Allahabad High Court
Chandresh Yadav @ Chanda vs State Of U.P. on 23 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 81
Author: Suresh Kumar Gupta
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Delivered on 23 .01.2020 Case :- CRIMINAL APPEAL No. - 568 of 2017 Appellant :- Chandresh Yadav @ Chanda Respondent :- State of U.P. Counsel for Appellant :- Anant Prakash Mishra,Chandra Shekhar Pandey,Surendra Kumar Chaubey Counsel for Respondent :- G.A. Hon'ble Suresh Kumar Gupta,J.
1. Heard learned counsel for the appellant and learned A.G.A.
2. This criminal appeal has been preferred by appellant- Chandresh Yadav @ Chanda against the judgment and order dated 02.12.2016, passed by Additional Session Judge, Court No. 12, Varanasi, in S.T. No. 161 of 2015 (State Vs. Chandresh Yadav @ Chanda), arising out of Case Crime No. 20 of 2015, P.S. Shivpur, District Varanasi, whereby convicted under Section 304 IPC, for 8 years rigorous imprisonment with fine of Rs. 4,000/- and in default of fine, 4 months additional imprisonment and under sections 504 IPC for 1 year rigorous imprisonment and fine of Rs. 2,000/- and in default of fine 2 months additional imprisonment to appellant. Both the sentences were directed to run concurrently.
3. Brief facts of this case are as follows-:
4. The written complaint (Ext. Ka-1) lodged by complainant Namwar Singh, P.W. 1 by way of NCR (Ext. Ka-5) with allegation that on 21.01.015 in the morning at 10.30 a.m. appellant Chandresh Yadav S/o Buddhu Yadav was giving filthy abuses to his younger brother Arvind Yadav when he refused to do so then appellant gave a lathi blow on the head of deceased Arvind Yadav due to such assault deceased got serious injury.
5. On the basis of written complaint by P.W.1 NCR No. 10/2015 was lodged at police station Shivpur, under sections 323, 504 IPC at 15.05 p.m. on 21.01.2015 which was duly entered in G.D. Injured Arvind Kumar Yadav admitted in Pandit. Deen Dayal Upadhyay Government Hospital, Varanasi, for treatment, but on account of serious condition deceased referred to Nova Hospital, Varanasi, for better treatment, where he died on 28.01.2015 at 6.35 p.m. after 7 days on account of head injury sustained by him. On receiving of such information this NCR No. 10/15 converted as Case Crime No. 20/15, under section 304 IPC by way of G.D. No. 19, 9.40 on 01.02.2015 as Ext. Ka-6.
6. The case was investigated by Sub-Inspector Raghvendra Bahadur Singh (P.W. 4). He received all the documents related to this case and enclosed in CD and during investigation recorded the statement of constable clerk Vinod Kumar and after recorded the statement of P.W. 1, prepared site plan Ext. Ka-3 on pointing out of complainant and thereafter the statement of sub-Inspector Kashyap Kumar was recorded who prepared the inquest report Ext. Ka-2, after recording the statement of eye-witnesses, completing the formalities of investigation, charge-sheet Ext. Ka-5 submitted under sections 323, 504, 304 IPC.
7. Post-mortem of the body of the deceased was conducted by Dr. Surendra Kumar Pandey (P.W.-5) on 29.01.2015 at 3.30 p.m., who also prepared the post-mortem report Ext. Ka-7. He has found following injuries on the person of deceased Arvind Kumar Yadav:-
1. Contusion 10.5cm x 4.5cm placed on right side upper lateral part of chest up to nipple from the axilla.
2. Contusion 6.5cm x 4cm placed on left left side upper and lateral part of chest at level of left nipple.
3. On opening scalp extravasation of blood on frontal area of scalp in area 10cm x 4.5cm.
4. on opening the scalp extravasation of blood on external occipital on protuberance below in area 5cm x 3.2cm. Colour of contusion purplish in colour.
5. Internal Examination- the bone behind the head was fractured. Membrane of brain was congested. Brain was also congested.
Cause of death due to effects of Coma as a result of Head and Brain injuries.
8. Since the offence mentioned in the charge-sheet were triable by the court of session, the Chief Judicial Magistrate, Varanasi, committed the case to the court of session for the trial where the case crime No. 20 of 2015 was registered as ST. No. 161 of 2015 (State vs. Chandrash Yadav), made over for trial from there to the court of sessions Judge, Court no. 12, Varanasi, on the basis of material on record and after affording opportunity of hearing to the prosecution as well as the accused-appellant, framed charge under Sections 304, 504 IPC.
