Rajasthan High Court - Jodhpur
Devi Lal & Ors vs State on 21 February, 2017
Author: G.K. Vyas
Bench: Gopal Krishan Vyas
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
D.B. Criminal Appeal No. 96 / 2009
1. Devilal S/o Sita Ram Meena,
2. Jagdish S/o Sita Ram Meena,
3. Babu Lal S/o Sita Ram Meena
All by caste Meena, Resident Nagani, Police
Station Rawatbhata, District Chittorgarh (Raj.)
----Appellants
Versus
State of Rajasthan
----Respondent
_______________________________________________
For Appellant(s) : Mr. J.S. Choudhary, Sr. Advocate
with Mr. Pradeep Choudhary.
For Respondent(s) : Mr. Vishnu Kachhawaha, PP.
_______________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE KAILASH CHANDRA SHARMA
JUDGMENT
[Per Hon'ble Mr. G.K. Vyas, J.] Date of Judgment: 21st Feb. 2017 The instant criminal appeal has been filed by the accused appellants under Section 374 (2) of Cr.P.C. against the judgment dated 19th of December, 2008 passed by learned Addl. Sessions Judge (FT), Chittorgarh (2 of 27) [CRLA-96/2009] (for brevity, hereinafter referred to as „trial court‟) in Session Case No.29/2007, whereby the appellants, namely, Devilal and Babulal, were convicted for the offences u/s 302, 326/34, 307/34, 341 of IPC and Section 4/25 of the Arms Act and the appellant No.2, Jagdish was convicted for the offences under Sections 302, 326, 307, 341 of IPC & Section 4/25 of the Arms Act. The following sentence was passed against the accused appellants:
Appellants- Devilal and Babu Lal 302 of IPC: Life Imprisonment with a fine of Rs.5000/-, in default of payment of fine, to further undergo three months‟ S.I. 326/34 of IPC: Five Years‟ rigorous imprisonment along with fine of Rs.1000/-, in default of payment of fine, to further undergo one month‟s SI.
307/34 of IPC: Seven Years‟ rigorous imprisonment along with fine of Rs.2000/-, in default of payment of fine, to further undergo two months‟ SI.
341 of IPC: One month‟s Simple Imprisonment.
4/25 of IPC: One Year Simple Imprisonment along with fine of Rs.200/-, in default of payment of fine, to further undergo fifteen days‟ SI. (3 of 27) [CRLA-96/2009] Appellant-Jagdish 302 of IPC: Life Imprisonment with a fine of Rs.5000/-, in default of payment of fine, to further undergo three months‟ S.I. 326 of IPC: Five Years‟ rigorous imprisonment along with fine of Rs.1000/-, in default of payment of fine, to further undergo one month‟s SI. 307 of IPC: Seven Years‟ rigorous imprisonment along with fine of Rs.2000/-, in default of payment of fine, to further undergo two months‟ SI. 341 of IPC: One month‟s Simple Imprisonment. 4/25 of IPC: One Year Simple Imprisonment along with fine of Rs.200/-, in default of payment of fine, to further undergo fifteen days‟ SI.
Succinctly stated, the facts of the case are that PW.1- Nahar Singh gave oral information (Ex.P/1) at Police Station- Rawatbhata, alleging therein that I and Kailash were sitting at the Tea Stall of Shankar at Jawara Kallan Bus stand on 30.12.2005. While they were sitting at the tea stall, accused appellants, namely, Jagdish, Babulal, Devilal came there and they were armed with sword and axes in their hands. Accused, Jagdish gave sword blow on his hand, due to which he received injury upon his finger of right hand. At that time, Kailash Meena, who was sitting (4 of 27) [CRLA-96/2009] at tea stall, intervened, then all the accused persons inflicted number of injuries to Kailash by sword and axe and ran away from the place of occurrence, the aforesaid incident was seen by the witnesses, namely, Prithviraj, Gashi, Devilal and Kalu. According to complainant, deceased Kailash he was cultivating the land of one Raju Singh as labour from last some days.
Upon the aforesaid information (Ex.P/1) FIR No.257/2005 was registered at Police Station Rawatbhata under Sections 341, 323 and 307 of IPC and investigation was commenced.
