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2006 DIGILAW 1999 (RAJ)

Kaliya v. State of Rajasthan

2006-06-01

MOHAMMAD RAFIQ, SHIV KUMAR SHARMA

body2006
JUDGMENT 1. - The accused appellant Kaliya has preferred this Criminal Appeal from the Central Jail, Kota against the judgment dated 15th of Jan., 2001 passed by the Sessions Judge, Baran thereby convicting him for offence under Section 302 Indian Penal Code and sentencing him to undergo rigorous imprisonment for life with a fine of Rs. 5,000/-, in default thereof to further undergo rigorous imprisonment for one year. 2. A First Information Report dated 28.01.2000 was registered at Police Station Baran Sadar, District Baran on the basis of Parcha Bayan of one Modu Lal son of Shri Ramnath by Caste Sahariya resident of Gram Raroti recorded at Government Hospital, Baran. In this Parcha Bayan, Modu Lal has stated that on the preceding night of 27.01.2000 at about 8.00 P.M., he himself, Sukh Lal Gujar, Heera Lal Sahariya and Jagannath Sahariya were sitting at "Chabutara of Mata Ji". Suddenly, the accused appellant Kaliya son of Shri Ghasi Lal Sahariya having a "lathi" in his hand came there and started abusing Modu Lal. When Modu Lal wanted to leave the place, the accused appellant Kaliya inflicted a lathi blow on his head. Brothers of the complainant Modu Lal namely Bajrang Lal, Jagannath and Heera Lal Sahariya were also present at that time and they were eye-witnesses of the incident. Since it was already too late in the night, therefore, his father Ram Nath brought him to the hospital for treatment in the morning of next day. On the basis of the said Parcha Bayan, the police registered a First Information Report bearing No. 21/2000 for offences under Sections 323, 341, 504 Indian Penal Code and commenced investigation.During the course of investigation, Modu Lal succumbed to the injuries on 30.01.2000. Therefore, the police also added the offence under Section 302 Indian Penal Code to already ongoing investigation and finally submitted a charge-sheet against the accused appellant on 26.02.2000 for offences under Sections 302, 341, 504 Indian Penal Code. 3. In support of their case, the prosecution has examined as many as nine witnesses and exhibited ten documents. In the statement of the accused appellant recorded under Section 313 Criminal Procedure Code (hereinafter referred to as 'the Criminal Procedure Code'), he has denied all the charges levelled against him and stated that he has been falsely implicated in the case due to personal rivalry. In the statement of the accused appellant recorded under Section 313 Criminal Procedure Code (hereinafter referred to as 'the Criminal Procedure Code'), he has denied all the charges levelled against him and stated that he has been falsely implicated in the case due to personal rivalry. In his defence, the accused appellant has not produced any witness and only exhibited the police statements of PW2 Jagannath and PW5 Sukh Lal. 4. This Court vide order dated 01.05.2006 appointed learned Counsel Mr. Amit Punia as Amicus Curiae to represent the accused appellant, who has ably assisted the Court. 5. Both the accused appellant and the deceased belong to the same community. The learned trial Court has based its finding of conviction of the accused appellant mainly on the evidence of four witnesses namely PW2 Jagannath, PW5 Sukh Lal, PW6 Heera Lal and PW7 Bajrang Lal. PW2 Jagannath in his statement has stated that when the incident took place at about 8.00 PM on 27.01.2000, he, Satya Narayan, Sukh Lal, Bajrang Lal, Heera Lal and deceased Modu Lal were sitting on the Chabutara of Mata Ji around the 'Dhuni'. He also stated that when Hans Ram Meena contested the election to the Office of the Director, he had given a sum of Rs. 500/- to Ghasi Lal, father of the accused appellant as gift for 'Mataji Ka Chabutara'. When deceased Modu Lal was insisting upon Ghasi Lal to pay the said amount, Ghasi Lal was expressing inability to immediately pay the said amount as he did not have any money at that time. Suddenly, the accused appellant Kaliya came there with a lathi in his hand and inflicted a lathi blow on the head of deceased Modu Lal from behind and ran away from there. PW5 Sukh Lal has also come out with a similar version in his statement. He has stated that candidate of the Congress Party for election to the Office of the Director had gifted a sum of Rs. 551/- for Chabutara of Mata Ji and that money was retained by Ghasi Lal, father of the accused appellant. When deceased Modu Lal insisted upon Ghasi Lal for the payment of the said money, Ghasi Lal, father of the accused appellant, expressed his inability in paying the same. 551/- for Chabutara of Mata Ji and that money was retained by Ghasi Lal, father of the accused appellant. When deceased Modu Lal insisted upon Ghasi Lal for the payment of the said money, Ghasi Lal, father of the accused appellant, expressed his inability in paying the same. Suddenly, at that time, the accused appellant Kaliya came there and an altercation took place between deceased Modu Lal and the accused appellant Kaliya. The accused went to his home and after some time, he came with a lathi and suddenly inflicted a lathi blow on the head of deceased Modu Lal. In the cross-examination, this witness has stated that apart from the deceased, the other persons sitting in the Chabutara of Mata Ji were also asking Ghasi Lai, father of the accused appellant, to pay the said money. PW6 Heera Lal has also given similar version of the incident that when deceased Modu Lal was insisting upon Ghasi Lal to make the payment of the aforesaid money, Ghasi Lal expressed his inability to pay the same as he was having no money at that time. Suddenly, at that time the accused appellant Kaliya came there with a lathi in his hands and inflicted a lathi blow on the head of deceased Modu Lal, who thereafter became unconscious. He was taken to the hospital at Baran by his father where he ultimately died. PW7 Bajrang Lal has also come out with a similar version of the incident in his statement and stated that when all the persons on the fateful day of the incident were insisting upon Ghasi Lal, father of the accused appellant, to pay the aforesaid money, Ghasi Lal stated that he had no money, therefore, he unable to pay the same. At that time, the accused appellant came there with a lathi in his hands and inflicted a lathi blow on the head of the deceased and ran away from there. 