Rajasthan High Court - Jodhpur
Hadman Puri & Ors vs State on 4 August, 2016
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas
1
IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR
JUDGMENT
D.B. Cr. Appeal No.24/2010 Appellants/Accused:
1. Hadman Puri, S/o Shri Prahlad Puri, by caste Goswami, R/o Bhakron ki Dhani, Tehsil Makrana, District Nagaur.
2. Anil S/o Shri Oma Ram, by caste Jat, R/o Makrana, Police Station Makrana, District Nagaur.
3. Kamal Singh, S/o Shri Kailash Singh, by caste Rawana Rajput, R/o Makrana, Police Station Makrana, District Nagaur.
4. Vijendra Singh @ Virendra Singh @ Chiku S/o S hr i Bhawani S in g h , by c as t e Rajput, R/o Akodia, Police Station Jaitaran, District Pali.
Versus Respondent:
The State of Rajasthan Date of judgment :: 4th August, 2016 HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS HON'BLE MR. JUSTICE G.R. MOOLCHANDANI Mr. Vineet Jain, Mr. Shaitan Singh, for the appellants.
Mr. CS Ojha, Public Prosecutor 2 <><><> By the Court (Per Hon'ble Mr. Justice G.K. Vyas):
The appellants are challenging the judgment dated 16.12.2009 passed by the learned Addl. Sessions Judge (FT), Parbatsar in Sessions Case No.47/2007 (34/2007) arising out from the FIR no.231/2007 of Police Station Makarana by which the learned trial court convicted and sentenced the accused appellants for the following offences:
"CONVICTED APPELLANTS NO.1, 2 AND 4- HADMAN PURI, ANIL & VIJENDRA SINGH:-
(I) FOR OFFENCE UNDER SECTION 341 IPC AND SENCTEDNED HIM TO ONE MONTS'S SIMPLE IMPRISONEMNT AND A FINE OF RS.100/-, IN DEFAULT OF PAYMENT OF FINE, TO FURTHER UNDERGO SEVEN DAYS' SIMPLE IMPRISONMENT.
(II) FOR OFFENCE UNDER SECTION 323/34 IPC AND SENTENED HIM TO ONE YEAR'S SIMPLE IMPRISONMENT AND A FINE OF RS.500/-, IN DEFAULT OF PAYMENT OF FINE, TO FURTHER UNDERGO ON E MONTH'S SIMPLE IMPRISONMENT.
(III) FOR SENTENCED OFFENCE UNDER SECTION 354IPC AND HIM TO THREE YEARS' SIMPLE IMPRISONMENT AND A FINE OF RS.1000/-, IN DEFAULT OF PAYMENT OF FINE, TO FURTHER UNDERGO THREE MONTHS' SIMPLE IMPRISONMENT.
(IV) FOR OFFENCE UNDER SECTION 302/34 IPC AND SENTENCED HIM LIFE IMPRISONMENT AND A FINE OF RS.1000/- IN DEFAULT OF PAYMENT OF FINE, TO FURTHER UNDERGO THREE MONTHS' SIMPLE IMPRISONMENT. 3 CONVICTED APPELLANT NO.3 KAMAL SINGH:-
(I) FOR OFFENCE UNDER SECTION 341 IPC AND SENTENCED HIM TO ONE MONTH'S SIMPLE IMPRISONMENT AND A FINE OF RS.100/-, IN DEFAULT OF PAYMENT OF FINE, TO FURTHER UNDERGO SEVEN DAYS' SIMPLE IMPRISONMENT.
(II) FOR OFFENCE UNDER SECTION 323 IPC AND SENTENCED HIM TO ONE YEAR'S SIMPLE IMPRISONMENT AND A FINE OF RS.500/-, IN DEFAULT OF PAYMENT OF FINE, TO FURTHER UNDERGO ON E MONTH'S SIMPLE IMPRISONMENT.
