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IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR
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CRIMINAL APPEAL No. 306 of 2008
GAUTAM
V/S
STATE
Date of Order : 17.07.2009
HON'BLE SHRI AM KAPADIA,J.
HON'BLE SHRI SANGEET LODHA,J.
Mr. SHMBHOO SINGH, for the appellant
Mr. K.R. BISHNOI, PP, for the respondent
JUDGMENT
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BY THE COURT (PER HON'BLE A.M. KAPADIA, J.)
1.Challenge in this appeal filed under Sec.374 of the
Code of Criminal Procedure (‘the Code’, for short)
is to the correctness of the judgment and order
dated 27.02.2008 rendered in Sessions Case No.75
of 2006 (74/2006) by the learned Addl. Sessions
Judge (Fast Track), Dungarpur, by which sole
appellant Gautam (‘accused’, for short) has been
convicted for commission of the offence under
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Sec.302 of the Indian Penal Code (‘IPC’, for short)
and sentenced to imprisonment for life and fine of
Rs.5,000/-, in default of payment of fine to
undergo further simple imprisonment for one year.
2.The prosecution case, as disclosed from the FIR
and unfolded during trial is as under:
2.1 On 29.05.2006, PW7 complainant Nanu Ram
lodged a written report at Police Station
Bichhiwara inter-alia stating that on 28.05.2006
at about 8.00 PM on the occasion of Prakash’s
marriage, people of Kalasuwa Fala had
assembled and after worshipping Lord Ganapati
they were dancing near the house of Prakash.
Gautam, a neighbour of Prakash, also came
there for dancing (Goomar) and at about 9.00
PM, Gautam started quarrelling with complainant
and also pushed him, as a result of which he fell
down and received injury on his right hand.
Jeeva s/o Kana and Basu s/o Kachara persuaded
Gautam and thereafter he went towards his
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house, however, returned after some time and
asked Jeeva as to who he was to expel him from
dancing and told that he would not return
without killing him and saying so he picked a
stone and threw it at the chest of Jeeva as a
result of which Jeeva on sustaining injury fell
down and died at the spot.
2.2 On submitting the above written report by
Constable Lalit Kumar at Police Station
Bichhiwara, FIR was registered against the
accused for offence under Section 302 IPC and
started investigation.
2.3 On completion of investigation, accused was
chargesheeted in the Court of Chief Judicial
Magistrate, Dungarpur, who committed the case
to the Court of Sessions, Dungarpur as the
offence punishable under Sec.302 IPC being
exclusively triable by the Court of Sessions.
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2.4 The learned Addl. District & Sessions Judge
(Fast Track) Dungarpur (trial Court, for short),
to whom the case was made over for trial,
framed charge against the accused for
commission of offence punishable under Sec.302
IPC.
2.5 The charge was read over and explained to
the accused, who pleaded not guilty and claimed
to be innocence, therefore, he was put to trial.
2.6 To prove the culpability of the accused, the
prosecution examined as many as 19 witnesses
and relied upon their oral testimony. The
prosecution also produced 17 documents which
were relied upon during the course of trial and
therefore they were exhibited and read in
evidence.
2.7 The trial Court, thereafter, recorded statement
of accused under Sec.313 of the Code, wherein
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accused pleaded innocence and denied the case
of prosecution in toto and stated that a false
case has been filed against him, however, he led
no evidence in his defence.
2.8 On appreciation, analysis and scrutiny of the
evidence on record, trial Court came to the
conclusion that homicidal death of the deceased
has been proved and the accused was the author
of fatal injury caused to the deceased by
throwing stone on him, therefore, the complicity
of the accused for the commission of offence
under Sec. 302 IPC is established. On the
aforesaid finding, the trial Court convicted and
sentenced him as stated above, which has given
rise to the instant appeal by the accused.
3.Mr. Shambhoo Singh, learned Advocate for the
accused, does not dispute the factum of murder of
Jeeva having taken place, therefore, according to
him, homicidal death of Jeeva is proved, however,
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he submits that it is not a case of murder
punishable under Sec.302 IPC but is a case of
culpable homicide not amounting to murder
punishable under Sec.304 Part II IPC as there was
no intention on the part of accused Gautam to kill
Jeeva because the dispute arose between accused
Gautam and Nanu Ram at the time of dancing. To
buttress the aforesaid submission, he has taken
this Court to the evidence of the prosecution
witnesses and submitted that the order of
conviction and sentence recorded against accused
Gautam under Sec.302 is not well founded and
therefore it may be altered to Sec.304 Part II and
as he has already undergone imprisonment for
round about three years, therefore, his custodial
sentence may be treated as substantive sentence
for the offence committed by him, and he may be
set at liberty. Thus, he prayed to allow this appeal
in part by altering the conviction and sentence of
the accused. He, therefore, urged to pass
appropriate orders in this regard.
