Allahabad High Court
Kashi Ram vs State Of U.P. on 16 January, 2019
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Umesh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 12.12.2018 Delivered on 16.01.2019.
CRIMINAL APPEAL NO. 741 OF 1988 Kashiram ...... Appellant Versus State of U.P. ....... Opp. Party. ________________________________________________________ Counsel for Appellant: Sri Akhilesh Singh, Advocate Counsel for State: Sri JK Upadhyay, AGA. ___________________________________________ Hon'ble Pritinker Diwaker, J Hon'ble Umesh Kumar, J Per : Umesh Kumar, J
This appeal has been preferred against the judgment and order dated 28.03.1988 in S.T. No. 19 of 1987 passed by Sessions Judge, Lalitpur convicting the appellant- Kashiram under Section 302 of IPC and convicting him for life imprisonment.
1- Brief facts of the case, as per the prosecution version, is that a written report Ex.Ka-2 was submitted by Rameshwar Prasad, Platoon Commandar, S.O. Jagropan, Lalitpur stating that on 06.02.1986, he was shift Incharge in FCI, Lalitpur for the period from 06.00 a.m. to 02.00 p.m. At about 12.00(noon) when he was checking the duties of Home Guards, he saw Sukh Lal, Home Guard sitting in front of Sectors- C & D of the FCI on takhat, and in the meanwhile Kashi Ram, Home Guard fired two shots by his government rifle from the corner of (runway path)hawaipatti at Sukh Lal who received injuries and fell down on takhat . The event has been seen by Home Guards namely Ramakant, Prasanna Kumar, Shikhar Chandra and other villagers. On this, a written report chick first information report Ex. Ka-7 was registered. Inspector-Incharge of the police station Nem Chandra Gupta P.W.13 reached on the spot, recorded the statement of Sukh Lal (Ex.Ka.9) and thereafter, sent the injured to hospital for treatment. The injured was admitted in the hospital. His medical examination was made by Dr. SNS Patel ( bed head ticket Ex.Ka.5) was prepared. In the hospital, the injured died at about 03.15 p.m. on the same day. Thereafter, inquest of the dead body of deceased (Ex.Ka.17) was prepared and postmortem was conducted by Dr. R.K.Agrawal. After recording statements of witnesses and completing the investigation, charge sheet ( Ex.Ka.33) was submitted by the police.
2- During investigation, recovery memo of rifle, cartridges (Ex.Ka.3) blood stained and plain earth were prepared in presence of Rameshwar Prasad (P.W.1) and sent the articles for ballistic examination. The ballistic report Ex.Ka.37 is on record which is proved by P.W.21- Ram Asrey Pandey.
3- Charges were framed against the accused-appellant under Section 302 of I.P.C. which was read over and explained to the accused appellant who pleaded not guilty and claimed for trial.
4- In support of prosecution case, prosecution has examined as many as 21 witnesses. P.W. 1- Rameshwar Prasad, P.W.2-Saku Lal, P.W.4- Prasanna Kumar, P.W.5-Pheran, P.W.6-Aaman,P.W.9-Ram Autar Dwivedi, P.W.10- Ramakant and P.W.11-Shikhar Chand are said to be eye witnesses of the occurrence, whereas Dr. SNS Patel, P.W.3, Dr. R.K. Agarwal P.W.7, Dr. J.C. Gupta, P.W.8 are the doctors who have prepared injury report, bed head tickets and postmortem report of the deceased. P.W.12, Head Constable Ravindra Kumar is a formal witness who has proved first information report and GD entry. P.W.13 is the Investigating Officer of the case, who has proved other relevant documents of the prosecution. P.W.20-Dilip Singh,is a Munsif Magistrate who has recorded statement under Section 164 of Cr. P. C of the witnesses Prasanna Kumar, Ramakant and Saku Lal, whereas P.W.21-Ram Asrey Pandey who has proved ballistic report Ex.Ka.37. Rifle cartridges and clothes have been exhibited as material Ex.Ka.1 to Ka.4. The witness P.W.21-Ram Asrey Pandey has exhibited negative of photo, ECI/TCI and enlarged photo of ECI/TCI ( Ex.Ka-5 to 8).
