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2005 DIGILAW 1408 (RAJ)

Bagga @ Kachru v. State of Rajasthan

2005-05-10

HARBANS LAL, V.K.BALI

body2005
Honble BALI, J.–Bhagga @ Kachru the sole appellant herein was tried for intentionally causing deaths of Daulat Ram and Heeralal. The trial resulted in an order of conviction and sentence dated 23.7.2001 recorded by learned Addl. Sessions Judge, Fast Track No. 2, Jhalawar. (2). Challenge in the present appeal is thus to the order dated 23.7.2001 vide which the appellant has been held guilty for offence under section 302 IPC and sentenced to undergo Rigorous Imprisonment for life as also to pay a fine of Rs. 100/- and in default of payment of fine to further undergo 15 days Simple Imprisonment. (3). The occurrence leading to deaths of Daulat Ram and Heeralal, as per prosecution version, took place on 15.6.1992 at 10:00 PM. The FIR with regard to the incident was lodged by Daulat Ram himself on 17.5.1992 at 7:30 AM. It was stated by Daulat Ram in the FIR lodged by him that last night around 10:00 PM, when he and his brother Heeralal were returning from the Bazaar, Bagga was abusing his brother Onkar Lal, near the latters door, and when he told him not to abuse his brother, he retorted `who are you to interfere between the brother. Having said so, he rushed after him with a knife. His brother Heeralal intervened to rescue him but Bagga struck him on the left underarm. The second injury he caused on the left side of his stomach by which his intestines came out. He gave third injury on his right wrist. Bagga left him and again struck his brother on his stomach, but the knife skidded. At that time, the women of their household were present. Because of the late night, they could not locate any means of transportation. In the morning, he was placed on a tractor and brought here. (4). That the deaths of Daulat Ram and Heeralal were homicidal was proved by post-mortem reports Ex.P11 and Ex.P17 respectively. The doctor who conducted autopsy on the dead bodies of Daulat Ram and Heeralal besides proving post-mortem reports Ex.P11 and P17 respectively, also deposed that the injuries sustained by them were sufficient to cause death in the ordinary course of nature. Whereas Daulat Ram had sustained three incised wounds; Heeralal had 5 such wounds on his dead body. The eye-witness account was provided by Smt. Ganga Bai widow of Daulat Ram who was examined as PW5. Whereas Daulat Ram had sustained three incised wounds; Heeralal had 5 such wounds on his dead body. The eye-witness account was provided by Smt. Ganga Bai widow of Daulat Ram who was examined as PW5. Shanti Bai widow of Heeralal, was examined PW6 and Nani Bai, living in the same house where occurrence had taken place and who happens to be independent witness was examined as PW7. Onkarlal brother of the appellant who was examined as PW1 for obvious reasons did not support the prosecution case. He was declared hostile and cross-examined by the Public Prosecutor. PW1-Tejraj Singh deposed with regard to arrest of the appellant who was absconding for a long time as also recovery of knife whereas Chittarlal, SHO, examined as PW16 deposed with regard to other steps that he had taken while investigating the case. (5). The appellant when examined under section 313 Cr.P.C., denied the incriminating material put to him and claimed to be innocent. he, however, led no evidence in defence. (6). Mr. Chauhan, learned counsel appearing for the appellant based upon deposition made by Ganga Bai, contends that the case of the appellant would fall under exception 4 of Section 300 IPC and that being so the appellant can be convicted at the most under section 304 Part I IPC. In all fairness, the learned counsel has not touched the case on merits, in all probability for the reason that the prosecution has not only proved the chain of events leading to two deaths by eye-witness account but also on the basis of statement made by Daulat Ram which was treated to be a dying declaration. (7). Ganga Bai, while examined as PW5 stated that they had no enmity with the appellant. There was no fight with him and that the marriage of his younger sister was solemnized with brother of appellant Bagga. There was no enmity between Bagga on one side and Daulat Ram on the other. She admitted that fight was between the appellant Bagga one side and Onkarlal on the other and that incident had taken place with Heeralal and Daulat Ram by chance as otherwise there was no enmity between them and Bagga on the day of occurrence as well. There was no altercation between Bagga, Daulat Ram and Heeralal and that Heeralal, Daulat & Bagga were living in harmony earlier. On statement of Ganga Bai, as mentioned above, Mr. There was no altercation between Bagga, Daulat Ram and Heeralal and that Heeralal, Daulat & Bagga were living in harmony earlier. On statement of Ganga Bai, as mentioned above, Mr. Chauhan, contends that it was a case of sudden fight and there was no intention on the part of the appellant to cause deaths of Daulat Ram and Heeralal. (8). In the context of facts and circumstances of this case it is difficult to accept the only contention of the learned counsel as noted above. Exception 4 to Section 300 IPC which has been pressed into service to buttress the contention of the learned counsel, reads as follows :- ``Exception 4. Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel for unusual manner. Explanation-It is immaterial in such cases which party offers the provocation or commits the first assault. (9). This court is of the firm view that it was not a case of sudden fight between the appellant on one side and Daulat Ram and Heeralal on the other. In-fact, appellant was having an altercation with his brother Onkarlal. If, therefore, Onkarlal might have been attacked by appellant and killed by him, there could be some reason to apply exception IV of Section 300 IPC. The facts of the case rather show that the unfortunate victims of attack were only dissuading the appellant not to have a fight with his brother. There was thus no fight between the appellant on one side and Daulat Ram and Heeralal on the other. There could be no heat of passion in so far as, the victims are concerned. Heat of passion if at all could be in the fight that was going on between the appellant and his brother Onkarlal. Once again, it was not a case of the offender not taking undue advantage or acting in a cruel or unusual manner. Here, the appellant not killed one who tried to dissuade him but repeated the attack on another. He caused number of injuries to Daulat Ram and Heeralal on vulnerable parts of their body and caused two deaths. The only contention of the learned counsel as noted above, in our considered view needs to be repelled. (10). Here, the appellant not killed one who tried to dissuade him but repeated the attack on another. He caused number of injuries to Daulat Ram and Heeralal on vulnerable parts of their body and caused two deaths. The only contention of the learned counsel as noted above, in our considered view needs to be repelled. (10). We find no merit in this appeal and the same is accordingly dismissed upholding the order of conviction and sentence dated 23.7.2001 passed by learned Addl. Sessions Judge, Fast Track No. 2, Jhalawar.