Allahabad High Court
Narendra And Another vs State Of U.P. on 15 May, 2023
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:104133-DB A.F.R. Court No. - 44 Case :- CRIMINAL APPEAL No. - 6870 of 2007 Appellant :- Narendra And Another Respondent :- State of U.P. Counsel for Appellant :- R.K. Sharma,Anoop Trivedi,Awadh Shama,D.N. Wali,Dhiresh Kumar,Lav Srivastava,Noor Mohammad,Shivakant,Sucheta Pathak,Sudeep Kumar Pathak,V C Mishra Counsel for Respondent :- Govt. Advocate,Ashok Kumar Pandey,Murlidhar,Rahul Raghav,S.P.S.Raghav With Case :- CRIMINAL APPEAL No. - 6869 of 2007 Appellant :- Raghunath And Others Respondent :- State of U.P. Counsel for Appellant :- R.K. Sharma,Awadh Sharma,Sucheta Pathak,Vivek Kumar Tiwari Counsel for Respondent :- Govt. Advocate,Ashok Kumar Pandey,Manoj Vashisth,Murlidhar Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Shiv Shanker Prasad,J.
(Per-Hon. Shiv Shanker Prasad, J.)
1. These two criminal appeals have been preferred by the accused-appellants-Raghnath, Satendra, Pappan, Narendra and Pappi challenging the judgment and order dated 25th September, 2007 passed by the Special Judge (E.C. Act), Meerut in Sessions Trial No. 862 of 2002 (State Vs. Narendra & Others), arising out of Case Crime No. 135 of 2002, under Sections 147, 148, 307, 302 and 506 I.P.C., Police Station-Jani, District-Meerut, whereby the accused-appellants, namely, Narendra and Pappi have been convicted under Sections 302, 147, 148 and 149 I.P.C., whereas accused-appellants, namely, Raghunath, Satendra and Pappan have been convicted under Sections 307, 147, 148, 149 I.P.C. and sentenced (i) the accused-appellants, namely, Narendra and Pappi to undergo life imprisonment under Section 302 read with Section 149 I.P.C. with fine of Rs. 10,000/ and further to undergo one year rigorous imprisonment under Sections 147 and 148 I.P.C.; (ii) accused-appellants namely, Raghunath, Satendra and Pappan to undergo seven years rigorous imprisonment under Sections 307 read with Section 149 I.P.C. with fine of Rs.5,000/- and further to undergo one year rigorous imprisonment under Sections 147 and 148 I.P.C. with an observations that all sentences were to run concurrently and in default of payment of fine, all the accused-appellants are to further undergo one months additional imprisonment.
2. We have heard Mr. Noor Mohammad and Mr. Irshad Mohammad, learned counsel for the accused-appellants and Mr. N.K. Srivastava, learned A.G.A. for the State as also perused the material available on record.
3. Since the basic facts and legal question of issues are same in both these appeals, they have been clubbed and heard together and are being decided by means of this common judgment treating the Criminal Appeal No. 6870 of 2007 (Narendra & Another VS. State of U.P.) to be the leading case.
4. Records of the present criminal appeals reveal that on the written report (Exhibit-ka/4) dated 18th May, 2002 of the informant-P.W.-4, namely, Krishna Pal Singh, a first information report ( Exhibit-ka/9) was registered as Case Crime No. 135 of 2002 under Sections 147, 148, 307, 302 and 506 I.P.C. on 18th May, 2002 at 12:30 p.m. against five accused persons, namely, Narendra @ Kallan, Satendra @ Billu, Pappi, Raghunath and Pappan alleging therein that his brothers Ravindra Kumar and Vinod went to their field on tractor at about 6:00 am. in the morning as it was their turn for irrigation. However, when they arrived at their field, they saw that Narendra @ Kallan, Satendra @ Billu, Pappi, Raghunath and Pappan resident of village Bafar, P.S.Jani, District Meerut, were already watering their field. Ravindra asked the accused=-appellants to give water because it was his turn on which all accused persons got annoyed and exhorted to finish him as he often disputed for water for the purpose of irrigating his field. The accused-appellants Narendra @ Kallan and Pappi hit the neck of Ravindra Kumar with spades resulting into his instant death. The accused-appellants Raghunath and Satendra caught hold of another brother of the informant, namely, Vinod and the accused-appellant Pappan inflicted one spade injury on the neck of Vinod. This incident was seen by Sheeshpal and Brijpal, who were working on their fields along with other people, who were coming and going from there. This incident took place on 18/5/2002 at about 11:30 a.m.. The dead body of brother of the informant, namely, Ravindra was lying on the spot.
5. After lodging of the said first information report, the inquest (panchayatnama) (Exhibit-Ka/2) of the deceased Ravindra was conducted by P.W.-5 Sub-Inspector Sanjeev Singh Rathaur. In the opinion of the Panch (Inquest) witnesses, the death of the deceased was on account of injuries caused to the deceased on his body. Thereafter the dead body of the deceased was sealed and sent to Mortuary for post-mortem.
6. Dr. Ashok Kumar Dua (P.W.-1) conducted the post-mortem of the dead body of the deceased Ravindra on 19th May, 2002 at 02:30 p.m. and his report is on record as Exhibit-Ka-1 as per which the death of deceased was due to shock and hemorrhage as a result of following ante-mortem injuries:
"1. Incised wound 4 cm x 1 cm x muscle deep on front of left side of neck 2 cm above left clavicle.