During the course of investigation, police inspected the site and prepared site plan, recorded the statements of witnesses, so also, the injured persons were taken to the hospital for treatment. The injured Nahar Singh (PW.1) was examined by the doctor and injury report prepared by the doctor was obtained for the purposes of investigation. During treatment, Kailash Meena, died, therefore, police added offence u/s 302 of IPC in the investigation. The postmortem of the dead body of deceased, Kailash Meena, was conducted by Dr. Rakesh Verma (PW.26), and thereafter dead body of Kailash was handed over to the family members of the deceased.
In the investigation, the accused appellants were arrested by the police and weapon of offences i.e. sword and axes were recovered upon their information u/s 27 of the Evidence Act. The investigation resulted into the (5 of 27) [CRLA-96/2009] submission of charge sheet against the accused appellants in the court of Judicial Magistrate, Rawatbhata, for the offences u/s 302, 307, 326, 341/34 and 4/25 of the Arms. Act, from where the case was committed to the court of learned Addl. Sessions Judge No.2, Chittorgarh, camp Begun but later transferred to the court of Addl. Sessions Judge (FT), Chittorgarh for trial.
In the trial, after providing opportunity of hearing to the accused appellants, charges were framed against the accused appellants for the offences u/s 302, 307, 326, 341/34 of IPC and Section 4/25 of the Arms Act, but they denied the charges and prayed for trial.
During trial, statements of 26 prosecution witnesses were recorded and 32 documents, so also articles were also exhibited from the prosecution side. After recording evidence of prosecution, statements of the accused appellants were recorded u/s 313 Cr.P.C., in which they denied the allegations of prosecution witnesses levelled against them, however, no defence evidence was produced.
The learned trial court after evaluating the entire evidence led by the parties vide its judgment dated 19.12.2008 convicted the accused appellants for the offences, mentioned herein above. The said judgment is under challenge in this appeal.
At the threshold, learned counsel appearing on behalf of appellants submitted that the appellants are not (6 of 27) [CRLA-96/2009] challenging the incident but their challenge is to the extent of finding for offence under Section 302 of IPC on the ground that as per complaint filed by the complainant, Nahar Singh (PW.1) , there was no dispute or enmity of accused appellants with deceased Kailash Meena. All the appellant came on the spot for quarrel and to cause injuries to him, when first injury was inflicted by sword by the accused appellants on the person of Nahar Singh, he raised his hand to protect his head, therefore, injury was caused upon his finger. At that time all of sudden, Kailash Meena, who was also sitting at the Tea Stall near Nahar Singh, immediately came there for rescue, at that time, accused appellants, namely, Devilal and Jagdish inflicted injury by sword upon the head of Kailash Meena. Thereafter all the accused inflicted number of injuries to Kailash Meena and ran away from the place of occurrence. It is also argued that upon the place of incident, Prithviraj Gashi, Devilal and Kalu were also present, but they did not come for rescue. Meaning thereby, the main ingredient which is motive/intention for offence under Section 302 of IPC is missing in this case.
According to learned counsel for the appellants even if the entire prosecution evidence is accepted, then also, it is not a case for conviction for the offences under Section 302 and 302/34 of IPC. As per prosecution case, all the accused appellants came with deadly weapon to cause injuries to complainant, Nahar Singh, however, when they (7 of 27) [CRLA-96/2009] caused injury to Nahar Singh, the deceased, Kailash Meena came there and intervened, therefore, injuries were inflicted upon his body, but there was no evidence to prove the fact that there was any enmity between the accused appellants and Kailash Meena to cause death of Kailash Meena.
The accused appellants are behind the bars since 2005 and even if the entire prosecution evidence is accepted, then also, the finding of conviction recorded by the learned trial court for offences under Section 302 and 302/34 of IPC is not sustainable in law because the main ingredient of motive/intention to commit murder, is missing in this case, therefore, finding of guilt must be altered to the offence under Section 304 Part I of IPC. In support of his arguments, learned counsel for the appellants drew our attention towards the following cases laws:
