Allahabad High Court
Dr. Arvind Kumar Singh @ Dr. A.K. Singh ... vs State Of U.P. And Another on 4 March, 2021
Equivalent citations: AIRONLINE 2021 ALL 238
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 22.2.2021 Delivered on 4.3.2021 Court No. - 77 Case :- APPLICATION U/S 482 No. - 14894 of 2020 Applicant :- Dr. Arvind Kumar Singh @ Dr. A.K. Singh And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Chandra Pratap Singh,Anil Kumar Pathak Counsel for Opposite Party :- G.A,Ashutosh Pandey Hon'ble Pankaj Bhatia,J.
Heard Shri Anil Kumar Pathak, learned counsel for the applicants, Dr. V.P. Singh, learned counsel for the opposite party no.2, learned AGA for the State and perused the record.
Counsel for the opposite party argues that the version in the counter affidavit may not be taken into consideration and the matter may be decided finally.
In view of the statement made by the counsel for the opposite party no.2 recorded above, I proceed to decide the matter on merits.
The facts in brief are that the FIR in question was filed alleging therein that the opposite party is a person belonging to the schedule caste and the applicants are belonging to a higher caste. The victim used to work as an electrician at the hospital of the applicant no.1 and was entitled to a sum of Rs.50,000/- for the work done by him in the hospital. When he went on 24.10.2013 asking for the money Dr. A.K. Singh, applicant no.1 got agitated and asked the staff to throw out the victim and on his saying so, the staff pushed the victim. On his being pushed, the victim fell on the wall where naked electricity wire were hanging and he came in contact with the said electricity wire and was unfortunately electrocuted. On the basis of the said FIR proceedings were initiated. A post-mortem report was conducted on the victim and a report was submitted on 25.10.2013 opining that death occurred due to ''shock as a result of electric current' and indicating the following:-
1- ckbZ vksj psgjs ij [kqjZ'kV 7 x 3 lseh ds nk;s esa FkhA 2- ukd ds nksuks Nsnksa esa [kwu tek gqvk FkkA 3- ukd ds ck;h vksj 1 x 0.5 lseh ,d Qvk gqvk ?kko FkkA 4- pgjs ij nk;h vksj 4 x 6 lseh [kqj'kV FkhA 5- bySfDVªd ouZ owUM vkQ bUVªh 2 x 1 lseh nk;h bUMsDl fQxj ij FkkA 6- uk[kwu uhys iMs gq, FksA vkW[ks Hkh dUtsfDVM FkhA 7- bySfDVªd ouZ vkQ ,fDtV 1 x 1 lseh ck;s gkFk ij FkkA The police proceeded to investigate the matter, wherein he recorded the statement of the eye witness of the incident one Rewati Ram, whose statement was recorded under Section 161 Cr.P.C. and in the said statement, he stated that he was working as a helper in the shop of the deceased and on the date of the incident, the deceased had gone to the hospital for repairing the fault in the electricity and while doing so he came in contact with the electricity and as a result thereto he fell down on the floor, Rewati Ram/helper raised an alarm and the staff of the hospital gave the first aid and managed Ambulance, however, the deceased had died. The Investigating Officer also recorded the statement of the staff as well as the patients of the hospital under Section 161 Cr.P.C., who deposed that the on the date of the incident, the deceased was repairing an electrical fault in the hospital and died on account of an electric shock.
