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2018 DIGILAW 1902 (RAJ)

Jagdish v. State of Rajasthan

2018-09-12

NIRMALJIT KAUR, VINIT KUMAR MATHUR

body2018
JUDGMENT 1. The appellant has filed the present criminal appeal under Section 374(2) of Cr.P.C. against impugned Judgment and Order dated 23.05.2011 passed by the Additional Sessions Judge, Nagaur in Sessions Case No. 49/2011, State of Rajasthan Vs. Jagdish vide which he was convicted for the offence under Section 302 of I.P.C. and sentenced to undergo life imprisonment with fine of Rs. 5,000/- and in default of payment of fine to further undergo one year R.I. 2. The case of the prosecution is that the complainant Sukharam (PW-16) submitted the written report (Ex.P/6) on 18.06.2009 stating therein that he had gone to Khari along with his wife for work. While they were away, his daughters, namely, Manohari, Jasu, Baya and Neeru and his son Jagdish stayed back in the house. He received a telephone in the morning of 18.06.2009 from the shop of one Ramavatar that one Jagdish son of Hajari Ram Nayak had inflicted injury on the head of his son Jagdish with the lathi. He asked for the vehicle to be sent to him to pick him up. One Nem Singh came to pick him up in his pickup van. Both the complainant and his wife reached the village. On reaching, he found that body of his son Jagdish was lying in the courtyard with injury on his head. His daughter Manohari told him that at about 9.30 in the night of 17.06.2009, Jagdish son of Hajari Ram hit their son Jagdish on his head with lathi. Having received grievous injury, he fell down unconscious. Loduram and Bhikaram took him to the hospital in Nagaur for treatment. He was discharged from the hospital same day after receiving the treatment. However, he died on his way. The said incident was seen by his daughters Manohari and Baya, wife of Loduram, Geeta wife of Gajaram, Radha daughter of Gajaram, Jalaram son of Gajaram and Loduram. Accordingly, an F.I.R. No. 28/2009 was registered at Police Station Khatu Bari, District Nagaur for the offence under Section 302 of I.P.C. on 18.06.2009 and the police started the investigation. 3. After investigation, challan was filed against the appellant for the offence under Section 302 of I.P.C. The charges were also framed against the appellant for the said offence. During the trial, the prosecution produced as many as 25 witnesses and exhibited 25 documents along with 11 Articles in support of their case. 3. After investigation, challan was filed against the appellant for the offence under Section 302 of I.P.C. The charges were also framed against the appellant for the said offence. During the trial, the prosecution produced as many as 25 witnesses and exhibited 25 documents along with 11 Articles in support of their case. The statement of the accused was recorded under Section 313 of Cr.P.C. No statement was recorded from the side of the defence except two documents, which were got exhibited. On conclusion of the trial, the trial court convicted the accused-appellant for the offence under Section 302 of I.P.C. vide Judgment dated 23.05.2011 and sentenced him as stated above. 4. The evidence is clinching. The eye-witnesses in the present case are PW-1 Radha, PW-3 Jalaram, PW-6 Geeta, PW-8 Manohari and PW-9 Baya. PW-8 and PW-9 are sisters of the deceased. They have all stood by their statement. The incident was seen by number of people including the above eye-witnesses. 5. In pursuance to the information of the accused under Section 27 of the Evidence Act (Ex.P/21), lathi, the weapon of offence was recovered. PW-21 Ganpatram duly proved the recovery of the lathi. The said lathi was bloodstained. As per the F.S.L. Report (Ex.P/45), the blood on the lathi and the clothes of the deceased was found to be of the same blood group. 6. Faced with the above evidence, learned counsel for the appellant, after arguing for some time, restricted his prayer for converting the sentence under Section 302 of I.P.C. to Section 304 Part II of I.P.C. and submitted that even if the statement of eyewitnesses is taken on their face value, at the best, it makes out an offence under Section 304 Part-II of I.P.C. and not Section 302. 7. The Apex Court in the case of Pulicherla Nagaraju @ Nagaraja Reddy Vs. State of Andhra Pradesh, (2006) 11 SCC 444 examined the issue as to what relevant facts should be kept in consideration while deciding the question as to whether case in hand falls under Section 302 or 304 Part-I or Part- II. Justice Raveendran speaking for the Court held in para 29 as under: "29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Justice Raveendran speaking for the Court held in para 29 as under: "29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not [pic]converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may." 8. Therefore, what we have to consider now is whether the facts of the present case falls under Section 302 or 304 Part I or Part II of I.P.C. as per the guidelines laid down in the case of Pulicherla Nagaraju @ Nagaraja Reddy . 