Rajasthan High Court - Jodhpur
Babu Ram @ Babu vs State on 6 October, 2017
Bench: Gopal Krishan Vyas, Manoj Kumar Garg
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
D.B. Criminal Appeal No. 482 / 2013
Babu Ram @ Babu S/o Shri Joga Ram, by caste Dewasi, Resident
of Village Kundal, Tehsil Siwana, District Barmer (Raj.)
----Appellant
Versus
State of Rajasthan.
----Respondent
_____________________________________________________
For Appellant(s) : Mr. Shambhoo Singh.
For Respondent(s) : Mr. C.S. Ojha, PP.
_____________________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
JUDGMENT
BY THE COURT
06/10/2017 The instant criminal appeal has been filed by appellant Baburam @ Babu under Section 374 (2) Cr.P.C. assailing the validity of judgment dated 30.04.2013 passed by learned Sessions Judge, Balotra, in Session Case No.32/2011, whereby the learned trial court convicted the accused appellant for offences under Sections 341 and 302 of IPC and passed following sentence:
(2 of 16) [CRLA-482/2013] 341 of IPC: One Month's Simple Imprisonment along with fine of Rs.500/-, with default stipulation to further undergo seven days' additional simple imprisonment.
302 of IPC: Imprisonment for life along with fine of Rs.5,000/-. In default of payment of fine, to further undergo two months' additional simple imprisonment.
As per facts of the case, a written complaint (Ex.P/10) was filed by Suja Ram (PW.6), real brother of deceased, in which following allegations were levelled, which reads thus: -
"lo s k eas Jheku Fkkukf/kdkjh flokuk ckMe+ js fo'k; & eqdnek ntZ dj dk;Zokgh djus ckcrA egkns ; th] q kjke S/o vklkjke th tkrh nos klh fuoklh fuons u lt dq.My dk bl izdkj gS fd vkt fnukd a 21@8@11 dks fnu eas yxHkx 12&1 cts nkis gj dks ckcqjke S/o tkxs kjke tkrh nos klh fuoklh dq.My gekjs [krs eas ?kkl yus s ds fy, vk;k Fkk rc ejs s HkkbZ iUukjke S/o vklkjke th nos klh fuoklh dq.My us mls [krs ls ?kkl yus s dks euk fd;k ftlls ckcjq ke uktjkt gks x;k o vkil eas buds fcp cky s pky gqbZ Fkh ftlds ckn "kke dks djhc 6 cts ejs s HkkbZ iUukjke viuh ,os M+ ¼cdfj;k½a yus s ds fy,s igkMh+ fd rjQ tk jgk Fkk mlds fiNs eSa vkSj ejs k HkkbZ peukjke Hkh ,os M+ yus s ds fy,s igkMh dh rjQ tk jgs FkAs ejs k HkkbZ iUukjke tl S h gh dq.My ls dk[kh tkus okyh lMd + ij tcjs [kka ds dkVa k o nd q ku ds ikl i gp + ij ckcqjke S/o tkxs kjke nos klh fuoklh dq.My gkFk eas aq k rks lMd ykBh fy;s gq,s [kMk+ Fkk mlus fnu fd ckr dks yd s j jt a hl ol ejs s HkkbZ iUukjke dks jkd s dj tku ls ekjus fd fu;r ls ckcjq ke us ykBh fd pkVs iUukjke ds flj ijekjh ftlls oks fxj x;k fQj ckcjq ke us iUukjke ds ck;a h vk[a k ij] egaq ij o "kjhj ij txg&txg ykBh;ka ekjh ftlls iUukjke [kqu cgus yxk fQj ge nkus kas HkkbZ;kas us fiNs ls tkjs &tkjs ls gkdk fd;k rks ckcjq ke ykBh yd s j vius ?kj fd rjQ Hkkx x;k brus eas (3 of 16) [CRLA-482/2013] /kukjke S/o Hkkjrkth nos klh fuoklh dq.My Hkh nkSM+ dj vk;k blus Hkh ;s ?kVuk n[s kh ge lHkh iUukjke utnhd igpaq s rks mlds flj ls [kuq cg jgkFkk] brus eas nqxZ flga S/o jru flga iqjkjs kfgr fuoklh ftuiqj viuh xkMh+ yd s j lk;yk fd rjQ ls vk;k ftldks geus :dokdj iUukjke mlh xkMh+ esa Mkydj flokuk vLirky yk;s o bykt grs q HkrhZ djk;k mlds ckn MkW- lkgc us iUukjke fd rch;r T;knk [kjkc gkus s ls tk/s kiqj bZykt grs q jQ s j fd;k ge tk/s kiqj ds fy, xkMh+ eas Mkydj jokuk gq, Fks brus eas iUujke fd e`R;q gks xbZA iUukjke fd eR` ;q ckcjq ke }kjk ykfB;kas ls flj eas o "kjhj ij pkVs s ekjus ls [kuw fudyus ls gqbZ gSA vr% fjikVs Z i"s k djjgk gaw dkuuw h dk;oZ kgh djkoAs LTI lqtkjke"
Upon the aforesaid written complaint, the S.H.O., Police Station- Siwana, District Barmer registered formal F.I.R. for the offences under Sections 341 and 302 IPC on 22.08.2011. After registration of the FIR, post of the dead body of deceased, Panna Ram was conducted at C.H.C., Siwana and postmortem report (Ex.P/15) was prepared by the medical jurist and same was given to the investigating officer for the purpose of investigation on 21.08.2011. Before that, the deceased was medically examined at 08.44 PM on 21.08.2011 by the medical officer of the hospital at Siwana, in which five injuries were recorded by the medical officer, which is evident from Ex.P/16. As per injury report (Ex.P/16), there were five injuries out of which three injuries were in the nature of swelling and two were bruises.
