Rajasthan High Court - Jodhpur
Sant Ram vs State on 28 July, 2017
Bench: Gopal Krishan Vyas, Manoj Kumar Garg
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
D.B. Criminal Appeal No. 315 / 2010
Sant Ram S/o Raju Ram, By caste Valmiki, Resident of Eta, Police
Station- Rajiyasar, District Sri Ganganagar (Raj.)
[Presently lodged in Central Jail, Sri Ganganagar]
----Appellant
Versus
State of Rajasthan
----Respondent
_____________________________________________________
For Appellant(s) : Mr. Shaitan Singh.
For Respondent(s) : Mr. C.S. Ojha, PP.
_____________________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
JUDGMENT
28/07/2017 In this criminal appeal filed by appellant/convict, Sant Ram, from Central Jail, Sri Ganganagar, the judgment dated 09.06.2010 passed by learned Addl. Sessions Judge (Fast Track), Annopgarh, HQ- Suratgarh, District Sri Ganganagar, in Session Case No.8/2010, is under challenge, whereby the accused appellant was convicted for the offence under Section 302 of IPC and sentenced for life imprisonment with fine of Rs.10,000/-.
(2 of 15) [CRLA-315/2010] As per facts of the case a complaint (Ex.P/1)was filed against accused appellant on 28.12.2009 at 11.30 AM by Udmiram (PW.2) son of accused appellant, Sant Ram at Police Station Rajiyasar, District Sri Ganganagar. In the complaint, it is reported that at present I am residing in Haryana along with my maternal uncle to do some work, today at about 8‟O Clock I received a phone call from my uncle Indraj to the effect that my mother, Vimla Devi, died. Upon receiving such information, I immediately came to the village Eta, where upon enquiry, it is found that my father Sant Ram committed murder of my mother by strangulation and her dead body is lying in the house. It is further reported that there were abrasions upon her neck, therefore, action may be taken as per law.
Upon aforesaid written complaint (Ex.P/1) the SHO, Police Station- Rajiyasar registered a formal F.I.R. No.308/2009 on 28.12.2009 itself and commenced the investigation.
During investigation accused appellant Sant Ram was arrested at 07.30 PM vide arrest memo Ex.P/17 on 28.12.2009 and an information was given under Section 27 of the Evidence Act by appellant on 29.12.2009 at 07.30 that "Chunri" which is used by him for strangulation is lying in a hut, which can be revered from the said place. Upon aforesaid information, "Churni" was recovered vide Ex.P/6 on 28.12.2009 in the presence of witnesses, Mahaveer Prasad (PW.5) and Indraj (PW.6) vide Ex.P/3. "Panchayatnama" of the dead body of Vimla Devi (deceased) was also prepared in the presence of five independent witnesses and after postmortem dead body was handed to the (3 of 15) [CRLA-315/2010] son, Udmiram for cremation vide Ex.P/5. Statements of the eyewitnesses and other witnesses were recorded under Section 161 Cr.P.C. Postmortem report (Ex.P/15) was obtained from Primary Health Centre, Thukarana, in which Dr. Bhanupratap Singh, who conducted postmortem gave opinion that the cause of death was asphyxia due to strangulation, which is ante mortem in nature.
The S.H.O., Police Station- Rajiyasar, after completion of investigation filed charge sheet against the accused appellant under Section 302 of IPC in the court of Judicial Magistrate, First Class, Suratgarh, from where the case was committed to the court of Sessions Judge for trial, but later on was transferred to the court of Addl. Sessions Judge (FT), Anoopgarh, HQ- Suratgarh (Sri Ganganagar) for trial.
In the trial, after framing charge under Section 302 IPC against the accused appellant, the learned trial court proceeded to record evidence of prosecution. In support of prosecution case statements of 11 prosecution witnesses were recorded and during trial 22 documents were exhibited from prosecution side.
The statements of accused appellant under Section 313 Cr.P.C. were recorded, in which the accused appellant denied the allegations levelled against him by prosecution witnesses and submitted that he is innocent and no offence is committed by him. Despite granting of opportunity to lead defence, no defence evidence was led by the accused appellant.
The learned trial court i.e. Addl. Sessions Judge (FT), Anoopgarh, HQ- Suratgarh, thereafter heard final arguments and (4 of 15) [CRLA-315/2010] decided the case vide judgment dated 09.06.2010 and convicted the accused appellant for offence u/s 302 of IPC and passed sentence for life imprisonment along with fine of Rs.10,000/-.
