Rajasthan High Court - Jodhpur
Bheema vs State Of Rajasthan on 30 March, 2017
Bench: Gopal Krishan Vyas, G.R. Moolchandani
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
D.B. Criminal Jail Appeal No. 116 / 1990
Bheema S/o Sh. Sawa Meena, Resident of Kanpur, P.S.
Rishabhdeo, District Udaipur
----Appellant
Versus
State of Rajasthan
----Respondent
_______________________________________________
For Petitioner(s) : Mr. Jagdish Vyas.
For Respondent(s) : Mr. J.P.S. Choudhary, PP.
_______________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE G.R. MOOLCHANDANI
JUDGMENT
30/03/2017 The instant criminal jail appeal has been filed by the accused appellant, Bheema S/o Sawa Meena, against the judgment dated 27th of March, 1990 passed by learned Additional Sessions Judge No.2, Udaipur (for brevity, hereinafter referred to as „Trial Court‟) in Session Case No.6/1987, whereby the appellant, Bheema, was convicted for offence under Section 302 of IPC and sentence of life imprisonment along with fine of Rs.500/- and in default of payment of fine, to further undergo six months‟ rigorous imprisonment was imposed upon him.
(2 of 12) [CRLJA-116/1990] As per facts of the case, a written report (Ex.P.4) written by the Vice-Sarpanch, Sh. Rewachand, was submitted by PW.5, Hakra, at Police Station Kesariyaji on 05.10.1986 to the effect that in their village Tokar, there is temple of Kalaji, and every year on the eve of „Navratri‟, a fair is being organized in the village in which villagers are participating. This year also, the fair was organized by the villagers and villagers participated in the same on 05.10.1986. At about 05.00 PM, an information was received by the Vice-Sarpanch that a dead body of unknown person is lying on the road going towards village Kanpur. The above information was submitted to the police for taking appropriate action for investigation.
The aforesaid written information was signed by the Vice-Sarpanch, Rewachand (PW.3) and submitted by Hakra S/o Kela Meena (PW.5). Upon the aforesaid information, made by Vice-Sarpanch of Gram Panchayat Tokra, Panchayat Samiti Sarada, Distt: Udaipur, through Hakra the FIR No.121/1986 was registered on 05.10.1986, at Police Station Rishabhdeo.
After registration of formal FIR (Ex.P/6) against unknown person and investigation was commenced, and the dead body of deceased was taken to hospital for postmortem, where postmortem was conducted by the Medical Officer (PW.4 Dr. Ramesh Chandra Sharma) of Primary Health Centre, Rishabhdeo, the postmortem report (Ex.P/5) was prepared and handed over to the (3 of 12) [CRLJA-116/1990] investigating officer on 06.10.1986. Driver investigation, the accused was arrested and upon completion of investigation charge sheet was filed against the accused appellant, Bheema under Section 302 of IPC in the court of Munsif and Judicial Magistrate, First Class, Kherwada, from where the case was committed to the court of learned Sessions Judge, Udaipur, from where it was transferred to the court of Addl. Sessions Judge No.2, Udaipur for trial.
In the trial, charge under Section 302 of IPC was framed against the accused appellant, but the accused appellant denied all the allegations levelled against him and prayed for trial.
In the trial, statements of 17 prosecution witnesses were recorded to prove the charge against the appellant and thereafter statements of accused appellant were recorded u/s 313 of Cr.P.C., in which it is accepted by him that deceased, Leelaram, assaulted him and his wife, but no injury was inflicted by me because Leelaram ran away from the place of occurrence, and some other person might have killed him. The appellant accepted that some quarrel took place in the fair with deceased but no injury was caused by him to the deceased.
The learned trial court after recording statements of accused appellant granted an opportunity to lead evidence to the accused, Bheema. In defence two witnesses viz. DW.1 Nagji and DW.2 Kachru Meena, were produced before the court his defence. After recording evidence of (4 of 12) [CRLJA-116/1990] both the sides, final arguments were heard by the trial court and ultimately vide judgment dated 27.03.1990 the accused appellant was held guilty and convicted for offence under Section 302 of IPC, which is under challenge.
