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PETITIONER: STATE OF U.P.

       Vs.

RESPONDENT: INDRAJEET @ SUKHATHA

DATE OF JUDGMENT:       25/08/2000

BENCH: Doraswamy Raju, M.Jagannadhi Rao

JUDGMENT:

     Raju, J.

     Special leave granted.  The State of Uttar Pradesh has come  up in appeal against the judgment dated 13.2.98 of the Division  Bench  of  the Allahabad High  Court  in  Criminal Appeal  No.1299  of  1991  altering the  conviction  of  the respondent  from  one under Sections 307 and 302, IPC,  into one  under  Sections 302 and 304 Part-II substituting, as  a consequence  thereof,  the sentence of five years R.I.   and life   imprisonment  under  Sections   307  and  302,   IPC, respectively with five years R.I.  and ten years R.I.

     The  case of the prosecution is that the respondent, a Carpenter  by profession, at about 4 a.m.  in the morning of 14.9.1988  entered  the Jhopri (hut) of one Hori Lal,  PW-2, who  gave  the  first  information  with  reference  to  the occurrence and is said to be the father of the deceased, and started  assaulting  Km.   Phoolmati,  the  victim,  with  a rukhani (an implement normally used by the Carpenters).  She raised an alarm on which PW-2 and Kalawati, PW-1, the mother of  the  victim, woke up and tried to intervene, but in  the process  the respondent gave some blows to them as well  and after  throwing away the rukhani he ran away from the place. The respondent was identified in the light of a burning lamp and  on lodging a complaint at 5.15 a.m., the Police arrived at  the scene of occurrence.  The victim was taken to Ursala Hospital  but was said to have succumbed to her injuries  by the  time  she reached the Hospital.  PWs-1 and 2 were  also medically examined at 6.00 a.m.  by PW-3, Dr.  P.N.  Bajpai. PW-6,  S.S.I.,  incharge of the Police Station at Juhi  when the  FIR was lodged, commenced investigation of the case and after  examining  in  the course of  the  investigation  and recording statements of PWs-1 and 2 in the Emergency Ward of the  Hospital, took possession of the blood stained  clothes of  PW-1  and  prepared its seizure  memo.   Thereafter,  he visited the scene of occurrence also with PW-1 and thereupon prepared  a site plan.  He found blood lying on the spot and took  plain  and  blood  stained earth  from  the  place  of occurrence.   An inquest on the body of the dead person  was also held by Radhey Shyam Verma, who was deputed to hold the inquest  on the body at the Hospital.  A post-mortem was got conducted.    Initially,  the   respondent  was   absconding resulting in the Report submitted for initiating proceedings under  Sections  82  and 83, Cr.P.C.  After  completing  the investigation, a charge sheet was filed in the Court and the Magistrate,   who  entertained  the   charge   sheet,   took

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cognisance  of  the  offence and committed the case  to  the Court of Sessions.

     The  learned Sessions Judge, after framing the charges against  the accused-respondent under Sections 307 and  302, IPC,  who  pleaded  not  guilty and  claimed  to  be  tried, examined   the  prosecution  witnesses,   nine  in   number, including two eye-witnesses, PWs-1 and 2.  The respondent in his statement under Section 313, Cr.P.C., denied the case of prosecution   and  submitted  that  he  had   been   falsely implicated  on account of enmity and has not chosen to  lead any  evidence  in  support  of  his  defence.   The  learned Sessions  Judge  believed  the  prosecution  story  and  the version  of  the witnesses examined in support  thereof  and ultimately  by  his  judgment dated 14.5.91  held  that  the prosecution  has proved beyond reasonable doubt the guilt of the  accused under Sections 302 and 307, IPC.  After hearing on the point of sentence, the learned Sessions Judge imposed a punishment of five years R.I.  under Section 307, IPC, and life  imprisonment  for the offence under Section 302,  IPC. Both the sentences were to run concurrently.

     Aggrieved,  the accused respondent pursued the  matter in  appeal before the High Court and as noticed earlier, the High  Court,  while affirming the conviction of the  accused under  Section 307, IPC, chose to interfere in favour of the respondent  by  altering the conviction under  Section  302, IPC,  into one of Section 304 Part-II, IPC, by reducing also the  life imprisonment to ten years R.I., while  maintaining the  sentence  imposed  under Section 307 and  ordering  the sentences  to  run  concurrently.   In   coming  to  such  a conclusion,  the  learned Judges of the High  Court,  though observed  that the FIR has been lodged without delay and the presence of the two eye-witnesses, PWs-1 and 2, at the scene of  occurrence, cannot be doubted in any manner they  having also  received injuries in the course of the occurrence  and that  their version about the assault on them with the  same weapon  with  which  the respondent assaulted  the  deceased found complete corroboration from the medical record and the injuries  found on the body of the deceased were  sufficient in  the ordinary course of nature to cause death, ultimately held  that the prosecution evidence did not prove any motive as such.  The learned Judges of the Division Bench also were of  the  view  that  the ‘Rukhani used in  the  process  of inflicting  injuries  on  the  victim ‘cannot  be  called  a weapon  and  proceeded  further  to observe  that  if  the appellant  wanted to commit the murder of Km.  Phoolmati, he could have used a regular weapon which is capable of causing more serious injuries.  The learned Judges further adverted to  the  fact that the deceased sustained only  two  incised wounds out of which one only was deep and that it was due to cutting  of  carotid artery and clavicle vein  under  Injury No.1  that  the  deceased  died  and  held  that  the  case, therefore, did not fall under clause thirdly of Section 300, IPC,   and  consequently  the   offence  committed  by   the respondent would fall only under Section 304 Part-II, IPC.

