Allahabad High Court
Manoj Kumar Yadav vs State Of U.P. on 12 October, 2022
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 43 Case :- JAIL APPEAL No. - 6645 of 2017 Appellant :- Manoj Kumar Yadav Respondent :- State of U.P. Counsel for Appellant :- From Jail,Sita Ram Sharma (A.C.) Counsel for Respondent :- A.G.A. Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Shiv Shanker Prasad,J.
(Per Hon. Shiv Shanker Prasad, J.)
1. This jail appeal has been preferred by the appellant-Manoj Kumar Yadav challenging the judgment and order dated 10th April, 2015 passed by the Additional District & Sessions Judge, Court No.4, Kannauj in Sessions Trial No. 262 of 2011 (State Vs. Manoj Kumar Yadav), arising out of Crime No. 210 of 2011, under Section 304 I.P.C., Police Station-Tirva, District Kannauj, whereby the accused-appellant has been convicted and sentenced to undergo life imprisonment under Section 304 I.P.C. with fine of Rs. 5,000/-, in default thereof, he has to further undergo three months additional imprisonment.
2. We have heard Sri Sita Ram, learned Amicus curiae for the appellant in the present jail appeal and Ms. Archana Singh, learned A.G.A. for the State as also perused the material available on record.
3. Records of the present jail appeal reveal that on the written report (Exhibit-ka/1) dated 3rd July, 2011 of the informant-P.W.-1, namely, Mishri Lal, which was scribed by one Harinath Singh, a first information report was registered under Section 304 I.P.C. as Chik No. 154/11, on 3rd July, 2011 at 11:00 a.m. alleging therein that Ramkali wife of the informant along with her son i.e. accused appellant herein, went to in-laws' place of her daughter, namely, Sidhashi wife of Raghvendra situated at village-Vilandapur, Police Station-Tirva, District Kannauj for treatment of the accused-appellant 10 to 12 days before. On 3rd July, 2022, at around 12.30 a.m. (00:30 hours) at night, during a fight, the accused-appellant hit a wooden stick on his mother i.e. wife of the informant as a result of which she died. As the dead body was lying on the spot, the informant came to the Police Station for giving information about the offence.
4. After lodging of the said first information report, the panchayatnama (Exhibit-Ka/2) of the deceased was conducted on 3rd July, 2011 at 12:00 p.m. (noon) after starting the process at 11:00 a.m. In the opinion of the Panch (Inquest) witnesses, the death of the deceased was homicidal on account of injuries caused to the deceased on her head. Thereafter the dead body of the deceased was sealed and sent to Mortuary for post-mortem.
5. Dr. S.K. Singh (P.W.-4) conducted the post-mortem of the dead body on 4th July, 2022 at 02:30 p.m. and his report is on record as Exhibit-Ka-3 as per which the deceased was nearly 60 years of age and had died due to shock and hemorrhage as a result of following ante-mortem injuries:
"Lacerated wound left temporal region 5 cm. X 1 cm. underlying bone fractured and depressed;
(ii) Contusion right side forehead 7 x 2 cm. just above right eyebrow;
(iii) fractured ribs 4th, 5th and 6th left side chest.
6. Investigation proceeded and P.W.-5/Investigating Officer, namely, Sub-Inspector Parshuram Nirala has recorded the statements of the informant, scriber of the written report and other witnesses. The Investigation Officer went to the spot and prepared the chalan lash, photo lash. He also prepared site plan and collected plain earth, blood stained earth, blood stain from the cot and the stick containing blood, whereafter upon conclusion of statutory investigation under Chapter XII Cr.P.C., charge-sheet came to be submitted against the accused appellant by the Investigating Officer on 15th July, 2011 (Exhibit-Ka/11).
7. On submission of charge-sheet, the concerned Magistrate took cognizance in the matter and committed the case to the Court of Sessions by whom the case was to be tried. On 14th November, 2011, the concerned Court framed following two charges against the accused-appellant:
"मैं चन्द्रपाल विशेष न्यायाधीश एस0सी0एस0टी0 एक्ट. कन्नौज में अभियुक्त मनोज कुमार यादव को निम्न आरोप से आरोपित करता हूँ।
यह कि दि- 2/3-7-11 को समय करीब रात्रि 12.30 बजे स्थान ग्राम बिलन्दापुर मकान रावेन्द्र सिंह यादव थाना तिरवा जिला कन्नौज के क्षेत्राधिकार में आपने वादी मिश्रीलाल की पत्नी रामकली के सिर में डण्डा मार दिया जिससे उसकी मृत्यु हो गयी है। इस प्रकार आपने हत्या की कोटि में आने वाले आपराधिक मानववध का अपराध कारित किया। इस प्रकार आपने भा0द0स0 की धारा 304 के अधीन दण्डनीय अपराध कारित किया जो न्यायालय के प्रसंज्ञान में है।
......."
