Thakuri alias Thakur Das vs State of U.P.

This appeal is against the judgement of the Sessions Judge, Jhansi dated 23.12.1981 in ST No. 94 of 1981.

THE FACTS Regarding Record

The original file of the case was not sent by the trial court. It appears that the record has been lost. This Court ordered for reconstruction of the record. The court below reconstructed the record that contained only check report, charge sheet and copy of the judgement.

Thereafter, Sri Devendra Swarup, Counsel for Thakuri alias Thakur Das (the Appellant) offered to file carbon copies of the statements and other documents (order dated 9.11.2009). These documents were filed by him through supplementary affidavit on 9.2.2010.

The record has been reconstructed. It contains the carbon copies of the statements and many of the exhibits though there is some confusion regarding exhibit numbers. It is on the basis of this record that we are deciding the appeal.

At this stage, we wish to record our appreciation for Sri Devendra Swarup for his help in reconstructing the record. Without his help, this was not possible.

Relating To The Case

An incident happened on 22.2.1981 at 10:30 hours. In this incident Har Das (the Injured-Deceased) was injured. He also got written complaint scribed by Chandra Bhan, Pradhan of the village (PW-3) and lodged it alongwith his thumb impression at 13:30 hours.

The allegations in the FIR are as follows:

The Injured-Deceased started from his house at 10:30 hours after having his food;

When the Injured-Deceased reached the house of Daya Ram then, the Appellant came out of his house and gave a knife blow in the stomach of the Injured-Deceased;

There is a case in consolidation against one Maniram. The Appellant was asking contribution for the same. The Appellant became on inimical with the Injured-Deceased, because the Injured-Deceased refused to contribute;

The Injured-Deceased has come alongwith his elder brother Ram Prasad to lodge report.

The Injured-Deceased died in the hospital at 21:30 hours on the same date.

The Appellant was arrested and the knife was also recovered on his pointing out on the same date at 18:30 hours.

The police investigated the case and submitted a charge sheet. The case was committed to the sessions'' court and was registered as ST No. 94 of 1981. The Sessions Judge framed charge against the appellant u/s 302 IPC.

Among others, the prosecution filed the following documents:

FIR (Ex Ka-11);

Written report (Ex Ka-8);

Injury Report (Ex Ka-1);

Reference Letter (Ex Ka-2);

Post mortem report (Ex Ka-9);

Recovery memo of the knife (Ex Ka-19);

Statement of the Injured-Deceased u/s 161 that was proved as dying declaration (Ex Ka-19).

The prosecution examined the following witnesses:

Dr. RK Gupta (PW-1): Doctor, examined the injuries;

Aydhya Prasad (PW-2): Sub Inspector, prepared the inquest;

Chandra Bhan, Pradhan (PW-3): Scribe of the written report;

Advesh Singh (PW-4): Constable, carried the dead body from hospital for postmortem;

Dr. BB Rai (PW-5): Doctor, conducted the postmortem;

Ram Prasad (PW-6): Eyewitness, elder brother of the Deceased;

Daya Ram (PW-7): Eyewitness and witnesses of the recovery of the knife;

Dhani Ram (PW-8): Constable, prepared the chick;

Sattar Khan (PW-9): Eyewitness;

RD Maurya (PW-10): First Investigation Officer (IO);

RS Yadav (PW-11): Second Investigation Officer.

POINTS FOR DETERMINATION

We have heard Sri Devendra Swarup, Counsel for the appellant and Sri AK Dwivedi, AGA for the State. The following points arise for determination in the case.

(i) Whether the Appellant gave knife blow to the Injured-Deceased;

(ii) Whether the Appellant is guilty?

(iii) In case the Appellant is guilty, then what offence has he committed?

(iv) What punishment should be awarded to the Appellant?

1st POINT: APPELLANT IS GUILTY

In this case, FIR has been lodged by the Injured-Deceased himself. This report that was written by Chandra Bhan (PW-3), who deposed that:

(i) Written report (Ex Ka-8) was written by him (PW-3) on dictation of the Injured-Deceased. It was read over to him thereafter the Injured-Deceased had put his thumb impression on the same;

(ii) PW-3 denied suggestions that:

The written report was not dictated by the injured Deceased;

A false case has been instituted because of the enmity;

There is nothing in the evidence to disbelieve the deposition of PW-3.

In our opinion, the written report (Ex Ka-9) is a dying declaration and has been rightly so treated by the court below.

No statement of the Injured-deceased was recorded before the Magistrate. However, the statement u/s 161 CrPC was recorded by the first IO. The first IO (PW-10) deposed that he had taken statement of the injured Deceased. There is some confusion as to when his statement was recorded but the first IO has deposed that he had recorded the statement. The statement u/s 161 CrPC was also Exhibited as Ex Ka-19.

In the written report Ex. Ka-9 and Ka-19 (treated as dying declaration), it has been mentioned that the Deceased was given knife blow by the Appellant. There is no contradiction between the two on this account.

The prosecution examined eleven witnesses. Out of these, three namely Ram Prasad (PW-6), Dhani Ram (PW-8), and Sattar Khan (PW-9) are eyewitnesses. Rest of them are witnesses of formal nature.

It is correct that in the written complaint (Ex Ka-9) scribed by Chandra Bhan (PW-3), there is no mention of any eyewitness. However, in the statement u/s 161 (treated as dying declaration, Ex Ka-19) it has been indicated that the written complaint was dictated in a hurry and as such the names of the eyewitnesses were omitted.

