Rajasthan High Court - Jodhpur
Shankar & Anr vs State on 9 November, 2017
Bench: Gopal Krishan Vyas, Manoj Kumar Garg
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 855 / 2008
1. Shankar S/o Valaji,
2. Rakesh Kumar S/o Shankar both By caste Meena, R/o
Dhanol, P.S. Khairwara, District Udaipur (Rajasthan0,
(Presently Lodged At Central Jail, Udaipur).
----Appellant
Versus
State of Rajasthan
----Respondent
_____________________________________________________
For Appellant(s) : Mr. Vineet Jain
For Respondent(s) : Mr. JPS Choudhary, PP
_____________________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Judgment
09/11/2017
BY THE COURT (PER HON'BLE MANOJ KUMAR GARG,J)
The instant criminal appeal has been filed by the accused- appellants Under Section 374 (2) of Cr.P.C. against the judgment dated 23.09.2008 passed by Learned Additional Sessions Judge, Fast Track) No. 3, Udaipur-Camp- Salumber in sessions Case No. 27/2007 (State Vs. Shankar & Ors.) by which the learned Judge convicted and sentenced the accused-appellants as under:-
1. U/s 302/34 IPC - To imprisonment for life and a fine of Rs. 1000/-, and in default of payment of fine, to further undergo three months additional imprisonment.
2. U/s 447 IPC- To three months simple imprisonment both the sentences were ordered to run concurrently.
(2 of 15) [CRLA-855/2008] The brief facts of the case are that on 24.11.2006, the complainant Kewala S/o Balaji (PW/8) filed a written report before the Police Station Kherwada in which he mentioned that on 24.11.2006, he and his elder brother Shankar both were having land in a joint possession, which they have mutually partitioned. But since last one year, his brother was obstructing him to cultivate his field. He was also not even giving him any water from the well and since last one year they were having animosity and some litigations were also pending in the court. It is stated that on 24.11.2006 at about 3.00 p.m., he alongwith his wife Bassu and his daughter Neelam aged about eight years were at their field, at that time his brother Shankar came there alongwith "latth" and started using abusive langauge asking why he allowed the cattle to graze in his field. When the complainant denied, accused Shankar went away after threatening him. After half an hour he alongwith his sons Ramesh and Anil came to his house. Shankar was having an axe, Rakesh was having a "Dharia" and Anil was having a sword. All three chased the complainant with an intention to murder him, upon which he alongwith his wife and daughter started running to take shelter in their house. They were accompanied by Vanraj, Smt. Mangu W/o Shankar and Smt. Rekha W/o Rakesh Meena, who came there armed with lathi and carrying stones. Accused Shankar inflicted Kulhari blow on the head of his daughter Neelam, subsequently she fell down. Then Rakesh inflicted Dharia blow to his daughter. When the wife of complainant reached the courtyard then Anil took 'latth' from Vanraj and inflicted injuries on the head and back side as well as (3 of 15) [CRLA-855/2008] legs of his wife whereas, Smt. Bhaggu and Smt. Rekha were pelting stones. The accused also wanted to inflict injury to the complainant but he ran away in the house and closed the door. Thereafter all the accused ran away. When he came out from the house, he saw that blood was oozing out from the head of his wife. His daughter Neelam had received injuries and due to head injury she expired. He went to the house of Soma ram and narrated the entire incident. It was stated that due to old enmity, accused killed his daughter Neelam and inflicted injuries to his wife.
On this report, police registered a formal FIR No. 259/2006 P.S. Khairwara, District Udaipur for the offences under Sections 302, 323, 448, 147, 148, 149 IPC against the accused and the police arrested both the accused appellants as well as Anil Kumar and after usual investigation filed a challan against all the three accused for the offence under sections 302, 323, 448, 147, 148, 149 IPC before the court of Civil Judge Junior Division and Judicial Magistrate First Class Khairwara District Udaipur. In respect of other accused, the investigation was kept pending under section 173 (8) Cr.P.C.
The learned trial court after hearing the arguments and considering the material on record, framed charges against accused for offences under Sections 302, 323, 448, 147, 148, 149 IPC. The accused pleaded not guilty and claimed trial.
