Allahabad High Court
Manoj Kumar Gupta vs State Of U.P. on 18 August, 2017
Author: Shailendra Kumar Agrawal
Bench: Shailendra Kumar Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. -24 Reserved A.F.R. Case :- JAIL APPEAL No. - 2326 of 2015 Appellant :- Manoj Kumar Gupta Respondent :- State Of U.P. Counsel for Appellant :- From Jail,Jagriti Singh A/C Counsel for Respondent :- A.G.A. Hon'ble Shailendra Kumar Agrawal,J.
1. This jail appeal has been filed against the judgment and order dated 04.02.2015 passed by Additional Sessions Judge, Court No.3, Fatehpur in Sessions Trial No.245 of 2013 (State Vs. Manoj Kumar Gupta), arising out of case crime no.153 of 2012, under Sections 307, 504 IPC, P.S. Ghazipur, District Fatehpur, convicting and sentencing the appellant under Section 307 IPC for ten years' rigorous imprisonment along with fine of Rs.20,000/- and in default of payment of fine to further undergo one year's imprisonment and under Section 504 IPC for two years' imprisonment.
2. In brief the prosecution story is that the marriage of Anshu Devi, sister of the informant/ PW-1 Sikkhu was solemnized with Manoj, accused-appellant 15 years ago; that from their wedlock three children were born and they are pursuing their studies at the house of their Nana (maternal grand father) at Churiyani; that on the occasion of Raksha Bandhan, sister of the informant had come to her maternal home at Churiyani; that on 14.10.2012 at about 7.00 pm, the accused-appellant (husband of sister of the informant) came at Churiyani and during the course of conversation in the courtyard, he started giving abuses to Anshu and asked her to go with him; that Bhola, father of the informant restrained the accused-appellant to give abuses and asked him to take Anshu Devi in the next morning; that in the state of provocation, the accused-appellant stabbed knife blow in the abdomen of Bhola with an intention to kill him, due to which his intestines were protruded; that when Anshu Devi came forward to save her father, she was also assaulted by knife in her stomach by accused-appellant; that the accused-appellant was caught hold with the help of villagers after giving him some beatings; that all the three injured including accused-appellant were brought to the District Hospital, Fatehpur for treatment, from where due to critical condition, Anshu Devi and Bhola were referred to Hallet Hospital, Kanpur and the treatment of accused-appellant was going on in District Hospital, Fatehpur itself. The documents regarding admission of injured Anshu Devi and Bhola in District Hospital, Fatehpur are Ex. Ka-11 and Ex. Ka-12. The documents regarding treatment at Hallet Hospital, Kanpur are Ex. Ka-4 and Ex. Ka-5.
3. On the basis of written report Ex. Ka-1, FIR Ex. Ka-2 was registered in case crime no.153 of 2012, under Sections 504 & 307 IPC at P.S. Ghazipur, District Fatehpur against accused-appellant and relevant entries regarding registration of the case were made in the G.D. at Report No.36 at 23.40 hours on 14.10.2012, carbon copy of which is Ex. Ka-3.
4. Investigation of the case was entrusted to S.I. Daya Shanker Tiwari, who visited the place of occurrence and recorded the statements of the witnesses under Section 161 Cr.P.C. and also prepared the site plan Ex. Ka-8.
5. After completion of the investigation, the Investigating Officer has submitted charge sheet against the accused-appellant for the offence under Sections 307 and 504 IPC, on which the learned Magistrate took cognizance and committed the case to the court of Sessions.
6. Charges against the accused were framed for the offence under Sections 307 & 504 IPC. The accused denied the allegations and claimed to be tried.
7. To prove its case, the prosecution has examined as many as six witnesses namely Sikkhu Gupta, the informant as PW-1, Bhola Bhurji, injured as PW-2, Smt. Anshu, injured as PW-3, Constable Brijendra Pratap Singh as PW-4, Dr. R.K. Singh, Assistant Professor Surgery G.S.M.V. College, Kanpur as PW-5 and the Investigating officer/ S.I. Daya Shanker Tiwari as PW-6.
