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2016 DIGILAW 153 (RAJ)

Ramesh v. State of Rajasthan

2016-01-25

GOPAL KRISHAN VYAS, P.K.LOHRA

body2016
JUDGMENT : Gopal Krishan Vyas, J. In this Cr. appeal filed under Section 374(2) Cr.P.C. the accused appellant Ramesh S/o Mangi Lal is challenging the judgment of conviction and sentence dated 1.7.2009 passed by the learned Addl. Sessions Judge, Nathdawara, District Rajsamand in Sessions Case No. 10/2008 by which the learned trial court convicted the appellant for the offence under Section 302 and 201 IPC while acquitting two co-accused Bholi Ram and Smt. Mohini from the charge under Section 201 IPC levelled against them and passed the following sentence against the accused appellant: Under Section 302 IPC Life Imprisonment and a fine of Rs. 5,000/- and in default of payment of fine to further undergo three months SI. Under Section 201 IPC Three years RI and a fine of Rs. 3,000/- and in default of payment of fine to further undergo two months SI. 2. As per facts of the case on 21.7.2008, the SHO Police Station, Nathdawara received a message on telephone at about 4.45 pm from Ex-Sarpanch Satyanarayan PW - 11 of the village Salore in which it was informed that in the village he heard that one Ramesh of the village killed his wife and buried behind his house. The said information was recorded as Ex.P/28 in writing by PW - 17 Chiman Singh SHO Police Station Nathdawara and went on spot along with other police official fficials. The SHO Police Station Nathdawara along with other police officials reached at the house of the appellant Ramesh where appellant and his brother were present and upon inquiry about wife of Ramesh, the appellant stated that his wife went at Ahemdabad but after some time upon thorough inquiry it is stated by him that after killing he has buried his wife at the back side of his house. 3. The SHO Police Station, Nathdawara immediately gave information to the higher authorities and called SDM, Nathdawara on spot. Doctor and photographer were also called upon spot and in the presence of all the persons and appellant, the body of his wife Chandi Bai was recovered from the backyard of the house of accused appellant and post mortem of the body of Chandi Bai was conducted on spot by the medical board and post mortem report (Ex.P/32) given by board on spot. The medical board gave its opinion that cause of death was head injury. The medical board gave its opinion that cause of death was head injury. In the post mortem report it is specifically observed that there is fracture of whole left temporal side. After port mortem report, the accused appellant was arrested vide Ex.P/33 at about 10.15 pm on 21.7.2008 itself and as per his information under Section 27 of the Evidence Act (Ex.P/3) that I inflicted injury by stone upon the head of my wife and I thrown the stone in the courtyard of my neighbor Mangu, that stone can be recovered from that place. Another information was given by him that the cloths which I was wearing at the time of incident are lying in the back side of my room of the house and Fhawada used by me to bury the body of my wife (Ex.P/36) was thrown on the roof of the room. Upon above information's given by accused appellant Ramesh the stone was recovered vide Ex.P/15 on 24.7.2008 in front of two witnesses Udai Singh and Magan Lal. Likewise cloths and Fawada were recovered vide Ex.P/14 on 23.67.2008 in the presence of two witnesses Udai Singh and Magan Lal. 4. After recording statement of witness under Section 161 Cr.P.C. on completion of investigation challan was filed against the three persons by the police in the court of Addl. Chief Judicial Magistrate, Nathdawara from where case was committed to the court of Addl. District Judge, Nathdawara for trial. The learned trial court framed charges against the accused appellant under Section 302 and 201 IPC whereas charge under Section 201 IPC was framed against other co-accused Bholi Ram and Mohini. All the three accused persons denied the charge farmed against them and prayed for trial. 5. In the trial, statements of 18 prosecution witnesses were recorded by the learned trial court and 38 documents were exhibited. 6. After recording evidence, statement of all the accused persons were recorded under Section 313 Cr.P.C. in which they denied the allegations levelled by the prosecution witnesses on oath and in spite of granting opportunity to lead evidence in defence, no evidence was produced by them. 7. The learned trial court heard final arguments and decided the case no. 6. After recording evidence, statement of all the accused persons were recorded under Section 313 Cr.P.C. in which they denied the allegations levelled by the prosecution witnesses on oath and in spite of granting opportunity to lead evidence in defence, no evidence was produced by them. 7. The learned trial court heard final arguments and decided the case no. 10/2008 vide judgment dated 1.7.2009 and convicted the accused appellant Ramesh for the offence under Section 302 and 201 IPC while acquitting the other two accused Bholi Ram and Mohini from the charges levelled against them under Section 201 IPC. 8. In this appeal filed by the accused appellant Ramesh although so many grounds are taken but during the course of arguments, the learned counsel for the appellant submits that the appellant is not challenging the incident but prayed that as per the post mortem report (Ex.P/33) only one head injury was found upon the body of the deceased Chandi Bai and that only injury was cause of death and as per prosecution case that injury was cause by stone. It is also argued that there is no evidence of motive, therefore, the conviction of accused appellant for offence under Section 302 IPC is not in consonance with law because as per the whole prosecution allegation, one injury was caused by the accused appellant upon the head of the deceased due to that injury his wife Chandi Bai died and her body was buried in the backyard of the house. It is also argued that if there is no evidence of motive on record, therefore, it can be presumed that occurrence took place in a spur of moment due to sudden provocation in which one injury was caused by the accused appellant to his wife which resulted into death, therefore, the conviction under Section 302 IPC is not sustainable in law. 9. As per argument of the learned counsel for the appellant the case cannot travel beyond offence under Section 304 Part I IPC even if whole prosecution case is accepted. 