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2015 DIGILAW 302 (RAJ)

Megaram alias Mekaram v. State of Rajasthan

2015-02-02

ANUPINDER SINGH GREWAL, GOPAL KRISHAN VYAS

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Judgment : G. K. Vyas, J. The instant Cri. appeal has been filed by the accused appellant Mega Ram alias Meka Ram under Section 374(2), Cr.P.C. against the judgment dated 10-10-2006 passed by the Addl. Sessions Judge (Fast Track) No.1, Jodhpur in Sessions Case No.90/2006 whereby the learned trial court convicted the accused appellant for offence under Section 302, IPC and passed sentence for life imprisonment with fine of Rs. 5,000/- and in default of payment of fine to further undergo 2 years SI. 2. As per the facts of the case an FIR No.87/2006 was registered at Police Station, Osiyan, District Jodhpur upon complaint made by PW-2 Barsinga Ram on 25-6-2006 in which the complainant gave written report Ex.P/14 at Police Station Dechu that today at about 2.30 p.m. his nephew Ghewar Ram S/o. Naringa Ram, resident of Haniya Wala was going to his house from village Khindakaur and when he reached in front of house of the accused-appellant, the accused-appellant came out from the house with knife and inflicted a knife blow on stomach of Ghewar Ram on which Ghewar Ram fell down and upon hue and cry, Sahi Ram Bishnoi and Harlal Bishnoi came there and they saw the accused-appellant run away from the spot after inflicting the knife blow in the stomach of Ghewar Ram. The complainant and other persons took Ghewar Ram to the Osiyan Hospital in vehicle but Ghewar Ram died before reaching the hospital. The SHO, Police Station, Osiyan, District Jodhpur registered the case under Section 302, IPC and after completing the investigation, filed challan in the court of Judicial Magistrate, Osiyan, District Jodhpur from where the case was committed to the Sessions Court, Jodhpur from where the case was transferred to the court of Addl. Sessions Judge (Fast Track) No.1, Jodhpur. 3. During trial, in all statements of 11 prosecution witnesses were recorded and some documents were exhibited. Thereafter, the statement of the accused appellant under Section 313, Cr.P.C. were recorded. Sessions Judge (Fast Track) No.1, Jodhpur. 3. During trial, in all statements of 11 prosecution witnesses were recorded and some documents were exhibited. Thereafter, the statement of the accused appellant under Section 313, Cr.P.C. were recorded. In the statement recorded under Section 313, Cr.P.C., the accused-appellant stated that the door of his house was not opened, therefore, it is not possible to see on road but on the date of incident when he heard noise, he came out from the house and heard that Harlal murdered Ghewar Ram and run away from the sight but police has wrongly implicated him in the case in spite of the fact that there was no enmity in between him and the deceased Ghewar Ram. 4. The learned trial court after hearing both the parties finally convicted the accused-appellant for the offence under Section 302, IPC. The accused-appellant is behind the bar since the date of his arrest, i.e., 25.6.2006. 5. At the threshold the learned counsel for the appellant submits that appellant is not challenging the finding given by the learned Trial Court but submits that even if the case of prosecution is accepted in toto then also no offence under Section 302, IPC is made out because there is no evidence on record that accused appellant was having any enmity with the deceased and as per the evidence of prosecution only one injury was inflicted by him that too by knife and there is no allegation of repeated blow, therefore, the offence does not travel beyond Section 304 part I IPC, therefore, the conviction of the accused appellant under Section 302, IPC deserves to be altered from Section 302, IPC to Section 304 part I IPC. 6. In support of his case, the learned counsel for the appellant invited our attention towards the judgment delivered in the case of Kailash v. State of Raj. & Ors., reported in 2007(2) WLC (SC) page 94 : ( AIR 2008 SC 1564 ) and the judgment rendered by this Court in the case of Rameshwar Lal alias Fauji & Ors. v. State of Rajasthan (Cr. & Ors., reported in 2007(2) WLC (SC) page 94 : ( AIR 2008 SC 1564 ) and the judgment rendered by this Court in the case of Rameshwar Lal alias Fauji & Ors. v. State of Rajasthan (Cr. Appeal No. 265/2010), decided on 19.9.2014 in which while relying upon the judgment of the Hon- ble Supreme Court, this Court held that where the act committed is done with the clear intention to kill the other person, it will be a murder within the meaning of Section 300 of the Code and punishable under Section 302 of the Code but where the act is done without intention on grave and sudden provocation which is not sought or voluntarily provoked by the offender, the offence would fall under the exceptions to Section 300 of the Code and is punishable under Section 304 of the Code. 7. In the present case, the allegation of the prosecution is that one injury by knife was inflicted by the accused appellant and after that incident, the accused appellant ran away from the place of occurrence. We have perused the post mortem report (Ex.P/15) in which only one injury is mentioned and that injury is the cause of death. The following opinion is given by the doctor in the post mortem report (Ex.P/15), which reads as under: ' In my opinion cause of death of Sh. Ghewar Ram S/o. Sh. Naringa Ram is shock due to excessive internal and external haemorrhage due to stab injury.' 