Rajasthan High Court - Jodhpur
Bhawani Singh vs State on 21 April, 2018
Bench: Dinesh Mehta, Manoj Kumar Garg
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 256 / 2013
Bhawani Singh S/o Ganga Singh, by caste Rajput, R/o Fogadi, P.S.
Molasar, Tehsil Deedwana, Distt. Nagaur
----Appellant
Versus
State of Rajasthan
----Respondent
_____________________________________________________
For Appellant(s) : Mr. D.S. Thind
For Respondent(s) : Mr. S.K. Vyas, AAG
_____________________________________________________
HON'BLE MR. JUSTICE DINESH MEHTA
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Order
21/04/2018
BY THE COURT (PER HON'BLE MANOJ KUMAR GARG)
Instant criminal appeal has been filed by the appellants under Section 374(2) of Cr.P.C. against the judgment and order dated 07.02.2013 passed by the learned Add. Sessions Judge, Deedwana, Distt. Nagaur in Sessions Case No. 16/2010 whereby, the trial court convicted the present appellant for the offence under Section 302 IPC and sentenced him to undergone life imprisonment alongwith fine of Rs. 1000/-, in default of payment of fine to undergo one month simple imprisonment.
As per brief facts of the case, the complainant Shambhu Singh (PW/4) lodged a written report before the S.H.O. Police Station, Molasar on 28.07.2010 stating that in the morning, (2 of 15) [CRLA-256/2013] Ganga Singh S/o Amar Singh was sleeping in his room and complainant was sleeping nearby, at about 3.30 AM, the appellant Bhawani Singh came and inflicted blows with a sharp edged weapon on Ganga Singh. The blood started oozing out which spread on the cot and the floor. The complainant took his father Ganga Singh to the Government Hospital, Molasar but since the injured was in serious condition, he was referred to move to Sikar Hospital. When they reached Sikar Hospital, the doctor examined Ganga Singh and declared him dead.
The aforesaid information was exhibited as Ex.P/8. A formal FIR No. 82/2010 was lodged at Police Station, Molasar for offence under Section 302 IPC. After registration of FIR (Ex.P/14), regular investigation was conducted and accused appellant was arrested. The police after thorough investigation filed a challan against the accused appellant before the court of Additional Chief Judicial Magistrate, Deedwana from where the case was transferred to the court of Addl. Sessions Judge, Deedwana for trial where charges were framed against the appellant for offence under Section 302 IPC.
The appellant denied the charges and claimed trial. In the trial, statement of 23 witnesses were recorded including the eye-witnesses and many documens were exhibited by the prosecution, thereafter, statement of accused appellant was recorded under Section 313 Cr.P.C. in which he denied the allegations levelled by the prosecution witnesses and stated that it is a case of false implication. He further mentioned that Shambhu Singh's wife's parents wanted to grab his land, therefore, he has (3 of 15) [CRLA-256/2013] been falsely implicated by the witnesses.
After recording the statement under Section 313 Cr.P.C., an opportunity was granted to the accused appellant to lead evidence but no evidence was led by him in his defence.
After recording evidence of both the parties, final arguments were heard by the learned Addl. Sessions Judge and ultimately convicted the accused appellant for offence under Section 302 IPC and passed sentence as mentioned above.
Learned counsel for the appellant Mr. D.S. Thind argued that there are material contradictions, improvements and omissions in the statement of alleged eye-witnesses PW/4 Shambhu Singh and PW/5 Bajrang. Moreover, these witnesses have not seen the incident therefore, they have falsely been mentioned as eye- witnesses.
Counsel for the appellant further argued that independent witnesses PW/2 Himmat Singh, PW/6 Surendra Singh, PW/7 gopal Singh all have been declared hostile and they have not supported the prosecution story. He further argued that after the arrest of the accused, a sword was recovered at the instance of the appellant but this weapon was not shown to the witnesses and the doctor in order to ascertain as to whether the injuries were caused by this weapon or not. Further the weapon was also recovered from an open place which does not connect the appellant with the alleged crime, therefore the order of conviction and sentence recorded against the petitioner is liable to be set aside. In the alternative, learned counsel for the appellant argued that the deceased was around 70 years of age and according to the injury (4 of 15) [CRLA-256/2013] report and postmortem report, there is only single fatal blow on the head of deceased and the second injury may have come as a result of first injury therefore, the offence does not travel beyond Section 304 Part I IPC. Thus, the finding of conviction recorded by the trial court for offence under Section 302 IPC is liable to be altered to offence under Section 304 Part I IPC and sentence awarded to the accused appellant deserves to be reduced appropriately because no motive in this case has come on record.
