JUDGMENT
Sunil Kumar Garg, J.
1. The above-mentioned appeals and criminal revision are being decided by this common judgment as all of them arise out of common judgment and order dated 31.8.1982 passed by the learned Addl. Sessions Judge, Nohar.
D.B. Criminal Appeal No. 338/82
(2). This appeal has been filed by the accused appellant Sita Ram against the judgment and order dated 31.8.1982 passed by the learned Additional Sessions Judge, Nohar District Sri-Ganganagar in Sessions Case No. 31/81 by which he convicted the accused appellant Sita Ram for the offence under Section 304-Part-II IPC and sentenced him to undergo six years’ R.I. and to pay a fine of Rs. 500/-, in default of payment of fine, to further undergo three months R.I.
(3). It may be stated here that by the same judgment, the learned Addl. Sessions Judge acquitted the present accused appellant Sita Ram as well as other accused, namely, Gangaram, Hiralal and Malluram for the offence under Section 302 or 302/34 IPC.
(4). The facts giving rise to this appeal, in short, are as follows:-
On 27.10.1981 at about 9.45 PM, PW 4 Murli Dhar lodged an oral report (Ex. P/1) before PW 11 Gujai Singh, SHO, Police Station Nohar stating inter-alia that on that day at about 10.00 AM, when he was at his house, the accused Ganga Ram and Heeralal came to his house and stated that his son Satpal (PW 1) had teased their niece, who was daughter of accused Mallu Ram. It was further stated in the report (Ex. P/l) that on this, PW 4 Murli Dhar assured them to enquire about that incident as his son Satpal (PW1) had already gone to the field. Thereafter, both accused Ganga Ram and Heeralal went away. It was further stated in the report (Ex. P/l) that thereafter PW 4 Murli Dhar went to his son Satpal (PW 1) and asked about the alleged incident and upon this, his son PW 1 Satpal told him that he did not do anything with that girl, but only asked “how do you do”, Thereafter, PW 4 Murli Dhar sent one Manphool to call accused Mallu Ram, father of that girl, but he did not come. It was further stated in the report (Ex. P/l) by PW 4 Murli Dhar that on the same day at about 8.00 PM he and his wife Singari (hereinafter referred to as the deceased) and his sons Bhoop Singh (PW 5), Mangturam (PW 6) and Tikoo Ram (PW 2) were sitting in the court-yard and his son Satpal (PW 1) was firing crackers outside the house and when his son Bhoop Singh (PW 5) was going to the house of Kalu Ram, PW 3 Ram Kumar met him and asked that accused Heera Lal, Ganga Ram, Mallu Ram and Site Ram (present accused appellant) would beat PW 1 Satpal and thereupon, PW 5 Bhoop Singh rushed to bring back PW 1 Satpal in his house, but in the meantime, the accused appellant Sita Ram and other accused Heera Lal, Ganga Ram and Mallu Ram cried “Mar-lo Mar-lo” and hearing these cries, deceased Singari came out from the house and enquired as to what was going on. Thereupon, the accused appellant Sita Ram, who was having a kasia in his hand, gave a kasia blow on the head of deceased, as a result of which, she fell down and later on died.
On this report (Ex. P/l), PW II Gajai Singh registered the case and started investigation. During investigation, post mortem of the body of the deceased Singari was got conducted by Dr. Rajendra Kumar Gupta (PW 12) and the post mortem report is Ex. P/l 5. The accused appellant Sita Ram was arrested through Ex. P/10 and the kasia was got recovered from him through Ex. P/6.
After usual investigation, the police submitted challan against the accused appellant Sita Ram as well as accused Mallu Ram, Ganga Ram and Heeralal for committing offence under Section 302, 34 IPC in the Court of Magistrate and, thereafter, the case was committed to the Court of Session.
On 4.1.1982, the learned Additional Sessions Judge, Nohar framed the charges under sections 302 alternatively 302/34 |PC against the accused appellant Sita Ram and other accused Mallu Ram, Ganga Ram and Heeralal and the same were read over and explained to them. They pleaded not guilty and claimed trial.