Based upon the said deposition as made before the I.O. as well as on perusal of the recording of the CCTV Camera available, a final report was filed to the effect that the death had occurred on account of the deceased coming in the contact of the electric wire and no offence could be said to be made out, consequently, a Final Report No. 280 of 2013 was submitted. On 16.6.2015, a protest petition was filed by the informant to the effect that no statement had been recorded under Section 161 Cr.P.C. and the signatures were obtained in blank papers with an assurance to get benefit under the SC/ST Act. On the basis of the said protest petition, the Court below rejected the final report and directed for further investigation vide order dated 21.8.2015. In pursuance to the order dated 21.8.2015, the I.O. once again recorded the statement of the informant under Section 161 Cr.P.C. (Annexure-12), in his statement he stated that at the instigation of applicant no. 1, the staff of the hospital pushed the deceased on account of which he fell and came in contact with the electric wire and died. The I.O. further recorded the statement of Rewati Ram/helper, the eye witness of the incident on 10.10.2015, who reiterated his earlier statement given to the earlier Investigating Officer to the effect that the deceased had gone for repair of the electricity and died on account of coming in contact with the electric wire. He further stated that on raising an alarm, the hospital staff and doctor came and administered first aid, however, the deceased had died. The I.O. further proceeded to record the statement of staff of the hospital, who reiterated their versions. The I.O. reperused the recording of the CCTV Camera and filed his report stating that the deceased died on account of repair of electricity due to the shock and once again submitted a final report dated 15.12.2015 (Annexure-15).
After about three years on 16.2.2018, the informant filed a protest petition against the final report dated 15.12.2015 and on the basis of the said protest petition, the trial court proceeded to reject the final report and treated the protest petition as a complaint case, vide order dated 29.5.2018 (Annexure-17).
On 9.7.2018, the statement of the informant/complainant was recorded under Section 200 Cr.P.C. before the Court below (Annexure-18) and further statement of Rewati Ram was recorded under Section 202 Cr.P.C. (Annexure-19) and further statement of one Mukesh Baghel was recorded under Section 202 Cr.P.C. (Annexure-20). The statement of doctor, who conducted the post-mortem, namely Rajendra Kumar was also recorded under Section 202 Cr.P.C. (Annexure-21).
Based upon the said statements as well as the complainant, so recorded before the Special Judge (SC/ST) Act, the Judge proceeded to pass the impugned order summoning the applicants for trial for offence under Section 304 IPC read with Section 3(2)(V) SC/ST Act by means of an order dated 20.12.2019. The said order is under challenge.
Counsel for the applicants argues that a perusal of the post-mortem report as well as the statements do not make out a case for summoning the accused under Section 304 IPC. He argues that Section 304 IPC can be attracted only when a person commits culpable homicide not amounting to murder. He further places reliance on the definition of culpable homicide as defined in Section 299 of IPC, Sections 299 and 304 IPC are recorded hereunder:-
299. Culpable homicide.--Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
Illustrations
(a) A lays sticks and turf over a pit, with the intention of thereby causing death, or with the knowledge that death is likely to be thereby caused. Z believing the ground to be firm, treads on it, falls in and is killed. A has committed the offence of culpable homicide.
(b) A knows Z to be behind a bush. B does not know it A, intending to cause, or knowing it to be likely to cause Z's death, induces B to fire at the bush. B fires and kills Z. Here B may be guilty of no offence; but A has committed the offence of culpable homicide.
(c) A, by shooting at a fowl with intent to kill and steal it, kills B who is behind a bush; A not knowing that he was there. Here, although A was doing an unlawful act, he was not guilty of culpable homicide, as he did not intend to kill B, or to cause death by doing an act that he knew was likely to cause death.
Explanation 1.--A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.
Explanation 2.--Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented. Explanation 3.--The causing of the death of child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born."
"304. Punishment for culpable homicide not amounting to murder.--Whoever commits culpable homicide not amounting to murder shall be punished with 1[imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.
He further argues that even as per the statements assuming them to be gospel truth for the purpose of arguments, no offence can be said to have been done warranting summoning under Section 304 IPC and 3(2) (v) of SC/ST Act, as against the applicants and thus prays that the summoning order and complaint are liable to be quashed. He has drawn my attention to the statements so made as well as the post-mortem report.
Counsel for the respondents, on the other hand, argues that in the FIR in question, an offence was disclosed against the applicants. He has also extensively read the statements so recorded under Section 202 Cr.P.C. before the Special Judge (SC/ST) Act and argues that nothing wrong can be found in the summoning order and the application is liable to be dismissed.