Per contra, learned Government Advocate Mr. S.K. Vyas argued that the occurrence has taken place in the intervening night at about 3.30 AM and at the time of occurrence, Shambhu Singh and Bajrang Singh were present and therefore, their testimony cannot be discarded. After arrest of the accused appellant, sword was recovered from the possession of the appellant and according to FSL report Ex.P/40, blood group of blood found on the sword matched with the deceased. It cannot be said that finding of guilt recorded by the trial court for offence under Section 302 IPC is erroneous and therefore, this appeal may kindly be dismissed.
Heard learned counsel for the accused-appellant as well as learned public prosecutor and perused the judgment impugned as also gone through the record of the case.
PW/1 Ram Singh and PW/2 Himat Singh both are motbirs and PW/2 has been declared hostile. PW/4 Shambhu Singh who is the complainant and eye-witness stated that at 3:30 AM in the morning of 28.07.2010 when his father was sleeping, the accused Bhawani Singh came and inflicted injury on the head of Ganga (5 of 15) [CRLA-256/2013] Singh with a sword. Upon shouting, his neighbours Ajeet Singh, Rajendra Singh, Ram Singh, Bajrang Singh and Himmat Singh came there. On seeing them, the accused appellant ran away. In his cross-examination, he has mentioned that he never saw the accused coming on the spot. He admitted that when he filed the report at Police station, he did not mention that accused inflicted injury by sword (Talwar).
PW/5 Bajrang Singh in his statement mentioned that when he reached there, he saw the accused Bhawani Singh standing there with sword. They took Ganga Singh to Molasar hospital from where they went to hospital at Sikar. He stated that he is nephew of deceased Ganga Singh and he did not see the appellant inflicting injury to the accused appellant.
PW/6 Surendra Singh who is an independent witness did not support the prosecution story and he has been declared hostile. Likewise PW/7 Gopal Singh has also been declared hostile.
PW/11 Vimal Kanwar who is wife of Shambhu Singh mentioned that she was sleeping inside the house and her husband was sleeping outside. Her father-in-law Ganga Singh was sleeping in his room and her brother-in-law (Jeth) came and inflicted sword blow on her father-in-law. In cross-examination, she stated that after hearing the shouts, she came out of the room after about half and hour. She further admitted that in her's and in father-in-law's room there was no light. When she came out of room, she saw accused Bhawani Singh standing at about 400-500 pavandas and she also mentioned that at that time sun was in the sky. The said witness stated that her husband had (6 of 15) [CRLA-256/2013] gone out for buying medicines but she also mentioned that her husband was present in the house.
PW/13 Dr. K.L Chandeliya who examined the deceased Ganga Singh at 5 AM in the morning found two injuries on the body of deceased. He referred the injured to Government Hospital, Sikar.
PW/17 Dr. Yusuf Ali Deora conducted the post mortem of deceased Ganga Singh. In his cross-examination, he has stated that bandage was tied on the head of deceased and he did not ask from where the bandage got tied on the head of injured. According to the postmortem report (Ex.P/36) following injuries were found on the body of deceased :-
(i) Incised 20x3cm x bone deep From Temporo occipital through lower 2/3 external pinna of ear extending to maxilla bone on left side.
(ii) Incised 15 cm x 3cm bone deep on Left side of parietal portion of skull The cause of death of deceased was due to shock and haemorrhage caused by brain injury sufficient to cause death.
Thus, according to the doctor PW/17, the cause of death is head injury.
The accused was arrested on 02.08.2010 and after arrest of the accused appellant, at the instance of appellant, one sword (Talwar) and one small piece of sword was recovered from the possession of the appellant vide recovery memo Ex.P/17 and according to FSL report Ex.P/40, blood group of blood found on (7 of 15) [CRLA-256/2013] the sword matched with the deceased.
Upon perusal of statement of the witnesses, it emerges that there are some contradictions in the evidence of PW/4 Sambhu Singh and PW/5 Bajrang Singh as well as PW/11 Vimal Kanwar W/o Shambhu Singh but we cannot ignore the evidence of all the witnesses to the effect that on 28.07.2010 at 3:30 AM, the accused appellant entered the room of deceased and inflicted one blow on the head of the deceased. Further, after arrest of the accused appellant, at the instance of appellant, the sword was recovered from the possession of the appellant and according to FSL report Ex.P/40, blood group of blood found on the sword matched with the deceased. The motive part was missing in this case.
At this stage, it is relevant to refer to Section 300 of IPC which reads as under :-
"300. Murder--.Except in the case hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--
Secondly--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--
Thirdly--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--
Fourthly--If the person committing the act knows that (8 of 15) [CRLA-256/2013] it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1.--When culpable homicide is not murder.-- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
......x.....xx.....xx..... x..........
......x.....xx.....xx..... x..........
......x.....xx.....xx..... x..........
