Kana Ram vs State of Rajasthan

Kanta Bhatnagar, J.—In a trial for the offence u/s 302 IPC the appellant was convicted for that charge and sentenced to imprisonment for life. Feeling dissatisfied by his conviction and sentence the appellant has preferred this appeal in this Court.

Briefly stated that facts of the case revealed from the First Information Report and the evidence adduced by the prosecution witnesses are that the marriage ceremony of the daughter of Bhagirath PW 5 was performed at village-Kheruwala. The bridal procession had come from village-Fajuwala and appellant Kanaram was a member of the bridegroom''s party. On March 22, 1974 at 9.30 a.m. was the ceremony of ''sumathani'' (the function of farewell to the bride and the bridal procession). Bhagirath PW 5 had employed Sukhbir PW 3 and deceased Nakli and his wife Smt. Premi PW 4 to clean the utensils. At 9 30 a.m. deceased Nakli and Sukhbir PW 3 were going outside to throw a bucketfull of water used for cleaning the utensils. At that time appellant Kana Ram fired a shot which hit Nakli. Nakli fell on the ground and succumbed to the injuries sustained by him. On hearing the noise Nakli''s wife and other people reached there. Kana Ram took to heals along with the pistol, Sukhbir PW 3 immediately rushed to the Police station Sadulsahar and lodged the report Ex.P 9 before SHO Bhanwar Lal PW 6. Meanwhile Budharam PW 2 and a few others chased the appellant and succeeded in apprehending him. The appellant is said to have damaged the pistol by striking it against a stone. Bhanwar Lal PW 6 SHO went to the site and arrested the accused-appellant. He ceased the pistol and the licence in the name of the appellant. The pistol was sealed. Bhanwarlal PW 6 SHO then went to the site of occurrence and saw the dead body of Nakli. He conducted necessary investigation at the site. Dr. Jaswant Singh conducted the autopsy over the dead body of Nakli and opined that the cause of death was pistol injury sustained by him. The pistol, cartridge and the blood stained clothes of Nakli were sent to Forensic Expert and Chemical Examiner.

Upon completion of necessary investigation charge sheet against the appellant was filed in the Court of Munsif and Judicial Magistrate, Hanumangarh. The learned Magistrate committed the case to the Court of Additional Sessions Judge, Hanumangarh for trial. The learned trial Judge chargesheeted the appellant u/s 302 IPC and recorded his plea. The appellant denied the charges and claimed to be tried. Six witnesses were examined from the prosecution side. The appellant in his statement u/s 313 of the Code of Criminal Procedure stated that he had not fired the shot with intention to commit the murder of Nakli rather he along with others were firing the shots in the air at the time of ''Sumathani''. That after firing one or two shots he was loading the pistol. At that time the pistol accidentally went off and the bullet hit Nakli. That he felt perplexed and ran away towards the bus-stand and was apprehended. He has denied the presence of Sukhbir PW 3 and Smt. Prema FW 4 at the site. He also stated that he had no enmity with the deceased. The learned trial Judge relied on the evidence of Sukhbir PW 3 and Smt. Prema PW 4 on the point that in the evening previous to the day of occurrence appellant had used abusive language towards Nakli and then at the time of ''Sumathani'' caused the murder of Nakali by voluntarily shot. The learned trial Judge, therefore, held the prosecution case established and passed the judgment of conviction and sentenced the appellant as stated earlier.

We heard Mr. R.N. Bishnoi, learned Counsel for the appellant and Mr. UCS Singhvi, learned Public Prosecutor for the State and carefully perused the record of the case.

In this appeal Mr. R N. Bishnoi, learned Counsel for the appellant has confined his arguments to the nature of the offence only. It has been vehemently emphasized by Mr. Bishnoi that even if the prosecution case is taken to be true, the case of the appellant does not travel beyond Section 304A IPC. The argument advanced is that the appellant had no enmity with the deceased and there is no convincing evidence about any abusive language being used by the appellant to Nakli on the previous evening and, therefore, the case was of accidental fire which unfortunately led to the death of Nakli.

Mr. UCS Singhvi, learned Public Prosecutor controverted the contention on the ground that from the statements of Sukhbir (PW 3) and Smt. Prema (PW 4) it is evident that because of some unknown quarrel on the previous day, the appellant hatched enmity towards Nakli and on the next day committed his murder.

So far as the cause of death is concerned there is no dispute. The appellant has admitted that bullet discharged from his pistol hit Nakli. Cause of death of Nakli being the pistol shot injury of which the appellant was the author, the pertinent question to be determined is as to whether it was a voluntary act of the appellant with an intention to cause the murder of Nakli or the pistol went off accidently and unfortunately hit the deceased. The learned Public Prosecutor has laid much emphasis on the opinion of the expert that the chances of the pistol going off accidentally were not much. It is relevant to note that the prosecution case is that after the incident the appellant had damaged the pistol by striking it against stone. If that was so, then the pistol seized and sent to the Forensic Expert was not in the same position in which it was at the time of the incident. It is also to be noted that the expert has not totally ruled out the possibility of the pistol going off accidentlly.

