Gautam vs State of Rajasthan

Gopal Krishan Vyas, J—The instant criminal jail appeal has been filed by the accused appellant Gautam S/o Ganga Ram Meena against the judgment dated 17.8.2010 passed by the Addl. Sessions Judge (Women Atrocities Cases), Bhilwara (hereinafter referred to as the learned trial court for short) in Case No. 53/2006 whereby the learned trial court convicted the accused appellant for offence under Section 302 IPC but acquitted him for offence under Section 363, 366 and 376 IPC while giving benefit of doubt. The learned trial court imposed punishment for offence under Section 302 IPC for life imprisonment alongwith fine of Rs. 2000/- and in default of payment of fine to further undergo six months simple imprisonment. The learned trial court further passed an order that the period commencing from the date of arrest which is 7.5.2006 to 16.5.2006 and the period of judicial custody shall not be counted in the period of punishment.

As per the facts of the case, a written complaint (Ex. P/3) was submitted by PW-4 Mahaveer Prasad Sen before the SHO, Police Station Jahajpur, District Bhilwara in the Devli Hospital that his sister Ms. Indira aged about 13 years was forcibly kidnapped by Gautam Meena accused appellant and she is not traceable. It is further stated that Raja Ram brother of Gautam Meena came to his house on 16.1.2006 in the evening and informed that his brother Gautam Meena and your daughter Indira are in their house. Upon said information, his father Chauthmal and sister rushed to the house of Raja Ram and upon calling Gautam Meena to open the door, he come out and hit his father Chauthmal and inflicted injury by knife upon the chest of his father Chauthmal.

Due to the injuries caused by accused Gautam Meena blood came out and spread over the body of his father Chauthmal and he fell down. After the said incident, Gautam Meena ran away from the place of occurrence and went to the Police Station, Devli. Thereafter, police came on spot and took body of Chauthmal for treatment to the hospital but he died in the meantime, Gautam Meena forcibly take away his sister.

Upon aforesaid information the FIR No. 21/2006 was registered against the accused appellant for offence under Section 363, 366 and 302 IPC because due to injuries inflicted by the accused appellant, the father of the complainant Chauth Mal died.

The accused appellant Gautam Meena was arrested by the police on 7.5.2006 and after regular investigation the police file challan against the accused appellant Gautam Meena in the court of Judicial Magistrate, Jahajpur under Section 363, 366 and 302 IPC.

After filing challan case was committed to the Sessions Court for trial but later on case was transferred to the court of Addl. Sessions Judge (Women Atrocities) Cases, Bhilwara for trial.

In the trial the charges under Section 363, 366, 376 and 302 IPC on 25.1.2007 were framed. Thereafter, an opportunity was given to the prosecution to lead their evidence to prove the charge. In the trial statements of 25 prosecution witnesses were recorded to prove the case against the accused appellant and 27 documents were exhibited in the trial.

After recording evidence of prosecution the statement of the accused appellant were recorded under Section 313 Cr.P.C. in which he said that totally false case is registered against him. Nothing more said by him in the statement recorded under Section 313 Cr.P.C.

In defence two documents Ex. D/1 statement of Mahaveer Prasad given before the police and Ex. D/2 report given by Mahaveer Prasad SEn on 10.5.2006 were exhibited.

The learned trial court after hearing the final arguments in the case framed 4 points for adjudication, which reads as under:

After hearing final argument, the learned trial court acquitted the accused appellant for offence under Section 363, 366 and 376 IPC while deciding issue No. 1 and 2 in his favour but held accused appellant guilty for offence under Section 302 IPC while deciding issue No. 3 in favour of the prosecution and convicted the accused appellant with the punishment of life imprisonment alongwith fine of Rs. 2000/- vide judgment dated 17.8.2010.

In this jail appeal, the accused appellant is challenging the validity of conviction and punishment for offence under Section 302 IPC passed in the judgment dated 17.8.2010.

The learned amicus curiae counsel for the appellant vehemently argued that the finding given by the learned trial court against the accused appellant for offence under Section 302 IPC is totally perverse and contrary the evidence on record because even if it is presumed that whole prosecution story is true then also it is a case in which the accused appellant has wrongly been held guilty for offence under Section 302 IPC because the alleged incident took place in spur of moment and upon sudden provocation, therefore, the finding given by the learned trial court for offence under Section 302 IPC against the accused appellant deserves to be quashed and set aside.