In support of is case, the prosecution examined as many as 12 witnesses and exhibited several documents. Thereafter, the statements of the accused, appellant Sita Ram and other accused Mallu Ram, Ganga Ram and Heeralal under Section 313 Cr.P.C. were recorded and no evidence, was led by them in defence.
After conclusion of trial, the learned Additional Sessions Judge, Nohar, through judgment and order dated 31.8.1982 acquitted all the four accused Sita Ram (present accused appellant), Mallu Ram, Ganga Ram and Heeralal of the charges for the offence under Sections 302 alternatively 302/34 IPC, but convicted the present a’ccused appellant Sita Ram for the offence under Section 304 Part-11 IPC and sentenced him in the manner as indicated above.
Aggrieved from the said judgment and order dated 31.8.1982 passed by the learned Additional Sessions Judge, Nohar, this appeal has been preferred by the accused appellant Sita Ram.
(5). In this appeal, the main contention of the learned counsel appearing for the accused appellant Sita Ram is that the findings of the learned Addl. Sessions Judge, by which the accused appellant was convicted for the offence under Section 304 Part-II IPC, are wholly perverse one as even if the allegations made by the prosecution are taken to be correct, the offence against him does not travel beyond the scope of Section 325 IPC and thus, the accused appellant Sita Ram should have been convicted under Section 325 IPC and not under Section 304 Part-II IPC and if this Court comes to the conclusion that he was going to be convicted under sections 325 IPC, then, he may be sentenced to the period already undergone by him as he has already served out the sentence of about 11 months.
(6). We have heard the learned counsel for the accused appellant and the learned Public Prosecutor and perused the record of the case.
(7). To appreciate the above argument of the learned counsel for the accused appellant, first we would like to see the medical evidence in the present case.
(8). The post mortem report of the deceased is Ex. P/15 and the post mortem of the dead body of the deceased was conducted by Dr. Rajendra Kumar Gupta (PW12).
(9). PW 12 Dr. Rajendra Kumar Gupta in his statement recorded in Court on 18.8.1982 has stated that on 28.10.1981, he was Medical Jurist in the Government Hospital and on that day, he conducted the post mortem of the dead body of the deceased and found the following injuries:-
1. Lacerated wound 2″ x l/4″ bone deep on the left parietal region. Post bone depressed oblique.
2. Bruise 3 1/2″ x 1″ on the left knee Ant. with Abrasion Ant.
3. Abrasion 1/4″ x 1/4″ on the right knee front Ant. Left eye black. Eyes closed.
He has further stated that after opening the head of the deceased, he found a fracture in the fronto parietal bone.
He has further stated that the cause of death of the deceased was intracrenial haemorrhage due to blunt weapon on the skull. He has proved the post mortem report Ex, P/15.
(10). Thus, from the statement of PW. 12 Dr. Rajendra Kumar Gupta, it appears that death of the deceased was homicidal one and the deceased died because of intracrenial haemorrhage due to fracture on the skull.
(11). In this case, PW 1 Satpal, PW 2 Tikuram, PW 5 Bhoop Singh and PW 6 Mangutram are the sons of the deceased and PW 4 Murli Dhar is the husband of the deceased and PW 3 Ram kumar is an independent witness and they all have categorically stated in their statements recorded in Court that kasia blow on the head of the deceased was given by the accused appellant Sita Ram on 27.10.1981 and as a result of that kasia blow, the deceased died on 28.10.1981 and, therefore, the learned Addl. Sessions Judge came to the conclusion that the accused appellant Sita Ram has committed the offence of culpable homicide not amounting to murder punishable under Section 304 Part-II IPC as the learned Addl. Sessions Judge did not find intention on the part of the accused appellants Sita Ram.
(12). The question for consideration is whether the above findings of the learned Addl. Sessions Judge are liable to be confirmed one or not or whether the act of the accused appellant Sita Ram does not travel beyond the scope of Section 325 IPC or not, especially keeping in mind the fact that the accused appellant Sita Ram gave only one kasia blow on the head of deceased, as a result of which she died and there was fracture in the fronto parietal bone.
(13). To appreciate the contention of the learned counsel for the accused appellant, the legal position as is found in Sections 299, 300, 302 and 304 IPC, has to be seen.
