Rajasthan High Court - Jodhpur
Hema Ram vs State on 5 October, 2016
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas
[1 of 19]
IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR
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CRIMINAL APPEAL (CRLA) No. 928 of 2013
APPELLANT:
Hema Ram S/o Sh. Balu Ram, by caste Kumawat,
Resident of Village Balaji-Ki-Dhani, Kuchamancity,
Police Station- Kuchamancity, District- Nagaur (Raj.)
(Presently lodged in Sub-Jail, Parbatsar)
V/S
RESPONDENT:
STATE OF RAJASTHAN
Date of Judgment : 5th October, 2016
HON'BLE MR. GOPAL KRISHAN VYAS,J.
HON'BLE MR. G.R. MOOLCHANDANI,J.
MR. RAKESH ARORA, for the appellant.
MR. VISHNU KACHHAWAHA, PP for the State.
JUDGMENT
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BY THE COURT (Per Hon'ble Justice G.K. Vyas):
In this criminal appeal filed under Section 374 (2) Cr.P.C., the appellant, Hema Ram has challenged the validity of judgment dated 31st October, 2013 passed by learned Additional Sessions Judge, [2 of 19] Parbatsar, District Nagaur, in Session Case No.46/2011, by which the appellant was convicted for the offence under Section 302 of IPC and sentenced for life imprisonment along with fine of Rs.5,000/-, and in default of payment of fine to undergo one month's simple imprisonment.
Briefly stated, the facts of the case are that complainant, Banwarilal (PW.7) lodged a written report (Exhibit-P/10) at Police Station- Kuchamancity, stating therein that his cousin brother, Vinod Kumar, was going on his motorcycle No. RJ-21-SG-7248 on 04.05.2011 at about 05.00 PM to village Palada. At that time, appellant Hema Ram while plying his jeep No.RJ-19-C- 2439 rashly hit the motorcycle of Vinod Kumar from behind with an intention to commit murder of Vinod Kumar. As per allegations of the complainant, few days before appellant, Hema Ram and his wife lodged an FIR for the allegation of rape against Vinod Kumar, in which the police after investigation filed a negative final report. As per complainant, Hema Ram, and his wife, Smt. Sushila, intended to grab money from Vinod Kumar, therefore, the said false case was registered by them and thereafter upon filing negative final report, they threatened Vinod Kumar and consequentially with [3 of 19] an intention to kill him, accused Hema Ram hit the motorcycle of Vinod Kumar at 05.00 on 04.05.2011 on the way from Kuchamancity to village Palada and due to said hit, Vinod Kumar fell down and on account of injuries suffered, he died on the spot.
Upon the aforesaid written report (Ex.P/10), F.I.R. No.102/2011 was registered at Police Station- Kuchamancity against accused appellant for the offence u/s 302 of IPC. In the said FIR after investigation, a charge sheet was filed against the appellant in the court of Judicial Magistrate, First Class, Kuchamancity from where the case was committed to the court of Addl. Sessions Judge, Parbatsar, District- Nagaur for trial.
During the course of trial after providing an opportunity of hearing to the accused appellant following charge was framed against the appellant:
**fnukd a 4 -5 -2 0 1 1 d k s l k ;
a d k y i kp a cts ds yxHkx ekStk dqpkeu flVh eas foukns dqekj dh e`R;q dkfjr djus ds vk'k; ls vkius thi l[a ;k vkj- t-s 19 lh- 2439 dks ekVs jlkbZfdy l[a ;k vkj-t-s 21- ,l- th- 7248] ftl ij foukns dqekj lokj Fkk] dks rt s xfr ls pykdj vkdj foukns dks tku ls ekjus dh fu;r ls VDdj ekjh] ekVs jlkbZfdy dks njw rd ?klhVk] ftlls foukns dqekj dh e`R;q gks xbZA rnul q kj vkius foukns dqekj dh gR;k dkfjr dhA vkidk mDr d`R; Hkk-n-a l-a dh /kkjk 302 ds v/khu n.Muh; vijk/k gS] tks fd bl U;k;ky; ds izlK a ku eas gSA** [4 of 19] After framing of charge, opportunity was given to the prosecution to lead evidence. To prove the allegations of murder, the prosecution examined 17 witnesses in support of its case and got exhibited 33 documents. Thereafter statement of accused appellant were recorded under Section 313 Cr.P.C., in which he denied all the allegations levelled by the prosecution witnesses and gave following explanation:
"eSa funkZs"k gaw eq>s >B w k Ql a k;k x;k gSA fnukd a 4-5-2011 dks thi l-a RJ-19-C-2439 dks eSa ugha pyk jgk Fkk rFkk u gh eSua s thi pykdj ekVs j lkbZfdy dks VDdj ekjhA"
In defence, 11 documents were exhibited by the appellant but no oral evidence was produced by the accused appellant.
