Sudhanshu Dhulia, J
1. This criminal jail appeal of the appellant arises out of the judgment dated 24.06.2017 passed by the learned Sessions Judge, Nainital in Sessions Trial
No. 40 of 2015, whereby the accused appellant has been convicted for the offence punishable under Sections 302 and 201 IPC, and he has been
sentenced for life imprisonment with a fine of Rs.10,000/- (Rupees Ten Thousand Only) under Section 302 IPC. The accused appellant has further
been convicted for the offence punishable under Section 201 IPC, and he has been sentenced for three years of rigorous imprisonment with a fine of
Rs.5,000/- (Rupees Five Thousand Only) under Section 201 IPC.
2. Brief facts of the case are that a first information report was lodged by one Pratap Singh Bisht on 27.12.2014 at about 03.05 pm, wherein it was
stated that his brother Gopal Singh Bisht, R/o Gaithiya, Nainital is missing from the village since 09 pm on 19.12.2014. Efforts were made to search
him, but in vain. It was then stated that yesterday i.e. on 26.12.2014 he had come to the Police Chowki (Jeolikote) to inform that he had suspicion on
one Manoj Bisht who is from the same village. Today Manoj Bisht was caught and on interrogation, he confessed that he killed his brother Gopal
Singh Bisht who was later thrown in a “nalaâ€. The accused further confessed that the body of the deceased was buried under the rocks, which
can be discovered. The complainant further states that the accused appellant Manoj Singh Bisht was in their custody.
3. On this information, an FIR was registered as has already been referred above.
4. Recovery memo shows that SO Sanjay Kumar Pandey (PW10), Satish Kapri, Sub Inspector and other police personnel in pursuance of the first
information report proceeded towards “Gaithiya†and they found that near the side of the motor road a lot of villagers had gathered and they have
caught hold of a person, and on interrogation, the said person gave his name as Manoj Bisht (appellant before this Court). On further interrogation, the
accused said that on 19.12.2014 at about 09 pm, he had murdered Gopal Singh Bisht and buried his body under the rocks in the jungle. The accused
thereafter agreed to get the body recovered and the police party and the villagers proceeded towards the “jungle†behind Manoj Singh Bisht.
After going about 500 meters inside the “jungleâ€, across a deep nala, the accused indicated that he had buried the body of the deceased behind
the rocks. The police party saw that two legs of the deceased were popping out from the rocks. The body was photographed and taken out. It was
recognized by Lalit Sah, Pratap Singh, Mahendra Singh, and at that stage the accused appellant Manoj Singh Bisht confessed that this is the body of
Gopal Singh Bisht who was murdered by him. Thereafter, the body of the deceased was taken into custody and the inquest was prepared which is
also a part of the record.
5. The next day, the accused was again taken out from the custody, brought to his village where in the presence of independent eye witnesses he got
recovered a saw which was without handle and an axe, which he said were the weapons used by him to kill Gopal Singh Bisht. After the investigation,
the police submitted the charge-sheet against the appellant and the matter was committed to the Sessions Court. Thereafter, the charges were framed
against the appellant under Sections 302 and 201 IPC.
6. In order to establish its case, the prosecution has examined as many as 11 witnesses.
7. PW1 is Head Constable Suresh Singh Rana who in his examination-in-chief has stated that on 27.12.2014, he was posted at Police Chowki,
Jeolikote and wrote the first information report at about 03.05 pm in the afternoon and the case was registered. As soon as the case was registered,
the SO, Tallital Sri Sanjay Pandey was informed and he along with Sub Inspector Devnath Goswami, Constable Jasveer Singh and Driver Ranjeet
Rana reached the spot where the accused was already in custody of the villagers, as referred above in the first information report.
8. PW2 Pratap Singh Bisht is the elder brother of the deceased who in his examination-in-chief says that the deceased was a bachelor and was
missing since the evening of 19.12.2014. Inquiries were made in this regard from the relatives, other villagers and neighbouring villagers, but in vain.