(III) FOR SENTENCED OFFENCE UNDER SECTION 324/34 IPC AND HIM TO THREE YEARS' SIMPLE IMPRISONMENT AND A FINE OF RS.1000/-, IN DEFAULT OF PAYMENT OF FINE. TO FURTHER UNDERGO THREE MONTHS' SIMPLE IMPRISONMENT.
(IV) FOR OFFENCE UNDER SECTION 302/34 IPC AND SENTENCED HIM LIFE IMPRISONMENT AND A FINE OF RS.1000/- IN DEFAULT OF PAYMENT OF FINE, TO FURTHER UNDERGO THREE MONTHS' SIMPLE IMPRISONMENT.
(ALL THE SENTENCES HAVE BEEN ORDERED TO RUN CONCURRENTLY)"
As per the brief facts of the case on 26.7.2007 one Vijendra Singh S/o Ranjeet Singh (PW--1) lodged FIR at Police Station Makrana alleging therein that on 26.7.2007 in the evening at 7.30 pm I alongwith my younger brother Govind Singh @ Banti were going on motorcycle through hospital road in front of Panchayat Samiti their motorcycle collided with tw o motorcycles coming from opposite 4 direction. Upon those motorcycle Hanuman Puri and Anil Bhakar, Kamal Daroga, Vijendra Singh @ Chiku, Imran Hussain and Om Prakash were sitting. Due to colliding, altercation took place between the complainant and his brother with aforesaid accused persons, at that time, accused persons gave threat to them for life. The complainant and his brother both went to the temple, but upon returning from temple, they requested Sumer Singh, Bhagwan Singh, Ballu and Sijju and Para Chand to accompany with them as they were apprehended some untoward incident with them being caused by the accused persons. While returning, when they reached in the way of Higher Secondary School, above six named persons who were waiting there assaulted them and caused injuries with knife and iron rods to Govind Singh (deceased), Sijju @ Monu, Ballu and as a result of which Govind Singh fell down and other persons have also received injuries.
As per allegation of the complainant, all the accused persons gave blow by knife upon chest, stomach and ribs of Govind Singh and due to those injuries Govind Singh died. The said FIR was submitted before the SHO by the complainant Vijendra Singh at 11.30 pm on 26.7.2007 in the government hospital.
Upon aforesaid written complaint (Ex.P/1) FIR bearing no.231 dated 26.7.2007 was registered at Police Station 5 Makarana under Section 147, 14 8, 1 49, 323, 341, 3 24, 307 and 302 IPC and under Section 4/25 of the Arms Act. In the investigation, accused appellants Vijendra Singh @ Virendra Singh @ Chiku, was arrested vide Ex.P/27 on 30.7.2007, accused appellant Kamal Singh was arrested vide Ex.P/30 on 27.7.2007, accused appellant Anil was arrested vide Ex.P/31 on 27.7.2007, accused Hanuman Puri was arrested vide Ex.P/33 on 27.7.2007. After their arrest upon information given by them under Section 27 of the Evidence Act, knife was recovered at the instance of accused Hanuman Puri vide Ex.P/62 on 30.7.2007,one stick (Danda) was recovered on 28.7.2007 vide Ex.P/63, upon information given by accused appellant Anil, knife was recovered vide Ex.P/64 and upon information given by accused appellant Vijendra Singh one Katar was recovered vide Ex.P/65 on 31.7.2007. All the weapons recovered from the accused appellants were sealed on spot and later on, sent to the FSL for chemical examination.
