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2018 Supreme(All) 576
ALLAHABAD HIGH COURT
(Lucknow Bench)
BEFORE : ANIL KUMAR AND SANJAY HARKAULI, JJ.
AMAR PAL MAURYA ....Appellant
Versus
STATE OF U.P. ....Respondent
(Criminal Appeal No. 1481 of 2015, decided on 17th May, 2018)
Counsel :
Anuj Dayal for the Appellant; A.G.A. for the Respondent.
Headnote:(Indian) Penal Code, 1860—Sections 304, Part II, 302 and 504—Murder—Conviction—Sustainability of—Culpable homicide and murder—Distinction—Incident in question taken place on the spur moment without any intention on part of accused—Deceased himself went to house of accused-appellant to take back Rs. 1500 by way of loan to him, altercation started and appellant stabbed deceased with knife—Mere possibility of knowledge that death is a consequence of an act is inadequate to draw an inference as to existence of requisite knowledge in mind of the accused—Act on part of accused is due to sudden provocation without any predetermination of mind and in this regard no evidence has been brought on record by prosecution that he has intention to kill—Instant case fall within ambit of Part II Section 304 and not under Section 302—Impugned sentence modified to rigorous imprisonment for 10 years with a fine of Rs. 2000. [Paras 33 to 50]
Result; Appeal Partly Allowed.
Hon’ble Anil Kumar, J.—Heard Sri Anuj Dayal, learned counsel for appellant-accused, Ms. Nand Prabha Shukla, learned AGA and perused the record.
2. Under challenge in the instant appeal is the judgment and order dated 3.11.2015 passed by Additional Sessions Judge, Court No. 4, Sitapur in Sessions Trial No. 928 of 2011 (State v. Amarpal Maurya) arising out of Crime Case No. 103 of 2011 under Section 302, 504 I.P.C. Police Station, Pisawan, District Sitapur whereby the appellant/Amar Pal Maurya was convicted for the offence under Section 302 I.P.C., sentenced with the imprisonment of life and also fine of Rs. 2000/- with the default stipulation of one year additional rigorous imprisonment.
3. In brief, case of the prosecution was that the complainant, Naresh S/o Puttu R/o Village - Dhakhaura Thana Piswan District Sitapur lodged a First Information Report at Thana - Pisawan District Sitapur on 20.3.2011 that his brother Raju who is a labour in Delhi had come to celebrate Holi festival at his house. Four months prior to the incident, Raju had given Rs. 1500/- as a loan to Amar Pal Maurya, on the said date at 01.30 p.m. when Raju went to take back his loan from Amar Pal Maurya, started abusing him, thereafter there was an altercation and fight taken place between them.
4. After hearing the noise, he, Mukesh, Sripal, Vishambhar and other persons of the village came to the spot, saw that Amar Pal Maurya with a knife assaulted his brother/Raju on chest and head, as a result of which he fallen down thereafter died.
5. Accordingly, an investigation had been entrusted to Ashok Kumar Pandey, Station Officer, Thana Piswana, District - Sitapur, a Crime Case No. 103/2011 under Sections 302, 504 I.P.C. has been registered.
6. On the same day, an entry in the GD (Exht. -5) has been made. The Investigating Officer, went on the spot, recover the knife, prepared recovery memo and also prepared site plan where knife was recovered (Exht. 14 and 12). After preparing the Panchnama and after taking the signature of the witnesses, sent the body of the deceased for autopsy/postmortem to the District Hospital, performed by Dr. A.K. Mishra, as per the autopsy report, the following injuries were found on the body of the deceased/Raju :
“1. Stab wound 1.5 cm X 1 Cm X chest cavity deep present on chest 5 cm to right of left nipple horizontally & 10 cm below sternal notch : underlying heart is penetrated & 1.5 litres of liquid & clotted blood present in chest cavity edges of wound clear cut & curved with sharp angles at both ends.
2. Incised wound present over right side of head 1.5 cm. X 1 cm X bone deep edges everted & clear cut.
And cause of death was due to shock and blood oozing as a result of injury NO. 1 1 (Antemortem).
7. Thereafter, S.T. Case No. 928/2011 has been instituted under Section 302, 504 I.P.C. Charges were framed against the accused-Amar Pal Maurya.
8. On behalf of the prosecution, following witnesses were produced :
1. P.W.-1/Naresh-complainant
2. P.W. - 2/Mukesh
3. P.W.-3/Dr. A.K. Mishra
4. P.W.4/Head Const. Girish Dutt Pandey
5. P.W.-5/Inspector Ashok Kumar Pandey.
9. And following documentary evidences were also produced by the prosecution :
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