Dharmanand and Others vs State of U.P.

Surendra Vikram Singh Rathore, J.—1. Heard Mr. Maneesh Kumar Singh, learned counsel for the appellant, Ms. Ruhi Siddiqui, learned A.G.A. for the State and perused the lower court record.

Under challenge in this appeal is the judgment and order dated 3.1.2012 passed by learned Additional Sessions Judge, Court No. 1, Barabanki in Sessions Trial No. 372 of 2002 arising out of Case Crime No. 98 of 2002, Police Station Asandra, District Barabanki whereby all the appellants were convicted and sentenced as under:--

"(i) Section 302/34 I.P.C. - imprisonment for life with fine of Rs. 10,000/- each with default stipulation of three months additional imprisonment.

(ii) Section 307/34 I.P.C. - ten years rigorous imprisonment with fine of Rs. 1,000/- each with default stipulation of 15 days additional imprisonment.

(iii) Section 323/34 I.P.C. - one month imprisonment."

All the sentences were directed to run concurrently.

In brief the case of the prosecution was that on 30.6.2002, all the appellants armed with lathi, danda and country-made pistol, due to the enmity of election of Village Pradhan, started abusing the complainant side. Complainant Ram Manohar and his brother Kaushal Prasad asked them to stop abusing them. Thereafter all the accused persons started giving blows of lathi and danda to the complainant side and appellant Dharmanand, who was armed with country-made pistol, fired on the complainant and also exhorted to kill them. Because of the fire of country-made pistol, the complainant received injuries in his leg and he also received injuries of lathi on his head. Kaushal Prasad, brother of the complainant also sustained serious injuries and became unconscious on the place of occurrence. When the persons of the village rushed to save them then the appellants ran away from there extending threats of dire consequences.

On the basis of this F.I.R., the case was initially registered under Sections 323, 504, 506 and 307 I.P.C. Subsequently because of the death of Kaushal Prasad, the same was converted under Section 302 I.P.C., and necessary formalities of the investigation was completed. The injured persons were medically examined. Injured Jagannath was examined on 1.7.2002 at 4:40 p.m. According to the medical examination report of Jagannath, following injuries were found on his person:--

"(i) Lacerated wound 3 cm x.5 cm x muscle deep on right side of head, 5.5 cm above right ear.

(ii) Lacerated wound 2.5 cm x.5 cm. X muscle deep, 8 cm above injury No. (i).

(iii) Traumatic swelling 8 cm x 5 cm over dorsum of left hand.

(iv) Contusion 6 cm x 1.5 cm right side of back, 8 cm above right illiac crest.

(v) Contusion 9 cm x 1 cm on left side of back, 5 cm below the inferior ankle of left scapula."

All the injuries were simple in nature and caused by blunt object and the duration was about one day.

On the same day at 4:50 p.m., injured Ramkala wife of Jagannath was also examined and following injuries were noted on her body:--

"(i) Lacerated wound 2.5 cm x.5 cm x muscle deep on middle of head, 11 cm above of nose.

(ii) Contusion 6 cm x 2 cm on right side of back, 1 cm below inferior ankle of right scapula, bluish in colour.

(iii) Contusion 12 cm x 1.5 cm on right side of back, 2 cm below spine of scapula, bluish in colour.

(iv) Complains of pain in back. No mark of injury. In the opinion of the doctor, all the injuries were simple and caused by blunt object. Duration was about one day old."

In the postmortem of deceased Kaushal Prasad, following ante mortem injuries were noted:--

"(i) Lacerated wound on crown of head left lateral from mid line of scalp, size 3 cm x 1 cm x bone deep, 11 cm above right ear pinna.

(ii) Abrasion 7 cm x 2 cm over right wrist."

In the opinion of the doctor, the cause of death was shock and hemorrhage as a result of ante mortem injuries. The duration was about half day. The membrane were ruptured. In the brain haemotoma was present.

Complainant Ram Manohar was medically examined on 1.7.2002 at P.H.C. Siddhaur, Barabanki and following injuries were reported on his body:--

"(i) Lacerated wound 6 cm x 0.5 cm x muscle deep over left top of scalp, 6 cm above right eyebrow. Fresh bleeding was present.

(ii) Lacerated wound 2 cm x.5 cm x skin deep over right top of skull, 9 cm above right ear pinna.

