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Rajasthan High Court – Jodhpur
Gautam vs State on 28 January, 2010
  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

Page 1
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

Page 2
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

Page 3
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

Page 4
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

Page 5
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

Page 6
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

Page 7
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

Page 8
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

Page 9
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

Page 10
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

Page 11
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




                                 Page 12
 

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