At the trial, the prosecution examined as many as 13 witnesses in all and exhibited so many documents. Thereafter, the statement of the accused-appellant was recorded under section (4 of 15) [CRLA-855/2008] 313 Cr.P.C. On defence side, statement of DW/1 Bhagwan lal and DW/2 Daulat ram were examined.
At the conclusion of the trial, the learned Additional Sessions Judge (Fast Track) Court No. 3, Udaipur-Camp- Salumber acquitted the accused Anil Kumar, but convicted the present appellants as mentioned earlier.
The learned counsel for the accused-appellants argued that the deceased Neelam was only eight year old girl and there was no quarrel against her. So there was no intention at all to kill Neelam and he fairly conceded that no case for offence under Section 302 IPC is made out and the case does not travel beyond 304 Part I IPC. Learned counsel for the appellants relied upon decision of the Hon'ble Apex Court rendered in the cases of Manibhai Vithalbhai Machhi Vs. State of Gujarat [1988 (Supp) SCC 791] and Shankar Alias Kallu Vs. State of Madhya Pradesh [(1979) 3 SCC 318]. Counsel has also relied upon the decision of this High Court in the cases of Madhu Lal & Ors. Vs. State of Rajasthan, DB Cr. Appeal No.130/2015, decided on 24.08.2017 and Dharma Ram & Anr. Vs. State of Rajsthan [2012 (14) Cr.L.R. (Raj.) 1914].
Per contra, learned Public Prosecutor has argued that deceased Neelam received two injuries both injuries were by sharp edged weapons and both the accused inflicted injuries to the deceased therefore, no lenient view should be taken against the accused appellants.
Heard learned counsel for the accused-appellants as well as (5 of 15) [CRLA-855/2008] learned public prosecutor and perused the judgment impugned as also gone through the record of the case.
It is not in dispute that the deceased Neelam who was about eight years old, her death was homicidal in nature. Dr. Govind Goyal (PW/1) conducted the autopsy report of Ms Neelam and he found two injuries:-
1. Incised wound 7.5 cm x 4 cm x neck cavity deep are seen on left lateral of neck. Wound margines are covered dry blood. Through wound gap vatebral column fracture seen.
2. Incised wound 12 cm x 2.5 x brain cavity a re palced on right parietal temporal region. Through wound gap brain matter is expelled out.
The cause of death of deceased is cardio respiratory arrest due to shock and the wounds are antemortem in nature.
In the present case, PW/2 Pawan Singh is said to be a Constable and carrier in this case. PW/3 Kailash Singh is a head constable who received the telephonic call from Kevla about the incident. He sent a police team at the site. PW/4 Sunmukh is a photographer. PW/ 6 Roopsi is daughter of Mana, she only stated in her statement that Shankar was using abusive language against Kevla and she never saw the incident about causing injury to anybody and she further said that Kevla and Shankar both are real brothers. Some quarrels were going on between them about land but she does not know about the actual incident of causing injuries. PW/7 Babu is a Motbir in this case. PW/8 Kevla is the complainant in this case who is real brother of accused Shankar. He mentioned that Shankar alongwith other accused persons came there and they abused them. Shankar was having axe in his (6 of 15) [CRLA-855/2008] hand, Rakesh was having Dharia in his hand, Anil was having sword, they shouted that they will kill him today, so he alongwith his wife and small daughter started running. Then Shankar inflicted kulhari blow on the head of his daughter Neelam. When she fell down then Rakesh inflicted Dharia blow on her neck, consequently her daughter expired. Thereafter, all the accused ran away from the spot. This witness did not turn up for cross- examination due to health reason. PW/9 Mahaveer Sharma is SHO and he recorded the statement of Pawan Singh and filed charge sheet. PW/10 Madan lal is a head constable in this case and Malkhana Incharge of that police station. PW/11 Bhanwar Singh is the Investigating Officer and he investigated the matter in this case. PW/12 Smt. Bassu is wife of Kevla. She was an eye- witness in this case and injured also. She mentioned in her statement that Shankar was having Kulhari, Rakesh was having Dharia and Anil was having sword in their hands. Shankar inflicted Kulhari blow on the head of her daughter Neelam, when Neelam fell down then Rakesh inflicted Dharia blow on her neck due to this her daughter expired thereafter Anil inflicted sword injury on her head. PW/13 Somaram is also witness who stated that Kevla came to their house and stated that Shankar, Rakesh and Anil all the three accused persons killed his daughter Neelam and inflicted injuries to his wife, after that he telephonically informed at Khairwara police station and after 15 minutes , police team reached at the site. These are all the prosecution witnesses. The accused appellants were examined under Section 313 Cr.P.C. but they simply mentioned that they have been falsely implicated and (7 of 15) [CRLA-855/2008] denied the charges. DW/1 Bhagwan lal has mentioned that Kevla and Soma both are good friends. He further mentioned that he heard the noise of Neelam from the house of Kevla and saw that Kevla inflicted Kulhari blow to Neelam. DW/2 Daulatram has mentioned that Kevla and Soma both are good friend and nobody told him as to who inflicted injury to deceased Neelam .