9. The accused-appellant did not plead guilty and claimed to be tried.
10. The prosecution in order to prove his case against the appellant examined P.W.1 Namwar Singh, who is the real brother of the appellant, P.W. 2 Baddu Yadav, father of the deceased, P.W. 3 Heerawati Yadav, mother of the deceased, P.W. 4 Raghvendra Bahadur, Sub-inspector, Investigating Officr (formal witness) and P.W. 5, Dr. Surendra Kumar Pandey, who was conducted the autopsy of the deceased, who was also formal witness.
11. Accused-appellant in his examination under section 313 Cr.P.C. denied his participation and submitted that he has been falsely implicated in this case due to enmity. The accused-appellant did not however adduce any evidence in defence.
12. The Additional Session Judge, Court No. 12, Varanasi, by impugned judgment and order after analyzing the evidence convicted the appellant under section 304, 504 IPC as above, hence this appeal.
13. It has been contended by learned counsel for the appellant that the appellant is poor person and there is no intention to kill the deceased and due to sudden quarrel this occurrence has happened and death of the injured occurred after seven days due to negligence of the doctor and no offence against the appellant is made out under Section 323 Cr.P.C. and finally submitted that offence, if any would not traverse beyond section 325 IPC and further argued that due to poverty of appellant he could not able to engage layer of his choice at the time of trial. During trial amicus curiae was appointed by trial court and case of the appellant contested by amicus curiae. It is also submitted that he was arrested on 01.02.2015 since then the appellant languishing in jail and also submitted that he is the sole bread earner in his family and he is the father of young children, so by taking lenient view, he could be punished by minimum sentence.
14. Learned AGA has opposed the prayer and submitted that the accused was rightly convicted by the sessions court and there is no occasion for interference against the judgment and order of learned trial court and this appeal lacks merit and the same should be dismissed.
15. I have heard learned counsel for the appellant, learned AGA and carefully perused the entire record of the case.
16. In this case prosecution examined the three eyewitnesses of the fact P.W. 1 who is real brother of deceased, P.W. 2 Baddu Yadav, father of the deceased and P.W. 3 Heerawati, mother of the deceased and accused/appellant is also a real brother of P.W. 1 and son of P.W. 2 and P.W.3.
Although these 3 witnesses are relative witness but these 3 witnesses are natural witness and incident was happened inside the house, hence presence of the above witnesses at the spot is not suspicious from any point of view.
On careful examination of the evidence adducef by these 3 witnesses is transpires that the appellant inflicted the lathi blow on the head of deceased and due to this single lathi blow deceased succumbed due to this injury during treatment. Thus, the evidence is fully corroborated with medical evidence. So the evidence produced by the prosecution inspire confidence. Prosecution is able to prove his case beyond all shadow of doubt.
17. To come to the point, it was proved by evidence on record that after brief altercation and exchange of abuses between the deceased on the one hand and accused appellant on the other, in the heat of passion the appellant Chandresh gave a lathi blow on the head of the deceased which proved to be fatal. The case is, therefore, covered by Exception 4 to Section 300 IPC. It was a culpable homicide not amounting to murder. It is also peculiar fact that the blow was not repeated. It is just so happened that the lathi blow dealt by him proved to be fatal.
18. There are significant features of the case which are appropriate sentencing is very vital junction of the Court required to be taken into consideration for awarding the appropriate sentence to the accused.
1. Admittedly, the incident happened at the spur of the moment. Though he had no intention of causing either death or such bodily injury as was likely to cause his death. But knowledge has to be imputed to him that the act of striking lathi blow on the head of the deceased was likely to cause his death. Therefore, he committed that offence of culpable homicide not amounting to murder and the offence is punishable under Part-II of Section 304 IPC.
2. The appellant gave a single lathi blow on the head of the deceased which proved fatal;
3. Injury inflicted on the body of the deceased is not caused by the appellant that to fatal.
4. The incident took place on 21.01.2015 at 10.30 a.m. and the deceased remained hospitalized from 21.01.2015 to 28.01.205 and ultimately died on 28.01.2015 at Nova Hospital, Varanasi.
5. The trial court observed that there was no previous enmity between the parties.
Therefore, it is abundantly clear that there was no premeditation or prearranged plan. All these facts and circumstances are taken into consideration in proper perspective for awarding the sentence.
19. In Jagrup Singh vs. State of Haryana (1981) 3 SCC 616, the accused had inflected a single blow in the heat of moment in a sudden fight with blunt side of Gandhala on the head of the deceased causing his death. According to the opinion of the doctor this particular injury was sufficient in the ordinary course of nature to cause death. But, according to this Court, the intention to cause such an injury was likely to cause death had not been made out. The Apex Court altered the conviction of the accused from section 302 IPC to section 304 Part II IPC and the accused was directed to suffer rigorous imprisonment for a period of seven years.
