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2002 DIGILAW 760 (RAJ)

Virendra Singh v. State of Rajasthan

2002-04-11

FATEH CHAND BANSAL, SHIV KUMAR SHARMA

body2002
JUDGMENT 1. - Appellant was the accused on the file of learned Sessions Judge, Jaipur District, Jaipur in Sessions Case No.81/1995. He was convicted and sentenced vide judgment dated 9.9.96 for offence under Section 302 IPC to undergo imprisonment for life and a fine of Rs. 3,000/- in default of payment of fine, to further undergo three months rigorous imprisonment. 2. The prosecution story is woven like this. Shri Ram RW.1 submitted a written report with the Police Station, Sanganer on March 3, 1995 around 4.35 p.m. with the averments that the appellant Virendra Singh on the said day at about 4.00 p.m. came to his house and picked quarrel with his brother Rampal. The appellant caught hold of Rampal, dragged him to the plot of Kanhaiya Dhanka and struck lathi blows on the forehead of Rampal as result of which Rampal fell down and became unconscious. While he was taken to the hospital, he died on the way. Police Station, Sanganer, registered first information report No. 88/1995 for offence under Section 302 IPC and investigation commenced. Site plan was drawn, autopsy on the dead body of the deceased was conducted, inquest report was prepared,statements of witnesses under Section 161 Cr.RC. were recorded. The appellant was arrested and the injuries sustained by the appellant were got examined. Blood stained lathi was recovered at the instance of appellant. On conclusion of the investigation, charge-sheet was filed. In due course the case came up for trial before the learned Sessions Judge, Jaipur District. Charge under Section 302 IPC was framed against the appellant who denied the charge and claimed trial. 3. The prosecution examined as many as nine witnesses in support of its case. In the statement recorded under Section 313 Cr.RC. the appellant claimed innocence. No witnesses in defence was however examined. The learned trial judge on hearing the final submissions, convicted and sentenced the appellant as indicated herein above. 4. We have heard Mr. Rathore, learned counsel for the appellant as well as Mr. Sharma, learned Public Prosecutor for the State and with their assistance scrutinised the material on record. 5. Mr. Rathore, learned counsel for the appellant at the out-set canvassed that from the entire material on record, no case for offence under Section 302 IPC is made out against the appellant. He invited our attention to the statements of the prosecution witnesses. Mr. 5. Mr. Rathore, learned counsel for the appellant at the out-set canvassed that from the entire material on record, no case for offence under Section 302 IPC is made out against the appellant. He invited our attention to the statements of the prosecution witnesses. Mr. Rathore, urged that there was altercation between the appellant and the deceased and the appellant also sustained injuries. It also appears from the record that the deceased hurled abuses to the wife of the appellant and the appellant when implored the deceased not to do so, both of them had a scuffle and acting in a right of private defence, the appellant picked a lathi lying in the plot of Kanhaiya Dhanka and struck it on the forehead of deceased Rampal. Learned counsel for the appellant further contended that as the incident occurred on the spur of moment and there was no ill will between the parties and the appellant had gone to the deceased unarmed, the intention to commit murder of the deceased is missing and the offence does not travel beyond Section 304 Part II IPC. 6. Per contra, learned PR however, supported the impugned judgment and contended that in view of the injuries sustained by the deceased, the case is squarely covered under Clause thirdly of Section 300 IPC and the appellant has been rightly convicted for offence under Section 302 IPC. 7. In order to appreciate the rival submissions let us examine the evidence adduced by the prosecution. 8. Shri Ram RW.1 in his cross-examination stated that the appellant did not come to his house but he was standing towards the other side of the wall belonging to Kanhaiya Dhanka and when he came out of his house he had seen the appellant inflicting lathi blow on the person of his brother. In his police statement (EX.D.2) Shri Ram however stated that appellant Virendra Singh came to his house and started quarrelling with his brother and asked him as to why he abused his wife. When he was confronted with the police statement, he deposed that he did not know whether he gave the aforesaid statement to the police or not. In the first information report (Ex.R 12). When he was confronted with the police statement, he deposed that he did not know whether he gave the aforesaid statement to the police or not. In the first information report (Ex.R 12). Shri Ram RW.1 has specifically mentioned that the appellant started quarrelling with his brother and asked him that he had hurling abuses to his wife but in the statement before the trial Court Shri Ram RW.1 deposed that he did not know whether he had stated this fact in the report or not. 9. Ratanlal RW.2 in his deposition has stated that he had seen one person inflicting lathi blow to another person. Neither this witness has named the deceased nor the appellant. 10. Vijailal RW.5 has stated that after hearing the hue and cry he reached to the spot where he found appellant Virendra Singh armed with lathi and when deceased made an attempt to escape, he caught hold of him. this witness further deposed that Virendra Singh inflicted lathi blow on the head of Rampal. In his cross-examination, he admitted that the deceased Rampal was his brother-in-law. In his police statement (Ex.D.1) he however stated that Virendra Singh told him that Rampal did say that Virendra's wife was habitual of sodomy. When he was confronted with the police statement before the trial Court, he deposed that he did not give any such statement to the police. 11. From the material available on record, it is undoubtedly established that the deceased Rampal died of homicidal death. Although Dr. Phool Singh Choudhary RW.9 in the post-mortem report did not give details of the injuries sustained by the deceased as the post-mortem report was admitted by the learned counsel for the appellant, but looking to the fact that injuries have not been disputed, it is not required to be decided as to what is the effect of admission of the post- mortem report. 12. It is also established from the material on record that the appellant in the course of the incident had sustained abrasions and bruises over right and left sides of the forehead, left side of the neck, left side of the chest and right elbow and the injury report (Ex.R8) of the appellant was produced by the prosecution itself. 13. From the above discussions, following salient features emerge- 1. The deceased hurled abuses to the wife of the appellant prior to the incident. 13. From the above discussions, following salient features emerge- 1. The deceased hurled abuses to the wife of the appellant prior to the incident. Even this much was said by the deceased that the wife of the appellant was habitual of sodomy; 2. The appellant had gone to the deceased unarmed and implored not to hurl abuses to his wife; 3. Scuffle between the appellant and the deceased ensued; 4. The appellant picked a lathi from the plot of Kanhaiya Dhanka and inflicted injuries on the head of the deceased. The appellant also sustained injuries in the course of occurrence; and 5. None of the injury sustained by the deceased was sufficient to cause death in the ordinary course of nature and air the injuries were caused by the blunt weapon. 14. It is thus, established that the incident occurred on the spur of moment and there was no ill will between the appellant and the deceased. The appellant had gone to the deceased unarmed and implored not to hurl abuses to his wife. Thereupon scuffle between the appellant and the deceased took-place. The appellant also sustained injuries on his head and chest and the appellant picked a lathi lying in the plot of Kanhaiya Dhanka and inflicted blows on the head of the deceased. 15. In view of these facts, exception (4) of Section 300 IPC is attracted and the appellant is found guilty under Section 304 Part (II) IPC. 16. Consequently, we allow the appeal in part. While modifying the judgment dated September 9, 1996, we convict the appellant Virendra Singh under Section 304 Part (II) IPC instead of Section 302 IPC. The appellant has been remained in custody for more that seven years and the ends of justice would be met in sentencing the appellant to the period already undergone by him in detention. The appellant shall be released forthwith if not required in any other case.Appeal partly allowed. *******