Allahabad High Court
Har Vansh Singh And Anr. vs State Of U.P. on 1 February, 1993
Equivalent citations: 1993CRILJ3059
JUDGMENT A.B. Srivastava, J.
1. These are two connected criminal appeals, arising out of judgment and order dated 25-1-1978 of the II Additional Sessions Judge Bulandshahr, convicting appellant Sukhvir of the offence punishable under Section 302, IPC and appellants Harvansh and Narsingh Pal under Section 302 read with 34, IPC and sentencing each of them to imprisonment for life.
2. All the three appellants belong to the same family in so far as appellants Sukhvir and Narsingpal are sons of Harvansh. They are resident of village Dharpa Chuharpur within the jurisdiction of Police Station Khurja (Rural), District Bulandshahr. The deceased Rajvir was also a resident of the same village.
3. According to the prosecution version as contained in the First Information Report, Exhibit Ka 1, and the statements of eye witnesses, on 1-6-1977 at about 6-30 p.m. the deceased Rajvir, son of Tej Pal Singh went to the shop of appellant. Sukhvir Singh situated in the Abadi of village Dharpa Chuharpur, to sell grain and purchase bidis. As Sukhvir offered a very low price of the grain delivered by the deceased, the latter objected to the inadequate price saying that Sukhvir was indulging in looting. This led to an altercation, in which both grappled with each other. Appellant Harvansh, who at that time was present on the chabutra nearby, exhorted Sukhvir to kill Rajvir. Appellant Narsingh Pal, who was sitting on a cot nearby, stood up and caught hold of Rajvir by his waist from behind. On seeing this the eye witnesses, Ranvir Singh (P.W.2) Gajraj Singh (P.W.3) and Surendra Pal Singh, who were present in front of the house of Surendra Pal nearby and smoking Hukka, rushed towards the scene of occurrence. Meanwhile appellant Sukhvir brought out a knife from his shop and before anyone could come to the rescue of Rajvir, gave a knife blow in his chest. In the meantime the witnesses reached there and while Ranvir caught hold of Sukhvir from the waist, Gajraj Singh caught his hand with the knife and Surendra Pal caught appellant Harvansh. Appellant Narsingh Pal, however, took to heels releasing Rajvir from his grip, who fell on the ground after striking against the cot and died. Hearing the noise informant Kanchhi Singh (P.W. 1), uncle of the deceased Rajvir, and a few other persons also came running to the scene of occurrence. The eye witnesses narrated to them the incident in detail and handed over Harvansh, Sukhvir and the knife to Kanchhi Singh, who got the two persons tied by rope with the help of the village people. A written report regarding this incident, Exhibit Ka 1, along with the two apprehended accused persons and the knife was taken to the Police Station and handed over to the Head Constable writer at 8-30 p.m. the same day by informant Kanchhi Singh. The usual investigation by the police followed, in which the investigating officer Ram Kumar Tyagi (P.W. 7) reached the spot prepared an inquest of the dead body of Rajvir Singh, sent it for post-mortem examination duly sealed with all relevant papers, collected the blood stained and unstained earth from the place of occurrence, prepared a site plan and also recorded the statement of witneses.
4. The autopsy on the dead body of Rajvir was conducted by Dr. Aquil Ahmad, Medical Officer, District Hospital, Buland-shahr on 2-6-1977 at 11 a.m. and the following ante-mortem external injury was found :
"Incised wound 3/4" x 1/4" x chest cavity, just below the left nipple at 7 O'Clock position."
5. On internal examination, beneath the above external injury, the right upper part of pericardium was found cut and right auricle of the heart pierced through and through. Death of the deceased was found to be a result of shock and haemorrhage due to the aforesaid injury.