On 26.12.2014, this witness along with villagers had gone to Police Chowki, Jeolikote where they had informed the police about this incident and asked
the police to lodge a missing report of Gopal Singh Bisht. On 27.12.2014, PW2, his family members and villagers went to the house of Manoj Singh
Bisht to inquire about Gopal Singh Bisht, wherein he confessed that Gopal Singh Bisht has been killed by him and is buried in the jungle. The appellant
was caught and the information was immediately given to the police. PW2 narrates the case as has already come in the first information report as to
how along with other witnesses and villagers took the appellant in custody and brought him to the roadside and immediately thereafter the police came
and he was taken by the police in their custody. He further says how the recovery was made. This witness is also the witness of the recovery of the
dead body. PW2 narrates how he went with the police party and after going about 500 meters in the “jungleâ€, the body of the deceased was
recovered. Thereafter, the inquest was prepared. He noticed various injuries on the legs and fingers of the deceased and thereafter narrates that on
28.12.2014, the police had brought the accused Manoj Singh Bisht in the morning to the village when he was present and thereafter on the pointing out
of the accused, weapons of crime i.e. Axe and saw were recovered. The weapons were sealed and taken by the police in its custody. This witness
was cross-examined. He admits that he has passed Class 8th and that he is a retired government servant. He knows how to read and write. On
26.12.2014, he had gone to the Police Chowki, Jeolikote to lodge a missing report of his brother. Thereafter, the first information report was lodged on
27.12.2014. After the confession of Manoj Singh Bisht, PW2 narrates the incident as to how he went with the police party to recover the dead body
and at the instance and pointing out of the accused, the body of the deceased was recovered. He describes the details in the jungle and admits that he
was one of the witnesses of the inquest. He also admits that recovery of weapons was made in his presence. On 28.12.2014, he says that they were
in total five persons who were present at the time of the recovery. He himself and his younger brother and three policemen were there and there was
no one else. He admits that axe and saw are the common weapons which are present in almost all houses in the hills. He denies that he has lodged the
wrong first information report, etc.
9. PW3 is Sub Inspector Satish Chandra Kapri who was the Chowki In-charge, Jeolikote where the first information report was lodged. He admits
that first information report was lodged on 27.12.2014 at about
3.05 pm and thereafter narrates the case of the prosecution. Nothing has come out in the statement of this witness, which may cast a doubt in the
story of the prosecution, in any manner.
10. PW 4 is the doctor Meharban Singh Rawat who had conducted the autopsy on the body of the deceased on 28.12.2014 at 11.25 am. He admits
that Gopal Singh Bisht S/o Harak Singh Bisht, R/o Gaithiya was brought by Constable Jasveer Singh and Manish Pandey for post mortem. The age of
the deceased was about 48 years and he was of average height. The doctor noticed following four ante mortem injuries on the body of Gopal Singh
Bisht:-
1. An incise wound over left posterior eminence measuring 5cm x 0.7 cm into muscle deep. Anterio posterior direction margin averted clotted blood
present.
2. A laceration over left posterior lateral aspect of head 5cm above posterior from left are labule. Anterio posterior direction 6cm x 1cm into muscle
deep. Clotted blood present.
3. A laceration over left posterior aspect of head measuring 4cm x 2cm into muscle deep left to right direction averted margin clotted blood present.
4. Laceration over lower part of left posterior aspect of head measuring 3cm x 2cm muscle deep. Averted margin clotted blood present.
