Allahabad High Court
Jamuna Prasad And Anr. vs State Of U.P. on 21 January, 2002
Equivalent citations: 2002CRILJ2073
Bench: J.C. Gupta, Imtiyaz Murtaza
JUDGMENT
1. Both the appellants have filed this appeal against the judgment and order dated 29-1-2001 passed by Sri N.K. Rajauria, Addl. Sessions Judge in S.T.No.99 of 1992 whereby appellants have been convicted under Section 302 Indian Penal Code read with Section 34 Indian Penal Code (briefly, the IPC) and each of them has been sentenced to extreme penalty of death.
2. Undisputedly, in this case two persons lost their life. They were Laxmi Narayan real brother of appellant Jamuna Prasad and Ram Gopal son of Laxmi Narayan. Appellant Asha Ram is son of appellant Jamuna Prasad.
3. Prosecution case as revealed in the F.I.R., in brief, is that on 23-2-91 Dev Prasad, his cousin Laxmi Narayan and his sons Ram Gopal and Ram Pratap had gone to their field to load harvested pea crop in their bullock cart. Dev Prasad went to water his field while Ram Gopal and Ram Pratap started loading per crop. Laxmi Narayan was sitting nearby. Appellant Jamuna Prasad and his son Asha Ram came there in their bullock cart and carried the cart in the 'Semar' field of Laxmi Narayan. Laxmi Narayan objected to it but the appellants did not pay any heed and then they came down from the cart and started assaulting Laxmi Narayan by picking Kherulua (heavy bamboo like wooden piece) from the cart. When Ram Gopal came to save his father he was also assaulted by Kherulua by both the appellants. On the alarm raised by the victims, Ram Pratap, Dev Prasad and Shiv Narayan were attracted to the scene of occurrence. Seeing the witnesses arriving both the appellants ran away. Ram Gopal and Laxmi Narayan sustained injuries. Ram Gopal became unconscious on the spot. Both of them were carried to police station Narahat by Dev Prasad and Ors. Dev Prasad P.W.2 lodged written report Ex.Ka 1 at the police station on the same day at 3.10 p.m., distance of police station being 18 kms. Head constable Mohd. Sattar Beg P.W.6 prepared Check report and registered the case in the general diary. The Investigating Officer Kumar Bahadur Singh P.W.4 took up the investigation and sent both the injured for medical aid. Dr. M.N. Singh P.W. 10 medically examined Ram Gopal on the same day at 5 p.m. and found following injuries on his person:
1. Lacerated wound.05 scalp on left parietal region 4 cms x 1 cm bone deep clotted blood present. 12 cms above the pinna of ear with swelling in an area of 10 cms x 8 cms. KILO. Adv. X-ray
2. Traumatic swelling on (right) eye, both eye lids bluish coloured K.U.O. Adv. X-ray
3. Red coloured contusion on (left) arm outer aspect 8 cm x 2 cm, 7 cms below shoulder joint.
On the same day Dr. M.N. Singh medically examined Laxmi Narayan at 5.30 p.m. and found the following injuries :
1. Red coloured contusion on scalp in mid parietal region 10 cms x 3 cms with traumatic swelling in an area of 15 cms x 10 cms K.U.O. X-ray advised.
2. Red coloured contusion on (left) side of face 8 cms x 2 cms extending up to eye socket both eye lids swollen K.U.O. X-ray advised.
Victim Ram Gopal died on the same day at 10.45 p.m. Information of his death was communicated, whereupon inquest was held and dead body under seal was sent for post mortem examination. Dr. Prakash Chandra conducted autopsy on the dead body of Ram Gopal on 24-2-91 at 4.30 p.m. Following ante-mortem injuries were found :
1. Diffused swelling present over centre skull and towards right and left parietal region.
2. Left eye swollen upper eye lid much more swollen.
On the opening, the doctor found that both parietal bones were fractured in the centre of skull. In the opinion of the doctor cause of death was due to head injury followed by coma as a result of injuries sustained over head.