6. On submission of the charge-sheet the learned Additional Sessions Judge framed charge under Section 302, IPC against Sukhvir Singh and Section 302/34, IPC against Harvansh Singh and Narsingh Pal, to which they all pleaded not guilty. They denied the story of prosecution regarding sale of grain by the deceased on the shop of Sukhvir and the altercation and quarrel between the two on account of inadequacy of price and appellant Sukhvir Singh causing the fatal injury to the deceased on exhortation by Harvansh Singh, while the deceased had been caught from behind by Narsingh Pal. They also contended that they were called from home and taken to the police Station by the first informant and others. They also examined D. W. 1 Constable Om Prakash Tyagi, Court Moharrir to the court of C.J.M., Bulandshahr.
7. On behalf of the prosecution there were examined P.W. 1 Kanchhi Singh, P.W. 2 Ranvir Singh and P.W. 3 Gajraj Singh as witnesses of fact giving details of the occurrence. The P.W. 4 Head Constable writer Mata Singh, was examined to prove the lodging of the FIR, Exhibit Ka 1, and handing over of the Knife, Exhibit 1 along with appellants Sukhvir and Harvansh at the Police Station and preparation of the memo regarding knife exhibit Ka-2. The P.W. 4 Dr. Aquil Ahmad was examined to state about the post-mortem examination conducted on the dead body of Rajvir and the injury found on the person of the deceased, already narrated above. P.W. 6 Constable Hamid Ali stated about taking the dead body duly sealed to the mortuary. P.W. 7 S.I. Ram Kumar Tyagi stated about the various steps in investigation. The P.W. 8 Constable Satya Prakash and P.W. 9 Constable Radhey Shyam were examined to state about despatch of the case property in sealed condition from the Police Station to the office of the C.M.O., Bulandshahr and from there to the office of the Chemical Examiner at Agra.
8. The learned Sessions Judge found the charges framed against all the three accused-appellants established and sentenced them to imprisonment for life.
9. We have heard Sri G.S. Chaturvedi and Shri M. Islam appearing on behalf of all the appellants and Shri A. K. Singh learned A.G.A. and Shri Vineet Saran, appearing on behalf of the respondents and have gone through the record.
10. On behalf of the accused appellants the factum of death of Rajvir Singh on account of a stab wound in the chest, on 1-6-1977 at 6-30 p.m., has not been disputed. Also undisputed is the place of occurrence, that is the chabutra abutting the shop of appellant Sukhvir Singh. Apart from it, these facts are established, besides the unassailed evidence of the witnesses also by the medical evidence and the spot inspection of the Investigating Officer.
11. Although an attempt was made during the trial to suggest that the fatal injury to the deceased was accidental in so far as during a scuffle with another person, he fell on a cot where the knife was lying, considering the seat and nature of the injury suffered, this plea deserves to be rejected at the very outset, and was also not seriously pressed during arguments by the learned counsel on behalf of the appellants, the main thrust of his arguments being that the incident in the manner stated is not probable.
12. The main contentions advanced on behalf of the appellants by the learned counsel Shri G.C. Chaturvedi are three-fold. Firstly that the prosecution story regarding the role of appellant Harvansh Singh who is the father of the two other appellants in this incident, is highly doubtful, the incident even, according to the prosecution having occurred in the heat of moment, there could be no reason or occasion for this about 80 years old person to exhort Sukhvir Singh to kill the deceased. Secondly, as far as appellant Narsingh Pal is concerned, he was a lad aged about 15 years and as such it was not practicable for him to have caught hold of the deceased, nor was there any occasion to do so when according to the prosecution Sukhvir and the deceased were grappling with each other and in any case, while catching hold of the deceased, he could not have shared in the common intention with Sukhvir Singh to commit murder of the deceased. And, thirdly as far as appellant Sukhvir is concerned, even on the story of the prosecution regarding the genesis and the details of the incident, he cannot be attributed to have caused the single injury to the deceased with the intention or knowledge of causing death, so as to attract Section 302, IPC.
