Rajasthan High Court - Jodhpur
Pradeep Kumar vs State on 15 December, 2017
Author: G.K. Vyas
Bench: Gopal Krishan Vyas, Virendra Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
D.B. Criminal Appeal No. 376 / 2012
Pradeeep Kumar S/o Jagdish Das, By caste Swami, Resident of
Nathwana, Tehsil Loonkaransar, District Bikaner.
----Appellant
Versus
State of Rajathan
----Respondent
_____________________________________________________
For Appellant(s) : Mr. Shrikant Verma.
For Respondent(s) : Mr. Vishnu Kachhawa, PP
_____________________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE DR. JUSTICE VIRENDRA KUMAR MATHUR
JUDGMENT
Per Hon'ble Mr. G.K. Vyas, J.
Date of judgment :: 15/12/2017 In this criminal appeal filed by the appellant Pradeep Kumar under Section 374 (2) of Cr.P.C., the judgment dated 13 th of April, 2012 passed by learned Sessions Judge, Churu in Session Case No.7/2011 (05/2011) is under challenge, whereby the accused appellant was convicted for offence under Section 302 of IPC and sentenced to imprisonment for life along with fine of Rs.5000/- with default stipulation to further undergo six months additional simple imprisonment.
(2 of 19) [CRLA-376/2012] Briefly stated, the facts of the case are that complainant- Mukhram (PW.4) submitted a written complaint (Ex.P/3) at Police Station- Bhanipura, District Churu on 16.12.2010 alleging therein that his daughter, namely, Suman, was married with accused appellant Pradeep Kumar about two years back and after the marriage she used to reside at her in-laws‟ house. After one year of the marriage, a son was born and thereafter she was regularly visiting his house. As per FIR, before one and half month on the eve of Deepawali, Suman came back from her in-laws‟ house and after Deepawali, she was to back to her matrimonial home, but did not go because his son-in-law, Pradeep Kumar (appellant) went Gujarat in connection with employment. As per allegations in the complaint, there was some dispute in between Suman and appellant for which "Panchayat" was also held. It is alleged by the complaint that on 15.12.2010 at about 05.00 pm accused appellant- Pradeep came to take his daughter, Suman back and in the night after taking dinner he slept. On the next date i.e. on 16.12.2010 accused appellant went to his brother Prakash Das and told him that if your niece, Suman will not live properly, he will not take her back with him. His brother Prakash Das tried to reason with Pradeep and asked him not to create problem and advised him to live peacefully. In the meanwhile, complainant‟s son, namely, Surjeet and daughter, Suman also came there. His daughter, Suman asked Pradeep that upon insistence of other persons, you are unnecessarily having doubt on my character. On this, appellant annoyed and left the house and while leaving the (3 of 19) [CRLA-376/2012] house, he threatened his daughter and son Surjeet that he will see them. According to complainant, after this incident, the complainant and his brother went to their agricultural field for doing work and in the evening at 5‟O Clock, appellant Pradeep came back to the house. At that time, complainant‟s son, Surjeet was doing some work in the house. The accused appellant inflicted one injury on the chest of Surjeet by knife and thereafter ran behind his wife Suman to cause injury.
On hearing the commotion, complainant‟s mother Smt. Vidhya Devi, Govind (son of Prakash Das) and Sarla (daughter of Prakash Das) intervened and on seeing them, appellant ran away from the place of occurrence. In the meanwhile, neighbour Vikas came and immediately informed complainant and his brother who were working in their agricultural field, upon receiving the aforesaid information, he immediately reached his home, where whole incident was narrated to him by his mother Vidhya Devi. It was further reported by the complainant that blood was oozing out from the chest of his son, Surjeet, therefore, he was immediately taken to the Govt. Hospital, Sardarsahar in a jeep of one Sahab Ram. However, when they reached at Govt. Hospital, Sardarsahar, the deceased died on account of injury caused by accused appellant by knife.
Upon the aforesaid complaint, formal F.I.R. No.120/2010 was registered at Police Station Bhanipura, District Churu, on 16.12.2010 at 05.00 PM and investigation was commenced by the S.H.O., Police Station- Bhanpura. During investigation, site plan (4 of 19) [CRLA-376/2012] (Ex.P/4) and details of the site (Ex.P/4A) were prepared by the S.H.O. at village Shimla in the presence of two witnesses, namely, Sheokaran Das and Imichand Das on 17.12.2010. The details of dead body were recorded vide Ex.P/5. The „Panchnama‟ of the dead body was also prepared. The dead body of the deceased was subjected to postmortem at 10.15 AM on 17.12.2010 and postmortem report (Ex.P/14) was handed over to the investigating officer. Blood stained clothes of the deceased (shirt and grey colour vest etc.) were also taken in possession vide Ex.P/8. The dead body of the deceased was handed over to the complainant for cremation vide Ex.P/7. Blood stained samples of lime was taken from the place of occurrence vide Ex.P/11.
