Allahabad High Court
Raja Ram Kewat & Another vs State Of U.P. on 19 April, 2017
Bench: Bharat Bhushan, Shailendra Kumar Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 44 Reserved Case :- CRIMINAL APPEAL No. - 60 of 2002 Appellant :- Raja Ram Kewat & Another Respondent :- State Of U.P. Counsel for Appellant :- S.K. Srivastava, C.P. Singh, D.N. Pandey, P.N. Pandey, Rama Nand Pandey, S.N. Mishra, S.N. Singh Counsel for Respondent :- Govt. Advocate Hon'ble Bharat Bhushan,J.
Hon'ble Shailendra Kumar Agrawal,J.
(Delivered by Hon'ble Shailendra Kumar Agrawal, J)
1. Heard Shri Harish Chandra Tiwari and Shri S.N. Mishra, learned counsel for the appellants and Shri Rajeev Sharma, learned A.G.A for the State and perused the record.
2. This appeal has been preferred by accused/ appellants Raja Ram Kewat and Daya Ram Kewat, who were tried by the Sessions Judge, Basti in Sessions Trial No.299 of 1999 (State Vs. Raja Ram Kewat and another), under Section 302 IPC, Police Station Mahuli (Sant Kabir Nagar). The Sessions Judge by his judgment and order dated 15.12.2001 found the appellants guilty under Section 302 IPC and sentenced them to life imprisonment along with fine of Rs.25,000/- each.
3. The brief facts of the case are that the informant, Hanuman son of Kalu Kewat, resident of Village Bhitkini, P.S. Mahuli, District Sant Kabir Nagar, lodged a written report Ex. Ka7 at Police Station Mahuli that on 09.07.1999 the informant, Hanuman and his father were erecting Madai (thatched roofing). At that point of time, the two accused/ appellants namely Raja Ram Kewat and Daya Ram Kewat, who are Pattidars of the informant, came and asked the informant and his father Kalu to remove Madai from the way, the informant replied that he would clear the way with the assistance of other villagers, but accused/ appellant Raja Ram assaulted deceased Kalu Kewat with a piece of brick and accused/ appellant Daya Ram with Mungari at about 1.30 p.m. On account of the said injuries, Kalu Kewat fell down on the ground. The incident was witnessed by Sunita Devi, the wife of informant Hanuman and Banshu Kewat, Satya Narain Yadav and others of the village, who intervened in the matter. Kalu Kewat died within half an hour of the incident due to the said injuries.
4. On the basis of written report of the incident dated 09.07.1999 made by the informant, a Chik FIR Ex. Ka2 was prepared and in crime no.257/1999, case was registered under Section 304 IPC at P.S. Mahuli, District Sant Kabir Nagar against the accused/ appellants and entry to this effect was also made in the General Diary. The investigation of the case was taken up by Sri Dhara Charya Pandey, Station House Officer of P.S. Mahuli. He went at the spot in village Mitkini and completed inquest process of the dead body of Kalu and further prepared documents for postmortem of the dead body. He dispatched the dead body duly sealed through two constables namely CP301 Jai Prakash Pandey and CP-22 Ram Bhajan Singh, P.W.4. He recorded statement of the informant Hanuman and did inspection of the spot and prepared site plan. On 10.07.1990, he arrested accused Raja Ram Kewat and recorded his statement and prepared memo of arrest, Ex. Ka14. He arrested another accused Daya Ram Kewat on 11.07.1999 and prepared memo of arrest Ex. Ka15. The postmortem of the dead body of Kalu Kewat was conducted at District Hospital, Basti on 10.07.1999 at about 4:30 p.m. by Dr. S.K. Mal, P.W.7. Following ante-mortem injuries were found on the dead body :-
(i) Lacerated wound 2cm x 1cm x bone deep on forehead mid-line underneath bone fractured.
(ii) Contusion 4cm x 2cm, 2cm above right ear on right scalp.
