Allahabad High Court
Sandeep vs State on 17 February, 2011
Bench: Amar Saran, Naheed Ara Moonis
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 46 Case :- JAIL APPEAL No. - 7421 of 2007 Petitioner :- Sandeep Respondent :- State Petitioner Counsel :- From Jail Respondent Counsel :- A.G.A. Hon'ble Amar Saran,J.
Hon'ble Naheed Ara Moonis,J.
(Delivered by Hon'ble Amar Saran, J) This Jail appeal arises from a judgement and order dated 18.3.1999 passed by the learned Additional Sessions Judge, Meerut convicting and sentencing the appellant to life imprisonment and a fine of Rs. 5000/- under section 302 IPC and in default of payment of fine, the appellant has to further undergo three months rigorous imprisonment.
Heard Shri Jitendra Kumar Sisodia, learned Amicus Curiae for the appellant and Shri Arunendra Singh and Shri A.N. Mulla, learned Additional Government Advocates for the State.
This is a case of fratricide.
The allegations in the FIR lodged by the informant Brij Pal Singh, father of the deceased Arvind alias Bholu at police station Parikshatgarh, district Meerut at 2.30 p.m. were that on 24.9.1997 at 11 a.m. when he entered his house after bringing fodder from his field, he saw the appellant Sandeep with a bloodstained knife in his hand. On enquiry, the appellant ran away towards the Jungle without explaining anything. He went inside to find his other son Arvind alias Bholu lying dead on the cot. He thereafter proceeded to the police station to lodge the report which mentions that his son Arvind had been murdered by his other son Sandeep.
On the basis of the FIR the case was registered as case crime No. 168 of 1997, under section 302 IPC by Head Muharrir Kalu Ram. The investigation in this case was conducted by PW 4, S.O. K.M. Mishra. He copied out the GD in his case diary and recorded the statement of HM Kalu Ram and the informant Brij Pal Singh. Thereafter he proceeded to the spot where he prepared the site plan on the pointing out of the informant. On his dictaion the inquest papers were prepared by HM Kalu Ram. After getting the relevant papers prepared, he sent the body for autopsy. He made a recovery memo after cutting out a portion of the rope matting of the cot. He also recorded the 161 Cr.P.C. statement of Smt. Bimla, PW 2, the mother of the deceased and the appellant. The Investigating officer was not successful in arresting the appellant, who himself surrendered in Court on 15.10.1997. Thereafter the I.O. recorded the statement of the accused in jail.
P.W. 3 Dr. P.P. Verma, who conducted the post-mortem examination on the body of the deceased found the following ante-mortem injuries:
(i) Stab wound 3.5 c.m. X 1 c.m., front of chest left side 4 c.m. medial to the left nipple.
(ii) Incised wound 1 c.m. X 0.5 c.m. X muscle deep, front of chest, right side lower part, 12 c.m. below medial right nipple.
(iii) Incised wound 5 c.m. X 1 c.m. muscle deep inner side left elbow.
(iv) Incised wound 2 c.m. X 1 c.m. X muscle deep left side buttock lower part.
According to the doctor plura, left lung and pericardium were punctured and the heart was cut on the left side and one litre of blood was present on thoracic cavity, The cause of death was shock and haemorrhage as a result of injuries. The doctor further opined that the deceased could have died at 11 a.m on 24.09.1997. He further stated that injury No. 1 was sufficient for causing the death of the deceased.
Two witnesses of fact, PW 1 Brij Pal Singh, the father of the deceased and the appellant and PW 2 Smt. Bimla, mother of the deceased and the appellant have been examined in this case.
PW 1 Brij Pal Singh reiterated his version given in the FIR that when he entered the house after bringing fodder, he met his son Sandeep, who was carrying a bloodstained knife in his hand. To his query as to what had happened, the appellant gave no answer and ran away towards the jungle. When he went inside, he saw his other son Arvind alias Bholu lying drenched in blood on a cot. He had knife injuries on his person. Having concluded that the appellant had committed the murder of this brother, he dictated the report to Raj Pal Singh and after signing it, submitted it at the police station. He admitted that there was no quarrel between the deceased and the appellant prior to the incident.
P.W. 2 Smt. Bimla, the mother of the deceased and the appellant has deposed that the deceased was in his Angan and he was getting ready to take a bath with a bucket at the tap in the court yard. At that time the appellant was near the deceased, but when she came down, on the arrival of her husband, she found that Arvind had received knife injuries. At that time the appellant Sandeep was not present in the house. Her husband told her that the appellant had given knife blows on the deceased and had thereafter run away. He had seen him going away with a knife. She herself did not see Sandeep, the appellant giving knife blows or running away from the place. It was 11 a.m. at that time. She also admitted that there was no previous enmity of the two brothers, i.e. the appellant and the deceased and they never quarreled earlier.