A perusal of Section 304 IPC, under which the applicants have been summoned, requires that the accused should be charged for committing "culpable homicide not amounting to murder". The said Section is clearly divided into two parts, the first part provides for punishment for a person who commits "culpable homicide not amounting to murder" with an imprisonment for life or imprisonment for a term which may extend to ten years and fine, if the act by which the death occurs is done with ''intention' of causing death or causing such bodily injury as is likely to cause death. The second part of Section 304 IPC provides for punishment with an imprisonment for a term which may extend to ten years or with fine or both, if the act is done with the ''knowledge' that it is likely to cause death, but without intention to cause death or to cause such bodily injury.
Thus, on perusal of the said section, it is clear that if the act is done with an ''intention' of causing death or with ''knowledge' that it is likely to cause death. A perusal of the said section makes it clear that the act should be such so as to fall within the definition of culpable homicide.
The Supreme Court in the case of Rampal Singh v. State of U.P.; (2012) 8 SCC 289, has specifically discussed the scope of Section 304 part 1 and part 2 of IPC, relevant paragraphs 23 and 24 are quoted hereinunder:-
"23. An important corollary to this discussion is the marked distinction between the provisions of Section 304 Part I and Part II of the Code. Linguistic distinction between the two parts of Section 304 is evident from the very language of this section. There are two apparent distinctions, one in relation to the punishment while other is founded on the intention of causing that act, without any intention but with the knowledge that the act is likely to cause death. It is neither advisable nor possible to state any straitjacket formula that would be universally applicable to all cases for such determination. Every case essentially must be decided on its own merits. The Court has to perform the very delicate function of applying the provisions of the Code to the facts of the case with a clear demarcation as to under what category of cases, the case at hand falls and accordingly punish the accused.
24. A Bench of this Court in Mohinder Pal Jolly v. State of Punjab [(1979) 3 SCC 30 : 1979 SCC (Cri) 635 : AIR 1979 SC 577] stating this distinction with some clarity, held as under: (SCC pp. 36-37, para 11) "11. A question now arises whether the appellant was guilty under Part I of Section 304 or Part II. If the accused commits an act while exceeding the right of private defence by which the death is caused either with the intention of causing death or with the intention of causing such bodily injury as was likely to cause death then he would be guilty under Part I. On the other hand if before the application of any of the Exceptions of Section 300 it is found that he was guilty of murder within the meaning of clause 'Fourthly', then no question of such intention arises and only the knowledge is to be fastened on him that he did indulge in an act with the knowledge that it was likely to cause death but without any intention to cause it or without any intention to cause such bodily injuries as was likely to cause death. There does not seem to be any escape from the position, therefore, that the appellant could be convicted only under Part II of Section 304 and not Part I."
Culpable homicide is defined under Section 299 IPC and is recorded hereinabove and implies the intention of causing a death or of causing such bodily injury as is likely to cause death or with the knowledge that the act so committed is likely to cause death. Thus, culpable homicide requires that there should essentially exist an ''intention' of causing death or ''knowledge' that the act, if so committed may cause death.
A perusal of the protest petition which was treated as a complaint is on record as Annexure-16, wherein it was stated that on 24.10.2013 the brother of the informant namely, Harendra Singh, had gone to meet the owner of the hospital for payment of Rs. 50,000/- and had taken alongwith him his neighbour Rawati Ram. On reaching the hospital, the informant and the said Rewati Ram stood at the hospital gate whereas Harendra Singh, the deceased, went inside the hospital to take the money. On account of demand of money, altercation took place in between Dr. A.K. Singh and the brother of the informant Harendra Singh and Dr. A.K. Singh abused Harendra Singh and used caste related words and tried to shoo away Harendra Singh and when Harendra Singh refused to leave, Dr. A.K. Singh called his staff and directed to remove Harendra Singh by pushing him out of the gate and on the instructions, the staff pushed Harendra Singh who collided against the wall on which electric wire was lying naked, as a result whereof Harendra Singh died.