The important point for consideration is whether there was any quarrel between the accused and the deceased so as to lead the latter to take revenge by firing the shot towards the former. The only evidence on this point is that of Sukhbir (PW 3) and Smt. Prema (PW 4).

The statement of Sukhbir (PW 3) is of peculiar nature. He has denied most of the contents of the first information report and has gone even to that extent that he was not knowing the name of the appellant when he lodged the report in which the name of the appellant appears. According to him the Station House Officer on reaching the site has interrogated the persons assembled there and then recorded the information.

Be it as it may the important point to be noted is that the First Information Report Ex.P 9 does not contain anything regarding the alleged quarrel between the accused and the deceased on the previous evening and the natural explanation for this omission is that the SHO might not have written so. If abusive language would have been used by the appellant to Nakli on the previous evening and that according to the witness Sukhbir (PW 3) might be the cause of crime he would not have missed that fact while narrating the First Information Report. If his version that the FIR was written after SHO reaching the site is taken to be true, then there was further chances of his recollecting the fact even if initially he forgot it.

Smt. Prema (PW 4), the wife of the deceased has only stated that somebody abused her husband a day before the incident and that man was the accused in the dock. In cross-examination she admitted that she was not knowing the person previously nor was she asked to identify him any where before the trial.

At a place where marriage ceremony is held a good number of persons must naturally be present but there is not a single witness corning forth to state anything about any abusive language being used by the appellant to Nakli. Even Sukhbir (PW 3) and Smt. Prema (PW 4) have not stated as to what was the reason for the appellant abusing Nakli nor did they say that they had complained to Bhagirath (PW 5) about it. Prema has not also come with the case that the person abusing her husband had threatened to kill her husband. If there would have been any quarrel it would not have missed the knowledge of other persons. If the intention of the appellant would have been to kill Nakli, he would not have waited till the next morning to fire the shot at a time when a number of persons would have been in a position to view his act.

It is human nature that in a pre-planned murder the culprit ordinarly take cares to commit the offence at a time and place when and where his action may not be visible to others.

Sukhbir (PW 3) has not stood the cross-examination well and his testimony on all points stand shattered in cross-examination Smt. Prema (PW 4) was not eye witness to the occurrence and as stated earlier nothing can be known from her evidence about the alleged abuse by the appellant to Nakli.

As such we do not agree with the learned trial Judge that there was any cause or motive for the appellant to commit the henious crime.

It has come from the statements of the prosecution witnesses that on the day of the marriage as well as at the time of ''sumathani'' the pistols were fired. That in the villages the bridegrooms party being in a hilarious mood gives expression to their delight by firing the shots in the air and that was being so done at the time of ''sumathani'' function on the day of the incident.

It is relevant to observe that the only eye witness to the occurrence is Sukhbir (PW 3) a companion of Nakli and he was not actually with Nakli but was following him. The learned Counsel for the appellant drew our attention to the topography of the place of occurrence and urged that Sukhbir (PW 3) was not in a position to see the actual firing. The circumstances of the case create a suspicion about the prosecution case that the firing was intentional.

We are therefore, not inclined to hold that the prosecution has proved by cogent and convincing evidence, the ingredient for a charge of a murder.

In view of the above discussion, we are of the opinion that the act of the accused falls within the ambit of Section 304A, IPC. If a person handles dangerous weapon and acts in a hazardous way and by his act any body is injured then despite the ingredients of intention to cause injury being absent, the doer of the act is guilty of rash and negligent act and liable to be punished u/s 304A IPC.

In the case of Janardan Prasad v. The State of Rajasthan 1976 RLW 410 the facts were some what similar to the case on hand. The aceused was sitting with a loaded revolver opposite to the witness. The accused was cleaning the revolver when it accidentally went off and the bullet discharged from the revolver killed the deceased. The accused was held guilty for the charge of murder u/s 302 IPC but in appeal the conviction was altered to one u/s 304A, IPC.

In this view of the matter even taking it to be a case where the appellant had not voluntarily committed the offence against the deceased Nakli, his act was of the character of rashness and negligence because of its unfortunate consequence of taking the life of an innocent man.

We therefore, hold that the appellant should be held guilty and punished u/s 304A, IPC. The learned Public Prosecutor vehemently argued that even if the offence is taken to fall u/s 304A IPC, the maximum sentence provided for that offence and heavy fine should be imposed. We find force in the submission. Section 304A provides for punishment of imprisonment for other description which may extend to two years. This is a case in which the maximum substantive sentence allowed by law along with heavy fine may meet the ends of justice.

Consequently, the appeal is partly allowed. The conviction of the appellant Kanaram for the charge of murder altered to an offence u/s 304A, IPC. His sentence u/s 302, IPC is set aside and he is instead of sentenced to rigorous imprisonment for two years and a fine of Rs. 7,000/- u/s 304A IPC. Out of the amount of fine Rs. 5,000/- shall be paid as compensation to Smt. Prema wife of deceased Nakli. The accused is on bail. He had already undergone the substantive sentence awarded to him by this judgment.