Himachal Pradesh High Court
Jainem vs State Of H.P on 16 August, 2016
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeals No.60,63&64 of 2015 Date of Decision : August 16, 2016 .
Cr.A No.60/2015 Jainem ...Appellant.
Versus
State of H.P. ...Respondent.
Cr.A No.63/2015
Fateh Mohammad ...Appellant.
of
Versus
State of H.P. ...Respondent.
Cr.A No.64/2015
rt
Roshan Deen ...Appellant
Versus
State of H.P. ...Respondent
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting? Yes. 1 For the Appellants : Mr. Anoop Chitkara, Advocate. For the Respondents : Mr. V.S. Chauhan, Additional Advocate General, Mr. Vikram Thakur, Deputy Advocate General and Mr. J.S. Guleria, Assistant Advocate General.
Sanjay Karol, Judge Since all these appeals arise out of the very same impugned judgment, they are being disposed of as such.
Whether reporters of the local papers may be allowed to see the judgment?
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2. Appellants-convicts Jainem, Fateh Mohammad and Roshan Deen, hereinafter referred to as the accused, stand charged and convicted for having committed an .
offence punishable under the provisions of Section 302, read with Section 34 of the Indian Penal Code. Trial Court found the testimony of spot witness Gulam Bibi (PW-1) (a child, aged 12 years) to be inspiring in confidence and duly of corroborated by Ismile (PW-2) and Noor Hussain (PW-3).
Reasoning adopted and the findings returned in the impugned judgment dated 31.12.2014, passed by Additional rt Sessions Judge, Himachal Pradesh, in Sessions Trial No.36/2013, titled as State v. Fatesh Mohammad and others, are subject matter of challenge in the present appeal.
3. Though initially, it was argued that the testimony of child witness was absolutely uninspiring in confidence and that the spot witnesses were unreliable, for having made several improvements and exaggerations, but however, during the course of hearing, under instructions, Mr. Anoop Chitkara, learned counsel for the accused, fairly confined the challenge in the appeal with respect to conviction under Section 300, punishable under Section 302 of the Indian Penal Code. According to the learned counsel, trial Court erred in convicting the accused under the said Section, for ::: Downloaded on - 15/04/2017 21:01:47 :::HCHP ...3...
the evidence led by the prosecution could only establish and offence conviction under the provisions of Section 299, punishable under Section 304 (second part) of the Indian .
Penal Code (hereinafter referred to as IPC).
4. On 25.7.2011, a report came to be lodged at Police Station, Sadar (Chamba) that a "Brawl" had taken place between Gujjaras, as a result of which a lady had died.
of Daily Diary (Ex.PW-7/A) was entered. Inspector Kailash Walia (PW-13) reached the spot of crime, i.e. Jungle (Forest) Jufudhar, falling within the jurisdiction of Police Station, rt Sadar (Chamba), District Chamba, Himachal Pradesh. On the spot, after preparation of inquest report (Ex.PW-13/C), dead body was sent for postmortem and statement of Gulam Bibi (Ex.PW-1/A) recorded, which led to registration of FIR No.187 dated 26.7.2011. Dr. Ram Kamal (PW-14) conducted postmortem and issued report (Ex.PW-14/A).
5. Investigation revealed that in addition to the convicts herein, two other accused, namely Kasam and Bashir (both juveniles) had together attacked the deceased with Dandas, which resulted into her death.
6. Juveniles and the present accused were tried separately. It is a matter of record that all the accused stand convicted by the respective Courts. It is also a matter of ::: Downloaded on - 15/04/2017 21:01:47 :::HCHP ...4...
record that no appeal stands preferred by the juveniles (Kasam and Bashir).
7. Both the inquest report (Ex.PW-13/C) and the .
postmortem report (Ex.PW-14/A) reveal that the deceased, who was aged 55 years, suffered four bruise injuries on her left thigh, right thigh and left arm, and a depressed fracture on the left parieto-occipital region, massing intra cranial of haemorrhage of brain and left hemisphere. Cause of death, according to the doctor, was head injury leading to fracture of skull with massive intra cranial haemorrhage shock. The rt time gap between the injury and the death is approximately one hour. Noticeably, death was not instantaneous.