2. Incised wound 5 cm x 2 cm x bone deep on the back of neck 4th cervical vertebrae cut spinal cord lacerated."
7. Dr. Raj Kumar (P.W.-6) has conducted the medical examination of injured Vinod Kumar (P.W.-2) on 18th May, 2002 at 06:20 p.m. P.W.-6 has found following injuries on the persons of P.W.-2:
"1.Incised wound 6.0 cm x 0.7 cm x muscle on back of left side chest 6.5 cm behind and below of left ear lobule updown.
2. Abrasion 1.2 cm x 0.2 cm on right side neck, middle part.
3. Reddish contusion 2 cm x 1 cm on back of left side abdomen.
4. Complaint of pain in right side chest.
5. Complaint of pain in right upper arm."
In medical examination report of P.W.-2, P.W.6 has opined that the injuries are fresh and simple in nature and injury no.1 was caused by sharp edged object, injury no.2 by friction and injury no.3 by blunt and hard object.
8. Investigation proceeded and P.W.-8/Investigating Officer, namely, Sub-Inspector R.N. Singh Yadav has recorded the statements of eye witness Sheeshpal and informant Krishna Pal Singh (P.W.-4). He inspected the place of occurrence along with the informant, he also prepared the site plan which was marked as Exhibit-ka-11 and again recorded the statements of the witnesses at the place of occurrence. He also collected the blood stained earth and plain earth and prepared recovery memo of them, whereafter upon conclusion of statutory investigation under Chapter XII Cr.P.C., charge-sheet came to be submitted against the accused appellants, namely, Raghunath, Satendra, Narendra, Pappi and Pappan under Sections 147, 148, 307, 302 and 506 I.P.C. by the Investigating Officer on 26th May, 2002.
9. On submission of charge-sheet, the concerned Magistrate took cognizance in the matter and committed the case to the Court of Sessions by whom the case was to be tried. On 13th September, 2002, the concerned Court framed charges under Sections 147, 307, 149 I.P.C. against the accused Raghunath and Satendra; under Sections 148, 302, 149 I.P.C. against the accused Narendra and Pappi; under Sections 148, 307, 302/149 I.P.C. against the accused Pappan. On 29th May, 2003, the concerned Court framed supplementary charges, under Sections 147, 307, 149 I.P.C. against the accused Narendra and Pappi; and under Sections 148, 302/149 I.P.C. against the accused Raghnath and Satendra and under Section 147 I.P.C. against the accused Pappan.
10. The charges were read out and explained in Hindi to the accused-appellant, who denied the accusation and demanded trial.
11. The prosecution in order to establish the charges levelled against the accused-appellant has relied upon following documentary evidence, which were duly proved and consequently marked as Exhibits:
"Exhibit-ka/1- Post Mortem report of deceased Ravindra Kumar;
Exhibit-ka/2- Panchayatnam of the body of deceased Ravindra Kumar;
Exhibit-ka/3 - Opinion of inquest witnesses qua deceased Ravindra Kumar;
Exhibit-ka/4 -Written Report given by the informant/P.W.4 Krishna Pal Singh;
Exhibit-ka/4A-Photo Lash;
Exhibit-ka/5- Police Form No. 13;
Exhibit-ka/6- Letter of Sanjiv Singh Rathor, S.I.P, S, Jani, address to R.I.Police Lines, for conducting Post-mortem of deceased; Exhibit-ka/7-letter to Chief Medical Superintenent of P.L. Sharma Hospital, Meerut;
Exhibit-ka/8- Injury report of Vinod Kumar (P.W.-2);
Exhibit-ka/9- Chik FIR;
Exhibit-ka/10- copy of G.D. of P. S. Jani dt. 18/5/02;
Exhibit-ka/11- Site plan of place of the incident;
Exhibit-ka/12- Recovery memo regarding blood stained earth and plain earth;
Exhibit-ka/13-Recovery memo of spade;
Exhibit-ka/14-Site plan regarding recovery of Spade; and Exhibit-ka/16-Charge sheet."
12. The prosecution has also adduced oral testimony of following witnesses:-
"P.W.1- Dr. Ashok Kumar Dua, who conducted the post-mortem of the body of the deceased Ravindra Kumar; P.W.2 Vinod Kumar, brother of the informant/P.W.4 and deceased Ravindra Kumar, who claimed to be an injured and eyewitness of the incident; P.W.3- Brijpal, who claims to be independent eye-witness of the incident;
P.W.4-Krishnapal Singh, informant, who happens to be the brother of the deceased Ravindra and injured Vinod Kumar (P.W.-2); P.W.-5- Sub-Inspector Sanjeev Singh Rathor, who prepared the inquest (panchayatnama) of the deceased Ravindra Kumar; P.W.6- Dr. Raj Kumar, who medically examined the injured Vinod Kumar (P.W.-2);
P.W.7 Constable-1198 Ranvir Singh, who prepared the chik FIR and proved the same; and P.W.8 Sub-Inspector R.N. Singh Yadav, who has conducted the investigation and submitted the charge-sheet."
