Reserved
Case :- JAIL APPEAL No. - 1414 of 2014 Appellant :- Harish Chandra @ Herchandra Respondent :- State Of U.P.
Counsel for Appellant :- From Jail Counsel for Respondent :- A.G.A.,R.S. Yadav
Hon'ble Ashwani Kumar Mishra,J. Hon'ble Chandra Dhari Singh, J.
(Per Hon'ble Ashwani Kumar Mishra, J.)
1. This jail appeal is directed against judgment of conviction dated 21.1.2014, passed by the Additional Sessions Judge, Court No.1, Bareilly, in Sessions Trial No.69 of 2009, State vs. Harish Chandra @ Harchanda, whereby accused appellant has been convicted of an offence under section 302 IPC, readwith section 25/27 Arms Act in Case Crime No.269 of 2008, Police Station Bhojipura, District Bareilly. Appellant has been sentenced to undergo life imprisonment alongwith fine of Rs.10,000/- for the offence under Section 302 IPC. Upon failure to deposit the amount of fine the accused-appellant has to further undergo simple imprisonment for a period of 01 year. Punishment of 02 years rigorous imprisonment alongwith a fine of Rs.1,000/- has also been imposed upon the appellant for the offence under Section 25 of the Arms Act and to further undergo simple imprisonment of 01 year if the fine is not paid. Both the sentences are to run concurrently.
2. Briefly stated, the prosecution version of the case is that the informant Prempal son of Jhamman Lal, resident of village Manehara, Police Station Bhojipura, District Bareilly made a written complaint to the police station Bhojipura at 5.15 PM on 20.5.2008 with the allegation that on 20.5.2008 at about 3.30 PM while his father Jhamman Lal, aged about 58 years, was standing near Pakad tree and was preparing chewing tobacco in the company of one Makhan Lal son of Ganeshi Lal that Harchanda (accused-appellant) son of late Deendayal came on the spot and asked for tobacco to be shared with him. The deceased refused. As soon as the deceased Jhamman Lal started moving ahead the accused-appellant took out a country made pistol from his pocket and fired at Jhamman Lal from behind. The informant, son of the deceased, who was standing close by rushed to his father but accused-appellant fled by then. The dead body of informant's father was stated to be lying below the tree. The incident is stated to have taken place at 3.30 PM, and the informant prayed for lodging of First Information Report and for taking needful action as per law. On the basis of written complaint a First Information Report was lodged on the same day, i.e. on 20.5.2008, at 5.15 PM. The complaint was hand written on the instruction of informant Prempal, by one Ramdas son of Ram Kishan. Subsequent to the lodging of the First Information Report, the Investigating Officer conducted investigation of the aforesaid case crime number in terms of Chapter XII of Cr.P.C.
3. The Investigating Officer Pawan Singh alongwith Sub Inspector B.P. Gautam came to the place of occurrence alongwith other constables.
He appointed Sukhpal son of Nathu Lal, Ramdas son of Ram Kishan, Prempal son of Jhamman Lal, Siyaram son of Mathura Prasad and Chhote Lal son of Ram Chandra Yadav as the Panch witnesses and thereafter the Panchayatnama/Inquest of the body of the deceased was conducted. The body of the deceased was examined and it was found that on the left side of the back there exists a blood stained injury. Accordingly, in the opinion of the panch witnesses the death of the deceased was characterized as homicidal.
4. Having completed the Inquest/Panchayatnama of the deceased, the Investigating Officer got the body of the deceased sealed. He thereafter completed the paper formalities and sent the same for postmortem. Constable Asharam took the body to the District Hospital, Bareilly for the aforesaid purpose.
5. The postmortem of the body of the deceased was conducted on 21.5.2008 at about 11.30 AM by Dr. Sudhir Kumar Yadav (PW-3), and the following injuries were found, which have also been recorded in the postmortem report prepared by the Doctor (Ext.-Ka3):-
“1. A firearm wound of entry on (L) side back of chest, 34cm below top of (L) shoulder and 7cm lateral to lumbar spine, measuring 04cm x 02cm x chest cavity deep, direction below upward from back to front, surrounded by a zone of tattooing covered by unburnt gun powder covering an area of 45 cm x 30 cm around the main wound of entry, edges are inverted, underneath (L) rib 7th fractured. No Exit Wound Seen 2. An area of bluish discoloration on (L) chest 8cm x 5cm seen with no external mark of injury. On section an elongated bullet recovered just subcutaneous below nipple with underneath (L) rib fractured (rib no.5th (L) side.