(iii) Contusion 10cm x 8cm on ant. of the left lower chest underneath ribs 6th to 8th fractured.
(iv) Contusion 5cm x 3cm on back of right chest lower part.
(v) Abrasion 2.5cm x 1cm on inner aspect of right forearm at mid level.
There was fracture of frontal bone of skull and of Lt. 6th to 8th ribs. Left lung was ruptured.
5. In internal examination, fracture of frontal bone of skull was found. The membranes of the brain, the brain and pleura were found congested. In the abdomen, pasty material and in the intestine, faecal matter and gas were found. In the opinion of the doctor, the death was on account of shock and hemorrhage as a result of ante-mortem injuries. The death had taken place one day before postmortem. The rigor mortis was present in all the four limbs but had passed off from the neck.
6. After completion of investigation, charge-sheet Ex. K17 was submitted against the accused/ appellants under Section 304 IPC. Accused/ appellants were formally charged for the offence u/s 302 I.P.C. The accused pleaded not guilty and claimed to be tried, as such, the prosecution was directed to prove its case.
7. To prove its case the prosecution has examined as many as ten witnesses, out of whom Smt. Sunita, wife of informant Hanuman P.W.1, Hanuman P.W.2, Banshu P.W.5 and Satya Narayan P.W.6 were examined as witnesses of facts. PW-2, Hanuman proved his written report Ex. Ka 1. Prosecution further examined formal witnesses Head constable Harish Chandra Prasad as P.W.3, Constable Ram Bhajan Singh as P.W.4, Dr. S.K. Mal as P.W.7, Gama Yadav as P.W.8, Sri Dhara Charya Pandey as P.W.9 and constable Vishnu Dutt Mishra as P.W.10. Head Constable Harish Chandra Prasad, P.W.3 proved chick FIR Ex. Ka2, photo copy of General Diary of registration of case Ex. Ka.3, copy of General Diary regarding articles received from postmortem house Ex. Ka4. Banshu P.W.5 proved his thumb impression on Panchayatnama Ex. Ka.5. Panchayatnama was further proved by S.I. Dhara Charya Pandey, P.W.9. He further proved challan lash, letters to C.M.O., Photo lash specimen of seal Exs. Ka8 to Ka12. He also proved site plan, Ex. Ka13 and memos of arrest of the two accused, Ex. Ka14 and Ka15 and copy of General Diary Ex. Ka 16. The charge-sheet was proved by P.W.10 constable Vishnu Dutt Mishra which is Ex. Ka. 17 on behalf of last Investigating Officer, S.I. Rajendra Prasad Mishra.
8. Appellants in their statement u/s 313 Cr.P.C. have denied the material facts of the prosecution. However, they have admitted that deceased Kalu and their father Tilaku @ Tilak were real brothers. They have also denied the fact of existence of pathway between their house. The accused/ appellant Raja Ram admitted his arrest on 10.07.1999 and also admitted Ex. Ka14, the memo of arrest. However, accused/ appellant Daya Ram claimed that he was arrested after three days of the incident. No defence evidence has been produced by any of the accused.
9. The prosecution has examined PW-1 Smt. Sunita, PW-2 Hanuman, PW-5 Banshu and PW-6 Satya Narayan as witnesses of facts. Now it is to be seen and analyzed, whether PW-1 and PW-2 were present on the spot and whether they had witnessed the whole incident?
10. As PW-1 and PW-2 are son and daughter-in-law of the deceased, hence their evidence is to be analyzed with great care and caution. PW-1 Sunita has stated that in the month of Kartik, she, her husband and her father-in-law were inside the house. Her husband and father-in-law were erecting Tati in Chhappar. Accused persons stopped erection of Tati. Her father-in-law agreed to remove the Tati. But accused Daya Ram holding Mungari and Raja Ram holding piece of brick assaulted her father-in-law, who fell down and died on the spot. He was also beaten on the chest and testicles. She also stated that this incident was seen by her husband and by two other persons of the same village. PW-2 also corroborated the version of PW-1 and also specified the name of these witnesses as Banshu, PW5 and Satya Narayan, PW6.
