Kanhaiya Lal vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J.

The present appellant Kanhaiya Lal S/o. Kalyan Mali, aged 55 years has been convicted for causing murder of his son, Kailash on the basis of sole testimony of her daughter-in-law Smt. Lali (P.W.1), the widow of deceased, Kailash.

The Court of Additional Sessions Judge (Fast Track), No. 1, Tonk held appellant guilty of offence under Section 302 IPC, and sentenced him to undergo life imprisonment, and pay a fine of Rs. 5000/-, in default thereof, to further undergo three months simple imprisonment.

The criminal proceedings were set into motion on the basis of statement (Ex. D/1) made by Smt. Lali (P.W.1) before Ganpat Lal (P.W.15), who was then, posted as SHO, Police Station, Datwas.

On the basis of statement (Ex. D/1), formal FIR No. 40/2005 (Ex. D/3) was registered at Police Station, Datwas for offence under Section 302 IPC.

The statement (Ex. D/1) made by Smt. Lali (P.W.1) before SHO, Police Station, Datwas when translated into English reads as under:--

"That 7-8 days ago, my father-in-law, Kanhaiyalal son of Kalyan, resident of Kayam Nagar @ Basari wanted to keep me as his woman. On this count, I had a quarrel with my father-in-law. For this reason, my father-in-law Kanhaiyalal wanted to turn me out of the house. My husband Kailash is engaged in loading gravel (bajari) from the river. Our maternal uncle-in-law, Phaili Ram from Datwas made us understand, and left us at the house of her father-in-law, and told to my father-in-law that in future, he should not fight with us. Today, in the morning at 7.00 P.M., I, and my husband were present in the house, my father-in-law came, and asked my husband that where is his money (rupees), my husband replied that he is not aware. On this after saying Jai, my father-in-law lifted an iron rod, and in order to kill my husband, ran after him. He gave a blow of iron rod on the head of my husband, due to which, my husband fell on the ground. My father-in-law caused another blow of iron rod on the neck of my husband. Blood started oozing out from the head, and neck injury. After sometime, my husband died. People who were around, had seen the occurrence. At that time, Onkar Mali was also present."

On the basis of above statement, as stated earlier FIR was registered, the same was investigated. The report of investigation was submitted in the Court. The accused alongwith the report of investigation was committed to the Court of Sessions, and the trial of the case was entrusted to the Additional Sessions Judge (Fast Track) No. 1, Tonk.

The appellant was charged for offence punishable under Section 302 IPC. The appellant pleaded not guilty, and claimed trial.

Complainant Lali (P.W.1) appeared in the Court, and stated that three months ago, her father-in-law, accused present in Court had turned her, and her husband out of the house. Her husband, Kailash was engaged in agriculture. They had gone to Datwas. After her husband was made to understand, they returned to the house of her father-in-law. On the day of occurrence, the accused father-in-law blamed her husband for having taken his money. Her husband was going out of the house, when Kanhaiyalal accused caused him injury on the head, and neck. Due to the said injuries, her husband died. She had lodged the report with the police. The police came in the Village, prepared a site plan (Ex. P/6) of the spot. Her husband Kailash was wearing pant-shirt, and the vest, clothes were stained with the blood. Clothes of the deceased were taken into possession by the police vide (Ex. P/2). She further stated that Kanhaiyalal had caused injuries on pretext that his money has been taken away, in fact he wanted to keep the witness as his wife.

Onkar (P.W.7), another eyewitness, has not supported the prosecution case. However, he stated that Kailash was the only son of the present appellant. He further stated that Kailash has died. As to how he died, he is unaware.

Bajrang Lal (P.W.2) had attested the inquest proceedings (Ex. P/1).

Dr. Sivdesh Garg (P.W.3) had conducted the autopsy on the dead body of Kailash, the deceased. This witness proved the post-mortem report (Ex. P/7) wherein following injuries were noticed:--

"(i). A chop wound 4" x 3/4" in its mid part x brain deep. Bone and brain matter are cut, and exposed. The margins of wound are clean cut with everted edges. Wound is spindle shaped with clotted (reddish) blood present in, and on, and around wound. The wound is obliquely placed.

The wound is present on posterior parietal region on both side crossing mid line. Right end of wound is slightly anterior to left end of the wound. The wound is 1.5" on right parietal region and 2.5" in left parietal region from mid line.

(ii). Incised wound with clean cut margins with reddish clotted blood present. Size is 5.5 cmx0.5 to 0.1 cm from lateral to medial side x muscle to skin deep from lateral to medial side. The wound is present middle 1/3 of the left side of neck antero-laterally directing from outer to inner side."

