Raja Kanjad vs State of U.P.

Surendra Vikram Singh Rathore, J.—Mr. Manish Bajpai, learned Amicus Curiae for the appellant and Mr. Umesh Verma, learned AGA for the State were heard.

Under challenge in the instant Criminal Appeal is the judgment and order dated 29.10.2005 passed by Additional Sessions Judge, Court No. 10, Lucknow, in Sessions Trial No. 4 of 2004, arising out of Case Crime No. 327 of 2003, Police Station Husainganj, District Lucknow, whereby appellant Raja Kanjad was convicted for the offence under Section 302 IPC and was sentenced to undergo imprisonment for life.

In brief, the case of the prosecution was that in the intervening night of 1/2.11.2003 at about 03.45 AM the complainant Ramasarey lodged a first information report at Police Station Husainganj, Lucknow, alleging therein that in the intervening night of 1/2.11.2003 his son Kanhaiya Lal alias Palu and appellant Raja son of Man Singh were sleeping outside Alankar Talkies. There was some enmity between them. Some altercation took place between them. At about 03.00 AM hearing the noise the complainant, Raj Kumar and Didanu also reached there. At that moment, appellant Raja gave blow of knife on the chest of the deceased and ran away from there. These persons made an effort to catch hold of the appellant but he could not be apprehended. The incident was seen in the light of the electric bulb. The age of the son of the complainant was about 35 years and because of the injury, he died on the spot. On the basis of this first information report, the case was registered and investigation proceeded. Inquest proceedings were conducted and after completing the same, the dead body was sent for postmortem, which was conducted on 02.11.2003 at 03.00 PM and the duration was reported by the doctor about half day old. The following ante-mortem injury was reported by the doctor in the post-mortem report:--

"Incised wound elliptical horizontal at anterior axillary line 4 cm x 1 cm, 14 cm below left nipple cavity deep, intestine loops coming out of wound."

In the opinion of the Doctor Mehrotra, the cause of death was shock and haemorrhage as a result of ante-mortem injury.

During course of investigation, the appellant was arrested by the police on 02.11.2003 at 1300 hours and thereafter on his pointing out, the weapon of offence i.e. knife was recovered. A separate case under Section 4 /25 of the Arms Act was registered against him.

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

The case of the defence, as pleaded by the appellant in his statement under Section 313 Cr.P.C., was that in the night of Jagran, the deceased had committed rape of his Maamy (maternal aunt). When he was released from jail then he killed him.

In order to prove its case, the prosecution has examined PW-1 the complainant Ramasarey, PW-2 Raj Kumar son of Sri Mangal, aged about 26 years, PW-3 Raj Kumar son of late Daya Swaroop, aged about 43 years, as witnesses of fact, PW-4 SI Chandra Shekhar - the Investigating Officer of the case under Section 4 /25 of the Arms Act from 03.11.2003, PW-5 SI Jagpal Singh - the arresting officer, PW-6 Head Constable Shareef Husain, who has prepared the Chik Report and GD of this case, PW-7 Didanu - also a witness of fact, PW-8 Subedar Verma, who has prepared the Chik report and GD of the case under Section 4 /25 of the Arms Act, PW-9 SI Awadhesh Pratap Singh, who has prepared the inquest report and also investigated the case under Section 4 /25 of the Arms Act on 02.11.2003, PW-10 SHO Ranvir Singh - the investigating officer of this case and PW-11 Dr. Rajesh Ojha, who has conducted the postmortem on the body of the deceased.

No evidence in defence was adduced on behalf of the appellant.

After appreciating the evidence on record, learned trial court convicted the appellant, as above, hence, the instant appeal.

The submission of learned counsel for the appellant was that in the instant case prosecution has come with a definite case that the complainant and the witnesses have seen the incident and were eyewitnesses of this incident but during trial they have not supported this part of the investigation and they have only stated to have heard the noise of crying of the deceased wherein he had named the appellant and thereafter seeking the corroboration of the same by the statement of the appellant given under Section 313 Cr.P.C. has convicted the appellant. The submission of learned counsel for the appellant was that the use of Section 313 Cr.P.C. cannot be made for the purpose of filling up the lacunas of the prosecution case. It has to be taken in toto if the court places reliance on it but the learned trial court has committed illegality in using the statement under Section 313 Cr.P.C. only for the purpose of corroboration and to fill up the weakness of the prosecution case and this approach of the learned trial court was not in accordance with law. He has also submitted that it is true that the appellant has made confession that he had committed the murder of the deceased but he has also stated that the said murder was committed because the deceased had committed rape with maternal aunty (Mamy) of the appellant and also used to commit rape with other girls. It is submitted that the aforesaid statement of the appellant, if taken to be true in its totality then the offence committed by the appellant, by no stretch of imagination, shall travel beyond the purview of Section 304 Part I IPC. Learned counsel for the appellant in support of his submission has placed reliance on the pronouncement of Hon''ble the Apex Court in the case of Mohan Singh Vs. Prem Singh and Another, . He has drawn our attention towards paragraph 27 of the judgment, which reads as under:--

"The statement made in defence by accused under Section 313 , Cr.P.C. can certainly be taken aid of to lend credence to the evidence led by the prosecution, but only a part of such statement under Section 313 of the Code of Criminal Procedure cannot be made the sole basis of his conviction. The law on the subject is almost settled the statement under Section 313 Cr.P.C. of the accused can either be relied in whole or in part. It may also be possible to rely on the inculpatory part of his statement if the exculpatory part is found to be false on the basis of the evidence led by the prosecution. See Nishi Kant Jha Vs. The State of Bihar, :