The accused appellant was arrested vide arrest memo (Ex.P/16) at 05.15 PM on 17.12.2010. Thereafter upon his information, a broken knife was recovered vide Ex.P/1 on 19.12.2010. The map of place of recovery was also prepared vide Ex.P/2. Jacket of the accused appellant was taken in possession vide Ex.P/7. All the recovered articles including knife were sent to the FSL for chemical examination and in turn FSL report (Ex.P/7) was sent on 23.02.2011 in which human blood of „B‟ group was found upon all the articles.
The investigating officer on completion of investigation, filed charge sheet against the appellant in the court of learned Civil Judge (Jr. Division)-cum-Chief Judicial Magistrate No.1, Sardarsahar under Section 302 of IPC, from where the learned Magistrate committed the case for trial to the Sessions Judge, (5 of 19) [CRLA-376/2012] Churu. The learned Sessions Judge, transferred the case for trial to the court of Addl. Sessions Judge, Churu.
The learned trial court after providing opportunity of hearing to the accused appellant framed charge under Section 302 of IPC, but appellant denied and claimed trial.
In the trial, statements of 13 prosecution witnesses were recorded and thereafter statements of accused appellant were recorded under Section 313 Cr.P.C., in which accused appellant gave explanation that he is innocent, and, said that the injury found upon the body of deceased Surjeet was caused because he fell down upon the tools as he was doing work of carpentry and said that at the time of incident, no one was present in the house, therefore, he took the injured Surjeet to the hospital where he died. In support of defence, two witnesses were examined as defence witnesses.
After recording evidence, the learned trial court heard final arguments and convicted the accused appellant for offence under Section 302 of IPC vide judgment dated 13.04.2012 in Session Case No.7/2011 (05/2011) and passed sentence for life imprisonment along with fine of Rs.5000/-. The said judgment is under challenge in this appeal.
Learned counsel for the appellant at the threshold did not dispute the fact of incident but submitted that the FIR has been filed by complainant- Mukhram (PW.4), who was not present at the time, when the occurrence took place. It is further argued that the allegations levelled for threat by the prosecution witnesses, (6 of 19) [CRLA-376/2012] have not been corroborated by any independent witness, and admittedly only one injury was found on the person of deceased so also there was no motive or intention to cause injury to deceased- Surjeet. Further submitted that testimonies of relatives witnesses viz. PW.1 Vidhya @ Vimla (grandmother of deceased), PW.2 Suman (wife of accused appellant and sister of the deceased), PW.3- Prakash Das (real uncle of the deceased) could not have been relied upon so as to hold accused appellant guilty for committing offence of murder because their presence is seriously doubtful. It is also admitted fact that the witnesses, PW.3 Prakash Das and PW.4 Mukhram (complainant) were not even present at the place of occurrence when the alleged incident took place, more so, at the relevant point of time, they were working in their agricultural field.
Learned counsel for the appellant drew our attention towards the statements of child witness Govind (PW.5), who was 13 years of age at the time of incident. The said witness in his cross- examination stated that appellant came to his house and asked him to bring water, when he came back along with water, he saw that Pradeep Kumar was inflicting injury to Surjeet (deceased), at that time Sarla and Suman and his grandmother were present at the place of occurrence. It is thus submitted that as per prosecution case only one injury was caused by the accused appellant to the person of deceased- Surjeet, there is no allegation for repeated injury.
The entire prosecution case is based upon testimony of the (7 of 19) [CRLA-376/2012] witnesses, who are close relatives, there is no independent witness so as to prove the allegation of prosecution for giving threat prior to the incident. It is also argued that there is serious doubt about truthfulness of the written report submitted by the complainant because complainant, Mukhram is not a literate person, he has put his signatures only. In the cross-examination, it is categorically stated by the complainant Mukhram that the complaint (Ex.P/1) was written by one Upendra Singh, resident of Shimla in the hospital and thereafter Upendra Singh asked him to put his signatures but said witness has not been examined as prosecution witness. It is also stated by the said witness that in the night accused- Pradeep was happy and after taking dinner he slept but quarrel took place in the morning, therefore, it is a case in which prosecution has concocted a story while planting eyewitnesses and made allegations to cause on injury to the person of deceased- Surjeet.