8. The prosecution has closed its evidence and the statement of accused under Section 313 Cr.P.C. was recorded, in which he has denied prosecution allegations and evidence and stated that false case has been registered against him and the charge sheet has been submitted against him in an illegal manner. It has also been submitted that the witnesses have deposed falsely due to enmity. No defence evidence has been produced on behalf of the accused-appellant.
9. After scrutinizing and appreciating the evidence, available on record, the learned trial court recorded finding of conviction under Sections 307 & 504 IPC.
10. Heard Mr. Jagriti Singh, learned Amicus Curiae for appellant and Sri Pradeep Kumar, learned A.G.A for the State and perused the record.
11. PW-1 Sikkhu Gupta has stated that he solemnized the marriage of his sister Anshu Devi with the accused-appellant and out of their wedlock three children were born, who were studying at the house of their maternal grandfather at Churiyani. On the occasion of Raksha Bandhan, Anshu Devi came to her maternal house at Churiyani and on 14.10.2012 at about 7.00 pm, his brother-in-law i.e. accused-appellant came there and during course of conversation, he became annoyed and due to sudden provocation he inflicted knife blows to his father-in-law Bhola in his abdomen and when his wife Anshu Gupta came forward to rescue him, she was assaulted by the accused-appellant by knife in her abdomen. In cross-examination of this witness, nothing contrary could be extracted.
12. PW-2 injured Bhola Prasad has stated that accused-appellant is his son-in-law and on the date of incident he came at his house and asked Anshu Gupta to go with him immediately and some conversation was going on between them. It was night time, so this witness asked the accused-appellant to take Anshu Gupta by the next morning, on which he became annoyed and due to sudden provocation caused knife blows to the witness and when Anshu Devi came forward to protect her father, she was also assaulted by knife in her abdomen. They were firstly admitted to District Hospital, Fatehpur and thereafter referred to Hallet Hospital, Kanpur. In cross-examination nothing favourable to the accused-appellant could be extracted.
13. PW-3 injured Smt. Anshu Devi, who is wife of the accused-appellant, has stated that appellant had come to the house of her father to take her. When her husband began to abuse her, her father said to the accused-appellant not to abuse Smt. Anshu, then having been provoked he attacked her father with knife and when she came to rescue him, she was also assaulted. She was cross-examined at length, but nothing favourable to the accused-appellant could be extracted.
14. PW-4 CP Brijendra Pratap Singh is the formal witness, who has recorded the FIR in the G.D. on the written report of PW-1 Sikkhu.
15. PW-5 Dr. R.K. Singh, Assistant Professor Surgery Department, G.S.V.M., Medical College, Kanpur, provided medical treatment to both the injured namely Smt. Anshu Devi and Bhola Prasad. The summary regarding medical treatment provided to injured Smt. Anshu Gupta is as follows:-
"The above mentioned patient was admitted to ourside as an alleged case of stab injury abdomen with low general condition with active bleeding and herniation of the bowel with omentum from the wound. Patient was taken up for surgery, exploratory laprotomy (abdominal operation) was done. A gastric perforation was found that was repaired. At present, the patient is admitted to ourside in the ward."
The summary regarding medical treatment provided to injured Bhola Prasad is as follows:-
"The above mentioned patient was admitted to ourside as an alleged case of stab injury abdomen with left hand injury with low general condition with active bleeding and herniation of the bowel with omentum from the wound. Patient was taken up for surgery, exploratory laprotomy (abdominal operation) was done. A gastric perforation was found that was repaired. At present, the patient is admitted to ourside in the ward."
This witness has opined that the injuries caused to the injured Smt. Anshu and Bhola Prasad were serious in nature.
16. PW-6 S.I. Daya Shanka Tiwari, who is Investigating Officer of the case, has proved all about the procedural formalities of the investigation along with submission of charge sheet. He has proved the site plan Ex. Ka-8, Fard of blouse Ex. Ka-6, Fard of blood stained and simple earth Ex. Ka-7, copy of G.D. as Ex. Ka-10. He has also proved the blood stained earth and simple earth as material Ex.1 & 2 respectively and the blouse as material Ex. 3 and lastly he also proved the charge sheet as Ex. Ka-9. In cross-examination also, this witness has proved the investigation to have been conducted by him.