11. PW-5 Banshu, resident of Village Mitkini, stated that he had not seen the incident of murder of Kalu, but reached the spot immediately after the murder. It shows that place of occurrence is house of Kalu at Village Mitkini. He has not been challenged on this point from the side of accused. He has also stated in his cross-examination that the police of Chowki reached there. This witness has also stated that this Madai belonged to Hanuman and Kalu. He has also said that Panchayatnama was prepared in his presence.
12. All this shows that the incident took place in this house and motive is also proved by the statement of this witness that the incident took place due to the dispute of Madai. It is true that this witness was declared hostile on the point when he stated that he did not see the incident of beating of Kalu, yet he has supported the prosecution case on many factors such as presence of Hanuman with Kalu, execution of Panchayatnama on the spot by the Investigating Officer
13. In the same way PW-6 Satya Narayan, resident of Village Mitkini and neighbour of rival parties, has also not admitted the incident of assault in his presence and was declared hostile, but he has stated that on the day of occurrence Kalu and his son were erecting Chhappar. It can't be said that the evidence of these hostile witnesses is not admissible or cannot be helpful to prosecution. In Bhagwan Singh Vs. State of Haryana, AIR 1976 SC 202 and Satpal Vs. Delhi Administration, AIR 1976 SC 294, it has been held that mere fact that a witness is declared hostile by the party calling him and allowed to be cross-examined does not make him unreliable so as to exclude his evidence from consideration altogether. His evidence is to be considered for what its worth. In Madhukar Damu Patil Vs. State of Maharastra, 1996 Crl. Law Journal, 1962, it was held that the portion of the testimony of hostile witness, which inspires confidence can be relied upon. In Rajaram Vs. State of U.P. 1978 Alld. Criminal Ruling 11, it was held that the evidence of hostile witness can be accepted in part e.g. to fix the place of occurrence and to prove his presence at the place of occurrence. All this proves that the incident took place before the house of Kalu in village Mitkini and in the presence of PW-2.
14. Both PW-1 and PW-2 have testified that Village Kusumi Chaura is just away 10 - 12 Kos (18 - 20 kilometers) from Village Mitkini. They have their agriculture holdings in both the villages and they also owned houses at both places. Learned counsel for the appellants have argued that PW-1 is admitting that till her father-in-law was alive, the farming work was being done at Mitkini and they were living at Kusumi Chaura and both accused persons also have share in the holding of village Kusumi Chaura. It shows that at the time of occurrence these witnesses PW-1 and PW-2 were not in Village Mitkini and the incident did not occur there.
15. We do not agree with the argument of the learned counsel for the appellants because PW-1 has stated in the same para that when her father-in-law died, she was on the gate of her house of village Mitkini. Learned trial court specifically asked this witness "llqj ds ejus ds igys fdrus fnu igys ls lkfdu feVfduh esa Fks". This witness clearly stated that she was in Village Mitkini on the day of murder of father-in-law. The witness has also said that "esjs llqj eq>s ys vk;s Fks", meaning thereby that her father-in-law had brought her to Village Mitkini from village Kusumi Chaura after performing the last rituals of the grandfather, who had died three months ago. No suggestion has been given from the side of accused to this witness that this incident did not occur at Village Mitkini, rather at Village Kusumi Chaura or any other place. All the evidence on record reveals that this incident took place at Village Mitkini. The Investigating Officer also prepared site plan Ex. Ka13 showing the house of deceased Kalu and its surroundings situated in village Mitkini, which is the place of incident and the Investigating Officer has not been suggested otherwise in this regard, hence we do not find any force in the arguments of the learned counsel for the appellants that this incident did not occur at Village Mitkini.