(iii) Contusion 2 cm x 1 cm over right shoulder tip, reddish in colour.

(iv) Contusion 2 cm x 1 cm over left elbow joint posterior aspect surrounded by abrasion 1 cm x 1 cm in middle, reddish in colour.

(v) Laceration 5 cm x 0.5 cm x muscle deep over right foot, 13 cm above right ankle joint. Fresh bleeding was present.

(vi) Contusion 4 cm x 3 cm over left palm, 2 cm above left little fingers root, reddish in colour.

All the above injuries were simple in nature, caused by hard and blunt object and duration was fresh.

Before the death of Kaushal Prasad, he was also examined at the same P.H.C. at 5:15 a.m., and following injuries were found on his body:--

(i) Lacerated wound 4 cm x.5 cm x skin deep over left side top of skull, 12 cm above right ear pinna.

(ii) Contusion 4 cm x 2 cm over right forearm, 3 cm below right elbow joint, reddish in colour.

(iii) Complains of pain over right chest. No mark of injury was seen.

All the injuries were simple in nature, caused by hard and blunt object and the duration was fresh.

The defence of the appellants was that the appellants had gone to Samadhipurwa to attend a feast. The ladies of the family were present in the house. Parmeshar trespassed into the house of the appellants with the intention to outrage the modesty of Radha, wife of Shyam Bihari. He outraged her modesty and attempted to commit rape with her. He was apprehended on the spot by the other family members. Hearing the noise, complainant side reached there with lathi and danda. Lathis were hurled due to which, injuries were received by the complainant side and this false case was concocted in their defence. F.I.R. of Radha was not registered by police then she moved an application under Section 156 (3) Cr.P.C., which was registered as complaint. It is pertinent to mention here that the said complaint case has ended in acquittal.

In order to prove its case, prosecution has examined PW-1 complainant Ram Manohar, brother of the deceased, PW-2 Jagannath injured witness of this case. PW-3 Dr. Nirmesh Shukla, PW-4 S.I. Ram Bux Mishra, PW-5 Dr. Rajendra Kumar Chaudhary, PW-6 Smt. Ramkala, injured witness, PW-7 Constable Indrasan Yadav, PW-8 S.I. G.R. Gautam, PW-10 Dr. Anil Kumar Srivastava, who has conducted postmortem on the body of the deceased.

After completing the investigation, charge sheet was filed against the appellants.

In defence D.W. -1 Radha, D.W. -2 Raj Kumari, D.W. -3 Putti Lal, D.W. -4 Ram Baran, D.W. -5 Muneshar have been examined.

After appreciating the evidence available on record, the trial court has convicted the appellants as above, hence the instant criminal appeal.

Learned counsel for the appellants has submitted that he does not intend to challenge the conviction and has restricted his argument only on the point that even if the case of the prosecution is taken to be true even then the offence would not travel beyond the purview of Section 304 Part (II) I.P.C. because no deadly weapon was used and the complainant has not received any gunshot injury as claimed by him. The medical evidence shows that all the injuries to all the injured were caused by blunt object and were simple in nature. But the trial court has not considered this aspect, therefore the arguments are restricted only on this point.

Learned A.G.A. has submitted that the trial court has rightly convicted the appellant and the same has not been challenged. He has also admitted that the trial court has not considered the point whether the offence would fall within the purview of Section 304 Part (II) I.P.C. or it would be an offence of murder.

Though learned counsel for the appellant has not challenged the conviction of the appellant, but inspite of that being the Court of first appeal, we have considered the evidence of PW-1 complainant Ram Manohar, PW-2 Jagannath and PW-6 Ramkala, the injured eyewitnesses. All the three witnesses have fully supported the case of the prosecution and have assigned the role of causing injuries to the appellants. Their evidence stands fully corroborated by the medical evidence. The presence of injured witnesses cannot be doubted on the place of occurrence. Learned trial court has rightly discarded the defence version. So the case of the prosecution was proved and the finding to the extent that prosecution has proved its case was correct in accordance with law and facts on record.