Learned counsel for the appellant further argued that even though the entire prosecution story is doubtful, but even upon accepting such story true, it is obvious that there is allegation against the accused appellant for inflicting only one injury and there is no allegation for causing repeated injury. Therefore, the finding of guilt recorded by the trial court for offence under Section 302 IPC is not sustainable in the eye of law. More so, as per evidence on record the offence cannot travel beyond offence under Section 304 Part-I of IPC because as per statements of prosecution witnesses and complainant himself, a day before, in (8 of 19) [CRLA-376/2012] the night everybody was happy and after taking dinner, accused appellant went to sleep, however, in the morning some quarrel took place, which resulted into the incident. It is thus submitted that when there was no motive or intention to cause murder of the deceased, then the finding of guilt recorded against the accused appellant for offence under Section 302 IPC deserves to be altered to offence under Section 304 Part-I of IPC because there was no previous enmity between accused appellant and the deceased- Surjeet, who was his brother-in-law and some minor/petty dispute was only with Suman, wife of the accused appellant. Therefore, it is argued that ingredient of offence under Section 302 IPC, which is motive, has not been proved by the prosecution, therefore, the conviction of the accused appellant for offence under Section 302 IPC may be altered to offence under Section 304 Part-I of IPC.
In support of his arguments, learned counsel for the appellant intention our attention towards following judgments:
1. Sudhakar Vs. State of Maharashtra reported in (2012) 9 SCC
725.
2. Dilip Kumar Mondal & Anr. Vs. State of West Bengal reported in 2015 (2) SCC (Cri.) 318.
3. State of Himmachal Pradesh Vs. Rampal reported in 2006 (2) SCC (Cri.) 165.
4. Arjun Vs. State of Maharashtra reported in 2012 Cr.L.R. (SC)
506.
5. Arjun & Anr. Vs. State of Chhatisgarh reported in AIR 2017 SC 1150.
(9 of 19) [CRLA-376/2012] Per contra, learned Public Prosecutor vehemently opposed the above submissions and prayer made on behalf of accused appellant for altering the offence from offence u/s 302 of IPC to offence u/s 304 Part-I of IPC because as per public prosecutor the prosecution has proved the fact that injury was caused by the accused appellant upon the vital part of the body of deceased Surjeet, and that too by a sharp edged weapon i.e. knife, therefore, the contention of the counsel for the appellant that offence cannot travel beyond offence under Section 304 Part-I of IPC is not sustainable in law. It is further argued that even if it is accepted that only one injury was caused by the accused appellant to the deceased, it cannot be said that any error has been committed by the trial court so as to hold accused appellant guilty for offence under Section 302 of IPC because the story narrated by the prosecution witnesses proves that knife was broken, therefore, it was not possible for appellant to inflict second injury, otherwise he would have caused repeated injuries. Learned Public Prosecutor thus prayed that the appeal may kindly be dismissed.
After hearing the learned counsel for the parties, we have perused the entire evidence and the statements of all the eyewitnesses of the incident and complainant Mukhram and his brother Prakash Das.
