Hira @ Hira Lal S/o Bhikha Ji vs State of Rajasthan

The instant criminal appeal has been filed by the accused-

appellant namely Hira @ Hira Lal under Section 374(2) Cr.P.C.

against the judgment dated 31.03.2009 passed by the learned

Addl. Sessions Judge (FT), Sirohi in Sessions Case No.37/2008

(28/2008) by which the learned trial court convicted and

sentenced the accused-appellant as under :

Section 302 IPC-- Life Imprisonment with a fine of Rs.2,000/- and in default of payment of fine to further undergo six months additional imprisonment.

Section 449 IPC-- 10 years R.I. with a fine of Rs.1,000/- and in default of payment of fine to further undergo three months additional imprisonment Both the sentences were ordered to run concurrently.

Brief facts of the case are that on 17.06.2008, the

complainant Uka Ram (PW-11) submitted a written report (Ex-

P/29) at Police Station Revdar, District Sirohi in which it has been

alleged that on that day he went to village Nimbaj for purchasing

some goods. Thereafter he went to the house of his mother

Reshma along with his sister Chothi. When they reached near the

house of his mother Reshma, they saw Hira, who is son-in-law of

his sister Hawa, coming out from his mother''s house and Hira told

them that their mother is lying dead in the house and ran away.

Hira''s cloths and hands were stained with blood. Thereafter they

entered in the house and saw that his mother Reshma was lying

dead with blood on her body. Mohan Bheel and Ishu Ba moyala

also saw Hira coming out from the house of his mother and ran

away. Hira was addict of wine, he always demanded money from

his mother and sister, when they refused he gave beating them.

On this written report (Ex. P/29), the SHO Police Station

Revdar registered a case as C.R. Case No.58/2008 for offence

under Sections 302 and 452 IPC and started investigation. During

the course of investigation, the Police arrested the accused-

appellant Hira @ Hira Lal. After due investigation, the Police filed

challan against the accused-appellant for the offence under

Sections 302 & 449 IPC in the Court of learned Judicial Magistrate,

Revdar. Thereafter the case was committed for trial before the

Court of District and Sessions Judge Sirohi. Later on the case was

transferred to the Court of learned Additional Sessions Judge (Fast

Track), Sirohi.

The learned trial court framed the charges for offence under

Sections 302 & 449 IPC against the accused-appellant. The

prosecution examined as many as 13 witnessed in all. The

statement of the accused-appellant was recorded under Section

313 Cr.P.C. No witness was examined on the defence side.

After conclusion of the trial and hearing the arguments of

both the parties, the learned Additional Sessions Judge (Fast

Track), Sirohi vide his judgment dated 31.03.2009 convicted the

accused-appellant for the offence under Sections 302 & 449 IPC

and passed the sentences mentioned above. Being aggrieved by

this judgment, the accused-appellant preferred the present appeal

before this Court.

Mr. Praceep Choudhary, counsel appearing for the accused-

appellant has vehemently argued that in this case there is no

motive of the occurrence and the occurrence has taken place at

about 4 O''clock and FIR in this case has been registered at about

6:15 PM. The witnesses in their statements deposed that the

accused-appellant caught hold on the spot but according to the

arrest memo (Ex.P/4) arrest of the accused-appellant was shown

on 17.06.2008 at about 9 PM. After the arrest, the police

recovered blood stained shirt and pant of the accused-appellant.

After some time the accused-appellant gave an information to the

police and in pursuance of the said information, the Police

recovered one blood stained wooden stick on 20.06.2008. The

recovery is a delayed one and do not connect against the accused-

appellant and from the perusal of the statements of the witnesses,

there are material contradictions, omissions and improvement and

they are not reliable witnesses. Hence, the accused-appellant

deserves to be acquitted for the offence under Sections 302 & 449

IPC.

