R.P. Shukla, J.@mdashCriminal Appeal No. 318 of 1977 is directed against the judgment and order, dated 3-2-1977, passed by Sri S.C. Tyagi, the then Sessions Judge, Gorakhpur, in Sessions Trial No. 356-A of 1975, convicting the Appellant u/s 302 IPC, and sentencing him to life imprisonment. Another accused Budhai in the said Sessions Trial was acquitted by the Sessions Judge and the State of U.P. has also preferred an appeal which is Government Appeal No. 943 of 1977 against the said judgment. The order disposing of the above noted Criminal Appeal shall also govern the said Government Appeal.
2. The prosecution story, in brief, is that Appellant Kapildeo Prasad and the acquitted accused Budhai and the deceased Chandrika Prasad were the employees of Signal Workshop, North Eastern Railway, Gorakhpur. They were friends amongst themselves and they often used to assemble in one road shop-cum-residence of Appellant Kapildeo Prasad situate in the city of Gorakhpur by the side of Gorakhpur-Pipraich Road near and to the north of Asuran road crossing. Adjacent to its north was the one room tea stall of Janardan Rai PW 2. About 50 paces to its south was the grocery shop of Anant Prasad PW 1. Some other shops and houses also existed either side of the road in the locality at the relevant time. On August 17, 1975, at about 5.00 P.M. when Anant Prasad PW 1 was taking tea at the shop of Janardan Rai PW 2, heard noise of the deceased and Appellant Kapildeo Prasad and that of the acquitted accused Budhai. They were abusing each other inside the shop of Kapildeo Prasad. Both Anant Prasad and Janardan Rai rushed to the hut of Kapildeo Prasad out of curiousity. They saw Kapildeo Prasad striking Chandrika Prasad with a Rapi (a sharp edged instrument used by cobblers) on his chest saying " Sale sau ki pahti note bhi jeb mein rakh liya ". They also saw that the acquitted accused Budhai held one of the hands of Chandrika Prasad. Chandrika Prasad fell down bleeding after the receipt of the Rapi injury. The Appellant and the acquitted accused Budhai went out of the hut and ran on the road towards south to make good their escape. Anant Prasad PW 1 and Janardan Rai PW 2 along with Barku, who had a house in the vicinity, chased them shouting. Constables Narsingh Ojha PW 3 and Rajpati Yadav, who were coming from the opposite direction, succeeded in arresting both Kapildeo Prasad and budhai with the help of the witnesses. The constables asked Anant Prasad to take Chandrika Prasad to the hospital and the two constables followed him with Kapildeo Prasad and Budhai in custody. Anant Prasad took Chandrika Prasad on a rickshaw to the Railway Hospital situate at a distance of about one furlong. Chandrika Prasad succumbed to his injury when his rickshaw reached the hospital. Anant Prasad scribed the report of the incident Ext. Ka-1 and handed over the same at the Police-station Cantt. at 5.30 P.M. the same evening. On the basis of this report, Head Constable Harihar Singh PW 5 scribed the first information report Ext. Ka-5 and registered a case in the General Diary Ext. Ka-6.
3. Sub-Inspector, Ram Adhin Singh PW 8, took up the investigation and he rushed on a jeep to the Railway Hospital alongwith S.I. Jharkandey Rai and S.I. Ram Asis Misra PW 6. There in the hospital, he found the dead body of Chandrika Prasad in the portico and the Appellant and the acquitted accused Budhai in the custody of the two constables. He interrogated the two accused. On a statement made by Kapildeo Prasad that he could produce the Rapi he was entrusted to the custody of S.I. Ram Ashish Misra who proceeded along with the Appellant to effect the recovery.
4. The Investigating Officer then held an inquest on the dead body of Chandrika Prasad and sent it duly sealed for post mortem examination. He also recovered a blood stained hundred rupee torn currency note Ext. 2 from the pocket of the bush-shirt of the deceased and prepared the recovery memo Ext. Ka-11. Appellant Kapildeo took S.I. Misra to his shop and from inside a box kept therein produced Rapi Ext. 1 in the presence of the witnesses. The Rapi was blood stained. It was sealed and recovery memo was prepared. The Investigating Officer had also reached there and he directed, the accused and the recovered Rapi to be taken to the police station The Investigating Officer interrogated Anant Prasad who had by then returned from the police station, prepared the site-plan Ext. Ka-16 took blood stained and plain earth from inside the shop of Appellant Kapildeo Prasad in his possession and sealed the same. Thereafter, he interrogated PWs Janardan Rai, Constable Narsingh Ojha, Rajpati Yadav and other witnesses.