8. The spot of crime is not in dispute. The alleged incident took place in the thick of a forest, where both the complainant and the accused party were grazing their buffalos and live stock.
9. Presence of the accused, the deceased as also the spot witness (Gulam Bibi) at the time of occurrence of the incident is also not in dispute.
10. Careful perusal of the testimonies of Gulam Bibi, Ismile and Noor Hussain would only reveal, and it is also not the case of the prosecution, that the accused had not hatched any conspiracy to kill the deceased.
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11. But then what was the motive for the crime?
Answer to the same lies only in the testimony of Gulam Bibi, according to whom, on the fateful day, i.e. on 25.7.2011, in .
the morning, while she was in the forest with her grandmother and younger siblings, live stock belonging to the accused entered their crazing area, and when the deceased questioned accused Roshan Deen and Rashid, of challenging their right to allow their buffalos and live stock to enter their area, both of them started hurling abuses (bad mouthing) and gave beatings to the deceased.
rt Kasam, Fateh Mohammad and Jainem also joined them in giving blows with the Dandas.
12. According to this witness, who is a child, all the accused not only gave beatings to the deceased but also hurled insults by opening her Salwar. The witness wants the Court to believe that the accused had also tried to outrage the modesty of the deceased. Well, we are not convinced with this part of her testimony for the reason that: (a) it is not the case of the prosecution, (b) such fact never came to be recorded in her previous statement (Ex.PW-1/A), with which she was confronted, (c) such version is not corroborated by independent witnesses Ismile and Noor Hussain, and (d) cause of brawl/quarrel was grazing of ::: Downloaded on - 15/04/2017 21:01:47 :::HCHP ...6...
buffalos and live stock by the accused and not any intent of outraging modesty.
13. However, one fact stands clearly established .
through her testimony and that being that all the accused assaulted the deceased with Dandas (Ex.P-7,8,10,13 and 14).
Yes, she is a child witness and her testimony needs to be appreciated with little circumspection. But, we find nothing of which would render her such version to be false, unbelievable or tutored.
14. It is a matter of record that these Dandas came rt to be recovered pursuant to disclosure statements (Ex.PW-
4/A & 4/B) made by accused Fateh Mohammad and Roshan Deen, respectively, in the presence of Ismile (PW-2), Constable Anil Kumar (PW-4) and Hassan Deen (PW-5).
15. One fact, which we do not find the prosecution to have established is as to which one of the parties had rights to graze their buffalos and live stock, where the incident took place. Devi Chand (PW-6) is the Revenue official, who simply states that the spot of crime falls in Ahen Pukhar In Patwar Circle, Sahu, Tehsil and Sitrict Chamba, Himachal Pradesh, ownership whereof is that of Government of Himachal Pradesh, but possession is with the permit holders. But, then who were holding such permits, prosecution has not ::: Downloaded on - 15/04/2017 21:01:47 :::HCHP ...7...
established such fact. Though it has come in the testimony of Gulam Bibi, Ismile and Noor Hussain that the complainant party was having permit to graze the buffalos and live stock, .
with respect to the area in question, but then such fact is not established by any documentary evidence and the ocular version is vague, unclear and unspecific with regard to the boundaries, area and period. This witness is not certain and of as such this fact cannot be said to have been established beyond reasonable doubt. The witnesses are not certain with regard to the area and the boundaries.
rt
16. On the other hand, we find the accused to have examined an official of the Forest Department from the Office of Divisional Forest Officer, Chamba, District Chamba, as DW-1 (Mohinder Kumar), who has established that the permit for grazing in Jufudhar area stands issued in the name of Shukar Deen son of Fazal Deen. Also, this record does not reveal as to whether any permit was ever issued in the name of Rukam Deen, Isriel or Abdulla. Noticeably, Shukar Deen is father of Fateh Mohammad and Isrieli is husband of the deceased. Record does not specifically establish as to whether the deceased was having any permit in her name or not.