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4.Per contra, learned Public Prosecutor Mr. K.R.
Bishnoi has supported the judgment and order of
conviction and sentence recorded against the
accused. According to him, there was intention on
the part of the accused to kill the deceased,
therefore, it is a case of murder punishable under
Sec.302 IPC and in view of this no interference is
called for in the impugned judgment and order. He,
therefore, urged to dismiss the appeal.
5.We have considered the submissions advanced by
learned counsel for the parties and perused the
impugned judgment and order. We have also gone
through record of the case and have re-appreciated
the evidence.
6.There is no dispute to the fact that deceased died a
homicidal death, however, we have reappreciated
the evidence in this regard. In this connection,
prosecution has examined and relied upon the oral
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testimony of PW11 Dr. Vinay Jain, who has
performed the postmortem on the dead body of the
deceased and also issued the Postmortem Report
Ex.P/7. On a conjoint reading of oral testimony of
PW11 Dr. Vinay Jain and Postmortem Report
Ex.P/7, it transpires that the cause of death is the
injury on vital organ i.e. rapture of left lung and
hemorrhage leading to cardio respiratory failure.
Therefore, homicidal death of deceased Jeeva is
proved.
7. Though the learned counsel for the appellant
has not disputed the incident in question, however,
accordingly to him, there was no enmity between
accused Gautam and the deceased and accused
Gautam had no intention to kill the deceased rather
his intention was only to cause injury to Nanu Ram
because there was dispute between him and Nanu
Ram in connection with dancing and therefore after
returning from his home, he pelted stone on Nanu
Ram and in between Jeeva intervened, therefore
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stone hit to Jeeva which has claimed his life.
Therefore, according to him, the act of the accused
is not an offence of murder but it is an offence of
culpable homicide not amounting to murder.
8. In light of the aforesaid submissions, now we
will re-appreciate the evidence of relevant
witnesses who are claiming to be the eye
witnesses.
9.First of all, we advert to the oral testimony of PW1
Basu. He has inter-alia stated that he, Nanu Ram,
Mohan, Narayan, Leela, Jeeva and Prakash were
playing Goomar on the occasion of Prakash’s
marriage and there started quarrel between
Gautam and Nanu Ram and Gautam started
beating Nanu Ram due to which Nanu Ram fell
down. He further stated that he and Jeeva
separated Gautam and Nanu Ram and send
Gautam to his house, who came back shouting
after five minutes carrying with him a stone which
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he pelted on Jeeva due to which Jeeva died and
after that Gautam fled away. In cross examination,
he stated that he saw that Gautam picked up a
stone from the western side of the field which was
of the weight less than one kg which he pelted on
Jeeva from a distance of 5-6 foot-steps and at that
time Nanu Ram was standing by the side of Jeeva.
10. PW4 Miss Leela, an eye witness, who is sister of
deceased, has inter-alia testified that all were
dancing on the marriage occasion of Prakash.
Gautam and Nanu Ram made quarrel and Jeeva
and Basu persuaded them to go from that place.
Gautam thereafter came back and pelted stone
which hit Jeeva.
11. PW6 Mohan, who is also claiming to be the eye
witness, has inter-alia testified that on the occasion
of Prakash’s marriage, at about 8-9 PM while they
were playing and singing songs, Nanulal and
Gautam started quarrelling, therefore, they were
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ousted from ‘Ghoomar’ and Gautam was persuaded
to go home, who came back after some time and
pelted a stone which struck on the chest of Jeeva
as a result of which Jeeva became speechless and
fell down and thereafter died.
12. PW7 Nanu Ram is also an eye witness, who filed
complaint Ex.P/13 and has testified that first of all
Gautam quarrelled with him and fell on him,
therefore, Jeeva and Basu separated them and
after some time Guatam came and pelted stone
towards Jeeva which struck on the chest of Jeeva
and Jeeva died. In cross examination, he has
stated that there was no dispute between Gautam
and Jeeva and that at the place where the stone
was pelted, there were 7-8 persons and the stone
could strike to anyone but it struck Jeeva. He
denied the suggestion that he was pelting stone
towards Gautam but it struck Jeeva.