13. After recording of the prosecution evidence, the incriminating evidence were put to the accused for recording his statement under section 313 Cr.PC. In their statements recorded U/s 313 Cr.P.C. the accused-appellants denied his involvement in the crime. Accused appellants specifically stated before the trial court that they have been falsely implicated in this case. They further stated that the present criminal case was instituted due to enmity between them. False report has been lodged and false charge sheet has been submitted against them. The alleged injured Vinod Kumar (P.W.-2) being the elder brother of deceased Ravindra, also is giving false evidence against them. Accused Raghunath has stated in his statement that he has purchased the land of Shodan son of Solhu and Vijalpal, who is the brother of Brijpal (P.W.-3). The informant Krishnapal Singh (P.W.-4) wanted to purchase the said land, due to which he harboured enmity. The informant (P.W.-4) has purchased the land of Brijpal (P.W.-3), which is adjacent to the land of accused persons but there is no road (Rasta). The complainant/informant wanted road (Rasta) through the said land but the same is chak road of accused persons which they had refused to give due to which the informant/P.W.-4 harboured enmity. They have developed a false case of watering the field on account of which a quarrel had taken place. It is further stated that the drain is private drain of the accused persons and there is no turn on this drain. The deceased Ravindra was of criminal nature. He was involved in several heinous offences like murder etc. He was fond of gambling and he had several other companions. He often used to enter into scuffle with his family members and he used to assault his wife also. P.W.-2 Vinod and the deceased Ravindra entered into conflict on the relevant date and both attacked on each other and incidently Ravindra had died in that attack. The informant/P.W.-1 Krishna Pal Singh is a teacher by profession. He has lodged false report against accused persons for the purposes of saving his own brother Vinod Kumar. The defence did not examine any witness from its side.
14. On the basis of above evidence adduced during the course of trial, the court below has found the accused-appellants, namely, Narendra and Pappi guilty under Sections 302, 147, 148 and 149 I.P.C., whereas accused-appellants, namely, Raghunath, Satendra and Pappan have been found guilty under Sections 307, 147, 148, 149 I.P.C. beyond reasonable doubt after recording finding that the prosecution has produced clear, cogent and convincing evidence and proved that the accused Narendra and Pappi have caused the death of Ravindra through spades, hence the offence punishable under Section 302 read with Section 149 I.P.C. is made out against the accused Narendra and Pappi. The court below has further recorded that in the present case, the prosecution has proved that the accused Raghunath, Satendra, Narendra, Pappi and Pappan have formed an unlawful assembly in pursuance of common object which was to commit the offence like murder and attempt to commit murder. The accused persons arrived at the place of occurrence and the accused Narendra and Pappi have inflicted spades on the neck of victim Ravindra and caused his death. The accused Raghunath, Satendra caught hold of Vinod (P.W.-2) and Pappan inflicted one spade injury on his neck. They were the members of unlawful assembly, hence the offence under Section 147 I.P.C. is proved against them. They were armed with deadly weapons and used those weapons for commission of offence, hence they are found guilty under section 148 I.P.C.
15. In the impugned judgment of conviction, the trial court has recorded that the defence has stated in the statement u/s 313 Cr.P.C. that the victim Ravindra and injured Vinod grappled with each other. They caused injuries to each other and in the course of that quarrel Ravindra had died, but this entire statement of defence appears to be false and unbelievable. The defence has produced no witness in support of their defence version.
16. After recording aforesaid finding the trial court has come to the conclusion that the prosecution has well proved the guilt of accused persons Narendra and Pappi for causing the death of Ravindra through spades, hence the offence under section 302 read with Section 149 I.P.C. have been fully proved against accused Narendra and Pappi. The prosecution has produced clear, cogent and convincing evidence to prove that accused persons Raghunath, Satendra and Pappan have inflicted injuries on the neck of injured Vinod (P.W.-2) through spades with intention to cause the death of Vinod, hence the offence under Sections 307/149/147/148 I.P.C. is made out against these accused persons, namely, Raghunath, Satendra and Pappan.
17. Being aggrieved with the impugned judgment and order of conviction passed by the trial court, the accused-appellant has preferred the present jail appeal.
18. The submission of the learned counsel for the accused-appellants is that the accused-appellants are innocent and have been falsely implicated. Next submission is that the prosecution has not produced any independent eye witness. P.W.-2 Vinod Kumar and P.W.4 Krishna Pal Singh are the brothers of the deceased Ravindra. Their evidence cannot be relied upon. In the Panchayatnama of the deceased Ravindra, there is no mention of any injury of Vinod having been caused by spade. Post Mortem was conducted with delay of one day, which cast doubt in the prosecution story. There is great variance between the ocular testimony and medical evidence, which makes entire prosecution case doubtful. There is contradiction regarding the place of occurrence and the place where the dead body of Ravindra was found. No blood stained soil was collected from the place of occurrence. There is strong contradiction in their statements. The prosecution has suppressed the genesis of case. It is not proved as to how Vinod received injuries. There is no explanation of injuries having been caused to Vinod by blunt weapon. The injuries sustained by Vinod are simple in nature, which are not fatal, hence the case of Section 307 IPC is not made out. There is nothing on record which could show that there is Chak Road near the place of incident. The Investigating Officer has not seized/taken the tractor in his custody, which also renders prosecution case doubtful. Recovery of spade cannot not be taken as relevant because it was not sent for chemical examination. The accused persons are innocent and they are liable to be acquitted of the all the charges levelled against them.
