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2005 DIGILAW 3160 (RAJ)

Ganga Ram v. State of Rajasthan

2005-11-29

MANAK MOHTA, N.N.MATHUR

body2005
JUDGMENT 1. - The instant appeal is directed against the judgment of the learned Sessions Judge, Pratapgarh, Camp Chittorgarh dated 21.3.2002 convicting the appellant for the offence under Section 302 Indian Penal Code and sentenced to imprisonment for life and to pay a fine of Rs. 500/-, in default of payment of fine to further undergo one month's rigorous imprisonment. 2. Briefly stated the facts of the case are that PW-1 Kuka, resident of Village Harisinghji Ka Kheda, lodged an oral F.I.R. Exhibit P-1 on 3.7.2001 at 3.45 P.M. at Police Station Badi Sadri stating inter alia that on 22.7.2001 in the evening, the appellant Ganga Ram called his son PW-4 Nathu and detained in his house. At about 9.00 P.M., he went to his house and got Nathu released. On 3.7.2001 in the morning at 8.00 A.M., while his wife PW-5 Mst. Jamni was on her way, the accused-appellant-Ganga Ram and Moti attacked on her. Moti gave a lathi blow on her face. Her outcries attracted her deceased son Chokha on the spot. On intervention, the appellant-Ganga Ram gave a single blow on the head of Chokha, on account of which, he fell down. FW-3 Narayan, PW-6 Gamera and PW-7 Narayan also reached on the spot. On this information, police registered case for offence under Sections 302, 341, 342 and 323/34, Indian Penal Code. and proceeded with the investigation. After usual investigation, police laid charge-sheet against appellant-Ganga Ram and Moti for the aforesaid offences. 3. The appellant pleaded not guilty and claimed trial. The prosecution in support of its case, examined twelve witnesses and produced certain documents. The appellants-Ganga Ram and Mott in their statement under Section 313 of the Code of Criminal Procedure denied the correctness of the prosecution evidence appearing against them. The defence examined DW-l Shanti and DW-2 Megha. The trial Court found the prosecution case proved and, as such, convicted and sentenced the appellant in the manner indicated above. The other accused Moti has been acquitted for offence under Section 302/34, Indian Penal Code. However, he has been convicted for offence under Section 323 Indian Penal Code. for causing injury on the face of Smt. Jamna. 4. The trial Court found the prosecution case proved and, as such, convicted and sentenced the appellant in the manner indicated above. The other accused Moti has been acquitted for offence under Section 302/34, Indian Penal Code. However, he has been convicted for offence under Section 323 Indian Penal Code. for causing injury on the face of Smt. Jamna. 4. Assailing the conviction of the appellant, It is contended by Shri M.L. Garg, learned Counsel for the appellant that the learned Judge committed error in recording the conviction of the appellant on the basis of the statement of the highly interested witnesses. In alternate, it is submitted that the appellant caused only single injury, as such it cannot be said that he intended to commit murder of Chokha. Thus, the conviction does not travel beyond Section 304 Part-II Indian Penal Code. On the other hand, learned Public Prosecutor has supported the judgment of the learned trial Court. 5. We have perused and critically examined the entire evidence and considered the rival contentions. PW-I, Kuka is the father of deceased Chokha. He retreated the version of the incident given in the First Information Report. He also stated that the appellant Ganga Ram suspected, teasing his wife by Nathu. Prior to the incident, some oral altercation took place between Ganga Ram and PW-4 Nathu on the issue of teasing his wife. There is a lengthy cross-examination but nothing has been elicited to discredit testimony of this witness. 6. PW-4, Nathu stated that appellant-Ganga Ram took him to his house and locked. At about 9.00 P.M., his father PW-I Kuka got him released. The appellant suspected his wife being molested by him. He pleaded ignorance as to such allegations levelled against him. On the next morning, while his mother was on way to the field, Moti gave a lathi blow causing injury on her face. The outcries of his mother attracted deceased Chokha. The appellant-Ganga Ram gave a lathi blow on the head of Chokha. As a result thereof, he fell down. tie stated that while he was 16 years old, Mst. Shand wife of appellant-Ganga Ram was about 25-30 years. The appellant denied the suggestion of committing rape by him on the wife of the appellant-Ganga Ram. He also denied the suggestion that he reached on the spot after the incident was over. 7. PW-5, Mst. Jamni is the mother of deceased Chokha. Shand wife of appellant-Ganga Ram was about 25-30 years. The appellant denied the suggestion of committing rape by him on the wife of the appellant-Ganga Ram. He also denied the suggestion that he reached on the spot after the incident was over. 7. PW-5, Mst. Jamni is the mother of deceased Chokha. She deposed that on the date of incident while she was on her way to the field, Moti Ram stopped her and inflicted lathi blow on her face. She also stated that a day before the incident, appellant-Ganga Ram had taken her son Nathu to his house and confined him. However, her husband got him released. She also stated that Ganga Ram gave a lathi blow on the head of Chokha. Nothing has been elicited in the cross-examination to discredit the testimony of this witness. 