Nagulal vs State Of Rajasthan

The appellant Nagulal stands convicted vide judgment dated 24.01.2015 passed by learned Sessions Judge, Pratapgarh in Sessions Case No.2/2012 for the offence under Section 302 IPC and sentenced to undergo imprisonment for life alongwith a fine of Rs.5000/- and in default of payment of fine, further to undergo one year's rigorous imprisonment. Being aggrieved of his conviction and sentence, the convict has preferred the instant appeal under Section 374 (2) CrPC, through jail.

Brief facts relevant and essential for deciding the instant appeal are noted hereinbelow. Parcha Bayan (Ex.P/19) of Smt. Santosh wife of deceased Gopal Meena was recorded by the SHO, Police Station Pratapgarh at the place of incident, i.e.

Gandher Road at 8.30 a.m. on 08.06.2011, wherein she alleged that her husband Gopal Meena and six children (three sons and three daughters) resided at Sodapuriya. On 07.06.2011 in the morning at about 9.30 a.m., her husband Gopal and Ramlal had gone to clear trenches in the field at Gandher. They were carrying a mobile bearing No.8890834727 with them. They returned home at about 5-6 o'clock. Thereafter her husband again prepared to leave, on which she made an enquiry from him, to which, he replied that he was going to Gandher for collecting money. Ramlal also accompanied him. For quite some time, her husband did not return upon which, she called Ramlal, who replied that he had returned, but Gopal had stayed back at Gandher. Her husband did not return home in the night. In the morning, Sooraj and his son Prakash went out in his search. They came back and told her that dead body of Gopal was lying in the trench near the well of Seth. The family members rushed to the place of occurrence and saw the dead body of Gopal lying in the trench. Police was called. The villagers collected there. She expressed a suspicion that Ramesh had stolen some ornaments from her house about four-five months ago and a quarrel was going on in this regard and that he might be responsible for the murder. She also suspected that Ramchandra, Mohan and Laxman might also be responsible for her husband's death. On the basis of this Pracha Bayan an FIR No.262/2011 was registered at the Police Station Pratapgarh for the offences under Sections 302 and 201 IPC. Autopsy was done upon the body of the deceased by Dr. O.P. Dayama (P.W.6), who prepared the postmortem report (Ex.P/7), as per which, 23 injuries were noticed on the dead body and the cause of death was opined to be asphyxia by throttling/strangulation. During investigation, the finger of suspicion pointed towards the appellant herein, who was arrested and was subjected to medical examination, whereupon as many as 16 injuries were noticed on his person. After conclusion of investigation, a charge-sheet came to be filed against the appellant in the concerned court for the offences under Sections 302 and 201 IPC. Since the offences were exclusively Sessions triable, the case was committed to the Court of Sessions Judge, Pratapgarh.

Charge was framed against the accused for the offence under Section 302 IPC, who pleaded not guilty and claimed trial. The prosecution examined as many as 22 witnesses in support of its case and exhibited 41 documents. The accused, when confronted with the circumstances appearing against him in the prosecution evidence, in his statement under Section 313 CrPC denied the same and claimed to be innocent. However, no evidence was led in defence. After hearing the arguments advanced by the defence and prosecution and after appreciating the material available on record and while placing reliance on the testimony of Smt. Santosh (P.W.9), the eye-witness Sajjan Bai (P.W.2) and witnesses Mohan Lal (P.W.4), Kanwarlal (P.W.1) and Nanda (P.W.10), the learned trial Judge proceeded to hold that the accused appellant, who was the cousin brother of deceased Gopal, used to visit his house. During this process, he developed illicit relations with Smt. Santosh. When the affair came to light, Gopal demanded a sum of Rs.10,000/- from the accused appellant as "Jhagda Money". Being enraged by this demand and on seeing Gopal alone near the well of Nandu Seth, he launched an assult and throttled him to death. Concluding so, the trial court proceeded to convict and sentence the appellant as above by the impugned Judgment dated 24.01.2015. Hence, this appeal.

