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2016 DIGILAW 1163 (RAJ)

Chautha Ram S/o Vastaram v. State of Rajasthan

2016-08-10

G.R.MOOLCHANDANI, GOPAL KRISHAN VYAS

body2016
JUDGMENT : Gopal Krishan Vyas, J. 1. The instant Criminal Appeal under Section 374 (2) Cr.P.C. has been filed by the appellant against the judgment dated 11th of April, 2007 passed by Additional Sessions Judge (Fast Track) Balotra, HQ-Barmer, Camp Balotra, in Session Case No. 26/2006 (11/2006) whereby the appellant was convicted for the offence under Section 302 of IPC and sentenced for life imprisonment with a fine of Rs. 5,000/- with default stipulation to undergo six months' rigorous imprisonment. 2. Succinctly stated, the facts of the case are that complainant, Smt. Sayri Devi, lodged a written report (Exhibit-P/6) at Police Station-Samdari, alleging therein that her son, namely, Indraram died sixteen years back leaving behind him a daughter, namely, Leela Devi and son, Mangilal. Leela Devi was married with the appellant, Chautha Ram, 8 years back and he is residing with them as ?kj tekbZ in village Silor. In the FIR, it is stated that when wife of accused appellant Leela Devi was pregnant, she was assaulted by him for no reason. On 07.03.2006 at about 08-09.00 PM, Chautha Ram and Leela Devi asked the complainant Sayri Devi that they are taking their son to hospital for treatment at Samdari. At about 11.15 AM there five years old son Sawai came to the complainant and started weeping and informed that his father, Chautha Ram (appellant) committed murder of his mother near Mamaji Ka-Than giving beatings to her. Upon aforesaid complaint, FIR (Exhibit-P/28) was registered at Police Station-Samdari and after registration of the FIR, the investigating officer went on the spot and commenced investigation. After inspection of the site, site plan was prepared and details of the site were recorded vide Exhibit-P/3. The condition of dead body of deceased, Smt. Leela Devi, was also recorded vide Exhibit-P/5, thereafter accused appellant was arrested on 07.03.2006 at 08.00 Pm and his clothes (blood stained pant) was seized and taken in possession vide Exhibit-P/2 in the presence of two witnesses namely, FC No. 138, Girdharilal and HC-83 Sawai Singh. Photographs Ex.P/7 to Ex.P/18 of the dead body were also taken. After arrest, upon information furnished by the accused appellant vide Exhibit-P/19 one blood stained scissor was recovered in the presence of two witnesses, namely, Teja Ram and Nakka Ram, resident of Village Sirlor. Photographs Ex.P/7 to Ex.P/18 of the dead body were also taken. After arrest, upon information furnished by the accused appellant vide Exhibit-P/19 one blood stained scissor was recovered in the presence of two witnesses, namely, Teja Ram and Nakka Ram, resident of Village Sirlor. The dead body of Smt. Leela Devi, was brought to the hospital for postmortem and postmortem report (Ex.P/26) was obtained from the hospital and body of deceased Leela Devi was handed over to the family for cremation. 3. The investigation of the FIR culminated into submission of a charge-sheet against the appellant for the offence under Section 302 of IPC in the Court of learned Judicial Magistrate, Siwana, from where the case was committed to the Court of Sessions Judge, Balotra, which ultimately came to be transferred to the court of Additional Sessions Judge (FT) Balotra, District: Barmer for trial. 4. In support of its case, prosecution examined 13 witnesses and got exhibited 33 documents. After recording evidence of prosecution statement of accused appellant were recorded under Section 313 Cr.P.C., however, no defence evidence was led by the appellant. 5. The learned trial court after evaluating the evidence available on record and after hearing both the parties vide its judgment dated 11.04.2007 proceeded to convict the appellant for the offence under Section 302 of IPC and sentenced him for life imprisonment with a fine of Rs. 5000/-, which is under challenge in the present appeal. 6. Mr. Rakesh Arora, learned counsel appearing on behalf of appellant vehemently argued that the prosecution case is based upon testimony of sole eye-witness, namely, PW.3, Sawai (son of deceased and accused appellant), who was seven years of age. As per the FIR lodged by Smt. Sayri Devi (PW.4), the incident was reported to her by PW.3, Sawai, son of deceased. Learned counsel for the appellant submitted that in the written report (Ex.P/6), it is nowhere stated that his father inflicted injury by stone upon head of Leela Devi and thereafter inflicted injuries by scissor. However, later on, in the statements recorded under Section 161 Cr.P.C., so also, in the Court the complainant, Smt. Sayri Devi improved her statement and