Anil vs State of U.P.

G.P. Srivastava, J.—These appeals and revision noted above have been instituted against the judgment and sentence dated 10.4.1991 passed by Vth Addl. District and Sessions Judge, Meerut in Session Trial No. 98 of 1989, State v. Anil, Sunil, Yashpal, Vikram and Smt. Dharamviri, u/s 147/148/302/324/307, I.P.C., P. S. Kankarkhera district Meerut, Crime No. 348 of 1988 whereby the learned Addl. Sessions Judge has convicted Appellant-Anil u/s 148/302, 324 read with 149, I.P.C. and sentenced him to one year rigorous imprisonment u/s 148, I.P.C., life imprisonment u/s 302, I.P.C. and one year rigorous imprisonment u/s 324 read with 149, I.P.C. All the sentences were made concurrent. He further convicted the Appellant-Sunil in offence u/s 148/324, I.P.C. and instead of sentencing him he released him on probation of good conduct for a period of 6 months. The learned Addl. Sessions Judge has acquitted the accused-Vikram, Yashpal and Smt. Dharamviri from offence under Sections 147/148/ 302/324 read with 149, I.P.C.

Feeling aggrieved with the judgment and sentence the accused-Anil has preferred this appeal. The Government has also preferred Government appeal against the acquittal of three accused persons and probation granted to accused-Sunil. The complainant has also preferred the revision against the same.

The prosecution case in brief is that the accused persons Anil, Sunil, Yashpal are real brothers. Accused Vikram is their father and accused Smt. Dharamviri is their mother. Parties are residents of the same locality Subhashpuri Kankarkhera. On 22.11.1988 at about 8.00 p.m. complainant Raghunandan Sharma (P.W. 1) alongwith his wife Smt. Pramila Sharma (P.W. 2) deceased Yashpal and three daughters Neeru, Jyoti and Rajni was in his house. One Vikram the friend of his deceased son was also there. Accused Sunil came to the house of the complainant and called the deceased Yashpal out. Deceased Yashpal and his friend Vikram had come out. The accused-Sunil began to quarrel with deceased levelling allegation that they were planning to kill him. The allegation was refuted by the deceased. On hearing noise the complainant and his wife came out and intervened. After a little while accused persons Sunil and Anil armed with knife, accused-Yashpal armed with iron rod, accused-Vikram armed with danda and accused-Smt. Dharamviri armed with piece of bricks came to the house of the complainant and began to abuse the deceased. On hearing the noise the complainant, his wife and daughters came out. They tried to pacify but the accused-Anil stabbed the deceased by knife and accused-Sunil stabbed Km. Neeru. Accused persons Yashpal, Vikram and Smt. Dharamviri caused injuries to Smt. Pramila by iron rod, lathi and pieces of bricks. The injured persons were taken to Pyarey Lal Sharma Hospital, Meerut where their injuries were examined by Dr. I. P. Singh who found following injuries on the body of Yashpal Singh :

Incised wound 3 cm. x 1 cm. x depth not probed on Rt. side chest lower part in frontal aspect 9.5 cm. below Rt. Nipple at 4 O'' clock position. Kept U.O. Adv. X-ray.

Incised wound 1.5 cm. x .8 cm. x depth not probed on Rt. side abdomen on outser aspect. Kept U.O. Adv. X-ray.

Injuries of Raghunandan Lal Sharma :

Incised wound 6 cm. x 0.4 cm. x muscle deep on left side face, extending from bridge of nose, upto left upper lip.

Incised wound 2.5 cm. x .4 cm. x muscle deep on Rt. side face 2 cm. below lower eye lid.

An incised wound 3.5 cm. x .5 cm. x muscle deep on front of Rt. upper arm 9 cm. above elbow.

Injuries of Km. Neeru :

Incised wound 4 cm. x 1.5 cm. x depth not probed on left side abdomen 8 cm. from umbilicus at 1 o''clock position. Kept U.O. Adv. X-ray in standing position.

In the hospital the deceased Yashpal succumbed to his injuries. The complainant lodged written report Ext. Ka-1 at P.S. Kankarkhera. On the basis of which chick F.I.R. Ext. Ka-3 was prepared. A case was registered vide G. D. No. 52 time 23.10 hours. The Investigating Officer prepared inquest report and other documents. The dead body was sent for post-mortem. Dr. S. C. Gupta conducted the post-mortem of the dead body on 23.11.1988 at 3 p.m. He found the following ante-mortem injuries on the person of the dead body :

Stitched wound 4.5 cm. was four stitches Rt. side of chest lower part 9 cm. below Rt. Nipple 4 O'' clock position.

Stitched wound 2.0 cm. lineration with two stitches outer part of Rt. back of Abdomen (Lumber region).

Linear abrasion 4.5 cm. x lineration (Rt.) side of face with chin (Rt.) maxillary bone.

According to the opinion of doctor the death was caused due to shock and haemorrhage as a result of injuries sustained.

The Investigating Officer visited the place of occurrence, arrested the accused persons, collected blood stained and plain pieces of bricks. A blood stained knife was recovered on the pointing of the accused-Anil. The Investigating Officer prepared site plan and submitted charge-sheet against the accused persons.

