Vijay Lakshmi, J.
This is a jail appeal preferred by the appellant Sriram Paswan who is aggrieved by the impugned judgment and order dated 30.6.2017 passed by the learned Additional Sessions Judge, Court No. 3, Kushinagar at Padrauna in Sessions Trial No. 25 of 2006 (State Vs. Sriram Paswan) arising out of Case Crime No. 197 of 2005, under Sections 3054 I.P.C., Police Station Ramkola, district Kushinagar whereby the learned Additional Sessions Judge has sentenced the appellant for 10 years R.I. and fine of Rs. 10,000/- under Section 304 I.P.C.. In default of payment of fine, the appellant has to undergo 6 months additional imprisonment.
Heard Km. Rashmi Srivastava, learned Amicus Curiae, appearing for the appellant and learned A.G.A. on behalf of the State.
The facts giving rise to this appeal are that on 18.6.2005 at 9.15 P.M., a written report (Ex. Ka. 1) was submitted by the complainant Raju Paswan at Police Station Ram Kola to the effect that in the evening (on the same day) at about 5.30 P.M. when his 13 years old son Mantu was sleeping on the heap of paddy straw of Buddhu, Sriram Paswan (appellant) suddenly came there and hit a wooden cricket bat on the head of his son with full force causing serious injuries. The witnesses Sonarika, Tirkath and Ram Nayan had seen the occurrence. His son died on the way to the hospital. The dead body of Mantu was brought back to the house of complainant and the report was lodged, on the basis of which Case Crime No. 197 of 2005 under Section 304 I.P.C. was registered against the appellant Sriram Paswan and the matter was investigated. After investigation, charges
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heet under Section 304 of I.P.C. was submitted by the investigating officer against the appellant.
The dead body of the deceased Mantu was sent for post-mortem. The doctor found the following ante-mortem injuries on the body of the deceased during post-mortem :-
1. Lacerated wound 11 cms. X 2 cms. Scalp deep over top of head 13 cms. Above from right ear.
2. Parietal bone and occipital bone both were found fractured.
3. Clotted blood about 500 ml. serum was found present in occipital region of skull cavity.
Both chambers of heart were found empty.
According to the doctor, the cause of death was haemorrhage, shock and coma due to ante-mortem head injury.
The charge under Section 304 I.P.C. was framed against the appellant in the trial court from which he denied and claimed to be tried.
The prosecution in order to prove its case produced 7 witnesses in all. The brief description of the witnesses is as under :-
P.W. 1 is the complainant Raju Paswan who is the father of the deceased.
P.W. 2 is Sonarika who is named in the F.I.R. as an eye witness.
P.W. 3 Tirath is also an eye witness whose name is mentioned in the FI.R.
P.W. 4 Asha Paswan is a witness of recovery of the bat which was used as weapon of offence.
P.W. 5 Jagar Narayan is a witness of inquest.
P.W. 6 Dr. S.N. Tripathi is the doctor who has conducted the autopsy.
P.W. 7 Ram Darash Yadav is the Investigating Officer of the case.
After conclusion of the prosecution evidence, the statement of accused-appellant was recorded under Section 313 Cr.P.C. in which he denied from the truthfulness of the all the allegations and stated that he is innocent. However, the accused appellant did not produce any witness in his defence.
The learned trial court after taking into consideration all the evidence available on record, held the appellant guilty under Section 304 of I.P.C. and punished him as aforesaid.
The legality and correctness of the impugned judgment has been challenged in this appeal mainly on the following grounds :-
1. The F.I.R. is ante-timed. The occurrence has taken place at 5.30 P.M. in the evening and the F.I.R. has been lodged at 9.15 P.M. on the same day whereas the distance between the place of occurrence and police station is 9 kms. and it is not possible in the villages to travel the distance of 9 kms. within such a short time.
2. No motive has been assigned either in the F.I.R. or in the statements of the witnesses for committing such heinous offence.
3. Only a single assault on the head of deceased has been caused and there is no repetition, therefore, it cannot be said that the appellant had any intention to kill the deceased.
4. The appellant has not been arrested on the spot whereas the natural circumstance in this case would have been that if four witnesses including the father of the deceased were present on the spot, who were seeing the occurrence, they should have apprehended the appellant then and there. The occurrence is of 18.6.2005 and the appellant has been arrested on 19.6.2005.
