Rajasthan High Court - Jodhpur
Pappu Ram vs State on 23 November, 2017
Author: G.K. Vyas
Bench: Gopal Krishan Vyas, Virendra Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
D.B. Criminal Appeal No. 581 / 2003
Pappu Ram S/o Chhoga Ram Bheel, Resident of Kaga Colony,
Outside Nagori Gate, Jodhpur (Raj.)
[Presently lodged in Central Jail, Jodhpur]
----Appellant
Versus
State of Rajasthan.
----Respondent
_____________________________________________________
For Appellant(s) : Mr. Chakravarti Singh Rathore. Amicus
Curiae
For Respondent(s) : Mr. J.P.S. Choudhary, PP.
_____________________________________________________
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE DR. JUSTICE VIRENDRA KUMAR MATHUR
JUDGMENT
Per Hon'ble Mr. G.K. Vyas, J.
Date of Judgment: 23/11/2017 The instant criminal jail appeal has been filed by the appellant (life convict) Pappu Ram, confined in the Central Jail, Jodhpur, against the judgment dated 16th of May, 2003 passed by learned Additional Sessions Judge (FT), Jodhpur in Session Case No.25/2003, whereby the learned trial court held the accused appellant guilty for committing offence under Section 302 of IPC (2 of 9) [CRLA-581/2003] and punished him with sentence of life imprisonment along with fine of Rs.500/- with default stipulation to further undergo fifteen days additional rigorous imprisonment.
Succinctly stated, the facts of the case are that on 16.09.2002, complainant- Mangla Ram (PW-.2) lodged a written complaint (Ex.P.1) before the S.H.O., Police Station Soorsagar, Jodhpur at 05.00 PM, upon which formal F.I.R. No.212/2002 (Ex.P/2) was registered on 14.09.2002. It was, inter-alia, alleged that he owns a mining lease in Pabu Magra and Khetaram and Pappuda Bheel were employed in his mining lease and prior to this, they were working with Anand Kalal, and after completing their work, being Aquitaine of Anand Kalal, they used to stay in the room of Anand Kalal. On 14.09.2002 complainant met both of them. Today, i.e. on 16.09.2002 at about 02.30/03.00 PM Pappuda met him and told him that yesterday in the evening he and one Kheta Ram consumer liquor and a trivial dispute arose between them. Kheta Ram thereafter slept in the "Dhalia" (room), however, in the night at about 10/11.00 PM while he was sleeping, he inflicted injuries on the head of Kheta Ram, and on account of injury caused on his head, Kheta Ram died. Pappuda further disclosed that whole night he was sitting beside the dead body of Khetaram and also accepted that he had committed mistake/wrong. On this, the complainant reached at "Dhalia" (room) of Anand Kalal and saw that dead body of Kheta Ram was lying there. Meanwhile, police also came on the spot. It was thus averred that accused appellant Pappu Ram killed Kheta Ram.
(3 of 9) [CRLA-581/2003] On this written report, the police registered FIR and proceeded with investigation. During investigation, Sub- Inspector, Police Station Soorsagar went on the spot and prepared "Panchayatnama" of the dead body vide Ex.P/3 in the presence of five witnesses. The details of the dead body were recorded vide Ex.P/5. Site Plan (Ex.P/6) was prepared. Blood stained pieces of stones and pieces of cement were also taken in possession.
The investigation of the case culminated into the submission of a charge sheet against the accused appellant and thereafter after providing opportunity of hearing, charge for the offence under Section 302 of IPC was framed against him on 28.01.2003. The appellant denied the allegations levelled by the prosecution and claim trial.
During trial, to prove the prosecution case, statements of 22 prosecution witnesses were recorded and 28 documents and 5 articles were exhibited from the prosecution side. After completion of evidence of prosecution, statements of the accused appellant were recorded under Section 313 Cr.P.C. on 12.05.2003, in which he pleaded not guilty and said that he has been falsely implicated in this case and nothing incriminating has been revered from him. No defence evidence was led by him.
At the conclusion of trial, the learned Addl. Sessions Judge (FT), Jodhpur vide judgment impugned dated 16.05.2003 proceeded to convict the accused appellant for offence under Section 302 of IPC and passed sentence mentioned above. The judgment dated 16.05.2003 is under challenge.
(4 of 9) [CRLA-581/2003] Learned Amicus Curiae submits that he is not disputing the occurrence and his precise argument is that as per evidence available on record, the occurrence took place all of sudden due to some quarrel when accused appellant and deceased- Kheta Ram were consuming liquor, at that time injuries were inflicted by stone. Therefore, learned amicus curiae argued that the ingredient of holding the appellant guilty for committing offence under Section 302 IPC is completing lacking in this case because there was no pre-meditation or intention/motive on the part of the appellant to commit murder of deceased- Kheta Ram and that the incident took place in a spur of movement. He, therefore, argued that the case does not travel beyond offence under Section 304 Part-I of IPC and thus the finding of conviction recorded by the learned trial court for offence u/s 302 IPC may kindly be altered to offence under Section 304 Part-I of IPC and the sentence awarded to the appellant may be reduced to the period already undergone by him.
