IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
::JUDGMENT::
D.B. CRIMINAL APPEAL NO. 235/2004
Gautam
Versus
State of Rajasthan
Date of Judgment :: 28.01.2010
PRESENT
HON'BLE MR. JUSTICE A.M. KAPADIA
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
Mr. Vineet Jain for the appellant
Mr. K.R. Bishnoi - Public Prosecutor
BY THE COURT (Per Hon'ble Mr. Vyas, J.):
In this criminal appeal, the accused appellant
Gautam S/o Kalu is challenging the judgment dated 30.08.2003
passed by the Additional Sessions Judge cum Special Judge,
SC/ST Cases, Pratapgarh in Sessions Case No. 64/1998,
whereby the accused appellant was convicted for committing
offence under Section 302 IPC and awarded the sentence of Life
Imprisonment with fine of Rs.5000/- and in default of payment
of fine to further undergo six months simple imprisonment.
As per the facts of the case, on 27.06.1998, SHO
Suhagpura received a report by complainant Gopal, in which it
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was stated that at about 6 a.m. when he was at his house
alongwith his younger brother Bhaira. His brother Bhaira went
to the nearby handpump, where accused Gautam S/o Kalu living
adjacent to the handpump called him and thereafter accused
Gautam and Bheriya went together to Gautam’s house. After
some time the complainant heard the noise of his brother. At
that time he alongwith Mangalia, Mohan and Hindura reached to
the house of Gautam and saw that Gautam had tied his brother
Bheriya to a wooden pillar in his courtyard using a nylon rope
and was beating him with lathi. When they saw the incident,
they intervened, on which Gautam ran away from the place of
occurrence. Due to the beating, Bheriya became unconscious
and they took him to the hospital where he died, therefore, they
took Bheriya’s body to Gautam’s house.
Upon receiving the aforesaid information,
investigation was conducted after registering the FIR against the
accused appellant at the Police Station Suhagpura. After
investigation, challan was filed against the accused appellant in
the court of Civil Judge (Junior Division) and Judicial Magistrate,
Pratapgarh, from where the case was committed to the court of
Sessions Judge, Pratapgarh for trial. The District and Sessions
Judge, Pratapgarh transferred the case to the court of Additional
Sessions Judge cum Special Judge, SC/ST Cases, Pratapgarh.
After committal, charges were framed against the accused
appellant and in trial statements of 18 prosecution witnesses
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were recorded and 15 documents were exhibited. Thereafter
further statement of the accused was recorded under Section
313 CrPC so also the accused appellant led evidence in defence
while producing DW1 Jamna before the court. Learned trial
court after hearing both the parties convicted the accused
appellant for committing offence under Section 302 IPC and
imposed the sentenced of life imprisonment alongwith fine of
Rs.5000/- and in default of payment of fine, to further undergo
six months’ simple imprisonment vide judgment dated
30.08.2003.