In the alternative, it has been argued that according to the

postmortem report of the deceased Reshma, she sustained total

six injuries. Out of which, five injuries are on non-vital part of the

body and only one injury is on the vital part of the body. Hence,

there is no intention of the accused-appellant to kill the deceased

Reshma. The cause of death of the deceased Reshma is due to

excessive bleeding. In view of above, the offence does not travel

beyond Section 304 Part I IPC.

Per contra, learned Public Prosecutor has vehemently argued

that the accused-appellant was seen by the witnesses when he

was coming out from the house of the deceased Reshma and on

the same day he was arrested by the Police with blood stained

cloths. After the arrest, the accused-appellant gave an information

to the Police and in pursuance to the said information, one blood

stained wooden stick was recovered and according to the FSL

report, the blood found on the recovered articles was matched

with the blood group of the deceased Reshma. Hence this is a well

proved case against the accused-appellant.

Heard the learned counsel for the accused-appellant and the

learned Public Prosecutor and perused the impugned judgment as

also carefully gone through the record.

It has not come on record that there was any motive of the

accused-appellant to kill the deceased Reshma. Without any

motive it cannot be said that there was any intention of the

accused-appellant to kill the deceased Reshma. PW-1 is Jabra Ram

who was Motbir in this case. PW-2 is Suresh who was also a Motbir

in this case. PW-3 is Bhawani Singh, who only deposed in his

statement that somebody informed him with regard to the murder

of Reshma and he telephonically informed at the police station,

Revdar about the murder. PW-4 is Dilip Kumar, who was a

photographer. PW-5 is Dinesh who was a shopkeeper and he

identified the cloths of the accused-appellant, which were sold by

him to the accused-appellant about five months ago. PW-6 is Kalu

Ram, who is a Police Constable. PW-7 is Dr. Dinesh Kumar

Sharma, who conducted the autopsy of the dead body of the

deceased Reshma and prepared the postmortem report. He found

the following injuries on the body of the deceased Reshma :

"VERNACULAR MATTER OMITTED"

PW-8 is Jaisaram, who was a Motbir in this case. PW-9 is

Phularam, who was a constable. PW-10 is Yushuf Bhai who was a

last seen witness and he deposed in his statement that he along

with Mohan was standing there and saw the accused-appellant

Hira with blood stained cloths coming out from the house of the

deceased. PW-11 is Uka Ram who lodged the First Information

Report at the Police Station Revdar and he was also a last seen

witness as he also saw the accused-appellant Hira with blood

stained cloths coming out from the house of the deceased. In his

cross-examination he deposed that he received an information

only then he went to the house of the deceased where so many

persons had already gathered there and Hira was caught hold by

the villagers. So according to this witness, he reached on the spot

after the occurrence. PW-12 is Smt. Chothi and she deposed in

her statement that when she reached near her mother''s house,

she saw the accused-appellant Hira with blood stained cloths

coming out from the house of her mother. PW-13 is Bagh Singh,

who was Sub-Inspector and investigating officer in this case.

These are the total prosecution witnesses in this case. According

to the statement of the witnesses, it has not come on record that

there was any motive of the accused-appellant to kill the deceased

Reshma. Without any motive, it cannot be said that the accused-

appellant had any intention to kill the deceased. The accused-

appellant was arrested on the same day and the blood stained

shirt and pant of the accused-appellant were recovered. After

three days, one blood stained wooden stick was also recovered on

the information of the accused-appellant. According to the FSL

report, the blood found on these articles was the blood of the

deceased Reshma. Hence, the prosecution story is corroborated

with the statements of the witnesses as well as with the recovery.

Hence the case of the prosecution was proved beyond reasonable

doubt.

On the alternative, the prayer was made by the counsel for

the accused-appellant that looking to the nature of injuries

inflicted upon the dead body of the deceased, out of six injuries,

five injuries were on non-vital parts of the body and only one

injury was on the vital part of the body of the deceased, the case

may travel under Section 304 Part I IPC

The Hon''ble Supreme Court in the case of State of

Himmachal Pradesh Vs. Ram Pal, reported in 2006 (2) SCC (Cri.)