Now the point to be considered is whether the offence would fall within the purview of Section 304 Part (II) I.P.C. or it would be an offence under Section 302 I.P.C. PW-3 Dr. Nirmesh Shukla, who has examined injured Ramkala and Jagannath, has stated that all the injuries on the body of the injured persons, were simple in nature and caused by blunt object. PW-5 Dr. Rajendra Kumar Chaudhary, who has examined injured Kaushal Prasad, has also stated that all the injuries to Kaushal Prasad, were simple in nature and were caused by some hard and blunt object and were fresh in duration. This witness has also examined complainant Ram Manohar and similar opinion was given regarding the injury of Ram Manohar. He has not stated that any gunshot injury was found on his person. PW-10 Dr. Anil Kumar Srivastava, who has conducted postmortem on the body of the deceased, has not reported fracture of any underlying bone of the injury, which was sustained by deceased Kaushal Prasad on his head. So the medical evidence in this case, shows that all the injuries, which were found on the body of the injured persons and on deceased, were simple in nature and were caused by hard and blunt object.

Learned counsel for the appellants in support of his submission, has placed reliance to the pronouncement of Hon''ble the Apex Court in the case of State of Rajasthan v. Mohan Lal & others reported in [, 2012 (2) JIC 380 (SC)] and has specifically drawn the attention of the Court towards paragraph Nos. 8 and 10 of the judgment, which read as under:--

"8. We have heard learned Counsel for the parties at some length and perused the record. The High Court was, in our opinion, justified in holding that the prosecution had not been able to establish the charge of murder beyond a reasonable doubt. The High Court has correctly observed that the deposition of Dr. Narendra Swarup Mathur (P.W. 13) had clearly established that the injuries sustained by the deceased were all simple in nature inflicted upon non-vital parts of the body. The doctor had also clearly admitted in cross-examination that no finding was recorded in the post-mortem report Exh. P-21 that the injuries in question were sufficient in the ordinary course of nature to cause death. There was, in that view of the matter and in the absence of any other evidence to support the charge levelled against the respondents, no reason to find them guilty of murder.

It is also difficult to attribute any knowledge to the respondents that the injuries inflicted by them were likely to cause death, the same being simple in nature. Even the doctor who conducted the post-mortem did not certify the injuries to be sufficient to cause death in the ordinary course. Such being the state of evidence, the High Court was, in our view, justified in allowing the appeal of the respondents in part and acquitting them of the charge of the murder while maintaining their conviction for the remaining offences with which they were charged. Even on the question of sentence, we do not see any compelling reason to interfere. The incident in question is more than 12 years old. The respondents have already suffered incarceration for four years which should suffice having regard to the totality of the circumstances in which the incident in question appears to have taken place."

In a recent judgment in the case of Murlidhar Shivram Patekar and another v. State of Maharashtra reported in , (2015) 1 SCC 694, Hon''ble the Apex Court has considered the distinction between Section 302 I.P.C. and 304 Part (II) I.P.C. and has held in paragraph Nos. 30 and 31, which read as under:--

"30. Further, in Satish Narayan Sawant v. State of Goa , (2009) (17) SCC 724, this Court has held as under: (SCC pp. 739 & 743, paras 36 & 41)

36.....Section 300 Indian Penal Code further provides for the Exceptions which will constitute culpable homicide not amounting to murder and punishable Under Section 304. When and if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II.

41....Records clearly establish that there was indeed a scuffle between the parties with regard to the availability of electricity in a particular room and during the course of scuffle the Appellant also received an injury which was simple in nature and that there was heated exchange of words and scuffle between the parties before the actual incident of stabbing took place. There is, therefore, provocation and the incident happened at the spur of the moment. That being the factual position, we are of the considered view that the present case cannot be said to be a case Under Section 302 Indian Penal Code but it is a case falling Under Section 304 Part II Indian Penal Code. It is trite law that Section 304 Part II comes into play when the death is caused by doing an act with knowledge that it is likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as is likely to cause death.

Thus, if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not intention to cause murder and bodily injury then the same would fall Under Section 304 Part II. We are inclined to the view that in the facts and circumstances of the present case, it cannot be said that the Appellants/accused had any intention of causing the death of the deceased when they committed the act in question. The incident took place out of grave and sudden provocation and hence the accused are entitled to the benefit of Section 300 Exception 4 of Indian Penal Code."