In the investigation, injury report of Govind Singh (Ex.P/16), injury report of Sijju @ Monu, injury report of Tara Chand, injury report of Bhagwan Singh and post mortem report (Ex.P/22) of Govind Singh were prepared by the medical jurist after medical examination and in the investigation those reports were collected by the investigating officer.6
After conducting thorough investigation, SHO Police Station Makarana filed charge-sheet against four accused persons Hanman Puri, Kamal Singh, Anil Bhakar under Section 341, 323, 324, 307, 302/34 IPC and Vijendra Singh @ Virendra Singh @ Chiku for the offences under Sections 341, 323, 324, 307, 302/34 IPC and under Section 4/25 of the Arms Act in the court of Addl. Chief Judicial Magistrate, but no charge-sheet was filed against two remaining person Om Prakash and Imran Khan who were named in the FIR.
The learned Addl. Chief Judicial Magistrate, Makarana committed the case for trial to the court of Addl. Sessions Judge, Parbatwar from where it was transferred to the court of Addl. Sessions Judge (FT), Parbatsar, District Nagaur for trial.
After providing an opportunity of hearing to the accused appellants, the learned trial court framed charge against the accused appellants Hanman Puri, Kamal Singh, Anil Bhakar under Section 341, 323, 324, 307, 302/34 IPC and against accused appellant Vijendra Singh @ Virendra Singh @ Chiku for the offences under Sections 341, 323, 324, 307, 302/34 IPC and under Section 4/25 of the Arms Act. All the accused appellants denied the charges levelled against them and prayed for trial.
In the trial, statements of 22 witnesses were recorded 7 including injured eye witnesses and complainant, so also 67 documents were exhibited from prosecution side. Thereafter, statements of the accused appellants were recorded under Section 313 Cr.P.C. in which they denied all the allegations leveled by the prosecution witnesses against them and prayed to lead evidence in defence. In defence statement of one witness DW-1 Bodu were recorded and five documents were exhibited in defence. The learned trial court after providing an opportunity of hearing to both the parties finally convicted the accused appellants for aforesaid offences and passed the sentence mentioned above vide judgment dated 16.12.2009, which is under challenge in this appeal.
Learned counsel for the appellants at the threshold submits that appellants are not challenging the incident and finding given by the learned trial court with regard to causing injuries by the accused appellants to the deceased as well as to the injured persons, but it is submitted that the court below has failed to appreciate the fact that prosecution has suppressed the true genesis of the occurrence which is evident from the admitted fact that the route taken by the complainant was not preferred route to their house and there was no occasion for the accused appellants to know that the complainant would be taking that route so as to way-lay them with preparation, 8 therefore, even if the entire prosecution story is accepted then also, the conviction of the accused appellants for offence under Section 302/34 IPC is not sustainable in law because there was no evidence of pre-meditation and main ingredient intention of the definition of murder is absent in this case, therefore, it is submitted that it is a case of culpable homicide not amounting to murder because in the post mortem report (Ex.P/22) the cause of death is hemorrhage shock due to injury to the vital organs. No specific injury was cause of death, therefore, the finding of the learned trial court so as to convict the accused appellants under Section 302/34 IPC deservers to be set aside.