5- In the statement of the accused-appellant under Section 313 of Cr. P.C., he has stated that he was on his duty in Sector F & G. He denied entire prosecution version and even the recovery and seizure of his rifle and cartridges. He has further stated that he does not know when Sukh Lal was shot and said that Rameshwar Prasad, Platoon Commander came to him in Sector-G and took away his service rifle and 25 cartridges and thereafter, when he was going back to the gate from his duty, he was stopped at the gate and was arrested. Platoon Commander Rameshwar Prasad was demanding Rs. 5000/- for making him Platoon Commander and on denial to fetch the money, he was threatened to be involved in a case which he will remember for whole life. He has further stated that brother of Sujan Singh namely Mukund Singh has taken contract for loading and unloading of grains from the FCI and he often commits theft in number of food grain bags. On the day when grains were going outside, Saku Lal, Home Guard demanded receipt from the man of the contractor, then they told to keep mum, otherwise, he will be shot dead. Again,when Saku Lal stopped them, the man of the contractor fired on Saku Lal. This fire was hit on Sukh Lal(deceased). He does not know who had fired, but the contractor was present when they were picking the grains stealthily. Mukund Singh aforesaid in order to save his man, has falsely implicated him in connivance with Rameshwar Prasad- Platoon Commander.
6- The defence produced witness D.W.1 Constable 280 Jagrup Singh who has filed chick report Ex.Ka.4 of Case Crime No. 674 of 1986 dated 9.8.1986 under sections 379, 409,427 of IPC lodged against Contractor Mukund Singh Bundela and 15 others and copy of GD details Ex.Ka.5.
7- Learned Counsel for the appellant has argued that the eye witnesses have not supported the prosecution version, statement of deceased has been relied as dying declaration, which is contrary to the settled principle of law and entire prosecution version is supported and relied upon police evidences. Lastly, he has argued that the offence was committed by the appellant on sudden provocation given by the deceased, hence this offence may be altered under section 304 of IPC.
8- On the other hand, Sri Amit Sinha, learned AGA has argued that prosecution witnesses are wholly reliable and their testimony is supported by ballistic report and dying declaration of the deceased and the conviction can be based on single testimony of reliable witness. The prosecution has proved the case beyond any doubt and no interference is required in the judgment and order passed by learned Sessions Judge in the case in hand.
9- P.W.1 Rameshwar Prasad is the Home Guard. He has stated that he along with accused Kashi Ram and deceeased-Sukh Lal, were on duty at Sectors F&G. Duty hours were from 6.00 AM to 2.00 PM. Rifles 303 were provided to Sukh Lal and Kashi Ram. They were on duty with their rifles. Shikhar Chand informed him at about 12.30 PM that accused Kashi Ram has fired on Sukh Lal. After getting this information, he reached on the spot and saw that Sukh Lal was lying there in an injured position. Kashi Ram-appellant was not there. He met him near Sector-B. We caught Kashi Ram and brought to the Koath (camp),where the rifle and other weapons were kept and we locked up him there. He has also stated that Sukh Lal received injuries on the chest above nipple and below the shoulder. In presence of Ram Autar Dwivedi, Block Organizer of the Home Guard, the rifle and cartridges were calculated wherein, one cartridge was found short. He has proved recovery memo of blood stained and plain earth, though he has denied about the place from where this recovery was made but this recovery memo has been proved vide Ex.Ka-1. He wrote the first information report on the dictation of police inspector namely Soni. The report is written and signed by him i.e. Ex.Ka-2. He has also proved recovery memo regarding rifle and cartridges vide Ex.Ka-3,which is on record. Though, this witness has denied that this recovery memo was not prepared in his presence, so he cannot tell that who has prepared it. This recovery memo has been admitted under Section 294 of Cr.P.C. by the defence witness. This witness has narrated everything in support of the prosecution case, but had denied that he did not see firing which caused injuries to Sukh Lal. This witness has been declared hostile by the prosecution.
10- In his cross examination, he has stated that his Block Organizer Ram Autar Dwivedi told him that how the police inspector dictates, you write down about the occurrence. So he wrote Ex.Ka.2. He has admitted to the extent that it is rightly written in the Ex.Ka-2 that the occurrence was seen by Home Guard namely Prashant Kumar, Shikhar Chandra and other villagers. He has also stated that after the said occurrence, two cartridges were found short from Kashi Ram. One blank cartridge and another cartridge was having no blank parts was also found. The rifle and cartridges of Kashi Ram were kept separately in Koath(camp). The rifle and cartridges of Sukh Lal were lying near him. This witness has supported the prosecution version in all respect, except denying that the first information report was dictated by the police Inspector at the police station. More over, he himself did not see the incident of firing.