165, gave following verdict to alter the conviction from offence

under Section 302 IPC to Section 304 Part-I of IPC, the paras nos.

5 to 8 of the said judgment are as follows:

"5. Having perused the record for the limited purpose of finding the nature of offence, we see that it is clear from the evidence of PW- 3 himself that he and Jaiwant consumed liquor before going to the tea stall of the respondent herein to demand the money which was due to him and when they reached there the deceased went inside the tea stall and started quarreling with the accused persons. During the said quarrel it is stated that the deceased called the accused persons as "cheat" and "beiman" and the quarrel then spilled outside the stall at which point of time a stick that was carried by Choudhary Ram was snatched by PW- 3, in the process Choudhary Ram got injured and fell down. Here we must notice the case of the defence is that PW- 3 assaulted Choudhary Ram which caused him facial injury and noticing his father being assaulted the respondent intervened and assaulted PW- 3 first with a knife and then assaulted the deceased twice on his back.

On the facts of this case whichever version we take it is clear that it is the deceased and PW- 3 after consuming liquor went to the tea stall of the accused. When the deceased went inside and abused the accused, the said verbal quarrel then spilled outside the shop when Choudhary Ram was injured on the fact either intentionally or otherwise by PW- 3. It is at that time the respondent stabbed PW--3 and the deceased. From the above facts stand proved are (a) the deceased went with PW- 3 to the shop of the accused; (b) picked up an argument during which he abused the accused; (c) Choudhary Ram was injured first and then the respondent stabbed PW- 3 and the deceased; (d) injury was inflicted on the back of the deceased.

On the above facts we are of the opinion that the High Court was justified in altering the sentence from Section 302 IPC to Section 304 Part I IPC. We are also in agreement with the finding of the High Court that sentence of over 4 years'' RI suffered by the respondent meets the ends of justice.

For the reasons stated, this appeal fails hence dismissed."

In the case of Arjun Vs. State of Maharasthra reported in

2012 Cr.L.R. (SC) 506, the Hon''ble Supreme Court gave following

verdict:

"17. Considering the background facts as well as the fact that there was no premeditation and the act was committed in a heat of passion and that the appellant had not taken any undue advantage or acted in a cruel manner and that there was a fight between the parties, we are of the view that this case falls under the fourth exception to Section 300 IPC and hence it is just and proper to alter the conviction from Section 302 IPC to Section 304 Part 1 IPC and we do so. 18. We are informed that the appellant is in custody since 30.07.2003. In our view, custodial sentence of 10 years to the accused-appellant accordingly. The appeal is accordingly disposed of, altering the sentence awarded."

In the case of Sudhakar Vs. State of Maharasthra reported in

(2012) 9 SCC 725, the Hon''ble Supreme Court held as under:

Whatever be the subsequent versions made by P.Ws 1 and 2 before the Court, it came out in evidence that at the time of occurrence there were only three persons, namely, the appellant, P.W.1 and the deceased. The admission of P.W.1 that the deceased had drinking habit and that whenever he was under the influence of liquor he used to create a ruckus in the house was a factor which had to be necessarily borne in mind while considering the offence alleged and proved against the appellant. Though there is variation in the version of P.W.1, as between the complaint and her evidence before the Court, going by the evidence available on record, the conclusion of the Trial Court that the appellant was responsible for the death of the deceased is unassailable. Apart from the exclusive presence of the appellant with a weapon in his hand as deposed by P.W.2, the other two persons were the deceased and P.W.1. The said conclusion of the Trial Court as well as that of the High Court cannot be doubted. Further the report of the chemical analysis Exhibits 35 and 36 also disclosed that the blood stained clothes of the appellant matched with the blood group of the deceased which were found on the clothes of the deceased himself. Therefore, there was conclusive proof to hold that it was appellant who was responsible for the single stab injury inflicted upon the deceased with the aid of the knife seized under Exhibit-47.

Having reached the above conclusion, the only other question raised was as to whether there is any mitigating circumstance in order to hold that the offence would fall under any of the Exceptions to Section 300 of IPC to state that it was a case of culpable

homicide not amounting to murder."

