Allahabad High Court
Ramajanam Maurya @ Ramjanam Maurya vs State Of U.P. on 24 July, 2024
Bench: Ashwani Kumar Mishra, Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:117922-DB Court No. - 43 Case :- CRIMINAL APPEAL No. - 255 of 2019 Appellant :- Ramajanam Maurya @ Ramjanam Maurya Respondent :- State of U.P. Counsel for Appellant :- Aravind Kumar Maurya,Amit Kumar Pandey,Avinash Mani Tripathi Counsel for Respondent :- G.A. Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Dr. Gautam Chowdhary,J.
1. This appeal arises out of judgment and order of conviction dated 15.05.2018, passed by Additional Sessions Judge/FTC Ist, Chandauli in Sessions Trial No. 58 of 2008 (State Vs. Ramjanam Maurya) arising out of Case Crime No. 210 of 2007 under Section 302 I.P.C. Police Station Sakaldeeha, District Chandauli, whereby the accused-appellant has been sentenced under Section 302 I.P.C. to undergo for life imprisonment along with fine of Rs. 20,000/- and in default in payment of fine to further undergo for additional imprisonment of four months. The accused appellant has also been convicted in Sessions Trial No. 59 of 2008 (State Vs. Ramjanam Maurya) arising out of Case Crime No. 217 of 2007, whereby the accused appellant has been sentenced under Section 25 Arms Act to undergo for rigorous imprisonment of two years along with fine of Rs. 2000/- and in default in payment of fine to further undergo for additional imprisonment of one month.
2. The prosecution case emanates on the written report of the informant (exhibit ka-1), as per which, he is a resident of Village Bardisada (Teekapur). On 02.11.2007, he along with his son Munakka Maurya, his grandson Anil and Sunil were sitting on a cot, at about 08:00 P.M., when the accused-appellant Ram Janam Maurya, who is a neighbour, came drunk and started abusing the informant. The accused-appellant held the informant and slapped him twice. The son of the informant came down from the cot and resisted the assault on his father and in the process, the accused-appellant took out country made pistol from his pant and with an intent to commit murder of the deceased, shot him on his chest, whereafter he fled away from the place of occurrence. The incident reportedly was seen by the informant and based upon such report, the F.I.R. came to be lodged on 02.11.2007 in Case Crime No. 210 of 2007, under Section 302 I.P.C. at Police Station Sakaldeeha, District Chandauli. Investigation proceeded in the matter and inquest was conducted on the next day i.e. 03.11.2007 at about 08:00 in the morning. The inquest witnesses found that the deceased had died a homicidal death and in order to ascertain the true cause of death post mortem be conducted. The post mortem of the deceased consequently, has been conducted on the same day i.e. 03.11.2007, wherein following injuries have been found on the deceased:-
(I) Wound of entry fire arm wound entry about 2.5 X2 c.m. right side chest of 4 c.m. optimal from rt. side nipple at 4"O clock position. Blackening tattoing scorching present all around the body in an area of 6 cm x 5 cm fracture of 7, 8 ribs.
(II) wound of exit 2 cm x 2cm right side back 4 cm from midline of cervical spine no blackening tattoing scorching is present.
3. The cause of death is due to anti-mortem injuries. Relying upon the statements of the eye-witnesses as well as on the basis of recovery of firearm, the Investigating Officer submitted charge sheet against the accused-appellant under Section 302 I.P.C., and 3/25 Arms Act, upon which, cognizance was taken in the matter by the concerned Magistrate, who committed the case to the Court of Sessions where the Sessions Trial No. 58 of 2008 (State Vs. Ram Janam Maurya) arising out of Case Crime No. 210 of 2007 under Section 302 I.P.C. and Sessions Trial No. 59 of 2008 (State Vs. Ram Janam Maurya) arising out of Case Crime No. 217 of 2007 under Section 3/25 Arms Act were registered and the Court of Sessions framed charges against the accused-appellant under Section 302 I.P.C. and Section 25 of the Arms Act. The accused-appellant denied the charges and demanded trial.
4. During the trial, the prosecution has relied upon following documentary evidence:-
"(i) Written report (Ex. Ka-1).
(ii) Post mortem report (Ex. Ka-2).
(iii) Chik F.I.R. Arms Act (Ex. Ka-3).
(iv) G.D.entry (Ex. Ka-4)
(v) Chik F.I.R. (Ex. Ka-5).
(vi) G.D. entry (Ex. Ka-6).
(vii) Site plan (Ex. Ka-7)
(viii) Site Plan (Ex. Ka-8)
(ix) Inquest report (Ex. Ka-9)."
5. The informant was produced as P.W.1, who has clearly supported the prosecution case and has stated that the accused-appellant was drunk and abused and slapped him which led to altercation resulting in sudden fight, in which the deceased resisted the assault by accused due to which the accused-appellant took out his country made pistol and shot at the deceased. Though P.W.1 has been cross-examined at length but no inconsistency or shortcoming in his version could be pointed out by the defence.
