Rajasthan High Court - Jodhpur
Naina Ram vs State on 28 November, 2017
Bench: Gopal Krishan Vyas, Virendra Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
D.B. Criminal Appeal No. 74 / 2016
Naina Ram S/o Shri Hanza Ram, By caste Garg, Resident of Naya
Komta, Sayla Police Station, Teshil Sayla, District Jalore.
[Lodged in Central Jail, Jodhpur]
----Appellant
Versus
State of Rajasthan
----Respondent
_____________________________________________________
For Appellant(s) : Mr. Deepak Bora, Amicus Curiae
For Respondent(s) : Mr. Vishnu Kachhawaha, PP.
_____________________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE DR. JUSTICE VIRENDRA KUMAR MATHUR
JUDGMENT
Date of Judgment 28/11/2017 In this criminal appeal filed under Section 374 (2) Cr.P.C., the accused appellant has assailed the validity of judgment dated 03rd of November 2015 passed by learned Sessions Judge, Jalore in Session Case No. 38/2012, whereby the accused appellant was convicted for offence under Section 302 of IPC and sentence of life imprisonment along with fine of Rs.1000/- was imposed against him with default stipulation to further undergo three months' additional simple imprisonment.
(2 of 12) [CRLA-74/2016] Succinctly stated, the facts of the case are that on 01.07.2012, a written complaint (Ex.P/17) was submitted by complainant, Mohan Lal (PW.6) to the effect that mother of complainant had already expired 12-13 years back and they are five brothers and he is eldest one amongst other brothers namely, Nainaram, Pakaram, Jakia and Popat. Except he and his brother, namely, Jakia, his other brothers are bachelor and two brothers, namely, Jakia and Pakaram are serving in a hotel at Mumbai for last 12 months. As per complainant, he is living upon the Well of one Bhabhut Singh along with his children and in the house at Komta, his father and two brothers, namely, Nainaram and Pakaram are residing. The complainant further stated that today in the morning at 6'O clock he received a phone call from his brother, Popat that his father is not feeling well, therefore, he should come immediately.
Upon receiving the aforesaid information, the complainant wile hiring a vehicle reached at his village Komta at 07.30 AM and saw that dead body of his father was lying in the house. His brother- Popat who was standing there informed that another brother Nainaram, inflicted injury by axe and caused death of their father. His brother, Popat specifically said that Nainaram caused injury upon the neck of deceased. Thus by way of submitting complaint, the complainant prayed for taking action against the accused appellant- Nainaram.
Upon the aforesaid written complaint submitted by complainant- Mohanlal (PW.6), formal F.I.R. No.121/2012 was registered for offence under Section 302 of IPC at Police Station (3 of 12) [CRLA-74/2016] Sayla, District Jalore. The accused appellant was arrested and an axe was recovered as per information given by him under Section 27 of the Evidence Act. The dead body of the deceased- Hanja Ram, father of complainant and accused appellant was taken to Primary Health Centre, Sayla, where the Medical Officer conducted postmortem of dead body of Hanja Ram and gave postmortem report (Ex.P/8) on 01.07.2012.
All the proceedings were undertaken by the investigating officer and on completion of investigation, charge sheet was filed against the accused appellant in the court of Judicial Magistrate, Jalore from where the case was committed to the court of Sessions Judge, Jalore for trial. The learned trial court after providing opportunity of hearing to the appellant, framed charge against the accused appellant under Section 302 of IPC but the accused appellant denied the charge and prayed for trial.
In the trial, statements of 15 prosecution witnesses were recorded including complainant PW.6- Mohanlal and eyewitness PW.5- Popat and PW.3- Dr. D.R. Choudhary, who conducted the postmortem of the dead body of Hanja Ram. PW. 7 Babu and PW.10 Devi Singh were examined, before whom the accused appellant made confession and accepted his guilt. After completion of evidence of the prosecution, statements of accused appellant were recorded under Section 313 Cr.P.C., in which all the allegations made by prosecution witnesses were refuted by him and it was specifically stated that the entire prosecution case is false but no evidence was produced in defence inspite of granting of opportunity by the trial court. One document Ex.D/1 statement (4 of 12) [CRLA-74/2016] of Popat recorded under Section 161 Cr.P.C. was exhibited in defence.
The learned trial court after recording evidence proceeded to hear final arguments. At the conclusion of trial, the learned trial court proceeded to convict the accused appellant for offence under Section 302 of IPC vide its judgment dated 03.11.2015, and sentenced him for life imprisonment along with fine. In this appeal, the judgment is under challenge.
