Research › Search › Judgment

Rajasthan High Court · body

2002 DIGILAW 1250 (RAJ)

Madan Kumar v. State of Rajasthan

2002-07-18

F.C.BANSAL, S.K.KESHOTE

body2002
JUDGMENT 1. - This appeal is directed against the Judgment dated March 31, 1998 passed by learned Additional District & Sessions Judge, Neem- ka- Thana (District Sikar) whereby the appellant- Madan Kumar has been convicted for the offence under section 302 IPC and sentenced undergo imprisonment for life with a fine of Rs. 500/- in default of payment of fine to further undergo 4 months simple imprisonment. 2. The brief facts of the prosecution case are that PW 3 Sher Singh S/o Rawat Singh Rajput R/o Moondri Police Station Srimadhopur District Sikar submitted a written report Ex.P1 to SHO Srimadhopur on July 16, 1995 at 3.20 PM. It was, interalia, stated in the report that today at about 2.00 RM. when Sher Singh, Prema Raigar, Gauri Shankar, Nathu Raigar, Suwa Ram Bunkar and he were taking liquor at the wineshop, Jhabar Singh Rajput and the appellant Madanlal came there. Jhabar Singh asked the appellant to get liquor and broke an empty bottle which was lying there. Thereafter the appellant pushed Jhabar Singh who fell down on the ground. The appellant lifted a stone from the spot and when he was going to cause injury on the head of Jhabar Singh, all of them ran away. The written report was forwarded by SHO Police Station Srimadhopur PW 14 Bhanwar Lal, to the Police Station for registering a case. It was also mentioned by PW 14 Bhanwarlal in Karyawahi Police that Jhabar Singh has expired. On receipt of Ex.P1 the Incharge Police Station Srimadhopur wrote a formal FIR Ex.P13 and registered a case under section 302 Indian Penal Code Investigation commenced. In the course of investigation PW14 Bhanwarlal prepared a site plan Ex.P2 and inquest report of the dead body of Jhabar Singh Ex.P3. Blood- stained stones from the spot were seized and sealed vide seizure memos Ex.F6 and P7. Blood- smeared soil was also seized from the spot and after sealing it Bhanwarlal, I.O. prepared seizure memo Ex.P7. Autopsy of the dead body of deceased Jhabar Singh was conducted by PW 11 Dr. B.D. Sharma, Medical Officer Incharge, CHO, Srimadhopur on July 16, 1995 at 5.45 PM and he prepared post-mortem report Ex.P5. The I.O. also seized pent, chaddar, baniyan and a pair of shoes which the deceased was wearing at the time of incident, sealed these articles and prepared Ex.P14. The appellant was arrested vide arrest memo Ex.P12. B.D. Sharma, Medical Officer Incharge, CHO, Srimadhopur on July 16, 1995 at 5.45 PM and he prepared post-mortem report Ex.P5. The I.O. also seized pent, chaddar, baniyan and a pair of shoes which the deceased was wearing at the time of incident, sealed these articles and prepared Ex.P14. The appellant was arrested vide arrest memo Ex.P12. As some blood spots were on the clothes of the appellant, his pent and shirt were seized and sealed by the I.O. vide Ex.PIO. Statements of the witnesses were recorded under section 161 Cr.P.C. Stones, blood- smeared soil, control soil, pent, shirt, chaddi, baniyan and a pair of shoes belonging to the deceased were sent to the FSL, Jaipur. The report of FSL is Ex.P15. On completion of investigation, a chargesheet was submitted against the appellant in the court of Additional Chief Judicial Magistrate Srimadhopur who committed the case to the court of Additional Sessions Judge, Neem- ka- Thana District Sikar. 3. Learned trial court framed a charge under section 302 IPC which was denied by the appellant and he Claimed trial. 4. The prosecution examined as many as 15 witnesses in support of its case. In the statement recorded under section 313 Cr.P.C. the appellant Claimed innocence and he stated that he was falsely implicated. In defence no witnesses were produced. 5. The learned trial Judge after hearing the final submissions, convicted and sentenced the appellant as indicated hereinabove. 6. We have heard learned Amicus Curiae for the appellant, learned PR scanned and scrutinised the material on record. 7. PW 11 Dr. B.D. Sharma stated on July 16, 1995 at 5.40 PM. he conducted the post-mortem examination of deceased Jhabar Singh are found following injuries on his dead body : External Injuries : 1. lacerated wound 2 X 1/2 cm. X 1/2 cm.X bone deep over the right eye, upper eyelid. 2. lacerated wound 3 cm. X 1/2 cm. X bone deep over the left for head oblique in direction. 3. lacerated wound of triangular shape over forehead centrally situated. 4. Depressed fracture of left occipital bone. 5. Depressed fracture of right occipital bone. 6. lacerated wound over left ear which was torn at many places with bruise. Internal Injury 1. Left and right occipital bones fractured. 8. Dr. Sharma further stated that all the injuries were ante-mortem in nature. Death occurred within six hours. 4. Depressed fracture of left occipital bone. 5. Depressed fracture of right occipital bone. 6. lacerated wound over left ear which was torn at many places with bruise. Internal Injury 1. Left and right occipital bones fractured. 8. Dr. Sharma further stated that all the injuries were ante-mortem in nature. Death occurred within six hours. Injuries on the head were sufficient to cause death. In his opinion the cause of death was shock due to haemorrhage and injury to the brain. He prepared postmortem report Ex.P5. 9. Learned Amicus Curiae for the appellant did not challenge the veracity of Dr. B.D. Sharma. In our opinion also, the statement of Dr. Sharma who is an independent witness, is reliable and it has been proved beyond reasonable doubt by the prosecution that the deceased met with the homicidal death. It may be observed that all the injuries found on the dead body were of blunt weapon/object. 