Bijjo alias Brij Kishore vs State of Rajasthan

Shiv Kumar Sharma, J.—This appeal impugns the judgment dated November 25, 2000 rendered by learned Special Judge, Dacoity Affected Area & Additional Sessions Judge, Dholpur in Sessions Case Nos. 41/1998 (47/1998), whereby the appellant (herein after described as ''accused'') was convicted for the offence u/s 302 IPC and sentenced to suffer Imprisonment for life and fine of Rs. 500/-, in default to further suffer rigorous Imprisonment for three months.

As per the prosecution story, while Pooran was at his field on November 7, 1997 the accused came over there, got Beedi and Match-box out of the pocket of Pooran and opened fire with the gun that hit right thigh and abdomen of Pooran who was taken to the Hospital. Injuries of Pooran were examined on November 7, 1997 by Medical Jurist at Dholpur and he was referred to Agra for treatment where he died on November 18, 1997. Case u/s 302 IPC was registered and after usual investigation charge-sheet was filed. In due course the case came up for trial before the learned Special Judge, Dacoity Affected Area & Additional Sessions Judge, Dholpur Charges under Sections 302 IPC and Section 3/25 Arms Act were framed against the accused, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 18 witnesses. In the explanation u/s 313 Cr. P. C., the accused claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing the final submissions convicted and sentenced the accused as indicated hereinabove.

It is contended by the learned counsel for the accused that the case does not travel beyond Section 304 Part II IPC for the reason that the incident occurred all of sudden and neither the accused had any motive nor intention to kill the deceased. The cause of death was septicemia and if proper treatment would be available, the deceased could have been saved.

Having scanned the material on record we noticed that according to injury report (Ex. P-2) drawn on November 7, 1997 by Dr. Ramesh Chand Goyal, Medical Jurist Dholpur (PW.2) Pooran sustained following injuries :--

"1. Gun shot injury on right thigh upper 1/3rd medially size 2, 1/2cm x 2cm x deep to muscle, direction of wound upward

Gunshot injury on Inquinal region 5 cm. x 2.1/2 cm x deep to muscle. Entering likely to be passage wound towards abdomen, going upward and medially in peritonial cavity & downward communicate with injury No. 1."

Pooran was referred to Agra for treatment where he died on November 18, 1997. Dr. V. P. Kulsrestha (PW. 15) performed autopsy on the dead body of Pooran. Following injuries were found on the dead body:

"1. Stitched septic wound 20 cm long on abdomen mid line.

Septic wound 5 cm x 3 cm x muscle deep on Rt. side upper part thigh inner side.

Septic wound 12 cm x 4 cm on Rt. thigh back middle

Abrasion 15 cm x 4 cm on Rt. thigh upper part outer side."

The cause of death as per post mortem report (Ex. P.4) was septicemia. In his deposition D. Kulsrestha stated that he got recovered a bullet from the dead body and had proper treatment been given to the deceased his life could have been saved.

Fact situation noticed by us may be summarised thus :--

(i) The occurrence took place suddenly.

(ii) There was no premeditation on the part of the accused and the quarrel really arose from a trivial issue.

(iii) The deceased died after 11 days of the occurrence and the cause of death was septicemia.

(iv) The autopsy surgeon deposed that the deceased could have been saved if proper treatment was given to him.

(v) The deceased although was admitted in the hospital for eleven days but it appears that he was not properly attended. Even the bullet was not removed from his body in his life time.

Having carefully analysed the evidence, we are convinced that the accused had no intention to kill the deceased but he certainly knew that the injury which was inflicted by him was likely to cause death. Looking to the fact that the incident occurred suddenly and arose from a trivial issue and also the fact that treating doctor did not give due attention to the deceased while he was alive, we are of the opinion that the accused is guilty of committing culpable homicide not amounting to murder punishable u/s 304 Part II IPC. The accused has been in continuous custody since January 1, 1998, therefore, the ends of justice would be met in sentencing him to the period already undergone by him in confinement.

For these reasons we partly allow the appeal of appellant Bijjo @ Brij Kishore and instead of Section 302 IPC we convict the appellant u/s 304 Part II IPC and sentence him to the period already undergone by him in confinement. The appellant, who is in jail, shall be set at liberty forthwith if not required to be detained in any other case.