Criminal Appeal No. 6834 of 2018 · High Court
Case Details
Court No. - 44 Case :- CRIMINAL APPEAL No. 6834 of 2018 Appellant :- Shivakant Mishra Respondent :- State of U.P. Counsel for Appellant :- R.B. Sahai,Amrish Sahai Counsel for Respondent :- G.A. Hon'ble Dr. Kaushal Jayendra Thaker,J. Hon'ble Nalin Kumar Srivastava,J. (Per : Justice K.J. Thaker) 1. Heard Sri R.B. Sahai, Counsel for the appellant and the learned A.G.A. for the State. 2. This appeal challenges the judgment and order dated 16.10.2018 passed by First Additional Sessions Judge, Kanpur Dehat, in Sessions Trial No.64 of 2014 arising out of Case Crime No.152 of 2013 convicting accused- appellant under Section 302 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and sentenced him to undergo imprisonment for life with fine of Rs.50,000/- and in case of default of payment of fine, further to undergo six months additional imprisonment. 3.
Facts
The brief facts as culled out from the record are that Vivek Mishra was half mad and he could only shout. It is alleged that appellant was under influence of liquor and started beating Vivek when he was stopped, then he gave ballam blow to Satish. The incident happened all of a sudden and that is why the first information report was lodged under section 324 IPC and by later on after the death of Satish, it was converted under Section 302 of I.P. Code. 4. The accused is in jail since 21.7.2013. We are taking up this matter for final disposal as the Counsel for the appellant is under the impression that first bail application was rejected which has not been decided. The record is before us and we have perused the said record. 5. The trial being triable by sessions court, the learned Magistrate committed the case. On being summoned, the accused pleaded not guilty and wanted to be tried, hence, the trial started. the prosecution examined 9 witnesses who are as follows: 1 2 3 4 5 6 7 8 9 Pankaj Katiyar Rambharose Katiyar
Legal Reasoning
deceased or injure him. We are fortified in our view by the decision of the Apex Court in Khokan @ Khokhan Vishwas Vs. State of Chhattisgarh, Criminal Appeal No.121 of 2021, decided on 11.2.2021 and The State of Uttar Pradesh Vs. Subhash @ Pappu, Criminal Appeal No.436 of 2022, decided on 1.4.2022. 19. From the fact, it cannot be said that this is a clear case of acquittal. However, the alternative would be even according to PW1 – informant the incident took place on 16.7.2013 at 8:30 p.m. in the night. The incident happened when the accused was in influence of mind. The report was lodged by the complainant complaining under Section 324 of I.P. Code but later on the deceased breathed his last. There were inimical terms with the accused. The cases would not fall within the purview of Section 302 IPC, it would fall under Section 304 Part-I, hence, we reduce the sentence to 5 years and the fine is reduced to Rs. 5,000/-. The accused be set free if he has 6 completed 5 years of incarceration and pays Rs. 5,000/- within 4 weeks from the date of release, failing which he would be incarcerated by 6 months by resorting to proceedings which can be taken by the police authority through the concerned Chief Judicial Magistrate. 20. Appeal is partly allowed. Record and proceedings be sent back to the Court below forthwith. 21. This Court is thankful to Sri R.B. Sahai assisted by Sri S.D.S. Jadaun, who has assisted us as amicus curiae and Sri N.K. Srivastava for the State. Order Date :- 23.9.2022 Irshad Digitally signed by IRSHAD AHMAD SIDDIQUI Date: 2022.11.03 14:59:36 IST Reason: Location: High Court of Judicature at Allahabad 7
Arguments
Smt. Ramakanti Khushbu HCP Jag Narayan Singh Sub-Inspector Ram Milan Sharma Dr. Shishir Puri Dr. Shashikant Verma Gyaneshwar Yadav PW1 PW2 PW3 PW4 PW5 PW6 PW7 PW8 PW9 6. In support of ocular version following documents were filed: 1 F.I.R. 2 Written letter to C.M.O. 3 4 5 6 Panchayatnama Postmortem Report Site Plan Charge-sheet Ex.Ka.3 Ex.Ka.7 Ex. Ka.6 Ex.Ka.11 Ex.Ka.2 Ex.Ka.14 7. At the end of the trial and after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the 2 defence, the learned Sessions Judge convicted the appellant as mentioned aforesaid. 8. It is submitted by learned counsel for accused- appellant that the accused is in jail since 21.7.2013. It is further submitted that the accused has not committed any offence. He is innocent and the imprisonment is not called for. The conviction is against the evidence on record. On appreciation of evidence, the deceased was not of sound mind and it is alleged that the appellant should be granted benefit as he was under influence of alcohol and that he has started beating his brother. 