In another judgment in the case of Badal Murmu and others v. State of West Bengal reported in , (2014) 3 SCC 366, Hon''ble the Apex Court has again considered this point in paragraph Nos. 14 and 15, which reads as under:--

"14. In Sarman and Ors. v. State of Madhya Pradesh , 1993 Supp. (2) SCC 356, there were seventeen injuries on the deceased. The Appellants therein were armed with lathis. They were charged for offences punishable under Sections 147 and 302 of the Indian Penal Code. Some injuries were described as incised wounds. Injury No. 15 had resulted in a depressed fracture of parietal bone. Like the present case, the doctor in a general way, stated that the cause of death was "multiple injuries". He specifically stated that injury No. 15 individually was sufficient to cause death of the deceased. It must be noted that no such assertion is made by the doctor in this case. The prosecution case, in general, was that all of them were found with lathis. Nobody had stated which of them had caused injury No. 15 which unfortunately resulted in the death of the deceased. This Court observed that in these circumstances the question that arises was whether all the accused were responsible for the death of the deceased. This Court noted that if anyone of the Appellants had exceeded the common object and acted on his own, it would be his individual act but, unfortunately, no witness had come forward to say which of the accused had caused which injury. This Court noted that in those circumstances, it was difficult to award punishment under Section 302 read with Section 149 of the Indian Penal Code. This Court noticed that although the postmortem report stated that all the injuries might have caused the death of the deceased inasmuch as the accused inflicted injuries with lathis and particularly when they were simple, and on non-vital parts, it cannot be said that their object was to kill the deceased. They may merely have knowledge that the blows given were likely to cause death. This Court, in those circumstances, set aside the conviction of the Appellants for the offences punishable under Section 302 read with Section 149 of the Indian Penal Code and instead convicted them for offence punishable under Section 304 Part II read with Section 149 of the Indian Penal Code.

As earlier noted by us, in this case none of the eye witnesses have given specific role to any of the Appellants. They have not stated which Appellants gave which blow and on which part of the deceased''s body. They have not stated which injury was caused by which accused. The doctor has not stated which injury was fatal. Undoubtedly, the deceased had suffered two fractures and haematoma under the scalp, but nobody has said that any particular Appellant caused these injuries. It bears repetition to state that though sharp cutting weapons i.e. tangies were available, the Appellants did not use them. In the peculiar facts of this case, therefore, it is not possible to hold that the Appellants shared common object to murder the deceased and in prosecution of that common object they caused his death. It would not be possible to sustain their conviction for offence punishable under Section 302 read with Section 149 of the Indian Penal Code. It would be just and proper to resort to Section 304 Part II of the Indian Penal Code and treat the sentence already undergone by them as sentence for the said offence."

Keeping in view the pronouncement of Hon''ble the Apex Court, we find that in the instant case, no deadly weapon was used. It cannot be presumed that blow on the head of the deceased was given with a huge force because no underlying bone was fractured. So it cannot be presumed that any of the accused persons was having any intention or even knowledge that such a blow may cause internal damage in the head which may result into his death. Apart from it, it is also not clear as to who had given the said fatal blow. Thus in view of the aforementioned legal position, we are of the considered view that offence committed by the appellants would fall within the purview of Section 304 Part (II) I.P.C. and not under Section 302 I.P.C. The incident of this case is 14 years old and the appellants are in jail for the last more than four years i.e. the date of the judgment (30.1.2012). Accordingly, conviction of the appellants under Section 307 I.P.C. also cannot be maintained as there was no intention to cause death. So appellants deserve to be acquitted for that offence.

In view of the discussion made above, this appeal deserves to be partly allowed and is hereby partly allowed. Conviction of the appellants under Section 302/34 I.P.C., is hereby modified to Section 304 Part (II)/34 I.P.C., and the sentence of imprisonment for life is reduced to rigorous imprisonment for a period of four years. The conviction and sentence for the offence under Section 323/34 I.P.C. is also hereby confirmed. The appellants are acquitted of the charge under Section 307/34 I.P.C. Both the sentences shall run concurrently.

The appellants are in jail. They shall serve out the sentence as modified by this Court.

The period of detention already undergone by them in the instant case shall be set off in their substantive sentence in accordance with the provisions of Section 428 Cr.P.C.

Office is directed to certify this order to the court concerned forthwith to ensure compliance and also to send back the lower court record.