At the threshold, learned counsel for the appellant submitted that although prosecution has not proved its case by leading trustworthy evidence against the accused appellant but even if the prosecution story is accepted, then also, no offence under Section 302 of IPC is made out, because as per allegation of the prosecution only one injury by knife was caused by the appellant to the deceased. The prosecution witnesses viz. PW.3 Rewachand, PW.5 Hakra, and PW.8 Velji, categorically deposed in their statements that it was deceased, Leelaram, who firstly inflicted injuries to the appellant and his wife by "Lathi", and ran away, therefore, even if the allegation for inflicting one injury by the accused appellant is accepted, then also, offence cannot travel beyond offence under Section 304 Part-II of IPC because according to statements of all prosecution witnesses, the incident took place all of sudden, there was no pre- meditation and intention or motive of the accused appellant for causing death of deceased the incident took place spur of moment, therefore, finding of guilt is erroneous.
(5 of 12) [CRLJA-116/1990] Learned counsel for the accused appellant further argued that there is medical evidence on record to prove the fact that injuries were caused to the appellant and his wife and to prove the said fact, learned counsel for the appellant, Bheema, invited our attention towards the statement of Dr. Ramesh Chandra Sharma (PW.4), who in his cross-examination has categorically stated that on the date of incident, accused appellant Bheema and his wife were medically examined by him and found injuries upon their body and Injury Reports (Ex.D/3 and Ex.D/4) were prepared which proves that injuries were caused to the appellant and his wife but there is no explanation of the prosecution for the said injuries, more so, the prosecution witnesses corroborated before the court that in the fair, deceased, Leela Ram made quarrel with the appellant and his wife and upon sudden provocation, incident took place, in which one injury by knife was caused by the accused appellant to the deceased, Leela Ram. Therefore, the conviction of the accused appellant may kindly be altered to offence under Section 304 Part II of IPC and the sentence of life imprisonment may kindly be altered to the period already undergone by him. In support of his arguments, the learned counsel for the appellant invited our attention towards the judgment reported in 2017 Cr.L.R. (SC) 144.
Per contra, learned Public Prosecutor vehemently opposed the prayer on the ground that there is specific (6 of 12) [CRLJA-116/1990] allegation for inflicting injury, therefore, it cannot be said that there was no intention of the accused appellant to kill the deceased, Leela Ram, because as per prosecution witness, when the deceased after causing injuries to the appellant‟s wife runaway but accused having knife rushed along with other persons and inflicted injury to the deceased, therefore, as per evidence available on record, no error has been committed by the learned trial court to convict the accused appellant for the offence under Section 302 of IPC, the prayer of the accused appellant to alter the conviction from offence under Section 302 of IPC to Section 304 Part-II of IPC does not arise, hence this appeal may kindly be dismissed.