(14). Section 299 IPC defines culpable homicide as the act of causing death (i) with the intention of causing death, or (ii) with the intention of causing such bodily injury as is likely to cause death, or (iii) with the knowledge that such act is likely to cause death.
(15). The first and second clauses of the Section refer to intention apart from knowledge and the third clause refers to knowledge apart from intention.
(16). The word ‘homicide’ has been derived from Latin terms homo (man) and cido (cut). Homicide is the killing of a human being by a human being.
(17). Whenever a Court is confronted with the question whether the offence is ‘murder’ or ‘culpable homicide not amounting to murder’ on the facts of a case, it will be convenient for it to approach the problems in three stages. The question to be considered at the first stage would be whether the accused has done an act by doing which he has caused the death of another. Proof of such casual connection between the act of the accused and the death, lends to the second stage for considering whether the act of the accused amounts to ‘culpable homicide’ as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 IPC, is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of ‘murder’ contained in Section 300. If the answer to this question is in the negative the offence would be ‘culpable homicide not amounting to murder’, punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the Exceptions enumerated in Section 300, the offence would still be ‘culpable homicide not amounting to murder’, punishable under the first part of Section 304 IPC.
(18). Section 300 IPC deals with murder. It does not define ‘murder’. Section 299 explains ‘culpable homicide’. This Section sets out circumstances when culpable homicide amounts to murder and when it does not amount to murder. Murder is an aggravated form of culpable homicide. The existence of one of the four conditions turns culpable homicide into murder while the special exception reduce the offence of murder again to culpable homicide not amounting to murder.
(19). Clause (c) of Section 299 and Clause (4) of Section 300 both require knowledge of the probability of the act causing death. Clause (4) is not intended to apply to cases in which a person intends to inflict an injury likely to cause death because the section speaks of knowledge and not intention.
(20). In judging of knowledge had by the accused, we must consider the circumstances; the blow that to one person, or under ordinary circumstances, may not, in the ordinary course of nature, be likely to cause death, may yet be imminently dangerous to another, or under special circumstances.
(21). Thus, the position in respect of offences under sections 302, 304 Part-1 and 304 Part-II IPC may be summarised as follows :-
1. That if the act of the accused is covered by Clauses First, Second and Third of Section 300 IPC, then it would amount to culpable homicide amounting to murder punishable under Section 302 IPC.
2. That if the act of the accused is covered by any of the Exceptions (Five Exceptions) of Section 300 IPC, then it would amount to culpable homicide not amounting to murder punishable under Section 304 Part-1 IPC.
3. That if the act of the accused is covered by Clause (4) of Section 300 IPC, then it would amount to culpable homicide not amounting to murder punishable under Section 304 Part-II IPC.
(22). Keeping the above legal position in mind, the facts of the present case are being examined.
(23). From perusing the FIR Ex. P/I and the statement of the witnesses, it appears that initially the accused appellant Sita Ram and other accused Mallu Ram, Ganga Ram and Heeralal wanted to beat PW 1 Satpal, but since the deceased intervened in the matter, the accused appellant Sita Ram gave a kasia blow on the head of the deceased, as a result whereof she died. In these circumstances, it cannot be said that there was any intention on the part of the accused appellant Sita Ram to murder deceased or the attack of the accused appellant Sita Ram cannot be termed as pre-meditated, but the alleged incident took place at the spur of moment and there was no intention on the part of the accused appellant to murder deceased. In other words, when element of intention is missing, knowledge on the part of the accused appellant can be attributed and this act of the accused appellant would be covered by Clause IV of Section 300 IPC, punishable under Section 304 Part-II IPC.