While inviting attention towards the statement of PW-- 11 Dr. Sagir Ahemd it is submitted that in the cross- examination the doctor specifically stated that if proper treatment could have been given to the deceased Govind Singh then it was possibility to save his life. It is also stated that as per the opinion of board, blood loss was cause of death due to injuries upon the vital organs. Learned counsel for the appellants submits that when deceased was taken to the hospital, he was alive and his injuries were examined at 11.20 pm by the medical jurist Dr. Sagir Ahemd and as per injury report Ex.P/16 was given by him in which five injuries were found upon the body of the deceased. 9
According to the argument of learned counsel for the appellants out of five injuries, four were stab wounds and one was abrasion and upon perusal of the injury report (Ex.P/16) it will reveal that dimension of these injuries are not serious, therefore, it is obvious that injuries were not caused with force, so also, out of four stab wounds, the injury no.3 and 4 were grievous in nature as per opinion of the doctor. The contention of the learned counsel for the appellants is that if as per the prosecution three accused appellants were having knife with them and four stab wounds were found upon the body of the deceased and out of four stab wounds, only two were grievous in nature then obviously it can be said that there was no intention of the accused appellants to kill the deceased Govind Singh. The injuries were caused in a quarrel, in between the complainant party and accused appellants in which injuries were caused to the deceased and due to loss of blood he died, therefore, at the time of deciding the case, it was the duty of the learned trial court to consider the medical evidence coupled with fact that there is no evidence of intention. It is also argued that as per allegation of author of the FIR there were six persons who caused injuries but police filed charge-sheet against only four accused appellants and there is no evidence to pre-meditation. Therefore, finding given by the learned trial court for 10 offence under Section 302/34 IPC deserves to be quashed because it is a case in which the offence cannot travel beyond Section 304 Part I read with Section 34 IPC. Learned counsel for the appellants further argued that upon perusal of the injuries found upon the body of the deceased it is evident that appellants has not given the knife blow with full force otherwise depth of injuries would have been more serious, therefore, it is prayed that conviction of the accused appellants for offence under Section 302/34 IPC may kindly be quashed and the conviction may be altered for offence under Section 3 04 Part I read with Section 34 IPC. In support of his arguments, the learned counsel for the appellants invited our attention towards the judgment in the case of Mangesh Vs. State of Maharashtra reported in (2011) 1 SCC (Cri.) 616 and submits that in that case also, there were six injuries, out of which three were stab wounds, but the Hon'ble Supreme Court altered the conviction from offence under Section 302 to offence under Section 304 Part I IPC, therefore, it is prayed that in this case also, the conviction of offence under Section 302 IPC may be altered to offence under Section 304 Part I read with Section 34 IPC. In addition to above judgments, the learned counsel for the appellants invited our attention towards two more judgments of the Hon'ble Supreme Court in the case of 11 Dayanand Vs. State of Haryana reported in 2008 Cri. L.J. 2975 and Arjun Vs. State of Maharashtra reported in 2012 Cr.L.R. (SC) 506.
Per contra, learned Public Prosecutor vehemently opposed the prayer and submits that it is a case in which first threat was given by the accused appellants to the complainant and deceased when their motorcycle was collided and after some time when they were coming back alongwith four other persons, the accused appellants assaulted them by sharp edged weapons and due to the injuries caused by the accused appellants, the deceased Govind Singh died. According to the learned Public Prosecutor if th e appellants ar e not disputing the occurrence then obviously they are liable to be punished for offence under Section 302/34 IPC because they inflicted injuries by knife to the deceased, which resulted into death as per the opinion given by the doctor in the post mortem report Ex.P/22.
Learned Public Prosecutor submits that from the evidence on record, the intention of accused appellants to kill deceased can be gathered on the ground that first they gave threat and thereafter, they committed an offence in which injuries were caused by sharp edged weapon not only to the deceased but to the other persons also, therefore, this appeal may kindly be dismissed.12
After hearing the learned counsel for the parties we have minutely perused the entire evidence and considered the arguments of the learned counsel for the appellants that they are not challenging the incident and their participation in the incident. Undisputedly, FIR was filed by PW--1 Vijendra Singh in which allegations were levelled by him against six persons namely Hanuman Puri, Vijendra Singh, Kamal, Anil, Om Prakash and Imran Hussain, but after investigation, the police filed charge-sheet only against the four accused appellants and no charge-sheet was filed against Om Prakash and Imran Hussain. The complainant specifically stated in his statement that accused appellants Vijendra Singh, Hanuman Puri and Anil were having knife in their hands, whereas Kamal Singh, Om Prakash and Imran Hussain were having stick in their hands, but charge-sheet was filed against only four accused appellants namely Hanuman Puri, Anil, Kamal and Vijendra Singh @ Virendra Singh @ Chiku and during investigation upon information given by Kamal Singh, one stick (Danda) was recovered. In the injury report (Ex.p/16) of deceased Govind Singh as well as in the post mortem report (Ex.P/22) five injuries were found. The injuries as mentioned in the injury report and the opinion of the doctors are as follows:
"1. Incise wound (stab wound) : On the back learned tribunal. Side at the level of 7th to 8th 13 rib. 1"x1/2"xmuscle dup.