Mr. Kuldeep Vaishnav, learned Amicus Curiae, representing the appellant, vehemently and fervently contended that the appellant has been falsely implicated in this case. The evidence of Smt. Sajjan Bai (P.W.2) is not reliable. He further contended that even if the prosecution story as set out in the statement of the sole eye-witness Smt. Sajjan Bail (P.W.2) is accepted to be true on the face of record, manifestly, it is a case, wherein, the accused and the deceased fought with each other owing to issue of Jhagda money being demanded by the deceased from the accused and in this process, the accused too was caused a large number of injuries. As per Mr. Vaishnav, the deceased must have been impulsively choked by the accused in an endeavour to save himself from graver harm at the hands of the deceased. Thus, he craved acceptance of the appeal and sought acquittal of the appellant herein. In the alternative, he submitted that if at all the evidence of the sole eye-witness P.W.2 Sajjan Bai is held to be reliable, then also, manifestly, the case involves a sudden quarrel between the deceased and the accused appellant who was suspected of having an illicit relationship with Smt. Santosh, wife of the deceased. He pointed out that the admitted prosecution story as set out in the testimony of P.W.1 Kanwarlal is that the deceased was pressuring the accused to pay a sum of Rs.10,000/- on this count and when the accused refused to accede to this demand, the deceased assaulted him and in this sudden unarmed fight, the accused in all probability took evasive/defensive action under compulsion and unintentionally choked the deceased. He, thus, urged that the offence, if any, would not exceed beyond Section 304 Part II IPC as the accused appellant can at best be held to have exceeded his right of private defence while causing the fatal injuries to the deceased. He, thus, craves acceptance of the appeal in these terms.

Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by learned counsel for the appellant. He contended that Smt. Sajjan Bai (P.W.2) is an absolutely natural and reliable eye witness of the incident. She categorically stated that the accused and the deceased were fighting with each other near the well of Nandu Seth. The dead boy of Gopal was found lying in a trench near the well on the next morning and thus, the onus of proving as to how Gopal received the fatal injuries would shift on to the accused, who failed to offer any explanation in this regard. Thus, as per learned Public Prosecutor, since the case involves murder by strangulation, apparently, the offence cannot be toned down from one under Section 302 IPC to that under Section 304 Part II IPC. He, therefore, implored the court to dismiss the appeal and affirm the impugned judgment.

We have given our thoughtful consideration to the submissions advanced at bar and gone through the material available on record. The admitted case of the prosecution as set out in the testimony of Kanwarlal (P.W.1) and Smt. Santosh Bail (P.W.9) is that the accused was indulged in an illicit relationship with Smt. Santosh. This affair relation came to light, upon which, the deceased Gopal, being the husband of Smt. Santosh, started demanding a sum of Rs.10,000/- from the accused by way of Jhagda money. On the fateful night, the witness Smt. Sajjan Bai (P.W.2) saw the appellant and the deceased indulged in a bare handed brawl with each other near Nandu Seth's well in murky conditions. Smt. Sajjan Bai categorically stated that Gopal was in an inebriated state and was fighting with the accused. In her cross-examination, she also stated that Gopal was in habit of consuming liquor and randomly picked up quarrels with people. This gives an indication about the aggressive attitude of the deceased. Dr. O.P. Dayama (P.W.6), who conducted postmortem upon the dead body of deceased Gopal, stated that he was having as many as 23 injuries on this body. The cause of death was stated to be asphyxia by strangulation corresponding with injury No.1, which was opined to be sufficient in the ordinary course of nature to cause death. The doctor also proved the injury report of the accused appellant (Ex.D/1), as per which, he was found having no less than 16 injuries on his person. Considered in light of these admitted facts, we are of the firm opinion that from the evidence of the star prosecution eye-witness Smt. Sajjan Bai (P.W.2), it is manifest that Gopal, who was in an inebriated state, was fighting with the accused appellant. She did not state that either of the two was armed. Gopal had a motive for quarreling with the accused appellant, who was suspected to be carrying on an extra-marital affair with his wife Smt. Santosh. During the barehanded brawl, the accused received no less than 16 injuries at the hands of the deceased. Thus, in all probability, in this brawl, the accused appears to have taken evasive measures for saving his own life and seems to have put a choke hold on the deceased, leading to asphyxia, which proved fatal. Thus, we are of the firm opinion that the accused can neither be clothed with the intention nor the knowledge for committing murder of the deceased. The action of the accused appears to be impulsive and aimed at saving himself in the barehanded brawl with the inebriated deceased. Therefore, we feel inclined to accept the contention of learned Amicus Curiae that the offence attributed to the accused cannot exceed beyond Section 304 Part II IPC.

Thus, the impugned judgment dated 24.01.2015 passed by learned Sessions Judge, Pratapgarh in Sessions Case No.2/2012 is hereby modified and conviction of the accused appellant is altered from the offence under Section 302 IPC to that under Section 304 Part II IPC. The appellant is in custody since 19.09.2011, meaning thereby, that he has undergone actual imprisonment of 7 years 4 months. Thus, we feel that ends of justice would be served by reducing the substantive sentence awarded to the accused appellant to the period already undergone by him. He is also sentenced to fine of Rs.2000/- and in default of payment of fine to undergo two months' imprisonment. He shall be released from custody forthwith upon depositing the amount of fine, if not wanted in any other case.

The appeal is partly allowed in these terms.