13. As far as the appellant Harvansh Singh is concerned, he gave in his statement under Section 313, Cr. P.C. his age to be 80 years. While cross-examining P.W. 3 Gajraj Singh, the suggestion however was that he was near about 70 years of age. In any case therefore, he was a fairly old man at the time of this incident. Accepting the prosecution version regarding genesis of the incident in toto, the only role assigned to him is that while the deceased and Sukhvir were grappling with each other he exhorted the latter to kill the deceased, who was showing temper, it appears rather improbable in the context on the incident which lasted for a very short while, and was not preceded by any long drawn quarrel or assault, that there could be any reason or occasion for Harvansh to have exhorted his son to kill the deceased over a trivaling (trivial) incident of bargaining about price which is very common in villages. Then it is also not borne out from the circumstances that even if an utterance of exhortation was made by this accused, it was heard by Sukhvir and he acted upon the same, and not on account of his own feeling of anger towards the deceased. The evidence led by the prosecution in this regard is also not free from doubt and contradictions. As far as P.W. 1 Kanchhi Singh, the informant is concerned, he admittedly is not an eye-witness of the incident and stated in the FIR on the basisof information given by the eye-witnesses that Harvansh told Sukhvir to kill Rajvir. While P.W. 2 Ranvir Singh stated that Harvansh, who was standing on the chabutra, exhorted Sukhvir to kill as he was showing temper, the P.W. 3 Gajraj, the other eye-witness stated that Harvansh exhorted Sukhvir to stab the deceased with a knife. These contradictions in the statements of the eye-witnesses are indicative of the fact that their version regarding the alleged role of Harvansh in this incident is more a product of imagination than reality. It is all the more so when we find from the site plan of the place of occurrence that the place from where Harvansh is stated to have exhorted is near a "chakki" at some distance from the place of occurrence. All these go to throw a serious doubt about the veracity of the prosecution story regarding the participation of accused Harvansh Singh in this incident sharing any common intention with appellant Sukhvir or exhorting him to kill the deceased. He thus is entitled to a benefit of doubt and his conviction under Section 302 read with Section 34 of the IPC. is unsustainable and deserves to be set aside.
14. As far as the prosecution case against appellants Sukhvir and Narsingh Pal, the two brothers, is concerned, it has to be considered and the evidence scrutinised, together despite the difference in the role attributed to them in this incident, in which Sukhbir is stated to have first indulged in altercation and grappling with the deceased, and on Narsingh Pal having caught hold of the deceased by waist from behind back out a knife and fatally stabbed him in the chest.
15. As far as the genesis and the immediate cause of the incident is concerned, it has consistently been stated by the eye-witnesses, P.W. 2, Ranvir Singh and P.W. 3 Gajraj, whose presence near the spot of occurrence cannot be doubted, that at first an altercation took place between the deceased and Sukhvir, when the former accused the later of indulging in looting. It was followed by grappling between the two. Although cross-examined at sufficient length, nothing has been brought out to discredit their testimony in these regards. The genesis part of the prosecution story and the immediate cause of the incident thus is fully established.
16. As regards that part of the incident which followed the initial act of altercation and grappling, also the testimony of the eye witnesses Ranvir Singh and Gajraj Singh is categorical to the effect that Narsingh Pal, the younger brother of Sukhvir, who was sitting on a cot nearby, on seeing all that was happening, went to the scene of occurrence and caught hold of Rajvir from behind. In the meantime Sukhvir picked up a knife from the shop and stabbed once the deceased in his chest. All this happened before the witnesses could realise the gravity of the situation and reach the scene of occurrence, while they apprehended Sukhvir and his father Harvansh, Narsingh Pal releasing the deceased from his grip took to heels. Having carefully gone through the entire testimony of these witnesses, we do not find any infirmity or reason to disbelieve their version regarding the participation of the two appellants Sukhvir and Narsingh Pal in this incident and the respective role played by them.
