Partly allowed

Avesh and Others v. State of U.P.

Allahabad HC15 Mar 2023CRLA/2352/1983

Case brief

AI extract

What is this about?

This High Court examined a criminal appeal regarding a death arising from a beating. The Court found the incident was triggered by grave provocation with no premeditation, holding the accused guilty of culpable homicide not amounting to murder. After finding a conviction insufficient in one appeal, the Court enhanced the charge and, considering the long delay and appellant's conduct, awarded a fin

What did the court decide?

Government Appeal No. 9 of 1984 partly allowed to enhance conviction to culpable homicide not amounting to murder; sentence substituted to fine of Rs. 50,000 or one year rigorous imprisonment on defau

Avesh and Others Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2023)

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Court No. - 48

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Case :- CRIMINAL APPEAL No. - 2352 of 1983

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Appellant :- Avesh And Others Respondent :- State of U.P. Counsel for Appellant :- V.S.Chaudhary,Apul Misra,G.S.Chaturvedi,P.C.Chaturvedi,Sharad Kumar Srivastava Counsel for Respondent :- A.G.A.

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With

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Case :- GOVERNMENT APPEAL No. - 9 of 1984

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Appellant :- State of U.P. Respondent :- Avesh And Others Counsel for Appellant :- A.G.A. Counsel for Respondent :- V.S. Chaudhary,Apul Misra,Hari Om Khare,Rahul Kumar Tyagi,S.Shahnawaz Shah,Sharad Kumar Srivastava

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And

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Case :- GOVERNMENT APPEAL No. - 10 of 1984

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Appellant :- State of U.P. Respondent :- Avesh And Others Counsel for Appellant :- A.G.A. Counsel for Respondent :- G.S. Chaturvedi,Apul Misra,Sharad Kumar Srivastava

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Hon'ble Siddhartha Varma,J. Hon'ble Manish Kumar Nigam,J.

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On 4.9.1984, leave to appeal was granted in the Government Appeal No. 10 of 1984. We also admit the Government Appeal No. 10 of 1984 today. Since the parties are represented, no further notice is being issued and the Government Appeals along with Criminal Appeal No. 2352 of 1983 are being heard.

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Upon an incident having taken place on 28.7.1980 at 10:00 a.m. a First Information Report was lodged on the very same day at 10:50 a.m. under Section 325 against Avesh, Jakir, Akib and

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Jafar. The injured, namely, Mahboob was examined and an injury report was prepared. Thereafter, when the injured Mahboob died on the very same day at 4.45 p.m. a post portem was conducted on the dead body. As stated earlier, preceding the post mortem, there was a First Information Report already lodged under Section 325 I.P.C. Thereupon investigation took place and the Police submitted its charge sheet under Section 302 I.P.C. read with Section 34 I.P.C. The trial commenced upon the framing of charges by the Vth Additional Sessions Judge, Meerut, on 15.7.1982. Four accused, namely, Avesh, Jakir, Akib and Jafar were charged under Section 302 IPC read with Section 34 IPC. The prosecution to prove its case, examined Baluram as P.W. 1 who scribed the First Information Report. Din Mohd son of Wajir, who was the father of the deceased and also the eyewitness & first informant was produced as P.W. -2. Dr. N.S. Pal who conducted the post mortem of the dead body and also proved the post mortem report was produced as P.W.-3. Another person called Din Mohammad son of Ibrahim was produced as P.W. -4. Dr. S.C. Goel who had examined the injuries on the body of the deceased before he died was produced as P.W.-5. Sri K.P. Singh, Constable Hari Singh and S.I. Mahendra Prakash were formal witnesses etc.

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After the trial took place, the IVth Additional Sessions Judge, Meerut, on 24.9.1983 using his powers under 221(2) and 222 of the Cr.P.C. reduced the charges from under Section 302/34 IPC to Section 325/34 IPC and convicted the accused under Section 325/34 IPC for two years of rigorous imprisonments along with a fine of Rs. 500/- each.

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Aggrieved thereof two Government Appeals have been filed by the State. The first appeal being Government Appeal No. 9 of 1984 has been filed with a prayer for enhancing the sentence

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and the second appeal being Government Appeal No. 10 of 1984 has been filed against the acquittal which had taken place of the accused under Section 302 IPC read with Section 34 IPC. A criminal appeal being Criminal Appeal No. 2352 of 1983 was also filed by the accused-persons against the order of conviction dated 24.9.1983 under Section 325 read with Section 34 IPC

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We have heard the learned AGA Sri S.N. Mishra on behalf of the State and Sri Apul Mishra for the accused-opposite party no. 3, Akib, in Government Appeals No. 9 & 10 of 1984 and for the appellant no. 2, namely, Akib in Criminal Appeal No. 2352 of 1983. Vis-a-vis the appellate no. 1, 3 and 4, namely, Avesh, Jakir and Jafar, the appeal no. 2352 of 1983 had abated.

