Allahabad High Court
Ramesh vs State Of U.P. on 27 November, 2018
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Umesh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No.3 CRIMINAL APPEAL No.2007 of 1987 Ramesh ----- Appellant Vs State of Uttar Pradesh ----- Respondent. ____________________________________________________ For Appellant : Sri Vimlendu Tripathi, Advocate Sri J S Malviya, Advocate For Respondent/State : Sri Amit Sinha, AGA ________________________________________________________ Hon'ble Pritinker Diwaker, J.
Hon'ble Umesh Kumar, J.
Per: Pritinker Diwaker, J.
1. This appeal arises out of the impugned judgment and order dated 03.07.1987 passed by the Xth Additional Sessions Judge, Moradabad in Sessions Trial No.421 of 1986 (State vs. Ramesh), convicting and sentencing the appellant under Section 302 of IPC, to undergo rigorous imprisonment for life.
2. As per prosecution case, appellant-Ramesh and deceased Ashok Kumar were friends and there used to be monetary transactions between them. On 13.06.1986 at about 10:00 PM, there was some exchange of words between the two friends and it is said that the deceased was demanding his money from the appellant. Some scuffle took place between the two and the appellant gave a single blow of knife on the upper side of left clavicle of the deceased. The deceased was immediately taken to hospital where he was declared brought dead. FIR-Exhibit Ka.6 was lodged on 13.06.1986 at 11:50 PM by PW-1-Shyam Lal, father of the deceased based on which, offence under Section 302 of IPC was registered against the appellant. Inquest on the dead body was conducted on 14.06.1986, vide Exhibit Ka.4 and the body was sent for postmortem which was conducted, vide Exhibit Ka.3 on 14.06.1986 by PW-5-Dr A K Goyal. As per autopsy surgeon, following injuries were noticed on the body of the deceased:
"i) Incised wound 2 1/2 cm x 1 cm x chest cavity deep on the left side chest just above the middle of left clavicle.
ii) abrasion 1 x 1/2 cm on the back of right elbow.
iii) abrasion 1 cm x 1 cm on the left side back near the axilla."
As per autopsy surgeon, the cause of death of the deceased was shock and haemorrhage as a result of injury described.
3. The said incident is said to have been witnessed by three eye witnesses, namely, Shyam Lal-father of the deceased, Veerwati-mother of the deceased and Pushpa-wife of the deceased.
4. While framing the charge, the trial Judge has framed the charge against the appellant under Section 302 of IPC. So as to hold the accused-appellant guilty, the prosecution has examined seven witnesses. Statement of accused-appellant was also recorded under Section 313 of Cr.P.C. where he pleaded his innocence and false implication.
5. By the impugned judgment, the trial Judge has convicted the appellant under Section 302 of IPC and sentenced him to undergo rigorous imprisonment for life.
6. Counsel for the appellant submits:
(i) that the relations between the appellant and the deceased were very cordial. However, on the date of incident, there was some hot talk between the two and it appears that in a sudden fight, in the heat of passion, the appellant gave a single blow of knife on the upper side of left clavicle of the deceased, resulting the unfortunate death of the deceased.
(ii) that the incident occurred without premeditation and, therefore, at best, the appellant is liable to be convicted under Section 304 Part-II of IPC. The appellant has already remained in jail for about one year, seven months and 18 days. He is aged about 73 years; does not keep good health and, therefore, a lenient view be taken and the sentence already undergone by him may serve the ends of justice.
7. Counsel for the appellant, in support of his argument, placed reliance on the following cases:- (i) Jagtar Singh vs. State of Punjab1, (ii) Ranjitham vs. Basavaraj and Ors2, (iii) Ankush Shivaji Gaikwad vs. State of Maharashtra3, (iv) K. Ravi Kumar vs. State of Karnataka4, (v) Laxmi Chand & Anr. vs. State of Uttar Pradesh5, (vi) Maqsood & Ors. vs. State of U.P.6, (vii) Sarup Singh & Ors. vs. State of Haryana7, (viii) State of Karnataka vs. Muddappa8, and (ix) Krishna Deo & Ors. vs. State of U.P.9.
8. On the other hand, supporting the impugned judgment and order, it has been argued by the State Counsel that the conviction of the appellant is in accordance with law and there is no infirmity in the same. State counsel further submits that no leniency is required to be shown to the appellant who killed his own friend.
9. Heard counsel for the parties and perused the record.
10. PW-1, Shyam Lal is the first informant and is father of the deceased. While supporting the case of the prosecution, he has stated that the appellant and the deceased were having friendly relations and there used to be monetary transactions between them. He states that some exchange of words were there between them and during a scuffle, the appellant gave a blow of knife near the neck of the deceased, resulting his death. In paragraph 10, he has reiterated that there was friendship between the two since last about one year. He has further stated that only one injury was sustained by the deceased.
11. PW-2, Veerwati, mother of the deceased, has made almost similar statement as has been made by PW-1, Shyam Lal. She stated that the accused-appellant was holding the hand of the deceased and was trying to pull him and then the incident occurred.
12. PW-3, Pushpa, wife of the deceased, has also stated that there was some scuffle between the two and the incident occurred.
13. PW-5- Dr A K Goyal, is the autopsy surgeon, who noticed one incised wound on the chest cavity deep.
14. Close scrutiny of the evidence, makes it clear that the appellant and the deceased were friends and having good relation and there also used to be monetary transactions between them. On the date of incident, there appears to be some exchange of words between them and a scuffle also took place and during the said scuffle, the appellant gave a single blow of knife on the upper side of left clavicle of the deceased, resulting unfortunate death of the deceased.