After hearing the learned counsel for the parties, first of all we have perused the statements of PW.3- Rewachand, Vice-Sarpanch of the village, in which he said that in his Village Tokra, near temple of Kalaji, a fair was organized by the Gram Panchayat, being the Vice- Sarpanch, I participated in the fair and Group Secretary, Madhavlal, as well as Class IV employee, Hakra were recovering tax in the fair. At the place of fair, accused Bheema, was talking with another person and at that time, some hot altercation took place in between them and all of sudden, the person with whom Bheema was talking, kicked Bheema, on account of which Bheema dashed with bullock cart. It was further stated that although Bheema was having a "Lathi" in his hand, but the same was (7 of 12) [CRLJA-116/1990] snatched by the said person and thereafter he inflicted injuries to appellant‟s wife as well. The following statement was given PW.3 Rewachand, which reads as under: -
"ogka bl Hkhek eqfYte gkftj vnkyr vkjS ?kkMs k+ Mkjs okys dh vkil eas ckr py jgh Fkh fd rqe bl ?kkMs k+ Mkjs pdjh eas vkSjrkas vkSj vknfe;kas dks lkFk eas cSBkrs gks vkSj il S k yrs s gks vkSj pdjh dks iqjk pykrs ugha gks blfy;s bl pdjh dks cUn dj nks fQj eSua s bl Hkhek dks cqyk dj dgk fd vius D;k djuk gS cSBus okys cSBxs s vkSj rq D;kas my>rk gSA Hkhek eqfYte dh ?kjhokyh Hkh ogha ikl eas [kMh+ FkhA e]aS xzqi lfpo vkSj ejs k pijklh Hkh gel c ogha ikl eas [kMs+ FkAs ,d Hkrw iow Z ljip a oys th Hkh [kMk+ FkkA gekjs ihNs ls ,d vkneh vk;k vkSj mlus Hkhek dks ykr ekj nh Hkhek ,d cSyxkMh+ [kMh+ Fkh mlls Vdjk x;kA Hkhek ds gkFk eas ,d ykBh Fkh ydZMh+ dks tks og vkneh vk;k mlus [khp a yh fQj dgk og ydMh+ ml vkneh us idM+ yh vkSj ,d rjQ ls Hkhek ds gkFk eas FkhA euaS s ml ydMh+ dks chp eas ls idM+ yh D;kfas d euaS s lkps k fd ;s vkil eas ,d nl w js dks ihVxas s blfy;s idM+ yh fQj ;s [khp a k rkuh djrs jgs ftl ij og ydMh+ ejs s gkFk ls NVq xbZ vkSj og ydMh+ ml vkneh ds gkFk eas pyh x;h vkSj mlus ys yh mlds cknog vkneh ml ydMh+ dks yd s j djhc 25 QhV uhps ;kfu njw pyk x;k mlus og ydMh+ vius nkus kas gkFkkas ls flj ls mij mBk j[kh Fkh vkSj pkjkas rjQ xqekrk jgkA ml le; Hkhek ogka ejs s lkeus gh [kMk+ Fkk fQj Hkhek dh vkjS r ydMh+ yus s ml vkneh ds ikl x;h fQj ml vkneh us rhu ykBh Hkhek dh vkSjr ds ekj nhA bl ij og ogka cBS xbZ vkjS og vkneh ogka ls Hkx x;kA fQj Hkhek ejs s ikl ls ml vkSjr dh rjQ pyrk gqvk pyk x;k] nkSMr+ k gqvk ughAa ejs s vkxa u chp eas ,d ukyk gS vkSj ml ukys ds vkxs ,d [krs gS ml [krs es ml vkneh dks tkrs gq, n[s kkA** Similarly, other witness PW.5 Hakra deposited in his statement that in fair a quarrel took place in which one person caused injury to the accused, Bheema and his wife.