Learned amicus curiae submitted that the appellant is not disputing the incident, which took place in the house of appellant Nainaram on 01.07.2012, but argued that as per statement of eyewitness PW.5- Popat the occurrence took place all of sudden due to some quarrel in between the accused Nainram and his father Hanjaram in a spur of moment and only one injury was caused by axe lying in the house upon the neck of his own father Hanjaram and due to said injury Hanjaram died.
Further, submitted that Dr. D.R. Choudhary (PW.3) specifically stated in his statements that the injury caused upon the neck was not cause of death of the deceased Hanjaram, therefore, learned counsel for the appellant submitted that the finding of guilt recorded by the trial court for offence u/s 302 IPC is not sustainable because as per evidence on record, the offence cannot travel beyond offence under Section 304 Part-I of IPC instead of 302 of IPC.
Learned Amicus curiae further argued that the axe which is said to be recovered as per information given by accused appellant, although was sent for chemical examination to the FSL (5 of 12) [CRLA-74/2016] but no blood was detected upon the axe, which is said to be used by the appellant for inflicting injury as per FSL Report (Ex.P/33). It is further argued that admittedly the deceased- Hanjaram, father of the appellant was very strict and his behaviour towards family member was quarrelsome and due to said reason occurrence in question took place, therefore, the finding of guilt recorded by the trial court under Section 302 IPC may kindly be altered to offence under Section 304 Part-I of IPC because the appellant is not disputing the incident. He further argued that as per evidence there was no premeditation or intention on the part of appellant to cause death of his father, the incident took place all of sudden that too in a spur of moment, therefore, prayed that conviction of the accused appellant may be converted to the offence under Section 304 Part-I of IPC and sentence may be reduced to already undergone.
Per contra, learned Public Prosecutor submitted that since the accused appellant is not disputing the incident, then obviously it can be said that it is a case of offence under Section 302 IPC because in the society no one can be permitted to make quarrel with his parents, but in this case, injury was inflicted by the appellant by a sharp edged weapon i.e. axe, upon the neck of the deceased father. Therefore, obviously it is a case in which the trial court has rightly convicted the accused appellant for offence under Section 302 of IPC.
Learned Public Prosecutor thus submitted that no lenient view can be taken in such type of cases whereas injuries are caused by son upon his father, therefore, there is no question to (6 of 12) [CRLA-74/2016] alter the finding of guilt recorded by the trial court from offence under Section 302 IPC to 304 Part-I of IPC. He thus argued that this appeal may kindly be dismissed.
After hearing learned counsel for the parties, first of all we have perused the statements of eyewitness PW.5- Popat, who gave information to the complainant, wherein it was informed that his father is not feeling well, therefore, come soon but the eyewitness PW.5- Popar, brother of complainant and son of deceased, gave following statement which reads as under:
"gkftj vnkyr eqyfte uSukjke ejs k lxk HkkbZ gSA vkt ls djhc ikSus nks lky igys dh ckr gS fd eS]a ejs s firk gatk th] o gkftj vnkyr eqyfte uSujke vius cjs s ij FkAs ml fnu ejs s firkth us uSukjke dks dgk fd **jrukjke tkxs h dh cVs h dh "kknh ls tks rq il S s yd s j vk;k gS] og dgka gS] os eq>s nAs ** yfs du ejs s HkkbZ eqyfte uSukjke us ejs s firk dks iSls ugha fn;As bl ckr dks yd s j ejs s firkth o uSukjke ds chp eas djhc vk/kk ?kVa s rd tkjs &tkjs ls cky s pky gqbZ FkhA rc uSukjke us vko"s k eas vkdj ejs s firkth dks dgk fd **eSa jkt s &jkt s dk ;g >> a V [kRe dj nrs k gaw vkSj rqEgkjk ikik gh dkV nrs k gAaw ** bruk dgdj uSukjke us ogka ij iMh+ dqYgkMh mBkbZ vkSj ejs s firkth ds xnZu ij dqYgkMh+ ls pkVs ekjh ftlls ejs s firk dh e`R;q gks xbZ Fkh vkSj eSa Mj ds ekjs ogka ls Hkkx x;k Fkk vkSj unh eas tkdj Niw x;kA tc eSa okfil lqcg 7 cts vius ?kj vk;k rks ejs s firk dh yk"k ogka ij iMh+ Fkh rc eSua s vius cMs+ HkkbZ ekgs u dks ekd s Mh+ xkoa eas jgrk gS] dks Qksu fd;kA ejs s firkth ey q fte uSukjke dks dke djus ds fy, dgrs Fk]s vkSj eqyfte uSujke dh iRuh tks ejs h cfgu ds lkVs eas vkbZ gqbZ Fkh og Hkh ughsa vkrh Fkh] blfy, ;g dgrk Fkk fd **rqEgkjh otg ls ejs h vkSjr ugha vk jgh gSA** uSukjke "kjkc Hkh ihrk Fkk] bl dkj.k ejs s firk bldks vky s ek nrs s FkAs bl dkj.k uuS jke us ejs s firk (7 of 12) [CRLA-74/2016] dh gR;k dj nhA inz "kZ ih&9 ls yd s j izn"kZ&14 ejs s e`r firk ds QkVs ks gS rFkk inz "kZ ih&15 o 16 ?kVuk LFky ds QkVs kas gSA"
The complainant PW.6- Mohanlal, reiterated the aforesaid fact in his statements recorded during trial.
