Kallu Khan vs State Of U.P. on 9 January, 2017

[Cites 4, Cited by 1]

Allahabad High Court

Kallu Khan vs State Of U.P. on 9 January, 2017

(Delivered by Hon'ble Arvind Kumar Mishra-I,J.) By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 26.04.2013 passed by the Additional Sessions Judge, Court No.5, Badaun, in Sessions Trial No.1065 of 2011 State of U.P. Vs. Kallu Khan, arising out of Case Crime No.980 of 2011, under Sections 304, 504 IPC, Police Station- Dataganj, District- Badaun whereby the appellant Kallu Khan has been sentenced to life imprisonment coupled with fine Rs.10,000/- under Section 304 IPC, with default stipulation for one month's additional imprisonment. By the same judgment, the appellant Kallu Khan has been exonerated of charge under Section 504 IPC. In this case, the appellant is in jail since trial.

Heard Sri Gaurav Kakkar, learned counsel for the appellant and Sri A.N. Mulla, Sri J.K. Upadhyay, Kumari Meena and Syed Hasan Shaukat Abidi, learned AGAs for the State and perused the record of this appeal.

Facts germane as reflected from perusal of the record and particularly from the first information report reveal that the informant Aziz Khan father of the deceased Jubaida lodged the written report at Police Station Dataganj, District Badaun on 08.07.2011 at 9:45 p.m. against the accused-appellant Kallu Khan for causing death of her daughter Jubaida by firing on her in drunken state with specific allegations that the accused-appellant Kallu Khan is brother in law of the informant's real elder brother Rais Khan. He is a habitual drunkard and takes liquor daily and creates noisy scene in the village. On the date of the incident i.e. 08.07.2011, the accused-appellant under deep influence of liquor came to his door around 8:00 p.m. and began to extend abuse on him. When the informant asked him not to abuse then he fired shot from countrymade gun 315 which fire hit the informant's daughter Jubaida aged 10 years who at that point of time was standing at the door. The injured Jubaida was taken to the Government Hospital at Dataganj where she was declared dead. The dead body of the informant's daughter was lying in the Government Hospital. This incident was witnessed by Zahir Khan, Sabhir Khan and the other villagers. It was requested that report be lodged and appropriate action be taken. The written report is Ext. Ka-1.

Contents of the aforesaid information were taken down in the concerned Check FIR at Case Crime No.980 of 2011 under Sections 304, 504 IPC, at Police Station Dataganj, District Badaun, on 08.07.2011 at 9:45 p.m. Check FIR is Ext. Ka-3. On the basis of entries so made in the check F.I.R., a case was registered against the accused-appellant in the relevant G.D. at serial no.49 on 08.07.2011 at 21:45 hours at aforesaid case crime number at Police Station Dataganj under aforesaid sections of I.P.C. against accused-appellant. General diary copy is Ext. Ka-4.

Record reflects that after the case was lodged against the accused-appellant, the investigation of the case was taken over by the Investigating Officer, Harpal Singh PW-5 who was, at that point of time, posted as Sub-Inspector at Police Station Dataganj. He took primary steps and recorded relevant contents of the first information report and general diary. Constable Om Prakash immediately proceeded to the hospital for holding inquest of the deceased Jubaida. There was proper arrangement of light, therefore, after selecting inquest witnesses, inquest was held. The witnesses concurred with the Investigating Officer that the dead body be sent for post mortem examination in order to ascertain real cause of death. The inquest report is Ext. Ka-5.

In the course of proceedings, relevant papers were prepared for sending the dead body for post mortem examination. These papers are Ext. Ka-6 to Ext. Ka-9. Thereafter, post mortem examination on cadaver of the deceased Jubaida was done by Dr. Amit Kumar on 09.07.2011 at 3:00 p.m. at District Hospital Badaun wherein he noted the following ante mortem injuries:

Firearm entry lacerated (left side chest) wound, 2 cm x 1 cm, margin inverted, blackening present, 6 cm below nipple.

On dissection, 7 and 8 ribs found fractured, left lung found lacerated, liver lacerated. One long metallic bullet recovered from back of chest cavity just below angle of scapula.

In the opinion of the doctor, cause of death was shock and haemorrhage as a result of ante mortem firearm injuries. This post mortem examination report is Ext. Ka-2.

The investigating Officer also collected simple and blood stained clay roll from the spot and made a memo of the same which is Ext. Ka-10. The site map of the spot was also prepared which is Ext. Ka-11. On 12.07.2011, around 3:00 p.m., the accused-appellant was arrested by the Investigating Officer and a countrymade gun 315 bore was also recovered from his possession with one discharged cartridge. He was taken into custody and the recovered material was kept under seal and a memo of the same was prepared. The Investigating Officer also recorded statement of various prosecution witnesses and at last, after completing investigation, he filed charge sheet no.179 of 2011 under Sections 304, 504 IPC against the accused-appellant Kallu Khan which charge-sheet is Ext. Ka-12.