On the other hand, learned Public Prosecutor vehemently opposed the arguments advanced by the learned amicus curiae. It is submitted that the injuries were caused by the appellant on vital part of the body and there is evidence of extra judicial confession, which was further corroborated by medical evidence. Thus, it cannot be said that offence under Section 302 of IPC is not made out and more so, it is a case in which prosecution has proved its case beyond all shadows of reasonable doubt.
(5 of 9) [CRLA-581/2003] We have considered the arguments advanced by the learned counsel for the parties and gone through the entire evidence, as also the findings arrived at by the learned court below.
We have considered the statements of author of the FIR viz. Mangla Ram (PW-.2) as well as other witnesses, namely, PW-.3- Nar Singh, PW-.12- Surja Ram and PW-.22 Kishore, before whom the extra judicial confession was made by the accused appellant for causing injuries on the person of deceased in a quarrel which took place all of sudden, while the appellant and deceased were consuming liquor.
To consider the prayer of the appellant to alter his conviction from offence under Section 302 of IPC to 304 Part-I of IPC, we have also considered the judgment of Arjun & Anr. etc. etc. Vs. State of Chhattisgarh reported in AIR 2017 SC 1150, in which 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 t h at appellants h av e not t ak e n 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 (6 of 9) [CRLA-581/2003] 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, 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 Apex Court in the case of State of Rajasthan Vs. Poona Ram reported in AIR 2017 SC (Cri.) 144, while considering the appeal filed by the State of Rajasthan against the judgment dated 21.09.2005, did not accede to the prayer of State to convict the accused respondents for offence u/s 302 IPC, who were convicted for offence u/s 304 Part-I of IPC, but while considering the injuries and the fact that evidence of motive was absent, altered the conviction from offence u/s 304 Part-II to offence u/s 304 Part-I of IPC only. The following adjudication was made by the Hon'ble Apex Court in the case, which reads thus:
(7 of 9) [CRLA-581/2003] "5. On behalf of the appellant- State, we were shown the medical evidence consisting of deposition of the doctor, PW-24, who had found total 33 injuries, including fracture, injuries on the head and on sixth to eighteen ribs. There was lacerated wound on right lung. The death, in the opinion of the doctor, was due to head injury and injury to the right lung. The injuries were also found sufficient to cause death.
On the basis of the same, it has been submitted that the trial court committed no error in inferring an intention on the part of the accused persons to cause death of the deceased by inflicting so many injuries and, hence the High Court should not have taken a lenient view as done in the order under appeal. He further submitted that even if the intention to cause death cannot be specifically and clearly attributed to the accused persons, they ought to have been convicted for the offence under Section 304-I and more stringent sentence should have been imposed.
6. On the other hand, Ms. Aishwarya Bhati, learned counsel appearing for the respondents highlighted the facts noticed above for submitting that in the absence of any specific allegation as to who caused fatal injuries on the head and ribs, all the accused persons cannot be held guilty of offence under Section 302 IPC because it cannot be said with certainty that they shared a common intention of causing death. None of them had uttered any words to disclose such a intention, nor had they come prepared for such offence by carrying fire arms or any lethal weapon. She further submitted that even if the allegation that the accused persons were under influence of liquor is accepted, it does not aggravate the offence and it will not be appropriate in the facts of the case to hold that they all shared any common intention of causing death.
7. Having considered all the relevant materials and the impugned judgment, as well as the rival contentions, we are of the view that the High Court erred in applying Section 304-II to the offence at hand. Section 304-I of the IPC would (8 of 9) [CRLA-581/2003] clearly cover such an offence where the accused persons caused indiscriminate assault and some of the injuries proved fatal. By the rashness of their act, the accused persons must be treated to be fully in know of the consequence of their acts including possible death. Hence, in the facts of the case, we set aside the impugned judgment and order under appeal and convict the respondent Nos. 1 to 4 for offence under Section 304 Part-I of the IPC. The facts of the case and the ends of justice require that the accused persons should serve at least eight years of rigorous imprisonment and also pay a fine of Rs.25,000/- (Rupees twenty five thousand) each and in default undergo further rigorous imprisonment for six months. We order accordingly. If the fine is realized, the same should be paid as compensation to the heirs of the deceased, if any." Upon consideration of the evidence of the case in hand and the judgments of the Hon'ble Apex Court referred to supra; and upon assessment of the evidence available on record, we are of the opinion that the occurrence took place all of sudden in a spur of moment, without pre-meditation and without pre-determined motive or enmity, in view of above, it is a fit case in which the conviction of accused appellant for the offence u/s 302 of IPC should be altered to offence u/s 304 Part I of IPC.
Resultantly, the present criminal appeal is partly allowed and the conviction of the accused appellant for offence under Sections 302 of IPC is hereby quashed and set aside because as per evidence of prosecution, it is a case of culpable homicide not amounting to murder, therefore, conviction of appellant u/s 302 IPC is hereby altered to offence under Section 304 Part I of IPC. Accordingly, the sentence of life imprisonment is hereby reduced (9 of 9) [CRLA-581/2003] to the period already undergone by him, however, the order of fine is hereby maintained. The accused appellant is in jail since 16.09.2002. The accused appellant may be set at free, if not required in any other case.
Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellant is directed to forthwith furnish personal bonds in the sum of Rs.20,000/- and a surety bond in the like amount, before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against the judgment or for grant of leave, the appellants, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court.
(DR. VIRENDRA KUMAR MATHUR) J. (GOPAL KRISHAN VYAS) J. DJ/-