The accused-Sunil, Anil and Yashpal were charged for offence under Sections 148/302 and 324/149, I.P.C. and accused-Vikram and Smt. Dharamviri have been charged for offence under Sections 147/302, 324/149, I.P.C. The accused persons pleaded not guilty and claimed for trial.

The prosecution has examined P.W. 1 Raghunandan Lal, P.W. 2 Smt. Pramila Sharma, P.W. 3 Dr. S. C. Gupta, P.W. 4 Constable Malkhan Singh, P.W. 5 Indrajit, P.W. 6 Dr. I. P. Singh P.W. 7, R. P. Sharma Investigating Officer, P.W. 8 S.I., S.K. Agarwal.

The accused persons in their statement u/s 313, Cr. P.C. have denied the prosecution case and claimed to have been falsely implicated due to enmity.

After considering the evidence on record the learned Addl. Sessions Judge convicted and sentenced the accused-Anil and Sunil as aforesaid and acquitted the rest of the accused persons.

We have heard learned Counsel for the parties and gone through the evidence on record.

Sri J. S. Sengar, learned Counsel for the Appellant-Anil has argued that he does not dispute the participation of the Appellant in the occurrence but the act of the Appellant in causing injuries to deceased does not fall within the ambit of Section 302, I.P.C. but at the most the case against the Appellant goes upto Section 304, I.P.C. He has further argued that it has come in the statement of the complainant Raghunandan Lal (P.W. 1) that the accused-Anil was the friend of his son. Therefore, there could be no reason to commit murder of the deceased by the Appellant. He has further argued that there is no evidence that the injuries caused to the deceased were sufficient to cause death in the ordinary course because the doctor who conducted the post-mortem has not stated that the injuries to the deceased were sufficient to cause the death.

P.W. 1 Raghunandan Lal, the complainant is the father of the deceased Yashpal. He has stated that he knew the accused persons prior to the occurrence. Appellant was friend of his son. He does not know whether there was still friendship in between them. P.W. 2 Smt. Pramila Sharma is the mother of the deceased. She has also stated that she does not know whether there was any enmity of the deceased with the accused persons. The deceased had friendship with the accused-Anil and Sunil. She has stated that his son was doing betel shop and I.T.I. The accused-Anil and Sunil were on visiting terms with the deceased but it was stopped when the deceased got admission in I.T.I. so there is no evidence that on the date of occurrence there was friendship in between the Appellant and the deceased. The genesis of the occurrence shows that earlier there was some quarrel in between the Appellant and his brother with the deceased so it is immaterial that at one point of time the Appellant and the deceased were friends.

Section 300, I.P.C. reads as under :

300 Murder.-Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-

2ndly.-If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-

3rdly.-If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-

4thly.-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

The injury report of the deceased shows that there were two incised wounds caused by knife in the right side chest and right side abdomen. Both the injuries were caused on vital part of the body and the depth of both the injuries were not probed. The post-mortem report shows that as a result of injuries the stomach was cut on lesser curvature empty through and through. Liver was punctured through and through. There was haematoma around left kidney. The doctor was of the opinion that death was caused due to shock and haemorrhage as a result of injuries sustained. From these two medical reports it is established that the injuries were not minor in nature but the injuries were grievous caused on vital part of the body which damaged the stomach, kidney and liver. Therefore, this case comes within the purview of 300 (4thly) I.P.C. because the force which was utilized in causing the injury will impute a knowledge on the part of the assailant that it was so imminently dangerous that utmost in all probability capable to cause death of such bodily injuries as was likely to case death. Therefore the act of the Appellant comes within the definition of murder as given u/s 300, I.P.C. and thus he has been rightly convicted and sentenced by the court below. Therefore, the appeal deserves to be dismissed.

The Government appeal has been preferred against the acquittal of Yashpal, Vikram and Smt. Dharamviri and grant of probation to accused-Sunil.

Sunil was held guilty of offence u/s 148/324, I.P.C. and he was released on probation of good conduct on the ground that he is aged about 18 years and he has no criminal history. Therefore he was given benefit of U.P. Probation of First Offenders Act. The learned A.G.A. could not show any ground that the benefit extended to accused-Sunil was unjustified.

As regards the case of accused-Vikram, Yashpal and Smt. Dharamviri are concerned they have been charged causing injuries to Smt. Pramila. There is no medical examination of Smt. Pramila as such there is no evidence to prove that these accused persons have caused any injury to Smt. Pramila. Therefore they have been rightly acquitted. Therefore we are of the opinion that the Government appeal has no force and deserves to be dismissed.

The revision against acquittal of these accused persons also devoid of any merit and deserve to be dismissed.

In view of the above discussions we are of the opinion that the appeal of Appellant-Anil deserves to be dismissed and is hereby dismissed. The Appellant-Anil is on bail. His bail bonds are cancelled and sureties are discharged. He is directed to surrender before the court of Chief Judicial Magistrate concerned.

The Chief Judicial Magistrate concerned is directed to take the Appellant into custody and send him to jail to serve out the sentence already imposed upon him.

The Government appeal and criminal revision are hereby dismissed.