The learned counsel for the appellant further argued that admittedly incident took placed in the house of appellant''s brother where deceased as well as the family members came there with weapons because the daughter of the deceased Indira, who belongs to Sen community got married with appellant, who belongs to Meena community. The family members of PW-9 Indira became angry due to marriage and they themselves came to the house of appellant with the intention to kill him and in the said incident the injuries were sustained to the deceased which resulted into death, therefore, it is not a case to hold the accused appellant guilty for offence under Section 302 IPC. More so, the case does not travel beyond offence under Section 304 Part I IPC.

The learned counsel for the appellant submitted that upon perusal of the post mortem report it is apparently clear that two injuries were found upon the body of deceased, therefore, it is obvious that there was no intention to kill the deceased Chauthmal who was father of PW-9 Indira with whom the appellant solemnized the marriage. In view of the above, it is submitted that finding arrived at by the learned trial court to convict the accused appellant for offence under Section 302 IPC is not sustainable in law because as per evidence on record the case cannot travel beyond offence under Section 304 Part I IPC.

While inviting attention towards the statement of PW-4 Mahaveer Prasad and PW-2 Raja Ram, so also, PW-9 Indira and submit that upon perusal of above statements, it will reveal that appellant has wrongly bee convicted for offence under Section 302 IPC because the incident took place in the house of brother of accused appellant for the reason that daughter of the ceased got married with the accused appellant who belongs to other caste. Therefore, sentence awarded to the accused appellant under Section 302 IPC may be quashed and set aside and it may be altered for offence under Section 304 Part I IPC looking to the nature of the injuries and incident.

Per contra, learned Public Prosecutor submits that it is a case in which prosecution has proved the case beyond reasonable doubt for committing offence under Section 302 IPC by leading evidence of eye witnesses, so also, on the basis of recovery of weapon, which is knife upon information given by the appellant under Section 27 of the Evidence Act, therefore, it cannot be said that any error has been committed by the learned trial court to convict the accused appellant for offence under Section 302 IPC.

Learned Public Prosecutor further argued that PW-9 Indira daughter of the deceased Chauthmal was minor and she was forcibly kidnapped by the accused appellant for the purpose of marriage and later on when it was informed by the brother of accused Raja Ram PW-2, the deceased Chauthmal alongwith his family members rushed to the house of Raja Ram where injuries were inflicted by the accused appellant by knife to the deceased, which resulted into death of Chauthmal and this fact is established by the prosecution by leading evidence of eye witnesses PW-2 Raja Ram, PW-9 Indira and 2 other witnesses, therefore, there is no question to disbelieve the testimony of these eye witnesses so as to acquit the accused appellant for the offence under Section 302 IPC. It is also submitted that intention can be gathered from the facts of the present case that accused appellant inflicted injury by knife upon the chest of deceased when he came in the house of Rajaram, brother of the accused appellant for rescue to her daughter, therefore, the prosecution has proved the case against the accused appellant for committing offence under Section 302 IPC beyond reasonable doubt. While inviting attention towards the recovery of knife, it is submitted that as per the information given by the accused appellant under Section 27 of the Evidence Act, the blood stained cloths and knife were recovered vide Ex. P/23 in front of two eye witnesses (Motbirs) namely Ram Narayan and Vijay Raj and statement of one of the Motbir PW-16 Vijay Raj recorded in the trial in which he has categorically stated that as per information given by the accused appellant in front of him knife, pen and shirt of the accused appellant were recovered and Ex. P/23 recovery memo was prepared in front of him, therefore, it is a case in which prosecution has proved the factum of recovery of weapon which is used by the accused appellant to cause injury. Further, it is submitted that in the FSL report human blood was found, which is evident from the report (Ex. P/27). On the basis of above, it is submitted by the learned Public Prosecutor that there is no force in this appeal so as to acquit the accused appellant from the offence under Section 302 IPC or to alter the punishment from Section 302 IPC to under Section 304 part I IPC. Hence, this jail appeal may be dismissed.