Learned amicus curiae submitted that in this case most of the witnesses turned hostile and the trial court while relying upon the testimony of child witness PW.1- Phsupa (daughter of deceased Vimla Devi and accused appellant) convicted the accused appellant for the charge u/s 302 IPC, but the finding of learned trial court based upon testimony of child witness Ms. Pushpa is not sustainable in law because her presence on the place of occurrence is doubtful.
Learned counsel for the appellant further argued that it is a case in which although daughter of accused appellant gave statement against appellant, but other eyewitness i.e. Gandhi Ram (son of deceased and appellant) who was admittedly present in the house, turned hostile and did not support the allegations levelled by witness PW.1- Ms. Pushpa. As per learned amicus curiae, other witnesses viz. PW.4- Krishan, PW.5- Mahaveer, PW.6 Indraj, & PW.7- Dhapi Devi turned hostile although their names were disclosed by PW.1- Ms. Pushpa that they came on the spot soon after the occurrence. Further all these witnesses are corroborating the allegation levelled by PW.1 Pushpa, therefore, the trial court has committed a grave error while holding the accused appellant guilty. He, therefore, prayed that judgment impugned may kindly be quashed and set aside.
In the alternative, it is submitted that entire prosecution case is based upon testimony of PW.1, Pushpa, who is said to be (5 of 15) [CRLA-315/2010] eyewitness but none of other witnesses including PW.1- Pushpa disclosed any motive for committing murder of her mother by accused appellant, her father. Therefore, it is a case in which there is no evidence of motive and even if this Court relies upon testimony of PW.1 Pushpa, it cannot be said that prosecution has prove any motive, which is the main ingredient of offence of murder. It is thus submitting that finding of conviction recorded by the trial court for offence u/s 302 IPC may be altered to Section 304 Part-I of IPC while modifying the judgment.
Per contra, learned Public Prosecutor vehemently argued that it is a case in which wife has been murdered by husband by strangulation and this fact is established from the statement of Dr. Bhanupratap Singh (PW.10), who in his statements recorded before the court on oath, categorically stated that case of death was strangulation. Thus, there is no question to disbelieve the testimony of PW.1- Pushpa, who was 12 years of age when incident took place.
Learned Public Prosecutor further argued that no daughter will make false allegation against her own father, therefore, the trial court has rightly relied upon the testimony of PW.1 Pushpa. It is thus argued that no lenient view is required to be taken in this case because for no reason the Smt. Vimla Devi was murdered by the appellant by strangulation.
After hearing the learned counsel for the parties, we have perused the statements of 11 witnesses including PW.1- Pushpa and PW.10- Dr. Bhanupratap Singh. There is no doubt that there are eyewitness PW.1- Pushpa, PW.3- Gandhi Ram. It is also (6 of 15) [CRLA-315/2010] admitted that PW.1- Pushpa is supporting the prosecution case and made specific allegations against accused appellant for committing murder and not disputing the presence of PW.3- Gandhi Ram. PW.1- Pushpa, in her statements recorded before the trial court, made following allegations against the accused appellant: -
" ge rhu cgus vkSj nks HkkbZ gAS mneh ejs k HkkbZ yxrk gSA mneh eejs s gfj;k.kk eas jgrk gSA ejs h nks cguas "kknhZ"knq k gS o lljq ky eas jgrh gSA ?kj eas eS]a ejs h ek]a NkVs k HkkbZ xk/a kh o ejs s firk jgrh gAS ejs h eka dks ejs s firk lra jke us ekj fn;k FkkA ejs h eka dk dBa ekl s cj ejs s firk us ekj fn;k Fkk djhc 1 eghus igys dh ckr g]S jkr dh ckr gAS jkr dks ejs h eka foeyk nos h dks ejs s firk lra jke us ekj fn;k FkkA geus "kkjs oxSjk ugha epk;k Fkk fQj ekd S s ij egkohj HkkbZ] una jkt] bUnzkt] d`'.k oxS vk x;s o ejs h eka dks lHa kkyk rks ejs h eka ejh gbq Z iMh+ FkhA mlds ckn ekSds ij ejs k firk lra jke ugha FkkA ftjg }kjk odhy eqyfte ejs s ?kj eas ?kMh+ gSA nhokj ?kMh+ gSA e>q s le; n[s kuk ugha vkrkA eSua s viuh vk[a kkas ls ehs eka dk ekjrk ejs s firk }kjk ekjrk n[s kk FkkA ejs h eka dk dBa ekl s dj ekj fn;k FkkA dBa pqujh ls ekl s k FkkA iqfyl eas ejs s c;ku g,q FkAs ejs s c;ku iqfyl us ?kj ij fy;s Fks ejs s firkth igys Hkh ejs h eka ds lkFk ekjihV djrs FkAs pqUuh yky jxa dh FkhA"
Upon perusal of above statement, it is clear that specific allegation was levelled by said witness against her father i.e. accused appellant- Sant Ram and her statement is corroborated by the medical evidence because PW.10- Dr. Bhanupratap Singh, gave opinion in the postmortem report that cause of death was strangulation.