From the perusal of the statements available on record, it has come out that complainant Kevla and Shankar both are real brothers and some dispute was going on between them regarding land so Shankar was having a grudge against Kevla and intented to inflict injury or to kill Kevla but not against the deceased Neelam who was merely eight years old. This shows that the accused came there and they wanted to inflict injuries to Kevla but deceased Neelam intervened so the accused inflicted injuries to Neelam due to which the eight year old girl expired. The accused persons might have the knowledge with regard to injuries but no intention to kill the deceased Neelam at all which is evident from the prosecution witnesses. It is also noted that according to the FIR, six persons were involved but after investigation police filed challan against three accused persons only and in respect of other three persons, police kept the investigation pending, but PW/9 Investigating Officer admitted that later on they found that other three accused persons were not involved in the incident. This is also evident that complainant Kevla has been examined as PW/8 and after recording the chief, the cross-examination was kept pending but Kevla did not turn up in Court for cross-examination.
From the possession of Shankar, blood stained kulhari was (8 of 15) [CRLA-855/2008] recovered by the police which is marked as Ex-P/8. From the possession of accused Rakesh, blood stained Dharia was recovered by the police which is marked as Ex-P/12. Both these articles were sent to the FSL and according to the FSL report, Ex-P/28 the blood group of the deceased matched with the same blood group on the weapons. This also corroborates the prosecution story that both the accused inflicted injuries to the deceased.
There is no doubt that there was no grudge between the accused and Ms Neelam, who was only eight years old girl and both the accused appellants inflicted single blow to the deceased. Accused Shankar was having a quarrel with his brother Kevla who is father of Neelam so the deceased was merely an intervenor in this case and accused appellants have not given repeated blow. So they were having the knowledge about the injuries caused to the deceased but there was no intention on the part of the accused appellants to kill the deceased. Thus, in our considered opinion, the case does not travel beyond Section 304 Part-I IPC.
At this stage, it is relevant to refer to Section 300 of IPC which reads as under :-
"300. Murder--.Except in the case hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--
Secondly--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--
Thirdly--If it is done 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--
(9 of 15) [CRLA-855/2008] Fourthly--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1.--When culpable homicide is not murder.--
Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
......x.....xx.....xx..... x..........
......x.....xx.....xx..... x..........
......x.....xx.....xx..... x..........
Exception 4--Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Explanation--It is immaterial in such cases which party offers the provocation or commits the first assault.
.........."
The Hon'ble Supreme Court in the case of State of Himmachal Pradesh Vs. Ram Pal, reported in 2006 (2) SCC (Cri.) 165, gave following verdict to alter the conviction from offence under Section 302 IPC to Section 304 Part-I of IPC, the paras nos. 5 to 8 of the said judgment are as follows:
"5. Having perused the record for the limited purpose of finding the nature of offence, we see that it is clear from the evidence of PW- 3 himself that he and Jaiwant consumed liquor before going to the tea stall of the respondent herein to demand the money which was (10 of 15) [CRLA-855/2008] due to him and when they reached there the deceased went inside the tea stall and started quarreling with the accused persons. During the said quarrel it is stated that the deceased called the accused persons as "cheat" and "beiman" and the quarrel then spilled outside the stall at which point of time a stick that was carried by Choudhary Ram was snatched by PW- 3, in the process Choudhary Ram got injured and fell down. Here we must notice the case of the defence is that PW- 3 assaulted Choudhary Ram which caused him facial injury and noticing his father being assaulted the respondent intervened and assaulted PW- 3 first with a knife and then assaulted the deceased twice on his back.