made allegations of inflicting injuries by stone and scissor. However, later on, in the statements recorded under Section 161 Cr.P.C., so also, in the Court the complainant, Smt. Sayri Devi improved her statement and made allegations of inflicting injuries by stone and scissor. It is also submitted that no specific allegation was levelled by PW.3, Sawai, indicating the injury by stone or scissor on the person of deceased, in his statement but before the court, he has categorically stated my father inflicted injuries by stone upon head of my mother and after causing said injury, inflicted another injury by scissor. Meaning thereby, the prosecution produced PW.3, Sawai as eye-witness but he has improved his statement by alleging specific injury allegedly caused by accused appellant. Learned counsel for the appellant submitted that the prosecution has failed to prove its case beyond reasonable doubt. 7. It is further submitted that according to prosecution case, there were four children and in the morning, husband and wife (appellant and deceased Smt. Leela Devi) left the house while informing complainant, Smt. Sayri Devi, that they are going to hospital for treatment of their son, Sawai, but in between the way, the alleged occurrence took place. According to learned counsel for the appellant, there was no motive and premeditation to commit offence of murder, therefore, obviously occurrence taken place suddenly. Thus, even if the prosecution case is accepted, then also, the finding of guilt arrived at by the trial court for the offence u/s 302 of IPC is not sustainable in law. Learned counsel for the appellant vehemently submitted that in whole of the evidence of the prosecution, the essential and main ingredient of murder is completely missing. More so, the allegation which is made by the complainant in her written complaint with regard to doubt of appellant with respect to character of his wife (deceased Smt. Leela Devi), is also not established because complainant herself denied those allegations in her statements recorded as PW.4. Therefore, obviously, even if it is presumed that prosecution has proved the allegation of injury caused by the appellant, then also, it is not a case, in which finding of trial court for offence under Section 302 IPC based upon sound appreciation of evidence. 8. Therefore, obviously, even if it is presumed that prosecution has proved the allegation of injury caused by the appellant, then also, it is not a case, in which finding of trial court for offence under Section 302 IPC based upon sound appreciation of evidence. 8. According to learned counsel for the appellant, probably in between the way in spur of moment some quarrel took place between husband and wife, and due to sudden outburst and heated exchange with no predetermined motive per se to kill his wife, Smt. Leela Devi, the occurrence took place. Thus, it is prayed that the offence cannot travel beyond Section 304 Part II of IPC. In support of his arguments, learned counsel for the appellant invited our attention towards a latest judgment in the case of S. Ravi Kumar v. State of Karnataka, reported in 2015 (2) SCC 638 and argued that in almost identical facts, the Hon'ble Apex Court altered the offence from Section 302 IPC to that of Section 304 Part II of IPC and reduced the sentence of life imprisonment to ten years' imprisonment, therefore, conviction of the appellant for the offence under Section 302 IPC may kindly be quashed and in the alternative the same may be altered to the offence under Section 304 Part II of IPC. 9. E-converso, learned Public Prosecutor vehemently argued that the trial court has relied upon the testimony of child eye-witness, PW.3, Sawai, son of deceased, in which he has categorically made allegations against appellant for committing murder of his mother by appellant. It is also pointed out that the incident was reported by the son Sawai PW-3 to the complainant, PW.4, Smt. Sayri Devi, and the allegations made by the eyewitness are corroborative by the post-mortem report. Therefore, it cannot be said that the trial court has committed error while convicting the appellant for the offence under Section 302 of IPC. 10. With regard to argument of accused appellant that there was no motive, it is submitted by the learned Public Prosecutor that in the complaint itself the complainant stated that the appellant was having doubt about character of his wife, Smt. Leela Devi, therefore, intentionally he caused injuries to the deceased, which resulted in her death. He, therefore, argued that the judgment passed by the trial court calls for no interference and the appeal may kindly be dismissed. 11. He, therefore, argued that the judgment passed by the trial court calls for no interference and the appeal may kindly be dismissed. 