A bare reading of the statements of the eyewitness Suman (PW.2) wife of the accused appellant, would reveal that there is no doubt that a day before the incident, accused appellant was happy and after taking dinner, he slept in his in-laws‟ house. The witness (10 of 19) [CRLA-376/2012] PW.4- Mukhram, in his statements categorically stated that there was no quarrel in between appellant and the complainant party till previous night of the incident with the witnesses, including PW.1- Vidhya @ Vimla, PW.2 Suman, PW.3 Prakash Das, PW.4 Mukhram and PW.5 Govind. However, in the morning i.e. on 16.12.2010 some quarrel might have taken place with regard to doubt in the mind of accused appellant with respect to his wife‟s character and all of sudden he inflicted injury on the person of deceased Surjeet. The child witness PW.5- Govind categorically in his cross- examination stated as under: -
"--- iznhi tc&tc llqjky vkrs muls feyrk Fkk oks tc vkrs rc esjk rks ykM j[kr]s eq>s rks gl a dj ckys rs FkAs fnukd a 15-12-10 dks iznhi vk;k rc eSa muls feykA eSua s ml jkt s "kke dks muds lkFk [kkuk ugha [kk;k] muds lkFk rks lqjth HkkbZ lkgc us [kkuk [kk;k ogh muds ikl lk;s s FkAs eSa rks nqljs fnu lqcg iznhi ls feyk gAaw eSa rc vius ?kj ds vkxa u eas FkkA iznhi ls gekjs ?kj ds vkxa u eas feyk FkkA eS]a ejs h nknh] cgu ljyk] esjs ikik oxSjk ekStnw FkAs vt [kqn dgk fd ckn eas lqeu&lqjthr vk x;s FkAs eSa fn"kk ds ckjs eas tkudkjh j[krk gAaw gekjs ?kj dk njoktk if"peh vkjs gSA gekjs ?kj ds nf{k.k rjQ dksbZ njoktk ugha gSA lqcg iznhi gekjs ?kj ds vkxa u esa i"peh pkSd eas feyk FkkA iznhi vkSj lqeu ckn ev as k;s FkAs eSa esjh cgu ljyk] nknh] firkth pkSd eas igys ls cSBs FkAs iznhi esjs firkth ls /khj& s /khjs cryk jgk Fkk tkjs &tkjs ls ugha cky s jgk FkkA jkth[kq"kh ckrphr gks jgh Fkh] ukjktxh ugha FkhA iznhi o ejs s firkth dks djhcu nks&rhu fefuV ckr gq;h] mlds ckn lqeu o lqjth HkkbZ vk;k FkkA iznhi lqeu ijfdl ckr ls "kd a k&lna gs j[krk vkSj djrk eq>s bldh dksbZ tkudkjh ugha gSA eSus ml fnu ds vykok mlls igys ;g langs &"kda k dh dksbZ ckr ugha lquh] blfy;s /;ku ugh gSA "kd a k v k Sj lna gs djus dh ckr lqjth us ml fnu dgh FkhA iznhi o ejs s firkth ds chp ckrphr gq;h rc dos y ppkZ gq;h dkbs Z yMk+ bZ&>xMk+ ugha gqvk FkkA (11 of 19) [CRLA-376/2012] eSa ml fnu viuh Ldwy esa x;k FkkA eSa 10 cts vius Ldy w pyk x;k okfil eas 4 cts vk;k FkkA ;g dguk xyr gS fd fo|ky; dh NqV~Vh 4- 30 ih ,e ij gkrs h gksA ejs s firkth ls iznhi us ckr dh fQj oks dgka pys x;s irk ughAa ejs s ?kj ls esjk Ldy w FkkMs +h gh njw h ij gSA gekjs ?kj ls Ldwy tk;s rks xkoa dk cl vM~Mk ugha iM+rkA eSaus mlds ckn iznhi dks 16 dh "kke dks n[s kk FkkA euaS s iznhi dks vius ?kj ds vkxa u eas ns[kk FkkA eSa ml fnu vius ?kj dh cSBd] fQj dgk fd vkxa u eas cSBk FkkA iznhi us pkSd esa vkdj eq> ls ikuh exa ok;k Fkk ;g lgh gSA iznhi vk;k vkSj lqjthr ds ikl [kMk+ jgk vkSj eq>s ikuh ykus mlus Hkt s fn;kA eSa vius vkxa u esa ikuh ykus x;k FkkA gekjs pkSd eas dejk ds vUnj ,d NkVs k dqfUM;k gS]a mlls eSus ikuh fudkyk FkkA ikuh eSus ykVs k ls fudkyk FkkA eaS ykSVk ikuh dk Hkj jgkFkk rc rks lqjthr ds iznhi us pkdw ekj fn;k FkkA tc iznhi us eq> ls ikuh exa ok;k] rc ljyk] lqeju] ejs h nknh mlh pkSd eas ogka ij ekStwn Fk]s ljyk ogka cSBh gq;h FkhA nknh Hkh cSBh Fkh] ljyk nknh ds lkFk pkjikbZ ij cSBh] lqeu vius cPps dks n/w k firk jgh FkhA] ;g lgh gS fd iznhi gekjs ?kjvk;k mlus eq> ls ikuh exa ok;k rc mlds ikl pkdw ugha FkkA pkdw iUs V ds vUnj dh tcs ds ikl iznhi us fudkyk FkkA pkdw lh/kk gh Mky j[kk FkkA pkdw fudkyk rc gh eSua s n[s k fy;k Fkk----A** Upon assessment of the statements of so called eyewitnesses, it is obvious that only allegation against the accused appellant is for causing only one injury by knife upon chest, and there is no evidence that there was any quarrel or enmity in between accused appellant and the deceased-Surjeet. Therefore, in absence of any evidence of motive it cannot be presumed that the prosecution has proved its case for offence under Section 302 of IPC.