9. PW-9 Baya is the real sister of the deceased and eyewitness. She was aged 10 years. As per her statement, she and her two sisters were together in the house. Her brother Jagdish had returned home after work in the evening went out after taking dinner. While he was standing on the door, Jalaram also came there. On asking as to who was fighting, Jalaram informed him that it was Jagdish son of Hajari Ram and his wife fighting with each other. Thereafter, Jagdish went towards the house of Loduram and she too followed her brother. Meanwhile, her sister Manohari too came out on hearing the fight. Her brother then went and sat outside the house of Gajaram. At that moment, wife of accused Jagdish son of Hajari came running and entered the house of Gajaram followed by her husband Jagdish son of Hajari, who hit her brother Jagdish on his head with the lathi. Her brother started bleeding from the head and also vomited. 10. Thereafter, she and her sister Manohari started calling out loud. As a result, rest of the villagers also collected there. The accused Jagdish ran away from the spot. Jalaram called for a vehicle and took their brother to the hospital. Loduram, Jalaram and Bhikaram accompanied her brother to the hospital. Her brother was discharged from the hospital the same day. 11. PW-8 Manohari, aged 19 years, is also sister of the deceased. She too corroborated the statement of PW-9 word by word. Similar statements are made by other prosecution witnesses corroborating the said version. 12. From the statements and the cross-examination of the prosecution witnesses, it has emerged that there was no enmity between the deceased or family of the deceased on the one hand and the accused and the family of the accused on the other. Similar statements are made by other prosecution witnesses corroborating the said version. 12. From the statements and the cross-examination of the prosecution witnesses, it has emerged that there was no enmity between the deceased or family of the deceased on the one hand and the accused and the family of the accused on the other. All were neighbours of each other and staying in a Basti with their houses close to each other. It is evident that the accused Jagdish while running after his wife into the house of Gajaram did not even know that deceased Jagdish will be sitting outside the said house on the cot. Thus, there is neither any plan nor any evidence of intention to kill the deceased Jagdish on the part of the accused. The accused, though, was carrying the lathi but the same was not for hitting the deceased Jagdish but seems to have hit Jagdish while following his wife with the same. No motive is forthcoming. There is no allegation that the accused Jagdish hit the deceased with intention to kill or that he hit him purposely. Admittedly, it was dark and there was no provision of light. 13. Hence, it may even be a sheer accident since Jagdish happened to be sitting at the entrance of the house of Gajaram. This opinion is further strengthened from the fact that there is only one blow on the deceased. In any case, injured Jagdish was rushed to the hospital, who was discharged on the same day after receiving the treatment, although, the cause of death is stated to be on account of "shock due to head injury." The accused immediately ran away and was also arrested on the same day. The sisters including the complainant-father have specifically stated in their cross-examination that there was no enmity. The other witnesses too have stated the same. It has also come in the statement of PW-19 Gopalram, A.S.I. In-charge Police Station that there was no enmity between the two families. 14. Thus, in the facts of the present case as discussed above, it cannot be said that the appellant had any intention of causing the death of the deceased when he committed the act. The weapon used is lathi. The deceased was also discharged from the hospital the same day. 14. Thus, in the facts of the present case as discussed above, it cannot be said that the appellant had any intention of causing the death of the deceased when he committed the act. The weapon used is lathi. The deceased was also discharged from the hospital the same day. Accordingly, the conviction of the accused-appellant should be under Section 304 Part II of I.P.C. instead of Section 302 of I.P.C. Hence, the sentence of 10 years would meet the ends of justice. 15. Accordingly, the present criminal appeal is partly allowed and the Order and Judgment dated 23.05.2011 passed by the trial court is modified as indicated above. The accused- appellant be released as soon as he completes the actual sentence of 10 years.