8. PW-6, Gamera is grand-father of deceased Chokha. He deposed that appellant-Ganga Ram entered suspicion of molestation of his wife by his grand son PW-4 Nathu. The appellant took Nathu to his house, who was later on got released by PW-l Kuka. On the next day, hearing the outcries of Mst. Jamni he rushed to the spot. Deceased Chokha also reached on the spot hearing the outcries of his mother. Thereafter, Ganga Ram inflicted a lathi blow on the head of Chokha on account of which, he fell down. This witness has also stood firm in the cross-examination. 9. PW-7, Narayan is another eye-witness. He also stated that hearing the outcries of Mst. Jamni, he reached to the spot. Chokha also reached on the spot hearing the outcries of her mother. Ganga Ram gave a lathi blow on the head of Chokha. He was taken to the hospital at Badi Sadri where he scummed to the injuries. He also stated that there was no prior enmity between the parties. In the cross-examination he denied the suggestion that neither he nor others persons witnessed the incident. 10. PW-2 Roopa, PW-8 Amar Singh, PW-9 Mohan Singh and PW-I I Vijay Singh Rathore are formal witnesses. PW-12 Bhagawat Singh is the Investigating Officer. lie has given the details of the investigation. The police recovered the lathi in pursuance of the information given by appellant-Ganga Ram. However, it is not necessary to deal with the said evidence as the same has not been relied upon by the trial Court. 11. PW-12 Bhagawat Singh is the Investigating Officer. lie has given the details of the investigation. The police recovered the lathi in pursuance of the information given by appellant-Ganga Ram. However, it is not necessary to deal with the said evidence as the same has not been relied upon by the trial Court. 11. DW-I, Shanti aged 20 years is the wife of appellant Ganga Ram. She identified PW-4 Nathu as the son of PW-l Kuka. She deposed that her husband-appellant-Ganga Ram was arrested in a false case of illicit liquor. tier father-in-law had gone out. In the night while she was alone in the house, PW-4 Nathu entered in the house and committed rape on her. When her husband released from Jail, she reported the matter to him. This led to quarrel between the appellant and father of Nathu. DW-2 Megha is father-in-law of the appellant. He stated that his daughter Shanti and son-in-law Ganga Ram were assaulted by the complainant party. 12. It is evident from the analysis of the prosecution evidence referred to above that it was appellant-Ganga Ram, who inflicted lathi blow on the head of Chokha which resulted into his death. The version given by the eye-witnesses is also supported by the medical evidence. PW-10 Dr. Kanhaiyalal stated that he conducted post-mortem of the deceased Chokha vide Exhibit P-9 and found the following injuries: "Brain-Hematoma of about 2' x 3' is present on left cerebral hemisphere." In his opinion the cause of death was shock due to Haemorrhage in left cerebral region of brain leading to Hematoma. He also examined the injuries of PW-5 Mst. Jamni and noticed the following injuries vide Exhibit P-7: "1. An abrasion I x 0.5 cm. on upper lip, simple blunt. 2. Bruise 5 x 3 cm. on right scapular area, simple blunt." 13. The next question arises for consideration is as to whether the learned trial Court was right in holding the appellant guilty of murder? The evidence of all the witnesses referred to above shows that the appellant-Ganga Ram was unhappy with PW-4 Nathu as he suspected of molestation of his wife by him. It further appears that some oral altercation took place between the appellant and PW-5 Mst. Jamni, Mother of PW-4. Moti Lal inflicted a lathi blow on the face of Mst. Jamni. Her outcries attracted deceased Chokha and others. It further appears that some oral altercation took place between the appellant and PW-5 Mst. Jamni, Mother of PW-4. Moti Lal inflicted a lathi blow on the face of Mst. Jamni. Her outcries attracted deceased Chokha and others. The appellant gave a lathi blow on the head of deceased Chokha. Thus, it clearly appears to be a sudden affair. There was no premeditation. fie inflicted a single injury. He did not repeat the blow. Thus, it cannot be said that the appellant intended to cause particular injury. In order to bring the case within Clause (3) of Section 300 Indian Penal Code., it is required to be proved that there was intention to inflict that particular Injury which in the ordinary course of nature was sufficient to cause death. In other words, that the injury found to be present, was the injury that was intended to be inflicted. Thus, in the totality of the circumstances, in our opinion the appellant cannot be held t6 be guilty of committing the murder of Chokha. It is not a case of murder but of culpable homicide, not amounting to murder, which is punishable under Section 304 Part-I1, Indian Penal Code. 14. Consequently, the appeal is partly allowed. The conviction of the appellant is altered from Section 302 Indian Penal Code. to Section 304 Part-II, Indian Penal Code The sentence of imprisonment for life is reduced to the period of 5 years.Appeal partly allowed. *******