4. Victim Laxmi Narayan was admitted in the hospital. His dying declaration Ex.Ka.27 was recorded by Naib Tehsildar Sri Harish Chandra Yadav P.W.8 on 24-2-91 at 9.45 p.m. It was a very short statement and was recorded after obtaining requisite certificate from the medical doctor regarding fit mental condition of the declarant. The dying declaration reads as under :
What is your name? Laxmi Narayan son of Sakhi Gopal Where do you live? Village Vamrana P.S. Narahat, district Lalitpur How you sustained Injuries? My brother Jamuna Prasad assaulted with Lathi Why this incident Occurred? It was on account of dispute of land When this dispute Occurred? Yesterday at about 8 in the morning.
5. During the course of investigation the Investigating Officer visited the scene of occurrence prepared the site plan, collected samples of simple and blood stained earth and recorded the statement of witnesses. He also interrogated victim Jamuna Prasad and recorded his statement under Section 161 Cr.P.C. on 6-3-2001, copy of which has been proved as Ex.Ka.4 wherein the deceased gave out the entire details regarding the incident.
6. Victim Laxmi Narayan also expired on 11-3-2002 at 6 a.m. Autopsy of his dead body was conducted by Dr. Prakash Chandra on 12-3-91 at 4 p.m. Following ante-mortem injuries were found :
1. Stitched healed scalp on (left) parietal region 4 cms x 0.2 cm, 12 cms above the pinna of ear.
2. Contusion on (left) arm outer aspect 3 cms X 2 cms., 7 cms below shoulder joint on section haematon present.
3. Swelling on (right) eye, both eye lids on section haematon present.
7. In the internal examination fracture of both parietal bones and frontal bone was found. There was also fracture of frontal bone on right side and right eye socket. Anterior cranial fossa on the right side was of Laxmi Narayan is Ex.Ka.31. On completion of investigation both the appellants were chargesheeted and they were duly tried before the trial Court. The trial proceeded for almost nine years.
8. In order to substantiate the charges against the appellants the prosecution produced ten witnesses, of whom Ram Pratap p.w. 1, Deo Prasad p.w.2 and Sheo Narain p.w. 3 were eye witnesses P.W.4 Kumar Bahadur Singh is the investigating officer P.W.5 Dr. Prakash Chandra proved the post mortem report of Ram Gopal and further opined that the cause of death of deceased Ram Gopal was head injury which in the post mortem report has been described as ante-mortem injury No.l. He denied the defence suggestion that ante-mortem injuries could be the result of deceased being run over by cart. Dr. M.N.Singh P.W. 10 proved the initial medical examination report of both the victims as well as the post mortem report of Laxmi Narayan. Both the doctors categorically stated that injuries of the victims were caused by blunt object and the head injury of both the deceased was sufficient to cause death in ordinary course of nature. Other witnesses are of formal nature.
9. The case of both the appellants was of total denial. They however, produced no witness in defence.
10. Learned Sessions Judge on the basis of evidence which had been brought on record came to the conclusion that the prosecution has succeeded in proving its case beyond reasonable doubt against both the appellants. Accordingly the learned Judge has convicted both the appellants under Section 302 read with Section 34 IPC. Further finding the case to be one of rarest of rare cases, the learned Judge has awarded extreme penalty of death to both the appellants and has further made reference to this Court for confirmation of death sentence.
11. We have heard Sri P.N. Misra, senior advocate for the appellants and Sri K.C. Saxena, A.G.A. for the State.
12. Learned counsel for the appellants submitted before the Court that in this case the only witness to support the prosecution case was Ram Pratap, P.W. 1 as Dev Prasad first informant P.W.2 and Sheo Narain P.W.3 did not support the prosecution case and they were declared hostile. He further submitted that the statement recorded under Section 161 Cr.P.C. of the sole eye witness Ram Pratap was recorded after three days and, therefore, his testimony should not have been accepted by the trial Court particularly when he is son of deceased Laxmi Narayan and was highly interested in seeing that both the appellants are any how convicted. It was further argued that the dying declaration is a very short statement and a perusal of the same would further indicate that the Marpit had taken place on account of some dispute regarding land while at the trial the prosecution developed the case that the appellants, started assaulting the two deceased persons when they were being objected to by Ram Gopal and Laxmi Narayan from taking their cart through their field. It was lastly argued that in any view of matter even if it be held that it were the appellants who had assaulted the deceased persons, the offence would not travel beyond Section 325 IPC or at best beyond Section 304 Part II IPC.
