(Judgement reserved on 6.5.2019) (Judgement delivered on 30.5.2019) Court No. - 53 Case :- CRIMINAL APPEAL No. - 157 of 2000 Appellant :- Sukana Respondent :- State Of U.P.
Counsel for Appellant :- S.P. Sharma,Vinod Kumar Sahu Counsel for Respondent :- Govt. Advocate Hon'ble Pankaj Naqvi,J. Hon'ble Umesh Kumar,J.
(Delivered by Hon.Pankaj Naqvi,J.) This appeal has been preferred against the judgment and order dated 2.12.1999 passed by Sessions Judge, Lalitpur whereby appellant has been convicted/sentenced under Section 302 IPC to undergo R.I for life and under section 326 IPC for 5 years. Both the sentences were to run concurrently.
The case of the prosecution in brief is as under.
P.W-1/the informant was attending to his fields (sown with gram) on 9.2.1999 at around 4-4.30 P.M. Accused Sukana had his holding near that of P.W.1, on hearing cries emanating from the fields of Sukana, P.W-1 alongwith others rushed to the fields of Sukana to see that Sukana was assaulting his wife/Kailash Bai (victim) with an axe. P.W- 2/sister of accused Sukana attempted to rescue her bhabhi/Kailash Bai but in the process was inflicted an axe injury on her right elbow. Accused Sukana along with the axe fled towards the river and his wife lay dead in her fields.
On above allegations a written report (Ex Ka- 1) was scribed at the dictates of P.W-1. On the basis of said report an FIR (Ex Ka-2) was registered against accused Sukana under section 302 IPC as Case Crime No.54/99 at the police station concerned on 9.2.1999 at 9.30 P.M.
To establish its case prosecution examined as many as 11 witnesses out of whom P.W-1 and 2 are eye-witnesses. The accused claimed false implication and in his statement under section 313 Cr.P.C alleged that he was annoyed with his father since childhood as he did not want to give his share and wanted to drive him away from the house, therefore he has been implicated.
The trial court finding the eye-witness account of P.W-1 and P.W-2 a child (an injured) sister of accused wholly reliable, medical evidence of the deceased and the injured in tandem with the ocular account and the plea of accused- appellant that in view of strained relations with his father he had been implicated, was rejected and convicted/sentenced the accused as above.
We have heard Shri Vinod Kumar Sahu, learned Amicus for the appellant and Shri A.N.Mulla, learned AGA, assisted by Shri Manav Chaurasia, for the state.
Learned Amicus raised following submissions:-
I) There are material contradictions between P.W-1 and 2 suggesting that they were not present at the scene to witness the occurrence.
ii) Offence if any would attract Section 304 IPC as it was prompted due to sudden quarrel in heat of passion over refusal of the victim wife to serve food to the appellant- husband.
The learned A.G.A opposed the submissions on the ground that P.W-1, an independent witness is wholly reliable and P.W-2, an injured, is the sister of the accused-appellant, both firmly established the occurrence. He finally submitted that the mere fact the accused husband left the scene and came back with an axe and inflicted as many as 11 injuries on the upper part of body, no case under section 304 IPC made out.
P.W-1/the informant, an independent eye-witness, was attending to his fields at around 4-4.30 PM when he witnessed the assault on the victim by accused Sukana involving the use of repeated axe blows while P.W-2 and the victim (wife of Sukna) were removing grass from the fields of Sukana. P.W-1 claims to have witnessed the occurrence at point A (accused's field) from his fields i.e, point B of the site plan but the distance “300 yards” is factually incorrect as P.W-1 denied the distance of 300 yards which is actually 100 steps as also authenticated by other distances measured in feet. P.W-1 is sought to be contradicted on the ground that he alleged that at the fields of Sukana there was standing rai and pea crops but the site plan (Ex Ka-10) indicates rai and gram instead of pea.
The contradiction is too trivial to doubt the presence of P.W-1, who is otherwise an independent and against whom no previous enmity is alleged. Merely because P.W-1 was stating that he witnessed 4 to 6 assaults on the victim, it cannot be said that he was not present at the scene, as P.W-1 only alleged what he saw, else he could have exaggerated the number of assaults after medical but he chose to confine its numbers as 4 to 6 axe assaults suggesting him as a natural witness.
