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2004 DIGILAW 1547 (RAJ)

Kajod v. State of Rajasthan

2004-10-25

RAJENDRA PRASAD VYAS, SHIV KUMAR SHARMA

body2004
JUDGMENT 1. - The appellant (hereinafter described as 'accused') was placed on trial before the learned Additional Sessions Judge, Chhabra in Sessions Case No.90/1997. Learned Judge vide judgment dated August 10, 1999 convicted and sentenced the accused for the offence under Section 302 IPC to suffer Imprisonment for life and fine of र 1000/-, in default to further suffer Rigorous Imprisonment for Six Months. 2. As per prosecution story, Police Station Atru (Distt. Baran) registered a case under section 302 IPC on the basis of written report submitted by Informant Mohan on April, 20, 1997 at 8.15 AM. It was inter alia stated in the report that in the preceding night while informant and his family members were sleeping the accused and Bhura Lal, under intoxication, were hurling abuses at them. After some time Ramchandra (now deceased) came to the house from the field and asked the accused as to why he was hurling abuses. The accused then inflicted knife blows on the person of Ramchandra and fled away. Ramchandra became unconscious and was taken to the hospital, where he was declared dead. In the course of investigation, the Investigating Officer recorded the statements of witnesses, got performed the autopsy on the dead body of the deceased, drew necessary memos, arrested the accused and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge, Chhabra District Baran. Charge under Section 302 IPC was framed against the accused, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 16 witnesses. In the explanation under Sec.313 Cr.P.C., the accused claimed innocence and one witness in defence was examined. Learned trial Judge on hearing final submissions convicted and sentenced the accused as indicated hereinabove. 3. It is contended on behalf of the accused that the incident occurred in the late hours of night and the alleged eye witnesses were not present at the scene of occurrence. Even as per the testimony of witnesses deceased had consumed liquor and gave provocation to the accused by making attempt to molest Indra (Dw.1), the wife of the accused in such a situation the accused could not be held guilty under Section 302 IPC. 4. Per contra, learned Public Prosecutor supported the impugned finding and took us to the statements of witnesses. 5. 4. Per contra, learned Public Prosecutor supported the impugned finding and took us to the statements of witnesses. 5. It is the primary principle of criminal law that the onus of proving the charge against the accused rests upon the prosecution and never shifts, and it lies upon the prosecution to establish, beyond reasonable doubt the guilt of the accused. Before the accused can be convicted under section 302 IPC, it is the duty of the prosecution to prove such intention or knowledge as is mentioned in Section 300 IPC. Under Exception I to Section 300 IPC culpable homicide is not murder if the offender causes death of the person who gave the provocation or that of any other person by mistake or accident provided the provocation was grave and sudden and by reason of the said provocation the offender was deprived of his power of self control and the offence was committed during the continuance of deprivation of the power of self-control. The applicability of the doctrine of provocation rests on the fact that it brings about a sudden and temporary loss of self-control. The test applied is the conduct of a reasonable person in circumstances which give rise to grave and sudden provocation. Before an accused can draw any benefit from Exception I to Section 300 IPC, there should be some circumstance to indicate that the act of the accused was done in the same transaction in which he received the grave and sudden provocation. It is trite that a person finding his wife and her paramour in flagrant delicto receives the highest provocation and if he kills one or both he is entitled to the benefit of exception. 6. Bearing this principle in mind we proceed to scan the material on record. 7. It is borne out from the statements of Mohan Lal (Pw.2) and Ram Kalyan (Pw.3) that Ram Kalyan was the eldest brother of the deceased whereas Mohan Lal was the youngest. Although Ram Kalyan and Mohan Lal got married, deceased remained unmarried. Ram Swaroop (Pw.5) deposed that on hearing hue and cry he had gone to the house of the deceased and found the dead body outside the house. He had also seen Indra, the wife of Kajod (accused) there, who was weeping. Pansuri Bai (Pw.13), mother of the deceased, admitted in the cross examination that deceased used to consume liquor. 8. Ram Swaroop (Pw.5) deposed that on hearing hue and cry he had gone to the house of the deceased and found the dead body outside the house. He had also seen Indra, the wife of Kajod (accused) there, who was weeping. Pansuri Bai (Pw.13), mother of the deceased, admitted in the cross examination that deceased used to consume liquor. 8. The defence of the accused, right from the beginning of prosecution case, was that the deceased after consuming liquor entered the house of the accused and made attempt to rape his wife Indra. Indra was examined as defence witness, who in her deposition stated that while her husband and one Hazari Lal had gone to the field and she was alone in the house, the deceased entered her house having knife in his hand. The deceased who was under intoxication, torn her 'bra' and he wanted to rape her. Hearing her cries, one Hazari Lal came and the deceased and Hazari Lal had grabbed each other. In the meanwhile she went inside the house. In the cross-examination, she stated that when the deceased entered, house was not bolted from inside and at that time she was sleeping. Testimony of Indra could not be shattered in the cross-examination. 9. We see no reason to disbelieve the unchallenged testimony of Indra (Dw.1). From her evidence this fact is established that the accused and Hazari Lal had gone to the field together and house was not bolted from inside. Finding Indra alone in the house, the deceased in a drunken state, entered the house with knife and made her topless and intended to rape her. At that juncture Hazari Lal intervened and rescued her. On a conjoint reading of entire material on record, we find that the prosecution has not come forward with the true story of the incident. It is difficult to believe that in the late hour of night the two brothers and mother of the deceased, who were sleeping in the house, could see the incident from their own eyes. Had they seen the occurrence, then why it was stated in the written report (Ex.Pl) that "Ramchandra Chillane Laga Ki Mujhe Kajod ne Chhure Se Mar Diya re" (Ramchandra cried that Kajod inflicted knife on his person). Had they seen the occurrence, then why it was stated in the written report (Ex.Pl) that "Ramchandra Chillane Laga Ki Mujhe Kajod ne Chhure Se Mar Diya re" (Ramchandra cried that Kajod inflicted knife on his person). In the facts and circumstances of the case this possibility cannot be ruled out that after his sudden arrival when the accused found the deceased under intoxication having a knife inside his house making attempt to rape his wife, the accused would have pushed the deceased out of his house, inflicted blows with knife on his person and killed him. We are of the view that the accused committed the act in the same transaction in which he received the grave and sudden provocation and Exception I to Section 300 IPC is attracted and the accused is guilty of having committed offence under Section 304 Part II IPC. The accused has been in jail continuously for a period of more than seven years and five months and ends of justice would be met in sentencing him to the period undergone by him in confinement. 10. As a result of the above discussion we partly allow the appeal and instead of Section 302 IPC, we convict the appellant Kajod s/o Bhura Lal under Section 304 Part II IPC and sentence him to the period already undergone by him in confinement. The appellant who is in jail shall be set at liberty forthwith, if not required to be detained in any other case.The impugned judgment stands modified as indicated above.Appeals partly allowed. *******