11- P.W.2 Saku Lal in his examination in chief has denied that he has seen the occurrence. He has stated that he was at a distance of about 1 km. from the place of occurrence. He has deposed that he saw Kashi Ram in the morning at about 6.30 AM and not thereafter. He heard that Sukh Lal was shot in between Sectors- C&D. He stated that he did not see the occurrence and has no knowledge about the same. He has admitted the fact that on the date of occurrence, Kashi Ram was having service rifle. He has also stated that Sukh Lal received injury in the duty shift from 6.00 AM to 2.00 PM. The Investigating Officer has not recorded his statement. Further, he has stated that his statement was recorded before the Magistrate on the date, on which the statements of Ramkant and Prasanna Kumar were recorded. He has signed the statement, i.e. Ex.Ka-32. This statement was given by him under pressure. So he has given his statement as shown in Ex.Ka.32 He has stated that the fact as written in his statement before the Magistrate, that on 6.2.1986, he was deployed at Sectors D&E of the FCI is incorrect.
12- P.W.3 is Dr. SNS Patel, who has proved injury report Ex.Ka-4. He has stated that the deceased was having two fire arm injuries and one exit injury on the back side. This assertion is also supported by photo naash of the deceased ( Ex.Ka-18).
13- P.W.4 Prashanna Kumar has stated that on the date of occurrence i.e. 06.02.1986, Sukh Lal and Kashi Ram were deployed at Sectors-F&G. Saku Lal was deputed at Sector G&F. He has stated that on the said date, Sukh Lal was injured by rifle shot. He has stated that Sukh Lal received rifle injury in between 11.00 AM and 12.00 PM. On hearing the voice of firing, when he reached near Sukh Lal, he found that Sukh Lal was lying north of Sectors C&D. When he saw Sukh Lal, he was having injury on his chest. The accused Kashi Ram was also standing there but he did not find cartridges. He stated that he cannot say that Kashi Ram fired upon Sukh Lal. When he reached on the spot, it was being said that Kashi Ram has fired upon Sukh Lal. Then Kashi Ram was caught hold by the Platoon Commander-Rameshwar Prasad and he took the rifles and cartridges of Kashi Ram and Sukh Lal in his possession. This witness has denied that he has gone to save Kashi Ram and therefore, he is not telling truth. He has admitted that his statement was recorded before the Magistrate ( i.e. Ex.Ka-30). He has stated that he has given statement as mentioned in Ex. Ka-30 but that was given under pressure. He was threatened that if he will not speak truth, then he will be ousted from the department, whereas kotwal has also told same thing.
14- P.W.5-Pheran, has stated in his statement that he heard voice of firing at about 1.00 PM, but he did not see that who fired on whom, but it was being discussed there that Kashi Ram has fired on Sukh Lal. Though, he is relative of the deceased, but has not supported prosecution version. He has deposed that he heard two simultaneous fire shots from a distance of 60-70 steps.
15- P.W.6 Amaan, is a relative of Sukh Lal. He has denied that on the date of occurrence, he did not go to hawaipatti for collecting bones etc. from there.
16- P. W.7- Dr. R. K. Agarwal has proved the bed-head tickets. P. W. 8-Dr. J. C. Gupta, has proved the post mortem report (Ex.Ka-6).