11. These injuries corroborate with the postmortem report which is annexed as Exhibit Ka-9, which clearly shows that cause of death was due to ante
mortem head injury on the head. Injury no.1 is an incise wound over left posterior eminence measuring 5cm x 0.7cm muscle deep and remaining
injuries are lacerated wounds. All the above four injuries were on the head. The doctor says that injury no. 1 can be caused by either a sharp weapon
or even by an axe, whereas injury nos. 2, 3 and 4 can be caused by a blunt weapon or even by a stone. On internal examination of head of the
deceased, it was found that the back portion of the head bone was totally ruptured, so was the membrane and there was a heavy blood clot inside. He
admits that this injury could have been caused if the deceased would have been hit on the back side with a blunt side of the axe. The other injuries
which were noticed on the body of the deceased are as follows:-
a. Abrasion upper 1/3 of right leg 2cm x 1cm.
b. Abrasion middle 1/3 of right leg 3cm x 2cm scab formation present (brown colour)
c. Multiple small abrasions in anterior left leg. Scab formation present.
d. Scratch mark of left lateral aspect of left leg measuring 10cm x 4cm above downward.
12. The doctor opined that the aforesaid injuries could have been caused when the body was dragged and buried under the rocks, etc. He though does
not confirm this, but says that such a wound could also be caused by a saw.
13. PW 5 Mahendra Singh is the brother of the deceased. The statement of this witness is by and large similar as that of his brother i.e. PW 2. PW 5
is also the witness of the dead body of the deceased as well as weapons.
14. PW 6 Sub Inspector Dev Nath Goswami is the witness of the inquest and PW 7 Rajendra Singh Bisht is the scriber of the first information report.
15. PW 8 Lalit is again an independent witness and also the witness of the recovery of dead body of the deceased as well as of inquest report. PW 8
narrates the same story as stated by PW 2. PW 8 was cross-examined, but nothing has come out in his cross-examination which may cast an iota of
doubt in the case of the prosecution.
16. PW 9 Constable Sanjeet Rana is a formal witness who had taken the axe and saw for forensic examination.
17. PW 10 Sanjay Kumar Pandey is the Investigating Officer. He in his examination-in-chief states that he was posted as Station House Officer at
Police Station, Tallital and as soon as he received the information from the Police Chowki, Jeolikote, he along with Station Officer, Constable
Rajkumar, Constable Jaiveer and Sub Inspector Devnath Goswami reached the spot. He also narrates the story as stated by PW 2.
18. PW 11 Indra Singh Rana is the Investigating Officer who had completed the investigation and filed the charge sheet in the matter.
19. Learned counsels for the appellant Mr. R.S. Sammal, assisted by Ms. Lata Negi, Advocate who are both Amicus Curiae in the matter have
argued that it is a case of circumstantial evidence. The first information report was lodged belatedly after a period of nine days of the alleged incident.
There was no missing report earlier till 26.12.2014. They have also cast a doubt on the recovery of the body of the deceased as well as the weapons
used in the commission of the crime.
20. Learned counsels for the appellant further submit that the trial court has made the conviction of the appellant not only on the basis of the
confession made in the custody of the police, so far as it relates to the discovery of the body and the weapons, but the entire confession made by the
appellant regarding the manner he committed the crime is barred under Section 25 of the Evidence Act.
21. As far as confession made by the appellant to the Police is concerned, the same is not admissible in evidence and it is barred under Section 25 of
the Evidence Act, yet Section 27 of the Evidence Act creates an exception that in case a confession is made by the accused in the Police custody and
that confession relates to the discovery, that discovery of fact is an admissible piece of evidence.
22. The entire case of the prosecution in this case, therefore, rests on the veracity of the recovery both of the dead body as well as weapons used in
the commission of crime, made at the instance of the accused.
23. After hearing learned counsels for the appellant as well as the learned State Counsel, we have no iota of doubt in our mind that it is a proper
recovery which inspires confidence of this Court.
24. We, however, must also take note of the fact that both the appellant and the deceased are the resident of the same Village i.e. Gaithiya. The
accused and the deceased were both small time labourers working in the nearby market with which they earned their livelihood. In other words, the
accused and the deceased belong to one of the lowest stratum of society as far as their financial status is concerned.
25. Again there is absolutely no motive for the accused/appellant to have killed the deceased. None whatsoever has been placed by the prosecution.
In a case of circumstantial evidence, motive definitely has a relevance. Even in the confessional statement of the accused, on which so much reliance
has been taken by the prosecution, the maximum what comes out is that both the appellant and the deceased had consumed country liquor together.