The site plan indicates that:

The houses of Daya Ram (PW-7) and the Appellant is in south of the house of the Injured-deceased; and

The houses of Daya Ram (PW-7) and the Appellant is adjacent to each other.

His presence on the spot is natural.

Daya Ram (PW-7) is not only witness of recovery but also an eyewitness. He deposed that at the time of incident no family member of the Injured-Deceased was present This, at the most, may mean that Ram Prasad (PW-6), the elder brother of the Injured-Deceased, was not there, but his statement does not mean that Sattar Khan (PW-9) or Daya Ram (PW-7) himself were not present. They have deposed that the knife blow was given by Daya Ram (PW-7).

Considering the entire evidence on record, in our opinion the prosecution has proved beyond reasonable doubt that the Appellant gave knife blow to the Injured-Deceased.

3rd POINT: GUILTY u/s 304 PART-I IPC The Motive

According to the prosecution case, the motive for the crime was that the Appellant was in inimical terms with the Injured-Deceased as he had refused to contribute for the case against Mani Ram in the consolidation.

This motive may not be correct. The Appellant has filed the judgment of the Deputy Director of Consolidation dated 18.6.1980 (Ex kha-2) as well as copy of the resolution of the Gaon Sabha dated 4.7.1980 (Ex Kha-3). Both these documents are prior to the date of the incident. The case was already over and there was no question of asking any contribution.

Ram Prasad (PW-6) is the elder brother of the Injured-Deceased. His statement u/s 161 CrPC was recorded by the IO. It is on the record. In this statement, it is mentioned that the Injured-Deceased had held the hands of the Appellant''s wife with bad intentions due to which the Appellant was on inimical terms.

This fact was neither stated by Ram Prasad (PW-6) before the trial court nor any question in this regard was asked by the Counsel for the Appellant. However, the Appellant in his statement u/s 313 CrPC in his answer to question No. 16 has said that the Injured-Deceased used to tease women of the village.

The AGA submitted that:

It is statement u/s 161; and

It cannot be taken into account.

The statement of Ram Prasad ((PW-6) was recorded by the IO. There is no statement by him that he had falsely recorded statement of anyone. No question was asked from him in the cross examination. The statement is such that any person or the Appellant would be reluctant to ask or put it as suggestion as it concerns his wife. However, the Appellant had said it indirectly in the statement u/s 313. In our opinion, this could be the cause for causing injury.

Not Guilty of Murder

The prosecution case as well as the oral evidence is that only one knife blow was given in the stomach.

Dr. BB Rai (PW-5) conducted the postmortem. He has deposed that ordinarily the injury was sufficient to cause the death. However, Dr. RK Gupta (PW-1) is the doctor who had examined the injuries initially. He deposed that he did not get dying declaration recorded as there was no chance of the Injured-Deceased dying in the near future.

Sri RD Maurya (PW-10), IO has also deposed that he did not get dying declaration recorded as there was no likelihood that the Appellant would die.

There is a different version regarding the injury of the Injured-Deceased. The difference is among the doctors too, who are expert in the field. This shows that there might be some negligence on the part of the doctors in taking care and the injury might not have been serious.

Considering the entire evidence on record, in our opinion, the Appellant is guilty u/s 304 Part-I IPC, rather than Section 302 IPC.

4th POINT: PUNISHMENT

The statement of the Appellant u/s 313 CrPC was recorded six months after the incident. In this statement, the age of the Appellant is mentioned as 16 years. This has never been disputed by the State. However, this Court by its order dated 20.5.2010 requested the Sessions Judge, Jhansi to sent a report whether the appellant was juvenile on the date of incident or not.

The Sessions Judge by his letter dated 10.5.2010 submitted a report. He has held that:

The date of birth of the Appellant is 1.12.1964;

He was less than 18 years of age on the date of incident; and

He was juvenile on the date of the incident.

The Juvenile Justice (Care and Protection of Children) Act, 2000 has been amended. Now a person less than 18 years of age is to be treated as juvenile and the benefit is to be given in the appeal as well. See Chandan and Anr. v. State of UP 2010 (69) ACC 977.

The Appellant was juvenile on the date of the incident. In view of this, the Appellant is convicted u/s 304 Part-I IPC. However, he is sentenced to the period already undergone in jail.

CONCLUSIONS

Our conclusions are as follows:

(i) The Appellant gave knife blow to the Deceased;

(ii) The Appellant is guilty u/s 304 Part-I rather than u/s 302 IPC. His conviction is altered accordingly;

(iii) The Appellant was juvenile on the date of the incident and he is sentenced to period already undergone.

In view of our conclusions, the appeal against the judgment dated 23.12.1981 passed by the Sessions Judge, Jhansi in ST No. 94 of 1981 is partly allowed. The Appellant need not surrender. His bail bonds are cancelled and sureties are discharged.

We have heard Sri Devendra Swarup, Counsel for the appellant and Sri AK Dewivedi, AGA for the State.

In view of our conclusions, the judgement dated 23.12.1981 passed by the Sessions Judge, Jhansi in ST No. 94 of 1981 is partly allowed. In view of the fact that the Appellant was juvenile on the date of the incident, he is sentenced to the period already undergone. The Appellant need not surrender. His bail bonds are cancelled and sureties are discharged.

For detailed orders, see our orders of date passed on separate sheet of papers attached in the appeal.