Partly allowed

Gaurav Kumar Srivastava v. State of U.P.

Allahabad HC3 Dec 2021JAPL/4556/2014

Case brief

AI extract

What is this about?

The High Court allowed this appeal partially, converting the appellant's conviction from murder (Section 302 IPC) to culpable homicide not amounting to murder (Section 304 Part I IPC) due to lack of specific intent to kill and absence of disclosed motive regarding the accused's relationship with the deceased mother.

What did the court decide?

Conviction under Section 302 IPC converted to Section 304 Part I IPC; sentence imposed to 10 years rigorous imprisonment and fine of Rs.5,000/.

Gaurav Kumar Srivastava Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2021)

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AFR

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Court No. - 45

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Case :- JAIL APPEAL No. - 4556 of 2014

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Appellant :- Gaurav Kumar Srivastava Respondent :- State of U.P. Counsel for Appellant :- From Jail,Amit Tripathi,Santosh Kumar Yadav Counsel for Respondent :- A.G.A.

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. Hon'ble Dr. Kaushal Jayendra Thaker, J . Hon'ble Ajai Tyagi, J

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(Oral judgment by Hon'ble Ajai Tyagi, J.)

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1. This appeal has been preferred by the appellant- Gaurav Kumar Srivastava against the judgment and order dated 28.08.2014, passed by Additional Sessions Judge, Farrukhabad, in Session Trial No.117 of 2012 (State vs. Gaurav Kumar Srivastava) arising out of Case Crime No.137 of 2012 under Section 302 IPC, Police Station-Kamlaganj, DistrictFarrukhabad, whereby the appellant-accused was convicted and sentenced for life imprisonment and fine of Rs.5,000/- under Section 302 IPC. He was further directed to undergo six months of simple imprisonment, in case of default of fine.

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2. The brief facts of this case are that on 31.03.2012, a written report was submitted by complainant Sitaram at Police Station- Kamalganj, District- Farrukhabad stating that besides his

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house in village Sindhirampur, there is house of his elder sister Smt. Phoolan Devi, wife of late Rakesh Chandra. Today on 31.03.2012 at about 10:30 PM, Phoolan Devi’s son Gaurav Kumar had murdered his mother Phoolan Devi by using Danda. On hearing the noise, he and Ram Saran of his village ran to the place of occurrence and saw the occurrence. They tried to catch Gaurav but he ran away. On the basis of this written report, a first information was registered at police station- Kamalganj on Case Crime No.137 of 2012 under Section 302 IPC.

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3. S.I. Raj Kishore Awasthi took up the investigation. Inquest proceedings of deceased Phoolan Devi were conducted. Post mortem was conducted by Dr. Kamlesh Kumar Sharma and post mortem report was prepared. During the course of investigation, the I.O. recorded the statements of witnesses under Section 161 Cr.P.C., site-plan was prepared. Accused was arrested and the Danda, used in crime, was recovered on his pointing out from his house, which was sent for chemical examination, the report of which indicated that it was having blood stains. After completing the investigation, I.O. submitted charge sheet against the accusedappellant. The case being exclusively triable by court of sessions was committed to the sessions court by the competent Magistrate for trial.

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4. Learned trial court framed charges against the accused-appellant under Section 302 IPC. The accused denied the charges and claimed to be tried.

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5. To bring home the charges, the prosecution produced following witnesses, namely:

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1	Sitaram	PW1
2.	Ram Saran	PW2
3.	Constable Devendra Kumar Singh	PW3
4.	Dr. Kamlesh Kumar Sharma	PW4
5.	S.I. Raj Kishore Awasthi	PW5
6.	S.I. Sunil Kumar Tiwari	PW6

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6. In support of the ocular version of the witnesses, following documents were produced by prosecution and contents were proved by leading the evidence:

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1.	Written Report	Ex. Ka1
2.	FIR	Ex. Ka2
3.	Recovery-memo of blood- stained and plain-earth	Ex. Ka12
4.	Recovery-memo of Danda	Ex. Ka13
5.	P.M. Report	Ex. Ka4
6.	Panchayatnama	Ex. Ka6
7.	Charge-sheet	Ex. Ka15
8.	Report of FSL	Ex. Ka12

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7. Statement of accused was recorded under Section 313 Cr.P.C., in which he said that false

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evidence is produced against him. The accused did not examine any witness in defence.