19. The argument is that the accused-appellant has no criminal antecedents to his credit except the present one. Next submission is that looking to the oral as well as documentary evidence brought on record, the sentence awarded to the accused-appellants Narendra and Pappi under Section 302 I.P.C., is highly excessive. The maximum punishment which could be imposed upon the accused-appellants Narendra and Pappi is 10 years under Section 304 Part II I.P.C. The learned counsel for the accused-appellants lastly submits that since the incident in question occurred on a spur of moment and in the heat of passion upon sudden quarrel, the same would be covered under the 4th Exception to Section 300 I.P.C., which reads as under:
"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."
20. In support of his plea, learned counsel for the accused-appellants placed reliance upon following judgments of Apex Court:
(I) Arjun & Another etc. etc. VS. State of Chhatishgarh reported in 2017 0 Supreme (SC) 152; and
(ii) Jandel Singh Vs. State of Madhya Pradesh dated 16th December, 2022 passed in Criminal Appeal NO. 2314 of 2022 [arisingout of SLP (CRL.) No. 6633 of 2022].
On the cumulative strength of the aforesaid, learned counsel appearing for the appellants submits that the sentence is excessive and ought not be sustained and the order of sentence must be modified taking lenient view in the matter.
21. Per contra, Mr. N.K. Sharma, learned A.G.A. for the State, supporting the judgment and order of conviction, submits that the first information report has been lodged promptly naming the accused person; there is clinching evidence to support the prosecution's case; the incident in which the deceased is alleged to have been murdered by the accused-appellants Narendra and Pappi occurred at about 11:30 a.m. i.e. in broad day light; there are three eye witnesses of the alleged incident; the place of occurrence has not been disputed by the defence; and the accused-appellants have strong motive or intention and the same has also been explained by the evidence of prosecution. Therefore, the prosecution has proved the charge levelled against the accused-appellants beyond reasonable doubt.
22. To bolster the aforesaid submissions, learned A.G.A. has invited the attention of the Court to the latest judgment of the Apex Court in the case of Mekala Sivaiah vs. State of Andhara Pradesh reported in 2022 SCC Online SC 887, whereby the Apex Court in paragraph nos.25 and 26 has held as follows:
"25. The facts and evidence in present case has been squarely analyzed by both Trial Court as well the High Court and the same can be summarized as follows:
i. The prosecution has discharged its duties in proving the guilt of the appellant for the offence under Section 302 I.P.C. beyond reasonable doubt.
ii. When there is ample ocular evidence corroborated by medical evidence, mere non-recovery of weapon from the appellant would not materially affect the case of the prosecution.
iii. If the testimony of an eye witness is otherwise found trustworthy and reliable, the same cannot be disbelieved and rejected merely because certain insignificant, normal or natural contradictions have appeared into his testimony.
iv. The deceased has been attacked by the appellant in broad daylight and there is direct evidence available to prove the same and the motive behind the attack is also apparent considering there was previous enmity between the appellant and PW-1.
26. Having considered the aforesaid facts of the present case in juxtaposition with the judgments referred to above and upon appreciation of evidence of the eyewitnesses and other material adduced by the prosecution, the Trial Court as well as the High Court were right in convicting the appellant for the offence under Section 302 I.P.C. Therefore, we do not find any ground warranting interference with the findings of the Trial Court and the High Court."
(Emphasis added) Mr. N.K. Sharma, learned A.G.A. for the State has also placed reliance upon the following judgments of the Apex Court and Patna High Court:
(a) Ram Kumar Madhusudan Pathak vs. State of Gujurat reported in 1998 0 Supreme (SC) 836;
(b) Arulvelu & Anr. Vs. State Rep. By the Public Prosecutor & Anr. Reported in 2009 0 Supreme (SC) 1628; and
(c) Ram Nath Nonia vs. State of Bihar reported in 1999 0 Supreme (Pat) 778.
On the cumulative strength of the aforesaid submissions, learned A.G.A. submits that as this is a case of direct evidence, the impugned judgment and order of conviction does not suffer from any illegality and infirmity so as to warrant any interference by this Court. As such the present jail appeal filed by the accused appellants who committed heinous crime by murdering the deceased is liable to be dismissed.
23. We have considered the submissions made by the learned counsel for the parties and have carefully examined the original records of the case as well as the impugned judgment and order of conviction challenged before us.
24. It is in the context of above submissions and materials placed on record before the Court that this Court is required to consider as to whether the prosecution has established the guilt of accused-appellants on the basis of above evidence beyond reasonable doubt?. For examining the same, it is important for us to record statements of the prosecution witnesses in brief.
25. P. W. 1/Autopsy Surgeon, Dr. Ashok Kumar Dua, who has conducted the post-mortem of the deceased Ravindra has stated in his examination-in-chief that death of the deceased was caused due to shock and haemorrhage as a result of ante-mortem injuries and it was caused before one day approximately.