5. The wooden bat used as weapon of offence has not been produced in court.
6. The witness Sonarika is a chance witness which is evident from a perusal of site plan which does not show the house of Sonarika at the spot.
7. The place of occurrence is not proved because the blood stained paddy straw has not been sent for forensic examination.
8. There is material contradiction in the statements of eye witnesses. P.W. 1 has stated that during inquest proceedings, he saw that the right hand of his son fractured. However, in the post-mortem report there is no mention of any injury on the right hand of the deceased.
9. The learned court below has wrongly convicted the appellant under Section 304 (1) of I.P.C. because in order to constitute an offence under Section 304(1) I.P.C., the presence of intention as well as knowledge on the part of the accused are necessary whereas in the present case, in absence of any motive and due to a single injury, it cannot be said that there was any intention with the appellant to kill the deceased. To a maximum only it can be said that the appellant had knowledge that if he would hit any person on his head with full force, the injury may prove fatal.
10. The appellant has no criminal antecedent. He has already spent more than 9 years in jail, therefore, a lenient view be taken in this matter.
Per contra, learned A.G.A. has vehemently contested the appeal by arguing that there is sufficient evidence showing the involvement of appellant in commission of the offence. The learned trial court has considered and discussed each and every aspect of the matter and after hearing learned counsel for the parties at length, has passed the impugned judgment, giving cogent reasons for the conviction of appellant. The impugned judgment and order does not suffer from any infirmity, illegality or defect requiring any interference of this Court, therefore, the appeal be dismissed.
I have considered the rival contentions advanced by learned counsel for both the parties in the light of evidence available on the original records.
So far as the argument advanced by learned Amicus Curiae regarding the ante timed F.I.R. is concerned, I do not find any force in the aforesaid argument. The occurrence is of 5.30 P.M. and the F.I.R. has been lodged at 9.15 P.M. on the same day. The distance between the place of occurrence and the police station is 9 kms and it is possible to cover such distance within four hours even in the villages. Hence it cannot be said that the F.I.R. was ante-timed.
The argument advanced by learned Amicus Curiae that the appellant was not arrested on the spot but on the next day has also no force. The eye witnesses P.W. 2 and P.W. 3 have stated that they tried to apprehend the accused but he ran away. As the accused had absconded, he could be arrested on the next day. Only on the ground of delay of one day in his arrest, the whole prosecution case can not be discarded.
In so far as the 'motive' part is concerned, it is well settled legal principle that where eye witness account of an incident is available, the motive pales into insignificance. In the present case, there is evidence of 3 eye witnesses i.e. P.W. 1, P.W. 2 and P.W. 3 and all of them have categorically stated that they have seen the appellant hitting on the head of the deceased with full force by a wooden bat.
All these witnesses have been cross-examined at length by learned defence counsel but nothing could be elicited to cast a shadow of doubt on their testimony.
Only on the ground that the house of eye witness Sonarika has not been shown in the site plan by the I.O., his presence on spot cannot be doubted and he cannot be termed as a chance witness.
Sonarika has been examined as P.W. 2 who has fully supported the prosecution case. He has been cross-examined at length by learned defence counsel about the situation of his house and he has given natural answers to all the questions put to him. He has also stated that there is no enmity between him and the appellant Sriram Paswan. In absence of any enmity, there was no reason for P.W. 2 Sonarika to falsely implicate the appellant.
The I.O. who has prepared the site plan has been examined as P.W. 7 but no question was put to him by learned defence counsel about the reason for not showing the house of Sonarika in the site plan. It may be a lacuna on the part of I.O. and it is well settled that the latches and lacuna on the part of I.O. will not give any benefit to the accused and any lapse in the investigation will not effect the core of prosecution case.
In State of Karnataka vs. K. Yarappa Reddy, (1999) 8 SCC 715, the Apex Court Court held as under:
".....It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the court in the case cannot be allowed to depend solely on the probity of investigation. It is well-nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinized independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and pre-eminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer's suspicious role in the case...."
