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Judgment
The instant criminal appeal has been filed by the accused
appellant under Section 374(2) of Cr.P.C. against the judgment
dated 29.01.2016 passed by Additional Sessions Judge, Jodhpur
District in Sessions Case No. 70/2015 (87/2014) by which the
learned trial court convicted and sentenced the appellant as
under :-
Under Section 302 IPC Life Imprisonment and a fine of
Rs.20,000/- and in default of payment
of fine to further undergo six months
imprisonment.
Under Section 323 IPC One year simple imprisonment alongwith fine of Rs. 1,000/- and in
default of payment of fine to undergo
one month''s imprisonment.
It has further been directed that a sum of Rs. 20,000/- be
handed over to Smt. Puri Devi and Rs. 1,000/- may be given to
Tiku Ram. Both the sentences were ordered to run concurrently.
Brief facts of the case are that on 30.05.2014, the
complainant Tiku Ram filed a written report (Ex.P/1) before the
S.H.O. Police station Osian in which it is alleged that his father
Lala Ram used to beat his mother Puri Devi, sister Sanki
(deceased) & him for this reason, they were not residing with him
for last 4-5 months and were living in their mother''s house. It is
further alleged that yesterday on 29.05.2014 in the evening at
about 4 PM, he was in the house, at that time all of a sudden his
father Lala Ram said to my sister that you gave statement against
me in the case and started giving beating to her. When the
complainant intervened, then his father hit on his knee by lathi.
The appellant gave beating to Sanki by fist blows alongwith lathi
and Jhumri (iron rod). His sister became unconscious and due to
the injuries she died at about 4 PM in the evening. It was further
stated by the complainant that he called his brother Deva Ram,
Chotu Ram, Laxman Ram and Ganpat Ram and narrated the
incident of killing his sister Sanki by the father accused Lala Ram.
On this report, the police registered an FIR No. 97/2014
(Ex.P/12) was registered by the SHO, Police station, Osian. The
police arrested the appellant and after usual investigation filed a
challan against the appellant in the court of Judicial Magistrate,
First Class, Osian and later on the case was transferred to the
court of District and Sessions Judge, Jodhpur and thereafter, it
was transferred to the court of Additional Sessions Judge, Jodhpur
District, where charges under Section 302 and 323 IPC were
framed against the appellant.
The prosecution examined as many as 13 witnesses and
exhibited so many documents in support of prosecution case and
thereafter, statement of the accused appellant under Section 313
Cr.P.C was recorded. The accused appellant denied the allegations
and stated that he has been falsely implicated by the prosecution
witnesses, and said that the deceased died due to falling down
from the roof.
After conclusion of the trial, the learned Additional Sessions
Judge convicted the present appellant for the offences under
Section 302 and 323 IPC and passed the sentences as mentioned
earlier.
The learned Amicus Curiae Shri S.P. Joshi argued that a false
case has been roped against the appellant as there is no evidence
of motive to kill the deceased. All the witnesses are related
witnesses and in their statements, there are material
contradictions and omissions and no independent witness was
examined by the prosecution to corroborate the story of the
prosecution. It was further argued that the deceased died due to
falling down from the roof. It is argued that the recovery from the
appellant is also very much doubtful and no FSL report was
produced by the prosecution. It was further argued that there was
no motive and no injury of serious nature was found upon the
body of deceased. Only one injury was found on the ribs of the
deceased. Other injuries were only abrasions and bruises so no
offence under Section 302 IPC is made out and the offence does
not travel beyond under Section 304 Part I IPC. Thus, it was
prayed that the conviction for the offence under Section 302 IPC
may kindly be altered to the offence under Section 304 Part I IPC.
In support of the above arguments, the learned counsel for the
appellant invited our attention towards the following judgments :
State of Himmachal Pradesh Vs. Ram Pal, reported in 2006
(2) SCC (Cri.) 165
Arjun & Anr. Vs. State of Chhattishgarh reported in AIR 2017
SC 1150
Sudhakar Vs. State of Maharasthra, reported in 2012 Cr. L.R.
(SC) 1025
Dilip Kumar Mondal & Anr. Vs. State of West Bengal, reported
in 2015 (2) SCC (Cri.) 318
Per contra, learned Public Prosecutor submits that in this
case, there are eye witnesses of the incident. The deceased died
due to the injuries which were caused by the accused appellant
and the recovery of lathi and Daniya (iron rod) was also effected
upon information of the accused appellant vide Ex.P/8. It is
argued that the deceased died due to injuries caused on the vital
part of the body, therefore, it cannot be said that there was no
intention of the accused to cause death of the deceased. Learned
Public Prosecutor submits that the intention can be gathered from
the fact that the accused appellant inflicted injury on the vital part
of the body, therefore, there is no ground to alter the finding of
conviction for offence under Section 302 IPC to Section 304 Part I
IPC. Hence, the appeal filed by the appellant may kindly be
dismissed.
We have heard the learned counsel for the parties and
carefully gone through the record.