13. We have examined the evidence on record in the light of various submissions made by the learned counsel for the appellants. However, we are unable to accept the submission of the learned counsel for the appellants that the appellants are innocent and had not participated in the incident in question. It is true that Dev Prasad first informant P.W.2 and Sheo Narain, P.W.3 did not support the prosecution case and were declared hostile but there still remained the evidence of P.W. 1 Ram Pratap whose evidence we have examined carefully and find that the same gets full corroboration from the medical evidence as well as the dying declaration of the deceased. The incident occurred in broad day light and both the appellants being close relatives of Ram Pratap were known to him from before the incident. There is nothing on the record to doubt that the incident had occurred in broad day light. Both the victims were carried in cart to police station situated at a distance of 18 kms. and the report was lodged on the same day at 3.10 p.m. wherein both the appellants were named. Ram Pratap, P.W. 1 was also named as a witness therein. Ram Pratap is the son of deceased Laxmi Narayan. Therefore, his presence near the place of occurrence at the time of the occurrence was most natural and probable. Since both the deceased persons were assaulted with blunt objects, they must have cried and it was most natural that Ram Pratap, P.W. 1 was attracted to the scene of occurrence from the nearby place where he was present at the time of occurrence. We do not find any good reason to discard his testimony.
14. Apart from the oral evidence of P.W. 1 Ram Pratap, We have further on record dying declaration of the deceased Laxmi Narayan which was recorded on 24-2-91 at 9.45 a.m. by Naib Tehsildar Harish Chandra Yadav, P.W. 8. It was recorded in question and answer form. The Magistrate also got Laxmi Narayan medically examined by the Medical Officer who was attending him and the doctor certified that Laxmi Narayan was in fit mental condition to make statement. At this juncture it may also be relevant to mention that Laxmi Narayan survived for almost 16 days thereafter. When he was medically examined on 23-2-91 by Dr. M.N. Singh, he was not found unconscious and he was admitted in hospital. Information to record his dying declaration was sent to Magistrate who came to the Hospital on 24-2-91 and recorded the dying declaration of the deceased. We have already quoted above the dying declaration of the deceased. A perusal of the same leaves no room for doubt that it were the appellants who had assaulted the deceased and his son Ram Gopal on 23-2-91 in the morning. Laxmi Narayan was the real brother of appellant Jamuna Prasad and there was no reason for him to falsely implicate Laxmi Narayan and his son Ram Gopal in respect of an incident which occurred in broad day light.
15. On a careful examination of evidence on record, we agree with the learned Sessions Judge that it has been proved beyond reasonable doubt that both the deceased persons were assaulted by both the appellants with Khareulua on 23-2-91 at about 11 a.m.