6. On the facts of this case whichever version we take it is clear that it is the deceased and PW- 3 after consuming liquor went to the tea stall of the accused. When the deceased went inside and abused the accused, the said verbal quarrel then spilled outside the shop when Choudhary Ram was injured on the fact either intentionally or otherwise by PW- 3. It is at that time the respondent stabbed PW--3 and the deceased. From the above facts stand proved are (a) the deceased went with PW- 3 to the shop of the accused;
(b) picked up an argument during which he abused the accused; (c) Choudhary Ram was injured first and then the respondent stabbed PW- 3 and the deceased; (d) injury was inflicted on the back of the deceased.
7. On the above facts we are of the opinion that the High Court was justified in altering the sentence from Section 302 IPC to Section 304 Part I IPC. We are also in agreement with the finding of the High Court that sentence of over 4 years' RI suffered by the respondent meets the ends of justice.
8. For the reasons stated, this appeal fails hence dismissed."
(11 of 15) [CRLA-855/2008] In the case of Arjun Vs. State of Maharasthra reported in 2012 Cr.L.R. (SC) 506, the Hon'ble Supreme Court gave following verdict:
"17. Considering the background facts as well as the fact that there was no premeditation and the act was committed in a heat of passion and that the appellant had not taken any undue advantage or acted in a cruel manner and that there was a fight between the parties, we are of the view that this case falls under the fourth exception to Section 300 IPC and hence it is just and proper to alter the conviction from Section 302 IPC to Section 304 Part 1 IPC and we do so.
18. We are informed that the appellant is in custody since 30.07.2003. In our view, custodial sentence of 10 years to the accused-appellant accordingly. The appeal is accordingly disposed of, altering the sentence awarded."
In the case of Sudhakar Vs. State of Maharasthra reported in (2012) 9 SCC 725, the Hon'ble Supreme Court held as under:
8. Whatever be the subsequent versions made by P.Ws 1 and 2 before the Court, it came out in evidence that at the time of occurrence there were only three persons, namely, the appellant, P.W.1 and the deceased. The admission of P.W.1 that the deceased had drinking habit and that whenever he was under the influence of liquor he used to create a ruckus in the house was a factor which had to be necessarily borne in mind while considering the offence alleged and proved against the appellant. Though there is variation in the version of P.W.1, as between the complaint and her evidence before the Court, going by the evidence available on record, the conclusion of the Trial Court (12 of 15) [CRLA-855/2008] that the appellant was responsible for the death of the deceased is unassailable. Apart from the exclusive presence of the appellant with a weapon in his hand as deposed by P.W.2, the other two persons were the deceased and P.W.1. The said conclusion of the Trial Court as well as that of the High Court cannot be doubted. Further the report of the chemical analysis Exhibits 35 and 36 also disclosed that the blood stained clothes of the appellant matched with the blood group of the deceased which were found on the clothes of the deceased himself. Therefore, there was conclusive proof to hold that it was appellant who was responsible for the single stab injury inflicted upon the deceased with the aid of the knife seized under Exhibit-47.
Having reached the above conclusion, the only other question raised was as to whether there is any mitigating circumstance in order to hold that the offence would fall under any of the Exceptions to Section 300 of IPC to state that it was a case of culpable homicide not amounting to murder."
The Hon'ble Supreme Court in the case of Dilip Kumar Mondal & Anr. Vs. State of West Bengal, reported in 2015 (2) SCC (Cri.) 318 held as infra: -
"24. In order to invoke Exception 4 to Section 300 Indian Penal Code, it must be further shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The Appellants are said to have inflicted injuries with henso and dau. By a perusal of Ext. P6 post-mortem certificate, it is seen that the deceased sustained one incised injury on the back which has caused injury to scapula and spinal cord and another incised wound over the back just below the right scapula causing injury to the right lung and pleura. Insofar as the injuries caused to Ranjit Debnath (13 of 15) [CRLA-855/2008] and Santosh Debnath, there is no sufficient evidence as to the alleged injuries caused to them. As far as PW- 10-Nikhil Debnath is concerned, he was discharged from the hospital after giving first aid treatment indicating thereby that the injury was not grievous. Considering the injuries, in our view, it cannot be said that the accused have taken undue advantage of the situation. The incident was not premeditated and the scuffle between the parties led to the causing of injuries to the deceased Nripen Debnath and considering the circumstances of the case, in our view, the offence would fall Under Section 300 Indian Penal Code Exception 4 and the conviction of the Appellants is to be modified and altered Under Section 304 Part I IPC."