(7 of 15) [CRLA-315/2010] PW.-2 Udmiram, was not present at the time of occurrence took place. The incident was reported to him by his uncle PW.6- Indraj on telephone, upon that information he reached the village. The eyewitness PW.-3 Gandhi Ram, PW.-4 Krishan, PW.5- Mahaveer, PW.6 Indraj, PW.7 Dhapi Devi, and PW.9- Dholaram all turned hostile and did not support the prosecution case. PW.8- Jalam Singh was „Malkhana‟ In-charge at Police Station Rajiyasar. PW.10- Dr. Bhanupratap Singh, gave opinion that deceased Smt. Vimla Devi, died due to strangulation. PW.11- Purshottamdas Sharma is the Investigating Officer.
Upon consideration of entire evidence, we are of the opinion that there is no evidence of motive on record and most of the witnesses turned hostile but testimony of child eyewitness PW.1- Pushpa, cannot be disbelieved in toto, because she was present in the house and specific allegation was levelled by her against father that my father killed my mother by strangulation and this fact is corroborated by Dr. Bhanupratap Singh (PW.10).
From the wedlock of the deceased and accused appellant, five children were born and admittedly PW.2- Udmi ram (author of FIR and son of accused appellant), was 20 years of age, therefore, obviously, both accused appellant and deceased were living peacefully from last many years, but probably due to some reason quarrel took place in between them and abruptly in anger, accused appellant acted in harsh manner and committed act of strangulation of his own wife without any motive. In view of above, it is obvious that there is no evidence of motive on record, and prosecution has relied upon testimony of PW.1- Pushpa only, (8 of 15) [CRLA-315/2010] therefore, we are of the view that finding of guilt recorded by the trial court against accused appellant for offence u/s 302 of IPC deserves to be altered from offence u/s 302 IPC to 304 Part-I of IPC.
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 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 (9 of 15) [CRLA-315/2010] 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 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.
(10 of 15) [CRLA-315/2010] 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 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 (11 of 15) [CRLA-315/2010] 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 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."
(12 of 15) [CRLA-315/2010] 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."
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 (13 of 15) [CRLA-315/2010] view, falls under exception (4) of Section 300 IPC.
20. To invoke this exception (4), the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar vs . Union Territory of Chandigarh (1989) 2 SCC 217, (AIR 1989 SC 1094, Para
6), it has been explained as under:-
"7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.............."
21. Further in the case of Arumugam vs. State, 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 (14 of 15) [CRLA-315/2010] be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression „undue advantage‟ as used in the provision means „unfair advantage‟."
22. The accused, as per the version of PW-6 and eye witness account of other witnesses, had weapons in their hands, but the sequence of events that have been narrated by the witnesses only show that the weapons were used during altercation in a sudden fight and there was no pre-meditation. Injuries as reflected in the post-mortem report also suggest that appellants have not taken "undue advantage" or acted in a cruel manner. Therefore, in the fact situation, exception (4) under Section 300 IPC is attracted. The incident took place in a sudden fight as such the appellants are entitled to the benefit under Section 300 exception (4) IPC."
Upon assessment of entire evidence of this case, in the light of aforesaid judgments, we are of the opinion that in this case there is no evidence of motive on record and the circumstances loudly speak that incident took place in anger, therefore, in our opinion, exception (4) of Section 300 IPC is attracted in this case.
(15 of 15) [CRLA-315/2010] In view of above, it is a fit case to alter conviction of accused appellant from offence under Section 302 of IPC to Section 304 Part-I of IPC.
Consequently, the instant criminal appeal is hereby partly allowed, the conviction of accused appellant under Section 302 IPC recorded by learned Addl. Sessions Judge (Fast Track), Annopgarh, HQ- Suratgarh, District Sri Ganganagar in Session Case No.8/2010 vide judgment impugned dated 09.06.2010, is hereby altered to offence u/s 304 Part-I of IPC and the sentence for life imprisonment is hereby reduced to ten years‟ rigorous imprisonment. The order of fine is, however, maintained. (MANOJ KUMAR GARG)J. (GOPAL KRISHAN VYAS)J. DJ/-
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