Bullet recovered from AMI No (2) is sealed and kept in empty box of matches and handed over alongwith sealed bundle of cloths.”
6. In the opinion of the Doctor the cause of death of the deceased was shock and hemorrhage as result of ante-mortem firearm injury.
7. After having undertaken the formality of getting the Inquest/Panchayatnama of the body of the deceased as well as the postmortem of the body of the deceased, the Investigating Officer commenced the investigation of the aforesaid case crime number. He took the sample of plain earth and prepared its memo dated 20.5.2008 (Ext. Ka9). He also took the sample of earth mixed with blood and prepared its memo dated 20.5.2008 (Ext.Ka10). He thereafter prepared the site plan of the place of occurrence on 20.5.2008 itself (Ext.Ka11).
8. During the course of investigation, the Investigating Officer came to know through police informer that the accused Harish Chandra Jatav of village Manehara was about to flee from the village. On the aforesaid tip of, the Investigating Officer on the showing of the informer apprehended the accused on 24.5.2008 at 5.30 PM. The accused-appellant is stated to have informed the Investigating Officer of the crime committed by him on account of old enmity. Upon being interrogated about the weapon of assault the accused is alleged to have informed the Investigating Officer about the location of the same. On the pointing out of the accused, the weapon of assault which is a countrymade pistol was recovered alongwith a used cartridge of .315 bore. Accordingly, the Investigating Officer prepared the recovery memo dated 24.5.2008 (Ext.Ka4).
9. Thereafter the Investigating Officer recorded the statements of various witnesses under Section 161 Cr.P.C. He thereafter prepared another site plan dated 30.5.2008 (Ext.Ka12).
10. Ultimately the Investigating Officer submitted a charge sheet dated 31.5.2008. Cognizance was taken on 14.8.2008 and the case was committed to the Court of Sessions, which was registered as Sessions Trial No.69 of 2009 (State Vs. Harish Chandra @ Harchander) under Section 302 IPC in the court of the Additional Sessions Judge, Court No.1, Bareilly.
11. The court below framed the charges vide order dated 25.6.2009.
From the perusal of the aforesaid order, it is apparent that two charges were framed against the accused appellant. The first charge was in respect of an offence under Section 302 IPC, whereas the second charge was in respect of an offence under Section 25/27 of the Arms Act.
12. The accused-appellant denied the charges so framed and demanded trial.
13. The prosecution in support of its case adduced the following witnesses:-
1. P.W.1 Prempal (first informant)
2. P.W.2 Smt. Rajkumari (witness of fact)
3. P.W.3 Dr. Sudhir Kumar (the Doctor who conducted the postmortem.
4. P.W.4 S.I. Harishankar Singh, witness of arrest and recovery.
5. P.W.5 Const. Omkar Singh
14. Apart from relying upon the aforesaid witnesses the prosecution in order to prove its case adduced the following documentary evidence, which have also been marked as exhibits:-
1. Exhibit Ka1 Written report
2. Exhibit Ka2 Inquest report of deceased
3. Exhibit Ka3 Postmortem Report
4. Exhibit Ka4 Recovery memo of offence weapon and blank cartridge
5. Exhibit Ka5 Arrest warrant of accused
6. Exhibit Ka6 First Information Report
7. Exhibit Ka7 Carbon copy of G.D. for lodging of crime
8. Exhibit Ka8 Carbon copy of G.D. for producing the accused
9. Exhibit Ka9 Memo of simple soil
10. Exhibit Ka10 Memo of blood stained earth
11. Exhibit Ka11 Site plan of place of incident
12. Exhibit Ka12 Site plan of place of recovery of offence weapon
13. Exhibit Ka13 Signature specimen
14. Exhibit Ka14 Challan dead body
15. Exhibit Ka15 Photo dead body
16. Exhibit Ka16 Letter of R.I.
17. Exhibit Ka17 Letter of CMO
18. Exhibit Ka18 Carbon copy of G.D. of case diary
19. Exhibit Ka19 Charge sheet
20. Exhibit Ka20 Application relating to sickness of S.I.
Pawan Singh
15. After the prosecution had led its evidence the statement of the accused appellant was recorded under section 313 Cr.P.C. A perusal of the same will go to show that the accused has neither come out with his version of the occurrence nor has he stated any fact regarding his innocence except for the repeated answers that he has been falsely implicated. The accused has also not adduced any witness in his defence nor has stated anything in his defence. Thus, the only version of the case before the court is the prosecution version.