Presence of P.W-1 is also challenged on the ground that according to P.W-1 axe assaults were made on her when the victim was in a bending posture, face towards the earth, but the seat of injury no.8 is on the breast which discredits his oral account. We lest not forget that P.W-8 a rustic witness described the pattern of assault on the victim, resulting in 11 injuries, in consonance with the medical evidence, merely because one of the injury i.e, injury no.8 is not in consonance with the oral account, the entire prosecution case cannot be disbelieved. Moreover the seat of injury no.8 which could have been caused while the process of assault was on and the victim had turned turtle.
P.W-2 is a child witness aged about 10 as on the date of examination. She was examined within 6 months of the occurrence. The learned Judge after satisfying himself as to the competency of the witness, permitted her to depose. P.W- 2 is the real sister of accused Sukana. She along with her bhabhi (victim) were working at the fields when her brother (accused Sukana) assaulted the victim. She deposed that she along with the victim left for the fields around 2-3 P.M, while her brother, the accused was at the house, the meal had already been prepared by her mother before noon. She and the victim had taken two baskets for keeping the grass cut by them. Sukana came at the fields, asked for food, victim replied that food was ready at home, he might go and eat. The house is near to the fields. Sukana again insisted the victim whether she was coming to the house to serve food or not. Victim again replied in the negative. After some time Sukana came back with an axe and again asked the victim whether she would serve him food at home or not, victim again refused. Thereafter Sukana inflicted axe assaults on the neck and other parts of her body. P.W-2 requested her brother not to assault, but in the process she too received an axe blow on her right elbow. She admits that the I.O had arrived at the scene same night but her statement was obtained next day, she was sent along with the chaukidar for medical examination. She categorically admitted that relations between her parents and brother (accused) were far from cordial as they often used to pick up quarrels as the accused neither used to attend his fields nor was working anywhere. P.W-2 an injured child witness firmly stood the test of cross examination. Law attaches greater significance to the testimony of an injured as it prima facie indicates the presence of such a witness at the time of occurrence.
P.W-7 is the doctor who examined the injuries of P.W-2 on 10.9.1999 at P.H.C, Jakhaura at about 3.15 PM in police custody. He noticed the following injuries:-
Right elbow at medial epicondil – Medial posterior side. Lacerated wound 3 x1/2 x 1x1/2 cms – 1x1/2 gap between edge, eadge – irregular – clotted blood seems black.
P.W-7 was opining that injuries could have been caused within 24 hour as duration was based on the basis of the colour of the blood. Merely because the doctor opined that injury to P.W-2 could not have been caused by the use of sharp side of the axe does not bring the prosecution case under suspect as P.W-2 nowhere alleged as to from what side of the axe was she hit.
We after evaluating P.W-1 and 2 and 7 are of the view that P.W-1 and 2 are wholly reliable and injuries of P.W-2 as proved by P.W-7 authenticates the presence of P.W-2 at the time of occurrence.
Now we proceed to examine as to whether the case of appellant is covered under Exception (iv) to Sec 300 I.P.C or not?
The Apex Court in Pulicherla Nagaraju @ Nagaraja Reddy vs. State of Andhra Pradesh, (2006) 11 SCC 444, culled out certain circumstances wherein a conviction sentence u/s 302 can be altered u/s 304-I / or II, as reiterated in Ankush Shivaji Gaikwad Vs. State of Maharashtra, (2013) 6 SCC 770. Relevant portion of Para 23 of the Ankush (Supra) is extracted hereunder:-
"......Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the case of murder punishable Under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable Under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (I) nature of the weapon used ; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body ; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight;
(vi) whether the incident occurs by chance or whether there was any pre- meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention......
The role assigned to the appellant was of catching hold the deceased whereas a single knife wound was inflicted on the chest of the deceased by Co- accused Anil. The intention to cause death is evident as accused Anil was armed with a knife which he already had in his pocket, aimed at vital part (chest) with such force that peritoneum and liver were punctured. P.W. 7/ the doctor in his written opinion stated that injury was sufficient in the ordinary course of nature to cause death. It is not the case of prosecution that the deceased was inflicted multiple knife blows or the assault continued even after the deceased fell. The accused neither took any undue advantage nor acted in a cruel or unusual manner. It has also come in evidence that the incident took place when father of the victim P.W. 1 along with his cousin / deceased had gone to the house of accused Anil so as to persuade his father to dissuade his son from teasing his daughter, where hot exchange of words took place between the parties, thus the occurrence was an outcome of sudden heat of passion involving both sides. There was no prior planning or any cooling off period. We are thus of the considered view that the case would squarely fall within the ambit of Exception - (IV) to Se-300 I.P.C.
