JUDGMENT
R.R. Yadav, J.
1. This appeal is preferred against the judgment dated 22-4-1991 passed by the learned Additional Sessions Judge No. 2, Hanumangarh, Camp Suratgarh in Sessions Case No. 17/1987 (State v. Ram Swaroop) by which he found the appellant guilty of offence under Section 302, IPC and sentenced him to imprisonment for life and a fine of Rs. 500/- and in default of payment of fine he is to further undergo six months’ R.I.
2. Put the facts briefly of the prosecution are as follows:
A verbal information was given by DW 8 Chet Ram at Police Station, Pilibanga on 11-1-1987 at 2.15 p.m. on the basis of which formal FIR Ex. P/12 was registered and drawn at said Police Station. According to the version disclosed in the first information report it is alleged that the appellant, who was a Doctor by profession, was living with his family at village Suratgarh. The first informant claimed that when he was returning from his field to come for taking his meals and reached near the house of appellant, number of persons were found to have assembled there and that wife of Ram Swaroop appellant was lying on the ground and her head was badly injured and she was profusely bleeding. It is said in the FIR that in that assembly P.W. 1 Birbal Ram, P.W. 5 Daulat Ram, P.W.4 Jalaluddin, Surendra Pal Singh, Nathu Ram, P.W. 2 Rati Ram and P.W. 6 Brij Lai were present. On enquiry Ram Swaroop appellant is said to have stated that since his wife did not pay any heed to his instructions, hence he had killed her by ‘Ghota’. According to the first informant the appellant Ram Swaroop said to the first informant to inform the police as well as the members of his family. Thereafter appellant Ram Swaroop was repremanded by the persons present in that assembly. A blood stained ‘Ghota’ was also lying near the dead body.
3. On the basis of the aforesaid information, a case under Section 302, IPC was registered vide FIR No. 12 of the said date and formal FIR was drawn. During the course of investigation site plan Ex. P/4 and site memo Ex. P/4-A were prepared. The ‘fard surate hal (memo of dead body) was also prepared which is Ex. P/5. Clothes were seized which is Ex. P/10. Postmortem of the dead body was conducted by P.W. 3 Dr. J.P. Swamy.
4. The appellant was arrested and it is alleged that his clothes were also seized. After completion of investigation, the appellant was challanged and committed to the Court of Session.
5. In support of prosecution story, prosecution has examined P.W. 1 Birbal, P.W. 2 Rati Ram, P.W. 3 Dr. J.P. Swamy, P.W. 4 Jalaluddin, P.W. 5 Daulat Ram, P.W. 6 Brij Lal, P.W. 7 Mani Ram, P.W. 8 Chet Ram and P.W. 9 Rahuvir Singh. Out of aforesaid 9 witnesses, P.W. 1 Birbal, P.W. 2 Rati Ram and P.W. 8 Chet Ram were declared hostile by the prosecution agency.
6. The learned Additional Sessions Judge framed charges against the appellant Ram Swaroop under Section 302, IPC. The appellant pleaded not guilty and claimed trial. The appellant put forth his defence that one Kishan Lal, who stayed in his house was responsible for commission of murder of his wife. The appellant Ram Swaroop also examined in his defence DW 1 Surendra Pal Singh, DW 2 Pusa Ram, DW 3 Kumari Manju and DW 4 Sukhvir Singh and also gave his statement under Section 313, Cr.P.C.
7. The appellant reiterated in his statement under Section 313, Cr.P.C. that the Kishan Lal, who stayed in the night in his house was responsible for commission of murder of his wife, while he was out from his house to see a patient. According to him, when he returned to his house at 1 p.m. then his son told him that Kishan Lal had killed the deceased. After he returned to his house, he found that his wife was dead. Accordingly to the appellant, Kishan Lal was responsible for murder of his wife, who could not be traced by the police, therefore, they falsely implicated him as a murderer of his wife.
8. After hearing the learned Public Prosecutor and learned counsel for the accused-appellant, the learned Addl. Sessions Judge relying on the deposition of P.W. 3 Dr. J.P. Swamy, P.W. 4 Jalaluddin, P.W. 5 Daulat Ram and P.W. 6 Brijlal found appellant guilty of the offence under Section 302, IPC and convicted and sentenced him as stated in the preceding paragraph.
9. We have heard learned counsel for the appellant and the learned Public Prosecutor at length and carefully gone through the oral and documentary evidence on record.