Exception 4--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 having taken undue advantage or acted in a cruel or unusual manner.
Explanation--It is immaterial in such cases which party offers the provocation or commits the first assault.
.........."
The Hon'ble Supreme Court in the case of State of Himmachal Pradesh Vs. Ram Pal, reported in 2006 (2) SCC (Cri.) 165, gave following verdict to alter the conviction from offence under Section 302 IPC to Section 304 Part-I of IPC, the paras nos. 5 to 8 of the said judgment are as follows:
"5. Having perused the record for the limited purpose of finding the nature of offence, we see that it is clear from the evidence of PW- 3 himself that he and (9 of 15) [CRLA-256/2013] Jaiwant consumed liquor before going to the tea stall of the respondent herein to demand the money which was due to him and when they reached there the deceased went inside the tea stall and started quarreling with the accused persons. During the said quarrel it is stated that the deceased called the accused persons as "cheat" and "beiman" and the quarrel then spilled outside the stall at which point of time a stick that was carried by Choudhary Ram was snatched by PW- 3, in the process Choudhary Ram got injured and fell down. Here we must notice the case of the defence is that PW- 3 assaulted Choudhary Ram which caused him facial injury and noticing his father being assaulted the respondent intervened and assaulted PW- 3 first with a knife and then assaulted the deceased twice on his back.
6. On the facts of this case whichever version we take it is clear that it is the deceased and PW- 3 after consuming liquor went to the tea stall of the accused. When the deceased went inside and abused the accused, the said verbal quarrel then spilled outside the shop when Choudhary Ram was injured on the fact either intentionally or otherwise by PW- 3. It is at that time the respondent stabbed PW--3 and the deceased. From the above facts stand proved are (a) the deceased went with PW- 3 to the shop of the accused;
(b) picked up an argument during which he abused the accused; (c) Choudhary Ram was injured first and then the respondent stabbed PW- 3 and the deceased; (d) injury was inflicted on the back of the deceased.
7. On the above facts we are of the opinion that the High Court was justified in altering the sentence from Section 302 IPC to Section 304 Part I IPC. We are also in agreement with the finding of the High Court that sentence of over 4 years' RI suffered by the respondent meets the ends of justice.
(10 of 15) [CRLA-256/2013]
8. For the reasons stated, this appeal fails hence dismissed."
In the case of Arjun Vs. State of Maharasthra reported in 2012 Cr.L.R. (SC) 506, the Hon'ble Supreme Court gave following verdict:
"17. Considering the background facts as well as the fact that there was no premeditation and the act was committed in a heat of passion and that the appellant had not taken any undue advantage or acted in a cruel manner and that there was a fight between the parties, we are of the view that this case falls under the fourth exception to Section 300 IPC and hence it is just and proper to alter the conviction from Section 302 IPC to Section 304 Part 1 IPC and we do so.
18. We are informed that the appellant is in custody since 30.07.2003. In our view, custodial sentence of 10 years to the accused-appellant accordingly. The appeal is accordingly disposed of, altering the sentence awarded."
In the case of Sudhakar Vs. State of Maharasthra reported in (2012) 9 SCC 725, the Hon'ble Supreme Court held as under:
8. Whatever be the subsequent versions made by P.Ws 1 and 2 before the Court, it came out in evidence that at the time of occurrence there were only three persons, namely, the appellant, P.W.1 and the deceased. The admission of P.W.1 that the deceased had drinking habit and that whenever he was under the influence of liquor he used to create a ruckus in the house was a factor which had to be necessarily borne in mind while considering the offence alleged and proved against the appellant. Though there is variation in the version of P.W.1, as between the complaint and her (11 of 15) [CRLA-256/2013] evidence before the Court, going by the evidence available on record, the conclusion of the Trial Court that the appellant was responsible for the death of the deceased is unassailable. Apart from the exclusive presence of the appellant with a weapon in his hand as deposed by P.W.2, the other two persons were the deceased and P.W.1. The said conclusion of the Trial Court as well as that of the High Court cannot be doubted. Further the report of the chemical analysis Exhibits 35 and 36 also disclosed that the blood stained clothes of the appellant matched with the blood group of the deceased which were found on the clothes of the deceased himself. Therefore, there was conclusive proof to hold that it was appellant who was responsible for the single stab injury inflicted upon the deceased with the aid of the knife seized under Exhibit-47.
Having reached the above conclusion, the only other question raised was as to whether there is any mitigating circumstance in order to hold that the offence would fall under any of the Exceptions to Section 300 of IPC to state that it was a case of culpable homicide not amounting to murder."
