Sanjay Shahu vs State of U.P.

Pratyush Kumar, J.—1. Criminal Appeal No. 232 of 2010 and Criminal Appeal No. 257 of 2010 have been filed under sections 383 and 382 respectively on behalf of the accused-appellant. Both are directed against the judgment and order dated 10th December, 2009 passed by Sri Shiv Yatan Ram, Additional Sessions Judge, Court No. 2, Faizabad in S.T. No. 79 of 2008 (State v. Sanjay Sahu) whereby the appellant has been convicted under section 302 I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,000/-, in default thereof to further undergo six months rigorous imprisonment.

According to the prosecution version, on 25th December, 2007 at 8.45 p.m. S.I. Vakil Singh Yadav of Police Station Kotwali gave a written report stating therein that on that day, he alongwith police party were checking two wheelers and four wheelers near Inspection House (Irrigation), Naya Ghat on the main road going from Faizabad to Gorakhpur. At 6.30 p.m., he heard loud shouts coming from Sarju Bridge requesting to stop and save. He alongwith police party at once reached Sarju Bridge. There he saw one person was throwing a child aged about four years in the river from the bridge. With the help of passersby that person was caught and a child of six yeas was rescued. When inquired from that person and persons present there namely Prahlad Yadav, Baburam Yadav, Rakesh Yadav and Rajesh Kumar Srivastava, that the arrested person had three children with him, one aged about nine years, second aged about six years and third aged about four years. Suddenly he caught hold of eldest boy and threw him in the river. When they rushed towards him, he also threw youngest boy in the river. The third boy was rescued. The arrested person disclose his name as Sanjay Sahu and stated that due to poverty, he wanted to finish his three sons, thereafter commit suicide himself. The search was made for two boys but they were yet to be found.

At this chik F.I.R. was scribed. Case Crime No. 1893 of 2007 under section 302 I.P.C. was registered and requisite entry was made in the report of the general diary. Investigation of the case was taken over by Inspector Samsher Singh, S.H.O. of the police station. During investigation, one dead body was recovered other could not be recovered. After conclusion of the investigation, the appellant was chargesheeted, he was charged under section 302 I.P.C. On his denial he was tried and convicted, thereafter sentenced, as above.

Heard Sri S.K. Srivastava, learned counsel for the appellant and Sri Umesh Verma, learned A.G.A. for the state and perused the record.

At the very outset, learned counsel for the appellant has submitted that he does not want to question the correctness of the findings of facts. He is merely submitting his arguments on the point that charge under section 302 I.P.C. could not be proved by the prosecution against the present appellant and at the most appellant can be said to be guilty of committing culpable homicide not amounting to murder punishable under section 304 (II) I.P.C. In support of his argument, learned counsel for the appellant has referred the case of Ruli Ram v. State of Harayana, , A.I.R. 2001, S.C. 3360, wherein two children were killed by Ruli Ram, when he threw them into the pond. In this case, the Hon''ble Apex Court observed that in absence of any intention to commit murder, Ruli Ram was rightly held guilty of committing culpable homicide not amounting to murder punishable under section 304 (II) I.P.C.

On behalf of the State, learned A.G.A. has repelled this argument and submitted that even in the First Information Report, the first informant had mentioned that the appellant confessed that he wanted to murder his three sons due to poverty, therefore, he had requisite mens-rea and rightly held guilty of committing murder.

In reference to our obligations as an appellate court hearing appeal against conviction 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 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 before us, findings of facts have not been challenged on behalf of the appellant, however, in order to satisfy ourself that these findings were correctly recorded, we have gone through the evidence adduced by the prosecution during trial. Death of one child Jeetu Sahu aged about four years stands proved by the testimony of Dr. C.S. Singh, P.W.-4 and postmortem report Exhibit Ka-13. The witness has stated that during autopsy, he did not find any mark of external injury on the dead body. According to him, cause of death was asphyxia due to drowning. The estimated time of death was one week. Autopsy was performed by him on 2nd January, 2008. The second dead body could not be found but from the evidence of Dr. C.S. Singh, P.W.-4 and postmortem report Exhibit Ka-13, at least death of one son of the appellant is proved beyond doubt.

