Himachal Pradesh High Court
State Of H.P vs Shambu Mahto & Ors on 31 May, 2018
Bench: Sureshwar Thakur, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 413 of 2011.
Reserved on: 3rd May, 2018.
.
Date of Decision: 31st May, 2018.
State of H.P. .....Appellant.
Versus
Shambu Mahto & Ors. ....Respondents.
Coram
The Hon'ble Mr. Justice Sureshwar Thakur, Judge. The Hon'ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting? Yes.
For the Appellant: Mr. Hemant Vaid, Addl. Advocate General with Mr. Y. S. Thakur, Deputy Advocate General.
For Respondent No.1: Mr. Praveen Chandel, Advocate vice Mr. Surender Sharma, Advocate.
For Respondents No.2 to 5: Mr. H.S. Rana, Advocate. _______________________________________________________ Per Sureshwar Thakur, Judge.
The learned trial Court, upon, charges framed against the accused, vis-a-vis, offences punishable under Sections 302, 147, 148, 149 of the IPC, pronounced an order of conviction, upon, accused/convict Shambu Mahto under Section 304, Part-II of the IPC, and, imposed ::: Downloaded on - 05/06/2018 23:02:16 :::HCHP 2 sentence(s), upon him, to, undergo rigorous imprisonment for a period of 7 years, and, also imposed fine of Rs.10,000/-, and, in default of payment of fine amount, he, .
was, further sentenced to undergo rigorous imprisonment for one year. However, other co-accused, were, acquitted for the charges, respectively framed against them, vis-a-
vis, offences punishable under Sections 302, 147, 148 and 149 of the IPC. The State of H.P., being aggrieved by the aforesaid pronouncement, hence, through the instant appeal, has concerted to beget its reversal.
2. The prosecution case, in brief, is that on 17.10.2009 at about 9.30 p.m. telephonic information ws received from Malhotra hospital that one person has received injury on his head. On this information SI Liaq Ram, H.C. Kuldeep Singh, No.1, C. Gurmal Singh, No.212, visited Malhotra hospital, where Sanjay Kumar was lying in an injured condition. His companions were also present there. SI Liaq Ram filled form NO.24.39 for obtaining MLC and Medical Officer has stated that Sanjay Kumar was not able to give statement and the injured was referred for treatment to Nalagarh hospital. The companion of Sanjay Kumar, Ramu Verma gave statement under Section 154 of the Cr.P.C., before S.I. Liaq Ram to this effect that he is a ::: Downloaded on - 05/06/2018 23:02:16 :::HCHP 3 conductor for the last two months with trcuk No. HR-38A-
5343. On 17.10.2009, due to Diwali fair, the truck which were engaged for carrying goods of Inox Air Products .
Company, Burawala were made stationary in the parking of the company. At about 9 P.M., HE, Bharat, Devi Din, Dal Bahadur, Ashok Kumar, Sanjay Kumar and Kali were preparing food in front of the parking of the company. By that side there is a room of the company, where the drivers used to resident and int hat room Shambu, Pappu alias Pawan, Rajiv, Sita Ram etc., were there. All the aforesaid persons after entering into conspiracy came from the room carrying rods in their hands and told as the smoke is coming out and no food will be prepared there.
On this, Sanjay Kumar told them that why the food will not be prepared and then Shambu etc., told that it is their will.
On this they all started altercation with Sanjay Kumar and made attempt to kill him. Shambu gave rod blow on the head of Sanjay and others also gave rod, leg and fist blows to him. Due to beatings Sanjay Kumar became unconscious and fell down. The all rescued Sanjay Kumar from the clutches of Shambu etc. They also received simple injuries on their persons, in this process Sanjay Kumar was removed from the spot and was taken to ::: Downloaded on - 05/06/2018 23:02:16 :::HCHP 4 Malhotra Hospital, Baddi for treatment. The police also visited there and Sanjay Kumar was sent for further treatment to Chandigarh and Devi Din, Dal Bahadur, Ashok .
Kumar etc., accompanied him to Chandigarh.
