Kamlesh and Others vs State of U.P.

Pratyush Kumar, J.—1. Since both the appeals arise out of the same judgment and order dated 19.06.2004 passed in Sessions Trial No. 766 of 2002 [State v. Kamlesh and another] & S.T. No. 767 of 2002 [State v. Kamlesh], they have been heard together and are disposed of by a common order.

In the aforesaid appeals the appellants Kamlesh and Satya Dev have been convicted and sentenced as under:

In these appeals, facts of the prosecution case relevant for the purpose are as under:

That on 09.05.2002 at 11.30 AM at police station Shahabad, District Hardoi, Ram Babu, resident of village Birauri, gave a written report stating therein that Kamlesh and his brother Satya Dev were friends of his brother Dhyan Singh. One week ago when they were taking liquor Dhyan Singh and Kamlesh had an altercation, due to which Kamlesh bore grudge against his brother. That day at about 10.00 AM when he and his brother Dhyan Singh were going towards house of Jay Karan to see the dance and passing through in front of the house of Kamlesh, Satya Dev armed with lathi and Kamlesh armed with country made pistol came near his brother and Sadya Dev struck a lathi blow saying that why he had come to this side. His brother caught the lathi thereat Kamlesh fired his country made pistol in the stomach of his brother, who fell down and died. They had no prior enmity, the occurrence was seen by Ramadhin and others.

At this chick FIR was scribed, Case Crime No. 167 of 2002 under Sections 302, 323, 504 IPC was registered and requisite entry was made in the report of the general diary. Investigation was taken over by Sri T.P. Singh, Station House Officer of the police station, who in the course of investigation on 01.06.2002 at 10.00 AM on the pointing out of appellant Kamlesh recovered weapon of murder from the house of appellant-Kamlesh. A separate chick FIR was scribed and Case Crime No. 215 of 2002 under Sections 3/25 of the Arms Act was registered. Its investigation was entrusted to Sub Inspector U.P. Singh. After investigation in both the cases charge-sheets were submitted.

By the Court of Session, the appellants were charged under Sections 302/34 IPC, which they denied and claimed to be tried. After conclusion of the trial both the appellants were convicted for the murder of deceased Dhyan Singh. Appellant Kamlesh was further convicted under Section 25 of the Arms Act and they were sentenced as above.

Heard Sri Rajiv Misra, Advocate holding brief of Ms. Soniya Mishra, learned counsel for the appellants, Sri Umesh Verma, learned Additional Government Advocate for the State-Respondent and perused the record.

Learned counsel for the appellants has submitted arguments on two counts only that the occurrence was not the result of premeditation. There was no evidence that both the appellants shared the common intention. In the postmortem report no injury caused by blunt object has been found, therefore, participation of Satya Dev in the said crime could not be proved by the prosecution.

In reference to Kamlesh in continuation of his earlier argument, he has submitted that the learned trial Judge has committed error in holding the occurrence to be a case of murder. According to him, the incident had occurred in front of the house of the appellants on the spur of moment, fatal shot was fired by the appellant Kamlesh when the deceased had caught hold of the lathi of his brother, therefore, according to prosecution version, neither the Kamlesh had intended to cause the death of the deceased nor intended to cause such bodily injury which might result in the death of the deceased. At the most he can be said guilty of culpable homicide not amounting to murder, therefore, his conviction under Section 302 IPC is not sustainable.

He has also submitted that the recovery of country made pistol has been investigated by an officer subordinate to the Station House Officer, therefore, investigation was not fairly conducted, his prosecution and conviction pursuant thereto is illegal.

On behalf of the State-respondent, learned Additional Government Advocate has submitted that both the appellants were present on the spot, both took active part in the murder of Dhyan Singh. By virtue of Section 34 IPC Satya Dev is equally responsible for the offence of murder. He has further submitted that appellant Kamlesh fired country made pistol from close range, his intention is evident and it requires no proof. According to him, the defect in the investigation in reference to recovery of country made pistol indicted on behalf of the appellants does not vitiate the trial and conviction of the appellant Kamlesh.

Before we propose to deal with the arguments submitted by the respective parties, we would like to recollect the manner in which appeal against conviction is required to be considered by this Court and scope of jurisdiction conferred on the Court by Sections 374 and 386 Cr.P.C. Further we would like to refresh the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni v. State of Gujarat [, 1995 Supreme Court Cases (Crl) 222]. Para-4 of the judgment reads as under:

"4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained."

In the case of Lal Mandi, Appellant v. State of West Bengal, Respondent [, 1995 Cri.L.J. 2659 (Supreme Court), 2659], the Apex Court in para-5 of the report has given the caution to the High Court reminding its duty in the matter of hearing of appeal against conviction. It would be gainful to reproduce the observation made in para-5 of the report, extracted below:

"5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh''s case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence."

