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2015 DIGILAW 1741 (RAJ)

State of Rajasthan v. Narayan

2015-10-05

GOPAL KRISHAN VYAS, VIJAY BISHNOI

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JUDGMENT : Vijay Bishnoi, J. These two appeals have been filed by the State against the judgment dated 05.08.1992 passed by the Additional Sessions Judge, Bhilwara (for short 'the trial court' hereinafter) in Sessions Case No.3/1991, whereby the trial court has acquitted the accused-respondents from the offence punishable under section 302/34 IPC, however, convicted them for the offence punishable under section 304 Part- I/34 IPC and sentenced each of them to undergo 2 years' rigorous imprisonment and to pay a fine of Rs.8000/- each, in default of payment of fine, further to undergo 2 years' rigorous imprisonment. 2. The State Government, in appeal No.264/1995 filed under section 378 CrPC, has prayed that the appeal may be allowed and judgment dated 05.08.1992 passed by the trial court acquitting the accused-respondents for the offence punishable under section 302/34 IPC may be set aside and the accused-respondents may be convicted for the offence punishable under section 302/34 IPC and be sentenced accordingly. 3. In appeal No.458/1993 filed under section 377 CrPC, it has been prayed on behalf of the State that the appeal may be allowed and the sentence awarded to the accused-respondents for the offence punishable under section 304 Part-I/34 IPC may be enhanced. 4. Brief facts necessary for disposal of these appeals are that PW.6 Imamuddin, the then constable submitted a written report dated 20.11.1990 vide Ex.P/10 to the Station House Officer, Police Station, Kareda, District Bhilwara stating therein that he along with PW.10 Ummed Singh at about 11:30 A.M. proceeded to Jalampura from Police Station, Kareda and when they reached Jalampura at about 12:00 A.M., they received an information from an informant that dead body of Dhanna s/o Narayan Balai is lying in the Pole (compound) of Heera s/o Gheesa Balai's house, who was murdered by Narayan s/o Heera, Barda s/o Heera Balai, residents of Jalampura and other persons in the night. It is stated in the report that deceased Dhanna was assaulted by the accused-persons because he was taking Sita, wife of accused- Narayan to village Aamdala. It is stated in the report that deceased Dhanna was assaulted by the accused-persons because he was taking Sita, wife of accused- Narayan to village Aamdala. In Ex.P/10, it is further stated that on receiving this information, PW.6 Imamudin and PW.10 Ummed Singh went to the house of Heera s/o Gheesa Balai, where the door was closed and when they got it opened, they found that in right side of the compound of Heera's house, a dead body of a young person was lying and his both legs and 'dhoti' were smeared with blood. It is also stated in the Ex.P/10 that when enquired from Heera about the incident, he informed that Dhanna tried to forcibly take away the wife of Narayan, therefore, Narayan, Vardha and others assaulted Dhanna, due to which he died. 5. On receiving the said report, the police has registered FIR No.160/1990 at Police Station, Kareda for the offence punishable under section 302 IPC and started investigation and after investigation, filed charge-sheet against the accused-respondents for the offence punishable under section 302/34 IPC. 6. During the course of trial, the prosecution in support of its case got examined as many as 16 witnesses and also exhibited several documents. Statements of accused-respondents were recorded under section 313 CrPC. After hearing the counsels for the parties, the trial court has acquitted the accused-respondents for the offence punishable under section 302/34 IPC, however, convicted them for the offence punishable 334 Part-I/34 IPC and sentenced as aforesaid. 7. Assailing the judgment dated 05.08.1992, the learned Public Prosecutor has argued that the prosecution has proved beyond reasonable doubt that the accused-persons with the intention to kill, had assaulted deceased-Dhanna, which resulted in his death and, therefore, the trial court has grossly erred in not convicting the accused-respondents for the offence punishable under section 302/34 IPC. It is also argued that there was no grave and sudden provocation on the part of the deceased giving justification to the accused-respondents to kill him. It is further argued that the accused-respondents had assaulted the deceased-Dhanna while preparing for his murder by chasing him up to the outskirts of the village and, therefore, the learned trial court has grossly erred in convicting the accused-appellants only for the offence punishable under section 304 Part-I/34 IPC and not for the offence punishable under section 302/34 IPC. 8. It is further argued that the accused-respondents had assaulted the deceased-Dhanna while preparing for his murder by chasing him up to the outskirts of the village and, therefore, the learned trial court has grossly erred in convicting the accused-appellants only for the offence punishable under section 304 Part-I/34 IPC and not for the offence punishable under section 302/34 IPC. 8. It is further argued that even if it is admitted that the accused-respondents deprived of power of self control by grave and sudden provocation to commit offence, then also, the learned trial court has grossly erred in sentencing the accused-persons only for a period of two years. It is contended that the accused-respondents had brutally assaulted the deceased and, therefore, they are liable for a sentence up to the maximum period provided for commission of offence punishable under section 304 Part-I IPC. It is argued that the learned trial court has awarded sentence of only two years to the accused-respondents and the same is not sufficient looking to the action of the accused-respondents. 