20. In Gurmail Singh & Others v. State of Punjab (1982) 3 SCC 185, the accused had no enmity with the deceased. The accused gave one blow with the spear on the chest of the deceased causing his death. The injury was an incised wound. The Sessions Judge convicted the accused under section 302 IPC and sentenced him to rigorous imprisonment for life. The High Court affirmed the same. This Court, while taking into consideration the age of the accused and other circumstances, converted the conviction from section 302 IPC to one under section 304 Part II IPC and sentenced him to suffer rigorous imprisonment for five years and a fine of Rs.500/-, in default to suffer rigorous imprisonment for six months.
21. In case of Hem Raj vs. State (Delhi Administration) (1990) Supp. SCC 291 the accused inflicted single stab injury landing on the chest of the deceased. The occurrence admittedly had taken place in the spur of the moment and in heat of passion upon a sudden quarrel. According to the doctor the injury was sufficient in the ordinary course of nature to cause death. Hon'ble Apex Court observed as under:
"14. The question is whether the appellant could be said to have caused that particular injury with the intention of causing death of the deceased. As the totality of the established facts and circumstances do show that the occurrence had happened most unexpectedly in a sudden quarrel and without pre-meditation during the course of which the appellant caused a solitary injury, he could not be imputed with the intention to cause death of the deceased or with the intention to cause that particular fatal injury; but he could be imputed with the knowledge that he was likely to cause an injury which was likely to cause death. Because in the absence of any positive proof that the appellant caused the death of the deceased with the intention of causing death or intentionally inflicted that particular injury which in the ordinary course of nature was sufficient to cause death, neither Clause I nor Clause III of Section 300 IPC will be attracted......"
Hon'ble Apex Court while setting aside the conviction under section 302 convicted the accused under section 304 Part II and sentenced him to undergo rigorous imprisonment for seven years.
22. In case of Pappu vs. State of M.P. (2006) 7 SCC 391, the Hon'ble Apex Court has observed as under;
"......The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300 IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'.
It cannot be laid down as a rule of universal application that whenever one blow is given, Section 302 IPC is ruled out. It would depend upon the weapon used, the size of it in some cases, force with which the blow was given, part of the body it was given and several such relevant factors.
Considering the factual background in the case at hand it will be appropriate to convict the appellant under Section 304 Part II IPC, instead of Section 302 IPC as has been done by the trial court and affirmed by the High Court. Custodial sentence of eight years would meet the ends of justice. The appeal is allowed to the aforesaid extent."
23. On consideration of entire evidence including the medical evidence, I am of the view that the appellant has rightly been convicted under section 304 Part II IPC. In the facts and circumstance of the case that the appellant and all the witnesses are real family members, so before awarding sentence to the accused each case has to be seen its special circumstances and proper prospective. The relevant factors are as under:-
a. Motive or previous enmity;
b. Whether the incident had taken place on the spur of the moment;
c. The intention/knowledge of the accused while inflicting the blow or injury;
d. Whether the death ensued instantaneously or the victim died after several days e. The gravity, dimension and nature of injury.
f. The age and general health condition of the accused.
g. Whether the injury caused without premeditation in a sudden fight;
h. The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;
I. The criminal background and adverse history of the accused;
j. Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was be caused of shock;
k. Number of other criminal cases pending against the accused;
l. Incident occurred within the family members or close relations;
m. The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/ the deceased to the hospital immediately to ensure that he/she gets proper medical treatment?
These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused. The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused.
24. I am of the opinion that nature of simple injury inflicted by the accused on the part of the body on which it was inflicted. The weapon used to inflict the same and the circumstances in which the injury was inflicted do not suggest that appellant had any intention to kill the deceased (real brother of appellant). All that can be said is that the appellant had the knowledge that injury inflicted by him was sufficient to cause the death of the deceased. The case would, therefore, more appropriately fall under section 304 Part II IPC. So the appellant is rightly convicted under Section 304 Part II and 504 IPC.
25. As the appellant's family consists of one minor daughter, two minor sons and wife and all of whom dependent on him and the appellant has no previous criminal history.
26. So, considering the peculiar facts and circumstances of the case. The appeal is partly allowed and modifying the sentence awarded to appellant.
27. The conviction provided under section 304 Part II is confirmed. As the appellant is in jail since 01.02.2015 (during trial as well as appeal). I think that the ends of justice would be served by sentencing the appellant to rigorous imprisonment for 5 years, under section 304 IPC Part-II and one year imprisonment under section 504 IPC and both the sentence run concurrently. The fine imposed by trial court with default clause awarded to him shall remain unaltered. It is made clear that the period undergone in jail shall be adjusted in 5 years imprisonment.
28. The office is directed to transmit back the record of the Lower Court with a copy of judgment and order of this Court for immediate compliance.
Order Date:- 23 .01.2020.
v.k. updh.