Rajasthan High Court - Jodhpur
Moni Ram @ Mohan Lal vs State on 9 May, 2017
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 276 / 2008
Moni Ram @ Mohan Lal S/o Kurda Ram, by caste Kaparia, R/o 1
GM PS New Mandi Gharsana, District Sri Ganganagar
[at present lodged in District Jail Sri Ganganagar]
----Appellant
Versus
State of Rajasthan
----Respondent
_____________________________________________________
For Appellant(s) : Mr. HSS Kharlia, Sr. Advocate with Mr. Trilok
Joshi
For Respondent(s) : Mr. CS Ojha, PP
_____________________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE DEEPAK MAHESHWARI Judgment Per Hon'ble Mr. Justice Deepak Maheshwari 09/05/2017 The instant cr. appeal has been field by the appellant Moni Ram @ Mohan Lal under Section 374 Cr.P.C. against the judgment dated 26.3.2008 passed by the learned Addl. District & Sessions Judge (FT), Anoopgarh, District Sri Ganganagar in Sessions Case No.38/2007 (42/2007) whereby the appellant was convicted for offence under Section 302 IPC and sentence of life imprisonment with fine of Rs.1,000/- was imposed against him. Further it is ordered that in default of payment of fine to further undergo one year rigorous imprisonment.
(2 of 14) [CRLA-276/2008] As per fats of the case on 17.6.2007 the complainant PW--1 Jaasvinder Singh submitted a written report (Ex.P/1) before the SHO Police Station Gharsana at Government Hospital, Nai Mandi, Gharsana in which the complainant alleged that on 16.6.2007 at 8.00 pm in the evening my father left the house while saying that he is going to his agricultural field and come back in the morning because there is turn of water supply from the canal. As per facts stated in the written complaint on the date of incident, the elder father of the complainant Resham Singh and brother-in-law Pramjeet Singh were also visited his house. In the night at about 11-11.30 pm they heard hue and cry of his father and immediately take care of him and brought on a cot. There was injury upon the stomach and cloths were sustained with blood.
As per allegation of complainant, his father Balveer Singh informed that when he was returning from his field in the way the appellant Moni Ram and his two sons Gurdayal Singh and Sukhvinder Singh were met and they forcibly took him in their home and inflicted injury by knife. The complainant and other family members tried to shift the injured Balveer Singh in the Government hospital, but he died within 15 minutes.
Upon aforesaid complaint, FIR no.161/2007 (Ex.P/33) was registered at Police Station Gharsana where investigation was commenced by the SHO.
During investigation, the appellant and his two sons Gurdayal Singh and Sukhvinder Singh were arrested and the charge-sheet against them was filed by the investigating officer for the offences under Section 302/34 IPC in the court of Judicial (3 of 14) [CRLA-276/2008] Magistrate, Gharsana, but on 24.9.2007 an application was filed n behalf of Gurdayal Singh and Sukhvinder Singh on the ground that on the date of incident, they were minor. On the said application, after inquiry, it was ordered that against Gurdayal Singh and Sukhvinder Singh the charge sheet may be filed before the Childern Court, Bikaner and further it is ordered that trial against Moni Ram (appellant) will be conducted in this court.
The learned trial court after providing an opportunity of hearing to the appellant Moni Ram framed charge under Section 302 read with Section 302/34 IPC against Moni Ram and proceeded to conduct trial.
In the trial, statements of 13 witnesses were recorded from prosecution side to prove the case against the appellant and 37 documents were exhibited during trial. After recording evidence of prosecution, the learned trial court proceeded to record statement of the accused appellant under Section 313 Cr.P.C. in which the appellant denied all the allegations levelled by the prosecution witnesses and said that he has been falsely implicated in this case and no oral evidence was produced in defence, however, three documents were exhibited from defence side.
The learned trial court after hearing arguments finally convicted the accused appellant for offence under Section 302 IPC vide judgment 26.3.2008 on the ground that there is allegation against the appellant for inflicting injury upon stomach by sharp edged weapon.