5. Dr. B.G. Mathur PW 4 performed the post-mortem examination on the dead body of Chandrika Prasad at 12.00 noon on August 18, 1975. The age of the deceased was about 32 years and the time since death was about ore day. Rigor-mortis was present on the upper and lower extrimities and the following ante-mortem injury was found on the dead body:
1. Incised and penetrating wound left side chest 11/4 " x 1" x bone upper cavity deep going backwards with fracture of sternum underneath.
6. On internal examination, he found a stab wound in 1 " x 1/4 " x ventricle deep on the heart, Blood was also present in the pericardium and 4 ounces of semi-digested food material was present in the stomach. The death, in the opinion of the doctor, was due to shock and haemorrhage resulting from the injury aforesaid, which, in his opinion, was sufficient in the ordinary course of nature to cause death. The doctor further said that the injury could be caused by a Rapi Ext. 1 and the deceased could survive upto about half an hour after receipt of the said injury.
7. Both Appellant Kapildeo Prasad and the acquitted accused Budhai were charge-sheeted. They were later committed to the Court of session By Sri. I.B. Singh, the then Chief Judicial Magistrate, Gorakhpur.
8. Both, the Appellant and the acquitted accused Budhai pleaded not guilty and claimed to be tried They, however, admitted that the deceased was employed in the Railway Workshop along with them and that they were friendly and on visiting terms with each other. Budhai stated that he was not present at the time of the incident and that he has falsely been implicated in the case because he refused to be a witness in the case when asked by the police.
9. Appellant Kapildeo Prasad gave his version of the incident. He said that Budhai had his promotion, and, therefore, promised to feast to some persons including him and the deceased. 17-8-1975 was a Sunday and they were off duty at 12.00 noon. The Appellant came to his house and began cleaning utensils etc. Thereafter, Chandrika Prasad arrived and enquired where the other invitees were. Kapildeo Prasad replied that he better knows. Chandrika Prasad then said that he would bring the food stuff if money was paid to him. Kapildeo Prasad said that Budhai would pay him, but later on Kapildeo Prasad gave him a hundred rupee note to make the purchases. Chandrika Prasad then left with a handkerchief to bring meat and other articles, but shortly came running pressing against his neck and chest and fell down at Kapildeo Prasad''s doors crying "Maar diya Maar diya". Kapildeo Prasad at once put Chandrika on a rickshaw and took him to the Railway Hospital after having locked his shop. Beyond Asuran road crossing, Budhai and two or four other friends met him. Budhai asked him as to what was the matter and he narrated to him all that had happened and asked him to inform the police and the people at Chandrika''s house. Chandrika died when Kapildeo Prasad could reach him to the Railway Hospital. By that time Budhai along with family members of Chandrika Prasad arrived there and police-men also collected. Police men asked Kapildeo Prasad about the assailant to which he replied that he did not know. At this, the police arrested both Kapildeo Prasad and Budhai and falsely implicated them in this case. Kapildeo Prasad further said that Janardan Rai PW 2 was hostile against him because he protested against Janardan Rai''s keeping furniture in front of his house. Janardan Rai wanted to remove Kapildeo Prasad from that place so that he could extend his shop. The other witnesses, according to Kapideo Prasad, were the friends of Janardan Rai and have, therefore, given false evidence against them.
10. Ram Bilas Sharma DW 1, Mistri employed in the Railway Workshop, in which the deceased and the accused persons were also employed, was examined in defence. According to him, Budhai, on his promotion, promised the feast to the deceased and other friends including this witness. It was also decided that they would all collect cook and eat at the house of Kapildeo Prasad on Sunday, the 17th Augst, 1975. On the fateful day, he alongwith Budhai and Banwari left for the house of Kapildeo Prasad whom they met at a short distance from Asuran crossing carrying Chandrika Prasad injured on a rickshaw to the hospital. He sent Budhai to the house of Chandrika to inform his family members and this witness himself informed the police at Dharamshala Crossing and then accompanied them to the hospital and from there he went away to his house.