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The case of the prosecution was proved by the production of P.W.-1, Baluram who had scribed the First Information Report. He had categorically stated that on 28.7.1980, Din Mohd., the father of the deceased had come to him and had asked him to write the First Information Report for him. He had after having written the first information report read out the contents of the First Information Report to Sri Din Mohd and had also explained the same to Din Mohd., the father of the deceased who was also the first informant. The P.W. - 2, Din Mohd. was the father of the deceased and he had also lodged the First Information Report. He in his testimony had stated the manner in which the four accused persons had accosted his son and thereafter had beaten him to the extent that thereafter he had died. The P.W. - 3 is the doctor who had proved the post mortem and had categorically stated that the death had taken place on account of the fact that there were injuries sufficient for killing a person. He has also given the cause of death as shock and haemorrhage. The P.W.-4 is another eye-witness who was also called as Din Mohd. Dr. S.C. Goel who is P.W. -5, has

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proven the injury report and had stated that the injuries were simple in nature.

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Learned counsel for the State has argued that when the P.W. -3 had stated that the death had occurred due to shock and haemorrhage and there were four persons who had all of a sudden approached the victim then it could not be said that the case would be covered within the offence under Section 325 IPC. He submitted that four accused definitely had knowledge that their acts would cause the death of the deceased even if they had no intention to cause the same.

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Learned counsel for the State fairly concedes that from the statements made by the various prosecution witnesses, motive for killing the deceased was not there and he, therefore, submitted that the accused be punished for having committed the offence of culpable homicide not amounting to murder.

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In reply, Sri Apul Mishra, however, submitted that if the statement of P.W.-5 is perused, it would be clear that there were only simple injuries and no injury was such which could have led to the death of the deceased- Mahboob. He further submitted that throughout from the statements of the prosecution witnesses it could not be gleaned out that there was any motive whatsoever for the killing of the deceased - Mahboob. Further, he has submitted that the incident occurred at the spur of the moment on grave provocation. There was no premeditation and also absolutely there was no mens rea to kill the deceased.

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Having heard the learned counsel for the State in Government Appeals No. 9 & 10 of 1984 and Sri Apul Mishra in Criminal Appeal No. 2352 of 1983, we are of the view that there is absolutely no merit in the Criminal Appeal No. 2352 of 1983. The incident had occurred and was proved. The deceased -

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Mahboob due to injuries cause to him had died and, therefore, we are not inclined to interfere in the Criminal Appeal No. 2352 of 1983. So far as the Government Appeal No. 9 of 1984 is concerned, we are of the view that the injuries and post-mortem report have been proven by the P.W.-3, the Doctor. The cause of death was due to shock and haemorrhage and upon the perusal of the post mortem report, we are also of the view that the accused-persons when had inflicted blows they had knowledge of the fact that the blows in all likelihood would cause death. However, since there was no intention to kill the deceased and everything happened at the spur of the moment, we are of the view that the accused ought to have been punished under Part -II of Section 304 IPC read with Section 34 IPC.

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During the pendency of the instant Criminal Appeal, the accused, Avesh, Jakir and Jafar have died, therefore, all the three appeals have abated against them.

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These appeals were heard for the accused- Akib only.

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Since we have found that the accused Akib was guilty under Part - II of Section 304 IPC read with Section 34, we partly allow the Government Appeal No. 9 of 1984 and dismiss the Government Appeal No. 10 of 1984. The Criminal Appeal No. 2352 of 1983 also, for reasons recorded earlier in this judgement, is dismissed .

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The incident was of 28.7.1980. The accused Akib, on 5.8.1983, when he had given his statement under Section 313 Cr.P.C. was aged about 22 years. Learned counsel for the accused- Akib, Sri Apul Mishra has, therefore, submitted on the question of sentence that the sentence might be reduced to the minimum possible punishment under Part -II of Section 304 IPC. He submits that the accused had sufficiently suffered during the pendency of the appeal as he had undergone sufficient trauma.

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He, therefore, submits that he be punished only with some fine.

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Learned AGA, however, opposed this proposition and he submitted that the deceased had died and, therefore, the maximum possible punishment under Part- II of Section 304 IPC be awarded to the accused.

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Having heard Sri Apul Mishra learned counsel for the appellant- Akib and the learned AGA for the State on the question of sentence, we are of the view that the incident is of 28.7.1980 and almost 43 years have elapsed. No useful purpose would now be served by sending the appellant to jail. The appellant, it has been informed, has never indulged in any criminal activities after being released on bail. We are, therefore, of the view that the accused appellant in Government Appeal No. 9 of 1984 who has now been punished under Part - II of Section 304 IPC may be punished with a fine of Rs. 50,000/-, which shall be payable within a period of 6 months from today. If the accused - Akib defaults in depositing the fine, he shall undergo a sentence of rigorous imprisonment of one year.

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Order Date :- 15.3.2023 PK

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(Manish Kumar Nigam,J.)......(Siddhartha Varma,J.)

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Digitally signed by :- PRAVEEN KUMAR High Court of Judicature at Allahabad

Avesh and Others v. State of U.P.

Case brief

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Avesh and Others v. State of U.P.

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