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2019 DIGILAW 723 (RAJ)

Rajesh Kumar v. State of Rajasthan

2019-03-05

PRADEEP NANDRAJOG

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JUDGMENT Pradeep Nandrajog, C.J. - Heard learned counsel for the parties. 2. Convicted for the offence punishable under Section 304 PartII IPC the appellant has been sentenced to undergo R.I. for 10 years and pay fine in sum of Rs.5,000/-; in default of payment of fine to undergo R.I. for 3 months. 3. The appellant has undergone an actual sentence of 5 years 2 months and 25 days as of 30.01.2019. He has earned remissions for a period of 9 months and 8 days. 4. Criminal law was set into motion when Satpal PW-1 the brother of the deceased and brother-in-law of the appellant went to the local police station and lodged a written complaint Ex.-P1 on 04.11.2013 informing that his sister was married with the appellant about 15 years ago. The appellant used to trouble his sister. In late afternoon he received a telephone call from the village where his sister resided from a person who informed that the appellant had strangulated his wife to death. 5. On the statement Ex.P1, FIR Ex.-P2 was registered. The investigation was entrusted to Bhanwardan, PW-4 the then SHO. He went to the house of the appellant and seized the dead body of the appellant's wife and sent the same for post-mortem. The post-mortem report Ex.-P9 was drawn up by Dr. Navneet Sharma, PW-3. The post-mortem report records abrasion and swelling on the right side of the face below left ear and bruises on the right shoulder. Ligature mark 1 inch wide running horizontally on the neck stands recorded in the post-mortem report. It encircles the entire neck with more pronounced mark on the rear of the neck. Internal dissection revealed deep muscles of the neck grossly bruised. Cause of death opined was asphyxia resulting from strangulation. 6. The place where the deceased died is admittedly her matrimonial house where she lived with the appellant as his wife. 7. Conviction of the appellant has been rested on the testimony of his son Jitender Kumar, PW-2 who was a minor aged 12 years when the crime was committed and 13 years when he appeared as witness. As per his testimony his parents were having a verbal altercation since the previous evening. On the day of the incident i.e. 04.11.2013 the sound of the loudspeaker awoke him and as he arose from the slumber he saw his parents quarreling. His father strangulated his mother. As per his testimony his parents were having a verbal altercation since the previous evening. On the day of the incident i.e. 04.11.2013 the sound of the loudspeaker awoke him and as he arose from the slumber he saw his parents quarreling. His father strangulated his mother. Neighbour Shrawan Kumar also came there. His father was arrested. 8. The testimony of the young lad is short and cryptic. He has been subjected to a lengthy cross-examination and nothing has been pointed out to dis-credit the testimony of the young lad. 9. The learned trial Judge has noted the fact that since the previous evening the husband and wife were having a quarrel and thus for the act done by the appellant he has been held guilty for the offence punishable under Section 304 Part-II IPC and not Section 302 IPC. 10. Learned counsel for the appellant urges that a perusal of the case law would show that for convictions pertaining to Section 304 Part-I IPC ordinarily the Court impose sentence to undergo R.I. for 10 years and for Sub-section (2) of Section 304 IPC the sentence is normally to undergo R.I. for a period of 5 years. 11. Indeed, Section 304 IPC requires punishment to be inflicted for the offence of culpable homicide not amounting to murder and requires where a death is caused by an act done with the intention of causing death to be visited with imprisonment for 10 years or life, but where the act done is sans the intention to cause death but with the knowledge that death is likely to be the result of the act, the sentence cannot be of imprisonment for life and could be upto 10 years imprisonment. 12. In my opinion, the ends of justice would be met if the conviction of the appellant is sustained but sentence is reduced to the period already undergone. 13. The appeal is disposed of accordingly. 14. The appellant is sentenced to undergo imprisonment for the period already undergone and to this extent the sentence imposed by the learned trial Judge is modified. The appellant would be set free forthwith if not required to be in custody in any other case.