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17. Hence, there was dispute with regard to the area where the live stock was grazing. The complainant party had no right to object to the grazing of the live stock of third .
party, particularly the accused, for Shukar Deen. But this would not give any licence to assault.
18. When we further peruse the testimony of Gulam Bibi, we find her to have raised hue and cry, which led of witnesses Ismile and Noor Hussain reach the spot. Now, when we peruse their testimonies, we find them not to have witnessed the occurrence of the incident, though they do rt state that having reached the spot, they found all the accused persons sitting near the body of the deceased. At that time, accused were armed with Dandas. However, soon thereafter, the accused persons ran away from the spot.
19. From the conjoint reading of the testimonies of Gulam Bibi, Ismile and Noor Hussain, it cannot be said with certainty that the accused had any intent of causing death of the deceased. It also cannot be said that the accused had knowledge that their acts, in all likelihood, were likely to cause death of the deceased. It also cannot be said that the injuries were inflicted with an intent of causing bodily injury, which, in the ordinary caurse of nature, were sufficient to cause death. It also cannot be said that the accused knew ::: Downloaded on - 15/04/2017 21:01:47 :::HCHP ...9...
that their actions were so immensely dangerous that, under all circumstances and in all probabilities, they would have caused death or bodily injuries which were likely to cause .
death.
20. There is no pre-determination or premeditation of mind to kill the deceased. It is common knowledge that Gujjars, while grazing their buffalos and live stock, normally of use to carry Dandas with them in the jungle. So, it cannot be said that they had come prepared, fully armed to assault the deceased. It was the complainant party who had raised rt objection to the grazing of their buffalos and live stock, which led to sudden quarrel/"brawl" and on the spur of moment, fight took place. Accused had no motive to kill the deceased. Significantly, postmortem report reveals that the deceased sustained only one injury on her vital part, i.e. head. No doubt, she was a lady, but then she was not old or infirm. Accused did not assault the children, who were present on the spot.
21. Noticeably, the accused were close relatives.
Immediately, after the occurrence of the incident, they were found sitting where the deceased fell on the ground. As per medical opinion, she was definitely alive at that point in time, for as is evident from the testimony of Ismile and Noor ::: Downloaded on - 15/04/2017 21:01:47 :::HCHP ...10...
Hussain, they instantly reached the spot. It is not the proven case that even when she fell down, accused continued to beat her.
.
22. As such, after appreciating the testimony of the prosecution witnesses in totality, and taking a holistic view, we are of the considered view that the trial Court erred in convicting the accused for having committed an offence of under the provisions of Section 300, punishable under Section 302 of the Indian Penal Code.
23. While taking this view, we are reminded of the rt principles laid down by the apex Court in Virsa Singh v. State of Punjab, AIR 1958 SC 465, as reiterated in State of Andhra Pradesh v. Rayavarapu Punnayya and another, (1976) 4 SCC 382, wherein the Court observed as under:
"12. In the scheme of the Penal Code, '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 this generic offence, the Code practically recognises three degrees 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 1st part of Section 304. Then, there is 'culpable homicide of the third ::: Downloaded on - 15/04/2017 21:01:47 :::HCHP ...11...
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 three grades. Culpable homicide of this degree is punishable under the second Part of Section 304.
.
13. The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has vexed the courts for more than a century. The confusion is caused if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the of interpretation and application of these provisions seems to be to keep in focus the key words used in the various clauses of Sections 299 and 300. The following comparative table rt will be helpful in appreciating the points of distinction between the two offences.
Section Section 300 299 A person commits Subject to certain exceptions culpable homicide if culpable homicide is murder if the the act by which the act by which the death caused is death is caused is done-
done-
INTENTION
(a) with the intention (1) with the intention of causing of causing death; or death: or
(b) with the intention (2) with the intention of causing of causing such bodily such bodily injury as the offender injury as is likely to knows to be likely to cause the cause death; or death of the person to whom the harm is caused; or (3) with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or ::: Downloaded on - 15/04/2017 21:01:47 :::HCHP ...12...
KNOWLEDGE
(c) with the knowledge that the (4) with the knowledge act is likely to cause death. that the act is so .
imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned of above.
14. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The rt distinguishing feature of the mensrea requisite under Clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the 'intention to cause death' is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by Illustration (b) appended to Section 300.
15. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under Clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, ::: Downloaded on - 15/04/2017 21:01:47 :::HCHP ...13...
as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the .
death, was intentionally given.
16. In Clause (3) of Section 300, instead of the words 'likely to cause death' occurring in the corresponding clause (b) of Section 299, the words "sufficient in the ordinary course of nature" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The of distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily rt injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word "likely" in clause
(b) of Section 299 conveys the sense of 'probable' as distinguished from a mere possibility. The words 'bodily injury..sufficient in the ordinary course of nature to cause death' mean that death will be the "most probable"
result of the injury, having regard to the ordinary course of nature.
17. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant v. State of Kerala, AIR 1966 Supreme Court 1874 is an apt illustration of this point.
18. In Virsa Singh v. State of Punjab, 1958 SCR 1495 Vivian Bose J. speaking for this Court, explained the meaning and scope of Clause (3), thus (at page 1500) (of SCR) :
"The prosecution must prove the following facts before it can bring a case under Section 300, "thirdly". First, it must establish, quite objectively, that a bodily injury is present;::: Downloaded on - 15/04/2017 21:01:47 :::HCHP
...14...
secondly the nature of the injury must be proved. These are purely objective investigations. It must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury .
was intended. Once these three elements are proved to be present, the enquiry proceeds further, and, fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender."
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19. Thus, according to the rule laid down in Virsa Singh's case (Supra), even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the rt ordinary course of nature and did not extend to the intention of causing death, the offence would be 'murder'. Illustration (c) appended to Section 300 clearly brings out this point.
20. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4), of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general - as distinguished from a particular person or persons- being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.
21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder' on the facts of a case, it will be convenient for it to ::: Downloaded on - 15/04/2017 21:01:47 :::HCHP ...15...
approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, .
leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300, Penal Code, is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of of any of the four Clauses of the definition of 'murder' contained in Section300. If the answer to this question is in the negative the offence would be 'culpable homicide not amounting to rtmurder', punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third Clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the Exceptions enumerated in Section 300, the offence would still be 'culpable homicide not amounting to murder', punishable under the First Part of Section 304, Penal Code.
22. The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of the court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages.
24. The apex Court in Prandas v. State, (Six Judges Bench), AIR 1954 SC 36, held that:
"10. The question which now arises is whether the High Court was justified in not giving to the appellant, the benefit of exception 4 to Section 300, Penal Code, in spite of the fact that it found most of the ingredients of that provision to have ::: Downloaded on - 15/04/2017 21:01:47 :::HCHP ...16...
been established. In the opinion of the High Court, the case did not come within this exception, because "it cannot be said that the appellant had not taken undue advantage or acted in a cruel or unusual manner. But, beyond this bald statement, there is nothing in the judgment of the High Court .
to show on what grounds this conclusion is based.
According to medical evidence, Prandas had sustained 6 injuries in the course of the occurrence including the fracture of a bone and an injury on the head, and the High Court has not expressly reversed the finding of the Sessions Judge that these injuries were not sustained after Gayaram and his companions had been assaulted. The High of Court has also not expressed its disagreement with the finding of the Sessions Judge that Gayaram was not assaulted after he fell on the ground. As will appear from the judgment of the Sessions Judge, several discrepant statements were made by the rt witnesses as to the number of blows said to have been dealt by Prandas, and Agardas speaks of one blow only. In these circumstances, it seems to us that the view of the High Court that the appellant is not entitled to the benefit of exception 4 to Section 300, Penal Code cannot be sustained and that being so, the conviction under Section 302 cannot stand.
In our opinion, the case comes within the second part of Section 304, which deals with the punishment for culpable homicide not amounting to murder when the act is done with the knowledge that it is likely to cause death or cause such bodily injury as is likely to cause death. The conviction of the appellant is therefore altered to one under Section 304, and he is sentenced to undergo rigorous imprisonment for five years...."
