Rajasthan High Court - Jodhpur
Vachangar & Anr vs State on 19 August, 2011
Author: Sangeet Lodha
Bench: Sangeet Lodha
D.B. Criminal Appeal No. 1327/2003
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
JUDGMENT
Vachangar & Anr. Versus The State of Rajasthan
D.B. CRIMINAL APPEAL NO. 1327/2003
Date of Judgment : 19.08.2011
PRESENT
HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE MR. JUSTICE KAILASH CHANDRA JOSHI
Mr. Dhirendra Singh for the appellants
Mr. K.R. Bishnoi - Public Prosecutor
BY THE COURT (PER HON'BLE JOSHI,J.)
This criminal appeal preferred by appellants Vachangar S/o Ganeshgar and Kangar S/o Ganeshgar is directed against the judgment of conviction and order of sentence dated 14.11.2003 passed by the learned Additional District and Sessions Judge (Fast Track), Jalore, Camp Bhinmal in Sessions Case No. 116/2003 (31/2003), whereby appellant Vachangar was convicted for the offence under Section 452, 302 and 323 IPC and appellant Kangar was convicted for the offence under Section 452, 302/34 and 323 IPC and they were sentenced as under :-
Section 302 or 302/34 IPC :
Life term imprisonment alongwith a fine of Rs.3,000/- and in Page 1 of 21 D.B. Criminal Appeal No. 1327/2003 default of payment of fine, further to undergo simple imprisonment for two years.
Section 452 IPC :
Rigorous imprisonment for three years and a fine of Rs.1,000/- and in default of payment of fine, further to undergo simple imprisonment for three months. Section 323 IPC :
Rigorous imprisonment for six months and a fine of Rs.500/- and in default of payment of fine, further to undergo simple imprisonment for one month.
The brief facts of the case giving rise to the present appeal are that on 08.06.2003 at 1.30 a.m. complainant Kishangar (P.W.12) submitted a report (Parchabayan) (Ex.P.13) to Shri Gani Mohd., Sub-Inspector, Police Station Sanchore to the effect that he alongwith his father Amargar had gone to attend the marriage of Mansagar's son. Mansagar is younger brother of Ganeshgar. As the family of Ganeshgar did not come to Mansagar's house, he had gone to call them during the day, but they did not come. In the evening at about 5.00 p.m., Ganeshgar's sons Vachangar, Kangar, Krishangar, Page 2 of 21 D.B. Criminal Appeal No. 1327/2003 Chetangar came to Mansagar's house armed with lathis and asked them why they had come there and gave a lathi blow on his head, due to which he fell down. His father Amargar came to rescue, then Vachangar gave a lathi blows, which hit on Amargar's head. While the complainant was lying on the ground, Vachangar gave a lathi blow on his left thigh. Vachangar again inflicted a lathi blow to Amargar, which hit on his left wrist. Kishangar and Kangar were also armed with lathis, but they did not gave any lathi blows. Mansagar's mother Champa (P.W.4) was the eye-witness who saw the entire incident.
On the basis of the above report, FIR No. 150/2003 was registered at Police Station Sanchore for the offence under Section 307, 323, 454/34 IPC and the investigation commenced. During the course of investigation, injured Amargar died at Mahatma Gandhi Hospital, Jodhpur on 10.06.2003. After usual investigation, police filed charge-
sheet against the appellants for the offence under Section 452, 302, 325 and 323/34 IPC before the Additional Chief Judicial Magistrate, Bhinmal. Since the case was exclusively triable by Court of Sessions, the case was committed to the Court of Additional Sessions Judge, Bhinmal, from where it Page 3 of 21 D.B. Criminal Appeal No. 1327/2003 was transferred to the Court of Additional District and Sessions Judge (Fast Track), Bhinmal on 08.08.2003. The accused-appellants were charged for the offence under Section 452, 302, 302/34, 325, 325/34, 323 and 323/34 IPC. The charges were read over and explained to the accused- appellants, to which they did not plead guilty and faced trial.