The learned trial court after hearing final arguments of both the parties, held the accused appellant guilty of committing offence under Section 302 IPC vide impugned judgment dated 31.10.2013 and passed sentence for life imprisonment with fine of Rs.5,000/- with the default stipulation to further undergo one month's simple imprisonment, which is under challenge in this appeal.
Learned counsel for the appellant submits that the prosecution has given the colour of accident case for the offence of murder because even if the [5 of 19] entire prosecution case is accepted, then also, no offence under Section 302 of IPC is made out, more so the offence cannot travel beyond offence under Section 304A of IPC. Learned counsel for the appellant further submits that for committing rape with the wife of appellant, a complaint was filed against the deceased by the wife of the appellant and upon that F.I.R. No.115/2010 was registered on 27.05.2010 at Police Station- Kuchamancity, but in the said FIR (Ex.P/32) the police gave FR No.58/2010, which is placed on record as Exhibit-P/33. According to learned counsel for the appellant, a protest petition was filed by the wife of appellant in which statement of appellant's wife, Smt. Sushila were recorded on 10.05.2011, wherein Smt. Sushila made allegations of committing rape with her by deceased, Vinod Kumar. Therefore, there is no strength in the allegation of the prosecution that a false case of rape was registered against the deceased so as to grab money.
Learned counsel for the appellant further argued that in the criminal case for the allegation of rape against the deceased, after recording the statements of appellant's wife, the case was closed on account of death of Vinod Kumar, therefore, the [6 of 19] allegation of the prosecution for having intention to kill the deceased is not sustainable in law. Further, the incident which is said to be occurred on 04.05.2011 has not been proved by the prosecution because there is no reliable or trustworthy evidence on record to prove the motive. Therefore, the conviction recorded by the learned trial court for the offence under Section 302 IPC is not sustainable in law.
Learned counsel for the appellant vehemently argued that the police gave colour of accident case to a case of murder merely on the ground that an FIR for rape was filed by the wife of the accused appellant against the deceased and according to prosecution to take revenge of the said incident, the accident took place on 04.05.2011 in which due to hit by Jeep (RJ- 19-C-2439) to motorcycle plied by deceased and as a result of which Vinod Kumar died on the spot.
Learned counsel for the appellant invited attention of this Court towards the fact that there is no eye witness of the incident, so also, statements of the prosecution witnesses with regard to extra judicial confession have also been concocted by the complainant party, therefore, the judgment impugned deserves to be quashed and set aside. In the [7 of 19] alternative, it is argued by the learned counsel for the appellant that if this Court comes to the conclusion that incident took place on 04.05.2011, in which, motorcycle of deceased was hit by jeep being driven by appellant rashly and negligently, then also, no offence u/s 302 of IPC is made out upon evidence, the offence does not travel beyond offence under Section 304A of IPC. He, therefore, prayed that the present appeal may kindly be allowed and conviction of the appellant may be altered from Section 302 to Section 304A of IPC.
In support of his arguments, learned counsel for the appellant relied upon the judgment of Hon'ble Apex Court in the case of Mangesh Vs. State of Maharashtra reported in (2011) 1 SCC (Cri.) 616, in which the Hon'ble Apex Court held that if any incident takes place, in which motive and intention are absent, then, no offence u/s 302 of IPC can be said to be made out.