17. In fact, the learned counsel for the appellants has relied on these very facts and circumstances appearing in the evidence of the prosecution witnesses, to derive support for his contention, that in the context of what happened on the spot, there could be no reason or occasion for Narsingh Pal, who was a mere child to have caught hold of the deceased from the waist to enable Sukhvir to attack, nor even if he so cought hold of the deceased, he could share a common intention with Sukhvir'to cause the fatal injury to the deceased, we feel in this regard not much importance can be given to the age 15 years of Narsingh Pal, because even a boy of that age group could on getting agitated on the goings on between his brother and the deceased, could be prompted to catch hold of the deceased, who was physically grappling with his brother, to prevent any further onslaught on him. By his this act, however, it could not be inferred that he anticipated the bringing of a knife and stabbing the deceased by his brother, so as to incur the constructive liability for this incident with the aid of Section 34 of the IPC. The maximum he could have expected, would be some sort of assault, not necessarily stabbing or causing fatal injury. He thus at best could be said to have wrongfully restrained deceased Rajvir in- such a manner as to prevent him from proceeding beyond a certain circumscribing limit, that is the place of occurrence, within the meaning of Section 340, punishable under Section 342 of the IPC. By no stretch of imagination he could be held guilty of the offence under Section 302 read with Section 34 of the IPC and the conviction and sentence handed down on this account by the learned Sessions Judge deserve to be set aside.
18. Considering the fact that he was a child, being about 15 years of age, at the time of occurrence, and also that he had been in jail for a few weeks, after his arrest during investigation, and after conviction by the court of session, in our opinion, appellant Narsingh Pal deserves to be sentenced to the period already undergone, for the offence under Section 342 of the IPC.
19. Now there remains to consider the matter relating to appellant Sukhvir Singh. It has been argued by his learned Counsel that even on the allegations of the prosecution, and the facts established, the ingredients of the offence under Section 302, IPC are not made out against this appellant. At best the offence committed by him will be the one punishable under Section 304, Pt 2 of the IPC. in view of the fact that the incident occurred at the spur of the moment in a sudden quarrel, without any premeditation and only one injury, though in chest, was caused without any attempt to repeat the blow.
20. There appears ample force in this contention of the learned counsel for the appellants.
21. As would appear from the established facts of this case, according to the prosecution version there was no previous enmity of appellant Sukhvir with deceased Rajvir. It is also not the case of the prosecution that the appellant or for that matter the other co-accused persons had in any way pre-planned this incident. What is established from the evidence and the circumstances is that a triffling dispute regarding price of grain, payable by the appellant Sukhvir, to the deceased, suddently took the form of an altercation when the deceased made an accusation against the appellant Sukhvir of indulging in looting. During the course of altercation they also grappled with each other, seeing which appellant Narsingh Pal caught hold of the deceased from his waist, probably to prevent an on slaught on his brother appellant Sukhvir. In the meantime the appellant Sukhvir picked up a knife, generally used for cutting vegetable from his shop nearby, and inflicted a single stab injury in the chest of the deceased, which proved fatal. No attempt was made by the appellant to repeat the blow, nor any resistance is alleged to have been offered to the witnesses, who on reaching the spot of occurrence apprehended him and also seized the knife. As per the medical evidence of the Doctor conducting the post mortem examination, the injury was sufficient in ordinary course of nature to cause death, but it being established from the circumstances that the occurrence had happened in the heat of passion upon a sudden quarrel, preceded by the appellant and the deceased grappling each other, he could not be imputed with the intention of causing death or with intention to cause the particular fatal injury. At best he could be said to have the knowledge that he was likely to cause an injury which was likely to cause death. In this view of the matter one of the clauses I to III to Section 300 of the IPC will be attracted and the offence committed by the appellant will be one punishable under Section 304 Pt. II, IPC and not under Section 302 of the IPC as found by the learned Sessions Judge.