The statement of the complainant Rajveer Singh was recorded, in the said statement, he stated that on the ill fated day, when his brother had gone to ask money, the applicant no. 1 directed his staff to throw away the deceased, on which instructions, applicant nos. 2, 3 and 4 pushed the brother of the informant and pushed him so hard that he fell against a wall where electric wire were lying and the brother died on account of coming in the contact with the electric wire. The statement of the witness Rewati Ram was also recorded and despite his earlier two statements given to I.O. this time deposed that on the ill fated day on account of the deceased asking for money, an altercation took place with the applicant no. 1 and applicant no. 1 called staff and directed them to throw away the deceased and on his instructions, the applicant nos. 2, 3 and 4 pushed the deceased and his head came in contact with the wall where electric wire were there and on account of coming in contact with the electric wire he died.
The statement of the other witness namely, Mukesh Baghel, was also recorded, who stated the same things as the other witness. The statement of Dr. Rajendra Kumar, who had conducted the post-mortem, was also recorded, in which he specifically stated the death was ''on account of shock of electric current'.
On perusal of the statements as recorded, for summoning the accused under Section 304, it was required that in the statements it should have been alleged that actions were done with the ''intent' of causing death or with the ''knowledge' that the act can cause death or bodily injury leading to death. As against the applicant no. 1 the only allegations levelled in the complaint as well as the statements so recorded are that he directed his staff to push away deceased and throw him out of the hospital. There is no averment whatsoever as against the applicant no. 1 and thus I have no hesitation in holding that the statements so recorded before the trial court neither indicate any "intent" nor indicate any "knowledge" which are sine-qua-non for summoning any person under Section 304 IPC.
As regards the applicant nos. 2, 3 and 4, there is no averment whatsoever that they have pushed the deceased with an "intention" of causing death or with a "knowledge" that the push can cause death or bodily injury of a nature which can lead to death. As the allegation of ''intention' and/or the ''knowledge', were absent the summoning of the accused under Section 304 IPC was not warranted even if the allegations in the complaint as well as the statements were accepted to be gospel truth at the stage of taking cognizance. The cognizance order further ignores the fact that as per the post-mortem report as well as the statement of the doctor on record as a witness that the death occurred on account of electric shock and there being no material to suggest in the statements or otherwise either the "intention" of causing death through electric shock or "knowledge" leading to the conclusion that the push can result in death through electric shock. Once the said ingredients are missing, no cognizance order could have been taken under Section 304 IPC, however, on the basis of the complaint as well as the statements, the applicants/accused nos. 2, 3 and 4 only could have been summoned under Sections 304A IPC.
Consequently, the summoning order dated 20.12.2019 is modified to the extent that the applicants no. 2, 3 and 4 only would be summoned under Section 304A of IPC.
As regards the summoning of the applicants under Section 3(2) (V) of SC/ST Act, Section 3(2) (V) of SC/ST Act is quoted hereinunder:-
"(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property 1[knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member], shall be punishable with imprisonment for life and with fine."
A person can be summoned under Section 3(2) (V) of the Act only when he is alleged to have committed an offence under the IPC, which is punishable with imprisonment for a term of ten years or more against a person or a property knowing that such person is a member of scheduled caste or scheduled tribe or such property belonging to such member. In the present case, I have already held that summoning of the applicants under Section 304 IPC is wholly unjustified and the applicants no. 2, 3 and 4 could have been summoned under Section 304A IPC and the said Section 304A IPC is punishable with imprisonment of two years coupled with the fact that there is nothing on record to demonstrate that the alleged offence in question was occasioned by the accused knowing that the deceased was of a scheduled caste or scheduled tribe and the offence was committed only because the person was of scheduled caste or scheduled tribe. As such, the summoning of the applicants under Section 3(2) (V) of SC/ST Act is also not made out.
Accordingly, the application is allowed. The summoning order is modified to the extent that the applicants no. 2, 3 and 4 will appear before the court having jurisdiction for trying the accused under Section 304A IPC.
The applicant nos. 2, 3 and 4 shall surrender before the court concerned within one month from today.
The summoning of applicant no. 1, vide order dated 20.12.2019, is quashed.
The application is decided accordingly.
Order Date :- 4.3.2021 pks/SR