Rajasthan High Court - Jodhpur
Gopal vs State on 10 October, 2024
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2024:RJ-JD:35198-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 1116/2015
Gopal
----Appellant
Versus
State
----Respondent
For Appellant(s) : Mr. Rajjak Khan
For Respondent(s) : Mr. N.K. Gurjar, GA cum AAG
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE MUNNURI LAXMAN Judgment Reportable Reserved on 22/08/2024 Pronounced on 10/10/2024 Per Dr. Pushpendra Singh Bhati, J:
1. This criminal appeal from Jail has been preferred on behalf of the accused-appellant assailing the judgment of conviction and order of sentence dated 22.07.2015 passed by the learned Additional Sessions Judge (Women Atrocities Cases), Udaipur ('Trial Court') in Sessions Case No.49/2015 (CIS No.1339/2015) (State of Rajasthan Vs. Gopal), whereby the accused-appellant had been convicted and sentenced as below:
Conviction under Sentence(s) Fine(s)
Section(s)
302 IPC Life Imprisonment Rs.5,000/-, in default of which,
to undergo further Three
Months' S.I.
326 IPC Seven Years' R.I. Rs.3,000/-, in default of which,
to undergo further One Month's
S.I.
329 IPC Seven Years' R.I. Rs.3,000/- in default of which,
to undergo further One Month's
S.I.
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[2024:RJ-JD:35198-DB] (2 of 16) [CRLA-1116/2015]
2. Brief facts of the case, as placed before this Court by learned counsel for the accused-appellant, are that on 15.05.2011, one Raunak Jain (complainant), while being at Maharana Bhupal Hospital (Ward No.33), submitted a written report before the SHO, Police Station, Surajpole, Udaipur stating therein that the complainant owned a shop, namely, Mohan Chemical at Amal Ka Kanta, on the ground floor of his residential premises.
2.1. As per the report, on the said date, while the complainant and his mother Kalpana Jain were sitting in the shop, Gopal (present accused-appellant), who at the relevant time, was in an intoxicated state, came to the shop and demanded an acid bottle and money. The accused-appellant at that time asked the complainant and his mother as to why they asked for money towards acid bottle from the accused-appellant, and while asking so, he took the acid bottle from beneath the counter and poured the acid on the complainant and his mother.
2.2. As a result of the said act of the accused-appellant, the complainant sustained burns on both of his hands, face and back of the shoulder, while his mother sustained burns on both hands, face, back, right eye and abdomen. It was also reported that both the complainant and his mother were in a serious medical condition. As per the complainant, the said act of the accused- appellant was intervened by one Mangilal Jain and Kishanlal Ji with a view to rescue the complainant, whereupon the accused- appellant fled from the spot, and thereafter, both the complainant and his mother were taken to the hospital by Ambulance. (Downloaded on 10/10/2024 at 09:49:43 PM) [2024:RJ-JD:35198-DB] (3 of 16) [CRLA-1116/2015] 2.3. On the basis of the aforesaid report, an FIR bearing No.200/2011 was registered on 15.05.2011 at Police Station, Surajpole, Udaipur under Sections 327 & 307 IPC and the investigation commenced accordingly.
2.4. After investigation, the police submitted a charge-sheet against the petitioner under Sections 326, 327 & 307 IPC before the Court of learned Chief Judicial Magistrate, Udaipur. 2.5. Another report was submitted by the complainant's brother, namely, Rajat Jain on 26.06.2011, stating that his mother (Smt. Kalpana Jain) was referred to Apollo Hospital and remained thereat for about 14 days, and after being discharged from the said hospital on 24.06.2011, she was taken to Dungarpur by her brother. On the next day i.e. 25.06.2011, Smt. Kalpana Jain succumbed to the burn injuries and died at around 5:00 p.m., and the cause of death, as stated, was spread of infection due to acid burns.