The complainant PW/1 Tiku Ram who lodged the first
information report has stated that about one and half year back,
his father had cut the hairs of his mother and turned out his
mother from the house. A criminal case was also lodged against
his father, his sister and mother lived at his parent''s house from
last 5-6 months. It is stated that his father used abusive language
and threatened to kill his sister Sanki. On the date of incident, his
father gave beating to his sister and when he intervened, his
father hit on his knee by lathi. His father gave beating to her by
lathi, Dharnia, and fist blows, therefore, his sister died next day.
PW/8 Smt. Puri Devi who is the wife of the appellant and
mother of the deceased, in her statement stated that about 5-6
months back, her husband had cut her hairs and turned her out
from the house, therefore, she alongwith her daughter went to her
parent''s house. On the date of the incident, when they came
back, her husband again used abusive language and told her
daughter that she is characterless. The accused started beating
the deceased Sanki by lathis and fist blows and on the next day
she expired.
PW/9 Deva Ram also corroborate the story which has been
narrated by Tiku Ram and PW/8 Smt. Puri Devi. PW/2 Laxman
Ram in his statement has stated that Deva Ram came and
informed that his sister expired due to injuries caused by his
father Lala Ram and thereafter, he went to the house of the
accused. Likewise PW/3 Ganpat Ram also gave similar statement
which was given by PW/2 Laxman Ram. PW/4 Amra Ram is a
witness of motbir. PW/5 Surja Ram is also a witness of Motbir.
PW/6 Jassa Ram stated that on the date of incident, son of Lala
Ram called him and informed that his father gave beating to Sanki
due to which she expired. PW/7 Chotu Ram in his statement
stated that Deva ram came and informed that his father gave
beating to Sanki due to which she expired. This witness has
further stated that when he went in the house of the accused and
asked to Lala Ram then the accused confessed before him that he
has murdered. This is a witness of extra judicial confession of
accused appellant.
PW/10 Dr. C.P. Mathur conducted autopsy of deceased Sanki
@ Shammu who found one fracture on her ribs and other injuries
were abrasions and bruises all over the body. He found injuries on
her left leg, chest, abdomen and other parts of the body and
according to the report, death of the deceased Sanki occurred due
to shock and extensively internal haemorrhage. In his cross-
examination he mentioned that if someone falls from the roof on a
hard object then such type of injuries may occure on her body.
PW/11 Puran Singh is the investigating officer. PW/12 Dr.
Dinesh Sharma is also the doctor who conducted the postmortem.
PW/13 Harchand Ram is constable who investigated the case.
After hearing learned counsel for the parties, we perused the
postmortem report of the deceased (Ex.P/10). According to
postmortem report, the deceased received abrasions and bruises
on her body and only one injury on her ribs which is grievous in
nature. In the opinion of the doctor, the death of deceased is due
to shock and extensive internal haemorrhage. Thus, it can be
presumed that there is no intention on the part of the accused
appellant to murder his own daughter. As per statement of eye-
witnesses PW/1 Tiku Ram, PW/8 Smt. Puri Devi and PW/9 Deva
Ram, the accused gave beating to the deceased by fist blows,
lathis and Dharnia i.e. iron rod. Had there been any intention to
kill the deceased, he might have inflicted more injuries on the vital
parts of the body but with only one grievous injury on the vital
part of her body, it can be said that there was no intention to kill
the deceased by the accused appellant. PW/7 Chotu Ram in his
statement has stated that he was called by Deva Ram son of the
accused Lala Ram and when he reached in the house of the
accused. The accused Lala ram confessed that he has committed
the murder. This witness gave statement before the police on the
next day of the incident but this witness is not an influential
person, therefore, there is no reason why the accused will confess
before him. In his cross-examination, he mentioned that he has
not seen the incident and whenever the accused and his wife used
to quarrel, he never went to interfere in their house. Thus, there is
no reason that the accused appellant will confess before this
witness. Therefore, the version of PW/7 Chotu Ram creates doubts
and no reliance can be placed on his statement.
It has also come from the record that there is no evidence of
intention or motive of the accused appellant to cause death of the
deceased. The occurrence took place when the deceased and her
mother came from her parents house. The accused appellant
started beating the deceased and said that she has given the
statement against him in the criminal case under Section 107 and
151 Cr.P.C.
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 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.
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.
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.
For the reasons stated, this appeal fails hence dismissed."
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 (supra),
the Hon''ble Supreme Court held as under:
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 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 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, 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."
In view of the above discussion, while following the law laid
down by the Hon''ble Supreme Court and upon the fact that there
is no evidence of intention or motive on the part of the accused
appellant for causing death of the deceased, the occurrence took
place due to anger in spur of the moment, therefore, the prayer of
the accused appellant deserves acceptance.
Consequently, this criminal appeal is partly allowed. The
conviction and sentence passed by learned Addl. Sessions Judge,
Jodhpur District vide judgment dated 29.01.2016 for offence
under Section 302 IPC is hereby altered from the offence u/s 302
IPC to Section 304 Part-I of IPC and consequently the sentence of
life imprisonment is reduced to 10 years'' R.I. while maintaining
the order of fine with default stipulation. The conviction and
sentence recorded by the trial court for the offence under Section
323 IPC does not call any interference and is maintained.