Looking to critical condition of Pannaram, medical officer of CHC, Siwana, referred the injured for further treatment at M.D.M. Hospital, Jodhpur, however, he died. The appellant was arrested by the police vide Ex.P/17 on 22.08.2011 at 05.30 PM itself and upon his information under Section 27 of the Evidence Act, one (4 of 16) [CRLA-482/2013] "Lathi" was recovered vide Ex.P/8 in the presence of two witnesses, Dunger Singh and Ghewan Ram. All other proceedings were conducted by the investigating officer, which were required for investigation and after investigation, charge sheet was filed by the police against the accused appellant in the court of Judicial Magistrate, Siwana under Sections 341 and 302 IPC on 27.04.2011. The offence under Section 302 IPC being triable by Sessions Judge, the case was committed to the court of Sessions Judge for trial.
The learned Sessions Judge, Balotra commenced the trial after framing charge against the accused appellant for offence under Sections 302 and 341 of IPC. The accused appellant denied the charges framed against him by the trial court and prayed for trial.
In the trial, statements of 14 prosecution witnesses were recorded including eyewitness PW.6- Sujaram, PW.7- Dhannaram, PW.11- Chamnaram and statements of doctor PW.14- Dr. Guman Singh who performed the postmortem and prepared postmortem report of the deceased. After recording the evidence of prosecution, statements of the appellant were recorded under Section 313 Cr.P.C., but accused appellant denied all the allegations levelled by the prosecution witnesses and stated that he has been falsely implicated due to groupism of the relatives. In defence, Baburam @ Babu examined himself as DW.1 and examined one Manga Ram as DW.2.
Thereafter final arguments were heard by the learned trial court. The learned trial court after considering the arguments of (5 of 16) [CRLA-482/2013] both the parties as well as evidence on record held the accused appellant guilty for offence under Sections 302 & 341 of IPC and passed sentence mentioned above.
Learned counsel for the appellant vehemently argued that it is a case in which false and fabricated story is concocted by the prosecution while planting relative eyewitnesses so as to connect the accused with the crime. It is further submitted that as per prosecution evidence, some quarrel took place in the morning on 21.08.2011 and thereafter in the evening, at 6'O Clock, accused appellant inflicted injuries by "Lathi" to the deceased, which result into his death. In fact, there was no enmity in between the parties and only to implicate the accused appellant with the crime, the story was fabricated by the relatives of the complainant, which is evident from the fact that complaint was made by Sujaram (PW.6) to the Superintendent of Police, Barmer, in which Suja Ram stated that he was not present at the time of incident, but he was informed by his brother Chamnaram and Dhannaram. Meaning thereby the author of the FIR was not present at the time of occurrence but subsequently he gave statement in support of prosecution case, therefore, his testimony deserves to be discarded for the purpose of holding the appellant guilty for offence under Section 302 of IPC.
Learned counsel for the appellant further argued that as per statements of Dr. Guman Singh (PW.14), there was no sign of any weapon upon the injuries found on the person of deceased. It was further stated by the said witness that probably the injuries were caused due to hit on the floor. Thus, it cannot be said that the (6 of 16) [CRLA-482/2013] prosecution has proved its case beyond reasonable doubt, which is led by the prosecution. The crux of the argument of learned counsel for the appellant is that it is a case in which prosecution has not proved its case beyond reasonable doubt, therefore, the appellant is entitled to be extended benefit of doubt.