16. The trial court on the basis of the evidence adduced before it as well as the testimony of the prosecution witnesses found the accused appellant guilty of an offence under section 302 IPC read with section 25/27 Arms Act. Accordingly, the court below has convicted the accused appellant vide judgment and order dated 21.1.2014. Feeling aggrieved by the aforesaid judgment and sentence, the accused appellant has now come up in appeal before this Court.
17. Smt. Rashmi Srivastava, learned Amicus Curiae for the appellant submits that accused appellant is a poor person, who has been falsely implicated in the case. Learned Amicus Curiae has submitted that the motive attributed for the offence is weak and renders the role of accused in commission of crime, as alleged, highly suspect; Makhan Lal who was the best evidence and also independent witness of the occurrence has not been adduced. There is no forensic report regarding the sample earth mixed with blood. There is no recovery of stained cloths. The accused was not arrested from the spot. Further there is no forensic report/ballistic report to show that the firearm used in the incident is the same which has been recovered. The Investigating Officer has not been produced whereas the witnesses of fact are related and interested persons. Their testimony was liable to be minutely examined which has not been done. Learned Amicus Curiae on the aforesaid premise submits that the prosecution has failed to establish guilt of the accused appellant, and therefore, the conviction awarded to the accused appellant is liable to be set aside by this Court. In short, the sum total of the submissions of the learned counsel for the accused appellant is that the prosecution has failed to prove its case beyond doubt much less reasonable doubt.
18. Sri Ratnendu Kumar Singh, learned A.G.A. for the State submits that the postmortem report and version of prosecution are in tune with each other. It is also stated that motive has been clearly disclosed and the statement of witnesses cannot be brushed aside only for the reasons that they are related to deceased.
19. We have carefully considered the submissions advanced before us by the learned Amicus Curiae and have minutely scanned the entire evidence available on record of this appeal.
20. Learned counsel for the appellant vehemently urged before us that the motive assigned to the accused for committing the crime is weak and highly improbable. According to the learned counsel, since the motive behind the commission of the crime has not been fully established, the conviction awarded by the court below to the accused appellant is liable to be set aside. It is pertinent to mention here that in the case of direct evidence motive becomes irrelevant. In the present case, there is direct evidence of the first informant who has witnessed the occurrence in question, therefore, the aforesaid submission made by learned Amicus Curiae is liable to be rejected.
21. We find from the record that on the basis of written report, which has been duly exhibited as Exhibit Ka-1, given by the informant, who is the son of deceased, at Police Station Bhojipura, District Bareilly, a First Information Report being Case Crime No.269 of 2008, under sections 302 IPC and 25/27 Arms Act was registered against the accused appellant. In support of the charge the prosecution has adduced P.W.1 and P.W.2, who are the eye witnesses of the incident. P.W.1 Prempal is also the informant and an eye witness. He was present on the spot when the incident itself occurred. He has clearly stated about the deceased standing near Pakad tree with Makhan Lal, who was preparing chewing tobacco when the accused appellant came on the spot and asked for the same, which the deceased refused to share. When the deceased proceeded ahead, the accused appellant took out his country made pistol from his pocket and fired at him from behind resulting in his death. Despite an opportunity granted to cross-examine P.W.1, he was neither cross examined by the defence counsel nor was he cross examined by the accused appellant himself in court. Similarly, P.W.2 Smt. Rajkumari, wife of the informant has also given her statement, as per which, the deceased was fired from behind by the accused appellant after he refused to give tobacco resulting in his death. She has also stated about past enmity between the two families and also about a previous attempt having been made by the accused appellant to murder the deceased.
22. Thus, the testimony of PW.1 and PW.2 who are witnesses of fact could not be dislodged by the prosecution in the cross examination of the aforesaid witnesses. Thus, both the prosecution witnesses continue to be credible and reliable, and therefore, their testimony is worthy of trust.
