Amba vs State of Rajasthan

Govind Mathur, J.—This appeal is directed to challenge the judgment and order dated 5.8.2006 passed by learned Additional Sessions Judge (Fast Track), Sirohi, convicting the accused appellant for the offences punishable under Sections 302, 341 and 323 Indian Penal Code and sentencing him as under:-

u/S. 302 IPC - Life imprisonment with fine of Rs. 5000/- and in default of payment of fine further to undergo six months additional rigorous imprisonment.

u/S. 323 IPC - One year''s simple imprisonment.

u/S. 341 IPC - One month''s simple imprisonment.

Briefly stated, facts of the case are that on 6.3.2004 at about 11:35 PM, Station House Officer of Police Station Rohida Camp Mata Tekri, Ghanchianadi, reduced the statement of Shri Babu son of Pabuji in writing, according to that complainant Babu was ''Patel'' of Gameti samaj of Ghanchianadi Bhula. Accused Amba son of Sangrama, resident of Ghanchianadi Bhula entered into wedlock with Kamla belonging to same ''gotra'' as of accused Amba. The marriage within the same ''gotra'' being prohibited, was not accepted by the society, thus, Amba was out casted and because of it he was keeping vengeance with Babu and his family. The day, being Holi festival, Babu paid visit to his sons and while returning to his own house at Borumbari Bhula at 09:00 PM, Amba son of Sangrama armed with Bow and Arrow and also a lathi, Khetia son of Dheera and Gokla Gameti resident of Doyatara intercepted him on way. The complainant was alleged to be responsible for out casting Amba and thereafter a lathi blow was given on his head by Amba. Hearing a call given by Babu, his three sons Nathia, Ramji and Jagga came towards the spot of occurrence to save Babu. Seeing them, Amba, Khetia and Gokla climbed on a hillock and threw stones towards them. Amba then shot arrow from bow that hit at the chest of Nathia. The accused persons immediately thereafter fled from the spot of occurrence. After some time Nathia died.

On basis of the statement, a first information report was registered and investigation commenced. A police report was filed against accused Gokla and Khetia and the case was proceeded against accused Amba as per Section 299 Cr.P.C., he being absconding.

The trial court framed charges against accused persons and on being denied the same, trial commenced as desired. Accused Gokla and Khetia came to be acquitted under a judgment dated 7.10.2004 passed by learned Additional Sessions Judge (Fast Track), Sirohi. After acquittal of accused Khetia and Gokla the present appellant was arrested and his case was committed to the court of Sessions. On 16.3.2005 a charge for commission of offence punishable under Sections 341, 323 and 302 Indian Penal Code was framed but the same was denied, hence trial commenced.

The prosecution supported its case by getting testimony of 14 witnesses examined, out of whom Babu (PW-4), Jagga (PW-3) and Ramaram (PW-5) were cited as eye witnesses. The prosecution also get several documents exhibited to substantiate the charge. An opportunity was accorded to the accused appellant as per provisions of Section 313 Cr.P.C. to explain the adverse circumstances and incriminating material available in the prosecution evidence. In general, accused termed the same false and claimed himself innocent. No evidence was adduced in defence. The trial court after examining the evidence available on record recorded the conviction and sentenced the accused accordingly.

In appeal, the only argument advanced by counsel for the appellant is that the trial court failed to appreciate the evidence available on record in correct perspective, thus, arrived at a wrong conclusion about involvement of the accused in an offence punishable u/s 302 Indian Penal Code. As per counsel for the appellant even by accepting the prosecution case in totality, the offence committed does not travel beyond an offence described u/s 304 part-I Indian Penal Code. It is asserted that deceased Nathia was having three injuries, all caused by one shot of arrow. The accused was not having any intention to kill Nathia and whatever happened that was nothing but a result of spontaneous circumstances.

Per contra, as per learned Public Prosecutor the accused gave a fatal injury at a very vital part of human body with a lethal weapon and this fact is sufficient to establish an offence punishable u/s 302 Indian Penal Code, thus, the trial court rightly recorded the conviction.