2. Incise wound (stab wound): On the learned tribunal. Post axillary line at the level of 6th rib 3/4" x ½" upto the left lower lobe of lung (1/4"x1/4"x1/2"depth)
3. Incise wound (stab wound) : ½"x1/4"x muscle dup just above ileum crest left side.
4. Incise wound (stab wound) : ¾"x1/2"xabd. Cavity - one inch above on lt. costal margin 2"
med. to mammary line (upto the transverse colon (1/4"x1/4" depth of colon)
5. Abrasion 1/2"x1/4" on Rt. Hand dorsum aspect.
All the injures are anti mortem in nature. Note: Injuries 3 and 4 are grievous in nature and dangerous to the life. Injuries no.1 to 4 are sharp in nature.
Cause of death : In the opinion of medical board the cause of death is hemorrhage shock due to injury to the vital organs."
Upon assessment of the entire evidence, it is also emerges from the facts that there was no enmity in between the parties. Initially verbal quarrel took place before 2 hours at 7.30 pm on the day of incident when motor cycle of complainant and accused party were collided. It is also not in dispute that when both the complainant and deceased were coming back from the temple they were accompanied with four other persons. Meaning thereby, six persons from the complainant side and six persons from accused side were there when occurrence took place in which injuries were caused not 14 only to the deceased but to three persons also, but after investigation, police did not file challan against two persons named in the FIR namely Om Prakasha and Imran Hussain.
The PW--11 Dr. Sagir Ahemd stated before the court that out of five injuries found upon the body of deceased Govind Singh, injuries nos. 3 and 4 were grievous in nature and dangerous to life but as per opinion of the board, cause of death was loss of blood due to the injuries upon the vital organs. The following statement is given by the PW--11 Dr. Sagir Ahemd in the trial, which reads as under:
"ckM s Z dh jk; eas e`R;q dk dkj.k vkgr ds 'kjhj ls [kuw dk cg tkuk Fkk tks 'kjhj ds okbZVy vkxZUl ij pksV yxus ls gqvk FkkA"
In the cross-examination PW--11 Dr. Sagir Ahemad stated as under:
" e` R d xkfs ona flga dks ;fn le; ij bykt fey tkrk vkSj 'kY; fpfdRlk gks tkrh rks mldk jDr dk cgko jkd s k tk ldrk Fkk vkjs mldk cpuk lEHko gks ldrk FkkA"
It is also important to observe that there is no specific allegation for causing particular injury by particular accused appellants in the statement of injured eye witnesses. Meaning thereby, in the quarrel though injuries were caused to the deceased Govind Singh, but he died due to loss of blood because of those injuries upon the vital 15 organs.
Upon assessment of entire evidence and considering the entire attending circumstances it can be said that intention of the accused appellants was only to cause injuries to the complainant party which is evident from the nature of the injuries caused to the deceased and other injured persons. In view of the above finding, there is strength in the argument of the learned counsel for the appellants that it is not a case of culpable homicide amounting to murder but it is a case of culpable homicide not amounting to murder, therefore, offence does not travel beyond offence under Section 304 part I read with Section 34 IPC.
In case of Mangesh (supra), there were six injures upon the body of the deceased and considering number of judgments, in similar circumstances, the Hon'ble Supreme Court gave following verdict, which reads as under:
"12. It is evident from the medical report that the appellant has not given the knife blow with full force. Otherwise, the depth of the injury No.1 would have been more than just "cavity deep". The fact that the appellant stabbed the deceased twice in the thigh and only once in the chest is indicative of a lack of intention to cause death. Had the appellant intended to kill the deceased, it is unlikely that he would flee from the scene without having inflicted more injuries on the deceased.
