Narayan Singh S/o Bhairoon Singh vs State Of Rajasthan

Both these appeals, filed by the accused- Narayan Singh and

State of Rajasthan, are arising out from judgment dated 16th of

December, 1992 passed by Sessions Judge, Pali in Session Case No.43/1992, whereby the trial court acquitted the accused,

Narayan Singh S/o Bhairoon Singh, from the charge levelled

against him u/s 302 and 449 IPC, however, held him guilty for

offence u/s 304 Part-II and 450 of IPC and passed following

sentence:

304 Part- II of IPC Five years'' R.I. along with fine of Rs.200/- and in default of payment of fine to further undergo six months'' R.I.

450 of IPC Two years'' R.I. along with fine of Rs.200/- and in default of payment of fine to further undergo two months'' R.I.

The State of Rajasthan has preferred appeal against the

judgment impugned to the extent of acquittal of the accused,

Narayan Singh, from the charge u/s 302 of IPC and accused

appellant has preferred an appeal assailing his conviction u/s 304

Part-II and 450 of IPC .

Accused appellant, Narayan Singh has preferred appeal

before the learned Single Judge, but in view of the fact that

appeal filed by the State of Rajasthan against the finding recorded

by the trial court to acquit the accused from the charge u/s 302

IPC was admitted, therefore, an order was passed on 08.10.1993

by Division Bench of this Court to tag the Appeal No.5/1993 filed

by accused, Narayan Singh before learned Single Judge along with

D.B. Cri. Appeal No.194/1993 filed by the State of Rajasthan for

adjudication. We are deciding both the appeals by this common

judgment.

As per facts of the case on 30.09.1989, Smt. Kamla (PW.1),

wife of late Sh. Mangla, Ram lodged a written report (Ex.P/1) at

Police Station Sojat, in which following allegations were made by

her, which reads as under:

"VERNACULAR MATTER OMITTED"

Upon the aforesaid written report, formal F.I.R. No.222/1989

was registered at Police Station- Sojat at 04.00 PM against two accused persons, namely, Narayan Singh and Om Prakash Bhati

for offence u/s 452 and 307 of IPC, but after death of Mangla Ram

offence u/s 302 of IPC was added during investigation. During

investigation, accused, Narayan Singh was arrested on

30.09.1989 and upon his information given u/s 27 of the Evidence

Act, knife was recovered.

After investigation, police filed charge sheet against the

appellant, Narayan Singh only in the court of Addl. Chief Judicial

Magistrate, Sojat, from where, case was committed to the court of

Sessions Judge, Pali for trial.

In the trial, after providing opportunity of hearing to the

appellant the learned trial court framed charge under Sections 302

and 449 of IPC against the appellant, Narayan Singh, but

appellant denied the charges and prayed for trial.

After framing charge an opportunity was granted to

prosecution to lead evidence to prove the charge. From

prosecution side, statements of 20 witnesses were recorded in the

trial and after recording evidence of the prosecution, statement of

accused appellant was recorded under Section 313 of Cr.P.C. on

25.11.1992, in which appellant denied all the allegations of

prosecution witnesses and gave explanation that, "VERNACULAR MATTER OMITTED"

No evidence was produced by the appellant in defence.

After hearing final arguments, the learned trial court

convicted the accused appellant, Narayan for offence u/s 304 Part-

II and 450 of IPC while acquitting him from the offence u/s 302

and 449 IPC vide judgment dated 16.12.1992. In both above

appeals, the said judgment is under challenge.