The charges were read out to the accused-appellant, who denied the accusation and demanded trial.
8. The prosecution in order to establish the charges levelled against the accused-appellant has relied upon following documentary evidence, which were duly proved and consequently marked as Exhibits:
"the written report of the informant/P.W.-1 scribed by one Harinath Singh dated 3rd July, 2011 has been marked as Exhibit-Ka/1; the chik first information report dated 3rd July, 2011 has been marked as Exhibit-Ka/12; panchayatnama (inquest report) dated 3rd July, 2011 has been marked as Exhibit-Ka/2; recovery memo of blood stained & plain earth dated 3rd July, 2011 has been marked as Exhibit-Ka/8; the recovery memo of stained ''Ban' of cot dated 3rd July, 2011 has been marked as Exhibit-Ka/9; recovery memo of wooden stick dated 3rd July, 2011 has been marked as Exhibit-Ka/10; site plan dated 3rd July, 2011 has been marked as Exhibit-Ka/7, post-mortem of the deceased dated 4th July, 2011 has been marked as Exhibit-Ka/3; and the original charge-sheet dated 15th July, 2011 has been marked as Exhibit-Ka/11"
9. The prosecution has also adduced oral testimony of following witnesses:-
"P.W.-1/informant, namely, Mishri Lal, husband of the deceased and father of the accused-appellant; P.W.-2, namely, Siddhashi who is married daughter of the deceased and informant and eye-witness of the incident; P.W.-3, namely, Ravendra Singh son-in-law of the deceased and informant; P.W.-4, Dr. S.K. Singh, who conducted the post-mortem of the deceased; P.W. -5, namely, Parshuram Nirala retired Sub-Inspector, who was investigation officer; and P.W.-6, namely, Constable-2785 Omprakash, who prepared the Chik fist information report."
10. After recording of the prosecution evidence, the incriminating evidence were put to the accused for recording his statement under section 313 Cr.PC. In his statement recorded U/s 313 Cr.P.C. the accused-appellant denied his involvement in the crime. Accused appellant specifically stated before the trial court that he has been falsely implicated in this case. The defence did not examine any witness from its side.
11. On the basis of above evidence adduced during the course of trial, the court below has found the accused-appellant guilty of murdering the deceased beyond reasonable doubt after recording following finding:
"i). the prosecution case that after an altercation, the accused hit the deceased with a stick, due to which she sustained injuries and resultantly died has fully corroborated with the post-mortem and the statement of P.W.4, who conducted the post-mortem;
ii). plea of the defence that at the time of incident the mental condition of the accused-appellant was not good cannot be accepted on the ground that no medical certificate or evidence in that regard has been produced during the course of trial as also on the ground that as per the post-mortem report, it is established that the death of the deceased is due to the injuries sustained on her body before her death and the accused-appellant hit her repeatedly till she died.
iii). The plea taken by the defence that no one has seen the incident with his/her own eyes cannot be accepted on the ground that P.W.-2 has specifically stated in her examination-in-chief as well as in her cross-examination that the accused-appellant has committed the said offence by hitting her with the help of a wooden stick. There is no inconsistency or contradiction in the statement of P.W.-2, either in her examination-in-chief or cross-examination, even the accused-appellant had moved towards P.W.-2 with the stick from which it is established that the accused-appellant wanted to kill P.W.2 also;
iv). In this way the prosecution statement is proved on the basis of the statements of the witnesses and the medical report shows the criminality of the accused. Resultantly, the guilt is proved against the accused-appellant beyond reasonable doubt.
12. Being aggrieved with the impugned judgment and order of conviction passed by the trial court, the accused-appellant has preferred the present jail appeal.
