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2000 DIGILAW 1475 (RAJ)

Chhagan Singh v. The State of Rajasthan

2000-12-11

N.N.MATHUR, SUNIL KUMAR GARG

body2000
JUDGMENT 1. - This appeal has been filed by the accused-appellant against the judgment and order dated 31.7.1996 passed by the learned Additional Sessions Judge No. 2, Chittorgarh in Sessions Case No. 124/94 by which he convicted the accused-appellant for the offence under section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 100/-, in default of payment of fine, to further undergo five days' SI. By the same judgment, the learned Additional Sessions Judge acquitted gait. Chhau Kanwar of the charges framed against her for the offence under sections 302/109 or 302/114 or 302/34 IPC. 2. It arises in the following circumstances:- On 25.6.1994 at about 3.15 p.m., PW 1 Dunger Singh lodged a report Ex.P/1 before PW 14 Roop Kishore, SHO, Police Station Begliu stating inter alia that he and his son Chittar Singh (hereinafter referred to as the deceased) went to the field for sowing groundnut as the field was given to him on contrast (Theka) by PW 6 Ram Singh, who is son of the accused-appellant. It is further stated in the report that they were resisted by the accused-appellant and upon this, PW 1 Dunger Singh told accused-appellant that he and his son (deceased) was given the land in question on contract and that is why, they had come there to sow the field of groundnut. It is further stated in the report that PW 6 Ram Singh also intervened in the matter and told his father-accused-appellant that land in question had been given by him to them on contract. But, upon this, accused-appellant became angry and went to his house and from where he took his licensed gun and, thereafter, he fired one shot on the deceased, as a result of which deceased fell on the ground and thereafter, deceased was taken to the hospital and deceased died on the same day. It is further stated in the report that this incident was witnessed by PW 8 Rami and PW 9 Bhanwari Bai also. On this report, police registered the case and started investigation. During investigation, the post-mortem of the dead body of the deceased was got conducted by PW 12 Dr. It is further stated in the report that this incident was witnessed by PW 8 Rami and PW 9 Bhanwari Bai also. On this report, police registered the case and started investigation. During investigation, the post-mortem of the dead body of the deceased was got conducted by PW 12 Dr. Vijay Kumar Mehta and the post-mortem report of the deceased is Ex.P/14, where he opined that cause of death of deceased was due to excessive haemorrhage as a result of injury to liver due to gun shot injury. After usual investigation, the police submitted challan against, the present accused-appellant and one Smt. Chhau Kanwar in the Court of Magistrate and from where the case was committed to the Court of Session. On 23.9.1994, the learned Additional Sessions Judge No. 2, Chittorgarh framed charges against the accused-appellant for the offence under section 302 IPC and against accused-Smt. Chhau Kanwar for the offence under sections 302/109 or 302/114 or 302/34 IPC. The charges were read over and explained to the accused. They denied charges and claimed trial. During the course of trial, the prosecution produced as many as 16 witnesses and got exhibited several documents. Thereafter, statements of the accused under section 313 Cr.P.C. were recorded. The accused did not lead any evidence in defence, but got exhibited some documents. The learned Additional Sessions Judge No. 2 Chittorgarh vide his judgment and order dated 31.7.1996 acquitted the accused-Smt. Chhau Kanwar of the charges framed against her, but convicted and sentenced the present accused-appellant in the manner as stated above holding inter alia that the prosecution has proved its case beyond reasonable doubt against the present accused-appellant for the offence under section 302 IPC and the submission of the learned counsel that present accused-appellant had the right of private defence was also rejected by the learned Additional Sessions Judge No. 2, Chittorgarh. Aggrieved from the said judgment and order dated 31.7.1996 passed by the learned Additional Sessions Judge No. 2, Chittorgarh, the present appeal has been filed by the present accused-appellant. 3. Aggrieved from the said judgment and order dated 31.7.1996 passed by the learned Additional Sessions Judge No. 2, Chittorgarh, the present appeal has been filed by the present accused-appellant. 