While arguing the appeal filed by the State of Rajasthan,

learned Public Prosecutor vehemently submit that finding of

learned trial court so as to acquit the accused- Narayan Singh

from offence u/s 302 of IPC is erroneous because as per the

statements of eyewitnesses viz. PW.1 Smt. Kamla (wife of

deceased) and PW.3- Ghewar, and witness PW.12 Trilok, injury

was inflicted by accused, Narayan Singh, on the stomach of

deceased, Mangla Ram in the presence of eyewitnesses and due to

said injury Mangla Ram died, therefore, the finding recorded by

the learned trial court for not accepting the prosecution case for

offence u/s 302 IPC is erroneous. As per allegations of

eyewitnesses, accused appellant, Narayan Singh entered in the

house of deceased, Mangla Ram and inflicted injury by sharp

edged weapon (knife) in the stomach of deceased, which resulted

into his death of deceased and knife was also recovered as per

information given by the accused. The witness Dr. Bhupendra

Sharma (PW.15) who performed the postmortem said in his

statements that injury caused in the stomach of the deceased was

sufficient to cause death, therefore, there was no reason to

disbelieve the prosecution case for offence u/s 302 of IPC, but the

learned trial court erroneously assessed the entire evidence in

wrong prospects and held the accused appellant guilty only for

offence u/s 304 Part-II of IPC instead of under Section 302 of IPC.

Learned Public Prosecutor further argued that the manner in

which the incident took place, it is obvious that there was

intention of the accused, Narayan Singh, to cause death of

deceased, therefore, injury was caused on the vital part of body,

i.e. stomach of the deceased. According to learned Public

Prosecutor, prosecution has proved its case beyond reasonable

doubt for offence u/s 302 IPC as the incident took place in the

house of deceased in the presence of two eyewitnesses, but the

learned trial court has committed error in holding the accused

Narayan Singh for offence u/s 304 Part-II instead of Section 302

of IPC. Thus, it is prayed by the Public Prosecutor that appeal filed

by the State of Rajasthan may kindly be accepted and while

quashing the finding of guilty recorded by the trial court for the

offence u/s 304 Part-II IPC, the accused, Narayan Singh, may be

convicted for offence u/s 302 of IPC .

On the other hand, learned counsel appearing on behalf of

accused, Narayan Singh, who had also filed an Appeal No.5/1993

against the judgment impugned, vehemently argued that

prosecution has failed to prove its case beyond reasonable doubt,

therefore, not only the appeal of the State of Rajasthan deserves

to be dismissed, the appeal filed by Narayan Singh against the

judgment dated 16.12.1992 deserves to be allowed as the

prosecution has failed to prove its case beyond reasonable doubt.

Learned counsel for the accused- Narayan Singh further

argued that the learned trial court observed in the finding that

evidence led by the prosecution is not sufficient to hold accused

appellant guilty for offence u/s 302 IPC and held the accused,

Narayan Singh guilty for offence u/s 304 Part-II of IPC for the

reason that allegation in FIR as well as of the witnesses of

prosecution, only one injury was inflicted by knife to the deceased,

Mangla Ram, by the accused Narayan Singh; and there is no

allegation for repeated blow, so also, no reliable evidence is on

record so as to ascertain the fact that any motive was there to

cause death of deceased.

Learned counsel for the accused appellant further submit

that the incident took place in the year 1989 and these appeals

are pending since 1992 & 1993, therefore, even if this Court

comes to the conclusion that there is evidence on record to hold

accused appellant guilty, then also, offence does not travel beyond

offence u/s 304 Part-II of IPC as held by the trial court, but the

order of sentence for five years'' rigorous imprisonment deserves

to be reduced to the period already undergone for the reason that

accused has served sentence for more than three years, therefore,

the appeal filed the State of Rajasthan may kindly be dismissed

and while accepting the prayer of accused, Narayan Singh, in his

appeal against the conviction u/s 304 Part-II IPC, the sentence of

five years imposed by the trial court, may kindly be reduced to the

sentence already undergone by the accused.

After hearing the learned counsel for the parties, we have

perused the entire evidence available on record. As per

prosecution case, on the date of occurrence, the accused appellant

Narayan Singh, cousin brother of the deceased, Mangla Ram,

entered into the house of deceased at 04.00 PM on 30.09.1989,

and inflicted one below of knife in the stomach of the deceased

and there is no allegation for causing repeated blow or taking

undue advantage after inflicting one injury upon the person of

deceased by a sharp edged weapon.