Anandilal (P.W.4) stated that in the morning, the accused Kanhaiyalal was in the Village. He was saying that his money (rupees), and jewellery have been stolen by his son, Kailash, and his daughter-in-law. However, this witness stated that he is not aware as to what had happened inside the house.

Ramkaran (P.W.5) stated that on the day of occurrence, there was a verbal duel between the father, and the son. However, he had not seen the occurrence.

Laxmi (P.W.6) also stated that she was not aware that there was a quarrel between the deceased, Kailash, and the accused Kanhaiyalal. She has not supported the prosecution case, and was declared hostile.

Prabhu (P.W.8) has also not supported the prosecution case.

Sukhpal (P.W.11) stated that appellant Kanhaiyalal had called a Panchayat, and had made a complaint that his son is not providing him meals.

Phaili Ram (P.W.12) stated that a quarrel had ensued between Kanhaiyalal, and his son Kailash. He being the maternal-uncle (Mama) had asked Kanhaiyalal not to quarrel with his son, and Kanhaiyalal had ensured that he will not quarrel with his son.

Bholu (P.W.13) has not supported the prosecution case.

Having noted the prosecution evidence, we are of the view that we can skip the evidence of the witnesses who had participated in the investigation, as nothing hinges upon their testimony as Shri Vijay Choudahry, counsel for the appellant has not denied that Kailash was murdered. We understand the predicament of the counsel, as the dead body was found inside the house of the appellant, and the appellant has been charged for murder of his son.

Shri Choudhary, has very ably canvassed before us that in the present case, we should convert the offence from Section 302 to Section 304 Part I IPC, as no father will cause murder of his son until he is driven to a point of no return or there is grave, and sudden provocation to cause injuries to the son. Shri Choudahry has further submitted that a father cannot forgive himself forever for causing death of his own progeny. Shri Choudahry has submitted that remorse and repentance, and the burden which a father will carry on his soul, in itself is a grave punishment, and we should visualize day-to-day discord, and petulance between old man who is ignored, or is deprived of meals, in order to comprehend the origin and genesis of the occurrence.

Shri N.S. Dhakkad, the learned Public Prosecutor has submitted that the present appellant has caused two injuries on the vital portions of his son. Therefore, no case is made out for modification of the offence.

We have given our thoughtful consideration to the rival submissions advanced before us.

Having examined the FIR, and statement of Lali (P.W.1), we are convinced that the daughter-in-law now, as a result of consultations and deliberations has levelled false allegations that father-in-law was having an eye on her. Phaili Ram (P.W.12) on whose intervention, Kailash deceased, and his wife Lali (P.W.1) had returned to the house of the appellant has not deposed regarding allegation levelled by Lali (P.W.1) against her father-in-law. Instead, all the independent witnesses from the Village, have stated that the father-in-law was being ill-treated, and was not provided meals. The witnesses have also stated that on the day of occurrence savings of old father, his rupees, and jewellery were taken away by the son, and the daughter-in-law. We can well perceive that the appellant being father-in-law was annoyed with his son for not extending the care, and respect, he deserved as a father.

There is no doubt that in the Villages of Rajasthan, there is a feudal social structure. We can take judicial notice of the fact that a father is perceived as a ''hukum'' or ''data''. It has come in evidence that on the day of the occurrence, the accused-appellant had complained that his money (rupees) or savings had been taken away by the son. The witnesses have stated that there was verbal altercation between the father, and the son. In the social value, system son who will rob his father of his savings, and when confronted, use insulting language or gesture towards father will amount to grave, and sudden provocation. We are conscious that we have to examine conduct of the accused according to the social set up in which he is placed. We have to perceive the conduct of an ordinary villager whose expectations of a son are high. In the rural background, a son is supposed to be obedient, and is expected to be devoted to father. Thus, in the present case, when hot words were exchanged between the father and the son, we can assume that son may have used harsh words against his father, due to which, the father lost control over his senses. It is known fact that sometimes spoken words cause more harm. A sarcastic comment blurted by the acidic tongue can always make a person loose his control. Thus, we can safely say that the appellant had acted as a result of grave and sudden provocation.

It will be pertinent to note that Dr. Sivdesh Garg (P.W.3), in his cross-examination has stated that injury No. 2 can be caused due to fall.

Be that as it may, causing of two injuries in quick succession as a result of the grave, and sudden provocation will bring case of the appellant under Exception 1 Section 300 IPC.

Therefore, we convert the offence from Section 302 IPC to Section 304 Part I IPC, and set aside the sentence of life imprisonment awarded upon the appellant, and award the sentence of ten years'' R.I. upon the appellant. However, we maintain the sentence of fine and the default clause.

In view of modification in the offence, and sentence, the present appeal stands disposed of.