17- P.W.9 - Ram Autar Dwivedi, is Block Organizer of the Home Guards. He has stated that on the date of occurrence from 06.00 AM to 02.00 PM, Rameshwar Prasad, Platoon Commander was the Incharge. On the date of occurrence, Sukh Lal and Kashi Ram both were deployed in Sectors-F&G. When he heard about the occurrence, he reached the spot and found that Sukh Lal was lying on takhat having injury of fire arm on the right side of chest above the nipple and below shoulder. Kashi Ram was locked up in Koath (camp) room by the Platoon Commander Rameshwar Prasad and his rifle and cartridges were taken by him. He handed over accused- Kashi Ram at the police station. His rifle and cartridges were also handed over there and thereafter, he took Sukh Lal and other persons to district hospital where his medical examination was conducted and he was admitted in the hospital for medical treatment. He was unconscious and he expired on the same day. This witness has proved recovery memo of Rifle and cartridges (Ex.Ka-3). On the contrary to the statement of P.W.1-Rameshwar Prasad, he said that both Kashi Ram and Sukh Lal had taken basic training of firing and they were trained persons. He has denied his statement under Section 161 Cr.P.C. He has stated that he failed to know why Sukh Lal was shot by Kashi Ram. He has admitted that contents of Ex.Ka-3 and the numbers of rifles of Sukh Lal-deceased and Kashi Ram-accused is correct. From the possession of Kashi Ram, 23 live cartridges and 1 empty cartridge were deposited at Kotwali, whereas the accused Kashi Ram had received 25 cartridges at the time when he went for duty. He had specifically denied that on the dictates of police Inspector, Rameshwar Prasad asked him to write Ex.Ka-1.
18- P.W.10 Rama Kant has stated that at about 2.00 PM on 06.02.1986, he was informed that Sukh Lal has received fire arm injury and he was sent to hospital. He has stated that he also went to hospital with Sukh Lal. Contrary to the statement of P.W.9, he has stated that when Jeep reached Lalitpur, we took away Sukh Lal to the hospital. He also remained with Sukh Lal, whereas other persons took away accused Kashi Ram to Kotwali. This version seems to be natural and reliable. He has denied that in his presence, Kashi Ram fired on Sukh Lal. His statement before the Magistrate was also recorded which is Ex.Ka-31. He was pressurised by Ram Autar Dwivedi that what they have stated that should be narrated before the Magistrate, otherwise, he would be ousted from the job and he has stated what is written in Ex.Ka-31.
19- P.W.11-Shikar Chandra has denied the prosecution version and the statement under Section 161 of Cr.P.C. This witness has stated this much that on 6.2.1986, at about 12.00 in the noon, Sukh Lal received fire arm injury. He stated that he does not know whether Sukh Lal has either received one or two injuries.
20- P.W.12 Ravindra Kumar is a formal witness and he has proved Ex.Ka-7 and Ex.Ka-8.
21- P.W.13 Nem Prakash Gupta is the Investigating Officer. He has supported the prosecution version and has recorded the statement of deceased. He has stated to have recorded the statement of deceased under Section 161 of Cr.P.C which is before him and whatever the deceased had said, that has been written by him. He has written in the case diary that deceased-Sukh Lal was not in a position to speak long. What he has stated, that has been reduced in writing. Later on, Sukh Lal expired in the hospital. He has filed the statement of deceased-Sukh Lal under section 161 of Cr.P.C. as dying declaration of the deceased. This witness has stated that when Kashi Ram came riding on a cycle, Sukh Lal was sitting on takhat. Sukh Lal asked Kashi Ram to get down from the cycle and then he replied that he will kill him. Sukh Lal said 'maar de'. On this Kashi Ram kept his cycle on stand, taken target and fired twice on Sukh Lal. Sukh Lal fell down on takhat after receiving fire arm injuries. Sukh Lal said that Kashi Ram is making a joke, but he knowingly fired twice and feeling uneasy, Sukh Lal said, please take me to the doctor. He has further recorded the statement of Ram Autar Dwivedi who has supported the first information report and he has exhibited the statement of Ram Autar Dwivedi as Ex.Ka-10.
22- Statement of P.W.5- Pheran under section 161 of Cr.P.C has also been proved by the Investigating Officer marked as Ex.Ka.11, Ex.Ka-12 statement of Ram Autar Dwivedi Ex.Ka.13. He has proved recovery memo regarding the rifle and cartridges ( Ex.Ka.3), wherein in his statement, he has exhibited the rifle (Ex.Ka.1), clothes Ex.Ka.2, blank cartridges (Ex.Ka.3) which were sent for ballistic examination. He has made spot inspection and prepared the site plan Ex.Ka.14. The Investigating Officer has proved blood stained and plain earth (Ex.Ka.1), GD report no. 41 exhibited by the Investigating Officer himself is Ex.Ka.15 and conversion of offence from Section 307 of IPC to Section 302 of IPC (G.D report no. 34) is Ex.Ka.15. Panchayatnama, photo naash, challan naash were prepared by Phool Chandra has been exhibited by the Court as Ex.Ka.17 to Ex.Ka-21. The letter sent to the Senior Medical Superintendent for postmortem is Ex.Ka.22. Recovery from the body of deceased-Sukh Lal is Ex.Ka.23. The statement of witness Shikar Chandra is Ex. Ka-24. The statements of witness Saku Lal is Ex.Ka.25, Prashant Kumar, Ex.Ka.26, Rama Kant Ex.Ka.27 and reports regarding recording of statements under Section 164 Cr.P.C are Ex.Ka.28 and 29, whereas, statements of witnesses Prasanna Kumar, Rama Kant, and Saku Lal are Ex.Ka-30,31 and 32 respectively.
