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2001 DIGILAW 1381 (RAJ)

Soma v. State of Rajasthan

2001-08-30

SUNIL KUMAR GARG

body2001
Honble GARG, J.–This appeal has been filed by the accused appellant against the judgment and order dated 25.3.2000 passed by the learned Sessions Judge, Sirohi, in Sessions Case No.12/1998 by which the learned Sessions Judge while acquitting the accused Kukia for offence under Section 302/34 IPC convicted the accused appellant Soma for offence under Section 304(II) IPC in place of Section 302/34 IPC and sentenced him to to 7 years R.I. and a fine of Rs.500/-, in default of payment of fine to further undergo 3 months R.I. (2). It arises in the following circumstances: (i) On 10.12.1997 P.W.9 Soma S/o Devaji lodged a written report Ex.P/16 with the Police Station Anadara, Distt. Sirohi alleging hat on the same day at about 9 to 10O clock, he was informed by his daughter P.W. 1 Keli and daughters daughter P.W.7 Sharmi that the accused appellant and another accused Kukia had murdered his daughter Sawali (hereinafter referred to as the deceased) by inflicting injuries by axe etc. (3). On this report, police chalked out regular FIR Ex.P/28 and started investigation. (4). During investigation post mortem of the body of the deceased was got conducted by P.W.13 Dr.Surendra Jain and the post-mortem report is Ex.P/24. (5). After usual investigation, police submitted challan against the accused appellant and one Kukia for offence under Section 302 IPC in the Court of Magistrate from where the case was committed to the Court of Sessions Judge, Sirohi. (6). On 4.5.98 the learned Sessions Judge framed charges for offence under Section 302/34 IPC against the accused appellant and one Kukia who pleaded not guilty and claimed trial. (7). During trial, 17 witnesses have been produced by the prosecution and thereafter statements of accused under Section 313 Cr.P.C. were recorded, and 4 witnesses were examined in defence. (8). After conclusion of the trial, the learned Sessions Judge, Sirohi convicted the accused appellant for offence under Section 304(II) I.P.C. in place of Section 302/34 I.P.C. and sentenced him as stated above inter alia holding that: The act of the accused appellant is covered by Exception I of Section 309 IPC, as when the accused appellant inflicted injuries on the body of the deceased, he was deprived of power of self-control under grave and sudden provocation and, thereafter, a case under Section 304(II) is found to be proved against the accused appellant. (9). (9). Aggrieved from the said judgment and order, this appeal has been filed by the accused appellant. (10). Since in this case, findings of conviction recorded by the learned Sessions Judge, Sirohi for offence under Sections 304(II) IPC have not been challenged, therefore, they are liable to be confirmed and the appeal of the accused appellant against his conviction is liable to be dismissed, but it has been argued on behalf of the accused appellant that leniency be taken in awarding sentence for offence under Section 304(II) I.P.C. as according to him sentence of 7 years for such offence is excessive one. (11). I have heard both. (12). The point for determination in this case is whether the accused appellant is entitled to imprisonment for a period lesser than 7 years or not. (13). In my opinion, the learned Sessions Judge has fallen into error while convicting the accused appellant for offence under Section 304(II) I.P.C. as when according to him, the act of accused appellant is covered by Exception (I) of Section 300 I.P.C., the learned Sessions Judge should have convicted the accused appellant for offence under Section 304(I) I.P.C. for which reasons are as under: (14). In Mohinder Pal Jully vs. State of Punjab (1), the Honble Supreme Court has made a distinction very well between a case falling under Section 304 Part I or 304 II in the following manner: ``A question now arises whether the appellant was guilty under Part I of Sec.304 or Part II. If the accused commits an act while exceeding the right of private defence by which the death is caused either with the intention of causing death or with the intention of causing such bodily injury as was likely to cause death, then he would be guilty under Part I. On the other hand if before the application of any of he Exceptions of Sec.300 it is found that he was guilty of murder within the meaning of Clause ``4thly, then no question of such intention arises and only the knowledge is to be fastened on him that he did indulged in an act with the knowledge that it was likely to cause death but without any intention to cause it or without any intention to cause such bodily injuries as was likely to cause death. There does not seem to be any escape from the position, therefore, that the appellant could be convicted only under Part II of Sec. 304 and not Part I. (15). Whenever a court is confronted with the question whether the offence is ``murder or ``culpable homicide not amounting to murder on the facts of a case, it will be convenient for it to approach the problems in three stages. The question to be considers at the first state would be whether the accused has done an act by doing which he has caused the death of another. Proof of such casual connection between the act of the accused and the death, lends to the second stage for considering whether the act of the accused amounts to ``culpable homicide as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 I.P.C., is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of `murder contained in Section 300. If the answer to this question is in the negative the offence would be ``culpable homicide not amounting to murder, punishable under the first or the second part of Section 304 depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the Exceptions enumerated in Section 300, the offence would still be `culpable homicide not amounting to murder, punishable under the first part of Section 304 IPC. (16). When the element of intention is missing and there is knowledge in such case, or where the accused has knowledge, but no intention that such blow was likely to result in death, it would be held that the offence committed would be culpable homicide not amounting to murder punishable under Part II of Section 304 IPC. (17). Thus, the position in respect of offence under Section 302, 304 Part-I and 304 Part-II may be summarised as follows: (i) That if the act of the accused is covered by Clauses First, Second, and Third of Section 300 IPC, then it would amount to culpable homicide amounting to murder punishable under Section 302 IPC. (17). Thus, the position in respect of offence under Section 302, 304 Part-I and 304 Part-II may be summarised as follows: (i) That if the act of the accused is covered by Clauses First, Second, and Third of Section 300 IPC, then it would amount to culpable homicide amounting to murder punishable under Section 302 IPC. (ii) That if the act of the accused is covered by any of the exceptions (five Exceptions) of Section 300 IPC, then it would amount to culpable homicide not amounting to murder punishable under Section 304 Part-I IPC. (iii) That if the act of the accused is covered by Clause (4) of Section 300 I.P.C., then it would amount to culpable homicide not amounting to murder punishable under Section 304 Part II I.P.C. (18). The learned Sessions Judge in para 12 of his judgment has clearly held that the act of Accused Soma is covered by Exception (I) of Section 300 I.P.C. meaning thereby that the accused appellant committed the offence of culpable homicide not mounting to murder, he should have been convicted for offence under section 304(I) I.P.C. and not under Section 304(II) I.P.C. and by doing so, the learned Sessions Judge has fallen into misconception of law. Since, in the present case, there is no cross appeal by the State, therefore, conviction of accused appellant for offence under Section 304(II) I.P.C. is not going to the interfered. (19). When the accused appellant should have been convicted for offence under Section 304(I) I.P.C., the sentence of 7 years R.I. in these circumstances, cannot be said to be unreasonable or excessive. (20). For the aforesaid reasons, the order of Sentence dated 25.3.2000 passed by the learned Sessions Judge, Sirohi does not require interference and the same is liable to be confirmed one. (21). Accordingly, the present appeal of the accused appellant Soma is dismissed after confirming the judgment and order dated 25.3.2000 passed by the learned Sessions Judge, Sirohi in Sessions Case No.12/1998.