11. The prosecution examined in all eight witnesses in support of its case and also tendered the evidence of three formal witnesses on affidavits Exts. Ka-18 to Ka-20. Out of these witnesses, Anant Prasad PW 1 and Janardan Rai PW 2 are eye witnesses of the occurrence. They have unfolded the prosecution story in all its material details. Constables Narsingh Ojha PW 3 deposed to the circumstances leading to the arrest of the accused persons, recovery of the Rapi Ext. 1 at the pointing out of accused Kapildeo Prasad. S.I. Ram Ashish Misra PW 6 deposed to the circumstances leading to the recovery of the Rapi Ext. 1 from the possession of accused Kapildeo Prasad. Gorakh Prasad Vishkarma PW 7 deposed to the recovery of blood stained and torn currency note Ext. 2 from the bush-shirt pocket of the deceased. Dr. B.O. Mathur PW 4 deposed about his having performed the post-mortem examination on the dead body of the deceased. Head Constable Harihar Prasad PW 5 prepared the first information report and the various General Diary reports. S.I. Ram Adhin Singh PW 8 stated about his having conducted the investigation of the case.
12. So far as the acquitted accused Budhai is concerned, there is no evidence that he caused any hurt to the deceased nor there is any evidence to suggest that he had knowledge that the other accused Kapildeo Prasad had a Rapi with him. The only evidence against him is that be was seen holding one of the arms of the deceased at the time when co-accused Kapildeo Prasad stabbed the deceased as stated by Anant Prasad (PW 1) Janardan Rai (PW 2) has said, "Maar khane se pahle hi Chandrika ne Kapildeo ki taraf apne dono haath barha diye the." This goes to show that on Kapildeo''s saying, "Saala Phate sau ki note bhi jeb mein rakh liya" the victim stretched both of his arms towards Kapildeo Prasad and this accused Budhai held one of the arms, but Kapildeo Prasad instantaneously struck the Rapi on the chest of Chandrika. There is no evidence to show or suggest that the two accused had already entered into any design or understanding before the assault on Chandrika was made. In the circumstances, it is not unlikely that Budhai held the arm of the deceased merely to prevent any grappling between the two. The learned Sessions Judge has rightly acquitted this accused against whom no offence is made out, in the circumstances mentioned above, and, therefore, the Government Appeal No. 943 of 1977 against the acquittal of this accused is hereby dismissed. The case of Appellant Kapildeo Prasad stands on a different footing.
13. It is Appellant Kapildeo Prasad who gave the fatal blow to Chandrika by Rapi. Firstly, there is direct evidence of the two eye witnesses namely Anant Prasad (PW 1) and Janaradan Rai (PW 2) against him. Secondly, soon after the incident, while he was running away from the place of the occurrence, constable Narsingh Ojha (PW 3) arrested him. Thirdly, blood stained Rapi (Ext. 1) was recovered from his possession and on his pointing out. The fourth circumstance against him is the recovery of blood stained earth from his Kothari. Even, according to the version set up by Kapildeo Prasad, Chandrika died with a Rapi injury on his chest in the Kothari of Kapildeo Prasad. The two witnesses Anant Prasad and Janardan Rai have seen the incident from the beginning to the end. They have not spoken of Rapi being kept somewhere inside the Kothari by Kapildeo Prasad. The Kothari of Kapildeo Prasad was not locked or properly safe-guarded during the absence of Kapildeo Prasad who was in police custody away from the Kothari. Hence, the trial Judge has rightly rejected the evidence of recovery of the blood stained Rapi at the instance of Kapildeo Prasad. Janaradan Rai (PW 2) had said that the sun had set when he had reached the hospital following Anant Prasad (PW 1) and before the latter had prepared the report. On 17-8-1975, i.e. the day of the incident, the sun had set at 6.20 p.m. Thus, the time of report, which has been shown as 5.30 p.m., appears to have been ante-timed. We agree with the trial Judge that the investigating agency, out of enthusiasm to show promptness and efficiency in the investigation has ante-timed the first information report and has made the recovery of blood stained Rapi at the instance of accused Kapildeo Prasad. Even if these two circumstances are excluded, there remains the evidence of two eye witnesses, namely, Anant Prasad and Janaradan Rai, the close neighbours of Kapildeo Prasad and have no axe to grind against him. Their presence is very natural and probable. They have well accounted for their presence. Janardan Rai (PW 2) had his shop adjacent to the south of the hut of the accused. Any noise, much less loud noise as was made in this case made in the latter''s hut, could conveniently reach his ears, and, out of sheer anxiety, he would step forward to the door of the hut of the accused to enquire what the matter was. At the time of incident, PW 1 was taking tea at the shop of PW 2. PW 1 had his grocery shop at about fifty paces from the tea stall of Janardan Rai (PW 2). His testimony would be at par with that of Janardan Rai (PW 1) because both were together. There is no inherent discrepency