"23. In this case the exculpatory part of the statement in Ex. 6 is not only inherently improbable but is contradicted by the other evidence. According to this statement, the injury which the appellant received was caused by the appellant''s attempt to catch hold of the hand of Lal Mohan Sharma to prevent the attack on the victim. This was contradicted by the statement of the accused himself under Section 342 Cr.P.C. to the effect that he had received the injury in a scuffle with a herdsman. The injury found on his body when he was examined by the doctor on 13th October 1961 negatives both these versions. Neither of these versions accounts for the profuse bleeding which led to his washing his clothes and having a bath in the river Patro, the amount of bleeding and the washing of the blood-strains being so considerable as to attract the attention of Ram Kishore Pandey, PW 17 and asking him about the cause thereof. The bleeding was not a simple one as his clothes all got stained with blood as also his books, his exercise book and his belt and shoes. More than that the knife which was discovered on his person was found to have been stained with blood according to the report of the Chemical Examiner. According to the post mortem report this knife could have been the cause of the injuries on the victim. In circumstances like these there being enough evidence to reject the exculpatory part of the statement of the appellant in Ex. 6 the High Court had acted rightly in accepting the inculpatory part and piercing the same with the other evidence to come to the conclusion that the appellant was the person responsible for the crime."

(emphasis supplied)

Learned AGA has conceded the aforementioned legal position.

Before proceeding further, we would like to consider the evidence. PW-1 complainant Ramasarey has not claimed himself to be an eyewitness and has stated that he got the information of this incident and thereafter he went to the place of occurrence then he found that his son was lying dead and there was no enmity of the appellant with his son. He has stated that appellant had demanded some money from the deceased and on refusal to give the same, he was murdered. In his cross examination, he has admitted that he himself has not seen the incident. This witness was declared hostile and was cross examined by the Public Prosecutor. In his cross examination, he has disowned his first information report. He has admitted that the deceased had beaten the maternal aunt of the appellant and in that case, he was sentenced with imprisonment for a period of three years. PW-2 Raj Kumar son of Sri Mangal was a witness of inquest. He has stated that the deceased was sleeping and at some distance, he was also sleeping. Hearing the cries of the deceased Kanhaiya Lal that Raja has given a blow of knife to him, he saw that Kanhaiya Lal was lying on the ground in an injured condition. He remained alive for 10-15 minutes and thereafter he died. There was light of electric bulb. He has also stated that appellant Raja Kanjad is his brother-in-law and deceased Kanhaiya Lal was his Bhanja but in his cross examination he has stated that that he himself has not seen the incident and he was told about the incident by the deceased. He, in his cross examination, has also stated that he heard the noise of other persons that appellant has killed Kanhaiya Lal. When he reached the place of occurrence by that time Kanhaiya Lal died. PW-3 Raj Kumar has stated that he has not seen the incident and on the place of occurrence, he came to know that appellant Raja Kanjad has committed this offence. Likewise PW-7 Didanu has not supported the case of the prosecution and has turned hostile but in the instant case learned trial court has adopted a peculiar approach and has observed that the eyewitnesses have heard the cries of the deceased that he has been given blow by the appellant and the corroboration of the same was taken by the statement of the appellant under Section 313 Cr.P.C. The challenge of the learned counsel for the appellant is two folds. First is that the approach adopted by the learned trial court is inconsistent with settled legal position. If the entire statement of the accused under Section 313 Cr.P.C. is taken to be true even then the offence would not travel beyond the purview of Section 304 Part I IPC. Keeping in view the aforementioned legal position in the case of Mohan Singh (supra), the approach adopted by the learned trial court was not in accordance with law. The appellant himself in reply to the question No. 1 in his statement under Section 313 Cr.P.C. has admitted that he has caused the death of the deceased but this admission is followed by his statement that in the night of Jagran, the deceased had raped his maternal aunt and he used to do such act with other ladies also. Therefore, when he came back from jail then he committed his murder. This reply has been repeated by the appellant in answer to question No. 9 wherein he was asked whether he wants to say anything else. In reply to this question, he has again given the same statement and has stated that under provocation, he has committed this offence. So, if we take the statement of the appellant as a whole then it is clear that the appellant was seriously provoked by the rape committed by the deceased with her maternal aunt and since the deceased was in the habit of such activities, therefore, under provocation he has committed this offence. In the first information report it was also mentioned that there was some altercation. So it transpires that on a sudden altercation under the heat of the moment the appellant gave a blow of knife on the chest of the deceased which proved fatal.

Thus, in our considered opinion, the circumstances under which the offence was committed cannot be said to be an offence of murder because it was committed in the heat of passion under provocation and the altercation as alleged in the first information report shows that it was because of a sudden fight that only one blow of knife was given to the deceased. All these circumstances, if taken together, lead to the only inference that the offence committed by the appellant was one which falls within the purview of Section 304 Part I IPC. The appellant is in custody from the date of his arrest i.e. 02.11.2003 i.e. for the last about 12 years, therefore, this appeal deserves to be partly allowed and the conviction of the appellant deserves to be modified from Section 302 IPC to Section 304 Part I IPC and the sentence inflicted on the appellant accordingly deserves to be modified from imprisonment for life to the period already undergone, which is more than 12 years.

Accordingly, this appeal is hereby partly allowed. The conviction of the appellant is hereby modified from Section 302 IPC to Section 304 Part I IPC and sentence of imprisonment of life is hereby modified to the period already undergone by the appellant, which is more than 12 years. The appellant shall be released forthwith if not wanted in any other case.

Office is directed to communicate this order to the court concerned for immediate compliance and also to send back lower court record.