We have also perused the statements of PW.7 Babu Khan and PW.10 Devi Singh, before whom the appellant made confession for inflicting injury to his father.
To consider the prayer of the accused appellant that offence cannot travel beyond offence under Section 304 Part-I of IPC, we have considered the postmortem report (Ex.P/8) as well as statements of PW.3- Dr. D.K. Choudhary. The witness PW.3- Dr. D.K. Choudhary specifically stated in his statement that two injuries were found upon the body of deceased, out of two injuries one injury was incised wound and second injury was lacerated wound and as per opinion of Dr. D.K. Choudhary deceased Hanjaram died due to the head injury, which was lacerated wound. Upon perusal of postmortem report and statements of the doctor, Injury No.2 was found upon the left occipital region and the said injury was lacerated wound and injury No.1 was incised wound. Admittedly, as per allegations of eyewitness PW.5-Popat only one injury was inflicted by the accused by a sharp edged weapon axe, therefore, we are of the opinion that only one injury was caused by appellant upon the neck of deceased by axe, but the deceased died due to lacerated wound found upon the left occipital region of the deceased, therefore, said injury cannot be attributed to the appellant because eyewitness Popar (PW.5) real (8 of 12) [CRLA-74/2016] brother of the appellant categorically said that only one injury by axe was caused by the appellant.
In our opinion, probably Injury No.2 was caused when the deceased fell down forcibly upon the surface, therefore, we have no hesitation to hold that the prosecution has proved the incident but upon consideration of entire evidence, the finding of guilt recorded by the trial court for offence u/s 302 of IPC deserves to be altered to the offence u/s 304 Part-I of IPC.
To consider the prayer of the appellant to alter his conviction from offence under Section 302 of IPC to 304 Part-I of IPC, we have perused the judgment in the case of Arjun & Anr. etc. etc. Vs. State of Chhattisgarh reported in AIR 2017 SC 1150, in which following adjudication is made by the Apex Court which reads as under:
"22. The accused, as per the version of PW-6 and eye witness account of other witnesses, had weapons in their hands, but the sequence of events that have been narrated by the witnesses only show that the weapons were used during altercation in a sudden fight and there was no pre-meditation. Injuries as reflected in the post-mortem report also suggest that appellants have n ot taken undue advantage or acted in a cruel manner. Therefore, in the fact situation, exception (4) under Section 300 IPC is attracted. The incident took place in a sudden fight as such the appellants are entitled to the benefit under Section 300 exception (4) IPC.
23. When and if there is intent and knowledge, then the same would be a case of Section 304 Part I IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the (9 of 12) [CRLA-74/2016] same would be a case of Section 304 Part II IPC. Injuries/incised wound caused on the head i.e. right parietal region and right temporal region and also occipital region, the injuries indicate that th e appellants had intention and knowledge to cause the injuries and thus it would be a case falling under Section 304 Part I IPC. The conviction of the appellants under Section 302 read with Section 34 IPC is modified under Section 304 Part I IPC. As per the Jail Custody Certificates on record, the appellants have served 9 years 3 months and 13 days as on 2nd March, 2016, which means as on date the appellants have served 9 years 11 months. Taking into account the facts and circumstances in which the offence has been committed, for the modified conviction under Section 304 Part I IPC, the sentence is modified to that of the period already undergone.