The appellant wanted money from the deceased which the deceased refused and instead gave him a shot of liquor, and thereafter the appellant
inflicted a blow by axe on the back of the deceased head.
26. We are therefore of the opinion that since definitely even as per the story of the prosecution, it is not a premeditated murder, we have to see
whether it comes under the exception as carved out under Section 300 IPC. Culpable homicide is not a murder if it comes under the exception created
under Section 300 IPC as the learned counsels for the appellant would argue in the alternative that at best it is a case of culpable homicide not
amounting to murder in terms of fourth exception to Section 300 IPC. Fourth exception to Section 300 IPC reads as under:-
“Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without
the offender’s having taken undue advantage or acted in a cruel or unusual manner.â€
27. In order to bring the case under this category, four ingredients are necessary which are that it should not be premeditated, it should be a sudden
fight, it should be in the heat of passion upon sudden quarrel and without the offender’s having taken an undue advantage or acted in a cruel or
unusual manner.
28. It is definitely the case where the crime was committed without any premeditation. All the ingredients, the nature of injuries, the time and place
which is 9:00 PM in the thick of Jungle where both had gone to collect wood and where they consumed liquor show that it was a sudden fight in the
heat of passion and the weapon which was used by the appellant is actually the weapon i.e. axe which one would normally carry to collect the wood.
29. From the statement of the Doctor who had conducted the post mortem, he has not confirmed whether the injuries could have been caused by a
saw but he more or less says that such an injury could have been caused by the back side of the axe.
30. Learned Counsel for the appellant would rely upon the judgment of the Hon’ble Apex Court in the case of Surinder Kumar vs. Union of
Territory, Chandigarh, reported in (1989) 2 SCC 217, where in a sudden quarrel, a man picked up a knife and had inflicted three fatal injuries on the
chest of the deceased. He was convicted by the Trial Court under Section 302 IPC and his conviction was upheld by the High Court in appeal.
However, this conviction was altered by the Hon’ble Apex Court from that of Section 302 IPC to Section 304 IPC, whereas the High Court and
the Trial Court had taken a view that since there were three injuries, it was an act of cruelty.
31. Learned Counsel for the appellant would also rely upon another judgment of the Hon’ble Apex Court in the case of Satish Narayan Sawant
Vs. State of Goa, reported in (2009) 17 SCC 724, wherein the Hon’ble Apex Court in paragraph no. 41 held as under:-
“41. Records clearly establish that there was indeed a scuffle between the parties with regard to the availability of electricity in a particular room
and during the course of scuffle the appellant also received an injury which was simple in nature and that there was heated exchange of words and
scuffle between the parties before the actual incident of stabbing took place. There is, therefore, provocation and the incident happened on the spur of
the moment. That being the factual position, we are of the considered view that the present case cannot be said to be a case under Section 302 IPC
but it is a case falling under Section 304 Part II IPC. It is trite law that Section 304 Part II comes into play when the death is caused by doing an act
with knowledge that it is likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as
is likely to cause death.â€
32. Considering the totality and circumstances of the case, we alter the findings of conviction under Section 302 IPC to one under Section 304 Part 1
IPC where there were both intention and knowledge, but still it was a culpable homicide and not a murder. Considering the age of the appellant which
was 27 years at the time of the alleged incident and the circumstances in which the crime was committed, 10 years of rigorous imprisonment and a
fine of Rs.10,000/- (Rupees Ten Thousand only) would serve the ends of justice.
33. In view of the above observations, the appeal is partly allowed. The judgment and order dated 24.06.2017 passed by the learned Sessions Judge,
Nainital in Sessions Trial No. 40 of 2015 is modified to the above extent.
34. The sentence of three years rigorous imprisonment and fine of Rs.5,000/- (Rupees Five Thousand Only) imposed by the Trial Court under Section
201 IPC shall remain.
35. Let a copy of this judgment along with the lower court records be sent back to the court concerned for onward compliance.