1. Pulicherla Nagarju Vs. State of A.P. reported in (2006) 11 SCC 444.
2. Khemla Vs. State of Rajasthan reported in 2016 (2) Cr.L.R. (Raj.) 668.
3. Moorthy Vs. State of Tamil Nadu, reported in (2010) 3 SCC (Cri) 316.
4. Murlidhar Shivram Patekar & Anr. Vs. State of Maharashtra reported in 2014 (4) Crimes 233 (SC).
(8 of 27) [CRLA-96/2009] Per contra, learned Public Prosecutor vehemently argued that there is no force in the arguments of learned counsel for the accused appellant that as per evidence of this case no offence u/s 302 of 302/34 of IPC is made out because all the three appellants were having swords and axe in their hands, came at the tea stall, where complainant, Nahar Singh (PW.1) and Kailash Meena (deceased) and other persons were sitting. At that time first of all accused appellant, namely, Jagdish inflicted injury upon Nahar Singh, the complainant raised his hand to protect his head, therefore, injury was caused upon the finger of his right hand. The deceased, Kailash Meena, who was also sitting at the tea stall on seeing the accused appellants assaulting complainant intervened to rescue Nahar Singh, therefore, all the accused appellants caused injuries to him by swords and axe, and on account of those injuries suffered by him, Kailash Meena died during treatment at Hospital. At the time of incident, one Prithviraj, Devilal, Kalu Bheel and Ghasi were present but none of them intervened due to fear but they supported the prosecution case.
Learned Public Prosecutor further submit that the above incident has been proved by the prosecution on the basis of statements of injured eye witness PW.1 Nahar Singh (author of FIR), PW.8, Kalu Lal, PW.16, Tulsi Ram, PW.19 Devilal, PW.20 Prithviraj and PW.21 Ghasilal, the witnesses categorically stated on oath before the court (9 of 27) [CRLA-96/2009] that they were sitting at the tea stall of Shanker Meena on 30.12.2005 situated at Village Jawara Kallan Bus stand, where Jagdish, Devilal and Babulal came with weapons there and assaulted Nahar Singh by swords. When deceased, Kailash Meena, who was also sitting there, tried to save Nahar Singh, he too was assaulted by the accused appellants in the said incident. Due to injuries caused to the person of Kailash Meena, he died, therefore, finding of conviction is based upon reliable and trustworthy evidence on record.
Learned Public Prosecutor submitted that the accused appellants are not disputing the incident, therefore, obviously it is a case in which the accused appellants are admitting that prosecution has proved the occurrence beyond reasonable doubt. He further argued that although no evidence came on record with regard to motive/intention for the incident in question, but this Court cannot lose sight of the fact that all the three accused persons came on the spot with sword and axe and they inflicted number of injuries to deceased, Kailash Meena, for no reasons, therefore, it cannot be said that it is a case of culpable homicide not amounting to murder, more so it is a case of murder.
While inviting our attention towards the postmortem report (Ex.P/32) dated 30.12.2005 it is submitted that Dr. Rakesh Verma (PW.26) stated before the court that during postmortem 17 injuries were found upon the body of (10 of 27) [CRLA-96/2009] deceased, and out of 17 injuries, injuries caused upon the head of the deceased was the cause of death. Therefore, intention can be gathered from the fact that number of injuries were caused to deceased, Kailash Meena. He thus submitted that instant appeal may kindly be dismissed.
After hearing the learned counsel for the parties, it is obvious from the arguments of learned counsel for the appellants that the appellants are not disputing the incident but they are challenging the finding of conviction to the extent of offence u/s 302 and 302/34 of IPC and to alter the conviction to the offence under Section 304 Part I of IPC. To consider the said argument, we have perused the FIR registered on the basis of oral information dated 30.12.2005 given by PW.1 Nahar Singh at Police Station- Rawatbhata at 01.0 pm. In the said complaint (Ex.P/1), following facts were disclosed by the author of FIR, Nahar Singh, which reads as infra: -