2.6. As a consequence of death of Smt. Kalpana Jain (deceased), the police submitted a Titamba charge-sheet against the accused- appellant under Section 302 IPC before the learned Chief Judicial Magistrate, Udaipur, and owing to such nature of offence, the matter was committed by the learned Magistrate to the learned Sessions Judge, Udaipur, from where the matter was referred to the learned Trial Court.
2.7. The learned Trial Court had framed charges against the accused-appellant under Sections 326, 329, 307 & 302 IPC, and the same were read over to the accused-appellant, whereupon he denied the charges and claimed to be tried.
(Downloaded on 10/10/2024 at 09:49:43 PM) [2024:RJ-JD:35198-DB] (4 of 16) [CRLA-1116/2015] 2.8. During the trial, the prosecution produced 15 witnesses and exhibited 21 documents; in defence, no witness was produced on behalf of the accused-appellant, but one document was exhibited. In the examination of the accused-appellant under Section 313 Cr.P.C., he pleaded his innocence and false implication, and the trial commenced thereafter before the learned Trial Court. 2.9. After conclusion of trial and hearing the rival contentions of the parties, the learned Trial Court, vide the impugned judgment of conviction and order of sentence, convicted and sentenced the accused-appellant, as above.
3. Learned counsel for the accused-appellant submitted that the accused-appellant was not carrying any bottle of acid, at the relevant time, and he had no prior preparation to commit the crime in question. As per learned counsel, a sudden fight broke out between the accused-appellant and the deceased. It was further submitted that the incident in question had happened on 15.05.2011, while the deceased died on 25.06.2011 i.e. after 1 month, 10 days of the incident in question, which shows that the injuries caused during the alleged incident were not sufficient in the ordinary course of nature to cause the death in question. 3.1. It was also submitted that there was no prior enmity between the accused-appellant and the deceased coupled with lack of any premeditation, as well as absence of intention on the part of the accused-appellant to cause death of the deceased, and therefore, the accused-appellant's conviction under Section 302 IPC vide the impugned judgment is not justified in law. (Downloaded on 10/10/2024 at 09:49:43 PM) [2024:RJ-JD:35198-DB] (5 of 16) [CRLA-1116/2015] 3.2. It was further submitted that PW.1 stated that the acid bottle had been broken by the accused-appellant over the head of the deceased and the said bottle was recovered and marked as Ex.P.7, whereas as per PW.2 stated that the said bottle was intact, and which shows material contradictions between the testimonies of the said two witnesses.
3.3. It was also submitted that the entire incident had happened when the deceased stood on the chair and was trying to get the bottle of acid from the bucket, during course of which, the acid spilled over the deceased. It was also submitted that the accused- appellant is in custody since 15.05.2011, and thus, the total custody of the accused-appellant is 13 years 3 months, and presently, he is aged 50 years.
3.4. In support of his submissions, learned counsel relied upon the following judgments:-
(a) Bhanwara Ram & Ors. Vs. State of Rajasthan (D.B. Criminal Appeal No. 83/1986, decided by a Coordinate Bench of this Hon'ble Court on 15.09.2022);
(b) Khatri Hemraj Amulakh Vs. The State of Gujarat (1972) 3 SCC 671; and
(c) Ravishankar Tandon Vs. State of Chhattisgarh (Criminal Appeal No. 3869 of 2023, decided by Hon'ble Apex Court on 10.04.2024).
4. On the other hand the learned Public Prosecutor while opposing the aforesaid submissions made on behalf of the accused-appellant, submitted that the eyewitness PW.1- Raunak Jain (son of deceased) clearly stated that accused-appellant came (Downloaded on 10/10/2024 at 09:49:43 PM) [2024:RJ-JD:35198-DB] (6 of 16) [CRLA-1116/2015] to his shop and poured the acid on him and his mother (deceased), and during the treatment, his mother (deceased) died, due to infection spread in her body on count of acid burns. 4.1. It was further submitted that PW.1's version was also supported by injuries reports [Ex.P.15 (of deceased) & 16 (of PW-
1)] prepared by PW.12- Dr. Akhilesh Sharma and PW.14- Dr. Anupam Johari. It was also submitted that PW.14 conducted the postmortem on the deceased's body, and has stated that the deceased suffered burns to the extent of 45%.