9. On the strength of the above arguments, learned Public Prosecutor has prayed that the impugned judgment dated 05.08.1992 may kindly be set aside and the accused-respondents may be convicted for the offence punishable under section 302/34 IPC and sentence may be awarded up to maximum punishment. In the alternative, learned Public Prosecutor has argued that the impugned judgment dated 05.08.1992 up to the extent of awarding two years' sentence may be set aside and accused-respondents may be awarded maximum punishment as provided under section 304 Part-I IPC. 10. Per contra, learned counsel appearing for the accused-respondents have argued that the action of the deceased of taking away the wife of accused Narayan was enough to provoke the accused-respondents to use force upon the deceased to prevent him from doing so and, therefore, the learned trial court has rightly convicted the accused-respondents for the offence under section 304 Part-I/34 IPC instead of section 302/34 IPC. It is submitted that the learned trial court after taking into consideration the facts and circumstances of the case has rightly held that the action of the deceased was sufficient for provocation of the accused-respondents to commit the offence because he was forcibly taking away the wife of one of the accused-respondents against their wishes. It is submitted that the learned trial court after taking into consideration the facts and circumstances of the case has rightly held that the action of the deceased was sufficient for provocation of the accused-respondents to commit the offence because he was forcibly taking away the wife of one of the accused-respondents against their wishes. Learned counsel for the accused-respondents has, therefore, argued that finding of learned trial court of convicting the accused-respondents for the offence punishable under Section 304 Part 1/34 IPC is not liable to be interfered with. 11. It is further argued that the sentence awarded by the trial court to the accused-respondents for commission of offence punishable under Section 304 Part 1/34 IPC is reasonable in the facts and circumstances of the case and, therefore, is not liable to be interfered with. Learned counsel for the accused-respondents has also submitted that along with the sentence, the trial court has imposed a heavy fine upon the accused respondents to meet the ends of justice. Learned counsel for the accused-respondents has, therefore, prayed that both the appeals preferred by the State may be dismissed. 12. Heard learned counsel for the rival parties and perused the impugned judgment and carefully scrutinized the record. 13. The unnatural death of deceased Dhanna is proved by the prosecution beyond any doubt by exhibiting the post mortem report ExP/14 and from the statement of PW-12 Dr Anil Kumar. 14. Now the question remains whether there was grave and sudden provocation by the action of the deceased, which justifies the action of the accused-respondents to assault the deceased. PW.4 Sita, in her court statement has clearly stated that when her brother Dhanna came to her in-laws house for taking her to her parental house, her husband Narayan refused to send her, but she defied him and went away with her brother Dhanna. In her cross-examination, she has specifically stated that when she started moving from her in-laws house, the accused-respondents had tried to prevent her but she went with her brother Dhanna, who had asked her not to be afraid. From this part of the statement, it is clear that the accused respondent had tried to stop Dhanna as well as PW-4 to leave their house but on the insistence of deceased Dhanna, PW-4 Sita left her in-laws house against the wish of the accused-respondents. From this part of the statement, it is clear that the accused respondent had tried to stop Dhanna as well as PW-4 to leave their house but on the insistence of deceased Dhanna, PW-4 Sita left her in-laws house against the wish of the accused-respondents. Learned trial court has taken into consideration this aspect of the matter and observed that the action of the deceased Dhanna for taking away the wife of the accused-respondent Narayan from his house against the wishes of accused-respondents was sufficient to provoke them and deprived the accused-respondents with power of self control. 15. We are of the opinion that the trial court has rightly come to the conclusion that the action of the deceased of taking away the wife of one of the accused-respondents has deprived the accused-respondents of the power of self control and they were suddenly provoked and, therefore, the said action of the accused-respondents will not come into the definition of culpable homicide amounting to murder. 16. So far as punishment awarded by the trial court to the accused-respondents for the offence punishable under section 304 Part-I/34 IPC is concerned, the trial court has taken into consideration the facts of the case, relation between the accused-respondents and the deceased and the family as well as economic condition of the accused-respondents. While awarding sentence to the accused-respondents, the trial court has also imposed a fine of Rs.32,000/- upon the accused-respondents. 17. Having consideration the facts and circumstances of the case and the relation between the accused-respondents and the deceased and the family as well as the economic condition of the accused-respondents, we are of the opinion that the trial court has not committed any illegality in awarding the sentence to the accused-respondents for two years and imposing a fine of Rs.32,000/- for commission of offence punishable under Section 304 Part-I/34 IPC. In view of the aforesaid discussions, we do not find any merit in both the appeals preferred by the State, the same are hereby dismissed. Appeals dismissed.