Charan Singh vs State Of Uttarakhand

Sudhanshu Dhulia, J

This is an appeal of the appellant against the judgment and order dated 22.05.2015 passed by the Additional Sessions Judge, Laksar, District Haridwar in Session Trial No. 12/2010, whereby the appellant has been convicted under Section 302 IPC and has been sentenced for life imprisonment and a fine of Rs. 10,000/-, in default of which the accused/appellant has to undergo additional simple imprisonment of six months.

The deceased was the nephew of the appellant, and at the time of his death, he was 21 years of age. The case of the prosecution is that when the father of the deceased passed away in the year 1994, his mother started living with her brother in law (i.e. the appellant) along with her son (i.e. the deceased), who was minor at the relevant time. The case of the prosecution further is that the appellant is a liquor addict, which results in frequent quarrel between the appellant and deceased. Barely a few days prior to the incident, the appellant, had sold the family "buffalo", and was now pressurizing the deceased to sell the tractor as well - an idea which was unacceptable to the deceased. In the night of October 7, 2009, there was an altercation between the two i.e. the deceased and his uncle (the present appellant), and in the morning of 08.10.2009, the deceased was found dead in the house of the accused. The FIR was lodged by the complainant, who is the elder brother of the deceased. It first gives a background of the past 15 years, when his father passed away, leaving his mother "Anguri Devi" and two minor sons, and how his mother "Anguri Devi" started living with his brother-in-law (i.e. "Chacha" of the complainant and the deceased). It then states that the uncle of the complainant was addicted to alcohol and as a result used filthy and abusive language against his family members. It is for this reason that he himself had decided not to stay with his uncle and instead stayed with the grandparents, in the same village. He further states that it was these habits of his uncle which led to his mother suicide, a few years back. Later his uncle started harassing his brother Sanjeet (deceased) and was pressurizing him to sell their tractor. That was the immediate reason for this altercation and fight last night, when under the influence of liquor his uncle was fighting within his brother. Today i.e. on 08.10.2009 at 06:00 am, he heard in the village that his brother Sanjeet has been killed. He rushed to the house of his uncle where he found the dead body of his brother.

The FIR was lodged at police station "Laksar" on 08.10.2009 at 08:15 am. The inquest was prepared on the same day at 12:10 p.m., where signatures of the complainant and other persons of the village are there.

The accused was not to be found at the scene of crime, or in the village, and was arrested at "Lakshar" railway station, four days later on 12.10.2009 at about 03:45 a.m.

The police after investigation filed its chargesheet. The matter was committed to the Sessions Court. The learned Sessions Judge vide order dated 25.01.2010 framed charge against the accused under Section 302 IPC. Meanwhile, when the accused was arrested, on his disclosure the weapon of crime which was "danda" and the shirt which the accused was wearing on the fateful day, were also recovered.

PW 1 Deep Singh, PW 2 Rajkumar, PW 5 Rakesh, PW 6 Deshraj and PW 7 were actually the witnesses of the incident dated 7.10.2009, when they had seen the altercation between the accused and the appellant and when the appellant was under influence of liquor was fighting with the deceased. All the same, they have all turned hostile.

PW 3 Manjeet Kumar, is the brother of the deceased. He is also the complainant. In his statements, he repeats the story as to how his mother married the accused and his brother living in the house of the accused. He further says that the entire agricultural work was being done by his brother i.e. the deceased. The accused had already sold the family buffalo and was now insisting that the tractor be sold as well. On the night of 7.10.2009, the appellant was fighting with his brother and pressurizing him that he must give money to the accused by selling the tractor, a proposal which was opposed by the deceased. PW 3 had intervened in the fight between the two and stopped both of them, and then he went to the house of his grandparents, which is about 100 meters away from the house of the accused. The next day, he heard the noise that his brother has been killed by his uncle. He went to the house of his uncle, where he found the dead body of his brother. It was apparent that he was hit on the face. Thereafter the FIR was lodged by him on the same day i.e. on 08.10.2009.

PW 4 Yogesh Kumar is the witness of the inquest. PW 8 is Dr. Mangeram, who conducted the postmortem on the body of the deceased on 09.10.2009. There are three main ante mortem injuries. He noticed that the body had swelling on the left side of face measuring 20 x 14 cm and after postmortem it was found that the skull bone was fractured. There was another swelling which was found on the right eye and the third was another swelling on the right side of the ear. In all these swellings, the wound was not open. The blood, however, was coming from the nose, mouth and from the ear of the deceased. He further states that rigor mortis had stopped by that time, and the cause of death was the ante mortem injuries on the head of the deceased.

After examination of all the prosecution witnesses, statements of the accused were recorded under Section 313 of CrPC where he denies to each of the evidence and the developments made by the prosecution, but towards the end when he is asked by the court whether he has to say anything he says -'No! I do not have to say anything. I have committed a wrong, and I be pardoned".

Based on these evidences, the learned court below convicted the appellant and sentenced his for the offence under Section 302 IPC.

Indeed it is a case of circumstantial evidence and in a case of circumstantial evidence the chain of evidence must be completed, and there should be one and only one conclusion, based on the evidence produced by the prosecution, which would be that the act has been committed by the accused, and by no one else. In other words, there is a heavy burden on the prosecution to prove its case. It has to prove its case beyond reasonable doubt.