17. Mr. Jagriti Singh, learned Amicus Curiae has submitted that it is the case of the prosecution that the accused-appellant has caused the injuries to injured persons, who are his wife and father-in-law in sudden provocation, hence no case under Section 307 IPC is made out against the accused-appellant and only the case under Section 335 IPC is made out against the appellant. He further argued that as per evidence adduced by the witnesses, the accused-appellant was apprehended on the spot with the help of villagers and if the injuries were caused by knife, then why the said knife was not recovered from the hand of the accused-appellant or from the place of incident and why the Investigating Officer has not registered a case under Section 4/25 of the Arms Act. The knife is alleged to have been recovered on 25.10.2012, but no recovery memo regarding the same was prepared, the knife was not sent by the Investigating Officer for scientific test to the Forensic Science Laboratory. He further argued that the injuries caused to Mr. Bhola Prasad were not on vital parts. He has drawn attention of the Court that humans have five vital organs that are essential for survival. These are the brain, heart, kidneys, liver and lungs. In this case the injuries were caused by the accused-appellant to his father-in-law in his abdomen, which is non-vital part of the body. It has been further argued by the learned Amicus Curiae that as per statement of PW-5 Dr. R.K. Singh, the injuries received by Bhola Prasad may be caused by falling down on sharp pointed wooden object or on any other sharp pointed object. The Doctor has not specifically mentioned the dimensions of the injuries caused to Bhola Prasad and Anshu Gupta. It has also been argued that PW-3 Smt. Anshu has stated that the blouse borne by her was wet with blood and the same was taken into custody by the Investigating Officer after 8 days of the incident while the PW-6 Investigating Officer has prepared the Fard on 15.10.2012, the very next day of the incident, hence there is major contradiction on this point. Learned Amicus Curiae has also argued that the accused-appellant was apprehended with the help of villagers, but no villager has been examined as prosecution witness. Hence, the prosecution has failed to prove its case beyond reasonable doubts.
18. Learned Amicus Curiae in support of his case has placed reliance on the following case laws:-
(1) Sarju Prasad Vs. State of Bihar, AIR 1965 SC 843, (2) Kanakarajan @ Kanakan Vs. State of Kerala, Criminal Appeal No.841 of 2007, AIR 2017 SC 2779 (3) Gurram Sambaiah Vs. State, 2005 CriLJ 238 (4) Hari Kishan & anr. Vs. Sukhbir Singh & ors., 1988 AIR 2127, (5) Sukhar Vs. State of Uttar Pradesh, (1999)9SCC 507, (6) Lallan Rai & ors. Vs. State of Bihar, Appeal (crl.) 93 - 95 of 2001, AIR 2003 SC 333.
(7) Pashora Singh and another Vs. State of Punjab, AIR 1993 SC 1256, (8) Kesra and ors. Vs. State of Rajasthan, 1999 CrlLJ 2625 (9) Karunamoy Sarmah Vs. State of Assam, 2003 CriLJ 1968
19. Sri Pradeep Kumar, learned AGA could not give any satisfactory explanation to all these queries, but he argued that accused was apprehended from the spot and all the witnesses have stated clearly that it was only the accused-appellant, who caused these injuries to his father-in-law and wife. There is no reason for the complainant to falsely implicate the accused, who is husband of sister of the complainant and no enmity has been proved. From all the above, it was enough to bring home a finding of guilt against the accused.
20. I have gone through the documents available on record as well as the judgment of the learned trial court. What is noteworthy is that the FIR was written by PW-1 Sikkhu, who is son of injured Bhola Prasad and brother of injured Anshu and brother-in-law of the accused-appellant. The FIR is prompt and is not ante-time or ante-dated.