25. In Willie (William) Slaney v. State of M.P., AIR 1956 SC 116, a Five-Judge Bench of the Hon'ble Supreme Court of India, held that:
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"Bose J. (On behalf of himself and S.R. Das Actg. C.J.):
69. We now come to the merits, and the question is whether this is a case under section 302 or under section 304 Part II of the Indian Penal Code. The .
injury was inflicted with a hockey stick. The head was fractured but the deceased lived for ten days. The doctor says -
"I consider the head injury on the head of Smythe was of a very serious nature and was 'likely' to result in fatal consequences".
Therefore, the doctor in whose care the patient was till he died places the injury no of higher than "likely" to cause death.
70. The learned Sessions Judge exonerated the appellant of any intention to kill and the learned rt High Court Judges say that they agree with his findings. If there was no intention to kill, then it can be murder only if (1) the accused knew that the injury inflicted would be likely to cause death or (2) that it would be sufficient in the 'ordinary course of nature' to cause death or (3) that the accused 'knew' that the act 'must' in all probability cause death.
If the case cannot be placed as high as that and the act is only 'likely to cause death and there is no special knowledge, the offence comes under section 304 Part II of the Indian Penal Code.
71. The doctor thought that it was only likely to cause death. The appellant is only 22 years old and not a doctor and can hardly be presumed to have had this special knowledge at the time he struck the blow. All blows on the head do not necessarily cause death, and as the deceased lived for ten days we are unable to deduce from the nature of the injury and from the mere fact of death that the appellant had or should have had the special knowledge that section 300 of the Indian Penal Code requires.
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Admittedly, there was no premeditation and there was a sudden fight, so we are unable to ascribe the necessary knowledge to the appellant; nor was the injury sufficient in the ordinary course of nature to cause death. So the offence falls under section 304 Part II of the Indian Penal Code.
.
72. On the question of sentence. There was no enmity according to the finding of the learned Sessions Judge. The appellant did not go there armed with a stick. He was in love with the deceased's sister who reciprocated his affection but could not marry him because her husband had turned her out in England and she had no divorce. The deceased, who was the girl's brother, resented of this. The appellant went to the house and asked the sister to come down. The brother came instead and there was a quarrel.
rt The appellant slapped the deceased across the face. The deceased, who was a big and strong man, shook his fist in the appellant's face and the appellant snatched a hockey stick from his younger brother Ronnie and hit the deceased one blow over the head and two blows on the hips. In the circumstances, we think five years rigorous imprisonment will suffice.
73. We would acquit the appellant on the charges of murder and alter the conviction to one under section 304 Part II of the Indian Penal Code and reduce the sentence to one of five years' rigorous imprisonment."
Chandrasekhara Aiyar J.(On behalf of himself and Jagannadhadas, J.) "89. Coming now to the facts of the present case; William was on terms of intimacy with Beryl P. W.
13. She was the sister of Donald Smythe. The accused was practically living with her in her house. The brother did not like their intimacy and was making attempts to separate Beryl from the accused. On the evening of the day of the occurrence, Donald and his mother went to Beryl's ::: Downloaded on - 15/04/2017 21:01:47 :::HCHP ...19...
house. There was a quarrel between them and the accused was asked to get away.
He left the place but returned a little later with his brother (Ronnie) and asked Beryl who was on the first floor to come down him. She did not .
come but Donald came down into the courtyard.
There was a heated exchange of words. The accused slapped Donald on the cheek. Donald lifted his fist. The accused gave one blow on his head with a hockey stick with the result that his skull was fractured. Donald died in the hospital ten days later. A plea of alibi was given up in the High Court.
The suggestion that Donald fell down and of sustained the head injury while descending the stairs was ruled out by evidence of the eye- witnesses. Nothing was established to justify any exercise of the right of private defence. rt
90. On these facts, which have been proved, the only question that rises is whether the appellant is guilty of murder under section 302 of the Indian Penal Code, or guilty only of culpable homicide, not amounting to murder, under the second part of section 304. The High Court did not address itself to the nature of the offence. It is obvious that the appellant did not intend to kill the deceased. The evidence of the doctor is that the injury was 'likely' to result in fatal consequences.