Learned counsel for the appellant submits that the appellant is not challenging the incident in which he has been convicted by (4 of 14) [CRLA-276/2008] the learned trial court but it is argued that there is finding of the learned trial court that prosecution has failed to establish motive for the alleged incident and as per the allegation of prosecution only one injury was inflicted on stomach that too, with knife, but in the investigation, one iron blade (Patti) was recovered, therefore, it is obvious that injury which is said to be inflicted by the appellant was not inflicted by any weapon, but a blade which is said to be recovered vide Ex.P/9 upon information given by the accused appellant.
It is also argued that none of the witnesses gave any statement to establish motive. Even the complainant stated in his statement that there was previous enmity between the parties, but it is not supported by any document or specific incident, therefore, the learned trial court observed that prosecution has failed to prove motive. Learned counsel for the appellant invited our attention towards the fact that witnesses of recovery PW--5 Bihari Lal, turned hostile and other witnesses PW--6 Banwari Lal, PW--7 Sohan Lal and PW--9 Bhagirath turned hostile and did not support the prosecution case. It is also argued that entire prosecution case is based upon testimony of PW--1 Jasvinder Singh, author of FIR, son of the deceased, PW--4 Resham singh and PW--4 Paramjeet Singh who are admittedly close relatives of the deceased, therefore, it is obvious that these witnesses did not disclose any fact to establish the motive, therefore, offence cannot travel beyond offence under Section 304 Part I IPC. It is also argued that PW--12 Dr. Madan Mohan specifically stated that at the time of post mortem two injuries were found upon the body of (5 of 14) [CRLA-276/2008] the deceased, one simple injury was found upon left ear and second injury was found upon the stomach and width of that injury was 1x ½ inch but that injury was caused upon liver, therefore, deceased Balveer Singh died, in the cross-examination Dr. Madan Mohan said that the post mortem was not conducted by the medical board, so also, it was possible to save Balveer Singh if he was brought to the hospital in time. Learned counsel for the appellant vehemently argued that all these facts narrated above loudly speaks that finding of conviction recorded by the learned trial court for offence under Section 302 IPC is not sustainable because offence cannot travel beyond offence under Section 304 Part I IPC because main ingredient of murder is absent. In support of his arguments, the learned counsel for the appellant invited our attention towards the following judgments:
1. Arjun Vs. State of Maharashtra reported in 2012 Cr.L.R. (SC)
506.
2. Judgment of Division Bench of this Court in the case of Shiv Kumar @ Pappu Vs. The State of Rajasthan reported in 2010 (2) CJ (Cr.) (Raj.) 796
3. Arjun & Anr. Vs. State of Chhattishgarh, reported in AIR 2017 SC 1150.
and submits that the finding of conviction recorded under Section 302 IPC against the appellant may kindly be altered to the offence under Section 304 Part I IPC and sentence for life imprisonment may kindly be altered to sentence already undergone.
Per contra, learned Public Prosecutor vehemently argued that there is no strength in the argument of the learned counsel for the appellant that no offence under Section 302 IPC is made out. According to the learned Public Prosecutor the injury was (6 of 14) [CRLA-276/2008] caused upon the vital part of the body, that too, by sharp edged weapon and appellant is not disputing the incident, therefore, it cannot be said that any error has been committed by the learned trial court so as to hold accused appellant guilty for offence under Section 302 IPC. It is also argued that three witnesses were turned hostile, but three witnesses to whom injury met soon after the occurrence, specifically stated before the court that they were informed by the deceased that injuries were caused by the appellant Moni Ram and his sons, therefore, there is no question to disturb the finding of guilt recorded by the learned trial court under Section 302 IPC.
It is submitted that once appellant is accepting the incident then there is no question to say that recovery was false or there was not enmity in between the parties, therefore, the judgment impugned may kindly be quashed.