23. The witnesses of fact have categorically named the accused appellant, who was otherwise known to them being neighbours from the same village. The two families were otherwise living not at a far of distance. Their ocular testimony is consistent with the postmortem report as per which the cause of death was a firearm injury. A country made pistol has also been recovered at the pointing out of the accused appellant himself. The injury found on the body of the deceased matches with the weapon of assault recovered at the pointing out of the accused appellant. We, therefore, have no doubt based on the medical evidence and oral testimony that it is a case of homicidal death. It is also proved on the basis of evidence that fatal injury was caused by the accused appellant.
24. So far as argument advanced by learned Amicus Curiae is concerned, we have carefully considered it, but we do not find any of them worthy of dislodging the overwhelming evidence available on record against the accused appellant. So far as recording of statement of Makhan Lal, who was present on the spot and has not been adduced as witness is concerned, we may note that accused-appellant is also the resident of the same village where Makhan Lal also resides. The accused appellant and his family is not apparently shown to be in high esteem by the villagers, inasmuch it has been alleged that the accused appellant indulged in causing theft etc. It is otherwise not an uncommon scenario in villages that people do not readily come out to give evidence of a crime where they are otherwise know to each other. Makhan Lal is not shown to be related to deceased, and therefore, it is quite probable that he may have thought it better to keep a safe distance from the village enmity. The prosecution case, therefore, would not suffer on account of non production of Makhan Lal as a witness.
25. Coming to the argument that the Investigating Officer has also not been adduced as a witness, it would be relevant to note that P.W.5 Constable Omkar Singh, who is the pairokar of the police station Bhojipura, has stated that S. I. Pawan Singh is suffering from serious kidney ailment for the last one year and he is not in a condition to move. He, however, has verified the signatures of Investigating Officer with whom he had worked. Although in the cross examination he states that he had not gone to see S. I. Pawan Singh personally, but has given his statement on the basis of report received. He has also denied the suggestion that S. I. Pawan Singh was performing his duties. There is no reason to suspect the statement given by P.W.5 that the Investigating Officer is not keeping in good health and on account of which he has not been adduced to give evidence.
26. So far as the arguments relating to non availability of blood stained clothes of P.W.1 not being recovered is concerned, we do not find much substance in this argument. There is no specific statement of P.W.1 that he had lifted the deceased in his hand, which may have caused blood stains on his clothes. Even otherwise, these are arguments upon which not much will turn. The fact that no spot arrest was made is also not material inasmuch as it is alleged that deceased was carrying firearm with him with which he had shot the deceased and fled from spot. It is not unnatural for the informant or other persons present at the spot to rush to the deceased and the accused appellant fleeing in the meantime. His arrest, however, has been made soon after the incident i.e. on 24.5.2008, and at his pointing out the firearm has also been recovered.
27. From the materials we find that the prosecution has been able to establish that it was the accused appellant alone who had committed the offence resulting in homicidal death of the deceased. The evidence adduced before us would be sufficient to hold that it was the accused appellant alone who had committed the offence. The statement given by the accused appellant under section 313 Cr.P.C. that he has been falsely implicated or that he is innocent is devoid of substance. Prosecution has successfully established that the accused alone has committed the offence for which he has charged on 25.6.2009 and that prosecution has been able to prove the charges to the hilt. The conviction of accused appellant is, therefore, sustained.
28. The question which now requires consideration is as to whether sentence of accused appellant under section 302 IPC should be upheld or the offence be converted under section 304 part I or part II of the IPC.
Culpable homicide is defined under section 299 IPC in following words:-
“299. Culpable homicide.—Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.”
29. Section 304 IPC reads as under:-
“304. Punishment for culpable homicide not amounting to murder.
—Whoever commits culpable homicide not amounting to murder shall be punished with 1[imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.”
30. For converting an offence of murder into culpable homicide not amounting to murder it would have to be shown that the offender on account of sudden provocation was deprived of the power of self control, leading to the act constituting offence. In the facts of the present case, refusal by the deceased to share tobacco with accused appellant would not constitute an act of provocation which may justify conversion of sentence from section 302 to section 304. The provocation, in the facts of the present case, was self engineered and was otherwise not grave so as to reasonably result in commissioning of the crime. For all such reasons, we are of the opinion that there is no evidence on record of this case which may justify conversion of sentence from section 302 to 304 IPC. No other point is pressed.
31. Accordingly, this jail appeal fails and is dismissed. Learned Amicus Curiae shall be entitled to her fee quantified at Rs.15,000/-.
Order Date:- 30.5.2018. Ashok Kr.
(Chandra Dhari Singh, J.) (Ashwani Kumar Mishra, J.)