10. In the present appeal, the argument of learned counsel for the appellant Mr. M.M. Singhvi is that in this he does not dispute the alleged incident. His only argument on behalf of the appellant is that keeping in view the evidence recorded in this case the offence made out against the appellant does not travel beyond the offence punishable under Section 304, Part II, IPC. The learned counsel for the appellant further submitted that the appellant is under detention since January, 1987, therefore, according to him the sentence already undergone by the appellant is sufficient in the present set of circumstances of the case to meet the ends of justice. The learned counsel for the appellant in support of his aforesaid argument placed reliance on the case of Gulam Hussain v. State reported in 1986 RCC 86.
11. We have given our thoughtful consideration to the aforesaid arguments advanced on behalf of the appellant by his learned counsel Shri M.M. Singhivi. In case of Gulam Hussain (supra) it was found by the Division Bench of this Court that the appellant Gulam Hussain was attributed a knife injury on the chest of deceased. It was found by the Division Bench of this Court that no bad blood between deceased and appellant existed prior to incident. It was further found by the Court that there was no pre-meditation by the appellant before committing the crime. According to Hon’ble Miss Justice K. Bhatnagar and Hon’ble Mr. Justice S.S. Byas, it was found that in that case incident took place at the spur of the moment and by thoughtless mind on trivial matter. No motive was found by the Court and as a matter of fact, it was found by the aforesaid Bench that the appellant Gulam Hussain was wrongly convicted under Section 302, IPC, who ought to have been convicted under Section 304, Part II, IPC.
12. On the other hand, it is contended by learned Public Prosecutor that the appellant repeatedly caused number of injuries on the head of the deceased with intention to cause death. According to learned P.P. the intention of the appellant must be gathered from the attending circumstances of this case. Learned P.P. invited our attention to the statement of P.W. 3 Dr. J.P. Swamy, Medical Jurist and placed reliance on the case of Nasik v. State of Maharashtra reported in 1993 AIR SCW 1394 : 1993 Cri LJ 2619 rendered by the Apex Court.
13. We have given our thoughtful consideration to the rival submissions made before us by Mr. M.M. Singhvi, learned counsel for the appellant and the learned P.P. appearing on behalf of the State. In our considered opinion the present case does not fall within the ambit of Section 304, Part II, IPC but it falls within the meaning of culpable homicide amounting to murder as defined under Section 299 read with Section 300 IPC. It would be expedient to reproduce Section 299 in extenso and the relevant portion of Section 300, IPC and exception under the said section as under:-
299. Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
300. Except in the cases hereinafter ex-cepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or 2ndly – If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or – 3rdly – – If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or – 4thly – If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
When culpable homice is not murder.
Exception 1: Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisions:
First -That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly – That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly – That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation : Whether the provocation was grave and sudden enough to prevent the offence from amounting to, murder is a question of fact.
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Exception 3: Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessarily for the due discharge of his duty as such public servant and without ill will towards the person whose death is caused.
Exception 4: Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner.
Explanation : It is immaterial in such cases which party offers the provocation or commits the first assault.
Exception; Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.
xxx xxx xxx xxx xxx xxx
14. A close scrutiny of the judgment of learned Additional Sessions Judge throws a flood of light that the same argument to the effect that the offence does not travel beyond S’304, Part II, IPC on the basis of evidence adduced by the prosecution was raised before the trial court and was repelled after analytical discussion of the oral and documentary evidence on record. In our considered opinion the learned Additional Sessions Judge has given cogent and convincing reasons to hold the appellant guilty of culpable homicide amounting to murder and he has rightly convicted him under Section 302, IPC. The finding of guilt recorded by learned Sessions Judge is based on cogent and convincing reasons with which we are in agreement.
15. Considering the facts and circumstances of this case we fully agree with the conclusion arrived at by the learned Additional Sessions Judge in convicting and sentencing the appellant under Section 302, IPC. It is apparent from the statement of the Medical Jurist P.W.3 Dr. J.P. Swamy that the appellant had not given one or two Ghota blow on the head of the deceased, but he had mercilesly and in a cruel and unsual manner continued giving Ghota blows on her head due to which all the skull bones were broken into small pieces and did not stop giving Ghota blows even when brain material of deceased Smt. Virnla started oozing out from her skull. He stopped giving Ghota blows only when eye witnesses reached on the spot and started repremanding him.
