Research › Search › Judgment

Rajasthan High Court · body

2019 DIGILAW 2181 (RAJ)

Ashok Nath v. State of Rajasthan

2019-08-14

G.R.MOOLCHANDANI, SANDEEP MEHTA

body2019
JUDGMENT : 1. This appeal is directed against the judgment dated 23rd April, 2012 passed by Additional Sessions Judge (Fast Track), Balotra, Headquarters Barmer Camp Balotra in Sessions Case No.52/2011 titling State of Rajasthan Vs. Ashok Nath @ Om Prakash whereby, the trial Court has convicted the accused appellant for the offence punishable under Section 302 IPC and has sentenced him to undergo life imprisonment with a fine of Rs.2,000/- in default of payment of fine, further to undergo one month's additional simple imprisonment. 2. On the basis of Report submitted by Station Master, Jalore, FIR No.4/2011 was registered against the accused-appellant, which recited that two hermits (Sadhus) were fighting with each other in an inebriated state. One of them inflicted by a pair of tongs (Chimta) upon the head of another Sadhu, who fell down injured and further succumbed to his injuries. 3. Upon denial of charges, the trial Court framed charges for the offence punishable under Section 302 IPC, prosecution produced 13 witnesses and got 22 documents exhibited. 4. Post recording the statements of the accused-appellant under Section 313 Cr.P.C., statements of the Police Constable Mohan Lal have been got exhibited as exhibit D/1 in defence evidence. Learned counsel for the appellant has verbalized no instructions, so with the support of learned Public Prosecutor, we have ourselves scrutinized the material and have examined the record carefully and scanned the order impugned. 5. Gone through the material thoroughly and scrutinized the material available on the record and perused the Judgment impugned. 6. Mohan Lal PW-5, GRP Constable, has narrated eye witness account of the incident and has stated that on 17.02.2011, he was posted at GRP Outpost, Jalore and was on beat duty at 10:20 pm. Two Sadhus were seen fighting with each other, one of them, who could be identified, was having heavy Chimta (tongs) in his hand, inflicted blow thereof on the head of the other Sadhu, who sustained injury and fell down. Blood started oozing out of the wounds and he became unconscious. Upon hearing the ruckus, Rasool Mohammed also came there, Ambulance was requisitioned by calling 108 and the injured was taken to the Government Hospital. It has further been stated by this witness that the Sadhu, who inflicted the blow was apprehended at the spot alongwith his Chimta (tongs). Blood started oozing out of the wounds and he became unconscious. Upon hearing the ruckus, Rasool Mohammed also came there, Ambulance was requisitioned by calling 108 and the injured was taken to the Government Hospital. It has further been stated by this witness that the Sadhu, who inflicted the blow was apprehended at the spot alongwith his Chimta (tongs). He further alleges that the assailant Sadhu also became unconscious subsequently, who too was taken to the Hospital, where he was admitted. The injured Sadhu expired at the hospital. The witness elaborated that blow of Chimta by the accused Sadhu upon the head of injured Sadhu, caused his death. PW-6 Devi Singh deposed almost on identical lines as was stated by PW-5 and has corroborated his version. 7. PW-9 Rasool Mohammed stated that on 17.02.2011 at about 10:00 pm, he was in his office. From the rear side of the office, a noise of scuffle of two Sadhus was heard. That area is within the railway boundary. On hearing the commotion, he and Durag Singh went to the spot, where they found GRP Constables Mohan Lal and Devi Singh standing. One Sadhu was lying injured and blood was oozing out of the wound on his head and other Sadhu was standing there with a Chimta in his hand. The witness identified the appellant as the assailant. These GRP Constables called 108 to requisition ambulance and took the injured Sadhu to the Government hospital, Jalore. The other Sadhu was taken into custody by Mohan Lal alongwith his Chimta, which was stained with blood. He further stated that Sadhu Ashok Nath, present in the Court was taken into custody by GRP Constable. They later heard that the injured Sadhu had succumbed to his injuries at the Hospital and Sadhu present in the Court had caused death of that Sadhu. Nothing material or contradictory has emerged from the cross-examination of all the witnesses. 8. PW-10 Dr. They later heard that the injured Sadhu had succumbed to his injuries at the Hospital and Sadhu present in the Court had caused death of that Sadhu. Nothing material or contradictory has emerged from the cross-examination of all the witnesses. 8. PW-10 Dr. Ramesh Chand Chauhan, who conducted autopsy on the body of the deceased Sadhu, has confirmed conducting autopsy and has stated that following ante-mortem injuries were found on the body of the deceased:- (1) Multiple lacerated wounds 1 x 1/4", 0 x 1/4", 1 x 0", 0.5 x 0.5", 1.5 x 1/4" with multiple fracture, left frontal parietal and temporal bone fractured and intra-cranial blood present, (2) Lacerated wound with blood 1/2" x 1/4" Left ear pinna ant, (3) Swelling 1 1/2" x 1 1/2" at left hand and (4) Abrasion with blood 1/2" x 1/2" on right wrist 9. Testimony of all the witnesses has established the offence proven and all the witnesses have corroborated factum of the incident. 10. Testimony and version of the FIR does divulge that both the Sadhus were fighting with each other in an inebriated condition and during this scuffle, the assailant inflicted the Chimta blow on the head of the victim without any premeditation and without intended to cause his death. Thus, we are of the firm opinion that the ingredients of Section 302 IPC are totally lacking, since the death has not been caused with intention of causing death or such a bodily injury, which the offender would have known to be likely to cause death or with the intention to ordinarily cause death. Thus offence perpetrated falls within the purview of Section 304 Part-II IPC rather than that under Section 302 IPC. 11. In the case of Surinder Kumar v. Union Territory of Chandigarh, AIR 1989 SC 1094 , Supreme Court has held:- "7. To invoke this Exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) The assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this Exception provided he has not acted cruelly." 12. Further in the case of Arumugam v. State, (2008) 15 SCC 590 , at page 595 in support of the proposition of law that under what circumstances Exception 4 to Section 300, Indian Penal Code can be invoked, if death is caused, it has been explained as under: "The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300 Indian Penal Code is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'." 13. Further in the case of Satish Narayan Sawant v. State of Goa, (2009) (17) SCC 724, Supreme Court has held:- "Section 300 Indian Penal Code further provides for the Exceptions which will constitute culpable homicide not amounting to murder and punishable Under Section 304. When and if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II." 14. We, find that the quarrel took place abruptly and suddenly. The accused as well as the deceased were under the effect of intoxication. In this scuffle, the accused inflicted blows of the Chimta held by him on the person of the deceased without any premeditation and without intending to cause him such injuries which could result into his death. Accordingly, while partly allowing the appeal, we modify the finding of the trial Court and convert the conviction of the accused-appellant from Section 302 IPC to Section 304 Part-II IPC. 15. As per the record, the accused-appellant was arrested on 20.02.2011 and is in custody since then. He has suffered incarceration for a term of more than 8 years and 6 months. We feel that the ends of justice shall be sub-serve by sentencing the accused-appellant to the period already undergone by him under Section 304 Part-II IPC. However, the sentence of fine awarded by the trial Court is maintained. The accused-appellant shall be released from Jail upon depositing the amount of fine; failing which, he shall be made to suffer additional sentence of one month's imprisonment awarded by the trial Court. 16. The appeal is partly allowed in terms indicated above.