Pursuant thereto, proceedings were committed to the court of Sessions from where it was transferred for conduction of trial and disposal of the case to the aforesaid trial court of Additional Sessions Judge, Badaun who in turn heard both the sides on point of charge and was prima-facie satisfied with case against the accused-appellant, accordingly, framed charges under Sections 304, 504 IPC. Charges were read over and explained to the accused-appellant who abjured charges and opted for trial.

In furtherance of the proceedings the prosecution produced in all 5 witnesses. A brief sketch of witnesses is ut-infra:-

Aziz Khan PW-1 is the informant and eyewitness of the occurrence. He is father of the deceased Jubaida. Zahir Khan PW-2 is another eyewitness and brother of Aziz Khan PW-1. Dr. Amit Kumar PW-3 has proved autopsy report Ext. Ka-2. Constable Om Prakash who made relevant entry in the concerned Check FIR and registered a case against the accused by relevant general diary entry of date, has proved Check FIR and general diary entry as Ext. Ka-3 and Ext. Ka-4, respectively. Harpal Singh PW-5 is the Investigating Officer. He has detailed various steps, he took in completing investigation. He has filed charge-sheet Ext. Ka-12. Except as above, no other evidence was adduced by the prosecution.

Therefore, evidence for the prosecution was closed. The statement of the accused was recorded under Section 313 Cr.P.C. wherein he has claimed his innocence and stated that he has been falsely implicated in this case. Though the accused-appellant wished to adduce evidence on his behalf but he did not lead any evidence.

The case was heard on merit by the learned trial Judge who after appraisal of facts and evaluation of the evidence and circumstances of the case, returned finding of conviction against appellant under Section 304 IPC and sentenced the appellant to life imprisonment coupled with fine Rs.10,000/- under Section 304 IPC, with default stipulation for one month's additional imprisonment.

Consequently, this appeal.

Sri Gaurav Kakkar, learned counsel for the accused-appellant has vehemently persuaded by contending that the accused-appellant is innocent and has not committed any offence. No one saw the actual occurrence. In fact the death of girl took place while it was darkness of night. No one saw the assailant. There was no source of light to identify any assailant. There was no motive for committing the offence. The presence of the accused-appellant on the spot is doubtful. Moreover, looking to the facts and circumstances of the case, there are so many attenuating facts coupled with circumstances of the case which make it apparent for one and all that the crime at the nature of the crime attributed was never intended to be committed by the accused-appellant.

In that particular background of the occurrence, learned trial court was not justified in awarding severe penalty prescribed under Section 304 IPC, it erroneously, after overlooking vital facts and circumstances of the case, wrongly awarded life imprisonment under Section 304 IPC, whereas, the case at the most was covered well under Part-II of Section 304 IPC and looking to that Part (II) of Section of IPC, the sentence could have been palliated so as to meet the ends of justice. Therefore, the ends of justice have not been achieved and secured even while sentencing the appellant. Although the accused-appellant claims absolute immunity from culpability for charge under Section 304 IPC that the same is not sustainable and not proved beyond reasonable doubt. Why the accused-appellant will cause murder of daughter of the informant has not been made clear. What the deceased was doing at that point of time at 8:00 p.m. at the door of her house has not been clarified by the informant.

The occurrence took place in the darkness of night. The police has worked out false case in collusion with the informant who was not having good terms with his elder brother Rais Khan, and named his brother in law as main culprit. The police highhandedness and involvement is reflected from fake recovery of countrymade gun 315 bore with discharged cartridge. The recovered material though sent for forensic examination was not properly sealed, therefore, it was returned without examination as such the fact of recovery remains a mystery. The prosecution witnesses are close relatives of the deceased and they are inimical towards elder brother and with a view to harass the elder brother, PW-1 and PW-2 have deliberately named brother in law of their elder brother in this episode.

Per contra, the learned AGA retorted to aforesaid arguments by submitting that it is a case of clinching testimony and clinching eye account version of the incident. It describes the particular manner, style and circumstances when the murder was committed by the accused-appellant. It has not been clarified that the accused-appellant was a habitual drunkard. He under influence of liquor committed offence though it may be in a heat of passion, culpability is not only gauged by an overt act but also is imputed on the basis of illegal omission. Both act and omission are equally punishable. May be that intention to kill was lacking but knowledge of act as may reasonably be fastened on a prudent ordinary man can be interpreted in terms that the person anticipated outcome of his criminal act. Everyone will be presumed to have reason to believe fate of firing that it will, in all likelihood, cause death. He cannot remain under cover of liquor influence, if liquor was voluntarily taken.