4.2. It was also submitted that the accused-appellant murdered the deceased in a very brutal manner and all the prosecution witnesses as well as the recovery of clothes, acid bottle, etc. have sufficiently established the prosecution case during the trial, and therefore, the impugned conviction and sentence are justified in law.
5. Heard learned counsel for the parties as well as perused the record of the case alongwith the judgments cited at the Bar.
6. This Court observes that the accused-appellant was convicted, in relation to an incident, which had occurred on 15.05.2011 at around 12:30 noon. The record reveals that the accused-appellant came to the shop of the deceased, where PW. 1 and his mother (deceased) were sitting; the accused-appellant, at the relevant time, asked for acid bottle and when the deceased asked for money from the accused-appellant towards such sale, then suddenly the accused-appellant poured the acid on PW.1 and the deceased while saying why they asked for money from the accused-appellant.
(Downloaded on 10/10/2024 at 09:49:43 PM) [2024:RJ-JD:35198-DB] (7 of 16) [CRLA-1116/2015] 6.1. This Court further observes that the deceased and PW. 1 were taken to the hospital and the report was filed under Sections 326, 327 and 307 IPC; the accused-appellant was arrested on same day and charge-sheet was also filed, thereafter on 25.06.2011, the deceased died and the Titamba charge-sheet with the added provision i.e. Section 302 was filed against the accused- appellant; after the completion of trial, the impugned judgment of conviction and order of sentence was passed by the learned Trial Court, convicting and sentencing the accused-appellant as above.
7. This Court also observes that PW.1 was the injured eyewitness of the incident in question and stated that he and his mother (deceased) were sitting in the aforesaid shop, and at that time, the accused-appellant asked for acid bottle and when the deceased asked for money from the accused-appellant towards sale of acid bottle, then suddenly the accused-appellant poured the acid on the complainant and the deceased by saying why they asked money. He further stated that his mother (deceased) died on 25.06.2011. The PW.1's testimony supports the prosecution case and there is no contradiction in his testimony. 7.1. This Court also observes that the PW.6- Mangilal Jain was also an eyewitness of the incident in question, and had also supported the prosecution story, while clearly stating that the accused-appellant poured the acid on the deceased and PW.1, and the entire incident was the consequence of demand of money by the deceased from the accused-appellant towards sale of the acid bottle to him.
(Downloaded on 10/10/2024 at 09:49:43 PM) [2024:RJ-JD:35198-DB] (8 of 16) [CRLA-1116/2015] 7.2. This Court further observes that the PW.2- Madanlal Teli was the witness (motbir) of the recovery of clothes, acid bottle etc, and had turned hostile during the trial, but the other witness (motbir) PW.4- Devendra Singh supported the recovery so made by the concerned police authority.
7.3. This Court also observes that PW.3- Indralal Dhobi and PW.9- Gokul Khatik, who had their shops near the deceased's shop, had also turned hostile during the trial.
7.4. This Court further observes that PW.12- Dr. Akhilesh Sharma who prepared the injury reports, had stated in his testimony that deceased's body was burnt to the extent of 35%. PW. 14- Dr. Anupam Johari who conducted the postmortem on the deceased's body and and prepared postmortem report (Ex.P/19), stated that deceased body's surface area was burnt to the extent of 45%.
8. This Court also observes that as per the testimonies of the above-mentioned prosecution witnesses and other relevant documents, the accused-appellant had committed the crime in question and all injuries sustained during the incident were caused by him, and thus, the prosecution has fully established the case against the accused-appellant.