After hearing the learned counsel for the parties, we have minutely scanned the entire evidence and considered the facts of the case.

It is evident from the finding given in the judgment by the learned trial court that appellant was held guilty for offence under Section 302 IPC but acquittal for other offences under Section 363, 366 and 376 IPC while giving benefit of doubt.

In the arguments advanced by the counsel for the appellant it is nowhere argued that incident does not take place. More so, it is argued that accused appellant has been convicted erroneously for offence under Section 302 IPC because it is a case in which due to sudden provocation and spur of moment, the occurrence took place in which deceased Chauthmal died.

To consider above arguments, we have perused the statements of PW-3, Jainarayan, PW-4 Mahaveer Prasad and PW-9 Ms. Indira. None of the eye witness turned hostile, more so they supported the prosecution story. The PW-2 Raja Ram, brother of the accused appellant stated in the court as follows:

The above statements clearly speaks that information given by this witness to Chauthmal that your daughter is in house and you may take her from his house.

PW-9 Indira, minor daughter of the deceased is eye witness of the incident who has categorically stated in her statement that Gautam Meena inflicted injury by knife to her father in front of her and due to that injury my father died. The following statement is given by PW-9 Indira in the court, which reads as under:--

Meaning thereby, the aforesaid statement given by the eye witnesses loudly speaks that injuries were caused by the accused appellant to the deceased Chauthamal by knife and due to those injuries Chauthmal died. Similarly, other witnesses PW-3 Jainarayan, PW-4 Mahaveer Prasad Sen (author of the FIR) and PW-5 Madhu categorically said in their statements that incident took place in the house of Raja Ram where accused appellant inflicted injury by knife upon the chest of Chauthmal which resulted into death.

In our opinion the prosecution has led trustworthy evidence with regard to incident and recovery of weapon upon which blood was found, therefore, there is no question to hold that accused appellant is not guilty for offence under Section 302 IPC. More so, it is a case in which accused appellant forcibly abducted the minor daughter of the deceased and when the deceased Chauthmal father of girl PW-9 Indira went for rescue of her daughter, the injuries were caused by the accused appellant by knife and this fact is established by the prosecution by leading trustworthy evidence, therefore, there is no ground to disturb the finding arrived at by the trial court.

In our view no error has been committed by the learned trial court to convict the accused appellant for offence under Section 302 IPC because it is not a case of sudden provocation or a case of spur of moment. More so it is a case in which father of the girl has murdered by the accused appellant when he reached for rescue his daughter.

In view of the above, we are not inclined to interfere in the judgment impugned.

The learned counsel for the petitioner filed an application and made a request that in the judgment of the learned trial court dated 17.8.2010 the learned trial court has refused to extend the benefit of set off of the period in which accused remained in police custody and judicial custody under Section 428 Cr.P.C. while holding that the law of land is not applicable in the instant case passed in Bhimsen Vs. The State of Rajastan, (1977) CriLJ 696 and Bhaje Singh Vs. State of Rajasthan, (1996) 2 WLC 296 : (1995) 2 WLN 657 , therefore, the period of judicial custody and police custody cannot be adjusted, but the said order is erroneous in view of the judgment of the Hon''ble Supreme Court in the case of Ranjeet Singh v. State of Punjab reported in 2010 (3) CJ (Cri.) (SC) 763 in which it has been held by the Hon''ble Supreme Court that life convict is entitled to the benefit of set off under Section 428 Cr.P.C. against the sentence of life imprisonment while over rulling the decision of Kartar Singh.

In view of above discussion, while upholding the findings given by the learned trial court in the judgment of conviction under Section 302 IPC the sentence awarded to the accused appellant of life imprisonment with fine of Rs. 2,000/- is hereby confirmed, but the order for not granting set off of period of police custody and judicial custody passed by the learned trial court is hereby quashed while following the judgment of Hon''ble Supreme Court in the case of Ranjeet Singh (supra) and it is ordered that the accused appellant will be entitled for the benefit of set off under Section 428 Cr.P.C. and the period of police custody and judicial custody shall be counted for the purpose of punishment also.

With above directions, this jail appeal is hereby dismissed.