16. In para 9 of her statement PW-1 has stated that her husband and father-in-law were erecting Tati after erection of Chhappar. They started work of erecting Chhappar in morning. She was sitting on the gate of her house and Tati was being erected on the gate between 12.00 p.m. and 1.00 p.m. Incident occurred during this time. This witness has also stated that 15 - 20 villagers were helping them. After the departure of helpers, accused/ appellants came and asked them to remove the Chhappar. Her father-in-law said that he will remove the Chhappar by calling the men. Learned counsel for the appellants has argued that if 15 - 20 villagers were present for helping the deceased and Hanuman erecting the Chhappar, then why these villagers did not rescue the deceased and why were their names not disclosed? This shows that the whole story is false and concocted. We do not agree with the arguments of the learned counsel for the appellants because this witness has clearly stated in paragraph 10 of her cross-examination that these 15 - 20 villagers had already left the place of occurrence after erecting the hut. Evidence indicate that the appellants arrived on the spot after departure of other village folks.
17. PW-2 has also corroborated all these facts. He has stated that at the time of altercation, his father was present in Chhappar and the accused persons left initially due to intervention of these villagers. Assault came after half an hour of this verbal altercation. It is noteworthy that PW-1 and PW-2 are very rustic and illiterate persons, but inspite of lengthy cross-examination they were consistent on most of the facts. We find that both the witnesses are trustworthy. Incident occurred in broad day. No question of false implication arises.
18. It is also important to note that accused Raja Ram in his statement under Section 313 Cr.P.C. has admitted that "yM+dks us vkil esa >xM+k fd;k Fkk] mlds ckn eSa ugha tkurk". This factum of fight is admitted to both parties. This is also important to note that these witnesses have been suggested on behalf of the appellants that Kalu died due to fall of Chhappar. The statement u/s 313 Cr.P.C. and this suggestion itself show that Kalu died at the same place as narrated by the prosecution side. Thus it has been established and proved beyond doubt by the prosecution that the whole incident took place before the house of deceased Kalu in village Mitkini, PW1 and PW-2 were present there and they witnessed the whole incident.
19. PW-7 conducted postmortem upon the corpse on 10.07.1999 at 4.30 p.m. Dr. S.K. Mal, Medical Officer, District Hospital, Basti in his examination-in-chief has stated that injuries no.3 & 4 could be result of blow of Mungari and injuries no.1, 2 & 5 could have been caused by blow of brick. The Doctor has opined that all these injuries could have been caused on 09.07.1999 at 1.30 p.m. He has proved the postmortem report as Ex. Ka6. This has also corroborated the version of PW-1 and PW-2 that Kalu was killed by the blow of Mungari and brick. Doctor has specifically stated in his cross-examination that these injuries no.3 & 4 could not be sustained by falling down.
20. Thus, it is clear that PW-1 and PW-2 have testified in a very trustworthy manner which is supported by medical evidence.
21. Testimonies of these two witnesses are of high quality. Both have narrated the entire episode in great detail and inspite of being subjected to lengthy cross-examination, they have depicted the prosecution story in trustworthy manner. In our opinion, their testimonies are natural, convincing and in accordance with the normal human conduct.
22. The argument of the learned counsel for the appellants, that both the witnesses of facts are not reliable as both are partisan, is not acceptable. Of course, both the witnesses are partisan, but there is nothing on the record to demonstrate that witnesses of facts are either lying or economical with truth. Fact of the matter is that it is much more difficult for partisan witnesses to spare real culprits of commission of grave crime like murder and to falsely implicate someone with whom they have very close relations. There is not even a single word of enmity between both the parties. The appellants were not at all on inimical terms with the complainant side. The informant is real nephew of the accused/ appellants. The question arises why they have been falsely implicated. No defence has been given in this regard. No suggestion has been given to the witnesses of fact in this regard.
23. Learned counsel for the appellants has cited the case of Koodakkal Karian alias Alagappan Vs. State of Tamil Nadu, 1981 AIR(SC) 1230 and argued that as witnesses are partisan, their testimonies and investigation itself are tainted making the prosecution version doubtful.