6. The other prosecution witness of fact is Sunil Maurya, who appeared as P.W.2. He is the son of the deceased and is an eye witness who has also supported the prosecution case. In the cross-examination of P.W.2, also, no contradiction etc. could be extracted by the defence. P.W.3 is the autopsy surgeon, who has conducted the post mortem at about 02:45 P.M. on 03.11.2007. The surgeon has found that solitary gun shot injury was the cause of death. The two wounds on the body of the deceased consisted of the entry wound and exit wound. Tatooting and scorching were present and the 7th and 8th ribs of deceased were also broken. In the opinion of the doctor, the death of the deceased was caused by the solitary gun shot injury. The doctor also opined that the shot was fired from a close range and was sufficient to cause death of the deceased.
7. P.W. 4 is the Sub-Inspector Radhey Shyam Yadav, who has proved the G.D.entry. P.W.5 Ram Krishna Ram is the Investigating Officer, who has explained the steps taken during the course of investigation and on the basis of which the charge sheet was submitted against the accused-appellant. Other witnesses of prosecution namely P.W.6 Rajit Ram Yaav and P.W.7 Dinesh Yadav, are police personnels, who are formal witnesses and have supported the prosecution case at the trial on the basis of evidence collected during the investigation.
8. The accused has been confronted with the material evidence adduced against him during the trial. His statement under Section 313 Cr.P.C. came to be recorded wherein he stated that he has been falsely implicated and that the evidence adduced is not reliable.
9. On the basis of the above material produced during the trial, the Court of Sessions has come to the conclusion that the guilt of the accused appellant has clearly been established beyond reasonable doubt and consequently, the accused-appellant has been convicted and sentenced as per the law.
10. Challenging the impugned Judgement and order of conviction and sentence against the accused appellant, Sri Rajeev Upadhyaya, learned counsel holding brief of Mohammad Akhtar, for the accused-appellant, submits that the Court of Sessions has erred in recording the finding of conviction and sentence against the appellant inasmuch as the testimony of witnesses are not reliable and that the accused-appellant has been falsely implicated. Alternatively, it is urged that the incident took place at the spur of moment without there being any premeditation, wherein a single shot has been fired and the accused has not taken undue advante or acted in a cruel manner and therefore, the present case would fall under Section 304 I.P.C., instead of Section 302 I.P.C. Learned counsel further argued that accused-appellant has already undergone actual incarceration of 14 years 9 months and with remission the period of incarceration would be more than 16 years. It is submitted that the accused-appellant is therefore entitled to be released on the period of incarceration already undergone.
11. Ms. Archana Singh, learned A.G.A. for the State has opposed the contentions of learned counsel for the appellant and submits that the findings of conviction and sentence is based on the evidence on record, which warrants no interference.
12. We have heard Sri Rajeev Updhayay, learned counsel holding brief of Mohammad Akhtar and Ms. Archana Singh, learned A.G.A. for the State and perused the material on record including the original record of the trial Court.
13. The manner in which the incident has occurred has already been noticed above. It is the specific case of the prosecution that while deceased was sitting with his family members on a cot outside his house, the accused-appellant came drunk and there was a sudden fight with the informant after the accused-appellant started abusing the informant and slapped him twice. The deceased, who happens to be the son of the informant took exception to the act of the accused-appellant, whereafter the accused-appellant in a sudden rage took out the country made pistol and fired upon the deceased. The prosecution case is supported by the testimonies of two eye witnesses namely, Sukhraj (P.W.1) and Sunil Maurya, (P.W. 2) son of the deceased. The version of the eye-witnesses during the course of trial has been carefully perused by us. We find substance in the view taken by the Court of Session that these two witnesses are natural witnesses and their testimony is entirely reliable. We may also note that the inquest report and post mortem report proved during the course of trial shows that the death is homicidal on account of single gun shot fired which resulted in two injuries caused to the deceased i.e. the entry and exit wound. The Investigating Officer has also collected various material from the place of occurrence which are duly exhibited. The evidence on record therefore clearly shows that the deceased was shot from a close range, which resulted in his homicidal death. The manner of incident resulting in the death of the deceased has been explained by the prosecution witness, whose testimony has been found to be entirely reliable. Though, learned counsel for the accused-appellant submits that these two witnesses are not reliable, but we do not find any cogent reasons to accept such argument. We therefore, find that it is a case of homicidal death and the prosecution by producing oral evidence of the two eye witnesses and the documentary evidence in the form of post mortem report; inquest report and other police papers have successfully established that the deceased has been shot dead by the accused-appellant. Since deceased has been short on a vital part from a close range, the offence of murder is clearly proved Guilt of the accused-appellant has thus been established beyond reasonable doubt. Conclusion & finding of the trial Court, on this score is sustained.
14. We now proceed to take up the alternate submission made on behalf of the accused-appellant that this case falls in exception to Section 300 I.P.C. and could be punished only under Section 304 I.P.C.. Evidence on record clearly shows that the accused appellant arrived drunk; slapped and abused the informant and on resistance by the deceased shot him dead. Entire incident occurred at spur of the moment. There is no prosecution evidence to show that there was any premeditation or any definite motive of the accused-appellant to commit the murder of the deceased. The accused appellant was apparently drunk at the time of incident and on being objected to for hurling abuses and slapping the informant that the accused appellant took out his country made pistol and fired a single shot. It is admitted that there was only one shot fired on the deceased. In the facts and circumstances of the case, we are of the view that the incident occurred at the spur of the moment without any premeditation. There is also the evidence to show that the accused-appellant was drunk and thus deprived of self control.