In this case firstly, it is an established fact that the accused was a habitual drinker, who was wasting money due to his addiction for liquor. It has also come in the evidence that barely a few days prior to the incident, he had sold the family buffalo to get liquor. His contribution towards farming and agriculture, was next to nothing, and the entire work relating to agriculture was done by the deceased, and on top of it, the accused was pressurizing the deceased to sell the tractor as well. It has also come in the statement of the PW 3 that on 7.10.2009 there was an altercation between the deceased and the appellant and the appellant had threatened that he would kill him if the tractor is not sold. There was also a scuffle of some kind between the deceased and the appellant. The complainant tried to intervene in the matter and for the moment, the fight had stopped. Later he went to the house, (as he lived with his grandparents). In the morning of 08.10.2009, he found his brother lying dead, in the house of his uncle. His uncle was not to be found, either in the house or the village. He was apprehended four days later from the railway station on 12.10.2009 and 03:45 am.

The conduct of a person, after the incident, particularly of an accused, has an important bearing in a criminal case. It is highly unlikely that the uncle would not be present in the house when his young nephew, who lived with him in the house is killed. The appellant was admittedly, nowhere on the scene. His name does not figure as one of the witnesses in the "Panchnama" which should have been in the normal course. He was apprehended four days later from the railway station.

In the present case, the conduct of the accused was that he immediately fled from the scene of the crime, and was apprehended 4 days later elsewhere. It is a fact which has to be considered by the court in view of Section 8 of the Evidence Act, 1872. Section 8 of the Evidence Act, 1872 reads as under:

"8. Motive, preparation and previous or subsequent conduct. - Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.

The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.

Explanation 1. - The word "conduct" in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act.

Explanation 2. When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant."

What is important here is not the general conduct of the accused such as that he was a habitual drinker, etc. The relevant factors are his immediate conduct and whether it has any nexus with the crime. As we have seen there was a fight between the deceased and the appellant just the night before. The fact that the deceased and the appellant were staying under the same roof and the acrimony between the two regarding the disposal of the tractor are the other relevant facts which must be taken into consideration, along with the absence of the appellant from the scene of the crime.

This aspect was emphasised by the Hon'ble Apex Court in the case of Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi) reported in (2010) 6 SCC 1, as follows :

"A criminal trial is an enquiry into the conduct of an accused for any purpose other than to determine whether he is guilty of the offence charged. In this connection, that piece of conduct can be held to be incriminatory which has no reasonable explanation except on the hypothesis that he is guilty. Conduct which destroys the presumption of innocence can alone be considered as material."

In the present case, the absence of the accused from the scene of the crime, where otherwise his presence would be only natural and the network of other circumstances and the accused being apprehended four days later from the Railway Station, all point out towards his guilt. It is true that the conduct alone, is not sufficient. But there are other evidences as well.

Further after his arrest at the railway station, the recovery of the weapon and the shirt he was wearing was made. Most importantly he has made an inculpatory statement in his statement under Section 313 CrPC. The inculpatory statement, in itself though may not be enough for a conviction, but in addition to the statement, the other evidences which we have referred no doubt prove that the act was committed by none else but by the appellant. The only question which remains is whether it is a murder, or a culpable homicide not amounting to murder.

It was not a pre-meditated, or a cold blooded murder. It happened in a heat of passion, in a fight between the deceased and the accused. This we say, because of the reason that the deceased was living with the accused, for the last 15 years, and it has not come out in evidence, that at any earlier instance there was any attempt to cause any bodily harm or an attempt was made on life of the deceased, even though there was an apparent clash between the two. What has happened has happened mainly due to the habits of the appellant i.e. his excessive dependence on liquor. The allegation that due to the habit of the accused his wife had committed suicide, however, has also not been established by any evidence. We are, in any case, are of the opinion that all the circumstances point out to the fact that it was not a pre-meditated act. Consequently, we hold that the act of the accused comes within the Fourth Exception carved out under Section 300 of IPC, as the act of the appellant was "without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner". There are three injuries on the head of the deceased. Postmortem report also shows that the blow on his head had resulted in the fracture of left parietal and left temporal bones. The injury on the left side of the skull seems to be fatal. There were two blows given by the appellant, maximum three to the deceased, which were in the heat of the passion. No dangerous weapon, admittedly has been used.

In view of these facts, we convert the finding of the learned trial court and hold that it is a case of culpable homicide not amounting to murder.

Considering the circumstances, under which, the offence has been committed, nature of injuries and other relevant factors, this Court further holds that ends of justice would be met if the appellant is sentenced to 10 years of rigorous imprisonment and a fine of Rs. 10,000/-. Accordingly, the convict is sentenced to 10 years of rigorous imprisonment and a fine of Rs. 10,000/-.

In view of the above, appeal is partly allowed. The judgment and order passed by the Trial Court dated 22.05.2015 is modified to the above extent. The appellant shall undergo 10 years of rigorous imprisonment, which shall include the period already undergone.

Let the Lower Court Record be sent back. Copy of this judgment and order be also sent to the trial Court to ensure its compliance.