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2018 DIGILAW 2139 (RAJ)

Khaniya Meena v. State of Rajasthan

2018-10-25

NIRMALJIT KAUR, VINIT KUMAR MATHUR

body2018
JUDGMENT Nirmaljit Kaur, J. - The present criminal appeal is preferred against the judgement and order dated 31.3.2015 passed by the learned Additional Sessions Judge, Dungarpur in Sessions Case No.67/2012 whereby the appellant was convicted for the offence under Section 304-I of the IPC and sentenced to undergo Life Imprisonment with a fine of Rs. 2000/- and in default of payment of fine, to further undergo one year simple impriosnment. 2. As per the prosecution story, the complainant Laxman, who is the son of the deceased and real brother of the accused submitted a written report at Nithauwa Police Station on 7.10.2012 stating therein that when he was taking dinner with one of his brother Ratiya, father Thanwra and mother Varja, his elder brother Khaniya came home at 8.00 pm in drunken condition and sat on the cot outside the house. His mother went to give him dinner. She kept the food there and came back inside. Thereafter, his brother went to tell him to take the food who was followed by his father who tried to give him dinner. Khaniya, however, started shouting and using abusive language towards his father and mother by saying that it was on account of them, his wife had left. Suddenly, he went inside and picked up the knife and attacked his father on his chest. His father fell down. Khaniya tried to inflict another blow but the complainant intervened. As a result, even the complainant - Laxman received injury on the wrist of his right hand. His mother and Ratiya reached at the spot but his father had meanwhile died on the spot while Khaniya ran away from the place of incident. 3. On the basis of the written report, a case was registered for the offence under Section 302 IPC. After investigation, charge-sheet was filed against the appellant for the offence under Section 302 IPC. During trial, the prosecution examined as many as 17 witnesses and exhibited almost 30 documents to prove their case, whereas no witness was examined in defence after the statement of the accused under Section 313 Cr.P.C., 1973 In his statement under Section 313 Cr.P.C., 1973 he denied the incident and stated that he is handicapped and therefore, he was not capable of inflicting injury. The same was inflicted by his brother Laxman whereas he has been falsely implicated. 4. The same was inflicted by his brother Laxman whereas he has been falsely implicated. 4. Learned counsel for the appellant after taking us through the statements and evidence, submitted that it is an admitted case of the complainant Laxman - PW-6 that he along with his brother Ratiya - PW-15, mother Varja - PW-10 and father were at home when the appellant came home in drunken condition. Thus, question of appellant killing his father in their presence does not arise. In case, he had killed his father in their presence, they should have apprehended him and not allowed him to run away from the spot. He is admittedly a handicapped person. It is impossible for a handicapped person to inflict knife blow on the chest while he is standing with the help of sticks. The whole story is concocted. The appellant has been falsely implicated which is evident from the statement of most of the witnesses who have clearly stated that there is no cordial relation with the appellant and his brother. There is no medical report to show that the complainant received any injury. Thus, the story put forward is false. The recovery of weapon is not proved as PW-2 Kamla, PW- 3 Ratna and PW-4 Maniya have stated different place of recovery. He has been convicted on the basis of the interested and related witnesses. There is inconsistency in the statements. 5. After arguing for sometime, learned counsel for the appellant submitted that the entire finding of the learned Additional Session Judge, Dungarpur leads to an offence under Section 304-II IPC whereas he has been convicted for the offence under Section 304-I IPC for life. 6. We have heard the learned counsel for the parties and perused the evidence with their help. 7. PW-6 - Laxman is the real brother of the accused and is an eye witness. He appeared as PW-6 and corroborated the written report - Ex.P/11 submitted by him, on the basis of which the FIR was registered. Varja is the mother of the accused and wife of the deceased. She appeared as PW-10 and supported the prosecution story. She stated in no uncertain terms that Khaniya was angry because he thought that his father used to behave inappropriately with his wife and thereafter he has killed his father by stabbing him with knife. Varja is the mother of the accused and wife of the deceased. She appeared as PW-10 and supported the prosecution story. She stated in no uncertain terms that Khaniya was angry because he thought that his father used to behave inappropriately with his wife and thereafter he has killed his father by stabbing him with knife. When her second son Laxman tried to intervene, he too received injury on his hand. Ratiya PW- 15 is the daughter of the deceased. She appeared as PW-15. She too is an eye witness. While supporting the prosecution story, she admitted that Khaniya killed her father by inflicting knife blow. 8. Khaniya was angry with him on account of his bad behaviour with his wife. Khaniya was arrested on 8.10.2012. Thereafter, in pursuance to information provided by him under Section 27 of the Evidence Act vide Ex.P/22 dated 8.10.2012, the blood stained knife was recovered vide recovery memo Ex.P/7 in the presence of PW-3 Ratna and PW-4 Maniya. His blood stained vest was also recovered in the presence of the same witnesses PW-3 and PW-4 vide recovery memo Ex.P/9. As per the FSL report Ex.P/29, the result was positive and the origin of the blood was human blood with the same blood group 'B'. The recovery witnesses appeared and proved the recovery. 9. The eye witnesses as stated above are the real brother, sister and mother of the accused. They have all corroborated the prosecution story. The recovery has been duly proved by the recovery witnesses leaving no iota of doubt that the appellant killed his father by inflicting the knife blow. 10. The only question is as to whether the offence falls under Section 304-I IPC or 304-II IPC. Admittedly, the appellant was in drunken condition. He was sitting on the cot outside the house. He seemed upset with his father and when his father went to offer him food, he ran inside and picked up a knife with which he stabbed his father. This shows that he was not armed with knife but went inside and picked up the same in the moment of anger and on account of his state of mind being in a drunken state. In case, he had intention to kill, he would have come prepared. Thus, there appears to be no intention to kill. This shows that he was not armed with knife but went inside and picked up the same in the moment of anger and on account of his state of mind being in a drunken state. In case, he had intention to kill, he would have come prepared. Thus, there appears to be no intention to kill. The trial Court too has noted in no uncertain terms that the appellant had no intention. The relevant paragraph of the said Judgement reads thus:- In spite of the same, he has been convicted for the offence under Section 304-I IPC. 11. In an offence under Section 304-II IPC, intention is missing and the prosecution has to prove the death of a person in question and such death should be caused by the act of the accused knowing that such act is likely to cause death. Whereas, for the offence punishable under Section 304-I IPC, both knowledge and intention is necessary. The prosecution has not been able to prove that the accused had intention to kill his father. Thus, the conviction of the appellant under section 304-I IPC deserves to be altered to that of under Section 304-II IPC. 12. Accordingly, the Judgement and order dated 31.3.2015 is modified to the said extent. The conviction of the appellant stands altered to 304-II IPC instead of 304-I IPC and the sentence awarded to him is accordingly modified to undergo 07 years of actual sentence instead of life imprisonment with fine as already imposed by the trial court and to further undergo one year sentence in default of payment of fine. He shall be released on his undergoing the actual sentence of 07 years. 13. The criminal appeal stands disposed of accordingly.