When her attention was drawn to her 161 Cr.P.C. statement, she denied having given any such statement to the investigating officer. The said statement (Ext. Ka 13 ) mentioned that she was an eyewitness of the incident. At 11 a.m. Sandeep, the appellant came to the tap in the courtyard for bathing, but the deceased Arvind said he was first going to take his bath. At that time Sandeep asked the deceased to remove the bucket, but he refused and said that first he would bathe, then the appellant could bathe. On this the two brothers began to quarrel. The elder brother Bholu brought a little stick and proceeded towards the appellant, then the appellant Sandeep picked up a knife and by the time she could stop Sandeep, he had given knife blows to Arvind alias Bholu. Then Sandeep ran away from the house. By then his father had arrived.
In his statement under section 313 Cr.P.C. the accused denied having participated in the incident and stated that he had falsely been implicated in the case due to enmity.
It was argued by the learned counsel for the appellant that the chain of circumstances for establishing the guilt of the appellant in this offence is not complete. There is only the evidence of the father of the deceased PW 1 Brij Pal Singh, who stated that he saw the appellant Sandeep with a knife. The statement to the police under section 161 Cr.P.C. (Ext. Ka 13) given by Smt. Bimla the mother of the appellant and the appellant cannot be read in evidence. She has turned hostile and has been cross-examined by the prosecution as she has denied being an eye witness in Court and disclaims having seen the appellant assaulting the deceased although she was present in the house. Both Brij Pal Singh and Smt. Bimla admit that there was no previous enmity of the two brothers. As nothing was recovered from the appellant nor has any extra judicial confession been made by him, on the basis of the sole testimony of PW 1 Brij Raj Singh of having seen the appellant armed with a bloodstained knife leaving the house when he arrived, who did not respond to his queries as to what had happened, and thereafter by finding the other son Arvind lying in the house with knife wounds, on this solitary circumstance it would be unsafe to record the conviction of the appellant.
To this contention, learned Additional Government Advocate replied that there was no reason for false implication of the appellant by his own father, who saw him armed with a bloodstained knife. The mother may have turned hostile because she would be unhappy in sending her other son to jail after losing her elder son Bholu, but she has admitted that both the appellant and the deceased were present on the ground floor of the house near the tap. But when her husband came and cried out for her, she came down, at that time the appellant was not there. It was further argued by the learned AGA that in such circumstances the onus lay on the appellant under section 106 of the Evidence Act to explain as to how the deceased had died.
We see force in the submissions of the learned AGA. There was no reason why the father would falsely nominate his son for the murder of his other son as no enmity beyond a blank statement of the appellant in his statement under section 313 Cr.P.C. that he had been falsely implicated due to enmity, has been brought on record. In a natural manner the father states that he had arrived at the spot after collecting fodder and he had found the appellant carrying a bloodstained knife in his right hand. When he inquired from the appellant as to what had happened, the appellant gave no answer and ran in the direction of Jungle. The deceased had no other enemy, who could have committed the murder at 10.30 a.m. in the house, nor was anyone else, other than their mother, present at the house at that time, and therefore when PW 1 Brijpal saw his other son lying on the cot inside the house with injuries he concluded that it was his son (the appellant Sandeep), who had committed the murder of his other son Arvind, whom he had seen going away with a blood stained knife. The version of the mother PW 2, Smt. Bimla, although she has departed from her 161 Cr.P.C. statement given to the investigating officer (Ext. Ka 13), at least admits that immediately prior to the incident both the appellant and the deceased were present at her courtyard near the tap and Arvind was about to take a bath. Thereafter her husband arrived and called her and when she came down, by then Sandeep had disappeared and Arvind was lying dead with knife injuries on his person. However, she claimed that Arvind was absent at that time and only her husband had told her that Sandeep had stabbed Arvind and run away and that he had seen him running away. However, the part of her statement where she denied being an eye witness who had seen the knife assault by the appellant of her other son was challenged by the prosecution and she was declared hostile.
We also feel that this witness is not speaking the complete truth so far as the part of the statement where she states that she has not seen the appellant assaulting the deceased with a knife.
In any case, learned AGA has rightly contended that even according to PW 2 Smt. Bimla, his mother the appellant was present along with the deceased a few moments prior to the incident and then the appellant was seen with a bloodstained knife by his father who had just arrived at the house and then the appellant ran away without responding to his father's query as to what had happened. In such circumstances it was for the appellant to explain as to how the deceased was lying dead in the courtyard as no person other than Smt. Bimla had access to the deceased at that time and on these facts the onus lay on the appellant under section 106 of the Indian Evidence Act to explain as to how the deceased had died. He has clearly failed to discharge this onus by stating that he had been falsely implicated due to some unspecified enmity. These facts, in our view, are sufficient to complete the chain of circumstances against the appellant and for reaching a conclusion that he alone had stabbed his brother with a knife.