(24). thus, looking to the entire facts and circumstances of the case and the evidence on record and that the accused appellant gave one kasia blow on the head of deceased, it can reasonably be inferred that the accused appellant Sita Ram was having a knowledge that the injury which he was going to cause to the deceased, with a kasia, on her head, a vita! part of the body, was likely to cause her death, though without any intention to cause death or such injury as was likely to cause her death and therefore, in these circumstances, the offence would squarely fall under Section 304 Part-II IPC and thus, the accused appellant Sita Ram was rightly convicted under Section 304 Part- II IPC. In this respect, the following decisions of the Hon’ble Supreme Court may be referred to :-
(i) Sarup Singh v. State of Haryana (1)
(ii) Ramesh Vithalrao Thakre v. State of Maharashtra (2)
(iii) Mavila Thamban Nambiar v. State of Kerala (3)
(iv) State of UP v. Indrajeet @ Sukhatha (4)
(v) Sundaram v. State of Andhra Pradesh (5)
(25). So far as the argument of the learned counsel for the accused appellant that the offence does not travel beyond the scope of Section 325 IPC is concerned, the same cannot be accepted. While inflicting injury on the head of the deceased, the accused appellant must have had requisite knowledge that injury inflicted on head was likely to cause death and since there was fracture on fronto parietal bone, therefore, such type of injury cannot be contemplated or covered by Section 325 IPC and the accused appellant was rightly convicted under Section 304 Part-II IPC. In this respect, the decision of the Hon’ble Supreme Court in Tarsem Singh and Or. v. State of Punjab (6), may be referred to.
(26). For the reasons stated above, the findings of the learned Addl. Sessions Judge convicting the accused appellant Sita Ram for the offence under Section 304 Part-II IPC are liable to be confirmed and this appeal is liable to be dismissed.
(27). So far as the sentence of six years RI awarded to the accused appellant for the offence under Section 304 Part-II IPC is concerned, the same cannot be said to be severe, excessive or unreasonable and rather it appears to be just and proportionate to the offence found proved against him.
D.B. Criminal Appeal No. 66/83
(28). This appeal has been filed by the State of Rajasthan against the judgment and order dated 31.8.1982 passed by the learned Additional Sessions Judge, Nohar District Sri-Ganganagar in Sessions Case No. 31/81 by which he acquitted the accused Sita Ram, Gangaram, Hiralal and Mailuram for the offence under Section 302 or 302/34 IPC, but convicted the accused Sita Ram for the offence under Section 304 Part-II IPC and sentenced in the manner as indicated above.
(29). It may be stated here that this Court through order dated 21.2.1983 only allowed the application for leave to appeal in respect of accused Sita Ram and rejected the application for leave to appeal in respect of other accused persons, namely, Heeralal, Gangaram and Mailuram.
(30). In this appeal, it has been submitted by the learned Public Prosecutor that the accused Sita Ram has committed the offence punishable under Section 302 IPC and thus, he should have been convicted under Section 302 IPC in place of Section 304 Part-II IPC.
(31). For the reasons given above while deciding D.B. Cr. Appeal No. 338/82, it cannot be said that the accused Sita Ram has committed the offence punishable under Section 302 IPC. By causing head injury to deceased, the accused Sita Ram has committed the offence of culpable homicide not amounting to murder punishable under Section 304 Part-II IPC and therefore, he was rightly convicted under Section 304 Part-II IPC and thus, this appeal filed by the State of Rajasthan is liable to be dismissed.
D.B. Criminal Revision Petition No. 11/83
(32).’This criminal revision petition has been filed by the complainant Murli Dhar against the judgment and order dated 31.8.1982 passed by the learned Addl. Sessions Judge, Nohar with the prayer that the accused Sita Ram should have been convicted and sentenced under Section 302 IPC in place of 304 Part-H IPC.
(33). For the reasons given above while deciding D.B. Cr. Appeal No. 338/82, it cannot be said that the accused Sita Ram has committed the offence punishable under Section 302 IPC. By causing head injury to deceased, the accused Sita Ram has committed the offence of culpable homicide not amounting to murder punishable under Section 304 Part-II IPC and therefore, he was rightly convicted under Section 304 Part-II IPC and the sentence awarded to the accused Sita Ram is just and proportionate to the offence found proved against him and thus, this criminal revision petition filed by the complainant is liable to be dismissed.
In the result, the appeal filed by the accused appellant Sita Ram, the appeal filed by the State of Rajasthan and the criminal revision petition filed by the complainant Murli Dhar are dismissed. It is further directed that since the accused Sita Ram is on bail, he shall surrender before the learned trial court for serving out the remaining period of sentence.