13. The judgment cited by the learned counsel for the State, Pulicherla Nagaraju alias Nagaraja Reddy v. State of A.P., AIR 2006 SC 3010, is quite distinguishable from the present case as in 16 that case the knife blow that caused death was given with full force and the single injury was found to be 12 c.m. deep. Even in that case the law has been laid down as under:
"29....The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury;
(v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention".
This Court has re-iterated the same view in Sridhar Bhuyan v. State of Orissa and Gali Venkataiah v. State of AP
14. It is not the case even in any of the dying declarations that the appellant had premeditated or preplanned his actions or was having any information prior to the incident that the deceased would be found with his sister Sandhya at the place of occurrence. Their meeting might have been taken by the appellant as temerity. Therefore, it is a clear cut case of loss of self control and in the heat of passion, the appellant caused injuries to Prashant (deceased). By no means, can it be held to be a case of premeditation.
17
15. The appellant did not cause all the injuries on the vital part of the body. Nor the appellant caused the fatal injury No.1 with full force, otherwise the said injury could have been very deep. On examining the weapon, Dr. Amit Kumar (PW.1) opined that injury Nos. 1, 2 and 3 could be caused by handle of the knife. Death of Parshant (deceased) was not instantaneous rather he died on third day of the incident. The appellant has not taken any undue advantage or acted in cruel or in unusual manner.
Undoubtedly, injury No.1 had been caused on the vital part of the body of the deceased but it must also be borne in mind that when a person loses his sense he may act violently and that by itself may not be a ground to be considered against him while determining the nature of the offence"
The essence of the judgment is that if it is found that there are evidence that fatal injuries were not caused with full force and if in the opinion of the doctor that injury is not sufficient to cause death, then obviously, the case cannot travel beyond offence under Section 304 Part I IPC.
Hon'ble Supreme Court in the case of Dayanand Vs. S t at e of Haryana reported in 200 8 Cri. L.J. 29 75 considering the identical issue that in absence of motive or intention and upon the fact that there was no repeated blow upon the vital part of the body, made following adjudication which reads as under :-
"10. The crucial question is as to which was the appropriate provision to be applied. In the scheme of the IPC culpable homicide is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice-versa. Speaking generally, 'culpable homicide' sans 18 'special characteristics of murder is culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognizes three degrees of culpable homicide. The first is, what may be called, 'culpable homicide of the first degree'. This is the gravest form of culpable homicide, which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of Section 304. Then, there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.
In the case of Arjun Vs. State of Maharashtra reported in 2012 Cr.L.R. (SC) 506 the following adjudication is made by the Hon'ble Supreme Court. The paras nos.17 and 18 of the said judgment is as under:
"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 would meet the ends of justice and it is ordered accordingly. The appeal is accordingly disposed of, altering the sentence awarded."
Upon consideration of the entire evidence discussed 19 above in the light of the aforesaid adjudication made by the Hon'ble Supreme Court, while taking holistic view and attending circumstances of the present case, we deemed it appropriate to alter the conviction of the accused appellants from offence under Section 302/34 IPC to offence under Section 304 part I read with Section 34 IPC.
Consequently, on the basis of above discussions, the instant cr. appeal is hereby partly allowed. The impugned judgment dated 16.12.2009 passed by the learned Addl. Sessions Judge (Fast Track), Parbatsar, District Nagaur in Sessions Case No.47/2007 (34/2007) is hereby modified and the conviction and sentence of the accused appellants under Section 302/34 IPC is set aside and they are held guilty for offence under Section 304 Part I read with Section 34 IPC and punished with the sentence of 10 years RI with fine of Rs.10,000/- each and in default of payment of fine to further undergo one year RI while maintaining the conviction and sentence for all other offences. (G.R. MOOLCHANDANI),J. (GOPAL KRISHAN VYAS),J. cpgoyal/-