21. As far as the plea regarding sudden provocation and maximum case under Section 335 IPC is made out against the accused- appellant is concerned, I do not agree with the contention of learned Amicus Curiae in this regard. The accused-appellant has not taken this plea since beginning. The whole burden was lying upon the accused-appellant to prove this plea. It was his duty to put suggestions to the witnesses of fact that the crime was committed due to sudden and grave provocation done by his father-in-law or his wife. He has not taken this plea in his statement recorded u/s 313 Cr.P.C., no defence evidence has been produced in this regard and now this plea is being taken for the first time in appeal. Further there was nothing on the part of Bhola, by which accused was deprived of the power of self-control by grave and sudden provocation. To take the benefit of plea of grave and sudden provocation it has to be proved by the accused-appellant himself through the evidence of prosecution witnesses or his defence witnesses that the act of the injured was such which caused such provocation to the accused to constitute that offence and this provocation should be such as to cause a reasonable man to loose his power of self-control and should have actually caused in the accused a sudden and temporary loss of self-control. Provocation is an external stimulus which can be objectively gauged but loss of self-control is a subjective phenomenon and can be inferred from the surrounding circumstances, the manner in which the accused reacted to the circumstances and accused's own description of his mind which can be verified with reference to relevant objective facts by the court imaginatively reconstructing the psychological situation in which the accused found himself. The applicability of the doctrine of provocation, thus, rests on the fact that it brings about a sudden and temporary loss of self-control. Each little provocation cannot be called grave simply because the consequences ensuing from that provocation have been grave. The provocation must be such as will upset not merely a hasty, hot tempered and hyper-sensitive person but would upset also a person of ordinary sens and calmness. In the absence of such proof the atrocity of the offence will not be mitigated and the offender will not be able to escape the legal consequences of his act. In this case in a very ordinary way injured Bhola only interfered in the altercation going on between the husband and wife for prohibiting accused to go back in the night. This was not the matter which might cause any provocation to the accused to inflict such type of injury. The appellant could not prove any role of Bhola or his wife by which accused was deprived of the power of self-control. So I do not find any ground to convert the case from Section 307 IPC to Section 335 IPC.
22. So far as the plea regarding recovery of knife and preparation of its Fard and registration of case under Section 4/25 of the Arms Act is concerned, I do agree with argument of the learned Amicus Curiae that the Investigating Officer committed a mistake in not making recovery memo of the knife and not registering the case under Section 4/25 of the Arms Act, but the accused-appellant cannot be acquitted for the offence committed by him due to the mistakes committed by the Investigating Officer.
23. So far as the injuries caused to Bhola Prasad on vital or non-vital part is concerned, I do agree with the argument of the learned Amicus Curiae. The injuries were caused to Bhola Prasad in his abdomen, which is non-vital part of the body. I find that the injuries attributable to the place caused by the accused-appellant are in the nature of grievous hurt, in that case the accused could only be held guilty under Section 326 IPC and not under Section 307 IPC.
24. As far as the argument regarding opinion of PW-5 Dr. R.K. Singh that the injuries caused to Bhola Prasad may be caused by fall on sharp pointed wooden object or any other sharp pointed object is concerned, there is no such evidence either in the prosecution case or in the defence case and it is only view of the Doctor and the Doctor was not the eye witness, hence this Court has to rely on the oral testimony of the witnesses. Although dimensions of the injuries has also not been mentioned by the doctor, but inspite of that it cannot be held that these injuries were not caused by the accused-appellant and due to mere laches of the doctor, the accused cannot be acquitted on this ground alone.
25. I agree with the argument of the learned Amicus Curiae that there is contradiction in the statements of PW-3 Smt. Anshu and PW-6 Investigating Officer regarding the date of taking of blood stained blouse in custody of the police, but I do not find any force in this argument also as if this blouse was blood stained, then why Smt. Anshu Gupta would take it to the hospital and why she would keep that blouse in her custody while as per Fard Ex. Ka-6, this blouse was collected from the spot on the very next day of the incident when the blood stained earth and simple earth were also taken from the spot.
26. As far as argument that accused-appellant was apprehended by the villagers, but no villager examined as witness is concerned, the prosecution has examined three eye witnesses, out of whom two are injured, who have fully supported the prosecution version and only by non-examination of any villager as witness would not thrash out the prosecution case.