Though in the present case, death of the deceased by gun shot injury has not been disputed even before the trial court but considering the argument that whether the offence amounts to murder or not. It is necessary for us to notice the medical evidence, which consists of statement of Dr. V.K. Gupta P.W. 6 and postmortem report Ext. Ka-19.

Dr. V.K. Gupta P.W. 6 has deposed that on 10.05.2002 at 2.00 PM he performed the autopsy on the dead body of the deceased Dhyan Singh, time since death was about one day, on the person of deceased he found the following ante mortem injuries.

"1. Firearm wound of entry on right side of abdomen 12 cm from umbilicus at 11 O''clock position. Margins are inverted & lacerated. Size 2 cm x 1.5 cm. Blackening and scorching present. Direction from front to back."

Thereafter he opined that death of the deceased had been caused by shock and haemorrhage as a result of ante mortem injury. He was cross-examined about the direction and distance, from which fatal shot could have been fired. It is a notable point that in his testimony the witness has not stated that the ante mortem injury was sufficient in the ordinary course of nature to cause death. His testimony is unchallenged, duly corroborated by the postmortem report Ext. Ka-19, on its basis we hold that on the stated date and time deceased could have died in the manner opined by the Doctor.

Now we would like to have a glance at the main features of the statements of the prosecution witnesses, they are as under:

In order to examine the merits of the respective arguments, the most important paper is the written report Ext. Ka-1 because in the examination-in-chief both the witnesses have reiterated the version contained in it. In order to appreciate the first argument, we have to see whether there was prior meeting of the mind between two appellants, thereafter whether on the spur of moment Kamlesh intended to commit murder of deceased Dhyan Singh independently.

In the present case, according to the prosecution the first informant and deceased were passing through Gali, when they were near Chabutara of Ram Saran in front of the house of the appellants, the occurrence took place. Ram Babu P.W. 1 has admitted that from his house to the house of Jay Karan there are two ways, first is the way through which he and the deceased were going on the fatal day and the other exists separately, thus, it is mere co-incidence that the deceased and the first informant appeared on the spot when both the appellants were in front of their house. This shows that there can be no prior meeting of the mind between these two appellants.

The second striking point is that Satya Dev was aged about 18 years when the occurrence took place and Kamlesh was elder to him, at that time, aged about 29 years. The occurrence started when Satya Dev wielded a blow from his lathi on the deceased. This shows that Kamlesh though armed with country made pistol and bore grudge against the deceased had not started the occurrence by firing country made pistol on him. From this fact it is evident that even when the occurrence began there was no intention to murder the deceased. Satya Dev was merely armed with lathi and his lathi blow even was not successful, therefore, for the death of the deceased Dhyan Singh, he cannot be held responsible. We find much substance in the argument advanced on behalf of the appellant Satya Dev and to us reply submitted by the learned A.G.A. on this point appears to be without substance and we conclude that against appellant Satya Dev charge under Sections 302/34 IPC could not be proved by the prosecution. At this point, the learned trial Judge has recorded his finding in para-30 of the judgment and without any iota of evidence he has recorded the finding that both the appellants shared common intention, they were waiting for the deceased to murder him. After going through the whole record we could not find any indicative circumstance which might support this finding, hence the finding is factually erroneous.

Now we come to the argument advanced in support of the contention that Kamlesh at the most can be held guilty of committing culpable homicide not amount to murder punishable under Section 304-I IPC. He cannot be held guilty of committing murder punishable under Section 302 IPC.

This is a question which has vexed the mind of the prominent Judges and lawyers, numerous rulings are there to distinguish when culpable homicide would amount to murder. After going through relevant case laws, we find distinction between the two is the presence of special mens rea, which makes the offence of culpable homicide murder, otherwise it remains culpable homicide not amounting to murder. This special mens rea consists of four mental conditions, they are enumerated in Section 300 clause (i) to clause (iv) of the Indian Penal Code. For ready reference they are quoted as under:

"Section-300 IPC 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

(Secondly) --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--

(Thirdly) --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--

(Fourthly) --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."

When dispassionately examined the facts of the present case in the light of the provisions quoted above, we find that the present case is not covered by clause-1, 2 and 3. Since appellant Kamlesh had fired country made pistol pointing towards stomach of the deceased from a close range, we can infer from the facts established by the prosecution evidence that he at that time must be knowing his act is so imminently dangerous, it must, in all probability, cause death or such bodily injury as is likely to cause death. We further find that the section has five exceptions and the present case appears to be squarely covered by exception-4 which is quoted below:

"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."