10. The only argument advanced by learned Amicus Curiae was that no case under section 302 IPC is made out against the appellant. At the most he can be held guilty under section 304 Part II of the Indian Penal Code. No motive has been proved by the prosecution. There was no previous enmity between the deceased and the appellant and the incident took place all of a sudden. When the deceased started giving beating to the appellant, then the appellant in exercise of his right of private defence of his person and in the heat of passion, caused injuries to the deceased which unfortunately proved fatal. It was not a pre- meditated act of the appellant. He had no intention to cause death of the deceased. In these circumstances, the act of the appellant comes within the mischief of Section 304 Part II of the IPC and not under section 302 Indian Penal Code Learned Public Prosecutor supported the judgment of the trial Court. 11. We have given our thoughtful consideration to the contention of the learned Amicus Curiae. PW1 Pema Ram deposed that on July 16, 1995, when he alongwith Sher Singh and Suwa Lal was taking liquor at the wine shop, accused Madan Lal and Jhabar Singh (deceased) came there. Jhabar Singh asked Madan Lal (@ Madan Kumar) to give him money for liquor, but Madan Lal refused to oblige him. PW1 Pema Ram deposed that on July 16, 1995, when he alongwith Sher Singh and Suwa Lal was taking liquor at the wine shop, accused Madan Lal and Jhabar Singh (deceased) came there. Jhabar Singh asked Madan Lal (@ Madan Kumar) to give him money for liquor, but Madan Lal refused to oblige him. Thereafter, Jhabar Singh broke an empty bottle and said that he would not take liquor in future. Pema Ram also stated that Madan Lal pushed Jhabar Singh who fell down on the ground. Thereafter, having lifted a stone Madan Kumar caused injury on the head of Jhabar Singh. On seeing the incident, he and Narsi ran away from the spot. It was also stated by Pema Ram that the incident took place around 1.00 p.m. PW2- Narsa Ram, PW 3- Sher Singh, PW 5- Nathulal, PW6- Suva Lal, PW 7- Gauri Shankar and PW 13- Shayar Mai have supported the version of PW 1 Pema Ram and stated on oath that the appellant Madan Lal @ Madan Kumar caused injuries with a stone on the person of the deceased Jhabar Singh. All these persons are independent and impartial witnesses. Their presence at the spot was natural. There is nothing on record to discard their testimony. They were cross- examined at length, but nothing substantial could be brought on record to discredit them. Therefore, in our considered opinion, the testimony of all these aforementioned witnesses is reliable and it proves that the appellant had caused injuries with a stone on the person of the deceased. The ocular evidence of the prosecution gets corroboration from medical evidence. As already stated, on post-mortem examination, PW 11 Dr. B.D. Sharma found as many as six external injuries on the dead body of Jhabar Singh. He also found fracture of left and right occipital bones. All the injuries were ante-mortem in nature. The cause of death was shock due to injury to the brain and haemorrhage. All these injuries were of blunt object. Thus, the prosecution has succeeded in proving that the appellant caused injuries to the deceased with a stone, which resulted in his death. 12. Now the question arises as to what offence was committed by the appellant. There was no enmity prior to the incident between the appellant and the deceased. The act of the appellant was not pre- meditated. Thus, the prosecution has succeeded in proving that the appellant caused injuries to the deceased with a stone, which resulted in his death. 12. Now the question arises as to what offence was committed by the appellant. There was no enmity prior to the incident between the appellant and the deceased. The act of the appellant was not pre- meditated. It also appears that the incident had taken place ail of a sudden. The appellants was not having any weapon with him and it was alleged that having lifted a stone form the spot, he caused injuries to the deceased. PW 5 Nathulal also stated that both Jhabar Singh and Madan Kumar exchanged abuses; PW 7 Gauri Shankar also stated that when Madan Kumar declined to give money to Jhabar Singh, they exchanged fist blows. In our opinion, no injury found on the dead body was sufficient in the ordinary course of nature to cause death. From these facts it also appears that the appellant had no intention to cause death or to cause such bodily injury which was sufficient in the ordinary course of nature to cause death. He also had no intention to cause such bodily injury which was likely to cause death of Jhabar Singh. The alleged act was committed by the appellant in a sudden fight in the heat of passion upon a sudden quarrel. Neither he took undue advantage nor he acted in a cruel or unusual manner. Therefore, the act of the appellant comes within the mischief of Section 304 Part II of the IPC and not under section 302 Indian Penal Code So far as sentence for offence under section 304 Part II of the IPC is concerned, the appellant is in custody since July 16, 1995 and, therefore, the ends of justice would be met if he is sentenced to the period already undergone by him. 13. Consequently, the appeal of the appellant Madan Kumar is partly allowed. While modifying the judgment and order of the trial Court, he is acquitted of the charge under section 302 Indian Penal Code Instead, we convict him under section 304 Part II of the IPC and sentence him to the period already undergone by him. He is in judicial custody. He shall be set at liberty forthwith, if not required in any other case. *******