"bl le; Jh ukgj flga S/o Jh txUukFk th tkfr eh.kk mez 40 lky i"s kk [krs h fu- tkojk dyk us e; Jh pqUuhyky S/o Jh ykyq th eh.kk fu- tkojk dyka us mi- Fkkuk gks tck.kh bZRryk nh fd vkt fnu eas djhc ckjg lok ckjg cts dh ckr gS eSa tkojk dyka cl LV.s M ij "kd a j dh gkVs y ij cBS k v[kckj i<+ jgk FkkA dSyk"k S/o dtkMs + eh.kk fu- ckMkfs y;k Hkh ogha cSBk gqvk FkkA fd nos hyky] txnh"k] ckcqyky firk lhrkjke eh.kk fu- ukx.kh rhukas ogka ij vk;As txnh"k] nos hyky ds gkFk eas ryokj Fkh o ckcy w ky ds ikl dqYgkMh+ FkhA rhukas gh vkrs gh eq>s tku ls ekjus ds bjkns ls ejs s ij ryokj dk okj fd;k eSua s gkFk mij fd;k rks txnh"k ds gkFk dh ryokj ls ejs s nkfgus gkFk dh vxa qfy;kas ds yxh vxa qfy;ka dV xbZ dSyk"k e> q s cpkus ds fy, vk;k rks ;s rhukas dSyk"k dks tku ls ekjus ds fy, ryokjas o dqYgkMh+ ;as yds j ekjihV djus yx (11 of 27) [CRLA-96/2009] x;As rhukas us dSyk"k ds nkus kas gkFkk]as ikoa kas o "kjhj ij txg c txg pkVs s ekjh ftlls mlds ijw s "kjhj ij ryokjkas o dqYgkMh+ dh pkVs s vkbZ ml le; ogka ij i`Fohjkt S/o Jh izHkw eh.kk] nos h yky S/o Jh :iyky eh.kk] dkyw S/o Hkoa jyky Hkhy] ?kklh S/o xq.k"s k eh.kk R/o tkojk dyka okys rFkk vkjS Hkh dbZ ykxs Fks ftUgkus s ;g ?kVuk n[s kh gSA exj bu ykxs ks ds Mj ls dkbs Z chp cpko djus ugha vk;As dSyk"k ds T;knk yxus ls og ekSds ij iMk+ FkkA eSua s jktw flga fu- jkorHkkVk dh teh.k eas ikrh ys j[kh gSA rhu fnu ls dSyk"k ejs s ;gka ij etnjw h dj jgk Fkk bu rhukas us eq>s o dSyk"k dks tku ls ekjus dh fu;r ls nkus kas ds lkFk ryokjkas o dqYgkMh+ ls ekjihV dh gAS bZRryk djrk gAaw dk;oZ kgh dh tkoAs "
The statements of Nahar Singh (PW.1) were recorded during trial in which he has reiterated the allegations levelled by him in his complaint (Ex.P/1) upon which FIR was registered. The other witnesses categorically proved the incident, which took place on 30.12.2015 at Tea Stall of Shanker, situated at Jawara Kallan Bus stand. It is also admitted case that all the articles including two swords and axe were sent for chemical examination to the FSL and in the FSL report (Ex.P/19) no blood was found upon the axe and one sword, whereas blood of „A‟ group was upon found one sword recovered from the accused appellants.
We have minutely scanned the entire evidence to ascertain the motive behind the incident. As per contention of Nahar Singh (PW.1), the accused appellants came on the spot with deadly weapon and caused injury to him but Kailash Meena, who was sitting behind him at the teal stall, intervened to save him, therefore, number of the (12 of 27) [CRLA-96/2009] injuries were caused to him in the presence of other witnesses. There is no evidence on record with regard to enmity or previous quarrel of the accused appellants with deceased, Kailash Meena. More so, the author of FIR Nahar Singh (PW.1) nowhere stated in the FIR that there was any dispute or enmity in between deceased, Kailash Meena and the accused appellants. None of other witnesses disclosed any fact with regard to enmity in between Kailash Meena and the accused appellant but all the witnesses accepted that all three accused appellants came on the spot and caused injury upon Nahar Singh, at that time, Kailash Meena immediately came for rescue. PW.1 Nahar Singh specifically stated in his statement before the court that, "30-12-2005 dks tkoja k dyka xkoa esa "kd a j th dh gkVs y cl LV.s M ij eaS cSBdj v[kckj i<+ jgk Fkk] ejs s lkFk dSyk"k eh.kk Hkh FkkA rc nos hyky txnh"k vkSj ckcqyky vk, nos hyky o txnh"k ds gkFkkas eas ryokjas Fkh ,oa ckcqyky ds gkFk eas dqYgkMh+ FkhA vkrs gh txnh"k us ejs s ryokj dh tku ls ekjus ds fy, ekjh tkos kj eSua s gkFk ls jkd s k rks ejs k theuk gkFk vkxs ls gFksyh ij ls dV x;k] dSyk"k ejs s dks cpkus ds fy, nkSMd + j vk;k rks nos hyky us mlds flj eas [khp a dj ryokj dh ekjh ftlls mlds flj eas xHa khj pkVs vkbZA nl w jh pkVs ryokj dh txnh"k us Hkh mlds flj ij ekjhA ftlls dSyk"k pdjkxj fxj x;kA ckcqyky us dSyk"k us dqYgkMh+ ls ijS kas eas okj fd, ,oa mlds iSj dkV fn,A". The above statement loudly speaks that there was no quarrel or enmity for which the accused appellants came on the spot to cause injuries to Nahar Singh. Therefore, it is obvious there was no motive or intention of the accused appellants to cause death of (13 of 27) [CRLA-96/2009] Kailash Meena, therefore, obviously it is a case of culpable homicide not amounting to murder.