11. After hearing the learned counsel for the parties, first of all, we have perused the written complaint (Ex.P/6) filed by the complainant, Smt. Sayri Devi, in which following assertion was made by her, which reads as infra:- ^^vkt rkjh[k 07-03-2006 dks lqcg djhc 8&9 cts esjk ?kj tokbZ pksFkkjke o esjh iksrh yhyk nsoh us eq>s dgk fd lokbZ ds lnhZ tqdke gS lqbZ yxkus fn[kkus lQk[kkuk lenM+h tkrs gSa nksuksa cPph chp okyh eq>s vkaxuokM+h esa lqiqnZ dj esjk tokbZ o iksrh blds iq= lokbZ o lcls NksVh okyh cPph dks ysdj lenM+h lQk[kkuk jokuk gqvk eSa vkaxuokM+h flyksj esa cSBh Fkh vkt fnukad 07-03-2006 dks fnu ds djhc 11%45 ,Œ,eŒ ij esjh iksrh yhyk dk iq= lokbZ jksrk fpYykrk gqvk esjs ikl vk;k o crk;k fd ekekth ds LFkku Fkku ij esjh eEeh dks esjs ikik pksFkkjke us ekjihV dj tku ls ekj nh gS rc eSa esjs tsBqrk iqukjke iq= pqukjke tkfr Hkhy fuoklh flyksj ds ?kj xbZ o mijksDr ?kVuk dh ckr eSaus iqukjke dks crkbZ eSa iqukjke o lokbZ dks lkFk ysdj lokbZ ds crk, vuqlkj ge ekekth ds LFkku Fkku ij x, esjh iksrh yhyk dh yk'k eafnj ds ikl cuh lky esa iM+h Fkh tku [kRe gks xbZ Fkh flj esa duiVh o xky ij o isV ls pksVsa yxh gqbZ Fkh yk'k [kwu ls yFkir gqbZ o diM+s [kwu ls Hkjs gq, Fks yhyk dh lcls NksVh cPph iiyh 2&3 ekg dh yk'k ds ikl fpYyk jgh FkhA** 12. In her statement recorded in the trial as PW.4, following statement is given by her, which reads thus:- ^^vkt ls 8&10 ekg igys dh ckr gS ml fnukad 07-03-2006 Fkh vkSj okj eaxyokj FkkA ml fnu lqcg ds le; pksFkkjke vkSj yhyh nsoh us eq>s dgk fd lokbZ ds lqbZ yxkus lenM+h lQk[kkuk tkuk gS ;g dgdj ;s yksx lokbZ dks ysdj jokuk gq, FksA pksFkkjke ds lkFk ml le; mldh iRuh yhyk] lokbZ o NksVh cPph iiyh FkhA nksuksa chp okyh cfPp;ksa dks eq>s lqiqnZ dj ;s yksx x, Fks vkSj eq>s cfPp;ksa dks j[kus dks dgk FkkA eq>s dgk Fkk fd lqbZ yxokdj okfil vkrs gSaA eSa ml le; flyksj xkao esa gh FkhA fQj fnu ds X;kjg lk<+s+ X;kjg cts yhyk dk yM+dk lokbZ esjs ikl vk;k o dgk fd ekekth dh Fkku ij yhyk dks mlds firk pksFkk us ekj fn;k gS fQj eSa ekekth dh Fkku ij x;h Fkh esjs lkFk iwukjke Hkh FkkA Nksjk dwdrk&dwdrk vk;k rc xkao okyksa dks irk py x;k Fkk D;ksafd og ;g dgrk gqvk vk jgk Fkk fd yhyk dks ekj fn;k gSA blfy, iwukjke Hkh ogkWa x;k FkkA eSa ogka x;h rc eSaus ns[kk fd yhyk dh yk'k lky esa iM+h gqbZ FkhA mlds flj ij] isV ij pksVsa yxh gqbZ FkhA eSa x;h ml le; og [kRe gks pqdh Fkh vkSj [kwu cg jgk Fkk vkSj iwjs diM+s mlds [kwu ls Hkj x;s FksA yhyk ds lkFk tks NksVh cPph iiyh Fkh og yhyk ds yk'k ds ikl iM+h iM+h jks jgh FkhA** 13. After considering the aforesaid allegation, it is obvious that appellant and deceased were having four issues and there is no allegation of demand of dowry or assault in past. It will be worthwhile to observe that as per the complainant herself, when accused as well as Leela were leaving the house on the date of incident, there was no quarrel in between them, more so, they went out of house for treatment of their son, Sawai to the hospital. Meaning thereby, there is no evidence of motive on record, or premeditation, which is main ingredient of murder. In the case of K. Ravi Kumar (supra), the Hon'ble Apex Court after considering number of judgments, gave following verdict, which reads as infra: "14. Meaning thereby, there is no evidence of motive on record, or premeditation, which is main ingredient of murder. In the case of K. Ravi Kumar (supra), the Hon'ble Apex Court after considering number of judgments, gave following verdict, which reads as infra: "14. Keeping in view the approach of this Court for giving benefit of Exception 4 to Section 300 in cases mentioned above and applying the same to the facts of this case, we are inclined to give benefit of Exception 4 to Section 300 IPC to the appellant by altering his sentence awarded to the appellant punishable under Section 304 II IPC. This we say so in the facts of this case for more than one reason. Firstly, even according to the prosecution, there was no premeditation in the commission of crime. Secondly, there is not even a suggestion or we may say conclusive evidence that the appellant had any pre-determined motive or enmity to commit the offence against the deceased leave alone a serious offence like murder. Thirdly, incident that occurred was due to sudden quarrel which ensued between the appellant-accused and the deceased-Padma on the issue of going to village Mandya to see the ailing appellant's father. The appellant, on receiving this news, had become upset and, therefore, his insistence to see his ailing father immediately was natural and at the same time, Padma's refusal to leave could lead to heated exchange of words between them. True, it is that it reached to its extreme inasmuch as the appellant in heated exchange of words