10. It is submitted that the learned trial court has committed an error while convicting the accused appellant for offence under Section 302 IPC because upon evidence on record offence under Section 304 Part I IPC is made out. 10. It is submitted that the learned trial court has committed an error while convicting the accused appellant for offence under Section 302 IPC because upon evidence on record offence under Section 304 Part I IPC is made out. Therefore, it is prayed that conviction of the accused appellant Ramesh under Section 302 IPC may be converted into under Section 304 Part I IPC because prosecution has failed to establish the motive or intention and only one injury was found upon the body of deceased. 11. As per learned counsel for the appellant only one injury was found upon the body of the deceased and after death as per their social customs, the body was buried in the back yard of his house, therefore, the accused appellant is challenging the impugned judgment to the extent of conviction for offence under Section 302 IPC and prayed that conviction may be converted for offence under Section 304 Part I IPC. In support of his arguments, the learned counsel for the appellant invited our attention towards the judgments of the Hon'ble Supreme Court in the case of State of H.P. v. Ram Pal reported in (2006)2 SCC (Cri.) 165, Arjun v. State of Maharashtra reported in 2012 Cr.L.R. (SC) 506, Dayanand v. State of Haryana reported in 2008 Cri. L.J. 2975 and judgment of this Court in D.B. Cr. Appeal No. 291/2010 : Meetha Lal v. State of Rajasthan, decided on 9.12.2015 and in DB Cr. Appeal No. 384/2006 : Khemla v. State of Rajasthan, decided on 21.1.2016 and submits that on the basis of above judgments, the conviction of the accused appellant may be altered from offence under Section 302 IPC to Section 304 Part I IPC. 12. Per contra, learned Public Prosecutor vehemently opposed the prayer and submits that a young lady was killed by the appellant by causing serious injury upon her head and her body was buried in the house itself, no information was given by the accused appellant to any person, therefore, it can be gathered from the conduct of the accused appellant that he is guilty of offence under Section 302 IPC, therefore, there is no strength in the argument of the learned counsel for the appellant to convert the conviction from offence under Section 302 IPC to under Section 304 Part I IPC. 13. 13. Learned Public Prosecutor further argued that the appellant is not challenging the incident, therefore, how he can be permitted to challenge the finding given by the learned trial court whereby he was convicted for offence under Section 302 IPC or to say that error has been committed by the learned trial court to convict him for offence under Section 302 IPC in stead of under Section 304 Part I IPC. 14. After hearing the learned counsel for the parties, we have perused the entire evidence and considered the evidence in the light of the submissions made by the learned counsel for the petitioner that he is not challenging the incident. As per the prosecution case in the post mortem report (Ex.P/33) one head injury was found and that injury was cause of death as per the medical board. PW - 18 Dr. CP Surya proved the post mortem report Ex.P/33 and stated before the court that he was one of the member of the medical board who performed post mortem of the deceased Chandi Bai w/o Ramesh and find that she died due to head injury. It is also stated in the cross examination that no blood was found upon the body but body was in decomposed condition. After perusing the post mortem report (Ex.P/33) we are of the opinion that there is no doubt that deceased Chandi Bai died due to the injury caused by the appellant by stone, which is said to be recovered upon information given by him under Section 27 of the Evidence Act. Two eye witnesses PW - 4 Udai Singh and PW - 5 Magan Lal proved the recovery of stone as per the information given by the appellant, therefore, it is obvious that before death of deceased Chandi Bai, the injury was inflicted by the accused appellant by stone upon the head and that injury was cause of death as per post mortem report (Ex.P/32) given by the medical board. 15. Upon perusal of the entire evidence it is also clear that there is no evidence with regard to motive. In view of above fact there is strength in the argument of the learned counsel for the appellant that injury was caused at spur of moment due to sudden provocation and upon receiving such injury, deceased died. 15. Upon perusal of the entire evidence it is also clear that there is no evidence with regard to motive. In view of above fact there is strength in the argument of the learned counsel for the appellant that injury was caused at spur of moment due to sudden provocation and upon receiving such injury, deceased died. After death, to remove the evidence the body was buried in the back side of the house in Gawadi. 16. In the case of State of H.P. v. Ram Pal (supra), the Hon'ble Supreme Court, gave following finding upon the identical facts. The paras nos. 5 to 8 of the said judgment are as follows: "5. Having perused the record for the limited purpose of finding the nature of offence, we see that it is clear from the evidence of PW- 3 himself that he and Jaiwant consumed liquor before going to the tea stall of the respondent herein to demand the money which was due to him and when they reached there the deceased went inside the tea stall and started quarrelling with the accused persons. During the said quarrel it is stated that the deceased called the accused persons as "cheat" and "beiman" and the quarrel then spilled outside the stall at which point of time a stick that was carried by Choudhary Ram was snatched by PW- 3, in the process Choudhary Ram got injured and fell down. Here we must notice the case of the defence is that PW- 3 assaulted Choudhary Ram which caused him facial injury and noticing his father being assaulted the respondent intervened and assaulted PW- 3 first with a knife and then assaulted the deceased twice on his back. 6. On the facts