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 lik e 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 (14 of 27) [CRLA-96/2009] 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 reference to individual cases which may throw light on the question of intention."
In the case of Moorthy Vs. State of Tamil Nadu, reported in (2010) 3 SCC (Cri) 316, wherein injured suffered 20 injuries in the incident, the Hon‟ble Apex Court held that conviction u/s 304 Part I of IPC by the High Court does not require any interference. In the said case, the trial acquitted the appellant therein, for the charges levelled against him u/s 302 of IPC but upon filing appeal by the Sate of Tamil Nadu, High Court reevaluated the entire evidence on record and came to a definite (15 of 27) [CRLA-96/2009] conclusion that acquittal of appellant is unsustainable as according to trial court material available on record establish guilt of appellant particularly when appellant in her statement recorded u/s 313 Cr.P.C. admitted involvement in the incident at 04.45 on 18.05.1988.
In the present case also, the appellants are not disputing the incident but their limited prayer is for alteration of their conviction from offence under Section 302 and 302/34 of IPC to Section 304 Part I of IPC. The relevant paragraphs 18 to 22 of the said judgment of Hon‟ble Apex Court reads as infra:
"18. The deceased had received 20 incised injuries caused on various parts of the body in general and on vital parts of the body in particular. The deceased was killed mercilessly by inflicting twenty incised injuries and mostly on the vital parts of the body. Even if we accept the version of the High Court that the accused had the right of private defence, in the facts and circumstances of the case, but he had exceeded his right so he was convicted under section 304 Part I IPC.
19. On examination of the injuries on the accused it is clearly borne out that those injuries are very minor and superficial in nature whereas twenty incised injuries inflicted on the deceased were of very serious nature and character. The Sessions Court has gravely erred in acquitting the accused on the face of the testimony of the witnesses in the case.
(16 of 27) [CRLA-96/2009]
20. We have to examine the evidence in proper perspective - why should ordinarily PW1, mother of the deceased would falsely implicate the accused and let off the real assailant? Similarly, why PW2, nephew of the deceased would save the real assailant and falsely name the accused?. The High Court in the impugned judgment while reversing the judgment of the Sessions Court convicted the accused under section 304 Part I IPC.
21. We have not examined whether in the facts and circumstances, the High Court was justified in converting the sentence from section 302 IPC to section 304 Part I IPC because there is no appeal by the State.
22. The appellant must be convicted at least under section 304 Part I IPC. No interference is called for. The appeal being devoid of any merit is accordingly dismissed."
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 (17 of 27) [CRLA-96/2009] 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 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 (18 of 27) [CRLA-96/2009] 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 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 (19 of 27) [CRLA-96/2009] 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 30 0 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 th e 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."
(20 of 27) [CRLA-96/2009] In the present case, the counsel for the appellants is not challenge the incident and their prayer is to alter the conviction recorded against the accused appellants for the offences u/s 302 and 302/34 of IPC to offence u/s 304 Part-I of IPC on the ground that as per author of FIR, who was injured eye witness (PW.1- Nahar Singh), the accused appellants came on the spot with a view to cause injuries to him but upon intervention by Kailash Meena, they inflicted number of injuries to Kailash Meena and out of 17 injuries caused by all the three appellants, two injuries which were caused upon the head of deceased, were sufficient to cause death.