24. We do not agree with the argument of the learned counsel for the appellants because though the witnesses are family members, but trustworthy. There were some laches on the part of the Investigating Officer, but it cannot be said that the accused persons have been prejudiced by it and the prosecution version cannot be believed. Learned counsel for the appellants has also cited the case of State of Punjab Vs. Sucha Singh, (2000)3 SCC 153. This ruling is also not helpful to the appellants because the prosecution has established its case beyond doubt. The evidences of eye-witnesses are natural and trustworthy. We have already carefully examined the factual evidence of PW-1 and PW-2 and we believe that there is absolutely no reason to disbelieve or to discard their testimony. As far as question of lack of independent witness is concerned, it is evident that in every case the independent witnesses are not available. It is also not necessary to produce them in every eventuality. When the witnesses of fact are not fully trustworthy then alone courts can seek some corroboration. If the evidence, produced by the prosecution is trustworthy and reliable then this evidence cannot be rejected merely on the ground that independent witnesses, though available, were not produced. Criminal cases are decided on the basis of available evidence and if it is trustworthy then even the testimony of sole witness can be relied to convict the perpetrator of the crime.
25. It has been argued that accused Raja Ram was arrested from his house on 10.09.1999. Had he murdered Kalu, he would have been escaped from his own house. The conduct of accused is in itself a proof of innocence; we do not agree with this argument. Conduct of accused depends on various factors. That alone cannot be guarantee of his innocence, especially when prosecution evidence has established the guilt of accused by trustworthy evidence.
26. Learned A.G.A. has also submitted that testimony of PW-1 and PW-2 have established the prosecution case sufficiently, which has been corroborated by the medical evidence also. We do agree with the argument of the learned A.G.A. on this score.
27. It has been argued that F.I.R. was ante-timed. This incident took place on 09.07.1999 at about 1.30 p.m. and F.I.R. was lodged on the same day at 3.40 p.m. and the distance of police station from the place of occurrence was 8 kilometers. PW-3 Head Constable Harish Chand Prasad has proved the chik FIR as Ex. Ka2 and extract of concerned General Diary as Ex. Ka3. He has also stated that information regarding incident was given to the senior officers concerned through R.T. Set.
28. Learned counsel for the appellants has argued that crime number, sections etc. have not been mentioned on the postmortem report and this is sufficient to prove that F.I.R. was not in existence till postmortem was over. It has also been argued that PW-3 has stated that concerned Circle Officer has signed original chik FIR on 12.07.1999 and concerned Magistrate saw chik F.I.R. on 14.07.1999. This shows that Section 157 Cr.P.C. has not been complied with and in support of his case, learned counsel for the appellants cited the case of Balaka Singh and others Vs. State of Punjab, (1975) 4 SCC 511.
29. As per the statement of PW-3 information was given through R.T. Set in brief on the basis of written report when the case was registered. PW-4 Constable Ram Bhajan Singh has stated that he and constable Jai Prakash Pandey received direction through R.T. Set to reach the place of incident at Village Mitkini. When they reached there, Shri Dhara Charya Pandey, Station House Officer Mahuli, Investigating Officer of the case was already present there along with some police personnel. He prepared the inquest report, thereafter dead body of Kalu was sent for postmortem through Constable Jai Prakash Pandey. Inquest report reveals that on the top of Ex. Ka5, crime number, section etc. are mentioned and also on the last page in the bottom, the list of papers sent by the Investigating Officer is also mentioned, hence it cannot be said that FIR was not in existence till 12.07.1999, the day on which the concerned Circle Officer signed on the chik FIR.