S.I. Vakel Singh, P.W.-1 is the first informant. Constable Surbhan Singh, P.W.-2 was accompanying the first informant on the fateful day. They have both supported the prosecution version. The independent witness Rajesh Kumar Srivastava, P.W.-5 did not support the prosecution version. According to him, when he reached at the spot, the appellant was beaten by the crowd. Vakel Singh, P.W.-1 and Surbhan Singh, P.W.-2 were cross examined at length and from their testimonies, it transpires that one child whose dead body was recovered, was thrown by the appellant in their presence. Thus, this fact also stands proved that Jeetu Sahu was thrown in the river Sarju by the appellant at the stated date, time and place.

After satisfying ourselves to this extent, we have given our anxious consideration to the point raised before us. The reply submitted by the learned A.G.A. is based on confessional statement made by the appellant in the presence of police officer and to the police officer which cannot be taken into consideration. Section 25 of the Evidence Act prohibits doing so. Both the police officers, who appeared before the court are not in a position to impute necessary mens-rea on the part of the appellant. Only by overt act that could be deduced against the appellant.

We have considered whether his act was enough to show his mens-rea for committing murder or his case would fall within Clause 3 of Section 299 punishable under section 304 (2) I.P.C. This question has to be answered keeping in view the factual matrix and legal position. Throwing a boy in the river in the winter season in itself would not be determinative, that the act was done with the intention to cause death of the boy. At the most, he can be imputed with the knowledge that his such act is likely to cause death. Here we would like to refer Clause-4 of Section 300, which reads as under:--

"Section 300 Clause-4 If the person committing the act knows that it 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."

This clause narrows third clause of section 299 I.P.C. requiring higher degree of probability to make culpable homicide offence of murder.

When considered in the light of provisions, quoted above, it transpires that by such act, death could have resulted or could not have resulted. There was no certainty that death would in all probability would result. We think that case of the appellant squarely falls within Clause 3 of section 299 and it would not fall within Clause 4 of Section 300. Our view is also fortified from the observations made by the Hon''ble Apex Court in the case of Ruli Ram (Supra). Here we wound like to quote para-22 of the report which reads as under:--

"22. Coming back to the factual position as noted by the courts below the conclusions rendered by the trial Jude appear to be sound. He had noted several factors to conclude that the intention was not to commit murder, but to create some disturbances at the polling station in order to divert attention of the crowd collected, so that the booth capturing would be facilitated. No injuries were caused to the deceased before they were thrown in the pond, and there was no attempt top even strangulate them. However, the accused-appellants could be attributed the knowledge that the natural and proper consequences of their acts was likely to cause death. The High Court did not indicate any basis to hold that the case was covered by Section 302 I.P.C. There was only a casual observation that the murders were committed intentionally because relatives of the deceased did not agree to vote in favour of the accused-appellant''s candidate. There is absolutely no discussion to fortify the conclusion. The inevitable result is that the proper provision to be applied is Section 304, Part II, I.P.C."

In view of above, we find that the learned trial judge though has recorded finding of facts correctly but committed legal error in holding charge under section 302 I.P.C. to be proved against the present appellant.

The appeal has substance on this point and deserves to be partly allowed. The conviction and sentence of the appellant passed under section 302 I.P.C. require to be altered to conviction and sentence under section 304(II) I.P.C. and in case of imprisonment for life, ends of justice would be served, if he is punished with nine years imprisonment. Sentence of fine would remain as it is.

Resultantly, both the appeals are partly allowed.

Conviction and sentence of appellant Sanjay Sahu are altered and in place of his conviction under section 302 I.P.C. and sentence of imprisonment for life with fine he is convicted under section 304 (II) I.P.C. and sentenced to undergo rigorous imprisonment for a period of nine years and to pay fine of Rs. 1,000/-, in default thereof to further undergo simple imprisonment of one month. He is in jail. The period already undergone by him in jail in this case would be adjusted by the jail authorities in accordance with provisions contained in section 428 Cr.P.C.