In the case of Arjun & Anr. Vs. State of Chhattishgarh the Hon'ble Court held as infra:
"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.
23. When and if there is intent and knowledge, then the same would be a case of Section 304 Part I IPC 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 IPC. Injuries/incised wound caused on the head i.e. right parietal region and right temporal region and also occipital region, the injuries indicate that the appellants had intention and knowledge to cause the injuries and thus it would be a case falling under Section 304 Part I IPC. The conviction of the appellants under Section 302 read with Section 34 IPC is modified under Section 304 Part I IPC. As per the Jail Custody Certificates on record, the appellants have served 9 years 3 months and 13 days as on 2nd March, (14 of 15) [CRLA-855/2008] 2016, which means as on date the appellants have served 9 years 11 months. Taking into account the facts and circumstances in which the offence has been committed, for the modified conviction under Section 304 Part I IPC, the sentence is modified to that of the period already undergone.
24. In the result, conviction of the appellants under Section 302 IPC read with Section 34 IPC is modified as conviction under Section 304 Part I IPC and the sentence is reduced to the period already undergone and these appeals are partly allowed accordingly. The appellants are ordered to be released forthwith unless required in any other case.
25. Fee of the learned Amicus is fixed as per Rules."
The Hon'ble High Court of this Court in the case of Dharma Ram (Supra) has held as infra :
"In the end, looking to all the evidence available on record and particularly looking to the injuries caused to Ganesh and the manner in which the injuries were caused, it appears to be a case of culpable homicide not amounting to murder because act of both the accused-appellants appears to have been done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. Culpable homicide is not murder if it is committed without premeditation in sudden fight in a heart of passion upon sudden quarrel and without the offender having taken undue advantage or acted in crucial or unusual manner. In such case, it is immaterial, which party offers provocation or commits the first assault. Thus, both the accused-appellants Dharma Ram and Chaina Ram should have been convicted by the Trial Court under part II of Section 304 of Indian Penal Code, rather than under Section 302/34 of Indian Penal Code."
Recently the Hon'ble Division Bench of this Court in the case of Madhu Lal & Ors. D.B. Cri. Appeal No. 130/2015 decided on 24/08/2017 while partly allowing the appeal, convicted the accused-appellant for offence under Section 304 Part-I IPC instead of offence under Section 302/49 IPC.
(15 of 15) [CRLA-855/2008] According to the judgments it has been noted by the Hon'ble Supreme Court as well as High Court. That this case does not travel beyond Section 304 Part I IPC.
As a result the appeal of the accused appellants is partly allowed. The conviction and sentence of the accused appellants recorded by the Additional Sessions Judge (Fast Tack) No. 3, Udaipur-Camp-Salumber is hereby altered from offence under Sections 302/34 to Section 304 Part I/ 34 IPC and while enhancing the amount of fine from Rs.1,000/- to Rs.25,000/-, the sentence of life imprisonment is hereby reduced to 10 years' R.I. The conviction and sentence for offence under section 447 IPC does not warrant any interference and the same is hereby affirmed.
The amount of fine shall be deposited by the accused appellants within a period of two months from today. Upon depositing the amount of fine, the same shall be disbursed to the parents of the deceased Neelam. If the fine amount is not deposited within the stipulated period by the accused-appellants, then they will have to undergo further one year rigorous imprisonment. Both the accused appellants are in jail, they may be informed accordingly. The record of the trial court be sent back along-with a copy of this judgment.
(MANOJ KUMAR GARG) J. (GOPAL KRISHAN VYAS) J. T.N. Kushwaha