13. The submission of the learned Amicus Curiae appearing for the accused-appellant is that the accused-appellant is innocent and has been falsely implicated. Next submission is that the accused-appellant is of unsound mind and has not committed the said offence and as the altercation took place between the deceased the accused-appellant, at the spur of the moment the said offence has been committed. Further submission is that the accused-appellant has no motive to kill his own mother i.e. the deceased. The argument is that the accused-appellant has no previous or any subsequent criminal antecedents to his credit except the present one. Next submission is that looking to the oral as well as documentary evidence brought on record, the sentence awarded to the accused-appellant under Section 304 I.P.C., is highly excessive. The maximum punishment which could be imposed upon the accused-appellant is 10 years under Section 304 Part II I.P.C. The learned Amicus Curiae appearing for the accused-appellant lastly submits that since the incident in question occurred on a spur of moment and in the heat of passion upon sudden quarrel, the same would be covered under the 4th Exception to Section 300 I.P.C., which reads as under:
"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."
On the cumulative strength of the aforesaid, learned Amicus Curiae, appearing for the appellant submits that the sentence is excessive and ought not be sustained and the order of sentence must be modified taking lenient view in the matter.
14. Per contra, Mrs. Archana Singh, learned A.G.A. for the State, supporting the judgment and order of conviction, submits that the impugned judgment and order of conviction does not suffer from any illegality and infirmity so as to warrant any interference by this Court. As such the present jail appeal filed by the accused appellant who committed heinous crime by murdering the deceased is liable to be dismissed.
15. We have considered the submissions made by the learned counsel for the parties and have carefully examined the original records of the case as well as the impugned judgment and order of conviction challenged before us.
16. It is in the context of above submissions and materials placed on record before the Court that this Court is required to consider as to whether the prosecution has established the guilt of accused-appellants on the basis of above evidence beyond reasonable doubt?. For examining the same, it is important for us to record statements of the prosecution witnesses in brief.
17. P. W. 1/Informant, namely, Mishri Lal in his examination has stated that his wife's name was Ramkali (since deceased). He has a daughter, namely, Siddhashi. whose marriage was solemnized with Ravendra of village Vilandapur. Accused-appellant is his son and his mental balance was disturbed. He has further stated that about three years ago, he had gone to his daughter in-laws' house for the treatment of the accused-appellant with the deceased. After staying there for three days, he came to his village leaving the deceased and the accused-appellant. P.W.-1 has further stated that at the time when the accused-appellant and the deceased went to the place of his daughter at Vilindapur, the mental condition of the accused-appellant was not good. He had gone to Vilindapur for the treatment of the accused-appellant.
18. In the cross-examination, P.W.-1 has stated that he came to know about the accused-appellant thrashing the deceased. He had not seen anything with his own eyes. The accused-appellant was also sad and crying because of his mother's death. He has also stated that he brought the accused-appellant to his daughter's place after getting treatment from Kanpur, Agra and Lucknow. The mental balance of the accused-appellant was going bad for 10-11 years. After the incident, he had seen the accused-appellant in the police station.
19. P.W.-2, namely, Siddhashi, who is according to the prosecution an eye witness of the incident, has stated that the accused-appellant is her younger brother. He used to have poor mental balance. About three and a half years ago, her parents i.e. the deceased and P.W.-1/informant came to her house to get treatment for the accused-appellant. P.W.-1 went back to his village after leaving the deceased and the accused-appellant and they were living with her. She has further stated that on the night of 02/03 July 2011, the deceased and the accused-appellant were sleeping in the verandah of the house, while she was sleeping in the room with her kids. Since her husband i.e. P.W.3 works in a mill, he went on duty. When she came out of the room after hearing scream of the deceased at around 12.30 in the night, she saw that the accused-appellant was standing near the door with a stick. When he walked towards her, she ran for her life inside the room. She made a noise. The accused-appellant had hit the deceased with a stick due to which she died. She has further stated that her husband i.e. P.W.-3 had come back from duty in the morning. P.W.-1 was informed about the entire incident. She has then stated that the accused-appellant had killed the deceased by hitting her with a stick. She has stated that the accused-appellant's mental balance was not good. Due to his lack of mental balance, he used to do strange things. He had poor mental balance even on the night of the incident. The deceased and P.W.-1 had brought the accused appellant to her place for treatment and exorcism. In her cross examination, P.W.-2 has stated that when the Investigating Officer inquired her about the incident she has narrated the same by stating that the accused-appellant had hit the deceased. P.W.-2 has further stated that her husband was doing duty in the mill on the day of the incident. The deceased and the accused-appellant were lying down in the verandah at the time of incident . The deceased was dead when she came down through stairs. On the spot, it was she and her children. When she came to the deceased, the accused-appellant walked towards her with a stick.