Likewise only on the ground that the blood stained paddy straw was not sent for forensic examination, it can not be said that no such blood stained paddy straw was recovered by the I.O. The Ext. Ka. 6 which is the recovery memo of blood stained paddy straw has been signed by the witnesses and duly proved by the Investigating Officer (PW 7), fully corroborates the prosecution case.
The blood stained wooden bat, used as weapon of offence, has been recovered by the police at the instance of accused-appellant who after his confessional statement has given it to the police after taking it out from a heap of bamboos which is not an open place and the recovery has been proved by cogent evidence by the prosecution. The recovery memo of bat is Ext. Ka. 2, which has been signed by the witnesses and PW-4 Asha Paswan, who is the witness of recovery has duly proved it during trial.
Learned Amicus Curiae has vehemently argued that the essential ingredients of Section 304 (I) are missing in the present case. He has contended that as there was no repetition of the assault by the accused and no lethal weapon like firearm or sharp edged weapon was used, it cannot be said that the appellant had any intention to kill the deceased.
Offence of culpable homicide has been defined in section 299 of I.P.C. and Section 304 of I.P.C. provides for its punishment. Whether the act committed by the accused-appellant will be covered by part (i) or Part (ii) of Section 304 I.P.C. depends on the fact that whether the accused had any intention to cause death or whether he had no intention to cause death but he had the knowledge that the injury caused by him is likely to cause death.
For a ready reference Section 304 of I.P.C. is reproduced below :-
"304. Punishment for culpable homicide not amounting to murder.--Whoever commits culpable homicide not amounting to murder shall be punished with 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."
The evidence available on the record in the present case shows that only a single blow of bat has been inflicted on the head of the deceased by the accused. There was no repetition of assault. However, the wooden bat has been used with such a force on the head of the deceased that even a single blow has caused fractures in occipital and parietal bones of the deceased causing his death.
The appellant in the memo of appeal has stated that he is a mentally weak person. The case diary is available on record and the court may also peruse it for coming to a right conclusion. The confessional statement of the appellant recorded by the I.O. on the next day of occurrence is available in the case diary, which shows that though the appellant was aged about 30-32 years at the time of occurrence but his behaviour was like an immature person. His cricket ball had been torn, he had a bat but without a ball he was unable to play cricket. The deceased had a cricket ball of his own. The appellant went to him and asked him to give his ball to him for playing. The deceased was sleeping at that time on the heap of paddy straw. He was unwilling to disturb his sleep so he refused to rise from his sleep and to give him the ball. On this, the appellant got so enraged and furious that he hit the bat on the head of the deceased with full force. Thus, it is apparent that on a small issue, the occurrence has taken place in a heat of passion and without any premeditation. Therefore, it cannot be said that the appellant at that time had any intention to kill the deceased.
In Asu Vs. State of Rajasthan; 2000 Cr.L.J. 207 the case was converted from Section 304(i) to 304(ii) on the ground that the accused who inflicted fatal injury on the head of the deceased causing his death, had no intention to kill him.
Considering the facts of the present case, this court is of the considered view although it can be assumed that while hitting the deceased with such force so as to cause fracture in his occipital and parietal bones, the accused/ appellant must have had the knowledge that the injury he was causing is of such nature which is likely to cause death but in no case, the intention to kill can be attributed to the appellant. In view of the above, the conviction and sentence of the accused-appellant deserves to be altered/modified from Section 304(i) to Section 304(ii) of I.P.C.
Under Section 304(ii) the maximum punishment is 10 years imprisonment or fine or with both. As per the report of Jail Superintendent, District Jail Deoria, dated 14.12.2017 the appellant had already undergone about 8 years 7 months and 11 days in jail on 14.12.2017. Thus, the appellant has already suffered more than 9 years in jail till date.
In view of all the facts and circumstances, the appeal is partly allowed and the sentence of the appellant is reduced to the period already undergone by him, which includes the default imprisonment of fine also.
The appellant be released from jail forthwith, if not wanted in any other case.
Km. Rashmi Srivastava, the Amicus Curiae, who has very efficiently assisted the court shall be paid Rs. 11,000/- (eleven thousand) as fee.
Let a copy of this order be sent forthwith through fax to the court concerned for necessary compliance. Lower Court's record be also sent back to the court concerned.