After hearing learned counsel for the parties, it emerges from the arguments of the learned counsel for the appellant that appellant is not challenging the incident, but submits that entire prosecution case is based upon 13 witnesses. Out of 13 witnesses, PW--5 Bihari Lal, PW--6 Banwari Lal, PW--7 Sohan Lal and PW--9 Bhagrath turned hostile and did not support the prosecution case. Further it is also admitted fact that author of FIR PW--1 Jasvinder Singh is son of the deceased and in his whole statement no evidence is adduced to prove the motive behind the offence of murder. More so, it is stated by him that in the night at 11-11.30 pm, my father came back from filed and he was crying due to injuries caused to him by the appellant and his sons. The only (7 of 14) [CRLA-276/2008] allegation is levelled in his statement for motive is that "igys esjs firk vkSj eksuhjke ds chp >xMk gqvk FkkA"
PW--2 Darshan Singh is the witness before whom the iron blade was recovered. PW--3 Resham Singh proved the fact that on 16.6.2007 in the evening deceased Balveer Singh left the house while saying that he will come back after completion of water turn in the morning, but in the night at 11-11.30 pm he came back to the house and crying due to injuries caused to him.
This witness stated that injury was inflicted by knife, but there is no trustworthy statement with regard to motive.
PW--4 Paramjeet is son in law of the deceased. The said witness stated that on the date of incident I was in my in-laws house where Balveer Singh came back from his field at 11.-11.30 pm and he was crying due to injury caused to him by knife by the appellant Moni Ram and his sons, but this witness did not disclose any fact with regard to quarrel or motive in between the parties.
PW--5 Bihari Lal, PW--6 Banwari Lal, PW--7 Sohan Lal, PW--
9 Bhagirath turned hostile and did not support the prosecution case.
PW--12 Dr. Madan Mohan stated before the court that:
^^eSa fnukad 17-06-2007 dks fpfdRlk vf/kdkjh ds in ij rSukr FkkA ml jkst iqfyl izfrosnu ij cyohj flag iq= dkyk flag tkfr jk;fl[k fuoklh 1 th- ,e- ds 'ko dk ijh{k.k fd;k ftldh f'kuk[r tlohj flg iq= cyohj flag mez 20 o"kZ tkfr jk; fl[k fuoklh ,d th- ,e- us fd;kA 'ko dk ijh{k.k fn- 17-6-2007 dks lqcg 7%00 cts fd;kA e`R;q 8 ls 16 ?k.Vksa ds Hkhrj gqbZ FkhA e`rd lkekU; dn dkBh dk FkkA iksLVekVZe fyfefMVh 'kjhj esa vdM+u] xnZu Åij okyh Hkqtk o uhps okys ikoa esa mifLFkfr FkhA isV o ck;sa dku esa ls [kwu vk;k gqvk FkkA datdVkbok gkFk o ikao esa isy FkkA dVk gqvk ?kko 1 x vk/kk bap isV rd xgjk yhoj ds nkfguh rjQ Åij Hkh ?kko FkkA ;g pksV /kkjnkj gfFk;kj o xaHkhj izd`fr dh FkhA (8 of 14) [CRLA-276/2008] ¼2½ dVk gqvk ?kko 3 x 4 bap x vk/kk bap o peM+h rd xgjk ck;as dku ds fiUus ij ;g pksV /kkjnkj gfFk;kj ls dkfjr o lk/kkj.k izd`fr dh FkhA lHkh pksVsa e`R;q iwoZ dkfjr Fkh o ejus ls igys N% ?k.Vs ds Hkhrj dkfjr dh xbZ Fkh] iqrfy;ka Qsyh gqbZ FkhA iY;wjk ysfjax lØsfV;k nksuksa QsQM+ks esa isy FkhA vkSj dkVus ij cgqr de [kwu vk;kA ân; dk cka;k Hkkx [kkyh Fkk] nk;sa Hkkx esa de ek=k esa [kwu FkkA [kwu dh cM+h ufy;ksa esa Hkh [kwu dh ek=k de FkhA isV dh isjhVksfu;e datLVsM FkhA iwjk isV xgjs jax ds [kwu ls Hkjk gqvk FkkA eqag QsfjXl bL;ksQsxl isy FksA vkek'; esa rjy o QaY;wM inkFkZ FksA NksVh vkar esa v/kipk Hkkstu Fkk] cM+h vkar esa ysVfju o xSlsl Hkjh gqbZ FkhA yhoj esa ,d ?kko 1 x 1@4 bap x isjsudkbZuk rd xgjk Fkk] tks yhoj ds nkfgus Hkkx esa Fkk vkSj blesa ls [kwu vk jgk FkkA ;g pksV e`R;q iwoZ dkfjr FkhA Liyhu] fdMuh o CysMj rhuks isy FksA tsusVkbxu vkWjxUl ukWeZy FksA iksLVekVZe fjiksVZ ds i'pkr~ esjh jk; esa mijksDr e`rd dh e`R;q dk dkj.k vR;f/kd jDr L=ko o gsesjsftd 'kksd Fkk tks fd yhoj esa vkbZ pksV ds dkj.k isV esa [kwu Hkjk gqvk FkkA esjs }kjk rS;kj iksLVekVZe fjiksVZ izn'kZ ih&32 gS ftl ij , ls ch esjs gLrk{kj gS] lh ls Mh esjh jk; gS] bls ,Q Hkkx esa e`rd dk uke o irk vafdr gS] th ls ,p Hkkx esa mldh f'kuk[r djus okys dk uke irk vafdr gS] vkbZ ls ts esa iksLVekVZe djus dk fnukad o le; vafdr gS] ds ls ,y Hkkx esa iksLVekVZe djrs oDr e`R;q dk vof/k dk vadu gSA ,e ls ,u Hkkx esa ml pksV dk vadu gS] ftlds dkj.k esjh jk; esa e`rd dh e`R;q dkfjr gSA ftjg }kjk odhy eqyfte %& ;g dguk lgh gS fd eSa ltZu gwa lgh le; ij vkSj lgha laLFkku esa bZykt fd;k tkrk rks cpkus dh laHkkouk ls badkj ugha fd;k tk ldrkA ;g ckr lgh gS fd rst /kkjnkj gfFk;kj ls yhoj esa pksV yxs rks rqjar [kqu fudyrk gS vkSj ;g dguk lgh gS fd iksLVekVZe cksMZ }kjk ugha djok;k x;k] iqfyl ds }kjk gh esjs }kjk iksLVekVZe fd;k x;kA** PW--13 Hari Ram, investigating officer supported the investigation conducted by him.
Upon assessment of entire evidence it is obvious that prosecution has failed to prove motive which is the basic ingredient for commission of offence of murder, so also, allegation of prosecution, only one injury was caused by knife, but in the trial, one iron blade was recovered to prove the allegation of (9 of 14) [CRLA-276/2008] injury of 1/ ¼ inch caused upon the stomach of the deceased.
Meaning thereby, it is not a case of prosecution that the appellant took any undue advantage so as to cause repeated injuries with intention to kill. It appears that incident took place due to some hot discussion in between the parties, therefore, after quarrel the deceased walked back to home in injured condition, therefore, we have no hesitation to hold that learned trial court has committed error to commit the accused appellant for the offence under Section 302 IPC instead under Section 304 Part I IPC.
We have perused the judgments of coordinate bench of this court in the case of Shiv Kumar @ Pappu Vs. State of Rajasthan, in almost identical facts, the carbonate bench of this Court while relying upon the aforesaid principles converted the conviction from offence under Section 302 IPC to Section 304 Part I IPC and following adjudication is made by this court in paras nos.33, 34 and 35, which reads as under: -
"33. Common object is to be inferred from the acts, behaviour and other surrounding elements, including conduct and reaction prior and after. In certain circumstances, different may be object at different intermittent stages, in determining common object, the conduct of each member of the unlawful assembly before or at the time of incident and even after is relevant. Here no else other than Shiv Kumar carried any article for causing injury and nothing to suggest that knife with Shiv Kumar was in knowledge of any other member of unlawful assembly. No injury even of hard object is only Shiv Kumar ran away and others though disbursed soon but not so much hurriedly, therefore, in the opinion of the Court, only common object of causing but could have been and so (10 of 14) [CRLA-276/2008] stands proved. Therefore, members, other than Shiv Kumar common object only was of causing simple injuries. Hon'ble the Apex Court has also observed in
(i) 2009 (10) SCC 773 Pandurang Chandrakant v.