To prove the charge, the prosecution examined as many as 18 witnesses, namely, P.W.1 Dr. Babu Lal Bishnoi, P.W.2 Arjun Ram, P.W.3 Masarnath, P.W.4 Champa, P.W.5 Heernath, P.W.6 Dilip Singh, P.W.7 Rameshgar, P.W.8 Ganeshpuri, P.W.9 Mansagar, P.W.10 Gani Mohammad, P.W.11 Nethi, P.W.12 Krishangar, P.W.13 Rangar, P.W.14 Jabargar, P.W.15 Mohan Lal, P.W.16 Ladu Ram, P.W.17 Khemnath, P.W.18 Dr. M.P. Joshi, and exhibited 23 documents, Ex.P.1 to Ex.P.23. The incriminating evidence adduced by the prosecution against the accused-appellants was put to them for their explanation under Section 313 CrPC and the accused- appellants stated that the prosecution case is concocted one and they have falsely been implicated in the case. The accused-appellants did not examine any witness in their defence, but exhibited documents Ex.D.1 to Ex.D.6, which are police statements of the witnesses recorded during the Page 4 of 21 D.B. Criminal Appeal No. 1327/2003 investigation. The learned trial court after hearing both the parties, convicted accused-appellant Vachangar for the offence under Section 452, 302 and 323 IPC and accused- appellant Kangar for the offence under Section 452, 302/34 and 323 IPC and sentenced them as narrated in the earlier para.
Being aggrieved by the judgment of conviction and order of sentence passed by the learned trial court on 14.11.2003 accused-appellants Vachangar and Kangar have preferred this appeal.
P.W.2 Arjun Ram witness of recovery memo of lathi, P.W.3 Masarnath witness of the same fact, P.W.4 Champa eye-witness and P.W.5 Heernath witness of site memo did not corroborate the prosecution story and they were declared hostile.
P.W.6 Dilip Singh is the witness who brought the sealed packets from the concerned police station to the Forensic Science Laboratory, thus, he is a formal witness of investigation part.
P.W.7 Rameshgar is not an eye-witness who Page 5 of 21 D.B. Criminal Appeal No. 1327/2003 deposed that Krishangar narrated the story of commission of offence and he saw injuries on the body of Krishangar.
P.W.8 Ganeshpuri is the witness of execution of memo Ex.P.9 Panchnama and Ex.P.10 Fard Supurdgi of dead body of Amargar.
P.W.1 Dr. Babu Lal Bishnoi who examined injuries on the body of Amargar found the following injuries :-
(i) Lacerated wound 6 cm. x 1.5 cm. x bone deep on the right fronto parietal region.
(ii) Bruise 3 cm. x 6 cm. on left forearm.
Further he found the following injuries on the body of injured Krishangar :-
(i) Lacerated wound 3 cm. x 0.5 cm. x bone deep on the right fronto parietal region.
(ii) Bruise 12 cm. x 3 cm. on left thigh.
(iii) Bruise 8 cm. x 2.5 cm. on lateral aspect of left thigh.
P.W.18 Dr. M.P. Joshi conducted the autopsy on the body of the deceased Amargar and found the following injuries:-
(i) Stitched lacerated wound 6 cm. obliquely on the right side forehead and frontal region with black edge.
(ii) Bruise 3 cm. x 1 cm. on the left forearm.
(iii) Bruise 7 cm. x 3 cm. on the right gluteal region obliquely.
(iv) Abrasion 3 cm. x 1 cm. on the right elbow joint.
In his opinion, the cause of death was head injury. Page 6 of 21
D.B. Criminal Appeal No. 1327/2003 P.W.9 Mansagar is not an eye-witness of the incident. He deposed that at the relevant time he was at Dhani and in the evening when he reached his home, he saw both injured Krishangar and Amargar with injuries on their bodies. He further deposed that Amargar did not disclose the names of the accused to him.
P.W.10 Gani Mohammad is the witness who was posted as Sub-Inspector at Police Station Sanchore at the relevant time and deposed about the registration of the First Information Report and further usual steps taken during investigation.
P.W.11 Nethi is not an eye-witness. She deposed that she was not at her residence at the relevant time. Krishangar informed her about the incident.
P.W.12 Krishangar is the only injured eye-witness who corroborated the prosecution story and deposed that three months prior to the recording of his statement in the court, he alongwith his father Amargar went to the house of Mansagar to attend the marriage of Jabargar, who is son of Mansagar. Both of them were sitting in the chowk of house of Page 7 of 21 D.B. Criminal Appeal No. 1327/2003 Mansagar. At that time Krishangar, Kangar, Vachangar and Chetangar came there. Vachangar caused injury by lathi at his head. Kangar caused lathi blow at the right leg and Krishangar also caused injury at the same leg. His father Amargar came to intervene and Vachangar caused injury on the head of his father with lathi. Kangar and Krishangar also caused injuries on the body of his father. Chetangar was standing outside his house. He did not cause any injury. His father Amargar succumbed to the injuries caused by accused persons.
