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Judgment
The accused appellant Kailash stands convicted and sentenced as below vide judgment dated 15.01.2015 passed by the learned Additional Sessions Judge No.1, Chittorgarh in Sessions Case No.15/2014:
Offences
Sentences
Fine
Fine Default sentences
Under Section 302 IPC
Life Imprisonment
Rs.10,000/
One month's Rigorous Imprisonment
Being aggrieved of his conviction and sentences, the appellant has preferred the instant appeal under Section 374(2) Cr.P.C.
Succinctly stated the facts of the case are that the complainant submitted a written report (Ex.P/4) to the SHO, Police Station Chanderia at General Hospital, Chittorgarh on 19.12.2013 alleging inter alia that he used to work in the Transport Company of Chandrabhan Singh situated near the Leyland Showroom, Bhilwara Road, Putholi and nearby, his maternal cousin brother (Mama's son) Kanhaiya Lal was operating a Dal-Bati restaurant. On the previous evening i.e. on 18.12.2013, at about 09.30 pm, he had returned to the Transport Company after leaving the J.C.B. Driver at Putholi. He saw that the accused Kailash was beating Kanhaiya Lal with kicks and fists in his restaurant. Kailash was also having a stick in his hand which also, he was using to assault Kanhaiya Lal. The informant started shouting and went to intervene but, by the time, he could reach the scene of occurrence, Kailash had beaten Kanhaiya Lal and thrown him outside the restaurant. On hearing the hue and cry, Suresh, Chandrabhan and a few other persons came around from the Kalika Hotel and on seeing them, appellant Kailash ran behind the restaurant. He was pursued but could not be apprehended. When the informant came back to the restaurant, he found that Suresh and Chandrabhan had taken Kanhaiya Lal to the Hospital at Chittorgarh. He also went to the hospital and came to know that Kanhaiya Lal had passed away. It was alleged in the report that Kailash had beaten Kanhaiya Lal and had killed him. On the basis of this report, FIR No.319/2013 was registered at the Police Station Chanderiya for the offence under Section 302 IPC and investigation commenced. The accused appellant was arrested. As per the arrest memo, he was 20 years of age. The deadbody of Kanhaiya Lal was subjected to postmortem and the cause of death was opined to be rupture of spleen. After investigation, charge-sheet was filed against the accused appellant for the offence under Section 302 IPC. The case was Sessions triable and thus the same was committed to the Court of Sessions from where it was transferred to the Court of the Additional Sessions Judge No.1, Chittorgarh for trial. The trial court framed charge against the accused for the offence under Section 302 IPC. The accused appellant pleaded not guilty and claimed trial. The prosecution examined as many as 9 witnesses and got exhibited 15 documents in support of its case. The accused upon being examined under Section 313 Cr.P.C., denied the prosecution allegations and claimed that he was not present at the scene of the occurrence. The deceased fell down from the Activa Scooter and thereby his spleen was ruptured. The relatives of the deceased had falsely implicated him. One document was got exhibited in defence. Upon hearing the arguments advanced by the defence counsel and the learned Public Prosecutor and after appreciating the evidence available on record, the trial court proceeded to convict and sentence the accused appellant as above. Hence this appeal.
The sole contention of Shri Mukesh Patodia, learned counsel representing the appellant, was that as per the admitted and highest prosecution case, the accused assaulted the deceased by fists and kicks. No significant external injuries were noticed when the deadbody of Kanhaiya Lal was subjected to postmortem by Dr. Manish Kumar Verma (PW-8), who opined that cause of death of the deceased was internal injury on his abdomen resulting into rupture of spleen and excessive bleeding. He thus urged that even if the prosecution case is accepted on the face of the record, at best, offence, if any, would not travel beyond Section 325 IPC at the highest. He thus craved acceptance of the appeal and sought acquittal of the appellant. In the alternative, he submitted that while altering the conviction of the appellant from the charge under Section 302 IPC to one under Section 325 IPC, the appellant deserves to be given benefit of probation or else, the sentence awarded to him be reduced to the period already undergone by him which is more than five and half years.
