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2023 DIGILAW 2074 (RAJ)

Jasvinder Singh @ Kalu v. State of Rajasthan

2023-11-06

BHUWAN GOYAL, PANKAJ BHANDARI

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Judgment Pankaj Bhandari, J. - The accused appellant - Jasvinder Singh @ Kalu has preferred the instant appeal aggrieved by the judgment of conviction and order of sentence dated 19.03.2015 whereby the accused appellant has been convicted for offence under Section 302 of the Indian Penal Code (hereinafter referred to as 'the IPC') and has been sentenced to imprisonment for life and a fine of Rs.2,000/-; in default of payment of fine, to further undergo one month imprisonment. 2. Succinctly stated the facts of the case are that on 07.08.2011, complainant - Karnail Singh had given a 'parchabayan' (Exhibit-D1) to the Station House Officer, Police Station, Bhiwadi Phase-III, Alwar stating therein that at about 12:00 noon, he had come to home after working in the fields. The house of Balwant Singh is situated nearby and the dispute was going on between them with regard to right of way. Balwant singh and his son Kalu were abusing his wife and when he asked them not to abuse, then Kalu and Banta Singh came out with guns. It is also stated that Kalu with an intention to cause death, opened fire, whereby his brother Pooran Singh sustained injuries on his chest and head. Banta Singh also fired whereby he sustained injuries on his chest and hands. His wife Premo Bai, who was also standing there, also suffered injuries. It was also mentioned in the parchabayan that many persons have witnessed this occurrence. 3. On the basis of said 'parchabayan', police registered the FIR bearing No.300/2011 (Exhibit-34) on the same day i.e. 07.08.2011 and after conducting due investigation filed a chargesheet against the accused appellant and four other accused. After committal of the case to the Sessions Court, the charges were framed against them. They denied charges and sought trial. As many as 29 witnesses were examined and 37 documents were exhibited on behalf of the prosecution. In defence, 4 documents were exhibited. All the accused were examined under Section 313 of the Cr.P.C. The court after hearing the arguments have convicted the present accused appellant for offence under Section 302 of IPC and has sentenced him for life imprisonment and has acquitted the co-accused for offence under Sections 148, 307 or 307/149 & 302/149 of IPC and 302 of IPC. All the accused were examined under Section 313 of the Cr.P.C. The court after hearing the arguments have convicted the present accused appellant for offence under Section 302 of IPC and has sentenced him for life imprisonment and has acquitted the co-accused for offence under Sections 148, 307 or 307/149 & 302/149 of IPC and 302 of IPC. Accused Balwant Singh, Atma Singh and Jasvinder Singh @ Kalu - present accused appellant have also been convicted for offence under Section 323/149 of IPC and sentenced them to period already undergone. Aggrieved by the conviction for offence under Section 302 of IPC and sentence awarded to the accused appellant, the present appeal has been preferred before this Court. 4. After arguing at some length, learned counsel for the accused appellant contends that the dispute took place on the spur of the moment. There were exchange of abuses between the parties and the dispute pertains to right of way. The offence would not travel beyond Section 304 Part-I of IPC. Thus, a prayer is made that the conviction of the accused appellant for offence under Section 302 of IPC be converted to Section 304 Part-I of IPC. Learned counsel for the accused appellant, in support of his submissions, has placed reliance on Division Bench Judgment of the Rajasthan High Court in Narendra Singh & Anr. Versus State of Rajasthan: D.B. Criminal Appeal No.887/2014 decided on 25.04.2017. 5. Learned counsel for the complainant and the learned Additional Government Advocate have opposed the appeal. They have contended that the conviction of the accused-appellant for offence under Section 302 of IPC does not call for any inference by this Court. 6. We have considered the contentions raised by learned counsel for the parties and have carefully scanned the evidence on record. 7. Surendra Singh (PW-24), Investigating Officer, has deposed that the complainant and accused parties are related to each other. They had a dispute with regard to land and the right of way. He has also admitted that there was pelting of stones between the parties and one of the accused has also sustained injuries due to the same. Mohan Meena (PW-25), who has also investigated the case, has admitted in his cross-examination that before this incident, there was a dispute between the complainant side and the accused side with regard to the right of way and there was exchange of abuses. Mohan Meena (PW-25), who has also investigated the case, has admitted in his cross-examination that before this incident, there was a dispute between the complainant side and the accused side with regard to the right of way and there was exchange of abuses. This witness has also admitted that except for the right of way, there was no dispute between the parties. He has further admitted that the dispute took place on the spur of the moment. 8. Since learned counsel for the accused appellant has not disputed role of the accused appellant in the incident and has only made a prayer that the offence under Section 302 of IPC be converted to Section 304 Part-I of IPC, we are inclined to ponder only upon the question, as to whether the case would fall within the ambit of Section 304 part-I of IPC or not? Admittedly, the incident took place on the spur of the moment, both the parties are related to each other, there is a land dispute between the parties and dispute pertaining to right of way. The dispute started with hurling of abuses. Later, both the parties started pelting stones on each other and if the prosecution version is to be believed, father of the accused went home, brought a gun and handed over the same to the accused appellant, who fired at the deceased. 9. As per Karnail Singh (PW-3), who is also the complainant, it was Banta Singh, who brought the gun and handed over to his son - present appellant. He has also stated that there was hurling of abuses. Prakasho Bai (PW-4) has also admitted that the dispute took place with regard to the right of way. She has also stated that Balwant Singh handed over the firearm to his son. Gurmeet Singh (PW-5) has also admitted that the dispute started when his father refused to give passage to the accused side and when the deceased refused, then Balwant Singh went to his house and brought a 12 bore gun and handed over the same to the present accused appellant. So admittedly, it was not the present appellant, who brought the firearm. On the spur of moment, when hot exchanges started between the parties, the appellant opened fire on the deceased. So admittedly, it was not the present appellant, who brought the firearm. On the spur of moment, when hot exchanges started between the parties, the appellant opened fire on the deceased. Thus, the case would squarely fall within the ambit of 'culpable homicide not amounting to murder' and the accused thus can be held guilty for offence under Section 304 Part-I of IPC instead of Section 302 of IPC. 10. In Narendra Singh & Anr. Versus State of Rajasthan (supra), the High Court was dealing with a similar situation and the High Court converted the offence from Section 302 of IPC to Section 304 Part-I of IPC. Since the dispute took place at the spur of the moment, there was no premeditation, we are of the considered view that the present case also needs to be converted to Section 304 Part-I of IPC. 11. Consequently, the appeal filed by the accused appellant is partly allowed; his conviction under Sections 302 of IPC is set aside and instead, he is convicted for offence under Section 304 Part-I of IPC and is sentenced to 10 years rigorous imprisonment and a fine of Rs.2,000/-, in case of default in payment of fine, to further undergo 1 month imprisonment. Since accused has remained in custody for more than 12 years, he be set at liberty forthwith. 12. Appellant is directed to furnish personal bond in the sum of Rs.50,000/- and a surety bond in the like amount in accordance with Section 437-A of Cr.P.C. before the Registrar (Judicial) within two weeks from the date of release to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellant on receipt of notice thereof, shall appear before the Hon'ble Apex Court. The bail bond will be effective for a period of six months.