Learned counsel for the appellant while challenging
the validity of the said judgment vehemently argued that the
prosecution has concocted a false story for making allegation
against the accused appellant for committing the offence under
Section 302 IPC. In fact, no offence under Section 302 IPC has
been committed by the accused appellant. While inviting
attention of this court towards the statement of the accused
appellant recorded under Section 313 CrPC, it is submitted that
the accused appellant is not challenging the incident, but gave
reason for the incident in the statement recorded under Section
313 CrPC. In his defence, it is stated by the accused appellant
that the deceased Bheriya had entered in his house with ill
intention to commit rape with his wife. Admittedly the incident
took place in the house of the accused appellant, therefore, this
fact alone clearly reveals that the deceased entered in the house
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of the appellant with bad intention. As per the learned counsel
for the appellant, there was no previous enmity between the
accused appellant and the deceased. The incident took place all
of a sudden because the deceased entered in the house of the
accused appellant for the purpose of committing the offence of
rape and to outrage the modesty of his wife, therefore, it is
obvious that a prudent man cannot tolerate such type of conduct
of any person in his house, for this reason, the deceased was
assaulted by the accused appellant. The story which is narrated
by the prosecution witnesses, namely, P.W.2 Gopal, P.W.3
Mohan, P.W.4 Mangalia, P.W.5 Hindura is totally a concocted one
because none of the independent witness has corroborated their
version and the father of the deceased P.W.6 Rukma in his
statement corroborated the statement of the accused appellant
recorded under Section 313 CrPC and in the cross-examination,
P.W.6 Rukma has specifically stated that when he reached at the
place of occurrence, he saw that there were no cloths on the
body of the deceased Bheriya and his body was lying upon the
cot in the house of the accused appellant, meaning thereby the
fact of not wearing any cloths by the deceased Bheriya is found
to be correct and It is obvious that the accused appellant has
rightly disclosed the correct incident in the statement recorded
under Section 313 CrPC. Learned counsel for the appellant has
vehemently argued that the accused appellant is not disputing
the incident, but gave his explanation for the occurrence which
took place, therefore, the learned trial court has committed an
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error while convicting the accused appellant for the offence
under Section 302 IPC and even if the prosecution story is
accepted, then on the basis of the material evidence on record, it
is obvious that the prosecution has not proved its case that the
accused appellant has committed offence under Section 302 IPC.
Learned counsel for the appellant vehemently argued that even
if the evidence led by the prosecution is considered, then also no
offence under Section 304 Part I IPC is made out because the
occurrence took place all of a sudden and the prosecution has
failed to prove that there was any intention or motive or
preparation before occurrence took place, in this view of the
matter, the learned trial court has committed a grave error while
convicting the accused appellant for the offence under Section
302 IPC because as per the evidence, the case does not travel
beyond Section 304 Part I IPC instead of Section 302 IPC. While
attacking upon the evidence of the prosecution witnesses P.W.2
Gopal, P.W.3 Mohan, P.W.4 Mangalia and P.W.5 Hindura, it is
submitted that upon perusal of the statement of the aforesaid
witnesses it reveals that these so-called eye-witnesses reached
upon the place of occurrence after the incident, therefore, they
cannot be termed as eye-witnesses. P.W.6 Rukma, father of the
deceased, states that he was informed by his wife P.W.11 Moti,
on which he collected the villagers and reached the house of
Gautam. This witness does not mention the presence of P.W.2
to P.W.5 at the place of occurrence, but admitted the presence
of Nathu and P.W.7 Rajin. He further admitted in the statement
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that the deceased Bheriya was wearing only undergarments
when he saw him. Likewise, P.W.11 Moti and P.W.15 Kuiya
stated before the court that the deceased was wearing only
undergarments and P.W.16 Kalu stated a new story that
Mangudi, the daughter of the accused, raised the shout that the
accused was assaulting her mother and the deceased inside the
house. In this view of the matter, it is vehemently argued by
the learned counsel for the appellant that the prosecution has
suppressed the true facts regarding the genesis of the
occurrence and in view of the admissions of P.W.6 to 15
regarding the absence of cloths on the body of the deceased and
the fact that the incident took place inside the house of the
appellant, it emerges that the deceased had entered the house
of the appellant with ill intention and due to this reason the
occurrence took place, therefore, even if the prosecution version
is taken into account, then also the case cannot travel beyond
the offence under Section 304 Part I and since the appellant is
behind the bars for last more than eight and half years,
therefore, it is prayed that the sentence awarded to the accused
appellant is required to be altered from Section 302 IPC to
Section 304 Part I IPC and he is entitled to be released upon the
sentence already undergone by him.