13. PW13 Kana, father of deceased Jeeva, has also
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testified on similar lines. In cross examination, he
has in unequivocal terms stated that there was
dispute between Gautam and Nanu Ram and
Gautam pelted stone towards Nanu Ram which hit
Jeeva who came in between them and on inquiring
from accused, he told that he had pelted stone
towards Nanu Ram which hit Jeeva.
14. On reappraisal of the evidence of above
mentioned eye witnesses, there is no manner of
doubt that PW7 Nanu Ram, who has lodged the
FIR, has resiled from the statement mentioned in
the FIR. In the FIR, he has in unequivocal terms
stated that accused pelted stone towards Jeeva
whereas in oral testimony he has stated that when
Gautam pelted the stone there were 7-8 persons
and the stone could strike to anyone but it struck
Jeeva whereas PW13 Kana, father of deceased
Jeeva, in his cross examination has stated that
Gautam pelted stone towards Nanu Ram which hit
Jeeva who came in between them.
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15. On overall view of the matter, according to us,
accused was having no intention either to kill Nanu
Ram or deceased Jeeva. If there was intention to
kill anyone the accused would have come with
dangerous weapon but he came without weapon,
therefore, his act falls under Clause III of Sec.299,
which defines “culpable homicide not amounting to
murder”, punishable under Sec.304 Part II vis-à-
vis it can be termed as an act covered under
Exception IV of Sec.300 IPC, which also provides
punishment for culpable homicide not amounting to
murder, if the act is committed without
premeditation in a sudden fight in the heat of
passion upon a sudden quarrel and without
offender having taken undue advantage or acted in
a cruel or unusual manner. In the instant case,
there was dispute between Gautam and Nanu Ram
and the accused pelted stone towards Nanu Ram
which hit deceased Jeeva. Therefore, in our view
the contention of the learned counsel that it is a
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case falling under Sec. 304 Part II IPC is full of
merit.
16.Similar question arose before the Supreme Court in
Tholan Vs. State of Tamil Nadu (AIR 1984 SC 759).
In the said case, the accused started
remonstrations using filthy language against
certain organizers of a chit fund in front of the
house of deceased, who had no connection with the
deceased. The deceased came out of his house
and asked the accused to go away and the accused
on spur of moment gave only one blow with knife
to the deceased and pushed him to some distance.
In the circumstances, the Supreme Court held that
though requisite intention to commit murder could
not be attributed to the accused, he wielded a
weapon like a knife and therefore he could be
attributed with knowledge that he was likely to
cause an injury which was likely to cause death
and that in such a situation though he could not be
convicted under Sec.302, he would be guilty of
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committing an offence under Sec.304 Part II.
17.The principle enunciated by the Supreme Court in
the aforesaid case is squarely applicable to the
instant case and at the cost of repetition be it
stated that the accused had no intention either to
kill deceased Jeeva or Nanu Ram. If there was an
intention to kill anyone, he would have come with
dangerous weapon. Accused Gautam had a dispute
with Nanu Ram in connection with dancing, and
while he pelted the stone, it hit Jeeva, who on
receiving the injury died, as such at the most
knowledge can be attributed to the accused.
Furthermore, it is not the case of the prosecution
that the accused came armed with weapon. The
accused came without any weapon and he picked
up a stone at the spur of moment from the site of
incident, which was of the weight less than one kg,
therefore, intention cannot be attributed to the
accused. Thus, according to us, the act of the
accused is not murder punishable under Sec.302
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IPC, but it is a culpable homicide not amounting to
murder punishable under Sec.304 Part II IPC.
18.Seen in the above context, appeal deserves to be
allowed in part and accordingly conviction and
sentence recorded for the offence under Sec.302
IPC deserves to be altered from Sec.302 to 304
Part II IPC.
19.For the foregoing reasons, appeal succeeds in part
and accordingly it is partly allowed. Consequently,
the conviction and sentence recorded against
accused Gautam under Sec.302 is altered to
Sec.304 Part II IPC and he is sentenced to rigorous
imprisonment for four years and fine Rs.5,000, in
default of payment of fine to further undergone
simple imprisonment for one year.
20.Accused is in jail. He shall serve out the
remaining period of sentence.
( SANGEET LODHA),J. ( A.M. KAPADIA ),J.
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