9. It is also very improbable that when Vivek was shouting then why the appellant will cause injury to Satish deceased. It is a night incident and nobody has seen the incident and the appellant has been falsely implicated in the present case. It has come in the evidence that many people were standing at the time of incident when appellant came armed with Bhala but nobody tried to stop or caught hold of the appellant and only the related witnesses have been produced in the case. It is further submitted that PW1 and PW2 are all relatives and no independent witness has been examined. PW8 – doctor has stated that there was only one injury. The evidence of PW7 also would be very relevant and the appellant has himself examined DW1 and DW2. 10. In the alternative, learned Counsel has submitted that the incident happened all of a sudden and the evidence is very clear that it was not premeditated of the murder even if it is believed that the incident took place at night at 8:30 p.m. 11. It is submitted that at the most punishment can be under Section 304 II or Section 304 I of I.P.C. If the Court feels, as the accused has been in jail for more than 9 years without remission, the accused may be granted fixed term punishment of incarceration. 3 12. Learned A.G.A. for the state has vehemently submitted that facts of this case will not permit the Court to convert the sentence to that under Section 304 Part I of I.P.C. as none of the judgments relied by the accused- appellant will apply to the facts of this case. 13. Considering the evidence of the witnesses and also considering the medical evidence including post mortem report, there is no doubt left in our mind about the guilt of the present appellant. 14. However, the question which falls for our consideration is whether, on reappraisal of the peculiar facts and circumstances of the case, the conviction of the appellant under Section 302 of I.P.C. of the Indian Penal Code should be upheld or the conviction deserves to be converted under Section 304 Part-I or Part-II of the Indian Penal Code. It would be relevant to refer Section 299 of the Indian Penal Code, which read as under: “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." 15. The academic distinction between ‘murder’ and ‘culpable homicide not amounting to murder’ has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Section 299 and 300 of I.P.Code. The following comparative table will be helpful in 4 appreciating the points of distinction between the two offences. Section 299 Section 300 A person commits culpable homicide if the act by which the death is caused is done- Subject to certain exceptions culpable homicide is murder is the act by which the death is caused is done. INTENTION (a) with the intention of causing death; or (1) with the intention of causing death; or (b) with the intention of causing such bodily injury as is likely to cause death; or (2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; KNOWLEDGE KNOWLEDGE (c) with the knowledge that the act is likely to cause death. (4) with the knowledge that the act is so immediately dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above. 16. On overall scrutiny of the facts and circumstances of the present case coupled with the opinion of the Medical Officer and considering the principle laid down by the Apex Court in the Case of Tukaram and Ors Vs. State of Maharashtra, reported in (2011) 4 SCC 250 and in the case of B.N. Kavatakar and Another Vs. State of Karnataka, reported in 1994 SUPP (1) SCC 304, we are of 5 the considered opinion that the offence would be one punishable under Section 304 part-I of the IPC. 17. From the upshot of the aforesaid discussions, it appears that the death caused by the accused was not premeditated, accused had no intention to cause death of deceased, the injuries were though sufficient in the ordinary course of nature to have caused death, accused had no intention to do away with deceased, hence the instant case falls under the Exceptions 1 and 4 to Section 300 of IPC. While considering Section 299 as reproduced herein above offence committed will fall under Section 304 Part-I as per the observations of the Apex Court in Veeran and others Vs. State of M.P. Decided, (2011) 5 SCR 300 which have to be also kept in mind. 18. This Court holds that looking to the factual data and as ingredients of Section 34 I.P. Code are not proved, as, there was no common intention to do away with the