Per contra, learned Public Prosecutor has vehemently
opposed the arguments advanced by the learned counsel for the
appellant and submitted that the finding arrived at by the trial
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court with regard to committing of offence by the accused
appellant under Section 302 IPC does not require any
interference. Admittedly, the deceased Bheriya was assaulted by
lathi and due to severe beating, he became unconscious and
later on died due to injuries caused to him by the accused
appellant, therefore, the prosecution has proved its case beyond
any reasonable doubt by producing eye-witnesses P.W.2 Gopal,
P.W.3 Mohan, P.W.4 Mangalia, P.W.5 Hindura who gave their
statements on oath before the court that when they reached
upon the place of occurrence, they saw that the accused
appellant Gautam had tied Bheriya to a wooden pillar in his
courtyard and was beating him with lathi and upon their
intervention, he ran away from the place of occurrence,
therefore, the conviction of the accused which is based upon
perfect appreciation of evidence does not require interference;
hence, this appeal is required to be dismissed.
We have considered the rival submissions and the
entire record of the case. Admittedly, the accused appellant is
not disputing the incident and as per his further statement
recorded under Section 313 CrPC, he is not disputing that he has
beaten the deceased Bheriya, but he has assigned reason that
Bheriya entered in his house and tried to outrage the modesty of
his wife and due to this reason, when the accused appellant saw
Bheriya in objectionable condition, then he assaulted him by
lathi. The relevant portion of the statement of the accused
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appellant recorded under Section 313 CrPC reads as under :-
“मर द औरत ह। मर बड औरत जमन ह द न
ओरत क अलग अलग मक न ह म घटन क ददन छ ट
ओरत क मक न पर स रह थ । मत ! क मर य मर
ओरत जह स रह थ उसक मक न म$ घ%स गय उसक
च’लल न पर म वह * गय वह बल तक र करन क,
क श श कर रह थ मन उस म रप ट कर भग य ।
अ*धर म$ वह ब हर न कलत ह%ए मक न क थमब स
टकर य व टकर कर नन’ गय व भ ग गय ।”
Upon appreciation of the evidence, a very important fact
emerges that all the prosecution witnesses including P.W.6
Rukma, father of the deceased, stated before the court that the
body of Bheriya was lying upon a cot in the house of the accused
appellant Gautam. The eye-witnesses are also giving their
version that the occurrence took place in the courtyard of the
accused appellant. Other prosecution witnesses P.W.6 to P.W.15
stated before the court that when they saw the body of the
deceased lying upon the cot in the courtyard of the accused, he
was not wearing cloths, meaning thereby the story which is
narrated by the accused appellant in his further statement
recorded under Section 313 CrPC appears to be correct. As per
the prosecution evidence, no motive has been assigned by any of
the eye-witness or other witnesses nor it is stated by any of the
prosecution witnesses that there was enmity between the
accused appellant and the deceased. There are two sets of
evidence on record. One is eye-witnesses P.W. 2 Gopal, P.W.3
Mohan, P.W.4 Mangalia and P.W.5 Hindura and according to
them, upon hearing the noise of the deceased Bhera, they went
to the house of accused appellant Gautam and saw that Gautam
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had tied his brother Bheriya to a wooden pillar in his courtyard
using a nylon rope and was beating him with lathi and upon
intervention he ran away from the place of occurrence. For
accepting the testimony of these witnesses, no other evidence
has been produced by the prosecution, whereas P.W.6 Rukma,
father of the deceased, has stated before the court that he was
informed by his wife P.W.11 Moti with regard to the incident,
upon which he collected the villagers and reached the house of
Gautam, but he has not mentioned the presence of P.W.2 to 5,
meaning thereby that the story narrated by the prosecution
witnesses No. 2 to 5 is not supported by any other witness and
upon perusal of the statement of P.W.6 to P.W.8 and P.W.15, it
comes out that the facts narrated by the accused in his
statement recorded under Section 313 CrPC are more
trustworthy than the testimony of P.W.2 to P.W.5. The accused
appellant is not disputing the occurrence, but stated that he has
assaulted the deceased because he entered in his house where
his wife was sleeping and the deceased was trying to commit
rape with his wife. In our opinion, it is obvious that if any person
is trying to outrage the modesty of wife of any person, then
certainly the said person will make efforts for protecting his wife.