15. Learned counsel for the accused-appellant urged that the incident in question would fall under the fourth exception to section 300 IPC, 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."
16. We may at this stage refer to the judgment of the Supreme Court in State of Uttarakhand v. Sachendra Singh Rawat, (2022) 4 SCC 227 wherein the Court examined the scope of Exception 4 to Section 300 IPC and observed as under:-
"8. In Virsa Singh [Virsa Singh v. State of Punjab, AIR 1958 SC 465 : 1958 Cri LJ 818] , in paras 16 and 17, it was observed and held as under : (AIR p. 468) "16. ... The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question.
17. It is true that in a given case the enquiry may be linked up with the seriousness of the injury. For example, if it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury. The difference is not one of law but one of fact;...."(emphasis supplied)
9. In Dhirajbhai Gorakhbhai Nayak [Dhirajbhai Gorakhbhai Nayak v. State of Gujarat, (2003) 9 SCC 322 : 2003 SCC (Cri) 1809] , on applicability of Exception 4 to Section 300 IPC, it was observed and held in para 11 as under : (SCC pp. 327-28) "11. The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of prosecution (sic provocation) not covered by the first exception, after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1, but the injury done is not the direct consequence of that provocation. In fact, Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon an equal footing. A "sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor could in such cases the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused : (a) without premeditation, (b) in a sudden fight, (c) without the offenders 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 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 had 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 a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage"."
10. In Pulicherla Nagaraju [Pulicherla Nagaraju v. State of A.P., (2006) 11 SCC 444 : (2007) 1 SCC (Cri) 500] , this Court had an occasion to consider the case of culpable homicide not amounting to murder and the intention to cause death. It was observed and held by this Court that the intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances:
(i) nature of the weapon used;
(ii) whether the weapon was carried by the accused or was picked up from the spot;
(iii) whether the blow is aimed at a vital part of the body;
(iv) the amount of force employed in causing injury;
(v) whether the act was in the course of sudden quarrel or sudden fight or free-for-all fight;
(vi) whether the incident occurs by chance or whether there was any premeditation;
(vii) whether there was any prior enmity or whether the deceased was a stranger;
(viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation;
(ix) whether it was in the heat of passion;
(x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner;
(xi) whether the accused dealt a single blow or several blows."
17. Necessary ingredients to attract Ist and 4th Exception to Section 300 I.P.C., are found to be present in the facts of the present case inasmuch as death is caused; there existed no pre-meditation; it was a sudden fight; offender was deprived of self control as he was drunk; the offender has not taken undue advantage or acted in a cruel or unusual manner. The case in hand thus falls under fourth exception to section 300 IPC.
18. The trial court although has examined the facts of the case but has erred in holding the accused appellant to be guilty of offence under section 302 IPC, inasmuch as circumstances of the case have not been correctly examined by the trial court as the sudden act of the accused appellant without premeditation, has erroneously been considered to be an act committed with an intent to commit the murder of the deceased. This part of the finding clearly overlooks the evidence on record.
19. Once that be so, we find that the offence on part of the accused appellant would at best amount to commissioning of an offence under section 304 Part I I.P.C and not under Section 302 I.P.C. The finding of the court below, that offence is proved under Section 302 I.P.C. cannot thus be sustained in view of the evidence on record and stands substituted as per above under Section 304 (Part-I) I.P.C.
20. In view of the discussions and deliberations held, this criminal appeal succeeds and is allowed in part. The conviction and sentence of the accused appellant Ramjanam Maurya @ Ramjanam Maurya, vide judgment and order dated 15.05.2018, passed by the Additional Sessions Judge/FTC Ist, Chandauli, under section 302 IPC, is altered and substituted under section 304 Part I IPC. So far as conviction under Section 25 Arms Act as well as fine imposed upon the accused-appellant are concerned, we are in agreement with the view taken by the Session Court as recovery of fire arm and its use in causing death of deceased are established.
21. Coming to the quantum of sentence, we find that the accused-appellant has already undergone incarceration of 14 years and 9 months and with remission the incarceration would be above 16 years. Considering the gravity of offence and nature of evidence, we are of the considered opinion that sentence undergone by the accused-appellant would adequately meet the ends of justice and consequently, punishment of life imprisonment imposed upon the accused-appellant by the Court of Sessions is substituted with the punishment already undergone by the accused-appellant.
22. The accused - appellant shall be released forthwith unless he is wanted in any other case subject to compliance of Section 437-A Cr.P.C.
23. The trial Court record along with the copy of this order be transmitted to the court concerned forthwith.
Order Date :- 24.7.2024 (Dr. Gautam Chowdhary,J.) (Ashwani Kumar Mishra,J.) S.Ali