Learned AGA has further contended that it is no case that liquor was forcibly administered to the accused-appellant and he under influence of such liquor, in a heat of passion, committed offence. In eye account testimony cases, motive is relegated to the background as course of event proceeds, it suggests that the firing took place when the accused-appellant started abusing the informant after consuming liquor. When asked by the informant not to do so, he rashly fired on him which fire though intended on the informant somehow hit the informant's daughter Jubaida who at that point of time was standing at the door of her house. More so, there was no reason to falsely implicate the accused-appellant in this case and spare real culprit. No motive has been suggested for false implication of the accused-appellant in this case. Testimony of PW-1 and PW-2 is natural, inspires confidence and his presence on the spot cannot be doubted under facts and circumstances of the case. The first information report was promptly lodged at 9:45 p.m. after the incident took place at 8:00 p.m. on 08.07.2011.

Learned AGA has next contended that Dr. Amit Kumar PW-3 who conducted autopsy on the cadaver of the deceased Jubaida has also testified to fact that ante mortem wound can be caused around 8:00 p.m. on 08.07.2011 and this wound can be caused by use of firearm. There is no legal base to doubt testimony of PW-1 and PW-2 and they cannot be stated to be partisan witnesses merely because PW-1 and PW-2 happen to be father and uncle of the deceased Jubaida, respectively. Once the death of innocent girl aged 10 years has been caused in a heat of passion and rashness then penalty should be severe for causing death and that way sentence awarded against the accused-appellant in the shape of life imprisonment is wholly justified. Learned trial court has judiciously recorded conviction and has passed appropriate sentence.

We have also considered the rival submissions and taken into consideration rival claims. In view of above, the point for determination of this appeal specificially relates to fact whether the prosecution has been able to prove charge under Section 304 IPC beyond reasonable doubt and has sentenced condignly.

We may take note of contents of the first information report which contains full description of the incident as to about time, place, manner and style of the occurrence. The informant has alleged that the accused-appellant was a habitual drunkard and he used to create noisy scene after consuming liquor in the village and on the date of occurrence i.e. 08.07.2011, he under influence of heavy liquor around 8:00 p.m. came to his house and began to abuse him whereupon the informant asked him not to extend abuse then he fired on him which fire hit his daughter Jubaida who was standing at the door of the house. The incident was witnessed by Zahir Khan and Sabir Khan, his two real brothers and the other villagers.

Thereafter, the injured Jubaida was taken to the government hospital, Dataganj where the doctor after examination declared her dead. The informant after death of her daughter lodged the first information report whereupon the investigation ensued and was taken over by S.I. Harpal Singh PW-5 who immediately proceeded to the spot and held inquest of the deceased Jubaida in the night itself. The preparation of inquest commenced at 10:45 p.m. and it was completed at 11:50 p.m. on 08.07.2011.

As per contents of the first information report, now we may scrutinize evidentiary value of testimony of PW-1 and PW-2, the so-called eyewitnesses of the occurrence on the anvil whether it inspires confidence and is consistent with the claim of the prosecution. Aziz Khan PW-1 has stated in his examination in chief that the accused-appellant Kallu Khan daily creates panic and noisy scene in the village after consuming liquor. On the date of the occurrence, it was around 8:00 p.m. he was in his house, the accused-appellant was extending ugly abuses whereupon he and his daughter Jubaida came out of the house, he asked the accused-appellant not to abuse him at his door. At this the accused-appellant with intention to kill the informant fired on him which fire somehow missed the informant and hit his daughter Jubaida who was standing at the door of her house. The occurrence was also witnessed by Zahir Khan and Sabir Khan. The accused-appellant went away to his home. The informant took his injured daughter Jubaida to the government hospital, Dataganj where the doctor after examination declared her dead and asked him to lodge the first information report.

The informant leaving behind dead body of his daughter at the hospital got scribed report by Ashin Khan and gave it at Police Station Dataganj, District Badaun. This report has been proved at Ext. Ka-1. He has stated that Daroga Ji visited the village after three days of the occurrence. He inspected the spot and also took stock of the occurrence. More or less similar is version of another eyewitness Zahir Khan PW-2 as emerging in his examination in chief.

At this stage, we may have recourse to the testimony of Dr. Amit Kumar PW-3 who conducted post mortem examination of the deceased Jubaida on 09.07.2011 at 3:00 p.m. He noted Firearm entry lacerated (left side chest) wound, 2 cm x 1 cm, margin inverted, blackening present, 6 cm below nipple.

On dissection, 7 and 8 ribs found fractured, left lung found lacerated, liver lacerated. One long metallic bullet recovered from back of chest cavity just below angle of scapula.

On perusal of testimony of doctor witness, we come across fact that the doctor has testified time of death ranging between 8:00 p.m. to 9:45 p.m. on 08.07.2011. He has also stated that in common course of event, wound was sufficient to cause death. It is obvious that theory of one firearm shot hitting the deceased stands confirmed. Thus ocular testimony on point of a single fire hitting the deceased as emanating from testimony of PW-1 and PW-2 stands corroborated with medical evidence as above.