(8 of 12) [CRLJA-116/1990] Following statement was given by him, which reads as under: -
"d s j hc M<s + lky igys dh ckr eSa dYyk th dk ey s k t ks fd Bkd s j rkykc ds ikl eas yxrk gS]a ml ejs s eas FkkA e]aS ek/koyky ip a k;r ds lfpo ,oa jos kpna miljip a rhukas mDr ey s s es x;s FkAs eSa Lo;a ip a k;r dk pijklh gAaw ge ey s s dk VDs l oly w djus x;s FkAs esys es >wys dh pdjh py jghFkhA ge lHkh olqyh djrs djrs ogka igp aq As ogka ij Hkhek eqyfte pdjh okys ls yMk+ bZ >xMk+ dj jgk FkkA Hkhek eqyfte dks eSa tkurk gaw og jkeiqj dkjgus okyk gSAa ejs s xkoa ls eqyftr Hkhek dk xkoa jkeijq nks ehy njw gSA ukVs % eqyfte Hkhek vkt tSy ls mifLFkr ugha gqvk gaS ftldh mldh vuqifLFkfr eas fo}ku odhy eqyfte dks mifLFkfr eas mldh vkt dh tkjh ekQ dh tkdj c;ku fy;s tk jgs gSA½ fQj og pdjh okyk gekjs ikl vk;k vkSj gels dgk fd ;g dkbs Z vkneh gaS tks eq>ls >xMk+ dj jgk gAS fQj miljip a jos kpna us Hkhek dks cqyk;k vkSj dgk fd rw blls D;kas yMk+ bZ&>xMk+ dj jgk gSA rc Hkhek us dgk fd ;g T;knk il S k yrs k gS vkSj de pDdj yxkrk gS blfy;s eSa >xMk+ dj jgk gAaw fQj miljip a Hkhek dks vyx ys x;kA mlds ckn dkbs Z ,d vkneh vk;k vkSj mlus Hkhek dks Bkd s j ekjh blds cknHkhek us ml vkneh ds ekjus ds fy;s ykBh mBkbZ rc miljip a lkgc us ;g ykBh idM+ yhA fQj og ykBh ,d rjQ ls Hkhek us idMh+ gqbZ Fkh vkjS ,d rjQ ls ml vkneh us idM+ yh vkjS chp eas ls miljp a us idMh+ gqbZ Fkh fQj [khpkrkuh eas jos kpna miljip a ds gkFk ls og ykBh NVw xbZ vkSj og ykBh ml vkneh ds gkFk eas jg xbZA og vkneh vc ftna k ugha gSA og vkneh ml ykBh dks yd s j FkkMs h+ njw Hkkx x;kA fQj Hkhek dh vkSjr ml ykBh dks ml vkneh ls yus s xbZA fQj ml vkneh us nks rhu ykBh Hkhek dh vkSjr ds ekj nhA fQj Hkhek dh vkSjr ogka fxj xbZ vkSj og vkneh Hkkx x;kA mlds lkFk Hkhek Hkh ml vkneh ds ihNs HkkxkA blds ckn eaS dqN ugha tkurk gAaw blds ckn irk yxk fd dkbs Z vkneh ejk gqvk ogka lqeMs k+ ds ikl iMk+ gSA lqeMs k+ txg dk uke gAS tks ey s s ls dkuijq tkos rks jkLrs eas iMr+ k gSA fQj ge ey s s eas oly w h dj jgs Fks rc ljip a l kgc dk Hkts k gqvk vk vkneh vk;k vkSj mlus miljip a dks dgk fd ljip a mls cqyk jgk gS rks fQj ge lc ljip a ds ikl ey s s ds (9 of 12) [CRLJA-116/1990] ckgj x;s tgka ljip a cBS k gqvk FkkA ljip a ds ikl Hkrw ioZw ljip a oy s th Hkh cBS k gqvk FkkA ljip a lkgc us dgk fd dkbs Z vkneh ejk gqvk gS rks viu n[s kdj vkrs gaS fQj ge lc ogka n[s kus x;s rks n[s kk fd lqeMs k+ ds ikl ,d vkneh ejk gqvk iMk+ FkkA---"
Another witness Velji (PW.8) stated before the court that the in the incident took place at village Tokra on the eve of "Navratra" some quarrel took place in between Leela Ram (deceased) and Bheema in which accused appellant, Bheema inflicted one injury by knife to the deceased. The other witnesses PW.2, Gopal, PW.9 Ratna, PW.10 Smt. Badi, and PW.11 Chetan, all these witnesses categorically stated that only one injury was caused by accused appellant to the deceased and due to said injury, Leela Ram died.