30. PW-4 himself has stated in his cross-examination that the Investigating Officer had given him the papers i.e. Panchayatnama, chik FIR etc. In the same way if Section 157 Cr.P.C. has not been complied with by the Head Constable, that does not necessarily mean that it will be the ground of acquittal. Section 157 Cr.P.C. requires that intimation of such incident to the concerned Magistrate having jurisdiction to be sent forthwith, but in the cases of State of Punjab Vs. Phola Singh, AIR 2003 SC 4407, A.C. Apparao Vs. State of Andhra Pradesh, AIR 2002 SC 3648 and in Yogesh Vs. Mahaveer and others, AIR 2016 SC 5106, it has been laid down that "Where delay in sending copy of the F.I.R. to the Magistrate has not been explained, such delay is certainly fatal for the prosecution. Failure of the prosecution to clear the doubt regarding date and time of recording the F.I.R. coupled with delay in sending the F.I.R. to Magistrate casts a serious doubt about the correctness of the F.I.R. But where no question was put to the I.O. during his cross-examination that why copy of F.I.R. was not sent to the concerned Magistrate in time, then it shall be presumed that copy of the F.I.R. was sent to the concerned Magistrate in time, as under Section 114(e) of the Evidence Act, there is presumption that such official act was performed by the concerned police official in accordance with law", and PW-9, the Investigating Officer has not been cross-examined on such point, in that circumstance, the accused/ appellants will not get any benefit. As regards the arguments that the FIR was ante-timed, no satisfactory material has been shown by the learned counsel for the appellants in support of this argument.
31. As far as arguments of delay in lodging the F.I.R. is concerned, it cannot be accepted for the simple reason that in this case F.I.R. was lodged just after two hours of incident. No question of delay, therefore, arises.
32. Learned counsel for the appellants has further argued that statement of the witnesses of fact were not recorded under Section 161 Cr.P.C. even after 17 days from the date of incident, as PW-2 has said. This incident took place on 09.07.1999, at that time the Investigating Officer was PW-9 Dhara Charya Pandey. He has admitted that he did not record the statement of PW-1 Sunita, but he was not cross-examined on the said point as to why statement of Sunita was not recorded. On the perusal of the case diary, it reveals that PW-9 Dhara Charya Pandey recorded the statement of informant Hanuman on the same day i.e. on 09.07.1999 and after 11.07.1999, he was transferred and his successor Rajendra Prasad Mishra was entrusted with the investigation and he recorded the statement of Sunita on 27.07.1999, because when the first Investigating Officer was transferred and it took almost one week to entrust investigation to new Investigator. It is not possible for the police that after taking the charge, the Investigating Officer should have reached immediately for recording the statement. There is sufficient explanation for non-recording the statements. The accused cannot take any benefit of delayed recording of the statement of Sunita specially in these circumstances when there is no contradiction in the statements of PW-1 and PW-2. Learned counsel for the appellants cited State of U.P. Vs. Bhagwan Singh and others, (1997) 11 SCC 19, but it is not helpful to the side of appellants in the circumstances discused above.In Baldev Singh VS. State of Punjab, 2013, Criminal Law Journal, 4874, the Hon'ble Supreme Court has held that if there is sufficient explanation for the delay in examining the witnesses under Section 161 Cr.P.C., then prosecution witnesses should be relied upon and the accused cannot take the benefit of such delay. In Harveer Singh Vs. Sheeshpal and others, AIR 2016, SC 4958, it was held that it is a well settled law that delay in recording the statement of the witnesses does not necessarily discredit their testimony. The court may rely on such testimony if they are cogent and credible and the delay is explained to the satisfaction of the court.
33. We do agree with the argument of the learned counsel for the appellants that the Investigating Officer was negligent as he has not shown the house of the accused persons in the site plan. PW-1 has specifically stated in her cross-examination that the house of both the parties are adjacent to each other. This is the root cause of the whole dispute. It was incumbent on the part of the Investigating Officer to show house of accused persons in the site plan. The Investigating Officer has also admitted that he did not recover the piece of brick and Mungari while it was his duty to try to recover both these articles. However, the benefit of non-recovery of both the articles cannot be given to the accused persons as eye witness account is trustworthy and consistent with medical evidence.