20. P.W.-3, namely, Ravendra Singh, husband of P.W.-2 and son-in-law of the deceased and informant, has stated that the accused-appellant is his brother-in-law. Since the accused-appellant was ill, the deceased and P.W.-1/informant came to his house for his treatment about three and half years ago. P.W.-1, leaving the deceased and the accused-appellant at his house, went back to his village Bangaramau. He has further stated that since he works as a Guard in Uttar Pradesh Setu Department Corporation, on 02.07.11 he left his house for duty. He did his duty overnight and reached home on 03.07.11 at around 07.00 in the morning after completing his duty, he saw that the deceased had died in the verandah outside the house, the accused-appellant was sitting silently near the bathroom. His wife i.e. P.W.1 was crying and she told him that at around 12 to 01 a.m./p.m. the accused-appellant has killed the deceased by hitting her with a wooden stick. She also told him that the accused-appellant had killed the deceased by hitting her with a stick in front of her. After that, P.W.1 was called. In the cross-examination, P.W.-3 has stated that on the date when P.W.-1, the deceased and the accused-appellant came to his house, the accused-appellant was mentally unsound. They had brought him for treatment and exorcism. The accused-appellant's mental balance was not good even on the day of the incident. He was not aware that the accused-apellant had beaten his mother before this incident.
21. P.W. 4. namely, Dr. S.K. Singh, in his examination has stated that he has conducted the post mortem of the deceased Ramkali aged about 60 years. He has further stated that in his opinion the death of the deceased, was due to excessive bleeding and shock from pre-death injuries. He has further stated that injury number 1 can also come from the bar. Injury number 01 and 02 is possible to come from the same object. No wound was visible from outside in injury number 03. He has further stated that the temporal bone was broken under the head injury. The temporal bone was broken on several sides.
22. P.W.-5, namely, Parshuram Nirala, retired from the post of Sub-Inspector, who has conducted the investigation, has stated in his examination that after taking over the investigation, he reached the spot for panchyatnama. After filling the Panchayatnama of the dead body, he prepared other papers. The dead body was sealed and sent to the Mortuary for post-moretem in the presence of P.W.-5. He has also prepared the site plan and From the spot, plain soil ,blood-stained soil, blood-stained cot and a wooden stick with blood were taken in the possession of P.W.-5. On the basis of the evidence against the accused, under the charge under section 304 IPC, the charge sheet was submitted by P.W.-5. He has further stated that he saw the wounds of the deceased.
23. P.W.-6, namey, Constable 2785 Omprakash has prepared the chik first information report on the basis of written report of the informant and also proved the same.
24. So far as the plea of mental unsoundness of the accused-appellant taken on behalf of the appellant before this Court as well as before the trial court is concerned, we may record that the said plea has been rejected by the trial court on the ground that the defence has failed to produce any medical evidence certifying that at the time of incident, the accused was of unsound mind. It is no doubt true that the defence has not been able to produce any medical evidence about the unsound mind of the accused at the time of incident, but from perusal of the first information report and the statements of the prosecution witnesses nos. 1 to 3, it is crystal clear that at the time of incident, the accused-appellant was not well and his treatment was going on and for the said purpose, the deceased went to in-laws' place of her daughter along with the accused-appellant, where the incident happened.
25. For arriving at a logical conclusion, it would be worthwhile to reproduce the judgment of the Apex Court in the case of Dahyabhai Chhaganbhai Thakkar Vs. State of Gujrat, reported in AIR 1964 S.C. 1563, wherein the Apex Court held "when a plea of legal insanity is set up, the Court has to consider whether at the time of commission of the offence the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of Section 84 of the Indian Penal Code can only be established from the circumstances which preceded, attended and followed the crime." The Apex Court, however, considered the relevant circumstances and found that the appellant did not murder his wife in a fit of insanity and dismissed the appeal.