23- In his cross examination, this witness P.W-13-Nem Prakash Gupta has stated that he reached on the spot at about 1.50 PM on 06.02.1986 where Platoon Commander of the Home Guard was present. He has stated that he started recording statement of Sukh Lal at 13.50 hours. When he recorded his statement, several persons of the Home Guard were present there. He has further stated that in the statement of Sukh Lal, he has not written the time of occurrence because, he wrote all in verbatim what the deceased was in a position to tell him. He took 2-3 minutes in recording this statement and thereafter, the injured Sukh Lal was sent for hospital. He has also stated that in Ex.Ka-3, he has narrated the details of rifle of Kashi Ram, but has not referred to in respect to second rifle in Ex.Ka.3. He has further stated that he has explained the fact in his case diary. Nothing adverse has been placed by the defence counsel in his argument against this witness.
24- P.W.14- Pancham Lal, has submitted an affidavit stating therein that on 7.2.1986, he identified deceased- Sukh Lal before the doctor and after postmortem gave him sealed cover packet and bundle of clothes which he deposited in Malkhana of Kotwali, through GD no. 58. He was accompanied by Constable Monu Singh. He has also stated that body of deceased was in tact till the body was in his custody. No cross examination has been made by the defence counsel from this witness.
25- P.W.15 Raj Kumar Jain, has also given an affidavit stating that on 19.4.1986, he has handed over 4 sealed bundles and 2 specimen mohar to Constable- Chaturbhuj, keeping sealed items in a wooden box for medico legal examiner, Agra which was sent through railways. He has supported that the materials were in tact.
26- P.W.16 Constable Chaturbhuj has supported the assertion made by P.W.15.
27- P.W.17- Lala Ram has also stated that on 11.04.1986, he deposited 4 sealed bundles in the Sadar Malkhana through GD No. 24 at 10.15 AM. No cross examination has been made from this witness.
28- P.W.18-Constable Muntazim Uddin has stated that on 19.9.1987, he was posted as Head Constable at Lalitpur and on that date, case property of the case as well rifle 303 from Kotwali has deposited in Sadar Malkhana, Lalitpur. The number of rifle was 16773-L. He is a formal witness. Like wise, P.W. 19 is also a formal witness.
29- P.W.20- Dilip Singh is the Munsif Magistrate. In his statement, he has proved Exs.Ka.31,32 and 33 of the witnesses Rama Kant, Prasanna Kumar and Saku Lal. He has stated that when he was recording the statements, none was present. The witnesses were brought by the police personnel, but they were outside the Court when their statements were recorded.
30- P.W.21-Ram Asrey is Ballistic Expert. He has stated that on 22.3.1986, he received rifle and cartridges in 2 separate bundles. He has stated that he himself checked the rifle and blank cartridges. He has proved rifle as Exs.Ka-2 and 4 cartridges Ex.Ka.3. He has stated that 1 blank cartridge and 3 other live cartridge were also received by him. Three blank cartridges are fired by him and has marked those cartridges EC1 and TC1,2 and 3. In his statement, he has provided negative and enlarged photographs Ex.Ka.5 to Ex.Ka-8 and stated about the mode of examination. He has proved the fact that by the same rifle, fire was made from the same cartridge. Nothing contrary has come out from lengthy testimony of this witness.