16. The question that now arises out for consideration is as to for what offence the appellants could be held guilty ? The learned Sessions Judge has convicted both the appellants for the offence of murder under Section 302 read with Section 34 IPC. It was argued by Sri P.N. Misra for the appellants that accepting the prosecution case as it stands, the appellants could not be held guilty for the offence of murder. Even as per the prosecution story, the incident occurred all of sudden without any premeditation inasmuch as when the deceased Laxmi Narayan and his son were taking their cart through the field of accused persons, latter raised an objection whereupon both the appellants came down of their cart, pulled 'Kharelula' from their cart and assaulted Laxmi Narayan and when his son Ram Gopal came to his rescue he was also assaulted. It would thus appear.that the incident occurred at a spur of moment and no regular weapon of assault was being carried by any of the appellants. It is also pertinent to note that in the statement recorded under Section 161 Cr.P.C. which has been proved as another dying declaration of deceased Laxmi Narayan, there is also a mention that when Laxmi Narayan did not permit the appellants to pass their cart through their field an altercation took place between the victims and the appellants. P.W.I Ram Pratap further added that abuses were exchanged between the appellants and the victim Laxmi Narayan on the above issue. The dying declaration of Laxmi Narayan recorded by the Magistrate further indicates that when the deceased was questioned as to why the incident occurred, he answered that it was on account of dispute of land. Therefore, the possibility of appellants acting under grave and sudden provocation on account of deceased Laxmi Narayan's insistence in not permitting the appellants to take their cart through the field which could be the subject matter of dispute, cannot be ruled out. A perusal of injury reports as well as the post mortem reports would further indicate that each of the deceased had sustained only one fatal injury on head. The other ante-mortem injuries were not the cause of death. It has also not been clarified either in the dying declaration recorded by the Magtistrate or in the statement of Laxmi Narayan recorded under Section 161 Cr.P.C. and proved as his second dying declaration or in the statement of P.W.1 Ram Pratap that both the appellants struck one blow each on the head of each of the victims. In the absence of clear evidence as to who was the author of both the head injuries, both the appellants cannot be held guilty for the offence of murder with the aid of Section 34 & pc. particularly when the incident had occurred sudenly at a spur of moment without any pre-meditation and also when the appellants are not alleged to be carrying any regular weapon of assault with them. In the facts and circumstances of the case we are of the considered opinion that the appellants could be held guilty only for the offence punishable under Section 304 Part II IPC because it could be inferred easily that they had the knowledge that death was the likely to result on account of the acts committed by them. We, therefore, set aside the conviction of the appellants under Section 302 read with Section 34 IPC and convert it to Section 304 Part II IPC read with Section 34 IPC.
17. The next question that arises for consideration is as to what should be just and proper sentence that would meet the ends of justice. Before we proceed to take up this issue it may be pertinent to point out that learned Sessions Judge has not made compliance of the mandatory provision of Section 235(2) Cr.P.C. which inter alia requires that an accused, after he is convicted, has to be called upon to place on record relevant material and evidence having a bearing on the question of sentence. It has been repeatedly held by the Apex Court that mere hearing of oral submission on the question of sentence is not enough. The accused has to be afforded a reasonable opportunity of placing on record material in support of mitigating circumstances. In the present case on account of failure on the part of learned Sessions Judge to provide such an opportunity the appellants have been highly prejudiced in bringing on record the material/evidence having a bearing on the question of sentence. The incident even as per the prosecution case occurred on 23-2-91 and the trial remained pending for almost nine years. The appellants surrendered in the Court of Magistrate on 27-2-91 and they were sent to jail. They were released on bail on 5-4-91. They were again arrested on 17-12-91 and were released on 20-8-91. The appellants, therefore, remained in jail for a total period of 40 days during the trial and almost one year after their conviction. They both are closely related to the victims. The incident occurred on a very trivial issue and at a spur of moment. The learned A.G.A. submitted that though it was a sudden incident without pre-meditation yet this fact cannot be lost sight that in this case two persons lost their life on account of assault made by the appellants, Having regard to the facts and circumstances of the case we feel that sentence of 5 years R.I. to each of the appellants would meet the ends of justice.
18. For the reasons stated above this appeal is allowed in part. Order of learned Sessions Judge dated 29-1-2001 is modified to the extent that conviction of appellants under Section 302 read with Section 34 IPC and sentence of death are set aside, instead appellants are convicted under Section 304 Part II read with Section 34 IPC and sentenced to 5 years R.I. each. Both the appellants are in jail. They shall be detained there to serve out their respective sentence as modified by this Court. The period during which the appellants have been in jail shall be adjusted in the term of sentence awarded by this Court. The reference made by the learned Sessions Judge is rejected. Office is directed to communicate this order to the trial Court forthwith.