We have also perused the statement of PW.1- Smt. Kamla

(wife of the deceased), who is said to be the eyewitness of the

incident, so also, other eye witness, PW.3- Ghewar. Admittedly,

both these witnesses are close relatives of the deceased and not

independent witnesses and there are major contradictions in their

statements with regard to place of occurrence. The PW.1- Smt.

Kamla (author of FIR) stated specifically that injury was inflicted

by the accused, Narayan Singh inside the house, whereas PW.3-

Ghewar said that injury was inflicted by the accused outside the

house.

In our opinion, although there are major contradictions in

the statements of eyewitnesses, but both the witnesses

categorically said that one injury was caused by the accused

appellant, Narayan Singh to the deceased upon his stomach. We

have perused the statement of PW.12 Trilok, in which some

allegations are levelled to prove the motive, but those reasons

disclosed by the witness PW.12, Trilok, cannot be considered to be

motive for causing death of the deceased. It appears from the fact

that as per evidence of prosecution some hot discussion took

place on the date of occurrence in between the accused, Narayan

Singh and Mangla Ram (deceased) and threat was given by

Narayan Singh to see him but it cannot be presumed that there

was any motive of the accused of causing death of deceased.

The Hon''ble Apex Court in various judgments held that in

absence of reliable evidence of motive/intention if it is found that

only one injury caused by the accused appellant to the deceased,

then, it cannot be presumed that there was any intention to kill

the deceased, in that eventuality the accused appellant can be

punished for offence u/s 304 Part-I or II as per seriousness of

injury, therefore, the accused appellant has not been convicted for

offence under Section 302 IPC in absence of any reliable and

trustworthy evidence of motive.

In the case of Buddhu Singh Vs. State of Bihar (now

Jharkhand) reported in 2011 Cr. L.R. (SC) page 519 the Hon''ble

Supreme Court gave following verdict in paras nos. 6 to 9, which

reads as under: -

"6. Mr. Ajit Pandey, learned counsel appearing for the accused persons contended that firstly this was a case of single blow and the blow could not have been intended to be given on the head though it did land on the head. Mr. Pandey further argued that if the intention was to commit the murder, then the accused persons, more particularly accused Buddhu Singh would have repeated the assault which he actually and admittedly did not repeat. 7. Mr. Pandey further contended that once the injury was unintended, the offence could be converted into Section 304 Part II IPC from Section 302 IPC because the accused ought to have the knowledge that a single assault by an axe could result into the death of the deceased. 8. Mr. Manish Mohan, learned counsel appearing for the State supported the judgment and contended that the injury was serious enough and was on a very vital part i.e. head and resulted in the fracture of frontal bone and the death was almost instantaneous, though in the hospital. 9. Considering the overall material, we are of the view that there is hardly anything on record which can be said against the accused Ledwa Singh and Balchand Singh though the common intention on their part could be attributed since they had done the over act of grappling with and pinning down the deceased. Now, seeing his father and brother had been grappling with the deceased, the accused Buddhu Singh dealt an axe blow which could not be said to be intended towards the head. It could have landed anywhere. However, it landed on the head of the deceased. Therefore, the element of intention is ruled out. Again the defence raised on behalf of the accused that there could not have been the intention to commit the murder of the deceased is justified by the fact that the accused Buddhu Singh did not repeat the assault. Under the circumstances, we feel that the prosecution has been able to establish the guilt of the accused persons under Section 304 Part II I.P.C."

In case of Chandra Mohan Vs. State of Rajasthan reported in

2006(2) Cr.L.R. (Raj.) 1208, this Hon''ble Court gave the following

verdict, which reads as under:

"5. Learned Public Prosecutor took us to the evidence on record and canvassed that Chandra Mohan ought to have been convicted under Section 302 IPC in view of the nature of injury sustained by the deceased. We have considered the submissions. From the scheme of the Penal Code we notice that it is the degree of probability of death which determines whether a culpable homicidal is of the gravest medium or the lowest degree. The work "likely" in Clause (b) of Section 299 conveys th e sense of probable as distinguished from a mere possibility. The word "bodily injury.... Sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature ". Whenever the Court is confronted with the question whether the offence is ''murder'' or culpable homicide not amounting to murder'' on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether he accused has done an act by doing which he has caused the death of another. Proof of such casual connection between the act of the accused and the dath, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299 . If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 Penal Code, is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of ''murder'' contained in Section 300 . If the answer to the question is in the negative the offence would be "culpable homicide not amounting to murder", punishable under the first or the second part of Section 304, depending respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be ''culpable homicide not amounting to murder'' punishable under the first Part of Section 304, Penal Code .