We have perused the FIR as well as statements of PW.1, Nahar Singh and other eye witnesses. Upon consideration of facts stated by them, there is no dispute that there was no enmity or any quarrel of accused appellants with deceased, Kailash Meena. As per PW.1- Nahar Singh, all the accused appellants came on the spot for quarrelling with him and to cause injuries. According to PW.1 Nahar Singh, appellants came there and when accused Jagdish inflicted injury by sword, upon his head, which was resisted by the complainant by raising his hand, due to which he received injuries upon his right hand‟s fingers. It is also undisputed that deceased, Kailash Meena, who was sitting at the Tea Stall intervened for protection of Nahar Singh, at that time, all the three accused appellants inflicted injuries to him. It is also one (21 of 27) [CRLA-96/2009] of the important fact that as per statement of PW.1- Nahar Singh, there was no previous enmity or quarrel of appellants with deceased, Kailash Meena. More so, deceased, Kailash Meena was doing labour work on the agricultural field of complainant, Nahar Singh. Therefore, it is obvious that there was no enmity of the accused appellants with deceased, Kailash Meena but all of sudden when they were causing injuries to Nahar Singh, deceased Kailash Meena, intervened to rescue Nahar Singh, therefore, they caused injuries to him, which resulted into his death.
As per statement of PW.26, Dr. Rakesh Verma, out of 17 injuries two injuries which were caused on the head of deceased, were opined to be sufficient to cause death but upon consideration of evidence in the light of aforesaid judgments, it is obvious that without there being any intention of motive, injuries were caused to the deceased. Therefore, it cannot be said that finding of learned trial court holding the accused appellants guilty for offence under Section 302 and 302/34 of IPC is sustainable in law.
In view of above, while following aforesaid judgments, we deem it appropriate to convert the conviction of accused appellants from the offences under Section 302 and 302/34 of IPC to Section 304 Part-I of IPC.
We have also considered the question of compensation for rehabilitation of legal representatives (22 of 27) [CRLA-96/2009] viz. wife and parents, if any, of the deceased.
In the case of Ankush Shivaji Gaikwad Vs. State of Maharashtra reported in (2013) 6 SCC 770, the Hon‟ble Supreme Court while considering Section 357A of Cr.P.C., gave following directions for granting compensation to the victim. The Hon‟ble Apex Court gave direction that it is the mandatory duty of the Court to apply its mind to the question in every criminal case so as to provide compensation or to refuse compensation. The relevant paragraph 66 of the said judgment reads as under:-
"66. To sum up: While the award or refusal of compensation in a particular case may be within the Court's discretion, there exists a mandatory duty on the Court to apply its mind to the question in every criminal case. Application of mind to the question is best disclosed by recording reasons for awarding/refusing compensation. It is axiomatic that for any exercise involving application of mind, the Court ought to have the necessary material which it would evaluate to arrive at a fair and reasonable conclusion. It is also beyond dispute that the occasion to consider the question of award of compensation would logically arise only after the court records a conviction of the accused. Capacity of the accused to pay which constitutes an important aspect of any order under Section 357 Cr.P.C. would involve a certain enquiry albeit summary unless of course the facts as emerging in the course of the trial are so clear that the court considers it unnecessary to do so.
(23 of 27) [CRLA-96/2009] Such an enquiry can precede an order on sentence to enable the court to take a view, both on the question of sentence and compensation that it may in its wisdom decide to award to the victim or his/her family."
In the case of Suresh & Anr. Vs. State of Haryana reported in (2015) 2 SCC 227, the Hon‟ble Supreme Court gave following verdict and held that it is duty of the court, on taking cognizance of a criminal offence, to ascertain whether there is tangible material to show commission of crime, whether the victim is identifiable and whether the victim of crime needs immediate financial relief. On being satisfied on an application or its own motion court ought to direct for granting of interim compensation subject to final compensation being determined later. The relevant paragraphs 15 to 18 of the said judgment reads as under: -
"15. We are informed that 25 out of 29 S t at e Governments have notified victim compensation schemes. The schemes specify maximum limit of compensation and subject to maximum limit, the discretion to decide the quantum has been left with the State/District legal authorities. It has been brought to our notice that even though almost a period of five years has expired since the enactment of Section 357A, the award of compensation has not become a rule and interim compensation, which (24 of 27) [CRLA-96/2009] is very important, is not being granted by the Courts. It has also been pointed out that the upper limit of compensation fixed by some of the States is arbitrarily low and is not in keeping with the object of the legislation.