22. In taking our above view we are fortified by a decision of the Supreme Court in Hem Raj v. The State (Delhi Administration) reported in 1990 (3) JT SC 586 : (AIR 1990 SC 2252). In the said case the accused-appellant was married to the neice of P.W. 20, who was the mother of the deceased, P.W. 16 was the father of the deceased. Two days before the incident of alleged murder, co-accused of the appellant, named, Daulat Ram, had gone to the house of P.W. 16 and complained to P.W. 20 that she was not permitting the wife of the appellant to live with him and also abused her. On learning about it from his wife the P.W. 6 complained about this incident to his neighbours. On the day of occurrence at about 7-30 a.m. when P.W. 16 was standing in the verandah of his house, the appellant and his associates came there and were challenged stating that they would prove the complaint of P.W. 16 as baseless. On hearing the sudden outcry, the deceased, who felt aggrieved at the conduct of the appellant and others for having reprimanded his mother and thereafter having picked up a quarrel with his father, rushed outside the house evidently to take side with his father. It was under that circumstances that the appellant inflicted a single blow resulting in his death. The injury in the opinion of the Medical Officer was sufficient in the ordinary course of nature to cause death. On the question as to what offence was committed by the appellant the Supreme Court observed thus (at page 2254 of AIR) -
"As the totality of the established facts and circumstances do show that the occurrence had happened most unexpectedly in a sudden quarrel and without pre-meditation during the course of which the appellant caused a solitary injury, he could not be imputed with the intention to cause death of the deceased or with the intention to cause that particular fatal injury, but he could be imputed with the knowledge that he was likely to cause an injury which was likely to cause death. Because in the absence of any positive proof that the appellant caused the death of the deceased with the intention of causing death or intentionally inflicted that particular injury which in the ordinary course of nature was sufficient to cause death, neither Clause I nor Clause III of Section 300, IPC will be attracted, we are supported in this view by a series of decisions of this Court, namely, (1) Jagrup Singh v. State of Haryana 1981 (3) SCC 616 : (1981 Cri LJ 1136) (2) Kulwant Rai v. State of Punjab 1981 (4) SCC 245 : (AIR 1982 SC 126, (3) Randhir Singh v. State of Punjab 1981 (4) SCC 484: (1982 Cri LJ 195) (4) Gunnail Singh v. State of Punjab 1982 (3) SCC 185 : (1982 Cri LJ 1946) and (5) Jagtar Singh v. State of Punjab 1983 (2) SCC 342 : (1983 Cri LJ 852). Following the ratio of the aforementioned decisions, we hold in the present case that the offence committed by the appellant is the one punishable under Section 304, Part II, IPC but not under Section 302, IPC."
23. The observations made, and the principles as above laid down, by the Supreme Court, thus leave no room of doubt that the offence committed by the appellant Sukbvir in the instant case, is the one punishable under Section 304, Part 2, IPC and not under Section 302, IPC. The conviction recorded by the learned Sessions Judge in regard to appellant Sukhvir also thus deserves to be modified accordingly.
24. Coming to the question of sentence awardable to appellant Sukhvir under Section 304, Part 2, IPC, it would be found that conviction was recorded by the learned Sessions Judge in the year 1978 and he was released on bail by an order dated 14-2-1978 of this Court. Under those circumstances, and considering also the nature of incident and also that he was aged about 30 years at the time of the incident in 1977 and would be of 45 years now, in our opinion, a sentence of 5 years' R.I. to appellant Sukhvir shall meet the ends of justice.
25. The two appeals are partly allowed. The conviction of appellant Harvansh under Section 302/34, IPC is set aside and he is acquitted of the charge framed against him. His bail bonds are discharged.
26. Appellant Narsingh Pal is acquitted of the charge under Section 302/34, IPC and is convicted of the offence under Section 342, IPC and sentenced to imprisonment for the period alueady undergone. His bail bonds are also discharged.
27. The conviction of appellant Sukhvir under Section 302, IPC and sentence of life imprisonment awarded thereunder are also set aside. Instead he is convicted under Section 304, Part 2, IPC and sentenced to undergo R.I. for 5 years thereunder. He is on bail. He shall be taken in custody to serve out the sentence.