26. This witness has also been cross-examined by the defence but no contradiction is found in his entire evidence. He has clearly stated in his cross-examination that two injuries found on the deceased were caused by sharp edged weapon, which could be spade. He has also opined that it could be any cutting weapon was like Gandasa, Pharsa, Kulhari and Sword. He has clearly opined that injury no.1 was fatal and due to this injury the injured could have died immediately and injury no.2 is also fatal and it could cause instant death also. In his cross-examination he has stated that injury no.1 could have been caused when the injured had fallen on the ground. It was quite natural that two accused persons Narendra and Pappi have caused the death of Ravindra through spade and in scuffle they have caused injury no.1 while the injured was lying on the ground and by single stroke they have caused injuries on his neck through spade resultantly he had done to death.
27. P.W.-2 Vinod Kumar, who is alleged to be injured and star eye witness of the incident in question, happens to be the real brother of deceased Ravindra. He has stated in his examination-in-chief that incident took place on 18th May, 2002. Since it was Saturday, they had turn for watering their field on that day. They were supposed to irrigate their field on 18th May, 2002 from 6 a.m. (morning) to next day i.e. 19th May, 2002 and they wanted to take water through the drain (Nali) by means of operating their tractor. On the date of incident, both brothers namely, P.W.-2 himself and the deceased Ravindra went to their field on tractor. The deceased Ravindra cleared the drain (Nali). Accused persons belong to the same village Bafar and were irrigating their field. In the trial court, P.W.-2 has fully identified the accused persons. This witness has further stated that at about 11 a.m. the deceased Ravindra had asked accused persons to put off the tube-well so that they could take water through the said drain (Nali). The accused persons made the plan to finish Ravindra saying that he often raised the controversy about irrigation of field. On this exhortation, the accused Narendra inflicted one spade injury on neck of Ravindra and accused Virendra, who was known as Pappi, also inflicted one spade injury on the neck of Ravindra, which resulted into his instant death. The accused Satandra and Raghunath pounced upon Vinod Kumar (P.W.2.) and caught hold of him, thereupon the accused Pappan inflicted one spade on him but he survived and raised alarm on which witnesses arrived there. Sheeshpal and Brijpal (P.W.-3) also came there and they saw the incident. Thereafter he along with his brothers Manoj and Munesh proceeded to lodge the report to Police Station Jani and when they reached near Cooperative Bank, Jani, Krishnapal (informant/P.W.-4) met them on the way, who enquired about the incident on which P.W.-2 narrated the entire story to him. P.W.-4 Krishnapal had written the report on a paper and the same was given to Police Station-Jani. This witness has further stated that at Police Station Jani Krishnapal, Brijpal and Munesh were present. After that P.W.2 proceeded to Primary Heath Centre, Jani for his medical examination, but Doctor was not present there. The Home- Guard, who accompanied him came to the place of the incident. The police was present there. Several persons of the village were also present there. Station House Officer, Police Station Jani has recorded the statements and inquest of deceased were prepared on which he signed and he has identified his signatures. This witness further stated that he was referred to P. L. Sharma Hospital, Meerut, where his injuries were medically examined by the Doctor. P.W.2 Vinod has clearly stated that Narendra was also known as Kallan, Satendra was also known as Billa and Virendra was known as Pappi.
28. This witness has been cross-examined by the defence at length but no major contradiction in his testimony was found. He has fully supported the prosecution case.
29. P.W.-3 Brijpal, who is alleged to be star independent eye witness, belonged to the same village where the accused and prosecution side resided. P.W.-3 knows accused persons Raghunath, Satendra, Narendra, Papi and Pappan. This witness has further stated that the incident in question occurred on 18th May, 2002 and at that time he was working in his field. Sheeshpal (not produced) was also present there. He had taken the field of Sheeshpal on Batai (rent). At about 11:00 a.m. the deceased Ravindra and P.W.-2 Vinod were present on their Tube-well. The deceased Ravindra asked accused persons to put of their Tube-well as accused were taking water to their field through the tractor. The deceased Ravindra asked that he had turn for irrigating his field on that day. Accused did not put off their Tube-well, which resulted in some altercation between them. Accused persons exhorted to each other that Ravindra always created controversy in irrigating the field, so he should have been finished, thereupon the accused Pappi and Kallan inflicted spade on the neck of Ravindra and he sustained serious injuries and died immediately. The accused Raghunath and Billu caught hold of Vinod (P.W.-2) and the accused Pappan inflicted one spade on his neck. This witness had seen the entire incident from 10 to 15 steps. He immediately reached there. After that the accused persons left the place and went to their house. P.W.-3 immediately went to call Krishnapal. Vinod and Sheeshpal advised him to inform Krishnapal Master, who was teaching in Shival High School, Sival Khas, Meerut. He immediately went to Krishnapal and informed him about the incident. Thereafter he and Krishnapal went to police station and in the mid way, Vinod and several persons of the village met them near Cooperative Bank, Jani. P.W.2 Vinod also narrated the entire incident to Krishnapal on which he had written the report, which was submitted to P. S. Jani.
30. P.W.-3 has also been cross-examined by the defence at length but no contradiction has been found in his testimony. In his cross-examination, this witness has clearly stated that the accused Raghunath and Billu had caught hold of Vinod (P.W.-2), thereupon the accused Pappan had inflicted one spade injury to Vinod and when he reached near the accused persons, they fled from there. This witness Brijpal is an independent eye-witness and he has fully proved the prosecution case.