16. We are of the view that it is the duty of the Courts, on taking cognizance of a criminal offence, to ascertain whether there is tangible material to show commission of crime, whether the victim is identifiable and whether the victim of crime needs immediate financial relief. On being satisfied on an application or on its own motion, the Court ought to direct grant of interim compensation, subject to final compensation being determined later. Such duty continues at every stage of a criminal case where compensation ought to be given and has not been given, irrespective of the application by the victim. At the stage of final hearing it is obligatory on the part of the Court to advert to the provision and record a finding whether a case for grant of compensation has been made out and, if so, who is entitled to compensation and how much. Award of such compensation can be interim. Gravity of offence and need of victim are some of the guiding factors to be kept in mind, apart from such other factors as may be found relevant in the facts and circumstances of an individual case.
17. We are also of the view that there is need to consider upward revision in the scale for compensation and pending such consideration to adopt the scale notified by the State of Kerala in its scheme, unless the scale awarded by any other State or Union Territory is higher. The States of Andhra Pradesh, Madhya Pradesh, (25 of 27) [CRLA-96/2009] Meghalaya and Telangana are directed to notify their schemes within one month from receipt of a copy of this order.
18. We also direct that a copy of this judgment be forwarded to National Judicial Academy so that all judicial officers in the country can be imparted requisite training to make the provision operative and meaningful."
In the case of Parivartan Kendra Vs. Union of India & Ors. reported in (2016) 3 SCC 571, the Hon‟ble Apex Court again considered the question of granting compensation to the victim for rehabilitation. The relevant paragraphs 18 and 19 of the said judgment read as under:
"18. On perusal of various contentions and evidence, we find it imperative to mention that even after this Court having passed an order dated 06.02.2013 directing the Union of India and States to implement compensation payable to acid attack victims by creation of a separate fund, only 17 States have been notified of the Victim Compensation Schemes (VCS). Out of which 7 states and 4 Union territories have not initiated the VSC. Even in those States where the Scheme has been implemented a meager compensation ranging between Rs.25,000/- to Rs. 2 lakhs is provided for medical care. And many States have not provided any compensation for rehabilitation at all. In the present case, the Govt. of Bihar has fixed a pitiable amount of Rs.25,000/- for the victims of acid attack.
(26 of 27) [CRLA-96/2009]
19. The Guidelines issued by orders in the Laxmi's case are proper, except with respect to the compensation amount. We just need to ensure that these guidelines are implemented properly. Keeping in view the impact of acid attack on the victim on his social, economical and personal life, we need to enhance the amount of compensation. We cannot be oblivious of the fact that the victim of acid attack requires permanent treatment for the damaged skin. The mere amount of Rs. 3 lakhs will not be of any help to such a victim. We are conscious of the fact that enhancement of the compensation amount will be an additional burden on the State. But prevention of such a crime is the responsibility of the State and the liability to pay the enhanced compensation will be of the State. The enhancement of the Compensation will act in two ways:-
(i) It will help the victim in rehabilitation;
(ii) It will also make the State to implement the guidelines properly as the State will try to comply with it in its true sprit so that the crime of acid attack can be prevented in future."
In view of judgments rendered by Hon‟ble Apex Court in the cases of Ankush Shivaji Gaikwad, Suresh & Anr. and Parivartan Kendra Vs. Union of India, referred to supra, while considering the question of compensation in the light of aforesaid judgments of Hon‟ble Apex Court, we deem it appropriate to direct the District Legal Service Authority, Chittorgarh, to determine adequate compensation under the Rajasthan Victim (27 of 27) [CRLA-96/2009] Compensation Scheme, 2011, which is to be granted to the family members of deceased, viz. wife, if any, and parents of deceased, after making necessary enquiry in this regard.
Consequently, the instant appeal is partly allowed, the conviction of the accused appellants for the offences under Section 302/34 of IPC against accused appellants, Devilal and Babu Lal and under Section 302 of IPC against the appellant, Jagdish, recorded by Addl. Sessions Judge (FT), Chittorgarh, vide judgment dated 19th of December, 2008, is hereby altered to Section 304 Part I of IPC. The sentence of life imprisonment awarded to the accused appellants is hereby reduced to thirteen years‟ rigorous imprisonment. However, the judgment impugned for convictions of accused appellants for other offences viz. 326, 307, 326/34, 307/34, 341 of IPC and Section 4/25 of the Arms Act and order of fine, is hereby maintained. (KAILASH CHANDRA SHARMA)J. (GOPAL KRISHAN VYAS)J. DJ/-