6. The post-mortem report of deceased Modu Lal has been exhibited as Ex.P9. According to the post-mortem report, the deceased sustained two injuries; (i) Swelling 6x5 cm over Lt. Occipital region at skull and (ii) abrasion 1 x 1/2 cm, 2.5 cm above Lt. eye brow. The post-mortem report was proved by PW9 Dr. Pratap Singh Yadav. 6. The post-mortem report of deceased Modu Lal has been exhibited as Ex.P9. According to the post-mortem report, the deceased sustained two injuries; (i) Swelling 6x5 cm over Lt. Occipital region at skull and (ii) abrasion 1 x 1/2 cm, 2.5 cm above Lt. eye brow. The post-mortem report was proved by PW9 Dr. Pratap Singh Yadav. He has stated that all the injuries were ante mortem in nature and that the cause of the death of the deceased was head injury, which in his opinion was sufficient to cause death of the deceased in the ordinary course of nature. 7. Learned counsel Mr. Amit Punia, Amicus Curiae has argued on behalf of the appellant that the incident took place on a very small issue of money that was given as gift by a candidate, who contested the election to the Office of the Director and according to the evidence available on record, this money was demanded by the deceased and others present at the time of incident. Suddenly, an altercation took place between the accused appellant and the deceased. According to him, the incident thus took place at a spur of moment. The accused appellant, therefore, cannot be held responsible for causing fatal injury on the person of the deceased with the requisite intention of causing his death. He has, therefore, submitted that in the facts and circumstances of the present case, the conviction of the accused appellant Kaliya for offence under Section 302 Indian Penal Code simplicitor was not warranted on the basis of evidence available on record and the same is not sustainable. The accused appellant at best can be held responsible for causing the grievous hurt sustained by deceased Modu Lal with the knowledge that it was likely to cause death but without any intention to cause such bodily injury as was likely to cause death. The learned counsel for the accused appellant has also argued that the offence committed by the accused appellant at the maximum fall under Section 304 Part II Indian Penal Code and would be punishable accordingly. On the other hand, learned Public Prosecutor has supported the impugned judgment and has argued that the appellant has rightly been convicted for offence under Section 302 Indian Penal Code, therefore, no interference is called for by this Court. 8. On the other hand, learned Public Prosecutor has supported the impugned judgment and has argued that the appellant has rightly been convicted for offence under Section 302 Indian Penal Code, therefore, no interference is called for by this Court. 8. We have given our thoughtful consideration upon the arguments advanced by both the learned counsel and perused the record of the case. 9. It is required to be established that the act of the accused appellant was with the knowledge that it was likely to cause the death but without any intention to cause death or to cause such bodily injury as was likely to cause death. In the present case at the hand, it would be evident from the eye- witness account given by the prosecution that the incident had taken place on a very trifle and trivial issue of a certain money; which was gifted by a candidate at the time of election of the Office of the Director to 'Chabutara of Mata Ji' and this amount was retained by the father of the accused appellant. When the deceased and others who were present at the time of incident were asking for the said money from Ghasi Lal, an altercation took place between the deceased and the accused appellant and suddenly at the spur of moment the accused appellant gave a lathi blow on the head of the deceased which ultimately proved fatal to his life. The consistent version given by all the eye-witnesses and the corroboration provided to it by the expert evidence of P.W.9 Dr. Pratap Singh Yadav, who has examined the Post-mortem Report of the deceased clearly shows that only injury No. 1 sustained by the deceased on his head was responsible for his death. P.W.9 Dr. Pratap Singh Yadav, who conducted the post-mortem of the dead body, in his statement has also stated that although there was no injury to the brain of the deceased, but clotting of the blood with extra and sub-dural haemorrhage on occipital and both parietal regions was responsible for death of the deceased, which could be avoided, if he had been timely subjected to the surgical Intervention. 10. 10. From the eye-witnesses account and as also from expert evidence available on record, it is evident that the accused appellant struck a single blow on the head of the deceased and did not repeat further blows, even though he had ample opportunity for doing so. Had he been having any intention of causing death of the deceased, he would have certainly repeated the blows and could have caused more number of blows on the head of the deceased or any other vital part of his body. Undisputedly, the incident had taken place on a very small issue and suddenly, at the spur of moment. The intention required by Section 302 Indian Penal Code of causing death or causing such injuries as was likely to cause death of the deceased, cannot in the facts and circumstances of the case be attributed to the accused appellant. 11. In view of the above, we are of the considered view that the accused appellant had neither any intention to cause death of the deceased nor had the knowledge that the injury which he inflicted on the head of the deceased, was such that it must have in all probability caused the death of the deceased or such bodily injury, which in the ordinary course of the nature would be sufficient to cause his death, though it has actually so resulted in causing his death. 12. For these reasons, we partly allow the appeal of the appellant Kaliya and instead of Section 302 Indian Penal Code, we convict him under Section 304 Part II Indian Penal Code. Looking to the fact that the appellant has remained in confinement for a period of more than six years, the ends of justice would be met in sentencing him to the period already undergone by him in confinement. The appellant Kaliya, who is in jail, shall be set at liberty forthwith, if not required to be detained in confinement, in any other case. 13. The impugned judgment of the learned trial Judge stands modified as indicated above.Appeal partly allowed. *******