In view of above, we find that the argument advanced on behalf of the appellant Kamlesh appears to have substance and reply submitted by the learned AGA cannot be accepted to us.

Here we would like to mention that Sadya Dev was a young person, being elder brother of Kamlesh must have been protective towards his younger brother. When he saw that the deceased, who was released on bail after being convicted in a murder case, had caught hold of the lathi of his younger brother reached and fired, must have instinctively for protecting his younger brother fired from his country made pistol. In this scenario the appellant cannot be said to have acted in a cruel or unusual manner to have taken undue advantage.

The learned Additional Government Advocate has laid much emphasis on the fact that both the appellants were armed that shows that the occurrence was pre-planned. When facts of the case are taken together it transpires that a dance feast was being held nearby the house of the appellants and instead of going thee they preferred to stay in front of the house. Question arises why, either they intended to kill the deceased or they wanted to prevent anti social elements while having feast of dances molesting ladies of the house busy in their household chores. The first possibility is contingent on the choice of the deceased but second appears to be more probable from the past experience. Therefore, the argument advanced by the learned A.G.A. has no substance.

Our view in this regard that fortified by the observation of the Hon''ble Apex Court made in the case of Ram Pal Singh v. State of U.P. [2012 (3) JIC 392 (SC)]. In para-23 of the report the Hon''ble Apex Court has further prescribed the mode adopted by a criminal Court when deciding a case of culpable homicide. For ready reference para-23 of the report is quoted as under:

"23. As we have already discussed, classification of an offence into either Part of Section 304 is primarily a matter of fact. This would have to be decided with reference to the nature of the offence, intention of the offender, weapon used, the place and nature of the injuries, existence of pre-meditated mind, the persons participating in the commission of the crime and to some extent the motive for commission of the crime. The evidence led by the parties with reference to all these circumstances greatly helps the court in coming to a final conclusion as to under which penal provision of the Code the accused is liable to be punished. This can also be decided from another point of view, i.e., by applying the ''principle of exclusion''. This principle could be applied while taking recourse to a two-stage process of determination. Firstly, the Court may record a preliminary finding if the accused had committed an offence punishable under the substantive provisions of Section 302 of the Code, that is, ''culpable homicide amounting to murder''. Then secondly, it may proceed to examine if the case fell in any of the exceptions detailed in Section 300 of the Code. This would doubly ensure that the conclusion arrived at by the court is correct on facts and sustainable in law. We are stating such a proposition to indicate that such a determination would better serve the ends of criminal justice delivery. This is more so because presumption of innocence and right to fair trial are the essence of our criminal jurisprudence and are accepted as rights of the accused."

From the perusal of the impugned judgment, we notice that the learned trial Judge has not applied is mind in the above manner, therefore, his finding holding appellant Kamlesh to be guilty of committing murder of Dhyan Singh and resultantly his conviction under Section 302/34 IPC is also erroneous and illegal.

The defect indicated on behalf of the appellant Kamlesh in reference to his conviction under Section 25 of the Arms Act appears to be fatal because it is violative of rules of natural justice, therefore, his conviction and sentence under Section 25 of the Arms Act is also illegal.

The appeal filed by appellant Satya Dev has substance and it deserves to be allowed. The appeal filed on behalf of the appellant Kamlesh has also some substance and it deserves to be partly allowed to the extent that his conviction and sentence under Section 302/34 IPC are to be altered and he is to be convicted and sentenced under Section 304-I IPC. He is said to be in jail for last approximately 14 years. We think rigorous imprisonment of 14 years and fine of Rs. 10,000/- would serve the ends of justice. His conviction and sentence under Section 25 Arms Act deserve to be set aside.

Resultantly, Criminal Appeal of appellant Satya Dev is allowed. His conviction and sentence awarded by the trial court vide judgment and orders dated 19.06.2004 in S.T. No. 766 of 2002 under Section 302/34 IPC are set aside. Appellant Satya Dev is acquitted from the charges levelled against him. He is on bail. His bail bonds are cancelled and the sureties are discharged from their liabilities. He need not surrender, in case, he is not wanted in any other case.

Criminal Appeal of appellant Kamlesh is partly allowed. His conviction and sentence and Section 25 Arms Act are also set aside and further the impugned judgment and order are modified to the extent that the conviction and sentence of appellant under Section 302/34 IPC are set aside and he is now convicted under Section 304-I IPC and is sentenced to under go imprisonment of 14 years with fine of Rs. 10,000/-. The imprisonment already undergone by him would be adjusted in the sentence awarded by us in accordance with the provisions contained in Section 428 of the Cr.P.C.

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