27. As far as rulings cited by the learned Amicus Curiae is concerned, they are not fully applicable in the case of the accused-appellant except on some points. Now it has to be seen whether any offence under Section 307 or 326 IPC is made out against the appellant or not. Section 326 IPC speaks of voluntarily causing grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument, which used as a weapon of offence, is likely to cause death. The injury reports of the doctor, who has examined Bhola Prasad and Anshu Gupta, show that although the injuries are serious in nature, but the said injuries have not been caused with an intention to kill the injured persons, who are his wife and father-in-law. It has come in the statements of the witnesses that during conversation going on between the accused-appellant and his wife, he asked his wife to come with him in abusive language and when it was resisted by his father-in-law, he suddenly provoked and caused knife blows to his father-in-law in his abdomen and when his wife came forward to save her father, she was also assaulted by knife by the accused-appellant. No doubt injuries caused to the injured are serious in nature, but those are not on the vital part of the body. Hence, the ingredients of Section 307 IPC are missing, but nevertheless offence under Section 326 IPC is made out.
28. For conviction under Section 326 IPC, the requirement of Section 320 IPC must be satisfied to make out the offence and for voluntarily causing grievous hurt, there must be some specific hurt. The line between 'culpable homicide not amounting to murder' and 'grievous hurt' is a very thin and subtle one. In the one case the injuries must be such as are likely to cause death; in the other the injuries must be such as endanger to life. A wound on the neck inflicted with a sharp edged weapon or a knife blow on the abdomen must be considered 'dangerous to life'. That means injury which is actually found should itself be such that it may put the life of the injured in danger. An injury which can put life in immediate danger of death would be an injury which can be termed as 'dangerous to life' and therefore, when a doctor describes an injury as 'dangerous to life', he means an injury which endangers life in terms of this clause. If the common intention of the accused and his associates by committing assault was not to cause injury known to be likely to cause death, but to cause grievous hurt, though the combined effect of the injuries actually caused was likely to cause death, the accused would be guilty of the offence of causing grievous hurt and not of culpable homicide not amounting to murder. The expression 'endangers life' is stronger than 'dangerous to life'. In Sattan Sahani Vs. State of Bihar, (2002) 7 SCC 694, it was held that where the accused inflicted only 'Bhala' blow to the victim which was likely to cause his death, so he has been rightly convicted under Section 326 IPC. In Lallan Rai Vs. State of Bihar (2003)1 SCC 268, it was held that when on consideration of report of injuries on the PWs the case of causing grievous hurt with dangerous weapons have been made out the accused persons can be convicted to Section 326/34 IPC instead of Section 307/34 IPC.
29. In this case also the prosecution evidence does not disclose anywhere that there was any intention or knowledge of the accused-appellant to cause death of his father-in-law and wife. It is an established fact that at the time of this incident, the accused was having a knife and he caused injury in the abdomen part of both the injured and as per evidence of doctor, injuries to both the injured were grievous and dangerous to life. However, the doctor has not mentioned anywhere this fact in his reports. Thus, this case is fully covered under Section 326 IPC rather than 307 IPC and in my opinion it would be proper to punish the accused-appellant with five years' rigorous imprisonment along with fine of Rs.10,000/-.
30. Therefore, for the reasons aforesaid, this appeal is partly allowed. The judgment of the trial court is modified to the extent that the appellant is held guilty of the offence under Section 326 IPC instead of 307 IPC and his conviction and sentence is converted into Section 326 IPC. Accordingly, the sentence is reduced from ten years to five years and fine is reduced from Rs.20,000/- to Rs.10,000/-, out of which Rs.5000/- shall be paid to Smt. Anshu Gupta, who is wife of accused-appellant. If fine is not paid, the appellant shall further undergo one year's simple imprisonment. There is no need to interfere in the sentence awarded by the learned trial court under Section 504 IPC. Judgment and order of the learned trial court is upheld regarding offence under Section 504 IPC.
31. Office will certify this order to the court concerned within 10 days. Trial court shall thereafter communicate compliance of this judgment within a month thereafter.
32. Before concluding, this Court must put on record its appreciation of the efforts put by Mr. Jagriti Singh, learned Amicus Curiae in providing valuable assistance to the Court. He will get his remuneration as per prescribed rules of this Court.
Order Date :- 18.8.2017 Anoop