Both the eyewitnesses have been cross examined by the defence wherein also nothing adverse of sort has emerged which may create any doubt in the testimony of both the eyewitnesses. No doubt, in the cross examination, it has emerged that the informant's brother Rais Khan with whom the accused-appellant was related was not on good terms with the informant but it has also emerged in the cross-examination of PW-1 that after separation from his brother Rais Khan, not a single dispute took place between his brother and himself on point of house. Therefore, here we come across the fact that simplicitor both Rais Khan and informant were separated from each other and they had their own personal arrangement but no dispute was existing between them which may serve as genuine cause for falsely implicating the brother in law of Rais Khan in this case by the informant.

The Investigating Officer, Harpal Singh PW-5 has proved simple and blood stained clay roll collected from the spot and a memo of the same was prepared by him as Ext. Ka-10. Besides, the Investigating Officer also prepared spot map of the occurrence and has proved the same as Ext. Ka-11. Therefore, even place of occurrence has been cogently proved and there is no doubt regarding the place of occurrence.

Now in so far as suggestion made by the defence that some one else has killed the daughter of the informant in the darkness of night is concerned, the same is neither whispered from circumstances nor indicated from material collected during course of investigation by the Investigating Officer. Therefore, in absence of any supporting circumstances or material or such specific attendant circumstance, we do not find any force in such suggestion which remains a bald suggestion, not supported by any circumstance or testimony.

In so far as the plea of false implication of the accused-appellant in this case is concerned, we also see no reason as to how and why real culprit will be spared and in his place innocent person will be named, therefore, theory of false involvment of the accused-appellant by the informant in this case also does not hold ground. In this view of the matter, after wholesome scrutiny of entire evidence, facts and circumstances of the case, we find testimony of both eyewitnesses of fact PW-1 and PW-2 clinching, consistent and establishes guilt of the accused-appellant beyond reasonable doubt. The presence of the eyewitness on the spot is most natural. They were present at the place of occurrence at that point of time when the occurrence took place at 8:00 on 08.07.2011. Therefore, their presence is natural on the spot. There is no inherent flaw or legal infirmity in their testimony which may render their testimony unworthy of credit.

In so far as time of lodging of the first information report is concerned, we come across fact that the incident took place around 8:00 p.m. on 08.07.2011 and the distance from village Naini Tikanna to the Police Station Dataganj has been stated to be about 8 kilometers and the first information report was admittedly lodged after the injured Jubaida was declared dead at the government hospital, Dataganj, District Badaun. Therefore, lodging of the first information report at 9:45 p.m. the very same day i.e. 08.07.2011 under circumstances found to be prompt and the same cannot be said to be delayed one. Consequently, charge under Section 304 IPC was rightly sustained as proved beyond reasonable doubt against the accused-appellant by the trial court.

We have been persuaded on behalf of the accused-appellant that offence at the most can be said to have been caused in a heat of passion under influence of liquor and that circumstances must be taken into account while awarding sentence because the accused-appellant had no motive to commit the offence, if the accused-appellant did not intend to kill then in this particular case, he can be imputed only knowledge of ordinary consequence of his act. Intent to kill is missing. It is also admitted fact that firing done on the spot hit the deceased Jubaida. He did no further overt act either against the informant or anything to aggravate the magnitude of offence. This part of gesture during course of commission of offence shows actual intent of the accused-appellant and he never intended death as consequence flowing from his act.

We upon careful perusal of facts and circumstances of the case and considering the entire case uphold the plea of the learned counsel for the accused-appellant that it is a case where a girl of 10 years has been killed by indiscreet and rash firing under influence of liquor and the accused-appellant had no motive to cause death and this particular aspect is virtually admitted to both the side. In that particular background, conviction cannot be sustained under Part-I of Section 304 IPC but is liable to be maintained in Part II of Section 304 IPC which we, accordingly, approve and modify.

Now in so far as the point of quantum of sentence is concerned, we, after careful deliberation and after considering background and status of the accused-appellant qua commission of offence and fact that he had no motive to commit offence, consider it just and proper in the interest of justice that sentence of 7 years rigorous imprisonment coupled with fine Rs.10,000/- and in case of default in payment of fine, the accused-appellant would have to suffer further imprisonment for one month, will meet the ends of justice. Accordingly, sentence awarded by the trial court is hereby modified by us in the aforesaid terms.

In this case, the appellant is in jail and the incident took place in the year 2011. It is obvious that period of 7 years has not yet expired. Therefore, the accused-appellant will serve out the remaining period of his sentence.

Accordingly, the instant appeal is allowed, partly in aforesaid terms.

Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.

Order Date :- 09.01.2017 rkg

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