31. Krishnapal i.e. informant, who happens to be the brother of the deceased Ravindra and injured Vinod Kumar (P.W.-2) has been produced as P.W.4. He has not claimed that he is the eye-witness of the incident. In his testimony, this witness has fairly stated that he has not seen the incident with his own eyes because at the time of incident, he was teaching in High School, Shival Khas, Meerut. and the information regarding this incident was given to him by Brijpal (P.W.-3). He has proved the written report (Exhibit-ka/4) which he has submitted before the Police Station-Jani.
32. Prosecution has produced Sub-Inspector Sanjeev Singh Rathor as P.W.5. In his examination-in-chief, he has stated that he has prepared/conducted the inquest of the body of the deceased Ravindra in the presence of Munesh, Vijai Pal, Brijpal, Vinod and Dharmendra, who were appointed as inquest witnesses according to them the death of Ravindra was caused due to the injuries sustained in criminal transaction. This witness has been cross-examined by defence counsel at length. He has proved all the papers like 'Panchayatnama, letter to R. I., Copy of Chik FIR, letter to C.M. S., specimen seal, Photo Lash and Challan Lash. There is no contradiction in his testimony.
33. Emergency Medical Officer P.L. Sharma has been produced as P.W.- 6, who has medically examined the injured Vinod Kumar (P.W.-2). In his examination-in-chief, this witness has stated that he found 5 injuries on the person of P.W.-2. He has opined that all injuries sustained by P.W.-2 were simple in nature and injury no.1 is incised wound and it was caused by some sharp edged weapon like spade and injuries no.2 and 3 were caused by hard and blunt weapon. He has proved the injury report, which was marked as Exhibit-ka/8. This witness has also been cross-examined by the defence and no contradiction has been found in his entire cross- examination.
34. Constable-1198 Ranvir Singh has been produced as P.W.-7. In his examination-in-chief he has stated that the FIR has been written by him in his own handwriting which was marked as Exhibit-Ka/9. He has proved the chik FIR.
35. P.W.-8 Sub-Inspector R.N. Singh Yadav, has conducted the investigation. In his examination-in-chief this witness has stated that he had conducted the investigation of the case himself, which was started at 12:40 p.m. on 18th May, 2002. He also recorded the statements of the informant Krishnapal and Sheeshpal, who was the eye witness of the case. He has prepared the site plan in his writing. He had collected blood stained earth and plain earth from the place of the occurrence where the dead body of Ravindra was lying. In his cross-examination this witness has stated that he had not sent the blood stained earth and spades for chemical examination on account of the fact that he was transferred, but he has submitted the charge sheet in this case. This witness has also been cross-examined by the defence but no contradiction or inconsistency or improvement has been found in his testimony. He has fully supported the prosecution case.
36. On deeper scrutiny and evaluation of the prosecution witnesses and other evidence, we find that there is two prosecution witnesses of fact, namely, P.W.2 Vinod Kumar, who happens to be the brother of the deceased but is an injured witness and Brijpal (P.W.-3), who is an independent eye witness. In their testimony, they have fully supported the prosecution case and these testimony are the direct evidence against the accused-appellants for commissioning of the offence of murder of the deceased Ravindra and causing injuries to the injured P.W.-2. Apart from the above, the medical evidence both the post-mortem report of the deceased Ravindra as well as medical examination report of injured Vinod Kumar (P.W.-2) as also the police papers have also fully supported the prosecution case.
37. We have examined the judgment and order of conviction passed by the trial court. While passing the impugned judgment the trial court has carefully noticed the prosecution version and other evidence led during the course of trial and has held that the prosecution has established guilt of the accused-appellants based on prosecution evidence. We have noticed hereinabove that there are minor material contradictions, inconsistencies and discrepancies in the statements of the prosecution witnesses specially in star prosecution witnesses i.e. P.W.-2 and P.W.-3, who are alleged to be eye-witnesses of the incident in question. Though the P.W.-2 is an interested witness but is an injured witness also, whereas P.W.-3 is an independent witness and both the witnesses of fact have been cross-examined by the defence at great length. Therefore, their testimony cannot be ruled out as there is some minor contradictions therein.
38. It is settled law that in all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
39. In various judgments, the Apex Court has held that the evidence of interested or inimical witnesses is to be scrutinized with care but can not be rejected merely on the ground of being a partisan evidence. If on a perusal of the evidence the Court is satisfied that the evidence is creditworthy there is no bar in relying on the said evidence. It is well settled that interested evidence is not necessarily unreliable evidence. All that is necessary is the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon.
40. In view of the above discussions and deliberations, we find that the trial court is justified in holding that the prosecution has succeeded to prove the guilt of the accused-appellants, namely, Narendra and Pappi for commissioning the offence of murder of the deceased Ravindra the guilt of accused-appellants, namely, Raghunath, Satendra, Pappan, in commission of offence by causing injuries to P.W.-2 Vinod Kumar, is proved beyond reasonable doubt. However, the trial court is not justified in convicting and sentencing accused-appellants Narendra and Pappi under Section 302 I.P.C. We find substance in the submission made by the learned counsel for the accused-appellants that the incident in question occurred on the spur of moment and in the heat of passion and without premeditation or planning of attack, therefore, it would fall within Exception-4 to Section 300 I.P.C. and the conviction of the accused-appellants Narendra and Pappi would fall under Section 304 Part-I I.P.C. and not under Section 302 I.P.C.