The alternative argument raised by the learned counsel for the appellant was that there appeared to have been a sudden quarrel between the two brothers, perhaps over taking a bath at the tap of their house. In the course of that quarrel if the appellant gave knife blows to the deceased, only one of which, the injury No. 1, proved fatal, the case against the appellant would not go beyond section 304 part II IPC at the highest.
Learned Additional Government Advocate, however, argued that there is no evidence of any quarrel between the appellant and the deceased at the time of incident, if the statement of Smt. Bimla under section 161 Cr.P.C. is excluded.
In our view, there is force in the second submission raised on behalf of the appellant. Both the father and mother of the appellant have admitted that there was no previous enmity between the two brothers. Even if the appellant had committed this crime, the incident appeared to have taken place all of a sudden without any premeditation after a possible quarrel of the two brothers. No doubt this Court is precluded from treating the statement given by Smt. Bimla to the police under section 161 Cr.P.C. ( Ka-13) as substantive evidence. Only her evidence in Court can be taken into account. But even in the absence of an eye witness account, this Court can on the the basis of the circumstances of the case reach an inference that there is some material to suggest that the two brothers had quarrelled over bathing or for any other reason. There was no previous enmity between the two, as both PW 1 Brijpal and PW 2 Smt. Bimla admit. The partly hostile witness PW 2 Smt. Bimal admits that both were standing near the tap. Immediately thereafter the appellant left the house with a blood stained knife in his hand, which was seen by his father PW 1 Brijpal. Even if the appellant who has been poorly defended by an amicus curiae before the trial court, and has only taken a plea of denial and not set up the defence of a quarrel preceding the incident, on the circumstances of this case, in our view the Court can legitimately infer that a quarrel may have taken place resulting in the incident. Also if we examine the injuries received by the deceased Arvind, we also find that three of the injuries, i.e. injuries No. 2 to 4 are only muscle deep injuries and the injuries No. 3 and 4 are on the buttock and elbow and injury No. 2 is a muscle deep injury on the chest and it was only injury No. 1, which was a stab wound 3.5 cm x 1 cm on the left side of the chest, which caused the damages under it, which have been described above. The doctor has also admitted that this was the solitary injury which proved fatal. Looking to the nature of injuries and the possibility of a quarrel between the appellant and the deceased preceding the assault, the case could be covered under Exception 4 to section 300 IPC. Exception 4 reads thus -
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.
In AIR 2009 SUPREME COURT 87 "Budhi Lal v. State of Uttarakhand," it has been held that murder is the specie of the genus culpable homicide not amounting to murder and that special characteristics are needed for bringing a case within the folds of section 302 IPC. Thus the above law report reads at paragraph 12:
"?.......In the scheme of the IPC culpable homicide is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice-versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder is culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognizes three degrees of culpable homicide. The first is, what may be called, 'culpable homicide of the first degree'. This is the gravest form of culpable homicide, which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of Section 304. Then, there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304."
In Munshi Ram v. Delhi Administration, AIR 1968 Sc 702, it has been held that even if only a plea of the denial has been raised by the accused under section 342 (now s. 313) Cr.P.C., the Court is not precluded from giving an accused the benefit of the right of private defence, if on the basis of some material on record, or cross-examination or by examining defence witnesses the foundation for such a finding can be laid. This is also the principle laid down by the Full Bench of the Bombay High Court in Emperor v. Shaikh Hasan Abdul Karim, AIR 1944 Bom. 274 (FB). Pari Passu, this principle could also apply for the Court reaching a finding that only a case of culpable homicide not amounting to murder instead of murder was disclosed, because some material existed on record for the Court for arriving at a finding that one or the other exception to section 300 IPC or some other circumstance exonerative of the accused existed for reducing the severity of the charge.
In this background, after a careful consideration of the overall facts and circumstances of this case we are of the view that the appellant is guilty of an offence of culpable homicide not amounting to murder and he is acquitted of the charge of murder awarded by the trial judge.
Furthermore even though it may not be possible to reach a conclusion that the case would fall only under section 304 part II IPC as in view of the fact that repeated knife blows were given by the appellant to the deceased it could not be said that the acts done by the appellant were only "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," but at least an inference could legitimately be drawn that the blows were given "with the intention of causing death, or of causing such bodily injury as is likely to cause death" and the appropriate provision for recording his conviction would be under section 304 part I IPC.
In view of the above, the ends of justice would be met if the conviction of the appellant under section 302 IPC is substituted by one under section 304 Part I IPC. Accordingly the sentence of the appellant to imprisonment for life and fine of Rs. 5000 with a default stipulation of 3 months R.I. under section 302 IPC is altered to a sentence of ten years R.I. and a fine of Rs. 5000/- under section 304 part I IPC. In the event of default in payment of fine, the appellant will undergo further three months RI. In case the appellant has served out the sentence as awarded hereinabove he may be released forthwith, unless he is wanted in connection with any other case.
The Appeal is partly allowed as above.
Order Date :- 17.2.2011 Ishrat