31- In defence, D.W.1 Jagroop Singh has proved first information report of Case Crime No. 674 of 1986 dated 9.8.1986 under Sections 379, 409, 427 of IPC at P.S. Kotwali Lalitpur against contractor Mukund Kumar Bundela and 15 others. Chick Ex.Ka-4 and G.D. Ex.Ka.5 have been proved by this witness. This occurrence is much before the present incident. Hence, this assertion cannot be relied upon. Thus, the suggestion of the defence counsel that the contractor's men might have committed the incident in question because in the course of loading and unloading, the deceased would have made objection, also has no legs to stand.
32- We have carefully gone through the arguments advanced by learned counsel for the appellant and learned AGA on behalf f State and have also made close scrutiny of the record.
33- The law is very clear that if a dying declaration has been recorded in accordance with law and is reliable and gives a cogent and plausible explanation of the occurrence of the events, then the dying declaration may be relied upon by the court as sole piece of evidence on which conviction can safely be recorded. In the facts and circumstances of the present case, the dying declaration of the deceased is not the only piece of evidence rather it is supported by eye witnesses, the doctors coupled with ballistic examination report corroborating the prosecution version. Suffice it to say that dying declaration generally means the statement made by a person as to the cause of his death or as to the circumstances of the transaction resulting into his death. If the material on record indicates that the deceased was fully conscious and was capable of making statement, the dying declaration of the deceased cannot be ignored merely because the doctor had not made the endorsement that the deceased was in a fit state of mind to make the statement in question and its admissibility depends on the principle of necessity. If the dying declaration is found reliable, it can form the basis of conviction.
34- It is also settled law that the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which, it supports the prosecution version of the evidence. The evidence of such witnesses cannot be treated as washed off the record, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corrborated by other reliable evidence. However, the court will always have to take a very cautious decision while referring to the statements of such witnesses, who turn hostile or go back from their earlier statements recorded, particularly under Section 164 Cr.P.C. What value should be attached and how much reliance can be placed on such statement is a matter to be examined by the courts with reference to the facts of a given case.
35. The aforesaid prosecution eye witnesses have not denied the prosecution version in itself. They have supported the case of the prosecution to the extent that Kashi Ram was arrested on the spot. His rifle and cartridges were seized and he was handed over to the police. The independent eye witnesses have also supported the prosecution case to the extent that they saw Sukh Lal, lying on the spot in an injured condition and he was taken away to the hospital for medical treatment, but unfortunately, during treatment, he expired. The other prosecution witnesses viz PW-14 to 18 namly Pancham Lal, Raj Kumar Jain, Chaturbhuj, Lala Ram and Mumtaz Uddin have supported and it has been stated that the rifle was kept in a sealed cover and it was intact during his custody for sending it to the ballistic examination. Moreover, ballistic report also supports firing by the same rifle.
36. In regard to the submission of learned Counsel for the appellants that entire prosecution version is based on police witnesses, suffice it to say that it has been held in Prithvi Nath Pandey Vs. State of U.P., 1994 Cr. L.J. 3623 that the evidence of a police witness cannot be rejected, if it otherwise inspires confidence of the Court and no hostility of police with the accused is shown. It is settled proposition of law that evidence of police witness cannot be discarded merely because they belong to police force and interested in success of the case, as has been laid down by the Apex Court in Baldev Singh Vs. State of Haryana decided on 4.11.2015 in Criminal Appeal No.167 of 2006 and also in Girja Prasad (dead) Vs. State of M.P. 2007(7) SCC 625. Therefore, this argument advanced by learned Counsel for the appellant is not tenable 37- Firstly, we must notice that this is not a case where the dying declaration is the only evidence against the appellant-accused or that whatever is stated in it, it is not partially or otherwise supported by other evidence giving the fact that there is no dispute to the occurrence in question, the statement of doctors, post mortem report and report of ballistic expert etc. which are admissible pieces of substantive evidence, fully corroborate the dying declaration.
38- Learned counsel for the appellant lastly, argued that keeping in view the over all assessment of the evidence and the facts and circumstances of the case, the case in hand falls under section 304 Part-I, of IPC and in support of his submission, learned counsel for the appellant has placed reliance on the decision given by the Apex Court in the case of Rampal Singh Vs. State of Uttar Pradesh (2012)8 SCC 289.
39- Classification of an offence into either part of Section 304 of IPC is primarily a matter of fact. This would have to be decided with reference to the nature of the offence, intention of the offender, weapon used, the place and nature of the injuries, existence of premditated mind, the persons participating in the commission of the crime and to some extent the motive for commission of the crime. The evidence led by the parties with reference to all the circumstances greatly helps the court in coming to the final conclusion as to under which penal provision of IPC, the accused is liable to be punished.