In this case, as per the testimony of P.W.6 to P.W.15, it emerges
that the deceased Bheriya was not wearing cloths except
undergarments and they saw with their eyes that his body was
lying in the house of the accused appellant, then it can very well
be said how the occurrence took place in the house of accused
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appellant Gautam and how he was not wearing cloths. Obviously
these facts supports the version which is given by the accused
appellant in his statement recorded under section 313 CrPC,
therefore, upon the assessment and re-appreciation of the
evidence, we find that there is force in the arguments of the
learned counsel for the accused appellant that this case does not
travel beyond Section 304 Part I IPC. The learned counsel for
the appellant does not dispute the occurrence and the
prosecution witnesses P.W.6 to P.W.15 are also not disputing the
place of occurrence and the fact that when they saw the
deceased, he was not wearing the cloths except undergarments.
According to learned counsel for the appellant, homicidal death
of Bheriya is proved. Further it is submitted that upon
appreciation of the evidence, the conviction recorded against him
for offence under Section 302 IPC is required to be quashed
because it is not a case of murder punishable under Section 302
IPC, but a case under Section 304 Part I IPC because the
accused appellant has inflicted vital injury which caused death
without any intention to kill him, that too in sudden provocation
upon the fact that the deceased entered in his house and tried to
commit offence of rape upon his wife, therefore, while
disbelieving the testimony of P.W.2 to P.W.5 and accepting the
arguments of the learned counsel for the appellant and further
statement of the accused appellant under Section 313 CrPC,
which is corroborated by the independent witnesses, we are of
the opinion that it is a fit case in which the accused appellant can
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be held guilty for offence under Section 304 Part I IPC and not
under Section 302 IPC. The above discussion is well supported
by the judgments rendered by the Hon’ble Apex Court.
In the case of Lachman Singh Vs State of
Haryana (2006) 10 SCC 524, the Supreme Court has held that
if occurrence takes place in course of sudden quarrel, conviction
of appellant is required to be altered from Sec. 302 to 304 Part I
IPC.
In the case of Harendra Nath Borah Vs. State of
Assam 2007 AIR SCW 4631, Supreme Court has clearly set
out the distinction between ‘murder’ and culpable homicide not
amounting to murder. In the said case, deceased truck Driver
was assaulted by accused police personnel and thereafter left on
the road after he became senseless. In that case, the Supreme
Court has altered conviction recorded under Sec.302 to 304 Part
I IPC.
Applying the principle laid down by the Hon’ble Apex
Court in the above referred judgments to the facts of the present
case and considering the provisions contained in 4th Exception of
Section 300 IPC, it appears that there is evidence to the effect
that the occurrence took place due to illegal entry of the
deceased in the house of the accused appellant for the purpose
of committing rape with his wife and due to that reason, the
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accused appellant inflicted injuries by lathi to the deceased
Bheriya suddenly, therefore, we are unable to agree with the
finding of the trial court with regard to guilt of the accused
appellant under Section 302 IPC, but at the most, he can be held
liable for committing offence under Section 304 Part I IPC
because he has inflicted injuries by lathi without any intention,
which resulted into the death of the deceased.
In this view of the matter, the appeal filed by the
accused appellant Gautam is partly allowed and conviction and
sentence recorded against him under Section 302 IPC is altered
to Section 304 Part I IPC and hereby sentenced to the period
already undergone by him in imprisonment which is more than
eight and half years, but he shall make the payment of fine as
awarded by the trial court and in default of payment of fine, he
shall suffer six months’ simple imprisonment. The accused
appellant Gautam is in jail. He shall be set at liberty forthwith on
depositing the amount of fine, if he is not required in any other
case.
[GOPAL KRISHAN VYAS], J. [A.M. KAPADIA], J.
Pramod
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