24. In the result, conviction of the appellants under Section 302 IPC read with Section 34 IPC is modified as conviction under Section 304 Part I IPC and the sentence is reduced to the period already undergone and these appeals are partly allowed accordingly. The appellants are ordered to be released forthwith unless required in any other case.
25. Fee of the learned Amicus is fixed as per Rules."
In the case of State of Rajasthan Vs. Poona Ram reported in AIR 2017 SC (Cri.) 144, while considering the appeal filed by the State of Rajasthan against the judgment dated 21.09.2005, did not accede to the prayer of State to convict the accused respondents for offence u/s 302 IPC, who were convicted for offence u/s 304 Part-I of IPC, but while considering the injuries and the fact that evidence of motive was absent, altered the (10 of 12) [CRLA-74/2016] conviction from offence u/s 304 Part-II to offence u/s 304 Part-I of IPC only. The following adjudication was made by the Hon'ble Apex Court in the case, which reads thus:
"5. On behalf of the appellant- State, we were shown the medical evidence consisting of deposition of the doctor, PW-24, who had found total 33 injuries, including fracture, injuries on the head and on sixth to eighteen ribs. There was lacerated wound on right lung. The death, in the opinion of the doctor, was due to head injury and injury to the right lung. The injuries were also found sufficient to cause death. On the basis of the same, it has been submitted that the trial court committed no error in inferring an intention on the part of the accused persons to cause death of the deceased by inflicting so many injuries and, hence the High Court should not have taken a lenient view as done in the order under appeal. He further submitted that even if the intention to cause death cannot be specifically and clearly attributed to the accused persons, they ought to have been convicted for the offence under Section 304-I and more stringent sentence should have been imposed.
6. On the other hand, Ms. Aishwarya Bhati, learned counsel appearing for the respondents highlighted the facts noticed above for submitting that in the absence of any specific allegation as to who caused fatal injuries on the head and ribs, all the accused persons cannot be held guilty of offence under Section 302 IPC because it cannot be said with certainty that they shared a common intention of causing death. None of them had uttered any words to disclose such a intention, nor had they come prepared for such offence by carrying fire arms or any lethal weapon. She further submitted that even if the allegation that the accused persons were under (11 of 12) [CRLA-74/2016] influence of liquor is accepted, it does not aggravate the offence and it will not be appropriate in the facts of the case to hold that they all shared any common intention of causing death.
7. Having considered all the relevant materials and the impugned judgment, as well as the rival contentions, we are of the view that the High Court erred in applying Section 304-II to the offence at hand. Section 304-I of the IPC would clearly cover such an offence where the accused persons caused indiscriminate assault and some of the injuries proved fatal. By the rashness of their act, the accused persons must be treated to be fully in know of the consequence of their acts including possible death. Hence, in the facts of the case, we set aside the impugned judgment and order under appeal and convict the respondent Nos. 1 to 4 for offence under Section 304 Part-I of the IPC. The facts of the case and the ends of justice require that the accused persons should serve at least eight years of rigorous imprisonment and also pay a fine of Rs.25,000/- (Rupees twenty five thousand) each and in default undergo further rigorous imprisonment for six months. We order accordingly. If the fine is realized, the same should be paid as compensation to the heirs of the deceased, if any."
Upon consideration of the evidence of the case in hand, in the light of the judgments of the Hon'ble Apex Court referred to supra, we are of the opinion that the occurrence in question took place all of sudden in a spur of moment, without pre-meditation and without pre-determined motive or enmity, therefore, it is a fit case in which the conviction of accused appellant for the offence u/s 302 of IPC should be altered to offence u/s 304 Part I of IPC.
(12 of 12) [CRLA-74/2016] Resultantly, the present criminal appeal is partly allowed and the conviction of the accused appellant for offence under Section 302 of IPC recorded by learned Sessions Judge, Jalore in Session Case No. 38/2012 vide judgment dated 03rd of November 2015 is hereby quashed and set aside because it is a case of culpable homicide not amounting to murder, therefore, conviction of appellant u/s 302 IPC is hereby altered to offence under Section 304 Part I of IPC, and the sentence of life imprisonment is hereby reduced to ten years' rigorous imprisonment, however, the order of fine is hereby maintained.
(DR. VIRENDRA KUMAR MATHUR) J. (GOPAL KRISHAN VYAS) J. DJ/-
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