34. In Gopal Singh Vs. State of Jharkhand, (2013) 7 SCC 545 and Anvarul Haq Vs. State of U.P., (2005) 10 SCC 581, it has been held that if Katta and knife used in causing the injuries to the victim is not recovered by the Investigating Officer, but the doctor's evidence was available to prove that the victim had sustained gunshot injuries and the knife injuries, in that circumstance non-recovery of the said weapon was not fatal to the case of the prosecution as the injuries sustained by the victim were proved with the nature of the weapon used. The Investigating Officer has not shown in the site plan Ex. Ka13, the presence of PW-1 and PW-2. However, accused persons cannot take benefit of the laches of Investigating Officer when the case is fully proved by the oral and medical evidence by the prosecution. In Mritunjoy Biswas VS. Pranav @ Kuti Biswas and another, AIR 2013, SC 3334, it has been held that when there is ample, impeachable ocular evidence corroborated by medical evidence, mere non-recovery of weapon from the accused does not necessarily affect the prosecution case relating to murder.
35. Perusal of the FIR makes it clear that on the sudden provocation, these accused persons assaulted Kalu. PW-2 Hanuman also stated in his examination-in-chief that when accused asked his father to remove the Chhappar and when his father replied that he would do so after seeking help, accused/ appellants became annoyed and in anger they assaulted his father at about 1.30 p.m. This conduct of the accused/ appellants shows that there was no common intention to kill Kalu. Injury no.1 is lacerated wound, which is bone deep on forehead and rest of the injuries are only contusions and abrasions. It appears from the postmortem report that the assault resulting in five injuries, created shock and haemorrhage. Now can it be said that all those injuries described in postmortem were caused by the accused persons intending to kill Kalu? We are afraid that our conclusions are different. All this shows that the appellants were only interested in beating the deceased Kalu. It appears that the death of Kalu was caused by doing an act with knowledge that it was likely to cause death, but there was no intention on the part of the accused persons either to cause death or to cause such bodily injuries likely to cause death. We believe that the act of the accused persons would fall within the ambit of Section 304 Part II of IPC. In the circumstances of the case, we are inclined to hold that the appellants had no intention to cause death of the deceased. What accused/ appellants did, was result of sudden provocation. It does not necessarily indicate that the accused/ appellants shared common intention of murdering Kalu as Section 34 IPC incorporates principle of vicarious liability when an accused shares common intention with actual perpetrator of crime.
36. The learned counsel for the appellant has argued in alternate that if this Court finds the prosecution case to be proved beyond reasonable doubt then at the utmost it is a case which is covered under Section 325 I.P.C. He has placed his reliance on Shekh Karimulla @ Babu and others Vs. State of AP (2009) Crl.LJ 1551 SC. In this case accused persons alleged to have fatally assaulted deceased with sticks, iron rod and fist- except one of other eye witness ascribing only fist blow to appellant. Conviction of appellant for murder reliable to be altered to Section 325. But in this case the fire injuries were caused included injuries on forehead and chest. Considering the nature of assault and injuries, this case is not covered under Section 325 IPC, rather it is covered under Section 304 part II I.P.C. There is no evidence of prior enmity. Appellants were also not armed with deadly weapon and the whole incident occurred under provocation, without premeditation. Deceased was 70 years old person, his old age might also be contributing factor for death. Hence, in those circumstances the case is fully covered under Section 304 part II I.P.C. In the case of Sheo Prasad Vs. State, A.Cr.R. 1985 (DB) 81 Allahabad High Court, it has been held that "Merely because the doctor opines that a particular injury is sufficient in the ordinary course of nature to cause death, the case would not ipso-facto fall under Section 300 "thirdly" and the offence would not be murder. In cases of sudden quarrel without any premeditation where a single blow is caused by the accused even on the vital part and there is no intention to cause that injury which was sufficient in the ordinary course of nature to cause death, it can only be said that the accused had the knowledge that he was likely to cause an injury which was likely to cause death.