P.W.13 Rangar is not an eye-witness because he deposed that soon after reaching of the accused, he left the place of the incident.
P.W.14 Jabargar was not at the place of the incident as deposed by him.
P.W.15 Mohan Lal, P.W.16 Laduram are the witnesses who were police personnel and deposed about various steps taken during the investigation.
The learned counsel for the appellants contended that in the FIR (Ex.P.3) Krishangar attributed the fatal injury to Page 8 of 21 D.B. Criminal Appeal No. 1327/2003 Vachangar and further stated that Krishangar and Kangar did not cause any injuries. In Ex.D.4, the same witness stated that kangar caused fatal head injury by sariya and Vachangar caused injuries by lathi. Again during the course of the trial, P.W.12 Krishangar deposed that Vachangar caused lathi blow on the head of the deceased. He further deposed that after the incident his brother Rangar and Vachangar provided first aid and further Vachangar brought jeep for them to carry them to Sanchore. The counsel for the appellants contended that from the evidence of P.W.12 Krishangar, it is well-established that Vachangar even helped them for first aid and carrying a jeep, thus, he contended that the intention on the part of Vachangar to cause death of deceased Amargar cannot be said to be established and only the fact of causing single fatal injury is proved. According to the learned counsel for the appellants, the act of the appellant Vachangar does not travel beyond the offence punishable under Section 304 Part-II IPC and the act of appellant Kangar does not travel beyond the offence under Section 452 and 323 IPC.
Per contra, the learned Public Prosecutor opposed the arguments of the learned counsel for the appellants and defended the judgment of the trial court.
Page 9 of 21
D.B. Criminal Appeal No. 1327/2003 We have considered the rival contentions of both the parties. There are significant features of the case which are required to be taken into consideration in appreciating the fact that the act of the appellants comes under which provisions of the Indian Penal Code, which are :
(1) Admittedly, the incident happened at the spur of the moment.
(2) It is clear from the evidence that appellant Vachangar provided first aid to the injured and further brought them to Sanchore by Jeep.
(3) A single fatal injury was found on the forehead of the deceased which was caused by Vachangar.
(4) The incident took place on 08.06.2003 and deceased remained hospitalized upto 11.06.2003 and ultimately died on 11.06.2003.
(5) No evidence came on record so as to prove previous enmity between the parties.
When out of four persons, two persons remained outside the house where the incident took place and one was only 10 years old, keeping in view the above facts it cannot be said that the incident had taken place in furtherance of a Page 10 of 21 D.B. Criminal Appeal No. 1327/2003 common intention of the accused persons.
Section 304 IPC reads as under:
"304. Punishment for culpable homicide not amounting to murder.- Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."
The Hon'ble Apex Court has dealt with various cases of similar nature. In Jagrup Singh v. State of Haryana (1981) 3 SCC 616, the accused had inflicted a single blow in the heat of moment in a sudden fight with blunt side of Gandhala on the head of the deceased causing his death. According to the opinion of the doctor this particular injury was sufficient in the ordinary course of nature to cause death. But, according to Hon'ble Apex Court, the intention to cause such an injury was likely to cause death had not been made Page 11 of 21 D.B. Criminal Appeal No. 1327/2003 out. The Apex Court altered the conviction of the accused from section 302 IPC to section 304 Part II IPC and the accused was directed to suffer rigorous imprisonment for a period of seven years.
In Gurmail Singh & Others v. State of Punjab (1982) 3 SCC 185, the accused had no enmity with the deceased. The accused gave one blow with the spear on the chest of the deceased causing his death. The injury was an incised wound. The Sessions Judge convicted the accused under section 302 IPC and sentenced him to rigorous imprisonment for life. The High Court affirmed the same. The Hon'ble Supreme Court while taking into consideration the age of the accused and other circumstances, converted the conviction from section 302 IPC to one under section 304 Part II IPC and sentenced him to suffer rigorous imprisonment for five years and a fine of Rs.500/-, in default to suffer rigorous imprisonment for six months.