41. As per the testimony of prosecution witnesses, at the time and place of incident, the accused-persons were already irrigating their field with the help of farming equipment like Axe, Spades, Sickle etc and when the deceased Ravindra and Vinod Kumar P.W.-2 reached there and Ravindra protested and asked them to give water because it was his turn on which all accused persons got annoyed and exhorted to finish him as he always objected in taking water on which accused-appellants Narendra @ Kallan and Pappi hit their spade on the neck of Ravindra Kumar resulting into his instant death. The accused-appellants Raghunath and Satendra caught hold of another brother of the informant, namely, Vinod and the accused-appellant Pappan inflicted one spade injury on the neck of Vinod. From the said facts, it is apparently clear that the incident occurred on the spur of the moment without any premeditation as the accused-appellants were not the aggressor having weapons in their hands with an intention to commit such offence, when as a matter of fact, they were irrigating their fields with the help of farming equipment before the deceased and injured (P.W.-2) reached there, as such the accused-appellants, Narendra and Pappi could at best be punished under Section 304 I.P.C.
42. In Pulicherla Nagaraju [Pulicherla Nagaraju v. State of A.P., reported in (2006) 11 SCC 444 : (2007) 1 SCC (Cri) 500] , the Apex had an occasion to consider the case of culpable homicide not amounting to murder and the intention to cause death. It was observed and held by this Court that the intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances:
(i) nature of the weapon used;
(ii) whether the weapon was carried by the accused or was picked up from the spot;
(iii) whether the blow is aimed at a vital part of the body;
(iv) the amount of force employed in causing injury;
(v) whether the act was in the course of sudden quarrel or sudden fight or free-for-all fight;
(vi) whether the incident occurs by chance or whether there was any premeditation;
(vii) whether there was any prior enmity or whether the deceased was a stranger;
(viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation;
(ix) whether it was in the heat of passion;
(x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner;
(xi) whether the accused dealt a single blow or several blows."
43. On examination of the aforesaid judgment of the Apex Court we find that the circumstances nos. (ii), (v) and (viii) given the aforesaid judgment of the Apex Court would apply in the present case.
44. In paragraph-29 in the case of Pulicherla Nagaraju @ Nagaraja Reddy (Supra), the Apex Court has opined that the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part 1 or 304 Part II. In many petty or insignificant matters, plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance,may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed jealously or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not covered into offences punishable under Section 304 Part-I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302.
45. On going through the entire evidence on record, we find that the necessary ingredients to attract 4th Exception to section 300 IPC are clearly present in the facts of the present case inasmuch as death is caused; there existed no pre-meditation; it was a sudden fight; the offender has not taken undue advantage or acted in a cruel or unusual manner, therefore, the case in hand clearly falls under fourth exception to section 300 IPC.
46. The issue relating to quantum of sentence under Section 304 I.P.C. depends on background facts of the case, antecedents of the accused, whether the assault was premeditated and pre-planned or not, etc. There are no straight jacket formulae for the determination of the same in law.
47. In the case of Arjun & Another Etc. Etc. Vs. State of Chhattishgarh reported in 2017 0 Supreme (SC) 152, heavily relied upon by the learned counsel for the accused-appellants, the Apex Court has held that injures/incised wound caused on head i.e. right parietal region and right temporal region and also occipital region, injuries indicate that the appellants had intention of knowledge to cause injuries and thus it would be case falling under Section 304 Part-I I.P.C. therefore, conviction of appellants under Section 302 read with Section 34 I.P.C. is modified under Section 304 Part-I I.P.C.
48. The relevant paragraphs of the judgment of the Apex Court in the case of Arjun & Another Etc.Etc. (Supra) are quoted herein under:
"19. The point falling for consideration is whether the conviction of the appellants under Section 302 IPC is sustainable. As discussed earlier, the evidence clearly establishes that while Ayodhya Prasad and other witnesses were cutting the trees, there was exchange of words which resulted in altercation and during the said altercation, the appellants attacked the deceased. Thus, the incident occurred due to a sudden fight which, in our view, falls under exception (4) of Section 300 IPC.
20. To invoke this exception (4), the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar Vs. Union Territory of Chandigarh (1989) 2 SCC 217, it has been explained as under:-
"7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.............."
21. Further in the case of Arumugam VS. State, Represented by Inspector of Police, Tamil Nadu, (2008) 15 SCC 590, in support of the proposition of law that under what circumstances exception (4) to Section 300 IPC can be invoked if death is caused, it has been explained as under:-
"9. ......."18. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300 IPC is not defined in Indian Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'."
22. The accused, as per the version of PW-6 and eye witness account of other witnesses, had weapons in their hands, but the sequence of events that have been narrated by the witnesses only show that the weapons were used during altercation in a sudden fight and there was no pre-meditation. Injuries as reflected in the post-mortem report also suggest that appellants have not taken "undue advantage" or acted in a cruel manner. Therefore, in the fact situation, exception (4) under Section 300 IPC is attracted. The incident took place in a sudden fight as such the appellants are entitled to the benefit under Section 300 exception (4) IPC.