In the alternative, it is submitted that even if the entire prosecution case is accepted, then also, no offence under Section 302 IPC is made out because there is no evidence of previous enmity in between the accused and the complainant party. There is evidence of quarrel on the same day in the morning for taking grass from the agricultural field, therefore, probably in anger, the occurrence took place. Therefore, as per Section 300 IPC, it is a case of culpable homicide not amount to murder.
Learned counsel for the appellant thus submits that even if this Court comes to the conclusion that there is strength in the prosecution case, so as to prove the incident then also, the finding of conviction recorded by the learned trial court for offence u/s 302 IPC is not sustainable in law because offence cannot travel beyond offence under Section 304 Part-I of IPC. Learned counsel for the appellant submitted that the accused appellant may be acquitted from the charges levelled against him or the finding of guilt recorded by the learned trial court may be altered to Section 304 Part I of IPC.
Per contra, learned Public Prosecutor vehemently opposed the submissions made by the learned counsel for the appellant. It is submitted that it is a case in which some quarrel took place in the morning but with intention the accused appellant came with (7 of 16) [CRLA-482/2013] "Lathi" in the evening and inflicted injuries on the vital part of the body of the deceased, which resulted into his death. Therefore, it cannot be said that there was no intention to cause death of deceased. The finding recorded by the learned trial court so as to convict the appellant for offence under Section 302 IPC does not require any interference.
Learned Public Prosecutor further submitted that there is ample evidence of eyewitnesses who were present at the time when occurrence took place. In the cross-examination, no such question was put by the counsel for the accused appellant with regard to Ex.D/2, an application which is said to be submitted by eyewitness Suja Ram (PW.6) before the Superintendent of Police, therefore, there is no strength in the argument of the learned counsel for the appellant that prosecution has failed to prove its case beyond reasonable doubt or failed to prove the case for offence under Section 302 of IPC. There is no force in this appeal hence this appeal may kindly be dismissed.
After hearing the learned counsel for the parties, we have minutes examined the entire evidence of prosecution. There is no doubt that some incident took place in the evening at 6'O Clock on 21.08.2011 for the reason that some quarrel took place in the morning and this fact is established by the evidence of eyewitnesses and it is also one of the important aspect of the matter that the deceased was taken to hospital for examination and he was medically examined by the doctor at C.H.C., Siwana, where medical officer examined him and prepared injury report. We have perused the injury report (Ex.P/16) prepared by the (8 of 16) [CRLA-482/2013] medical officer at 08.44 on 21.08.2011. In the said injury report, five injuries were recorded by the medical officer, out of which three injuries were swelling and two were bruises and the said injuries were caused by blunt weapon. Admittedly, a "Lathi" was recovered at the instance of accused appellant, which is blunt weapon.
We have perused the statements of PW.14- Dr. Guman Singh, who has categorically stated in his statements that deceased, Pannaram was examined by him on the relevant day and the injury report was prepared by him at 08.44 PM on 21.08.2011 and five injuries were found upon the body of the injured/deceased. We cannot loose sight of the fact that in the cross-examination, doctor has specifically said that, ";g ckr lgh gS fd inz "kZ ih 16 dh pkVs l[a ;k ,] nks o ikp a ij gfFk;kj dk dkbs Z fu"kku ugha Fkk] flQZ lt w u vk j[kh FkhA pkVs l[a ;k rhu o pkj cyiow Zd uhps fxjus ls vFkok Vdjkus ls vk ldrh gAS ".
In the case of Pulicherla Nagarju Vs. State of A.P. reported in (2006) 11 SCC 444, the Hon'ble Apex Court enumerated some of the circumstances, relevant to finding out whether there was any intention to cause death on the part of the accused. The Hon'ble Apex Court observed as infra: -
"29 Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead (9 of 16) [CRLA-482/2013] to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. 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 pre- meditation; (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 (10 of 16) [CRLA-482/2013] reference to individual cases which may throw light on the question of intention."
In the case of Murlidhar Shivram Patekar & Anr. Vs. State of Maharashtra reported in 2014 (4) Crimes 233 (SC) while considering various judgment the Hon'ble Apex Court held that in the event of absence of motive, whether accused can be convicted for the offence u/s 302 IPC or 304 Part I or II of IPC. In the said case, numbers of injuries were found upon the body of deceased and while considering the aforesaid fact, the Hon'ble Apex Court gave following verdict, which reads as infra:
"19. The question however still remains as to the nature of the offence committed by the accused and whether it falls under Exception 4 of Section 300, IPC.