9. At this juncture, this Court considers it appropriate to reproduce the relevant portion of the judgment rendered by the Hon'ble Apex Court in the case of Mohd. Ahsan Vs. State of Haryana 2024 SCC OnLine SC 648, as hereunder:-
"14. It is thus clear that the incident occurred without premeditation, in a sudden fight, in the heat of passion and upon a sudden quarrel. The evidence would also not show that the accused-Appellant had either taken undue advantage or (Downloaded on 10/10/2024 at 09:49:43 PM) [2024:RJ-JD:35198-DB] (9 of 16) [CRLA-1116/2015] acted in a cruel or unusual manner. We therefore find that the present case would fall under Exception 4 to Section 300 of the IPC.
15. We therefore find that the present appeal deserves to be partly allowed. The conviction of the accused-Appellant under Section 302 of the IPC is altered to one under Part I of Section 304 of the IPC and he is sentenced to rigorous imprisonment for a period of eight (08) years and a fine of Rs.5,000/- (Rupees Five thousand) and in default of payment of fine, a further imprisonment for a period of three (03) months."
9.1. This Court is conscious of the judgment rendered by the Hon'ble Apex Court in case of Lavghanbhai Devjibhai Vasava v. State of Gujarat, (2018) 4 SCC 329, relevant portion whereof is reproduced as hereunder:-
"7. This Court in Dhirendra Kumar v. State of Uttarakhand [Dhirendra Kumar v. State of Uttarakhand, 2015 SCC OnLine SC 163] has laid down the parameters which are to be taken into consideration while deciding the question as to whether a case falls under Section 302 IPC or Section 304 IPC, which are the following:
(a) The circumstances in which the incident took place;
(b) The nature of weapon used;
(c) Whether the weapon was carried or was taken from the spot;
(d) Whether the assault was aimed on vital part of body;
(e) The amount of the force used.
(f) Whether the deceased participated in the sudden fight;
(g) Whether there was any previous enmity;
(h) Whether there was any sudden provocation.
(i) Whether the attack was in the heat of passion; and
(j) Whether the person inflicting the injury took any undue advantage or acted in the cruel or unusual manner."
9.2. This Court is also conscious of the judgment rendered by the Hon'ble Apex Court in the case of Anbazhagun Vs. The State (Downloaded on 10/10/2024 at 09:49:43 PM) [2024:RJ-JD:35198-DB] (10 of 16) [CRLA-1116/2015] Represented by the Inspector of Police, 2023 SCC Online SC 857; relevant portion whereof is reproduced as hereunder:-
"60. Few important principles of law discernible from the aforesaid discussion may be summed up thus:-
(1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused. To illustrate : 'A' is bound hand and foot.
'B' comes and placing his revolver against the head of 'A', shoots 'A' in his head killing him instantaneously. Here, there will be no difficulty in holding that the intention of 'B' in shooting 'A' was to kill him, though only single injury was caused. The case would, therefore, be of murder falling within Clause (1) of Section 300 of the IPC. Taking another instance, 'B' sneaks into the bed room of his enemy 'A' while the latter is asleep on his bed. Taking aim at the left chest of 'A', 'B' forcibly plunges a sword in the left chest of 'A' and runs away. 'A' dies shortly thereafter. The injury to 'A' was found to be sufficient in ordinary course of nature to cause death. There may be no difficulty in holding that 'B' intentionally inflicted the particular injury found to be caused and that the said injury was objectively sufficient in the ordinary course of nature to cause death. This would bring the act of 'B' within Clause (3) of Section 300 of the IPC and render him guilty of the offence of murder although only single injury was caused.
(2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall (Downloaded on 10/10/2024 at 09:49:43 PM) [2024:RJ-JD:35198-DB] (11 of 16) [CRLA-1116/2015] within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC.
(3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is 'guilty intention,' whereas the second part would apply when there is no such intention, but there is 'guilty knowledge'. (4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder.
(5) Section 304 of the IPC will apply to the following classes of cases: (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression 'sufficient in the ordinary course of nature to cause death' but is of a lower degree of likelihood which is generally spoken of as an injury 'likely to cause death' and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death.