3. According to Ramu Verma, Shamby and his other companions were having enmity with Sanjay Kumar and the enmity was due to vehicles (trucks) which fact was told some days ago by Sanjay Kumar to him. They all are having enmity with him and in this way Sambu and Sita Ram, Pawan, Rajiv etc. have made attempt to kill Sanjay Kumar. On the basis of aforesaid statement, earlier FIR was registered against the accused, under Section 307, 323, 324 read with Section 34 of the IPC. SI Laiq Ram during the curse of the investigation, visited the spot and on the demarcation of Ramu Verma, prepared site plan.
He also took photographs of the spot. The blood stained stone(s) were lying on the spot. In front of the room, where the drivers used to reside, there stove and other food preparing material were lying. The blood stained soil and stone were taken into possession vide separate memo by the police and was put in a plastic envelope and the envelope was put in the cloth parcel and cloth parcel was sealed with seal impression R. Statements of the ::: Downloaded on - 05/06/2018 23:02:16 :::HCHP 5 witnesses were recorded. On 19.11.2009, Sanjay Kumar, died in PGI Chandigarh. The Investigating Officer obtained the postmortem report and also took the photographs of .
the body of the deceased and thereafter offence under Section 307 of the IPC was omitted and offence under Section 302 was included against the accused. Thereafter, the police carried the investigations.
4. On conclusion of the investigation, into the offences, allegedly committed by the accused, a report under Section 173 of the Code of Criminal Procedure was prepared, and, filed before the learned trial Court.
5. The accused/respondents stood charged by the learned trial Court, for, theirs committing offences, punishable under Sections 302, 147, 148, and, under Section 149 of the IPC. In proof of the prosecution case, the prosecution examined 23 witnesses. On conclusion of recording, of, the prosecution evidence, the respective statement(s) of the accused, under, Section 313 of the Code of Criminal Procedure, were, recorded by the learned trial Court, wherein, each of the accused claimed innocence, and, pleaded false implication in the case.
6. On an appraisal of the evidence on record, the learned trial Court, returned findings of conviction, upon, ::: Downloaded on - 05/06/2018 23:02:16 :::HCHP 6 accused Shambu Mahto, for his hence committing, an offences punishable under Section 304, Part-II of the IPC.
However, the other accused were acquitted of the offences .
charged.
7. The State of H.P., stands aggrieved, by the aforesaid findings recorded, by the learned trial Court. The learned Additional Advocate General, has concertedly and vigorously contended, qua the findings of conviction, recorded by the learned trial Court, vis-a-vis accused Shambhu Mahto, for his committing an offence punishable under Section 304, Part-II, and also findings of acquittal, recorded by the learned trial Court, vis-a-vis accused Sita Ram, Bhola Mahto, Rajiv Kumar, and, Pawan Kumar, standing not, based on a proper appreciation of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation, by it, of the material, on record.
Hence, he contends qua the findings aforesaid, warranting their reversal, by this Court, in the exercise of its appellate jurisdiction, and, theirs being replaced, by findings of conviction, of the accused/respondents, for theirs committing offences punishable, under, Section 302, 147, 148, 149 of the IPC.
::: Downloaded on - 05/06/2018 23:02:16 :::HCHP 78. On the other hand, the learned defence counsel have with considerable force and vigour, contended qua all the apt findings, recorded by the learned trial Court, .
rather standing based, on a mature and balanced appreciation, by it, of the evidence on record, and, theirs not necessitating any interference, rather theirs meriting vindication.
9. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record.
10. The prosecution case, is, anvilled, upon, direct evidence, bespoken by ocular witnesses, to the occurrence. The prime prosecution witness, who, stepped into, the witness in support of the prosecution case, is, PW-
1 (Devi Deen). In his testification, comprised in his examination-in-chief, (a) he ascribes vis-a-vis co-accused Shambu, an incriminatory role of his wielding, rod Ex.P-1, and, with user thereof, his striking blows, upon, the head of deceased Sanjay, wherefrom, he testifies, of, blood hence oozing therefrom, (b) co-accused Bhola is ascribed, an incriminatory role of his wielding, an iron pipe, Ex.P-2,
(c) co-accused Sita Ram, is, ascribed an incriminatory role, of his, wielding a tyre liver, Ex.P-3, (d) and vis-a-vis other ::: Downloaded on - 05/06/2018 23:02:16 :::HCHP 8 co-accused, PW-1 in his testification embodied, in his examination-in-chief, assigns, the apt incriminatory roles, of theirs belabouring the deceased with kick and fist .
blows. However, at the end of his examination-in-chief, whereat, he stood, shown Ex.P-4 and P-5, he has testified, of theirs, being the apt weapon(s) of offences, which at the relevant time, stood wielded by co-accused, other than, accused Bhola, Shambu and Sita Ram.