3. In this appeal, the learned counsel for the accused-appellant has made only one submission and the same is that in this case, there was no intention on the part of the accused-appellant to murder deceased as the deceased and accused-appellant are very close relatives and on the spur of moment, he fired only one shot and not more than one, as a result of which, deceased died and, therefore, the case does not travel beyond the provisions of Section 304 Part II IPC and does not fall under section 302 IPC and this aspect may be examined keeping in mind that the accused-appellant today is of 84 years of age and he was arrested through Ex.P/6 on 25.6.1994 and when his statements under section 313 Cr.P.C. were recorded on 31.4.1996, he was about 80 years of age and today he is about 84 years of age and at any moment he can die in jail. 4. The learned Public Prosecutor had not controverted the above submission, but submitted that some compensation should also be given to the LRs of the deceased. 5. We have heard the learned counsel for the accused-appellant and the learned Public Prosecutor and perused the record of the case. 6. Before proceeding further, we would like to first see the medical evidence of this case, which is found in the statement of PW 12 Dr. Vijay Kumar, who conducted the post-mortem of the dead body of the deceased. PW 12 Dr. Vijay Kumar has proved the post-mortem report Ex.P/14, where the cause of death of deceased has been assigned in the following manner : "In my opinion, death is due to excessive haemorrhage as a result of injury to liver due to gun shot injury." 7. Thus, it is clear from the medical evidence that death of the deceased was homicidal. 8. Thus, it is clear from the medical evidence that death of the deceased was homicidal. 8. From the evidence on record, it is very much clear that on the date of alleged incident, accused-appellant was the owner of the field in question and was also in possession of it, but the field in question was given to PW 1 Dunger Singh and his son (deceased) on contract by PW 6 Ram Singh, son of the accused-appellant and it further appears that it was not in the knowledge of the accused-appellant and when PW 1 Dunger Singh and his son (deceased) tried to sow the groundnut in the field, they were objected by accused-appellant and, thereafter, after bringing his licensed gun, he fired only one shot towards deceased, as a result of which, deceased fell down and thereafter died. 9. Thus, it cannot be said that there was any intention on the part of the accused-appellant to murder deceased and his act cannot be termed as premeditated, but the alleged incident took place at the spur of moment without any pre-meditation and malice and in such circumstances, it can easily be said that there was no intention on the part of the accused-appellant to murder deceased. In other words, the element of intention appears to be missing in the present case and knowledge on the part of the accused-appellant can be attributed and this act of the accused-appellant would be covered by Clause-IV of Section 300 IPC punishable under section 304 Part II IPC. 10. It is made clear that before coming to the conclusion just mentioned above, this Court also kept in mind the present age of the accused-appellant i.e. about 84 years. 11. We, therefore, hold that the accused-appellant by firing one shot towards deceased has not committed the offence of culpable homicide amounting to murder punishable u /s. 302 IPC, but instead he has committed the offence of culpable homicide not amounting to murder punishable under section 304 Part II IPC and thus, the impugment judgment of the learned Addl. Sessions Judge is liable to be altered accordingly. 12. Sessions Judge is liable to be altered accordingly. 12. So far as the point of sentence for the offence under section 304 Part-II IPC is concerned, the accused-appellant is in jail since 5.6.1994 meaning thereby he has been in jail for more than six years and we think that ends of justice would be met if the accused-appellant, who is now 84 years of age as on today, is sentenced to the period already undergone by him. This lenient view has been taken by this Court especially keeping in mind the fact that the age of the accused-appellant as on today is 84 years and a man of 84 years can die at any time and to keep such person in jail at this juncture does not appeal to the conscience of the Court. 13. So far as the submission of the learned Public Prosecutor that some sort of compensation should be given to the LRs deceased is concerned, in our considered opinion, it is not a fit case where compensation should be awarded to the LRs of deceased, as both parties are close relatives. 14. Thus, for the reasons stated above, this appeal is partly allowed. The conviction of the accused-appellant is altered from Section 302 IPC to 304 Part-II IPC and he is accordingly convicted under section 304 Part-II IPC in place of Section 302 IPC and for the said offence, he is sentenced to the period already undergone by him. The judgment and order dated 31.7.1996 passed by the learned Additional Sessions Judge No. 2, Chittorgarh stand modified accordingly.Since the accused-appellant-Chhagan Singh is in jail, he be released forthwith, if not required in any other case.Appeal partly allowed. *******