     The  accused-respondent accepted the judgment in  that he  has  not chosen to proceed further by way of  challenge. The  learned  counsel  for the  appellant-State  strenuously argued  that the reasons assigned by the High Court to alter the  conviction  on the alleged absence and proof of  motive and the type of weapon used and the nature of injuries found inflicted  which resulted in the death of the victim, do not properly  accord  with or conform to the evidence on  record

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and that even the relevant principles for attracting Section 302,  IPC,  to the case on hand have been given  a  complete go-by.   The  learned  counsel for the appellant  at  length brought  to our notice the manner of consideration given  by the  High Court as well as the Sessions Court to support his claim.   The  learned  counsel for  the  accused-respondent, after  elaborately  arguing  the  matter  and  inviting  our attention  to  the  judgment and the  materials  on  record, submitted  that no interference is called for in this appeal since  the  findings  of fact, on which the High  Court  has chosen  to alter the nature of conviction, are  well-merited on  the materials on record and no case has been made out by the appellant-State for any interference.

     We  have  carefully considered the submissions of  the learned  counsel appearing on either side and we are of  the opinion  that except for certain inappropriate language used to  express  the conclusions of the High Court, the  learned Judges  could  not be held to have committed any serious  or grave  error of law of great importance or that it could  be legitimately  contended  for  the  appellant-State  that  in altering  the conviction under Section 302, IPC, into one of Section  304 Part-II, on an appreciation of the evidence  on record,  any grave injustice has been caused.  On the  facts and circumstances of the case, we do agree with the claim on behalf  of  the appellant that there is no such thing  as  a regular  or earmarked weapon for committing murder and  that it  would  have  been  more proper to  have  used  a  better terminology  and language to identify the weapon used by the accused,  a  Carpenter by profession himself, and  the  same being  nothing but an implement used in carpentry, to be not really  such  a ‘deadly weapon so as to cause, per se,  any serious  wound  or a grievous hurt or injury to the  victim. It  is  also not in dispute that of the two  injuries  found inflicted  on the body of the victim, only one was found  to be  a serious one, which was considered in the normal course to  be sufficient to cause death.  Though the intrusion into the  hut by the respondent in the early hours of the morning may be construed to be with a sinister intention or purpose, but  from  the type of the weapon he was carrying, it  could not  be either reasonably or legitimately postulated that it was  with  the  intention of committing the  murder  of  the victim  or  inflicting upon the victim such a  grave/serious injury  sufficient to cause her death, particularly when  he would  be fully aware of the fact that in the hut the father and the mother of the deceased would also be present at that time.   If the observation of the Division Bench of the High Court  is  viewed  in this context giving due  allowance  or lenience to the not too happy language used and consider the gravamen of the charge and sum and substance of the evidence placed  on record, the inevitable consequence which  follows should  be that apart from any positive motive being  either attributed  in  this  case,  or alleged  or  proved  by  the prosecution,  there is no clinching circumstance or evidence to reasonably establish the culpability of the accused for a charge  of murder.  Absence of intention to cause the  death coupled  with  the  lack of knowledge that  death  would  be inevitably  caused  on account of the injury would make  the offence  fall  only under Section 304 Part-II, IPC, and  not under Section 302, IPC.  Consequently, in the absence of any motive or intention to kill and having regard to the type of weapon used and the number as well as the nature of injuries found inflicted, the case on hand could not appropriately be said  to  be one warranting the application of Section  302, IPC.   The High Court has chosen to also impose the  maximum

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punishment  of ten years.  That apart, we find no  important principle  of law is involved and no grave impropriety would result  nor  injustice  would be caused  in  sustaining  the judgment  of the High Court.  The High Court, therefore,  in our  view, was justified in converting the conviction of the respondent  by altering the same into one under Section  304 Part-II, IPC, instead of Section 302, IPC.

     For  all the reasons stated above, we see no merit  in this  appeal.  The appeal, therefore, fails and shall  stand dismissed, accordingly.