11. The learned counsel, appearing for the accused/respondents, have contended with vigour, that all incrimnatory ascriptions, vis-a-vis, co-accused Rajiv Kumar, and, Pawan Kumar, of, theirs respectively wielding Ex.P-4, and, Ex.P-5, arising, from PW-1, at the end, of, his examination-in-chief, making echoings, of the aforesaid weapons, at the relevant time, being hence wielded by them, and, with user thereof, theirs hence purportedly striking blows, upon, the deceased, rather is rendered incredible, (i) emphatically, when, in the preceding part, of his examination-in-chief, PW-1 contrarily bespeaks, of, the aforesaid rather belabouring the deceased Sanjay, with, kick and fist blows. However, the strength of the aforesaid submission, is torpedoed (ii) by the learned defence counsel, while, subjecting PW-1, to cross-examination, his ::: Downloaded on - 05/06/2018 23:02:16 :::HCHP 9 purveying an affirmative suggestion, qua, the deceased being inflicted with blows, of rods, by the accused, whereto an apposite affirmative answer, emanated, from .
PW-1, (iii) besides subsequent thereto, the learned defence counsel, hence, meteing an affirmative suggestion to PW-1, qua, of, after the initial blow, with, user of rod being inflicted, by accused Shambu, on the head of deceased Sanjay, his falling onto the road, (iv) whereafter, his being continuously, for five minutes, hence, belaboured, with iron rods, whereto, also an affirmative answer also emanated, from, PW-1, (v) thereupon, an inevitable inference, being foreclosed qua, hence, the defence acquiescing, of, accused Shambu, Bhola, Sita Ram, Rajiv Kumar and Pawan Kumar, respectively wielding Ex.P-1, Ex.P2, Ex.P3, Ex.P-4 and Ex.P-5, and, with users thereof, theirs hence inflicting blows, on, the head of the deceased. (vi) Dhors, the exculpatory effect, if any, germinating, from, PW-1, in the opening part, of, his examination-in-chief, rather making an echoing, of, only co-accused Shambu, Bhola and Sita Ram, respectively wielding Ex.P-1, P-2 and P-3, and, theirs, with, users thereof, inflicting blows, on the head, of, deceased Sanjay,
(vii) nor thereupon also the identification of Ex.P-1 to Ex.P-
::: Downloaded on - 05/06/2018 23:02:16 :::HCHP 105, by PW-5, at the end of his examination-in-chief, whereat, the aforesaid weapons, of, offences, were shown to him, even if assumingly, contradicts the earlier .
therewith, part of his examination-in-chief, whereat, he attributes, incriminatory roles vis-a-vis co-accused Rajiv Kumar, and, Pawan Kumar, of, theirs inflicting kick and fist blows, upon deceased Sanjay, is likewise hence rendered redundant besides inconsequential.
12. The testimony of PW-1, is, meted corroboration by PW-2 (Dal Bahadur), another eye witness, to the occurrence. He alike PW-1, upon, Ex.P-1, P-2, P-3, P-4 and P-5, being shown to him in Court, has unflinchingly testified of theirs, being respectively used by accused Shambu, Bhola, Sita Ram, Rajiv Kumar and Pawan Kumar, in theirs, hence, striking the relevant blows, upon, deceased Sanjay. The aforesaid testification, occurring, in the examination-in-chief of PW-2, is, not concerted to be ridden, of, its imminent truthfulness, by the learned defence counsel, by his putting apposite suggestions, for, hence shattering veracity(ies) thereof. The aforesaid testifications, rendered by PW-1 and PW-2, also apparently are not gripped, with, any vices, of, gross improvements, and, embellishments, vis-a-vis, their previously recorded ::: Downloaded on - 05/06/2018 23:02:16 :::HCHP 11 statements in writing nor their respective testification, are stained, with any pervasive vice of any inter se or intra se contradiction, (I) thereupon, they acquire vigour, in .
establishing the charges, against, the accused.