26. For ascertaining the aforesaid plea of legal insanity, the Apex Court has made following observations in the case of Dahyabhai Chhaganbhai Thakkar (Supra):
"There is no conflict between the general burden to prove the guilt beyond reasonable doubt, which is always on the prosecution and which never shifts, and the special burden that rests on the accused to make out his defence of insanity. (ii) The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions:(1).The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite, mensrea; and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. (2) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by Section 84 of the Indian Penal Code: the accused may rebut it by placing before the court all the relevant evidence-oral, documentary or circumstantial, but the burden of proof upon him is no higher than that which rests upon a party to civil proceedings. (3) Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the court by the accused or by the prosecution may raise a reasonable doubt in the mind of the court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged."
27. From perusal of the entire evidence brought on record specially the statement of P.W.-2, who is none other than the married daughter of the deceased and sister of the accused-appellant as the post-mortem report of the deceased, it is apparently clear that on the date of incident, there was an altercation between the deceased and the accused-appellant and suddenly in a fit of anger, he attacked his mother with a stick due to which she sustained injuries and died. Therefore, it is discernable that it is the accused-appellant who has committed the offence but he had no motive or intention to do the same specifically with his mother, who was making all efforts for his treatment.
28. In Pulicherla Nagaraju @ Nagaraja Reddy Vs. State of Andhara Pradesh reported in (2006) 11 SCC 444 in paragraph-29, the Apex Court has opined that the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part 1 or 304 Part II. In many petty or insignificant matters, plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance,may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed jealously or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not covered into offences punishable under Section 304 Part-I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302.
29. On going through the entire evidence on record, we find that the necessary ingredients to attract 4th Exception to section 300 IPC are clearly present in the facts of the present case inasmuch as death is caused; there existed no pre-meditation; it was a sudden fight; the offender has not taken undue advantage or acted in a cruel or unusual manner, therefore, the case in hand clearly falls under fourth exception to section 300 IPC.
30. The issue relating to quantum of sentence under Section 304 I.P.C. depends on background facts of the case, antecedents of the accused, whether the assault was premeditated and pre-planned or not, etc. There are no straight jacket formulae for the determination of the same in law.
31. In view of the above discussions and deliberations, we are of the considered opinion that although the accused-appellant/defence has not been able to establish the plea of his mental unsoundness at the time he has committed the said offence by not producing any medical evidence in support of the said plea during the course of trial but it is to kept in mind by us that the accused-appellant had no motive or intention to commit the said offence. The said offence has been committed by the accused-appellant on a spur of moment and in the heat of passion upon sudden quarrel between him and his mother (deceased), as is evident from the statement of P.W.-2. It is also not in dispute that the accused-appellant was not entirely well and was under treatment, as is clearly discernable from the statements of the prosecution witnesses. It is also to be kept in mind that after committing the said crime, the accused-appellant had not run away from the crime scene like other notorious criminals. When the accused-appellant's anger subsided, he felt a lot of disgrace and remorse and was crying near the bathroom of the house in question, as is evident from the statement of P.W.-2, P.W.-3 and P.W.-5. Seeing the aforesaid circumstances we are of the view that the quantum of sentence to life imprisonment under Section 304 I.P.C. as awarded under the impugned order of sentence is too harsh in the facts of the present case.
32. Attention of the Court has been invited to the statement of Investigating Officer as per which the appellant was arrested on 05.07.2011 and even at the time of pronouncement of judgment by the court below, the appellant was in jail. He has been enlarged on bail by this Court on 23.08.2022. The appellant therefore has undergone incarceration without remission of more than 11 years. With remission the period of incarceration would be more than 13 years.
33. Accordingly, we modify the impugned judgment and order of conviction passed by the trial court by holding that the conviction of accused appellant under Section 304 IPC is sustained but the sentenced is modified to the period of incarceration already undergone by the appellant.
34. Accordingly, the present appeal succeeds in part.
35. Since the accused-appellant is reported to be on bail, he needs not be surrender subject to compliance of Section 437-A Cr.P.C., unless he is wanted in any other case.
36. Learned Amicus Curiae, for the appellant shall be entitled to his fee from the High Court Legal Services Authority, as per the rules.
37. Let a copy of this judgment be sent to the Chief Judicial Magistrate, Kannauj, henceforth, for doing the needful in terms of this judgment.
(Shiv Shanker Prasad, J.) (Ashwani Kumar Mishra, J.)
Order Date :- 12.10.2022
Sushil/-