This by itself is not enough to bring the case without the scope of section 300. There is nothing to warrant us to attribute to the appellant knowledge that the injury was liable to cause death or that it was so imminently dangerous that it must in all probability cause death. The fact that Donald lived for ten days afterwards shows that it was not sufficient in the ordinary course of nature to cause death.
The element specified in section 300 of the Indian Penal Code are thus wanting. We take the view, considering all the circumstances that the offence is the lesser one.
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91. The appellant is acquitted of the charge of murder but is convicted under the second part of section 304, and sentenced to five years' rigorous imprisonment. The appellant is acquitted of the charge of murder but is convicted under the second part of section 304, and sentenced to five years' .
rigorous imprisonment."
26. It is contended on behalf of the State that intent of the accused to kill the deceased can be inferred from the fact that, without any provocation, armed with Dandas, of accused assaulted the deceased, who was a je;[;ess amd woman and helpless and defenceless, to be found only in the company of minor children.
rt
27. Taking a holistic view of the circumstances, under which the crime came to be committed, we are unable to persuade ourselves to agree to such submission. No doubt, deceased was a lady, but then she was not old, aged or infirm. In statement (Ex.PW-1/A), we do not find it to be recorded that the deceased continued to assault the deceased for more than half an hour. Such version, as is so narrated by Gulam Bibi, which we find to be an exaggeration, is not corroborated by independent witnesses, who hearing her cries immediately reached the spot. Simply because the deceased received one Danda blow on her vital part, that fact itself, in the given facts and circumstances, is not reflective of the intent of the accused in killing the deceased.
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Also, none has deposed that accused deliberately and persistently gave blows on the head or other vital parts of the body. Except for one vital injury, the other injuries are .
only bruises. After all there was no prior animosity or hostility inter se the parties and we find the fight to have erupted spontaneously over the issue of grazing of buffalos and live stock.
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28. We are fortified in taking such view, by the opinion rendered by the apex Court in Surendra Singh @ Bittu V. State of Uttranchal, (2006) 9 SCC 531, where the rt Court had the occasion to deal with similar fact situation.
29. We are not in agreement with the findings returned by the trial Court, forming an opinion with regard to the alleged motive. We find the evidence on this issue not to have been completely and correctly appreciated. As such, the conviction under Section 300, punishable under Section 302 IPC is bad in law.
30. Hence, we hold the accused guilty of having committed an offence under Section 299, punishable under Section 304 (second part), read with Section 34 of the Indian Penal Code.
31. Having held so, we now proceed to impose sentence, in accordance with the statutory provisions.
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32. It is urged that accused Fateh Mohammad and Roshan Deen have already suffered incarceration for more than five years and accused Jainem for about two years, .
hence they be sentenced to undergo imprisonment for the period already undergone and the fine be enhanced. Also, accused Roshan Deen, at the time of commission of crime, was below 21 years and accused Jainem, who is now aged 29 of years, has young children to look after.
33. On the other hand, it is argued on behalf of the State that rt maximum punishment of imprisonment be imposed.
34. Having heard the learned counsel for the parties, we find that ends of justice would be met if we sentence the accused/convicts as under:
Accused/convict Sentence
Jainem Rigorous imprisonment for a period
of three years and fine of `50,000/-, and in default of payment thereof to further undergo simple imprisonment for a period of six months.
Fateh Mohammad Rigorous imprisonment for a period of six years and fine of `50,000/-, and in default of payment thereof to further undergo simple imprisonment for a period of one year.
Roshan Deen Rigorous imprisonment for a period of six years and fine of `50,000/-, and in default of payment thereof to further undergo simple imprisonment for a period of one year.
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35. Ordered accordingly.
36. Out of the amount of fine, on realization, an amount of `1,00,000/- is ordered to be given to the family .
of the deceased.
37. No other point is urged.
With the aforesaid modification in the judgment of the trial Court, all the appeals stand disposed of of, so also pending application(s), if any.
rt ( Sanjay Karol ),
Judge.
( Ajay Mohan Goel ),
August 16, 2016(sd) Judge.
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