in the testimony of these witnesses. There is also nothing to show that these witnesses were, in any way, amenable to the hands of the local police or were otherwise tutored to say what they have stated. Their statements, therefore, inspire confidence and they appear to be wholly reliable witnesses. The accused Kapildeo Prasad tried to run away from the scene of the incident, but was ceased by the witnesses. Constable Narsingh Ojha (PW 3), who was on traffic duty, chaced the accused and arrested him. He has deposed to this arrest. He has no bias of his own to falsely implicate the accused persons in a serious case of murder like the present one. PW 1 and PW 2 have also stated that Kapildeo Prasad was arrested by constable Narsingh Ojha. The evidence of constable Narsingh Ojha (PW 3) appears to be reliable. We have already pointed out that the blood was recovered from the hut of Kapildeo Prasad. We have also pointed out that Kapildeo Prasad has admitted that Chandrika died in his hut as a result of injury by Rapi on his chest. These circumstances coupled with the testimony of Anant Prasad and Janardan Rai establish the guilt of the accused. The first information report, though ante-timed, appears to be a genuine document prepared exclusively by the eye witness Anant Prasad (PW 1) who had no reason to set up a false case against the Appellant. There is no evidence to show that there was any interference by any body else in the preparation of the first information report. In the circumstances, even if the first information report was lodged some time after the sun set i.e. after 6.20 p.m., it cannot be said to be a belated document. It is a very well prompt and spontaneous account of the incident. The evidence of the eye witnesses coupled with the circumstances narrated above and corroborated by the first information report the guilt of the accused has been brought; home against him. The defence version set by Kapildeo Prasad appears to be neither reasonable nor probable. It is improbable that, on being stabbed by someone outside the hut of Kapildeo Prasad in a crowded locality of the city, none would come forward to support the defence story. Normally, it is expected that the victim must have cried after the receipt of the injury, and, therefore, the assault on him could not have escaped the notice of the people present at the place where he was assaulted. The defence story is amply rebutted on oath by reliable prosecution witnesses.
14. Now we have to analyse whether the offence committed by Kapildeo Prasad will amount to murder or culpable homicide not amounting to murder. It is true that the prosecution had not been able to show any apparent motive for the accused to make the fatal assault on the deceased, but it does appear from the statements of both the eye witnesses that the assault followed the exchange of abuses between the accused and the victim probably on the torn hundred rupee currency note (Ex. 2) being kept by the latter in his pocket. The recovery of torn hundred rupee currency note from the pocket of the deceased corroborates the testimony of the witnesses. Even the accused had admitted that hundred rupee currency note was in the pocket of the deceased. It is also in evidence that the accused and the deceased were friends and worked together in Railway Department. The circumstances indicate that the accused was annoyed at the victim''s pocketting the currency note and in a sudden heat of passion gave him a blow by his Rapi on the chest of the victim. The accused did not repeat the blow. Rapi is not a weapon of assault, but an instrument used by cobblers for repairs of shoes etc. and Kapildeo Prasad, the accused, when finds time, does work as cobbler. It is also in evidence that the deceased extended his hands towards the accussed probably to grapple with the accused. Thus, the circumstances, narrated above, show that there was a sudden fight without any premeditation, and, in the heat of passion upon the sudden quarrel, Kapildeo Prasad struck the Rapi blow on the chest of the deceased. He did not take any undue advantage and did not act in a cruel or unusual manner because the accused did not repeat the blow. Thus, the case against the Appellant Kapildeo Prasad falls within the ambit of Exception 4 of Section 300, IPC. Thus, it is culpable homicide not amounting to murder. Therefore, Kapildeo Prasad has committed offence punishable u/s 304(1), IPC. In the result, his conviction u/s 302, IPC is set aside and is altered to one u/s 304(1), IPC. He is, therefore, acquitted of the charge u/s 302 IPC, but convicted u/s 304 Part I of the IPC and hence his sentence of life imprisonment awarded u/s 302, IPC is reduced to seven years'' RI.
15. Government Appeal No. 943 of 1977 State v. Budhai is hereby dismissed. Criminal Appeal No. 318 of 1977 Kapildeo Prasad v. State of U.P. is partly allowed. The conviction and sentence of Kapildeo Prasad u/s 302, IPC is set aside. He is acquitted of the charge u/s 302 IPC. Instead he is convicted u/s 304 Part I, IPC and sentenced to seven years'' R.I. He is on bail. His bail bonds are cancelled. He shall be taken into custody to serve out the sentence.
Ordered accordingly.