Furthermore, with their respective testifications, being corroborated, by the statement of other eye witness, to the occurrence, namely, Ramu Verma (PW-20), who, in his testification hence renders, a version in corroboration, to versions, rendered by of PW-1, and, also by PW-2, thereupon, all the aforesaid, in tandem version(s), rendered by all the aforesaid ocular witness qua the occurrence, hence, visibly acquire apt tenacity(ies).
13. Be that as it may, even any purported frailty, hence gripping, the apt ocular efficacious testifications, rendered in proof of the charges, arising, from theirs, hence, identifying the accused in Court, (i) without prior thereto, any valid test identification parade, being carried by the Investigating Officer concerned, is also scuttled, by PW-1 in his testification, comprised, in his examination-in-
chief, making, a, vivid bespeaking, of, earlier in the year 2008, during, the Holi festival, hence a quarrel occurring inter se deceased Sanjay, and, the accused, (ii) thereupon, when hence he was holding a clear graphic etching, in his ::: Downloaded on - 05/06/2018 23:02:16 :::HCHP 12 memory, qua the identity of the accused, (iii) thereupon, reiteratedly, his identifying the accused in Court, without prior thereto, a valid test identification parade being held, .
is also rendered insignificant. Apart therefrom, an immense vigour, to, the ocular testifications, rendered, by the aforesaid eye witnesses, to the occurrence, is, garnered, by Ex.PW3/A, EX.PW4/A, Ex.PW5/A, Ex.PW6/A, Ex.PW6/B, Ex.PW6/C, Ex.PW6/D, Ex.PW6/E, exhibits whereof, respectively carry thereon, the signatures besides thumb impressions, of each of the accused, besides thereon stand appended, the signatures, of, all the witnesses thereto, (iv) AND, with clear underlined recitals, borne therein vis-a-vis each of the accused, hence identifying, the place of occurrence, does obviously, comprises, a potent incriminatory material, vis-a-vis each of the accused, especially when hence they display knowledge thereof besides their apt participation.
Thereupon, immense momentum vis-a-vis, efficacies thereof, is mobilized from (a) occurrence of respectively uncontested signatures, and, thumb impressions thereon, of, each of the accused and (b) recitals borne therein being proven by the witnesses thereto, and, all the latters' testifications remaining uneroded, during, the course of ::: Downloaded on - 05/06/2018 23:02:16 :::HCHP 13 their, exacting cross-examination, by, the learned defence counsel.
14. Moreover, the testifications, rendered by the .
ocular witnesses, to the occurrence, assigning therein, the apt users, respectively by the accused, of, weapons of offence, respectively borne in Ex.P-1 to P-5, (i) is also lent succor, by the disclosure statement, comprised in Ex.PW5/A, rendered, before, the Investigating Officer, by co-accused Shambu, exhibits whereof also stand(s) signatured, by, both the witnesses thereto, (ii) wherein, he has vividly disclosed, the place of keeping, and, hiding hence of weapons of offence, respectively wielded, by each of the accused, in pursuance whereto, the apt recovery(ies) of weapons of offence, was effectuated, vide memo Ex.PW18/A, whereon also the signatures, of, co-
accused Shambu exist besides signatures also exist thereon, of, marginal witnesses thereto, (iii) all aforesaid acquire immense formidability, given, co-accused/convict Shambu, not, contesting the existence of his signatures thereon, rather, (a) with the marginal witnesses, to, disclosure statement borne in Ex.PW5/A, and, vis-a-vis Ex.PW18/A, prepared, in sequel, vis-a-vis, preparation , of, Ex.PW5/A, AND, whereunder the weapons of offence, ::: Downloaded on - 05/06/2018 23:02:16 :::HCHP 14 respectively borne in Ex.P1 to P5, stood recovered, at, the instance of accused Shambu, (b) hence rendering firm unflinching testifications qua valid preparations thereof, .