The Hon''ble Supreme Court in the case of Dilip Kumar

Mondal & Anr. Vs. State of West Bengal, reported in 2015 (2) SCC

(Cri.) 318 held as infra: -

"24. In order to invoke Exception 4 to Section 300 Indian Penal Code, it must be further shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The Appellants are said to have inflicted injuries with henso and dau. By a perusal of Ext. P6 post-mortem certificate, it is seen that the deceased sustained one incised injury on the back which has caused injury to scapula and spinal cord and another incised wound over the back just below the right scapula causing injury to the right lung and pleura. Insofar as the injuries caused to Ranjit Debnath and Santosh Debnath, there is no sufficient evidence as to the alleged injuries caused to them. As far as PW- 10-Nikhil Debnath is concerned, he was discharged from the hospital after giving first aid treatment indicating thereby that the injury was not grievous. Considering the injuries, in our view, it cannot be said that the accused have taken undue advantage of the situation. The incident was not premeditated and the scuffle between the parties led to the causing of injuries to the deceased Nripen Debnath and considering the circumstances of the case, in our view, the offence would fall Under Section 300 Indian Penal Code Exception 4 and the conviction of the Appellants is to be modified and altered Under Section 304 Part I IPC ."

In the case of Arjun & Anr. Vs. State of Chhattishgarh the

Hon''ble Court held as infra:

"22. The accused, as per the version of PW-6 and eye witness account of other witnesses, had weapons in their hands, but the sequence of events that have been narrated by the witnesses only show that the weapons were used during altercation in a sudden fight and there was no pre- meditation. Injuries as reflected in the post-mortem report also suggest that appellants have not taken undue advantage or acted in a cruel manner. Therefore, in the fact situation, exception (4) under Section 300 IPC is attracted. The incident took place in a sudden fight as such the appellants are entitled to the benefit under Section 300 exception (4) IPC . 23. When and if there is intent and knowledge, then the same would be a case of Section 304 Part I IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II IPC. Injuries/incised wound caused on the head i.e. right parietal region and right temporal region and also occipital region, the injuries indicate that the appellants had intention and knowledge to cause the injuries and thus it would be a case falling under Section 304 Part I IPC. The conviction of the appellants under Section 302 read with Section 34 IPC is modified under Section 304 Part I IPC. As per the Jail Custody Certificates on record, the appellants have served 9 years 3 months and 13 days as on 2nd March, 2016, which means as on date the appellants have served 9 years 11 months. Taking into account the facts and circumstances in which the offence has been committed, for the modified conviction under Section 304 Part I IPC, the sentence is modified to that of the period already undergone. 24. In the result, conviction of the appellants under Section 302 IPC read with Section 34 IPC is modified as conviction under Section 304 Part I IPC and the sentence is reduced to the period already undergone and these appeals are partly allowed accordingly. The appellants are ordered to be released forthwith unless required in any other case. 25. Fee of the learned Amicus is fixed as per Rules."

In view of the above discussion, while following the law laid

down by the Hon''ble Supreme Court and upon the fact that there

is no evidence of intention or motive on the part of the accused

appellant for causing death of the deceased, the occurrence took

place due to anger in spur of the moment, therefore, the prayer of

the accused appellant deserves acceptance.

Consequently, this criminal appeal is partly allowed. The

conviction and sentence passed by learned Addl. Sessions Judge

(Fast Track), Sirohi vide judgment dated 31.03.2009 for offence

under Section 302 IPC is hereby altered from the offence u/s 302

IPC to Section 304 Part-I of IPC. While enhancing the amount of

fine from Rs.2,000/- to Rs.20,000/-, the sentence of life

imprisonment is hereby reduced to 10 years'' R.I. Upon depositing

the amount of fine, the same shall be disbursed to the legal heirs

of deceased. The conviction and sentence recorded by the trial

court for the offence under Section 449 IPC does not call any

interference and is maintained.