40- Considering several decisions, in State of A.P. Vs. Rayavarapu Punnayya (1976)4 SCC, the Apex Court while clarifying the distinction, held as under;
" 12. In the scheme of the Penal Code, 'culpable homicide' is genus versa 'murder' its species. All 'murder' is culpable homicide' but of vice versa. Speaking general,... 'culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable hoicide. The first is, what may be called, 'culpable homicide, which is defined in Section 300 as 'murder' . The second may 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 punishment provided for the three grade. Culpable homicide of this degree is punishable under the second part of Section 304."
41- Section 300 of IPC proceeds with reference to Section 299 of IPC. "Culpable homicide" may or may not amount to "murder" in terms of Section 300 of IPC. When a "culpable homicide is murder, the punitive consequences shall follow in terms of Section 302 of IPC while in other cases, that is, where an offence is " culpable homicide not amounting to murder", punishment would be dealt with under Section 304 of IPC.
42- It would not be necessary for us to deal with the case in this respect in any further detail. Of course, the principles that have been stated in various judgments of the Apex Court are the broad guidelines and not cast-iron imperatives. The cases are providing precepts for the courts to exercise their judicial discretion while considering the cases to determine as to which particular clause of Secton 300 of the Code they fall in.
43- In the present case, after close scrutiny of the dying declaration (Ex Ka-9) of the deceased-Sukh Lal, it appears to us that it is self- explanatory about non existence of premeditation and lack of motive for commission of offence in hand, from where, inference may be gathered from the conversation made between the deceased-Sukh Lal and the accused appellant- Kashi Ram prior to the commission of offence, wherein, the deceased had spoken as under;
---------cnfj;k¶r ?kk;y lq[kyky gksexkMZ ekyxksne dEiuh rjQ M;wVh gokbZ iVVh f'kcyh [kqnZ yfyriqj us ckcr mijksDr vfHk;ksx crk;k fd eSa r[r ij cSBk Fkk fd vfHk;qDr dk'khjke lkbfdy ij vk;k eSaus mldksa mrjus ds fy, dgk rks og cksyk fd xksyh ekj nwaxkA eSaus dgk fd ekj ns rks mlus lkbfdy [kMh djds cUnwd ls fu'kkuk ysdj ,dne esjs mij nks Qk;j dj fn, eSa rks xksyh [kkdj r[r ij fxj x;k Fkk dk'khjke ds cUnwd fu'kkuk ysus dks etkd le>k Fkk exj mlus tkucw> dj nks xksyh pyk dj ?kk;y fd;k gSA esjh rch;r fcxM jgh gS tYnh MkDVj ds ikl ys pyks-----A"
44- Another important aspect of this case is that it is not a case of previous animosity. There is nothing on record to show that the relation between the deceased and appellant was not cordial. It is clear that the accused-appellant has not committed the crime with any premeditation. The entire incident happended within a very short span of time. The deceased and the appellant had an altercation and incident took place all of sudden. The intention was probably to cause bodily injury.
45- After a careful scrutiny of the entire evidence, facts and cirumstances of the case in its entirety, it appears that without any premeditation, the accused-appellant has committed the offence.
46- Thus, in our view, the offence committed by the accused appellant was only 'culpable homicide not amounting to murder'. Under the circumstances of the present case, we are inclined to bring down the offence from first degree 'murder' to 'culpable homicide not amounting to murder'.
47- In view of the above discussion, we partly allow this appeal and hold the appellant guilty of the offence under Section 304 Part-I of IPC and not under Section 302 of IPC.
48- Having held that the accused is guilty of the offence under Section 304 Part-I of IPC, we hereby award a sentence of ten years rigorous imprisonment and a fine of Rs. 15,000/-, in defaualt to undergo simple imprisonment for one month. The judgment and order under challenge is modified to the above extent.
49- Since the accused-appellant is already on bail, his bail bond stands cancelled and he be taken into custody forthwith, to serve the remaining sentence.
50- This appeal is disposed of accordingly.
51- Registry to transmit the original record of the trial court and the judgment for immediate compliance to the Court concerned.
Dated: 16-01-2019 Sh.