The Hon'ble Supreme Court in the case of Dilip Kumar Mondal & Anr. Vs. State of West Bengal, reported in 2015 (2) SCC (Cri.) 318 held as infra: -
"24. In order to invoke Exception 4 to Section 300 Indian Penal Code, it must be further shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The Appellants are said to have inflicted injuries with henso and dau. By a perusal of Ext. P6 post-mortem certificate, it is seen that the deceased sustained one incised injury on the back which has caused injury to scapula and spinal cord and another incised wound over the back just below the (12 of 15) [CRLA-256/2013] right scapula causing injury to the right lung and pleura. Insofar as the injuries caused to Ranjit Debnath and Santosh Debnath, there is no sufficient evidence as to the alleged injuries caused to them. As far as PW- 10-Nikhil Debnath is concerned, he was discharged from the hospital after giving first aid treatment indicating thereby that the injury was not grievous. Considering the injuries, in our view, it cannot be said that the accused have taken undue advantage of the situation. The incident was not premeditated and the scuffle between the parties led to the causing of injuries to the deceased Nripen Debnath and considering the circumstances of the case, in our view, the offence would fall Under Section 300 Indian Penal Code Exception 4 and the conviction of the Appellants is to be modified and altered Under Section 304 Part I IPC."
In the case of Arjun & Anr. Vs. State of Chhattishgarh reported in A IR 2017 SC 1150, the Hon'ble Court held as infra:
"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 not 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 (13 of 15) [CRLA-256/2013] murder and bodily injury, then the 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 the 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."
The Hon'ble High Court of this Court in the case of Dharma Ram & Anr. Vs. State of Rajsthan [2012 (14) Cr.L.R. (Raj.) 1914] (Supra) has held as infra :
"In the end, looking to all the evidence available on record and particularly looking to the injuries caused to Ganesh and the manner in which the injuries were caused, it appears to be a case of culpable homicide not amounting to murder because act of both the accused-appellants appears to have been done with the knowledge that it is likely to cause death, but without any (14 of 15) [CRLA-256/2013] intention to cause death, or to cause such bodily injury as is likely to cause death. Culpable homicide is not murder if it is committed without premeditation in sudden fight in a heart of passion upon sudden quarrel and without the offender having taken undue advantage or acted in crucial or unusual manner. In such case, it is immaterial, which party offers provocation or commits the first assault. Thus, both the accused-appellants Dharma Ram and Chaina Ram should have been convicted by the Trial Court under part II of Section 304 of Indian Penal Code, rather than under Section 302/34 of Indian Penal Code."
Recently the Division Bench of this Court in the case of Madhu Lal & Ors. Vs. State of Rajasthan, DB Cr. Appeal No.130/2015, decided on 24.08.2017 while partly allowing the appeal, convicted the accused-appellant for offence under Section 304 Part-I IPC instead of offence under Section 302/149 IPC. It was held by the Division Bench as under :-
"While considering the verdict of Honble Apex Court in case of Poona Ram (supra), in which 33 injuries were found upon body of deceased including fractures upon vital parts of the body, Hon'ble Supreme Court held that in absence of any intent or premeditation, the offence will fall under Section 304 Part I IPC. Similarly, Hon'ble Supreme Court in the case of Surain Singh (supra) held that if there is intent and knowledge then same shall be a case of Section 304 Part I IPC. In this case also upon assessment of evidence, we find that finding of guilt recorded by the trial court under Section 302/149 IPC is not sustainable in law because the incident took place all of sudden when objection was raised by the deceased Kalu Ram why animals of (15 of 15) [CRLA-256/2013] appellants entered in my agricultural field, in our opinion, there is no evidence of motive to kill the deceased Kalu Ram and it is a case of culpable homicide not amounting to murder. Therefore, we are inclined to accept the prayer of accused appellants to alter the offence from Section 302/149 IPC and 148 IPC to Section 304 Part I IPC."
In this case also upon assessment of evidence, we find that finding of guilt recorded by the trial court under Section 302 IPC is not sustainable in law because there is no evidence of motive to kill the deceased Ganga Singh and it is a case of culpable homicide not amounting to murder. Therefore, we are inclined to accept the prayer of accused appellant to alter the offence from Section 302 IPC to Section 304 Part I IPC while enhancing the amount of fine.
Consequently, the appeal is partly allowed. The conviction and sentence passed against the accused appellant Bhawani Singh S/o Ganga Singh for offence under Section 302 IPC is quashed and set aside and is hereby altered to offence under Section 304 Part I IPC and the sentence of life imprisonment passed against him is hereby reduced to ten years rigorous imprisonment, however, the fine is enhanced from Rs. 1000/- to Rs. 10,000/-. The said amount shall be deposited by the appellant within a period of two months failing which the appellant shall undergo further one year rigorous imprisonment.
(MANOJ KUMAR GARG) J. (DINESH MEHTA) J. bjsh