16. According to P. W. 3 Dr. J.P. Swamy he found innumerable, head injuries on the head of deceased and according to his statement it is not possible to count how many blows were given to deceased in causing such injuries; According to us the intention of thy appellant is to be gathered from attending circumstances. Therefore, in the present case if the appellant had no intention to commit the murder of deceased Smt. Vimla, then why he had caused innumerable injuries on the head, which was a vital part of the body of deceased’, in a cruel and unusual manner as stated in the preceding paragraph. Causing of innumerable injuries on the head of deceased throws a flood of light that his intention was to commit murder of Smt. Vimla deceased.
17. There is another circumstance which leads towards an irresistable conclusion that the appellant had premeditation to commit the .murder of deceased. PW 4 Jalaluddin, PW 5 Daulat Ram and PW 6 Brij Lai have deposed before the trial court that the accused appellant continued to give Ghota blows on the head of the deceased Smt. Vimla till the aforesaid witnesses reached on the spot and exhorted as to why he was beating her. From the statement of aforesaid eye witnesses, the prosecution has established the fact that when they reached-on the spot and exhorted him not to beat his wife only at that stage the appellant had thrown the Ghota from which he was continuously .giving blows on the head of deceased which, is admittedly a vital pant) of the body. The Ghota from which the appellant was giving blows on the head of deceased-was lying besides the dead body, which Was soaked-with blood.
18. The aforesaid facts and circumstances of this case leads towards an irresistable conclusion that the appellant has committed brutal and cruel murder of his wife by giving innumerable Ghota blows on her head.; Thus according to the deposition of PW4 Jalajuddin, PW5 Daulat Ram, PW 6 Brij, Lai coupled with the deposition of PW 3 Medical Jurist Dr. J.P. Swamy, the prosecution has established its case beyond all reasonable doubt that the appellant committed the murder of his wife, Smt. Vimla, which amounts to culpable homicide amounting to murder.
19. It would be pertinent to quote the deposition of Medical Jurist PW 3 Dr. J.P. Swamy which will demonstrate beyond all’ reasonable doubt that the appellant had the; intention to kill his wife and he killed his Wife’ mercilessly in a cruel and unusual manner.
ih- M+ & 3 MkWDVj ts- ih- Lokeh%&
^^’ko ftlds nksuksa ?kqVus eqM+s Fks A vkSj eqag tehu esa /klk gqvk Fkk A nkfguh Hkqtk
VwVh gqbZ Fkh tks fd ‘ko ds lkFk tehu esa yxh gq;h Fkh vkSj eqM+h gqbZ fLFkfr
esa Fkh A ‘ko dk flj cqjh rjg ls dqpyk gwqvk Fkk vkSj mles ls cszu esVj ckgj
vk;k gqvk Fkk ‘ko dk flj dh gfM~M;ksa VqdM+ksa esa VwV dj fc[kjh iM+h Fkh vkSj
mlesa ls czsu dk lkjk fgLlk fudy dj QSyk Fkk—flj dh [kksiM+h bl
rjg ls VwVh gqbZ Fkh fd mudh pksVksa dh x.kuk ugha dh tk ldrh Fkh A**
20. In the absence of proof of circumstances sufficient to give the accused the benefit of any of exceptions enumerated under Section 300, IPC, the accused must be taken to have intended to kill his wife. The savage manner of assault causing multiple injuries on the skull of the helpless state of unarmed, victim, the intensity of the violence caused, the callous and cruel conduct of accused in persisting in the assault even against the protest of eye witnesses irresistably lead to the conclusion .that the injuires caused to the deceased were intentionally inflicted. The injuries found on the person of the deceased were sufficient in ordinary course of nature to cause death according to the medicial opinion. Therefore the appellant has been rightly convicted under Section 302, IPC and a contention contrary to it is not acceptable to us.
21. In our considered opinion the facts of the case of Gulam Hussain (supra) relied upon by the learned counsel for the appellant are distinguishable and proposition of law laid down in that case are not applicable to the present case while the decision rendered by the apex court in case of Nasic (supra) relied upon by the learned Public Prosecutor is applicable.
22. Considering the facts and circumstances of this case we fully agree with the view taken by the learned Additional Sessions Judge in convicting and sentencing the appellant under Section 302, IPC with life imprisonment and a fine of Rs. 500/- and in default of payment of fine further undergo six months R.I.
We, therefore, find no reason to interfere with the impugned judgment passed by the learned Additional Sessions Judge. The present appeal, therefore, fails and is hereby dismissed and conviction and sentence awarded by the learned Additional Sessions Judge are affirmed.