lost his mental balance and poured kerosene on Padma setting her to burn. However, the fact remains that it was an outcome of sudden outburst and heated exchange with no predetermined motive per se to kill her. True, it is that it reached to its extreme inasmuch as the appellant in heated exchange of words lost his mental balance and poured kerosene on Padma setting her to burn. However, the fact remains that it was an outcome of sudden outburst and heated exchange with no predetermined motive per se to kill her. Fourthly, no conclusive evidence was adduced by the prosecution to prove any kind of constant quarrel ever ensued in the last 9 long years between the couple and that too for a cause known to others which could lead to killing Padma or whether any unsuccessful attempt was ever made by the appellant to kill her in past and lastly, we have not been able to see from the post-mortem report that any stab injury on Padma's body was caused nor prosecution was able to prove that any blood stained knife from the place of occurrence was recovered at the instance of the appellant or of any witness. 15. In the light of the aforementioned reasons, which, in our opinion, emerge from the evidence on record, we are of the considered view that these reasons are sufficient to give benefit of Exception 4 to Section 300 to the appellant and enables the Court to hold that the offence in question was not murder but it was an offence of culpable homicide not amounting to murder as specified in Exception 4 to Section 300 and hence punishable under Section 304 part II IPC. 16. In the result, we allow the appeal but only to the extent that instead of Section 302 IPC, the appellant shall stand convicted for the offence of culpable homicide not amounting to murder punishable under Section 304 Part II IPC and accordingly sentenced to undergo rigorous imprisonment for a period of 10 years. The conviction and sentence imposed under Section 498-A as also the fine imposed upon the appellant and the default sentence awarded to him shall remain unaltered which shall run concurrently. 17. The appeal is accordingly disposed of in above terms in modification of the orders passed by the courts below." 14. After following the aforesaid judgment, we are of the opinion that the facts of the present case are akin and similar to the case of K. Ravi Kumar (supra). In that case also, the motive was absent and occurrence took place suddenly. After following the aforesaid judgment, we are of the opinion that the facts of the present case are akin and similar to the case of K. Ravi Kumar (supra). In that case also, the motive was absent and occurrence took place suddenly. Here in this case also, there is no such evidence on record to prove any motive, more so, it is a case in which the accused appellant himself was living with his in-laws' house and the day on which occurrence took place they leaved house informing complainant that they are going hospital for treatment of their son. It emerges from the evidence of present case that from the wedlock of accused appellant deceased, four children borne and the day on which they left the house there was no quarrel in between them. More so, they went hospital for providing treating to their son. It is also not disputed that there was no demand of dowry, there was no other allegation against the accused appellant for any illegal activity, no evidence was produced by the prosecution so as to point out any allegation against the accused appellant that in past he was having any ill motive against deceased. Probably, the incident took place in sudden provocation and due to quarrel in between the husband and wife in which accused appellant gave beating to the deceased by stone, which resulted into the death. 15. In the totality of the circumstances, we are of the opinion that the conviction of the appellant for the offence under Section 302 IPC is not sustainable in law because even if the whole prosecution story is accepted, then also, offence cannot travel beyond offence under Section 304 Part II of IPC. 16. In view of aforesaid discussion, and while following the judgment of Apex Court in the case of K. Ravi Kumar (supra), the instant appeal is partly allowed. The judgment dated 11.04.2007 passed by the learned Addl. Sessions Judge (FT), Balotra in Session Case No. 26/2006 (11/2006) convicting and sentencing the accused appellant for the offence under Section 302 IPC is hereby quashed and set aside and the accused appellant, Chautha Ram, is hereby convicted for the offence punishable under Section 304 Part II of IPC and he is hereby sentenced to undergo ten years' rigorous imprisonment with a fine of Rs. 5000/-, in default of payment of fine, to further undergo six months' R.I.