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8. We have heard Shri Santosh Kumar Yadav, learned Amicus Curiae appearing for the appellant, Shri Vikash Goswami, learned AGA for the State and perused the record.

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9. Learned counsel for the appellant first of all submitted that in this case, complainant has not disclosed any motive of the crime in FIR nor the witnesses of fact made any statement regarding motive before the learned trial court. There was no occasion and no reason for appellant to commit the murder of his own mother. Therefore, silence of motive creates a big doubt on prosecution case and it cannot be inferred that accused-appellant committed the crime. It is also submitted that PW1 Sitaram is complainant and in his statement, he has clearly stated that he wrote the report of this case on dictation of SubInspector of police. It clearly indicates that appellant is falsely implicated by the complainant with the consultation of the police.

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10. Learned counsel for the appellant vehemently submitted that there is no eyewitness of the occurrence. Prosecution has produced two witnesses of fact, namely, PW1Sitaram and PW2- Ram Saran. PW1- Sitaram has

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deposed that when he reached to the scene of crime, accused Gaurav was not there. Lastly in his statement, he has specifically said that he could not tell who had murdered Phoolan Devi. He was not on the spot, so he could not tell that she was murdered by miscreants or some other persons. It shows that PW1 has not seen any occurrence, therefore, his testimony cannot be relied on. It is further submitted that PW2- Ram Saran is also not the eye-witness. He has said in his cross-examination that he was the first person to reach at the place of occurrence and saw the incident with his own eyes but complainant PW1 has stated that when he reached to the place of occurrence, Gaurav was not there and the people, who reached to the spot after him, also did not see Gaurav at the place of occurrence. Hence, on the basis of aforesaid statement, made by the PW1, the statement of PW2- Ram Saran becomes falsified that he saw the occurrence.

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11. Learned counsel for the appellant next submitted that as per statement of PW1, Virendra and Munnilal reached to the spot prior to him but these Virendra and Munnilal were not produced by the prosecution in evidence. Regarding the recovery of Danda, the learned counsel submitted that false recovery of Danda is made by the police and Danda is planted. Moreover, it is recovered from inside the Chhappar of the house

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of the appellant, where it is not natural that a person after committing the crime like murder will hide the Danda in his own house. So the recovery of Danda is made by the police is falsified to give the colour to the case and learned trial court has not rightly appreciated the evidence and convicted the appellant without any direct or circumstantial evidence on record.

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12. Learned AGA for the State rebutted the arguments advanced on behalf of the appellant and submitted that PW1 and PW2 supported the prosecution version and if there are any minor contradiction, it does weaken the prosecution case. It is also submitted that the report of FSL shows that blood was found on the Danda, recovered on the pointing out of the appellant. It further strengthens the prosecution case. Learned AGA attracted our attention towards post mortem report of deceased Ex.Ka4 and submitted that there were six ante mortem injuries found on the body of the deceased and such type of injuries could be inflicted by Danda. In this way, statement of PW1 and PW2 are corroborated by medical evidence.

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13. We sift the evidence on record, keeping in view the rules of appreciation of evidence. Prosecution has produced two witnesses of fact, namely, PW1- Sitaram, who is the complainant

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and PW2- Ram Saran, who is said to be the eyewitness as per first information report. Complainant also claims himself to be eyewitness in FIR but perusal of statement of PW1 clearly shows that he is not eye-witness at all because in FIR and examination-in-chief, he has stated that he reached on the spot and tried to catch the appellant-Gaurav but could not do so. While in examination-in-chief, he has specifically stated that he reached to the spot after 10 minutes of hearing the noise and did not find Gaurav there. At the end of his crossexamination, he has very clearly stated that he could not tell as to who murdered the Phoolan Devi because he was not on the spot and he could not even tell whether some miscreants murdered her or any other person. So, PW1 is not at all eye-witness of this case. PW2- Ram Saran has said that he reached on the spot and tried to catch Gaurav but he succeeded to run away due to dark night but it is pertinent to mention that PW2- Ram Saran and appellant were having enmity as stated by complainant PW1 on account of purchase of some land by PW2 Ram Saran from father of the appellant.