testifications whereof remained uneroded, during, the course of theirs being subjected, to, a scathing cross-
examination, especially also vis-a-vis, the truthfulness of all recitals, borne therein, besides qua valid makings thereof, by the Investigating Officer, at the instance of the accused, (iv) thereupon the aforesaid proven exhibits, hence, supply vigour vis-a-vis the credible testifications, of, ocular witnesses to the occurrence. At this stage, the learned counsel, appearing for the appellant, submits that the aforesaid exhibits acquire efficacy, if any, only vis-a-vis accused, Shambu, and, not vis-a-vis other co-accused, given (i) other co-accused not recording, before, the Investigating Officer concerned, their respective apt disclosure statements, (a) nor any recoveries being effectuated, in pursuance thereof. However, the aforesaid submission, is blunted by (b) this Court imputing credence, vis-a-vis, the incriminatory acquiescences, emanating, from, the defence, arising, from the defence rather putting hence incriminatory apposite suggestion, vis-a-vis, the ocular witnesses, whereto, apt acquiescences emanated ::: Downloaded on - 05/06/2018 23:02:16 :::HCHP 15 thereto, from each, (c), whereupon, all, the incriminatory acquiescences, hence, nail the charge against the accused.
.
15. Dehors, the aforesaid unequivocal corroborative evidence, being adduced by the prosecution, vis-a-vis, each of the accused, the learned trial Court, rather proceeded, to, vis-a-vis, the other co-accused, excepting, co-accused/convict Shambu, hence record findings of acquittal, merely, on anvil of (a) the postmortem report borne in Ex.PW13/A, proven by PW13 (Dr. S.P. Mandal), not, making clear pronouncements, in compatibility, with, the testifications, of the apt ocular witnesses, wherein, they rather make clear unequivocal echoings, of, the deceased being inflicted apt blows, by each of the accused, with user of, weapons of offences, respectively borne in Ex.P-1 to P-5, (b) especially, when for hence any inter se compatibility, occurring, inter se, the apt ocular testifications, vis-a-vis, the postmortem report, borne in Ex.PW13/A, the latter, was, enjoined to also carry revelations, qua upon the head of the deceased, there, hence occurring multiple fractures. However, the aforesaid reason is ipso facto, is, rendered frail, and, its effect, is, ::: Downloaded on - 05/06/2018 23:02:16 :::HCHP 16 also over ridden, by the hereinafter extracted relevant portion, of, the postmortem report:-
"Oblique stitched lacerated woud 13x4 cm xbone deep present on the left side frontal and parital region of the .
scalp, started 4.5 cm above the middle of left eyebrow going backward and slightly lateral upto 12 cm above the left mastoied. The margins were blue contused and irregular. The wound shows multiple fractures of bones. On removal of the scalp subaponeurotic haematoma was present all over the scalp. A slightly depressed fracture corresponding to the above injury with multiple fracture of left side frontal and parietal bones coronal sutire was separate and are fissured fracture of right parietal bone was found."
The aforesaid extracted portion, of, the postmortem report, when makes, clear articulations, of multiple fractures, occurring, on the left side of frontal, and, parietal bones, and, also it making, a clear articulation, of, the coronal sutire, being separated, and, fissured fracture of right parietal, being found. (i) Thereupon occurrence, of, the aforesaid, underlinings, in the postmortem report, borne, in Ex.PW13/A, does apparently, nail a conclusion, of the learned trial Court, hence, misreading the hereinabove extracted portion, of the postmortem report, and, hence its making the aforesaid inapt conclusion, (ii) ::: Downloaded on - 05/06/2018 23:02:16 :::HCHP 17 whereas, rather its close circumspect reading, making, a palpable display, of multiple fractures, occurring, on the apt portion, of, the body of the deceased, (iii) thereupon, .