In Kulwant Rai v. State of Punjab (1981) 4 SCC 245, the accused, without any prior enmity or pre-meditation, on a short quarrel gave a single blow with a dagger which later proved to be fatal. The Supreme Court observed that since there was no pre-meditation, Part 3 of section 300 of the Page 12 of 21 D.B. Criminal Appeal No. 1327/2003 Indian Penal Code could not be attracted because it cannot be said that the accused intended to inflict that particular injury which was ultimately found to have been inflicted. In the facts and circumstances of that case, the conviction of the accused was altered from section 302 to that under section 304 Part II IPC and the accused was sentenced to suffer rigorous imprisonment for five years.
In Jagtar Singh v. State of Punjab (1983) 2 SCC 342, the accused in the spur of the moment inflicted a knife blow in the chest of the deceased. The injury proved to be fatal. The doctor opined that the injury was sufficient in the ordinary course of nature to cause death. The Hon'ble Apex Court observed that the quarrel was of a trivial nature and even in such a trivial quarrel the appellant wielded a weapon like a knife and landed a blow in the chest. In these circumstances, it is a permissible inference that the appellant at least could be imputed with a knowledge that he was likely to cause an injury which was likely to cause death. The Supreme Court altered the conviction of the appellant from section 302 IPC to section 304 Part II IPC and sentenced the accused to suffer rigorous imprisonment for five years.
In Hem Raj v. State (Delhi Administration) (1990) Page 13 of 21 D.B. Criminal Appeal No. 1327/2003 Supp. SCC 291, the accused inflicted single stab injury landing on the chest of the deceased. The occurrence admittedly had taken place in the spur of the moment and in heat of passion upon a sudden quarrel. According to the doctor the injury was sufficient in the ordinary course of nature to cause death. The Hon'ble Supreme Court observed as under:
"14. The question is whether the appellant could be said to have caused that particular injury with the intention of causing death of the deceased. As the totality of the established facts and circumstances do show that the occurrence had happened most unexpectedly in a sudden quarrel and without pre- meditation during the course of which the appellant caused a solitary injury, he could not be imputed with the intention to cause death of the deceased or with the intention to cause that particular fatal injury; but he could be imputed with the knowledge that he was likely to cause an injury which was likely to cause death. Because in the absence of any positive proof that the appellant caused the death of the deceased with the intention of causing death or intentionally inflicted that particular injury which in the ordinary course of nature was sufficient to cause death, neither Clause I nor Clause III of Section 300 IPC will be attracted......"
The Hon'ble Supreme Court while setting aside the conviction under section 302 convicted the accused under Page 14 of 21 D.B. Criminal Appeal No. 1327/2003 section 304 Part II and sentenced him to undergo rigorous imprisonment for seven years.
In Abani K.Debnath & Another v. State of Tripura (2005) 13 SCC 422, the Supreme Court in somewhat similar circumstances, while converting the sentence from section 302 IPC to one under section 304 Part II IPC observed as under:
"This leads us to consider as to under what Section of law A-1 Abani K. Debnath is liable to be convicted in a given facts of the case. The prosecution evidence clearly discloses that the dao blow dealt by A-1 is preceded by a mutual quarrel. We have already noted that there was no common intention to kill Ranjit Das. From the nature of injuries it is disclosed that A-1 dealt only one dao blow perhaps in the spur of moment. The incident had taken place on 10.8.1990 and the deceased succumbed to injury on 15.8.1990 after a lapse of 7 days. Taking the prosecution evidence and medical evidence cumulatively we are of the view that the conviction of A-1 also cannot fall under Section 34 IPC but at the most under Section 304 Part II. We accordingly convert the sentence of A-1 Abani K. Debnath under Section 34 IPC to that one under Section 304 Part II IPC and sentence him to suffer R.I. for five years. The fine amount imposed by the trial court and Page 2091 affirmed by the High Court is maintained. It is stated at the Bar that A-1 has undergone about 18 months' imprisonment, if that is so, he will be entitled to get the benefit of Section 428 Cr.P.C."Page 15 of 21
D.B. Criminal Appeal No. 1327/2003 In another case Pappu v. State of M.P. (2006) 7 SCC 391, the Hon'ble Apex Court observed as under:
"......The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300 IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'.
It cannot be laid down as a rule of universal application that whenever one blow is given, Section 302 IPC is ruled Page 16 of 21 D.B. Criminal Appeal No. 1327/2003 out. It would depend upon the weapon used, the size of it in some cases, force with which the blow was given, part of the body it was given and several such relevant factors.
Considering the factual background in the case at hand it will be appropriate to convict the appellant under Section 304 Part II IPC, instead of Section 302 IPC as has been done by the trial court and affirmed by the High Court. Custodial sentence of eight years would meet the ends of justice. The appeal is allowed to the aforesaid extent."