37. Under the circumstance we agree with the argument of the learned counsel for the appellants that the offence of accused persons fall within the purview of Section 304 part II I.P.C., therefore, the appeal is partly allowed and the conviction is converted from Section 302 I.P.C. to Section 304 part II I.P.C. Appellants are sentenced to six years' rigorous imprisonment under Section 304 Part II IPC with fine of Rs.25,000/- on each of them and in default to undergo an additional imprisonment of two years each.
38. Section 357 Cr.P.C. provides that trial court at the time of conclusion can grant compensation to the victim. Section 357 Cr.P.C. is being reproduced hereinbelow:
"357. Order to pay compensation.
(1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied-
(a) in defraying the expenses properly incurred in the prosecution;
(b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court;
(c) when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855), entitled to recover damages from the person sentenced for the losss resulting to them from such death;
(d) when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto.
(2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal.
(3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.
(4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision.
(5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this section."
Despite there being above provision, trial courts are reluctant to award compensation. Noticing this inhibition, Hon'ble Apex Court in the case of Hari Krishna and State of Haryana Vs. Sukhbir Singh [(1988) 4 SCC 551], has made following observations:-
"Section 357 of the Cr.P.C. is an important provision but Courts have seldom invoked it. This Section of law empowers the Court to award compensation while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to the victim who has suffered by the action of the accused. This power to award compensation is not ancillary to other sentences but is in addition thereto. It is a measure of responding appropriately to crime as well as reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We therefore recommend to all courts to exercise this power liberally so as to meet the ends of justice in a better way."
Matter was examined in great detail in the case of Smt. Nilabati Behra Vs. State of Orissa [(1993)2 SCC 746]. This was a landmark judgment which evolve a theory of compensation for the constitutional torts.
In the case of Baldev Singh Vs. State of Punjab [(1995) 6 SCC 593], Hon'ble Apex Court has held that order of compensation would be more appropriate instead of sentence of imprisonment. It has thus advanced the theory of compensation.
In the case of Vijayan Vs. Sadanandan K and another [(2009) 6 SCC 652], it was held that default in payment of compensation authorizes the Court to order a default sentence under 357 (3) and Section 431 Cr.P.C. read with Section 64 I.P.C.
In the case of Manohar Singh Vs. State of Rajasthan and Ors. [2015 (89) ACC 266 (SC)], Hon'ble Apex Court has observed that punishment to the accused is one aspect, determination of just compensation to the victim is the other.
In the case of Ankush Shivaji Gaikwad Vs. State of Maharastra [(2013) 6 SCC 770], Hon'ble Apex Court held that it is a duty of the court, to apply its mind to the question of compensation in every case and Section 357-A Cr.P.C. was inserted on 31.12.2009 to cast a duty upon the State to formulate a Victim Compensation Scheme. Thus it can be safely culled out that compensation to victim has become a rule, whether recourse is had to Section 357 or 357-A Cr.P.C. Now the question is whether an appellate court can award compensation. Section 357 (4) itself provides that order of compensation can be passed by an appellate court as well as revisional court. Moreover, appeal being continuation of trial, appellate court can exercise all the powers which are vested in the trial court as has been held in the case of Subhash Chandra Vs. S.M. Agarwal [(1984) Criminal Law Journal 481], by the Hon'ble Apex Court.
39. Thus we are of the view that just compensation should be given to the legal heirs of the deceased Kallu out of the amount of fine to be deposited by the appellants, as appellants have been directed to deposit the amount of fine Rs.25,000/- each, total amount being Rs.50,000/-, which is to be paid to the legal heirs of the deceased Kallu.
40. Appellants are on bail, their bail bonds are cancelled and sureties are discharged. They are directed to surrender within a week in the court of Sessions Judge, Basti to serve out the remaining sentence.
41. Let the lower court's record along with a copy of the judgment be sent to the court concerned immediately for information and compliance and concerned court shall report compliance within one month thereafter.
Order Date :- 19.4.2017 Anoop