the ocular testifications rendered, by the apt eye witnesses, to, the occurrence, qua user thereon, of the apt weapons of offence, hence successively by each of the accused, being neither imbued with any stain of untruthfulness, nor with any taint, of, any concoction or invention. Preeminently, hence, the effect of the aforesaid manner, of reading, of the apt hereinabove extracted portion, of the postmortem report, alongwith, the credible testifications, of the ocular witnesses, to the occurrence, does bring forth, (iv) a natural sequel of the prosecution, conclusively proving, the charge against the accused, and, also the concomitant ensuing inference therefrom, is, of the verdict of acquittal pronounced, upon co-accused Sita Ram, Bhola, Rajiv Kumar and Pawan Kumar, except accused Shambu, vis-a-vis, the charges respectively framed against them, under Section 302, 147, 148, 149 of the IPC, being not embedded, upon, any proper, and, mature appreciation, of evidence on record, rather the apt verdict, being a sequel of a gross mis-appraisal, of, evidence germane to the charge(s). Even otherwise, with ::: Downloaded on - 05/06/2018 23:02:16 :::HCHP 18 preeminence, of, credible ocular evidence vis-a-vis medical evidence, does also, assumingly, if there is, any, incompatibility inter se them, hence subsumes, all .
purported exculpatory effects thereof.
16. Nowat, it has to be determined, whether the accused are amenable, for being punished, for, commission of offence(s) punishable, under, Sections 302, 147, 148, read with Section 149 the IPC or whether the verdict, of, the learned trial Court, qua rather punishment, being imposable, upon the accused for commission of offence(s) punishable under Section 304-II of the IPC, is to be validated, even vis-a-vis other co-accused. For determining, the validity of the apt pronouncement, made by the learned trial Court, AND, for it being applied, vis-a-
vis, all co-accused, it is apt to bear in mind, the apt exceptions borne in Section 300 of the IPC, exceptions whereof, stand extracted hereinafter:-
"Exception 1.--When culpable homicide is not murder.-- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisos:-- ::: Downloaded on - 05/06/2018 23:02:16 :::HCHP 19
(First) --That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
(Secondly) --That the provocation is not given by anything .
done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
(Thirdly) --That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation.--Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
Illustrations
(a) A, under the influence of passion excited by a provocation given by Z, intentionally kills. Y, Z's child. This is murder, in as much as the provocation was not given by the child, and the death of the child was not caused by accident or misfortune in doing an act caused by the provocation.
(b) Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol at Y, neither intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not committed murder, but merely culpable homicide.
(c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by the arrest, and kills Z. This is ::: Downloaded on - 05/06/2018 23:02:16 :::HCHP 20 murder, in as much as the provocation was given by a thing done by a public servant in the exercise of his powers.
(d) A appears as witness before Z, a Magistrate, Z says that he does not believe a word of A's deposition, and that A has .
perjured himself. A is moved to sudden passion by these words, and kills Z. This is murder.
(e) A attempts to pull Z's nose, Z, in the exercise of the right of private defence, lays hold of A to prevent him from doing so. A is moved to sudden and violent passion in consequence, and kills Z. This is murder, in as much as the provocation was given by a thing done in the exercise of the right of private defence.
(f) Z strikes B. B is by this provocation excited to violent rage. A, a bystander, intending to take advantage of B's rage, and to cause him to kill Z, puts a knife into B's hand for that purpose. B kills Z with the knife. Here B may have committed only culpable homicide, but A is guilty of murder.
Exception 2.--Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Illustration Z attempts to horsewhip A, not in such a manner as to cause ::: Downloaded on - 05/06/2018 23:02:16 :::HCHP 21 grievous hurt to A. A draws out a pistol. Z persists in the assault. A believing in good faith that he can by no other means prevent himself from being horsewhipped, shoots Z dead. A has not committed murder, but only culpable .
homicide.
Exception 3.--Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
Exception 4.--Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation.--It is immaterial in such cases which party offers the provocation or commits the first assault.
Exception 5.--Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.
Illustration ::: Downloaded on - 05/06/2018 23:02:16 :::HCHP 22 A, by instigation, voluntarily causes, Z, a person under eighteen years of age to commit suicide. Here, on account of Z's youth, he was incapable of giving consent to his own death; A has therefore abetted murder."
.