15. From the evidence of the witnesses, it is apparent that there was no premeditation on the part of the appellant to commit offence. The incident occurred in a sudden fight in the heat of passion upon a sudden quarrel and, admittedly, the offender has not taken any undue advantage or acted in a cruel or unusual manner. Thus, the case of the appellant would fall under Exception 4 of Section 300 of IPC, that is 'culpable homicide not amounting to murder'.
16. In Ranjitham v Basavaraj & Ors., the Supreme Court, while dealing with the similar issue, observed in paragraphs 28, 29, 30 and 31 as under:
"28. In Hari Ram vs. State of Haryana, (1983) 1 SCC 193, there was an altercation between the appellant and the deceased. The appellant had remarked that the deceased must be beaten to make him behave. He thereafter ran inside the house, brought out a jelly and thrust it into the chest of the deceased. This Court observed that in the heat of altercation between the deceased on the one hand, and the appellant and his comrades on the other, the appellant seized a jelly and thrust it into the chest of the deceased. This was preceded by his remark that the deceased must be beaten to make him behave. Therefore, it does not appear that there was any intention to kill the deceased. This Court, therefore, set aside the conviction of the appellant under Section 302 IPC and instead convicted him under Section 304 Part II IPC and sentenced him to suffer rigorous imprisonment for five years.
29. In Jagtar Singh vs. State of Punjab, (1983) 2 SCC 342, in a trivial quarrel the appellant wielded a weapon like a knife and landed a blow on the chest of the deceased. This Court observed that the quarrel had taken place on the spur of the moment. There was exchange of abuses. At that time, the appellant gave a blow with a knife which landed on the chest of the deceased and therefore, it was permissible to draw an inference that the appellant could be imputed with a knowledge that he was likely to cause an injury which was likely to cause death but since there was no premeditation, no intention could be imputed to him to cause death. This Court, therefore, convicted the appellant under Section 304 Part II IPC instead of Section 302 IPC and sentenced him to suffer rigorous imprisonment for five years.
30. In Hem Raj v. The State (Delhi Administration), 1990 Supp. SCC 291, the appellant and the deceased had suddenly grappled with each other and the entire occurrence was over within a minute. During the course of the sudden quarrel, the appellant dealt a single stab which unfortunately landed on the chest of the deceased resulting in his death. This Court observed that (SCC p. 295, para 14) as the totality of the established facts and circumstances show that the occurrence had happened most unexpectedly, in a sudden quarrel and without premeditation during the course of which the appellant caused a solitary injury to the deceased, he could not be imputed with the intention to cause death of the deceased, though knowledge that he was likely to cause an injury which is likely to cause death could be imputed to him. This Court, therefore, set aside the conviction under Section 302 IPC and convicted the appellant under Section 304 Part II IPC and sentenced him to undergo rigorous imprisonment for seven years.
31. In V. Subramani, (2005) 10 SCC 358, there was some dispute over grazing of buffaloes. Thereafter, there was altercation between the accused and the deceased. The accused dealt a single blow with a wooden yoke on the deceased. Altering the conviction from Section 302 IPC to Section 304 Part II IPC, this Court clarified that it cannot be laid down as a rule of universal application that whenever death occurs on account of a single blow, Section 302 IPC is ruled out. The fact situation has to be considered in each case. Thus, the part of the body on which the blow was dealt, the nature of the injury and the type of the weapon used will not always be determinative as to whether an accused is guilty of murder or culpable homicide not amounting to murder. The events which precede the incident will also have a bearing on the issue whether the act by which death was caused was done with an intention of causing death or knowledge that it is likely to cause death but without intention to cause death. It is the totality of circumstances which will decide the nature of the offence."
17. The next question, which arises for consideration before this Court, is whether the case of the appellant would fall under Section 304 Part-I of IPC or it would fall under Section 304 Part-II of IPC.
18. Admittedly, there was no intention on the part of the appellant to cause such injuries. However, it can safely be inferred that he had the knowledge that injuries caused by him are likely to cause death of the deceased.
19. The judgments relied upon by counsel for the appellant are of no help to him considering the facts and circumstances of the case, in particular, the manner in which the assault was made and the portion of the body where the same was made.
20. Considering the overall evidence, we are of the view that the appellant is liable to be convicted under Section 304 Part-II of IPC. So far as the sentencing part is concerned, we find no substance in the arguments advanced by counsel for the appellant that leniency is required to be shown to him. Taking the part played by the appellant, in our considered view, ends of justice would be served, if the appellant is sentenced to five years rigorous imprisonment.
21. The appellant is on bail. He be taken into custody forthwith for serving the remaining sentence.
22. In addition to five years sentence, the appellant shall also be liable to pay a compensation of Rs.10,000/- (Rupees Ten Thousand Only) under Section 357 of Cr. P.C. In case, the appellant fails to deposit the said amount of compensation, he shall undergo additional sentence of six months. The amount so deposited by the appellant shall be disbursed to PW-3-Pushpa, wife of the deceased by the concerned Court.
23. The appeal partly succeeds and is allowed, accordingly.
Dated:27.11.2018 RKK/-RK (Pritinker Diwaker, J) (Umesh Kumar, J)