Heard counsel for the appellant as well as learned Public Prosecutor and also examined the evidence available.

As per the medical evidence available on record deceased Nathia was having three injuries, all caused by one shot of arrow said to be aimed by accused Amba. The cause of death given was hemorrhagic shock developed due to cardiac puncture. In view of the medical evidence available, there is no doubt about homicidal death of Nathia.

Counsel for the appellant quite fairly accepted that the arrow that hit to deceased Nathia was shot by the accused appellant. However, the submission is that the accused was having no intention to cause death of Nathia. As a matter of fact he at the first instance indulged in quarrel with Babu and the deceased came to the spot of occurrence after hearing the call given by his father Babu. As such, the intention for causing death is apparently absent.

The conviction of accused Amba is founded on the evidence adduced by eye witnesses. Jagga son of Babu (PW-3), real brother of deceased Nathia, stated that in the night of Holi his father came to see him and while returning to Borumbari Bhula, Amba, Khetia and Gokla intercepted him on way. Hearing a call given by his father this witness alongwith Nathia and Rama went to the place of occurrence where he saw Amba giving a lathi blow on the head of his father. The accused seeing Nathia, Rama and Jagga, climbed on a hillock. All the three sons of Babu chased him. On being chased, Amba shot an arrow that hit at the chest of Nathia who fell down and died at the spot.

Another eye witness Babu (PW-4) in detail narrated all the facts. As per this witness in the night of Holi he went to Ghanchianadi to pay visit to his sons. While returning to Borumbari from Ghanchianadi, accused Khetia, Gokla and Amba intercepted him on way and Amba gave a lathi blow on his head. On giving a call, Nathia, Jagga and Rama came towards the spot of occurrence. On seeing these three persons, Amba, Gokla and Khetia climbed on a hillock. Nathia, Jagga and Rama chased them. Nathia was in front and ahead to two other sons. Nathia, Jagga and Rama asked the reason for giving lathi blow to Babu. Amba then shot an arrow that hit at the chest of Nathia. Nathia died at the spot due to the injury caused by arrow.

The third eye witness Ramaram (PW-5) also narrated the facts which are in the same terms as given by Jagga (PW-3).

Parsaram (PW-9) narrated all the steps taken during the course of investigation being the investigating officer.

From examination of the entire evidence it is apparent that the accused at the first instance intercepted way of Babu and held him responsible for out casting him. He gave a lathi blow to Babu. He did not use bow and arrow at that time. It appears that the accused was not intending to kill Babu but was just quarrelling with him due to vengeance. On hearing a call made by Babu, his three sons came at the spot and just by seeing these three persons the accused alongwith his friends climbed on a hillock. The three sons of Babu including deceased Nathia chased him, therefore, he shot an arrow that hit at the chest of Nathia.

The minute examination of the facts sated by the eye witnesses indicates that the accused though was having a lethal weapon with him, did not use that at first instance. He used bow and arrow only on being chased by Nathia, Jagga and Rama. This fact clearly indicates that he was not intending to kill anyone of them but was interested to fled from the spot. True it is, that arrow is a lethal weapon and the accused must be having knowledge that it may cause such a bodily injury that may cause death, but no material is available on record to establish his intention to cause death of Nathia. On the contrary the evidence available indicates that the fatal injury was caused by the accused in spur of circumstances. Looking to the evidence available, we are of the view that accused Amba has erroneously been convicted for an offence punishable u/s 302 Indian Penal Code. However, the evidence available establishes commission of an offence punishable u/s 304 part-I Indian Penal Code by him. Accordingly, this appeal is allowed in part. The conviction of accused appellant Amba for the offence punishable u/s 302 Indian Penal Code is set aside. His sentence against the offence aforesaid too is set aside. The accused appellant is convicted for the offence punishable u/s 304 part-I Indian Penal code and is sentenced to undergo rigorous imprisonment for a term of ten years with a fine of Rs. 1000/-. In the event of failure in payment of fine, he shall be liable to further undergo two months simple imprisonment. The conviction of the accused appellant for the offences under Sections 323 and 341 Indian Penal Code is affirmed.