The Hon‟ble Supreme Court in the case of State of Himmachal Pradesh Vs. Ram Pal (supra) gave following verdict to alter the conviction from offence under Section 302 IPC to Section 304 (12 of 19) [CRLA-376/2012] Part-I of IPC while discussing the evidence of previous enmity and motive. The relevant paragraph numbers 5 to 8 of the said judgment are as follows:
"5. Having perused the record for the limited purpose of finding the nature of offence, we see that it is clear from the evidence of PW- 3 himself that he and Jaiwant consumed liquor before going to the tea stall of the respondent herein to demand the money which was due to him and when they reached there the deceased went inside the tea stall and started quarreling with the accused persons. During the said quarrel it is stated that the deceased called the accused persons as "cheat" and "beiman" and the quarrel then spilled outside the stall at which point of time a stick that was carried by Choudhary Ram was snatched by PW- 3, in the process Choudhary Ram got injured and fell down. Here we must notice the case of the defence is that PW- 3assaulted Choudhary Ram which caused him facial injury and noticing his father being assaulted the respondent intervened and assaulted PW- 3 first with a knife and then assaulted the deceased twice on his back. 6. On the facts of this case whichever version we take it is clear that it is the deceased and PW- 3 after consuming liquor went to the tea stall of the accused. When the deceased went inside and abused the accused, the said verbal quarrel then spilled outside the shop when Choudhary Ram was injured on the fact either intentionally or otherwise by PW- 3. It is at that time the respondent stabbed PW--3 and the deceased. From the above facts stand proved are (a) the deceased went with PW- 3 to the shop of the accused; (b) picked up an argument during which he abused the accused; (c) Choudhary Ram was injured first and then the respondent stabbed PW- 3 and the deceased; (d) injury was inflicted on the (13 of 19) [CRLA-376/2012] back of the deceased. 7. On the above facts we are of the opinion that the High Court was justified in altering the sentence from Section 302 IPC to Section 304 Part I IPC. We are also in agreement with the finding of the High Court that sentence of over 4 years' RI suffered by the respondent meets the ends of justice. 8. For the reasons stated, this appeal fails hence dismissed."
In the case of Arjun Vs. State of Maharasthra (supra) the Hon‟ble Supreme Court gave following verdict:
"17. Considering the background facts as well as the fact that there was no premeditation and the act was committed in a heat of passion and that the appellant had not taken any undue advantage or acted in a cruel manner and that there was a fight between the parties, we are of the view that this case falls under the fourth exception to Section 300 IPC and hence it is just and proper to alter the conviction from Section 302 IPC to Section 304 Part 1 IPC and we do so. 18. We are informed that the appellant is in custody since 30.07.2003. In our view, custodial sentence of 10 years to the accused-appellant accordingly. The appeal is accordingly disposed of, altering the sentence awarded."
In the case of Sudhakar Vs. State of Maharasthra (supra), the Hon‟ble Supreme Court held as under:
"8. Whatever be the subsequent versions made by P.Ws 1 and 2 before the Court, it came out in evidence that at the time of occurrence there were only three persons, namely, the appellant, P.W.1 and the deceased. The admission of P.W.1 that the deceased had drinking habit and that whenever he was under the influence of liquor he used to create a ruckus in the house was a factor which had to be necessarily borne in mind while (14 of 19) [CRLA-376/2012] considering the offence alleged and proved against the appellant. Though there is variation in the version of P.W.1, as between the complaint and her evidence before the Court, going by the evidence available on record, the conclusion of the Trial Court that the appellant was responsible for the death of the deceased is unassailable. Apart from the exclusive presence of the appellant with a weapon in his hand as deposed by P.W.2, the other two persons were the deceased and P.W.1. The said conclusion of the Trial Court as well as that of the High Court cannot be doubted. Further the report of the chemical analysis Exhibits 35 and 36 also disclosed that the blood stained clothes of the appellant matched with the blood group of the deceased which were found on the clothes of the deceased himself. Therefore, there was conclusive proof to hold that it was appellant who was responsible for the single stab injury inflicted upon the deceased with the aid of the knife seized under Exhibit-47. Having reached the above conclusion, the only other question raised was as to whether there is any mitigating circumstance in order to hold that the offence would fall under any of the Exceptions to Section 300 of IPC to state that it was a case of culpable homicide not amounting to murder."