Learned Public Prosecutor, on the other hand, vehemently and fervently opposed the submissions advanced by the appellant's counsel and contended that the appellant acted in a very cruel manner and on a trivial dispute of payment of Rs.100/-for Dal-Bati which he had consumed, he brutally assaulted the deceased by fists, kicks and lathi. The assault was so severe that the spleen of the deceased was ruptured and he died instantaneously. He thus urged that no interference is called for in the impugned judgment which does not suffer from any illegality or infirmity whatsoever.
We have heard and considered the arguments advanced at bar and have carefully perused the impugned judgment and the evidence available on record.
The material prosecution witnesses Kishan (PW-4) and Chandrabhan (PW-5), gave evidence to the effect that Kailash assaulted Kanhaiya Lal over a dispute of Rs.100/- chargeable for the food which he had consumed in the restaurant of Kanhaiya Lal. None of these witnesses alleged that they saw the accused using any weapon to assault the deceased. In the FIR (Ex.P/11) as well, there is a categoric aspersion that the accused initially assaulted Kanhaiya Lal by fists blows. Thus, all that can be inferred from the statements of these two witnesses is that the accused and the deceased had some altercation owing the payment of charges for the food which the accused had consumed at the restaurant of the deceased. Manifestly, the dispute took place after a heated alternation and at the spur of the moment and without any premeditation. None of these two eye witnesses Kishan (PW-4) and Chandrabhan (PW-5) gave affirmative evidence to the effect that the accused inflicted any lathi blow to the deceased. Thus, it has to be held that the accused assaulted the deceased with his fists and no weapon was used by him in the incident. The medical officer Dr. Manish Kumar Verma (PW-8), who conducted postmortem upon the deadbody of the deceased and prepared the postmortem report (Ex.P/9), stated that he saw a few superficial abrasions on the body of the deceased. There was an abrasion measuring 4 X 2 cms. on his abdomen and upon opening, his spleen was found ruptured leading to excessive haemorrhage which resulted into death of Kanhaiya Lal by shock. The doctor however, did not state that this injury was sufficient in the ordinary course of nature to cause death. Therefore, it is our firm opinion that all that the prosecution has been able to prove in the case is that the accused caused a grievous injury on the abdomen of the deceased by fist blows resulting into rupture of spleen preceded by a sudden quarrel over the trivial issue regarding payment of money for food consumed in the restaurant of the deceased. Thus, neither can the accused appellant be clothed with the intention to commit murder of the deceased nor can he be imputed knowledge that he could cause death of Kanhaiya Lal by giving him fists blows. It is our firm opinion that even if the prosecution case is accepted to be true on the face of the record, the accused appellant can be held guilty only for the offence of causing a grievous injury on the abdomen/spleen of the deceased and that too at the spur of the moment without acting in a cruel or premeditation manner without use of any weapon and thus, at best, he is liable to be convicted for the offence under Section 325 IPC rather than offence under Section 302 IPC.
As a consequence, we hold that the learned trial court committed grave error in facts as well as law in convicting the appellant for the offence under Section 302 IPC and sentencing him as above by the impugned Judgment.
Thus, the appeal is partly allowed. The impugned judgment dated 15.01.2015 passed by the learned Additional Sessions Judge No.1, Chittorgarh in Sessions Case No.15/2014 is modified. The conviction of the appellant for the offence under Section 302 IPC is set aside and instead, he is convicted for the offence under Section 325 IPC. As per the arrest memo (Ex.P/12), the appellant was 20 years of age as on the date of the incident and thus, it is a mandate of law by virtue of Section 4 of the Probation of Offenders Act that he should be extended the benefit of probation as the offence under Section 325 IPC is punishable with a maximum imprisonment of 7 years. Thus, we direct that the appellant shall be released on probation upon his furnishing a personal bond in the sum of Rs.50,000/- and two sureties in the sum of Rs.25,000/- each to the satisfaction of the learned trial court with a further undertaking that he shall maintain peace and good behaviour for a period of two years and shall not repeat the offence.