23. When and if there is intent and knowledge, then the same would be a case of Section 304 Part I IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II IPC. Injuries/incised wound caused on the head i.e. right parietal region and right temporal region and also occipital region, the injuries indicate that the appellants had intention and knowledge to cause the injuries and thus it would be a case falling under Section 304 Part I IPC. The conviction of the appellants under Section 302 read with Section 34 IPC is modified under Section 304 Part I IPC. As per the Jail Custody Certificates on record, the appellants have served 9 years 3 months and 13 days as on 2nd March, 2016, which means as on date the appellants have served 9 years 11 months. Taking into account the facts and circumstances in which the offence has been committed, for the modified conviction under Section 304 Part I IPC, the sentence is modified to that of the period already undergone."
49. In the facts of the present case, the accused-appellants Narendra and Pappi caused injuries on the neck of the deceased by spades due to which he had done to death on the place of occurrence, these injuries indicates that both the accused-appellants had knowledge and intention to cause injuries, and thus it would be case falling under Section 304 Part-I I.P.C.
50. In view of the above discussions and deliberations, we are of the considered opinion that the said offence has been committed by the accused-appellants, namely, Narendra and Pappi on a spur of moment and in the heat of passion upon sudden quarrel between them and the deceased and P.W.-2, as is evident from the testimony of prosecution witnesses including the witnesses of fact i.e. P.W.-2 and P.W.-3. Seeing the aforesaid circumstances we are of the view that the quantum of sentence of the accused-appellants Narendra and Pappi to life imprisonment under Section 302 I.P.C. as awarded under the impugned order of sentence is too harsh in the facts of the present case. Attention of the Court has been invited to the fact that the accused-appellants are in jail since 25th September, 2007 and they have actually undergone nearly 16 years of incarceration without remission (15 years, 10 months and 17 days on 19th April, 2023 as per the custody certificate issued by the Senior Superintendent, Central Jail, Agra dated 19th April, 2023 and 20 years, 9 months and six days with remission).
51. Accordingly, conviction of the accused-appellants, namely, Narendra and Pappi under Section 302 I.P.C. is modified as conviction under Section 304 Part-I I.P.C. and the sentence is reduced to the period already undergone by them. Since the accused-appellants, Narendra and Pappi have undergone more than 15 years of incarceration without remission, the fine of Rs.10,000/- imposed upon the accused-appellants, namely, Narendra and Pappi each under Section 302 read with Section 149 I.P.C. under the impugned judgment is also discharged.
52. So far as the conviction of the accused-appellants, namely, Raghunath (who is reported to be died) by Mr. Noor Mohd. Learned counsel for the accused-appellant), Satendra and Pappan under Section 307 I.P.C. is concerned, we may record that the first injury was certainly on a vital part of the injured Vinod Kumar (P.W.-2) and taking into account the injuries sustained by him on various parts of his body by accused-appellant Pappan, whereas the accused-appellants, namely, Raghunath (now died) and Satendra were assigned the role of catching hold of injured Vinod Kumar (P.W.-2), Section 307 I.P.C. has rightly been invoked by the trial court while passing the impugned judgment. However, taking into account the fact that the altercation took place between the accused-appellants and the deceased along with injured P.W.-2 at the time of watering field and there was no premeditation or planning of the attack, as well as considering the medical examination report of the injured P.W.-2 and the testimony of P.W.-6 who has medically examined him that though P.W. -6 has found 5 injuries on the person of P.W.-2 but he has also opined that all injuries sustained by P.W.-2 were simple in nature, meaning thereby that the blow of spade from which the injury no.1 i.e. Incised wound 6.0 cm x 0.7 cm x muscle on back of left side chest 6.5 cm behind and below of left ear lobule updown, was inflicted was not severe in nature but was on vital part i.e. neck of the Vinod Kumar, injured/P.W.-2, the custodial sentence undergone by the accused-appellants, namely Satendra and Pappan i.e. four and six months respectively would meet the ends of justice. It is ordered accordingly. The fine of Rs.5,000/- imposed upon the accused-appellants, namely, Satendra and Pappan each under Sections 307 read with Section 149 I.P.C. under the impugned judgment is also discharged
53. Accordingly, both the criminal appeals are partly allowed.
54. Consequently, the judgment and order dated 25th September, 2007 passed by the Special Judge (E.C. Act), Meerut in Sessions Trial No. 862 of 2002 (State Vs. Narendra & Others), arising out of Case Crime No. 135 of 2002, under Sections 147, 148, 307, 302 and 506 I.P.C., Police Station-Jani, District-Meerut is modified to the extent as aforesaid.
55. The accused-appellants, namely, Narendra and Pappi, who are reported to be in jail since 2007 shall be released on compliance of Section 437-A Cr.P.C., unless they are wanted in any other case forthwith, whereas the accused-appellants, namely, Satendra and Pappan, are reported to be on bail and thus need not surrender and their bail bonds stand discharged. They shall be set free subject to compliance of Section 437-A Cr.P.C., unless they are wanted in any other case.
56. Let a copy of this judgment be sent to the Chief Judicial Magistrate, Meerut henceforth, who shall transmit the same to the concerned Jail Superintendent for release of the accused-appellants in terms of this judgment.
(Shiv Shanker Prasad, J.) ( Dr. Kaushal Jayendra Thaker, J.)
Order Date :- 15.5.2023
Sushil/-