We have considered the contradictions referred by the learned counsel for the appellants in the First Information Report (Ex.P.13), police statement of injured Krishangar (Ex.D.4) and the statement made by him during the course of the trial. In the First Information Report, injured Krishangar stated that accused Krishangar and Kangar were armed with lathis, but they did not inflict any injury. In the police statement (Ex.D.4), this witness stated that Kangar caused injury by Sariya on the head of his father Amargar and again during the course of the trial, P.W.12 Krishangar deposed that accused Vachangar caused injury with lathi on the head of his father, due to which his father fell down. Although there are contradictions in the First Information Report, police statement (Ex.D.4) and the statement made during the course Page 17 of 21 D.B. Criminal Appeal No. 1327/2003 of the trial, but looking to the background to which the complainant party belong, such contradictions are bound to be there naturally. Statement of P.W.12 Krishangar inspires faith and truth because there are no inherent contradictions in his statement which make his presence at the spot unreliable and doubtful and being an injured witness, his statement can very well be relied upon.
On consideration of the entire evidence including the medical evidence, it is clearly proved that accused- appellant Vachangar inflicted injury on the head of deceased Amargar, which was proved to be fatal and caused the death of the deceased. P.W.18 Dr. M.P. Joshi deposed that the cause of the death of the deceased was head injury because the head injury caused fracture in fronto parietal region and temple region. The other injuries found on the body of the deceased were simple abrasions and bruises of very small size. In view of the aforesaid, we are of the view that though accused- appellant Vachangar inflicted injury on the head of deceased Amargar, but due to the significant features of the case, which we have considered earlier, it cannot be said that accused- appellant Vachangar inflicted injury on the head of the deceased with intention to cause death, but at the same time, Page 18 of 21 D.B. Criminal Appeal No. 1327/2003 it can very well be said that while inflicting the injury with lathi on the head of deceased Amargar, the accused was very well knowing the consequences of such a fatal blow on the head, therefore, the conviction of accused-appellant Vachangar cannot be sustained under Section 302 IPC, but the appropriate section under which the accused-appellant ought to be convicted is Section 304 Part-II IPC.
Since we are not going to convict accused-
appellant Vachangar for causing injury with intention to cause death of Amargar, therefore, the common intention to cause death cannot be inferred, but both the accused-appellants will be held liable for their individual act. Therefore, we don't find accused-appellant Kangar guilty for the commission of offence under Section 302/34 IPC. Against accused-appellant Kangar, the evidence available on record is for causing simple injuries with blunt weapon at the place of the incidence.
Consequently, the appeal deserves acceptance in part. Accordingly, the same is allowed partly. Conviction of accused-appellant Vachangar for the offence under Section 302 IPC is altered to Section 304 Part-II IPC and his conviction under Section 452 and 323 IPC is maintained. Further since Page 19 of 21 D.B. Criminal Appeal No. 1327/2003 we have not found accused-appellant Kangar guilty for the commission of offence under Section 302/34 IPC, therefore, he is acquitted from the charge of the said offence. However, his conviction under Section 452 and 323 IPC is maintained.
So far as the order of sentence is concerned, the same is modified to the effect that for the offence under Section 304 Part II IPC, accused-appellant Vachangar shall undergo rigorous imprisonment for a period of seven years alongwith a fine of Rs.3000/- and in default of payment of fine, he shall further undergo simple imprisonment for six months. The sentence awarded to each of the accused- appellant for the offence under Section 452 and 323 IPC is also modified to the effect that for the offence under Section 452 IPC the accused-appellants are sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.1000/- and in default of payment of fine, further to undergo three months' simple imprisonment and for the offence under Section 323 IPC, the accused-appellants are sentenced to undergo simple imprisonment for three months and to pay fine of Rs.500/- and in default of payment of fine, further to undergo simple imprisonment for one month. All the sentences are ordered to run concurrently. Page 20 of 21
D.B. Criminal Appeal No. 1327/2003 Before we part with the case, we would like to clearly observe that we are not laying down that in case of single blow or injury, the accused cannot be convicted under section 302 IPC. In cases of single injury, the facts and circumstances of each case has to be taken into consideration before arriving at the conclusion whether the accused should be appropriately convicted under section 302 IPC or under section 304 Part II IPC.
[KAILASH CHANDRA JOSHI],J. [SANGEET LODHA],J. Pramod Page 21 of 21