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14. It is relevant that Danda was recovered by the investigating officer on the pointing out of appellant from inside the Chhappar of his house and in FSL, blood was found on it.

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15. We have perused the post mortem report and considered the ante mortem injuries. Post mortem report is proved by PW4- Dr. Kamlesh Kumar Sharma.

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16. Considering the evidence of these witnesses and also considering the medical evidence including postmortem report, there is no doubt left in our mind about the guilt of the present appellant. 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 IPC 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 reads as under:

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" 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."

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17. 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

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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 Sections 299 and 300 IPC. The following comparative table will be helpful in appreciating the points of distinction between the two offences.

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Section 299	Section 300
A person commits culpable homicide if the act by which the death is caused is done. INTEN	Subject to certain exceptions, culpable homicide is murder is the act by which the death is caused is done. TION
(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.

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18. In the case in hand, PW4- Kamlesh Kumar Sharma found following ante mortem injuries on the body of the deceased:-

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(i) Lacerated wound 5x2cm bone deep over nose and middle part of forehead underline bone fracture.

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(ii) Lacerated wound 3.5x1.5cm bone deep over right cheek underline bone fracture.

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(iii) Lacerated wound 3x1 cm bone deep just below injury No.2.

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(iv) Lacerated wound 1.5x1 cm right angle of mouth and rounded by abraded contusion measuring marks 4x2 cm and 2x1.5 cm and neck bone was fractured.

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(v) Multiple abraded contusion on abdomen measuring 4x1.5 cm.

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(vi) Contusion 3.5x2 cm on right shoulder.

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19. In his opinion Dr. Kamlesh Kumar Sharma PW4 has stated that cause of death could be by strangulation and injuries sustained in neck and on head. But in his cross-examination doctor has specifically stated that there were no signs/marks of strangulation. Therefore, keeping in view the entire evidence, oral as well as documentary, it comes in our mind that injury No.1, which was on the forehead, was responsible for the death of the deceased because injury No.4 in which part of hyoid bone was found fractured could be due to strangulation but as per medical evidence there were no signs of strangulation. In this way, injury No.4 does not match with the committing the

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crime as stated by the complainant in his FIR and statements of PW1 and PW2.

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20. On overall scrutiny of the facts and circumstances of the case coupled with the opinion of the medical officer and considering the principle laid down by the Hon'ble Apex Court in the case of Tuka Ram and others vs. State of Maharashtra [(2011) 4 SCC 250] and in the case of BN Kavadakar and another vs. State of Karnataka [1994 Supp (1) 304], we are of the considered opinion that the offence would be punishable under Section 304 (Part-I) IPC.

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21. From the upshot of the aforesaid discussion, it appears that the death of deceased, caused by the appellant, was not intended because prosecution has not disclosed any motive. In this case, motive has great relevance because the relation between the appellant and deceased was of son and mother. There could be some motive for the son to kill his mother. PW2- Ram Saran, inimical witness, also said in his statement that he never saw any altercation between appellant and his mother prior to this occurrence. Hence, it can be safely assumed that killing of his mother was never intended by the accused-appellant though the injuries were sufficient in the ordinary course of nature to cause death, therefore, the

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instant case false under the Exceptions 1 and 4 to Section 300 IPC.

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22. In the light of the foregoing discussions, the appeal is liable to be allowed in part. Appellant is held guilty for commission of the offence under Section 304 (Part-I) IPC instead of offence under Section 302 IPC.

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23. Hence, the conviction and sentence awarded to the appellant for the offence under Section 302 IPC is converted into the offence under Section 304 (Part-I) IPC and appellant is sentenced under Section 304 (Part-I) IPC for 10 years rigorous imprisonment and fine of Rs.5,000/-. The appellant shall undergo further simple imprisonment for one year in case of default of fine.

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24. Accordingly, the appeal is partly allowed, as modified above.

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(Ajai Tyagi, J.) (Dr. Kaushal Jayendra Thaker, J.)

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Order Date :- 03.12.2021 Ashutosh Pandey

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Gaurav Kumar Srivastava v. State of U.P.

Case brief

What is this about?

What did the court decide?

Gaurav Kumar Srivastava v. State of U.P.

Case brief

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