In the case of Surinder Kumar (supra), this Court has held 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."
(emphasis supplied) Further in the case of Arumugam v. State,[2] in (11 of 16) [CRLA-482/2013] 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:-
"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‟."
Further in the case of Satish Narayan Sawant v. State of Goa,[3] this Court has held as under:
"24. .......Section 300 IPC further provides for the Exceptions which will constitute culpable homicide not amounting to murder and punishable under Section 304. When and if there is intent and knowledge then the same would be a case of Section 304 Part I 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.
28. .........Records clearly establish that there was indeed a scuffle between the parties with regard to the availability of electricity in a particular room and during the course of scuffle the appellant also received an injury which was simple in nature and that there was heated exchange of words and scuffle between the parties before the actual (12 of 16) [CRLA-482/2013] incident of stabbing took place. There is, therefore, provocation and the incident happened at the spur of the moment. That being the factual position, we are of the considered view that the present case cannot be said to be a case under Section 302 IPC but it is a case falling under Section304 Part II IPC. It is trite law that Section 304 Part II comes into play when the death is caused by doing an act with knowledge that it is likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as is likely to cause death."
Thus, if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not intention to cause murder and bodily injury then the same would fall under Section 304 Part II. We are inclined to the view that in the facts and circumstances of the present case, it cannot be said that the appellants/accused had any intention of causing the death of the deceased when they committed the act in question. The incident took place out of grave and sudden provocation and hence the accused are entitled to the benefit of Section 300 Exception 4 of IPC."
Thus, in entirety, considering the factual scenario of the case on hand, the legal evidence on record and in the background of legal principles laid down by this Court in the cases referred to supra, the inevitable conclusion is that the act of the accused-appellants was not a cruel act and the accused did not take undue advantage of the deceased. The scuffle took place in the heat of passion and all the requirements under Section 300 Exception 4, IPC have been satisfied. Therefore, the benefit of Exception 4 under Section 300, IPC is attracted to the fact situations and both the appellants are equally entitled to this benefit.
20. Thus, considering the factual background and the legal position set out above, the inevitable conclusion is that the appropriate conviction of the appellants would be under Section 304 Part II IPC instead of Section 302 IPC. Hence, the sentence of imprisonment for 10 years would meet the ends of justice."
(13 of 16) [CRLA-482/2013] In the aforesaid case laws, the Hon'ble Apex Court held that if any is committed without motive, which resulted into death, then it cannot be said that it is a case of murder. Recently, the Hon'ble Apex Court in the case of Arjun & Anr. etc. etc. Vs. State of Chhattisgarh reported in AIR 2017 SC 1150, gave following verdict: -
"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 (14 of 16) [CRLA-482/2013] entitled to the benefit of this exception provided he has not acted cruelly.............."
21. Further in the case of Arumugam vs. State, Represented by Inspector of Police, Tamil Nadu, (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 (15 of 16) [CRLA-482/2013] 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 appellants are entitled to the benefit under Section 300 exception (4) IPC."
In view of above facts, we cannot presume that the injuries were inflicted so as to cause death of the deceased, but it cannot be said that those injuries were not fatal in nature. We are thus of the opinion that it is a case of culpable homicide not amounting to murder, therefore, the finding recorded by the learned trial court for offence under Section 302 IPC is not sustainable in law and the offence cannot travel beyond offence under Section 304 Part I of IPC.
Accordingly, the instant criminal appeal is partly allowed and the finding of conviction recorded by the learned trial court against the accused appellant for offence under Section 302 of IPC is hereby quashed and set aside and the same is hereby altered to offence under Section 304 Part I of IPC while maintaining the finding of conviction against the appellant for offence under Section 341 of IPC. The sentence of life imprisonment is hereby reduced to ten years' rigorous imprisonment along with fine of Rs.50,000/-, which the accused appellant shall deposit with the learned trial court within a period of two months from today. In default of payment of fine, the appellant shall undergo two years' additional imprisonment. Upon deposition of amount of fine, the (16 of 16) [CRLA-482/2013] same shall be disbursed to the family members/LR's of the deceased.
(MANOJ KUMAR GARG)J. (GOPAL KRISHAN VYAS)J. DJ/-
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