Per contra, learned Public Prosecutor submits that it is a case in which the motorcycle of deceased, Vinod Kumar, being RJ-21-SG-2748 was intentionally hit by the accused appellant while driving his Jeep (RJ- 19-C-2439) in between the way from Kuchamancity to Village Palada on 04.05.2011 at 05.00 PM. The said [8 of 19] incident took place for the reason that the wife of the appellant filed an FIR (FIR No.115/2010) against the deceased for committing rape with her at Police Station on 27.05.2010, in which the police gave FR. In fact, the said FIR (Ex.P/32) was filed with a view to grab money but later, in anger, the accused appellant caused death of deceased while hitting motorcycle of deceased by his jeep. While inviting attention towards the site plan (Ex.P/9), it is submitted that the appellant was driving vehicle rashly and negligently and, therefore, after hitting the motorcycle, there was no control upon the jeep and the jeep straightway crossed the side line. Meaning thereby, there was clear intention of the accused appellant to commit murder of Vinod Kumar when he was going on his motorcycle from Kuchamancity to Village Palada.
Learned Public Prosecutor further submits that the trial court has rightly considered the evidence of intention so as to hold the accused appellant guilty for the offence under Section 302 of IPC. While inviting attention of the Court towards the statements of PW.1, Rameshwarlal, PW.5 Iqbal, PW.6 Usman, PW.7 Banwarilal, PW.8 Sanjay Jain, PW.9 Subhashchand, he submitted that before these witnesses, the accused [9 of 19] appellant said that he has intentionally hit the motorcycle of Vinod Kumar to kill him, because he has committed rape with his wife. In view of above facts, there is no reason to disbelieve the testimony of these witnesses who were present on the place of occurrence. Learned Public Prosecutor further submitted that as per statement of PW.11, Arjun Prasad, who was working as MTO in Police Line, Nagaur, the vehicle (Jeep bearing registration No.RJ-19-C-2439) was perfectly in good condition and there was no defect in it. Therefore, it cannot be said that the accident had taken place due to non-functioning of break of the jeep. The investigating officer PW.17, Prakashchand Meena, conducted the whole investigation and proved before the court on oath. Likewise, PW.13 Dr. V.K. Gupta, who conducted the postmortem of deceased, described the injuries sustained to the deceased in the incident took place on 04.05.2011 and gave his opinion that deceased died due to injuries sustained by him in the incident. Therefore, it is clear cut case of murder, which has been proved by the prosecution on the basis of trustworthy evidence, therefore, this appeal may kindly be dismissed.
[10 of 19] After hearing the learned counsel for the parties, first of all we have perused the FIR (Ex.P/10), lodged by PW.7, Banwarilal, alleging therein that his nephew Vinod Kumar S/o Radheyshyam Agarwal was going on his motorcycle number RJ-21-SG-7248 at about 05.00 PM on 04.05.2011 from Kuchamancity to Village Palada, and on the way accused appellant, Hema Ram, hit the motorcycle from backside while plying the jeep rashly. It was also specifically mentioned that the said incident took place for the reason that before some time, an FIR was filed by the wife of accused appellant against Vinod Kumar, the deceased, for committing rape with her, in which the police gave FR. According to complainant, the said FR was given by the police while observing that the FIR has been filed to grab money. Due to said FR, the accused appellant become annoyed and killed Vinod Kumar by hitting his motorcycle. The Investigating Officer, PW.1, Rameshwarlal, conducted investigation and found that accused appellant hit the motorcycle of deceased, Vinod Kumar on 04.05.2011.
PW.5, Iqbal, who was sitting in a hotel, near the place of occurrence, specifically stated on oath that on 04.05.2011 when he was sitting with Usman, he [11 of 19] saw that Vinod Kumar Mor was coming from Kuchamancity and was going towards Narayanpura on Motorcycle number RJ-21-SG-7248 at about 05-05.30 PM, and was going on right side but all of sudden, a Jeep coming from Kuchamancity which was being driven by appellant, Hema Ram with full speed, hit the motorcycle of Vinod Kumar and due to said hit, Vinod Kumar fell down on the road and the jeep dragged the motorcycle. As per statement of Iqbal (PW.5), he along with Usman, Sanjay Jain and two other persons immediately rushed to the place of occurrence and found Vinod Kumar died.
PW.5, Iqbal specifically stated that when they asked accused appellant what you have done, then he replied that before six months back, he (Vinod Kumar) committed rape with his wife, therefore, I had killed him. Many other persons also came on the spot and in the meanwhile police also came on the spot. Thereafter, Vinod Kumar was taken to hospital.