State of Maharashtra and (ii) 2009 (7) SCC 415 Akbar Shekh v. State of West Bengal, that when many who participated in the commission of crime, are to be convicted with the aid of S.149, needed is consideration of particular fact situation, including overt act proved. Here, it was only Shiv Kumar who stabbed and became away runningly fast.
34. Accordingly, appellants other than Shiv Kumar (Satiya @ Satyanarain, Balia, Purshottam Lal & Omprakash @ Kalu) are held guilty of offences punishable under Sections 147, 323 read with S.149 IPC and also S.145 Railways Act.
35. For the aforesaid reasons, appellant Shiv Kumar is to held guilty of S.304 Part I IPC and also of S.147 IPC and S.145 Railways Act. Appellants Satiya, Balia, Purshottam and Omprakash are guilty of offences under Sections 147, 323 read with S.149 IPC and also S.145 Railways Act. All are to be acquitted if the offences of S.302 or 302 read with S.149 IPC.
36. Appellant Shiv Kumar is in custody since March, 3, 2000 and by now, has suffered imprisonment little more than ten years. All other circumstances remaining normal, he should have also earned remission so now, therefore, in the opinion of the Court, sentence for the period already undergone with fine of Rs.10,000/- shall be just and appropriate. Other appellants, broadly remained in custody for about four months so for them also for the offences they have been guilty, sentence of period already undergone shall meet ends of justice."
(11 of 14) [CRLA-276/2008] In the case of Arjun & Anr. Vs. State of Chhattisgarh (supra) the Hon'ble Apex Court in almost similar circumstance held as under: -
"19. The point falling for consideration is whether the conviction of the appellants under Section 302IPC is sustainable. As discussed earlier, the evidence clearly establishes that while Ayodhya Prasad and other witnesses were cutting the trees, there was exchange of words which resulted in altercation and during the said altercation, the appellants attacked the deceased. Thus, the incident occurred due to a sudden fight which, in our view, falls under exception (4) of Section 300 IPC.
20. To invoke this exception (4), the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar vs. Union Territory of Chandigarh (1989) 2 SCC 217, (AIR 1989 SC 1094, Para 6), it has been explained as under:-
"7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.............."
21. Further in the case of Arumugam vs. State, Rrepresented by Inspector of Police, Tamil Nadu, (12 of 14) [CRLA-276/2008] (2008) 15 SCC 590, in support of the proposition of law that under what circumstances exception (4) to Section 300 IPC can be invoked if death is caused, it has been explained as under:-
"9. .......
"18. 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 Penal Code, 1860. 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 had 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‟."
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 (13 of 14) [CRLA-276/2008] appellants are entitled to the benefit under Section 300 exception (4) IPC.
23. When and if there is intent and knowledge, then the same would be a case of Section 304 Part I IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the 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." In view of the above discussion, we are of the opinion that entire prosecution case is based upon evidence of relatives of deceased and none of the witness made any allegation or proved the fact that there was any motive to cause death of the deceased. It is also one of the important fact that deceased (14 of 14) [CRLA-276/2008] Balveer Singh came back from his field in the night at 11-11.30 pm in injured condition and he was alive till he reached to the house, therefore, it is obvious that there was no intention of the accused appellant or his sons to cause death of the deceased. Learned counsel for the appellant is not challenging the incident, but upon his arguments, we have considered the entire evidence and find that there is strength in the argument of the learned counsel for the appellant that even if the entire prosecution evidence is accepted, it is not a case to hold the accused appellant for offence under Section 302 IPC because offence cannot travel beyond offence under Section 304 Part I IPC.
Consequently, this cr. appeal is partly allowed. The judgment dated 26.3.2008 passed by the learned trial court in Sessions Case NO.38/2007 (42/2007) convicting and sentencing the accused appellant Moni Ram @ Mohan Lal for the offence under Section 302 IPC for life imprisonment is hereby quashed and set aside and the accused appellant Moni Ram is hereby held guilty for offence under Section 304 Part I IPC and the sentence of life imprisonment is hereby reduced to 10 years RI with fine of Rs.5,000/- and in default of payment of fine to further undergo six months SI.
(DEEPAK MAHESHWARI)J. (GOPAL KRISHAN VYAS)J. cpgoyal/ps