A reading of the aforesaid provisions, for, hence its mandate being attracted hereat, renders an inference, of, a mandate being carried, therein, (I) qua emergence of proof vis-a-vis the apt espousal(s), of, the defence hence falling within the domain, of, the apposite exceptions, carved out in Section 300 of the IPC. However, hereat rather with clear candid and credible testifications, hence, standing rendered by the apt ocular witnesses, to the occurrence, and, also other connected, afore referred, potent incriminatory evidence, standing adduced, by the prosecution against each of the accused, contrarily making, (i) a clear pronouncement of the accused, carrying the relevant mens rea, to, by their respective incriminatory acts, cause death of the deceased, (ii) nor with the aforesaid defence(s), being espoused, by any of the accused, (iii) thereupon, it was unbefitting, for the learned trial Court, to pronounce, vis-a-vis Shambu, an order of conviction, under Section 304, Part-II of the IPC, nor also it is befitting for this Court to alike therewith, pronounce an order, hence, convicting the other co-
::: Downloaded on - 05/06/2018 23:02:16 :::HCHP 23accused, also, for commission of an offence, punishable under Section 304, Part II, of the IPC, rather as borne out, from, the material on record, all the accused are liable to .
be convicted, under, Sections 302, 147, 148 and read with Section 149 of the IPC. Conspicuously, also with all, the aforesaid credible evidence, vividly pronouncing, upon theirs carrying, the apposite mens rea, to commit the offences charged AND no evidence making any bespeaking qua any visible surging forth, hereat, of, any of the aforesaid exceptions concerned, for hence rendering the accused being punished, for an offence construable, to be culpable homicide not amounting to murder, thereupon, concomitantly, hence, the provisions of Section 304 Part-II of the IPC, remain unattracted hereat, nor any, punishment in consonance therewith, is imposable, upon the accused.
17. Before firmly, drawing, the aforesaid inference, it is also important, to allude to the frailty, of, the reasons, as assigned by the learned trial Court, for, convicting the accused Shambu, for, commission of an offence punishable under Section 304, Part-II of the IPC. The learned trial Court in making, the inapt order, of conviction, upon, accused Shambu, for commission, of ::: Downloaded on - 05/06/2018 23:02:16 :::HCHP 24 offence under Section 304-II of the IPC, has, (i) founded it, upon the factum, of, upon the deceased being provided adequate treatment, (ii) there being a possibility of his life .
being saved, (iii) especially when he did not suffer his demise on the spot, (iv) and, with PW-13, prior to his stepping, into the witness box, being not shown, Ex.P-1 by the Investigating Officer, nor hence, with PW-13 rendering his opinion thereon, especially vis-a-vis qua its user, upon, the relevant party of the body of the deceased, besides prior to his stepping into the witness box, PW-13 not making, any clear voicing qua the injuries noticed to be occurring in Ex.PW13/A, upon the head of the deceased, being causable by apt users thereof, (v) hence, convict Shambu being amenable for conviction, for, his committing an offence punishable under Section 304-II of the IPC, and, not for an offence punishable under Section 302 of the IPC. However, the effect, if any, of the aforesaid inference, is torpedoed, by the factum of PW-13, during, the course of his examination-in-chief, on his thereat being shown, Ex.P-1, his rather therein, making, a vivid pronouncement, of, with user thereof, injuries noticed by him in Ex.PW13/A, upon the head of the deceased, hence being causable. The apt corollary thereof, is of, ::: Downloaded on - 05/06/2018 23:02:16 :::HCHP 25 even if, Ex.P-2 to Ex.P-5, stood, shown to him, during, the course of his being subjected to cross-examination, by the learned defence counsel, whereas, no suggestion .
thereafter being put to him, for falsifying their user, by the respective accused, hence when stands entwined, with, the afore referred incriminatory evidence, rather facilitates, hence, the opening of an inference, qua each of the accused, carrying the relevant mens rea, to cause demise of the deceased, and, hence each of them being liable for theirs, being, punished for the offences charged.
18. For the foregoing reasons, the instant appeal is allowed and the judgment rendered by the learned trial Court is set aside. Consequently, the accused/respondents are convicted for theirs committing offences punishable under Sections 302, 147, 148 read with Section 149 of the IPC. The convicts/accused/respondents herein be produced before this Court on 21/06/2018 for theirs being heard on quantum of sentence.
(Sureshwar Thakur) Judge (Ajay Mohan Goel) Judge 31st May, 2018.
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