8. Upon close scrutiny of evidence and the fact that the learned counsel for the accused appellant is not challenging the conviction, we have examined the facts of the case. Admittedly, there is no evidence on record to prove the intention but it seems that one injury was caused by the accused-appellant for unknown reasons but fact remains that there is no repeated blow and only one injury was inflicted by him and due to that injury the deceased died. Therefore, when intention is absent then obviously, it can be safely said that it is not a case for offence under Section 302, IPC. In case of Kailash ( AIR 2008 SC 1564 ) (supra), the Hon- ble Supreme Court has gave the following verdict: ' 41. Therefore, when intention is absent then obviously, it can be safely said that it is not a case for offence under Section 302, IPC. In case of Kailash ( AIR 2008 SC 1564 ) (supra), the Hon- ble Supreme Court has gave the following verdict: ' 41. However, in Rajinder v. State of Haryana (2006) 6 SCJ 330 : ( AIR 2006 SC 2257 ), another Division Bench of this Court upon analyzing the provisions of Section 300 of the Indian Penal Code and referring to the celebrated case of Virsa Singh v. State of Punjab, AIR (1958) SC 465 stated the law thus: ' These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singhs, case ( AIR 1958 SC 465 ) (supra) for the applicability of clause ' Thirdly' is now ingrained in our legal system and has become part of the rule of law. Under clause thirdly of Section 300, IPC, culpable homicide is murder, if both the following conditions are satisfied: i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death, viz., that the injury found to be present was the injury that was intended to be inflicted. Thus, according to the rule laid down in Virsa Singh- s case, even if the intention of accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. Illustration (c) appended to Section 300 clearly brings out this point. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons-being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid. The above are only broad guidelines and not cast iron imperatives. In most cases, their observance will facilitate the task of the Court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other that it may not be convenient to give a separate treatment to the matters involved in the second and third stages.' 9. Likewise the Hon- ble Supreme Court in the case of Johny v. State of Kerala, reported in (2011) 14 SCC 158 gave the following verdict which reads as under: ' 2. The incident happened on 22-9-1988. The deceased, Mary was the wife of Varghese, who died prior to the occurrence of the incident. Thereafter, the deceased Mary was staying with the brother of Varghese, namely, the second accused. The deceased Mary had a daughter by Varghese and on her marriage Louis, the second accused, had advanced a sum of Rs. 60,000/- as loan. The second accused, on the date of the incident, demanded the amount so advanced from the deceased Mary and it appears that there ensued a quarrel between the second accused and the deceased Mary. The deceased Mary said that she was not prepared to talk to him as he was drunk and there is also evidence to show that Johny, the first accused was also standing behind her. The deceased Mary said that she was not prepared to talk to him as he was drunk and there is also evidence to show that Johny, the first accused was also standing behind her. When the second accused demanded the amount from the deceased Mary, the first accused Johny, who was standing behind her, stabbed her on her back and this caused the death of Mary. 3. The counsel for the petitioner submits that the crime committed by the petitioner can come only under Section 304, Part I, IPC as there was no intention on the part of the petitioner to cause the death though he had the requisite knowledge. It is true that there was only one stab injury on the deceased. It is also not clear as to what was the origin and genesis of the whole incident leading to this crime and apparently there was no reason for the petitioner to cause the injury on the deceased. These matters are shrouded in mystery. There must have been some other reasons and witnesses are not fully speaking out the truth. 4. Taking the overall facts and circumstances of the case, we do not think that the offence committed by the Accused 1 would come under Section 302, IPC. Accordingly, we set aside the conviction of the petitioner for the offence under Section 302 and find him guilty for the offence under Section 304 Part I, IPC and sentence him to undergo imprisonment for a period of seven years. The petitioner would be at liberty to get set off the period he has already undergone. 5. The special leave petition is disposed of accordingly.' [Emphasis supplied] 10. In view of the above, we are of the opinion that it is a fit case to alter the conviction of the accused appellant from offence under Section 302, IPC to under Section 304 part I, IPC on the ground that as per the prosecution case itself only one injury was inflicted by the accused appellant and after inflicting that injury, the accused-appellant run away from the spot and there is no material evidence to prove the intention and further as per the statement of doctor, the injury was found on upper side of thigh and due to external haemorrhage the deceased died. In this case also, it is required to be mentioned that as per the evidence on record it is not clear that what was the origin and genesis of the whole incident leading to this crime. 11. Therefore, this cr. appeal is partly allowed and the conviction and sentence of the ccused-appellant is hereby altered from Section 302, IPC to Section 304 Part I, IPC and the accused-appellant is since behind the bars from 25.6.2006, therefore, while convicting him under Section 304 Part I, IPC, his sentence is reduced from life imprisonment to already undergone. The appellant be released forthwith if not needed in any other case. The copy of the judgment be sent immediately to the jail where the accused appellant is serving his sentence for compliance. The record of the learned trial court may be sent back. Appeal partly allowed.