To attract Exception (IV) to Sec 300 IPC the following 4 essential ingredients are must;
I) Without premeditation;
II) in a sudden fight;
III) in the heat of passion upon a sudden quarrel and
IV) the offender not having taken any undue advantage or acted in a cruel or unusual manner.
The genesis of the dispute is basically between the husband (accused) and his wife (victim) as the former wanted the latter to accompany him from the fields to the house to serve him food, which the wife (victim) repeatedly declined alleging that while she was working in the fields food had already been prepared by her mother-in-law which the accused-appellant may go and eat. The accused-appellant left the filed, came back after some time with an axe, and again asked the victim, with the axe in his hand, if she was willing to accompany him, to which the victim again said “no”, followed by repeated axe assaults on her.
We on above evidence are of the considered view that the mere fact that the deceased left the field came back with an axe, as he appears to be adamant to teach a lesson to his wife, for saying “No” to him. The assault was and out come of a sudden quarrel in a heat of passion. But the fact that accused-appellant inflicted repeated axe assault on the victim, which was not picked up from the spot rather was brought to the spot, then it cannot be said that the assault was preceded with no premeditation. The element of “no premeditation” vanished the moment the accused-appellant left the scene and came back with an axe.
P.W-8, the medico conducted the autopsy of the deceased on 10.2.1999 at 4.15 P.M. He reported the following ante-mortem injuries:-
1. An oblique incised wound, 5.0 cms x 2 cms x muscle deep, on right lateral side of neck, 6.0 cms below from the right ear, major blood vessels are found cut.
2. An incised wound, 6.5 cms x 1.5 cms x mouth cavity deep, on right cheet, extending upto right angle of mouth.
3. A semilunar shaped incised wound, 9.0 cms x 2.5 cms x bone deep, on right mastoid area of skull, just posterior to right ear, fracture of bones visible.
4. A > shaped incised wound, 13.0 cms x 1.5 cms x bone deep, on posterior side of skull and posterior side of neck, skull are found incised cut; and (S10) vertebrae no.1 and spinal cord (partially) are found cut.
5. An incised wound, 6.0 cms x 2.0 cms x muscle deep on anterior side of left thigh, 8.0 cms above from the patella.
6. A linear abrasion, 5.0 cms x 0.2 cm on left thigh, 2.5 cms above from the injury no.5.
7. An incised wound, 6.0 cms x 3.0 cms x bone deep, on posterior side of right elbow, fractured bones are visible.
8. An incised wound, 4.5 cms x.2.0 cms x muscle deep, on left breast, just lateral to left nipple.
9. An incised wound, 8.0 cms x 4.0 cms x bone deep, on anterior, medial and posterior side of left forearm, just above to left wrist, cutting bones are visible.
10. An vertical incised wound, 6.0 cms x 1.5 cms x upto opposite side of the finger (through and through, on the left middle finger.
11. An incised wound, 3.5 cms x 1.0 cm x muscle deep, on right glutial region, 4.0 cms above from the anus.
The doctor was opining that all injuries could be caused involving the use of axe which was sufficient in ordinary course of nature to cause death.
P.W-2 stated that after two assaults, bhabhi (victim) fell, down, the autopsy indicates as many as 11 injuries, attributable to the use of an axe, P.W-2 also stated that she fervently pleaded her brother (accused) to spare her bhabhi (victim) but he paid no heed and continued with the assault. The evidence is clearly indicative of the fact that the accused- appellant did take an undue advantage and also acted in a cruel manner, disentitling him of the benefit of Exception (IV) to Section 300 IPC as all ingredients thereof are not established.
We, in view of above, are of the considered opinion that the impugned judgment/order convicting and sentencing the appellant under section 302 IPC, needs no interference, appeal is bereft of merit, liable to be dismissed.
The appeal is dismissed. The appellant is in jail.
Let this judgment/order be communicated to the Trial Court forthwith. Compliance report be submitted within 2 months.
Office of the Registrar General is directed to ensure a payment of Rs.10,000/- to Shri Vinod Kumar Sahu, learned Amicus for services rendered.
Order Date :- 30.5.2019 RS ( Umesh Kumar,J.) (Pankaj Naqvi,J.)