The Hon‟ble Supreme Court in the case of Dilip Kumar Mondal & Anr. Vs. State of West Bengal (supra) held as infra: -
"24. In order to invoke Exception 4 to Section 300 Indian Penal Code, it must be further shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The Appellants are said to have inflicted injuries with henso and dau. By a perusal of Ext. P6 post-mortem certificate, it is seen that the deceased sustained one incised injury on the back which (15 of 19) [CRLA-376/2012] has caused injury to scapula and spinal cord and another incised wound over the back just below the right scapula causing injury to the right lung and pleura. Insofar as the injuries caused to Ranjit Debnath and Santosh Debnath, there is no sufficient evidence as to the alleged injuries caused to them. As far as PW-10- Nikhil Debnath is concerned, he was discharged from the hospital after giving first aid treatment indicating thereby that the injury was not grievous. Considering the injuries, in our view, it cannot be said that the accused have taken undue advantage of the situation. The incident was not premeditated and the scuffle between the parties led to the causing of injuries to the deceased Nripen Debnath and considering the circumstances of the case, in our view, the offence would fall Under Section 300 Indian Penal Code Exception 4 and the conviction of the Appellants is to be modified and altered Under Section 304 Part I IPC."
In the case of Arjun & Anr. Vs. State of Chhattishgarh the Hon'ble Court held as infra:
"22. The accused, as per the version of PW-6 and eye witness account of other witnesses, had weapons in their hands, but the sequence of events that have been narrated by the witnesses only show that the weapons were used during altercation in a sudden fight and there was no premeditation. Injuries as reflected in the post- mortem report also suggest that appellants have not taken undue advantage or acted in a cruel manner. Therefore, in the fact situation, exception (4) under Section 300 IPC is attracted. The incident took place in a sudden fight as such the appellants are entitled to the benefit under Section 300 exception (4) IPC.
(16 of 19) [CRLA-376/2012]
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.
25. Fee of the learned Amicus is fixed as per Rules."
At this stage, it is relevant to refer to Section 300 of IPC which reads as under :-
" 30 0. Murder--.Except in the case hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of (17 of 19) [CRLA-376/2012] causing death, or--
Secondly--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--
Thirdly--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--
Fourthly--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1.--When culpable homicide is not murder.--
Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
......x.....xx.....xx..... x..........
......x.....xx.....xx..... x..........
......x.....xx.....xx..... x..........
Exception 4--Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Explanation--It is immaterial in such cases which party offers the provocation or commits the first assault.
.........."
(18 of 19) [CRLA-376/2012] Upon consideration of entire evidence, it is revealed that relationship of the accused appellant with his wife and other family members was cordial till 15.12.2010 but on the date of incident, some quarrel took place, in which one injury was caused by the accused appellant to the deceased without premeditation or plan to kill him. Further, in view of the fact that child witness PW.5- Govind categorically said in his statements that he was present when the occurrence took place and according to him, no conversation with regard to threat took place, therefore, it is obvious that is a case in which some quarrel took place on spot in which only injury was caused by the accused appellant, which resulted into the death. The relationship of the accused appellant and deceased was very close, and probably in anger, accused appellant inflicted one injury upon the vital part of the deceased without any intention, which resulted into his death. Therefore, we are of the opinion that the finding of guilt recorded by the learned trial court for offence under Section 302 IPC deserves to be altered to offence under Section 304 Part-I of IPC.
In view of above discussion and the law laid down by the Hon‟ble Apex Court in the abovementioned judgments, we are of the opinion that it is a fit case to alter the conviction of the accused appellant from offence under Section 302 IPC to offence under Section 304 Part-I of IPC.
Consequently, the instant criminal appeal is hereby partly allowed. The finding of conviction recorded by the learned Addl.
(19 of 19) [CRLA-376/2012] Sessions Judge, Churu, against the accused appellant for offence under Section 302 IPC is hereby altered to offence under Section 304 Part-I of IPC and the sentence of life imprisonment is hereby reduced to sentence of ten years RI but fine is enhanced to Rs.1,00,000/- in view of Section 357A of Cr.P.C. The enhanced amount of compensation shall be deposited within two months from the date of receiving the copy of this judgment, failing the accused appellant shall undergo two years further imprisonment. In the event of depositing the amount of Rs.1,00,000/-, the amount may be disbursed to the legal representatives of deceased.
(DR. VIRENDRA KUMAR MATHUR)J. (GOPAL KRISHAN VYAS)J. DJ/-