Similar are the statements of other witnesses i.e. PW.6 Usman, PW.8 Sanjay Jain. Meaning thereby, the prosecution has proved the incident which took place in between the way from Kuchamancity to Narayanpura on 04.05.2011 in which the accused [12 of 19] appellant hit the motorcycle of deceased, which resulted in death of Vinod Kumar on the spot.
The Hon'ble Supreme Court in the case of Dayanand Vs. State of Haryana reported in 2008 Cri. L.J. 2975 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 '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 d eg rees 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. T he n, 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 [13 of 19] th r e e 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."
In case of Mangesh (supra), there were six injures upon the body of the deceased and considering number of judgments, in similar circumstances, the [14 of 19] 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 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 [15 of 19] 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.
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"
[16 of 19] Upon consideration of arguments and record, it emerges from the evidence on record that the prosecution is not disputing the fact of registration of FIR by the wife of accused appellant for committing rape with her by the deceased at Police Station- Kuchamancity on 27.05.2010. It is also not disputed that police filed FR in the FIR No. 115/2010 lodged by the wife of accused appellant, which is place on record as Ex.P/33. It is also not disputed that against the FR filed by the police, a protest petition was filed by the wife of accused appellant in which statement of his wife, Smt. Sushila, were recorded and allegation for committing rape was made against Vinod Kumar, the deceased.
We have also perused the statements of Hemlata Mor (PW.10), wife of deceased, Vinod Kumar. The said witness specifically stated that Sushila filed a false FIR against her husband. Meaning thereby, there is no dispute about the registration of criminal case by the wife of accused appellant, in which after investigation the police filed a negative final report.
In view of the fact that the accused appellant is not disputing the fact of registration of FIR for the allegation of rape against deceased, Vinod Kumar, we [17 of 19] are of the opinion that it is human nature that a husband will become angry if any person commits offence of rape with his wife; and for that reason, action can be taken by the husband for taking revenge with the person, who commit rape with his wife. In this case also, undisputedly, when FIR was filed by the wife of appellant on 27.05.2010 at P.S.- Kuchamancity, against the deceased, and this fact is not disputed by the appellant, and more so, it is reiterated by saying that a protest petition was filed by his wife in which statement of wife of the appellant were recorded wherein specific allegation of rape was levelled against the deceased Vinod Kumar. We are opinion that there was cause with the appellant to harm the deceased. Upon consideration of the entire evidence, we are of the opinion that the place where the incident took place, it cannot be said that there was any intention to kill deceased. The motorcycle was going in its right side, and while the jeep was also going in its side, however, the only question is that by rash and negligent driving to cause harm to the deceased, the motorcycle was hit by accused appellant, which resulted in incident, in which Vinod Kumar died on spot.
[18 of 19] In our opinion, it is a case of culpable homicide not amounting to murder because no weapon was used by the accused appellant for inflicting any injury. There is no evidence on record that after dashing motorcycle, any reverse action was taken or further act was committed by the appellant to kill deceased. There is allegation of one hit by him to motorcycle which resulted in death of Vinod Kumar.
After considering the entire evidence on record, coupled with the aforesaid judgments we are of the opinion that the alternative prayer of the learned counsel for the appellant deserves acceptance because as per allegation of the prosecution, only one hit was caused/given by jeep to the motorcycle of the deceased. It may be for the reason that a criminal case was filed by the wife of the accused appellant, but it cannot be presumed that hit was made only to cause of death of deceased.
In view of above, we are of the firm view that it is case of culpable homicide not amounting to murder.
Consequently, the instant criminal appeal is hereby partly allowed. The conviction and sentence of the accused appellant Hema Ram, for the offence under [19 of 19] Section 302 IPC passed by the learned Additional Sessions Judge, Parbatsar, District Nagaur, in Session Case No.46/2011vide judgment dated 31st October, 2013 is hereby altered and the accused appellant Hema Ram, is hereby held guilty for committing offence under Section 304 Part II IPC and the punishment of life imprisonment is reduced to 7 years' imprisonment while maintaining the punishment of fine. (G.R. MOOLCHANDANI),J. (GOPAL KRISHAN VYAS),J. DJ/-