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2009 Supreme(UK) 134
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Prafulla C. Pant, B.S. Verma, J.
Vikka. ...Appellant.
Versus
State…..Respondent.
Criminal Jail Appeal No. 268 of 2002
Decided on : 26.03.2009
Ms. Krishi Shukla, Amicus Curiae, for the appellant. Sri Amit Bhatt, Additional Government Advocate for the State.
Along with
Criminal Jail Appeal No. 270 of 2002
Ms. Krishi Shukla, Amicus Curiae, for the appellant. Sri Amit Bhatt, Additional Government Advocate for the State.
The main legal point established in the judgment is the distinction between murder and culpable homicide not amounting to murder under the Indian Penal Code, and the application of Section 34 regarding common intention.
Headnote:
Criminal Procedure Code - Criminal Trial - Indian Penal Code - 302, 34 - Summary of Acts and Sections
Fact of the Case:
The case involved the conviction of two appellants under Section 302 and Section 302 read with Section 34 of the Indian Penal Code for causing the death of the deceased Balbir Singh.
Finding of the Court:
The court found that the prosecution had proved beyond reasonable doubt that the accused Shankra caused the homicidal death of Balbir and accused Vikka had common intention with Shankra in the commission of the offense. However, the act did not amount to murder but constituted culpable homicide not amounting to murder under Section 304 Part II of the Indian Penal Code.
Issues: The main issue was whether the act committed by the accused amounted to murder or culpable homicide not amounting to murder.
Ratio Decidendi: The court concluded that the act on the part of the accused with common intention did not constitute murder but fell under culpable homicide not amounting to murder under Section 304 Part II of the Indian Penal Code.
Final Decision: The appeals were allowed partly, and the convictions and sentences were set aside. The accused Shankra was convicted under Section 304 Part II I.P.C. and accused Vikka was convicted under Section 304 Part II read with Section 34 I.P.C. Each of the accused was sentenced to rigorous imprisonment for a period of seven years.
These two appeals, preferred under Section 374 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the same judgment and order dated 21.12.2001, passed by learned Sessions Judge, Tehri Garhwal, in Sessions Trial No. 1 of 2001, whereby accused / appellant Shankra has been convicted under Section 302 and accused / appellant Vikka has been convicted under Section 302 read with Section 34 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.). Each one of the convicts is sentenced to imprisonment for life and also directed to pay fine of Rs.2,000/-, in default of payment of which the defaulter is required to undergo simple imprisonment for a period of three months.
2. Heard learned counsel for the parties and perused the trial court's record.
3. Prosecution story in brief is that on 02.11.2000, P.W.3 Smt. Tara Devi made a report to area Patwari Nainbagh, Patti Silwad-Jaunpur, Tehri Garhwal, that she was informed on 01.11.2000 at about 2.00 P.M. by Kundanu (P.W.2) and Shankra Singh (accused) that her husband Balbir Singh (deceased) is lying dead in a gorge. She further disclosed in her report (Ext.A-1), made to the Patwari, that earlier accused Vikka on 31.10.2000 had expressed his annoyance against the deceased Balbir on account of some dispute of money and he had threatened him to kill. She (Smt. Tara Devi) suspected that he (Vikka) might have his hand in the murder of her husband. (In interior hills of Uttarakhand revenue officials are given police powers under U.P. Government Notification No. 494/VIII- 418-16, dated 07.03.1916). On the basis of report of Tara Devi, the area Patwari registered Crime No. 5 of 2000, relating to offence punishable under Section 302 I.P.C. against accused / appellant Vikka. Sri Manendra Singh, Patwari, to whom the report was made, prepared Check Report (Ext.A-5) on the basis of report (Ext.A-1), and started the investigation of the case.
He took the dead body of the deceased in his possession and prepared Inquest Report. He also prepared other necessary papers and sample seal and got sent the dead body for postmortem examination in a sealed cover. P.W.5 Dr. Gyanendra Singh on 03.11.2000 conducted postmortem examination of the dead body and prepared Autopsy Report (Ext.A-4). In the opinion of the Medical Officer cause of death was coma due to ante mortem injuries No. 1 and 2 recorded in the Autopsy Report. The Investigating Officer interrogated the witnesses and got recorded the statements of P.W.1 Smt. Roshni (wife of the accused Vikka) and that of P.W.2 Kundanu, under Section 164 Cr.P.C. by P.W.4 Ghanshyam Singh, Sub Divisional Magistrate, Tehri. P.W.1 Roshni in her statement under Section 164 Cr.P.C. disclosed that she saw accused / appellant Shankra beating deceased (Balbir) and Vikka was standing there. In his statement under Section 164 Cr.P.C., P.W.2 Kundanu Lal told the Sub Divisional Magistrate that he saw Shankra beating Balbir. Both these witnesses have further disclosed that when Shankra was beating Balbir, Vikka was standing with him (Shankra). After completion of the investigation, the Investigating Officer P.W.6 Manendra Singh, Patwari, submitted Charge Sheet (Ext.A-9) against both the appellants, namely, Shankra and Vikka, for their trial relating to offence punishable under Section 302 I.P.C..
4. The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., appears to have committed the case to the court of Sessions for trial. Learned Sessions Judge, after hearing the parties, framed charge of offence punishable under Section 302 I.P.C. against the accused Shankra and one punishable under Section 302 read with Section 34 I.P.C. against accused Vikka, to which both of them pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Smt. Roshni (wife of accused Vikka, an eyewitness); P.W.2 Kundanu, an eyewitness; P.W.3 Smt. Tara Devi, compla