of this case whichever version we take it is clear that it is the deceased and PW- 3 after consuming liquor went to the tea stall of the accused. When the deceased went inside and abused the accused, the said verbal quarrel then spilled outside the shop when Choudhary Ram was injured on the fact either intentionally or otherwise by PW- 3. It is at that time the respondent stabbed PW - 3 and the deceased. When the deceased went inside and abused the accused, the said verbal quarrel then spilled outside the shop when Choudhary Ram was injured on the fact either intentionally or otherwise by PW- 3. It is at that time the respondent stabbed PW - 3 and the deceased. From the above facts stand proved are (a) the deceased went with PW- 3 to the shop of the accused; (b) picked up an argument during which he abused the accused; (c) Choudhary Ram was injured first and then the respondent stabbed PW- 3 and the deceased; (d) injury was inflicted on the back of the deceased. 7. On the above facts we are of the opinion that the High Court was justified in altering the sentence from Section 302 IPC to Section 304 Part I IPC. We are also in agreement with the finding of the High Court that sentence of over 4 years' RI suffered by the respondent meets the ends of justice. 8. For the reasons stated, this appeal fails hence dismissed." 17. Hon'ble Supreme Court in the case of Dayanand (Supra) considering the identical issue that in absence of motive or intention and upon the fact that there was no repeated blow upon the vital part of the body, made following adjudication which reads as under :- "10. The crucial question is as to which was the appropriate provision to be applied. In the scheme of the IPC culpable homicide is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice-versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder is culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognises three degrees of culpable homicide. The first is, what may be called, 'culpable homicide of the first degree'. This is the gravest form of culpable homicide, which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of Section 304. Then, there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304. 11. This is punishable under the first part of Section 304. Then, there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304. 11. The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences. Section 299 Section 300 A person commits culpable homicide if the act by which the death is caused is done Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done - Intention (a) with the intention of causing (1) with the intention of death; or causing death; or (b) with the intention of causing such bodily injury as is likely to cause death; or (2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; or (3) With the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or Knowledge (c) with the knowledge that the act is likely to cause death. (4) with the knowledge that the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above. **** 12. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. **** 12. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the 'intention to cause death' is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by illustration (b) appended to Section 300. 13. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. In clause (3) of Section 300, instead of the words 'likely to cause death' occurring in the corresponding clause (b) of Section 299, the words "sufficient in the ordinary course of nature to cause death" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word 'likely' in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words "bodily injury.......sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature." 18. In the case of Arjun v. State of Maharashtra (supra) the following adjudication is made by the Hon'ble Supreme Court. The paras nos. 17 and 18 of the said judgment is as under: "17. Considering the background facts as well as the fact that there was no premeditation and the act was committed in a heat of passion and that the appellant had not taken any undue advantage or acted in a cruel manner and that there was a fight between the parties, we are of the view that this case falls under the fourth exception to Section 300 IPC and hence it is just and proper to alter the conviction from Section 302 IPC to Section 304 Part 1 IPC and we do so. 18. We are informed that the appellant is in custody since 30.07.2003. 0.07.2003. In our view, custodial sentence of 10 years to the accused-appellant would meet the ends of justice and it is ordered accordingly. The appeal is accordingly disposed of, altering the sentence awarded." 19. We have considered the arguments of the learned counsel for the appellant in the light of the aforesaid judgments. 20. 0.07.2003. In our view, custodial sentence of 10 years to the accused-appellant would meet the ends of justice and it is ordered accordingly. The appeal is accordingly disposed of, altering the sentence awarded." 19. We have considered the arguments of the learned counsel for the appellant in the light of the aforesaid judgments. 20. In our opinion, looking to the nature of injury and cause of death and upon the fact that only one injury was found upon the body of the deceased and evidence of motive is not in existence, we are of the opinion that the conviction of accused appellant for offence under Section 302 IPC is not sustainable in law because upon evidence on record offence under Section 304 Part I IPC is made out. 21. Consequently, while following the aforesaid adjudication made by the Hon'ble Supreme Court, we deemed it appropriate to set aside the conviction and sentence of the accused appellant for offence under Section 302 IPC. 22. Consequently, on the basis of above discussions, the instant appeal is hereby partly allowed. The impugned judgment dated 1.7.2009 passed by the learned Addl. Sessions Judge, Nathdawara in Sessions Case No. 10/2008 is hereby modified and the conviction and sentence of the accused appellant under Section 302 IPC is set aside and he is held guilty for offence under Section 304 Part I IPC and punished with the sentence of 10 years RI with fine of Rs. 5,000/- while maintaining the conviction and sentence for the offences under Sections 201 IPC.