Upon assessment of entire evidence, it is revealed that there was no intention or motive of the appellant Bheema, to cause death of deceased, Leela Ram. The incident took place all of sudden in a quarrel took place due to some hot discussion in the fair organization by the Gram Panchayat, it is admitted case of prosecution that only one injury by knife was inflicted by the appellant upon the back of the deceased and as per statement of Dr. Ramesh Chandra Sharma (PW.4). The deceased died due to excessive loss of blood due to said injury caused on back by the appellant.
In view of above, there is no doubt that occurrence took place all of sudden due to some hot discussion in (10 of 12) [CRLJA-116/1990] which the deceased, Leela Ram, inflicted injuries by "Lathi" to the accused, Bheema and his wife, and one injury was inflicted by the accused appellant to the deceased by knife, and that injury was proved to be fatal, however, the above fact itself cannot be a good reason to conclude that there was any intention of the appellant to commit murder of the deceased. It is also admitted fact of the prosecution that first deceased Leela Ram, assaulted the appellant and his wife, as evident from injury report (Ex.D/3 and D/4), these injuries were caused by "Lathi" as per statements of Dr. Ramesh Chandra Sharma. Deceased suffered one injury on his back, which resulted into his death. Had there been any intention of the accused appellant to cause murder, he would have inflicted repeated blows on the person of deceased but as per prosecution evidence only one injury was caused by the accused appellant by knife, therefore, we have no hesitation to alter the conviction from the offence under Section 302 of IPC to 304 Part-II of IPC.
Recently, in the judgment of Hon‟ble Apex Court in the case of Vijay Pandurang Thakre & Ors. Vs. State of Maharashtra reported in 2017 Cr.L.R. (SC) 144, while considering the earlier decision, following adjudication has been made by the Apex Court, which reads as infra:
"18. No doubt, in the scuffle that took place, one blow came to be inflicted on the (11 of 12) [CRLJA-116/1990] head of Ashok which injury proved fatal. However, this by itself cannot be the reason to conclude that there was any intention to commit his murder. If 30 persons had attacked the members of Deshmukh Group, there are no injuries on the vital parts of other persons who got injured in the said episode. Ashok also suffered only one injury on his head and no other injury is on vital part of his body. Had there been any common objective to cause murder of the members of Deshmukh Group, there would have been many injuries on deceased Ashok as well as other injured persons on the vital parts of their body. On the contrary, it has come on record that the injuries suffered by other persons are on their back or lower limbs i.e. legs etc.
19. We, thus, hold that there was no preconceived common object of eliminating the members of Deshmukh family and group and the assembly was not acquired with any deadly weapons either, as held by the High Court. Even the High Court has not pointed out any such evidence. These findings are hereby set aside. The conviction of the appellants under Section 302 IPC is converted into Section 304-II IPC for which the appellants are sentenced for rigorous imprisonment of seven years each. We were informed that all the appellants have already undergone sentence of seven years or more. If that is correct, these appellants shall be released forthwith, if not required in any other case.
Appeals are allowed partly in the
aforesaid terms."
(12 of 12)
[CRLJA-116/1990]
While following the aforesaid judgment, the prayer of the accused appellant to alter the conviction from offence under Section 302 of IPC to offence under Section 304 Part-II of IPC, deserves acceptance.
The accused appellant remained in custody from 06.10.1986 to 22.12.1990 i.e. for more than four years, therefore, the instant appeal is hereby partly allowed and the conviction of the accused appellant under Section 302 of IPC is hereby set aside, however, the appellant is hereby held guilty for offence under Section 304 Part-II of IPC. The sentence awarded to the accused appellant for life imprisonment is hereby reduced to the sentence already undergone. The accused appellant is on bail, therefore, his bail bonds are hereby discharged. The fine part imposed upon the accused appellant is hereby maintained.
Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellant is directed to forthwith furnish personal bond in the sum of Rs.20,000/- and a surety bond in the like amount, before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against the judgment or for grant of leave, the appellant, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court.
(G.R. MOOLCHANDANI)J. (GOPAL KRISHAN VYAS)J. DJ/- 89