. Learned A.G.A. has submitted that :-
P.W.1- P.W.1 saw the accused come out of his own house with dagger (कटार). The deceased Rannodevi was lying in pool of blood. He on way injured Shiv Singh in filed. He ran away on eastern side. He has proved the F.I.R. In cross :-
He was at his home when incidence occurred. He has not seen accused beating or injuring or murdering the deceased. He woke up from sleep on hearing noise and yelling of people. Neither he nor those name in F.I.R. saw how the first incidence occurred. He did not see who injured his uncle Shiv Singh as it was dark. The incidence is of about 10 to 11 at night. He and his uncle (injured) had after consultation lodged the F.I.R.
P.W.2 He was sleeping in his field, when Hansraj came with dagger and injured him. The accused had given three blows to the injured. Other villagers informed him that accused had first done his wife to death and then was running away. Accused was inimical towards the son of the injured and injured had time and again scolded him (accused).
In Cross :-
There was no electricity at 11:00 pm in the fields. He was fast asleep and so could not say from which side the accused came, injured him and ran away. He had not seen the person who assaulted him.
P.W.3 On hearing people crying and screaming he came to the house of Hansraj, he saw people going in the house of Hansraj, he testifies that he saw Hansraj running with dagger. People chased the accused. He was sleeping with his uncle in the field and saw Hansraj attacking his uncle who got injured.
In Cross :- No light in the village. He had taken his dinner by 8:00 pm and had gone to sleep. He has admitted that he has not seen Hansraj attacking his wife or injuring Shiv Singh (injured) P.W.4 P.W.4 has turned hostile but has in his chief stated about the fact that Ranno Devi has murdered. He came to know about the incidence when he heard screaming and commotion. He has not seen accused beating or injuring deceased or injured. He had given 161 statement as per section 161 Cr.P.C code but was not the one shown to him.
P.W.5 P.W.5 saw Ranno Devi in pool of blood in the dwelling house of accused. He saw Hansraj running with dagger. He had seen Hansraj running away. He has not seen incidence of causing death of deceased.
P.W.6 P.W.6 is the doctor who has treated the injured can't testify with what kind of weapon the injuries were caused.
P.W.7 P.W.7, the police officer who recorded G.D. entry some overwriting on figure 3 of 307 I.P.C.
P.W.8 P.W.8, the investigating officer. He has written the case diary.
P.W.9 P.W.9, the doctor who has performed the post-mortem. The post- mortem report shows the following injuries:-
(i) incised wound 28 cm x 3 cm present on left side of neck including right side of mendis . 4 cm below the left ear and 6 cm below the right ear, bone deep.
(ii) incised wound 5cm x 1 cm present on left palm into muscle deep.
(iii) incised wound 6cm x 1 cm present on right hand fingers into muscle deep.
From this evidence it is clear that theory of dacoits infiltrating the house of the accused and killing his wife belies the evidence on record. The injuries go to show that it was not a premeditated gruesome murder but was a homicidal death caused by whom will have to be decided. We do no go through the further testimony the reason being it is homicidal death as the death occurred due to injuries which was by a sharp edged instrument. No injuries on head, thorax, trachea all normal.
Cause of death- loss of blood due to injures was by a sharp edged instrument. No injuries except neck and hands (palms and fingers) P.W.10 P.W.10 saw dead body not in the house but outside. He is resident of the village. He reached after the Panchayatnama was written. P.W.11 P.W.11, the doctor who X-rayed the injuries of Shiv Singh.
D.W.1 /D.W.2 Nothing turns on their evidence as they have not seen the incidence.
Section 114 of the Indian Evidence Act will come to the aid of prosecution as accused was seen running from his house with dagger by P.W.1, P.W.2, P.W.3, P.W.5. P.W.4 has seen the dead body in house of accused and theory of dacoits is rightly not believed by learned trial judge.
16. While going through the factual data it is clear that the deceased died out of homicidal death. The accused had pointed out the dagger but this would be hit by the provisions of section 27 of the Evidence Act. It is submitted by the counsel for the appellant that the provisions of section 27 of the Evidence Act which has been invoked by the State and on which reliance is placed by the learned judge must be read in totality for which he has relied on Aghnoo Nagisia Vs. State of Bihar, 1966 AIR 119 :
ACT:
Indian Evidence Act (1 of 1872), s. 25-Ban an confession made to a police officer-Confessional F.I.R. by accused-Ban whether applies to while statement or only those part showing actual commission of crime.
HEADNOTE:
The appellant was tried for murder. The principal evidence against him consisted of a first information report containing a full confession of the crime. The appellant was convicted under s. 302 Indian Penal Code by the trial court and the High Court upheld the conviction, By special leave he appealed to the Supreme Court. The question before the court was whether the whole confessional statement in the first information report was banned by s. 25 of the Evidence Act or only those portions of it were barred which related to the actual commission of the crime.
and has contended that even his statement under 27 of the Evidence Act he has mentioned "तैश में आके मैंने ये कदम लिया है" which means that there was no premeditation but under sudden grave provocation the act was submitted, therefore we will have to look into the fact whether the offence if any is made out or not.
17. While penning this judgment, this Court has come across the judgment passed by this Court in the case of Santosh Vs. State of U.P. decided on 22.02.2021 in Criminal Appeal No.5657 of 2011 and the Apex Court in the case of Special Leave to Petition (Crl.) No.1156 of 2021, State of Orissa Vs. Banabihari Mohapatra (Coram: Hon'ble Mrs. Justice Indira Banerjee and Hon'ble Mr. Justice Hemant Gupta), reported in Live Law 2021 SC 103 wherein the Apex Court has held as under:
"It is well settled by plethora of judicial pronouncements by this Court that suspicion, however strong cannot take the place of proof. An accused is presumed to be innocent unless proved guilty beyond reasonable doubt"
18. This takes us to the issue of whether the offence would be punishable under Section 299 I.P.C. or Section 304 I.P.C.
19. Considering the evidence of the witnesses and also considering the medical evidence including post mortem report, there is no doubt left in our mind about the guilt of the present appellant and admission on part of accused. 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 of the Indian Penal Code 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 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.
20. 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 Section 299 I.P.C. and Section 300 I.P.C. The following comparative table will be helpful in appreciating the points of distinction between the two offences. Section 299 I.P.C.
Section 300 I.P.C.
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.
21. The accused is the husband of the deceased, he is in jail for a period of more than 13 years. It is a matter of fact as it transpires from the F.I.R. and as we have held that it is homicidal death but not murder. We hold the accused guilty for Section 304 of I.P.C. read with Section 34 I.P.C. but not with 302 I.P.C. read with Section 34 I.P.C. The punishment is reduced to seven years incarceration, the fine of Rs.10,000/- is reduced to Rs.5,000/- as the medical evidence as well as the evidence of hostile witnesses permit us to substitute, we are of the confirmed opinion that the punishment of seven years with fine reduced to Rs.5,000/- if the fine is not paid, the sentence would be default sentence of three months.
22. While going through the record, we are convinced that the accused husband had no intention of doing away of his wife but in hit of the moment the incident has occurred. Learned Judge instead of writing philosophy, if he did not think it was a case of acquittal could have punished under Section 304 part I or II of I.P.C. which was attracted in the facts of this case.
2. Record and proceedings be sent back to the trial court.
Order Date :- 23.02.2021 shiv