(Downloaded on 10/10/2024 at 09:49:43 PM) [2024:RJ-JD:35198-DB] (12 of 16) [CRLA-1116/2015] To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the f irst part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC.
(6) The word 'likely' means probably and it is distinguished from more 'possibly'. When chances of happening are even or greater than its not happening, we may say that the thing will 'probably happen'. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death.
(7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC.
(8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the (Downloaded on 10/10/2024 at 09:49:43 PM) [2024:RJ-JD:35198-DB] (13 of 16) [CRLA-1116/2015] deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack. (9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries.
(10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case.
(11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies. (12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC."
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10. This Court further observes that a perusal of the record, including the testimonies of eyewitnesses, shows that the accused-appellant came to the shop of deceased to purchase the acid bottle and when deceased gave the acid bottle and asked for money, the accused-appellant suddenly attacked the complainant and the deceased. This Court however, observes that neither there was prior enmity between the deceased and accused-appellant, nor any premeditation was on the part of the accused-appellant, which led to the incident in question; furthermore, as per the record, the accused-appellant did not carry any acid bottle prior to coming to the place of incident in question.
10.1. This Court also observes that the accused-appellant had committed the crime in question without any premeditation, but the same was committed owing to a sudden fight in a heat of moment, and thus, the same falls under the Exception 4 of Section 300 IPC the said exception is "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's having taken undue advantage or acted in a cruel or unusual manner." and the same deserves to be considered as culpable homicide, instead of murder.
11. This Court further observes that in the present case, though the accused-appellant acted in a manner, which was likely to cause the death in question, but the probability aspect of such death has to be seen, while looking into the fact that the incident in question had happened on 15.05.2011 and deceased died on 25.06.2011 i.e. after 1 month 10 days,. The incident in question (Downloaded on 10/10/2024 at 09:49:43 PM) [2024:RJ-JD:35198-DB] (15 of 16) [CRLA-1116/2015] had happened without premeditation, but due to a sudden fight and in a heat of passion and that there was no prior preparation on the part of the accused-appellant for committing the murder of the deceased. Therefore, the same falls within the definition of Culpable Homicide as provided under Section 299 IPC.
12. This Court also observes that the accused-appellant is behind the bars for last about 13 years and serving out the sentence awarded to him vide the impugned judgment of conviction and order of sentence.
13. Thus, in view of the above, the present appeal is partly allowed. Accordingly, while altering the offence, as against the accused-appellant, from Section 300 IPC to that under Section 299 IPC (culpable homicide not amounting to murder), the impugned conviction of the appellant is climbed down from Section 302 I.P.C. to that under Section 304 Part-I IPC. The period of sentence of the accused-appellant is reduced to the period, he has undergone till now, which in the opinion of this Court, is sufficient to meet the ends of justice in the peculiar facts and circumstances of this case. The appellant is in jail; he shall be released, subject to deposition of the fine amount, as imposed vide the impugned judgment of conviction and order of sentence. It is further stipulated that immediately after deposition of the fine amount, the accused-appellant shall be released, if his custody is not required in any other case.
13.1. However, keeping in view the provision of Section 437-A Cr.P.C./Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the accused-appellant is directed to furnish a personal bond (Downloaded on 10/10/2024 at 09:49:43 PM) [2024:RJ-JD:35198-DB] (16 of 16) [CRLA-1116/2015] in a sum of Rs. 40,000/- and a surety bond in the like amount, before the learned Trial Court, which shall be made effective for a period of six months, to the effect that in the event of filing of Special Leave Petition against this judgment or for grant of leave, the accused-appellant, on receipt of notice thereof, shall appear before the Hon'ble Supreme Court as soon as he would be called upon to do so.
13.2. The record of the learned Trial Court be sent back forthwith. All pending applications stand disposed of.
(MUNNURI LAXMAN),J (DR. PUSHPENDRA SINGH BHATI),J. SKant/-
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