To invoke Exception 4 of Section 300 IPC for requirements must be satisfied:-

(i ) it was a sudden fight;

(i i ) there was no premeditation;

(iii) the act was done in the heat and passion; and

(iv) the assailant had not taken any undue advantage or acted in a cruel manner.

In the instant case all these ingredients are found present. The appellant inflicted solitary blow. His act appears to us sudden and unpremeditated. There was no previous enmity and the appellant did not take undue advantage of the situation. Taking an overall view of the incident, we are inclined to think that the appellant was rightly granted the benefit of exception 4 to Section 300 IPC. On the facts and circumstances of the case looking to the fact that the appellant had undergone the confinement for a period of more than six years it would be in the interest of justice to reduce the sentence from ten years and fine to the period already undergone by the appellant in confinement."

We have considered the entire evidence available on record

in the light of aforesaid judgments. Admittedly, as per allegation

of prosecution only solitary blow by knife was inflicted by the

accused, Narayan Singh, in the stomach of deceased Mangla Ram,

and there is no evidence of previous enmity and the allegation of

taking undue advantage of situation by the accused. Therefore, it

is obvious that accused has already been granted benefit of

exception 4 of Section 300 of IPC and trial court held the accused

guilty for offence under Section 304 Part-II of IPC. Therefore,

while taking overall view of the incident, we are of the opinion that

no error has been committed by the trial court to hold accused

appellant guilty for offence u/s 304 Part-II of IPC . In view of

above facts, there is no force in the appeal filed by the State of

Rajasthan so as to alter the conviction from offence under Section

304 Part-II IPC to Section 302 of IPC, therefore, the appeal filed

by the State of Rajasthan is hereby dismissed.

We have also considered the finding of learned trial court

coupled with arguments of learned counsel for the accused-

Narayan Singh in the light of aforesaid judgments. In our opinion,

no error has been committed by the trial court so as to hold

accused Narayan Singh guilty for offence u/s 304 Part-II of IPC,

therefore, prayer of accused Narayan Singh for acquittal is hereby

rejected. However, we have considered the prayer of the accused

appellant to reduce the period of sentence as admittedly the

appeals are pending since 1993, therefore, the sentence of five

years'' RI imposed against the accused for offence u/s 304 Part-II

IPC, deserves to be reduced to the sentence already undergone by

the accused- Narayan Singh as the accused remained in custody

for more than three years. As per record, accused, Narayan Singh

remained in custody from 30.09.1989 to 07.01.1993, therefore,

obviously he has served sentence for more than three years as

such the appeal (Appeal No.5/1993) filed by the accused

appellant-Narayan Singh is hereby partly allowed and while

maintaining the conviction for offence u/s 304 Part-II and 450

IPC, the sentence of five years'' RI is hereby reduced to the

sentence already undergone by the accused. So far as fine of

Rs.200/- is concerned, the same is hereby enhanced to

Rs.50,000/- in view of Section 357A of Cr.P.C. and it is ordered

that accused appellant, Narayan Singh shall pay compensation of

Rs.50,000/- in addition to fine imposed by the trial court to the

wife of deceased Mangla Ram or his legal heirs, if wife is not alive,

within a period of two months from the date of judgment. The

accused appellant is on bail, therefore, his bails bonds are hereby

discharged.

Keeping in view, however, the provisions of Section 437A

Cr.P.C. the accused appellant is directed to forthwith furnish

personal bonds in the sum of Rs.20,000/- and a surety bond in

the like amount each, before the learned trial court, which shall be

effective for a period of six months to the effect that in the event

of filing of Special Leave Petition against the judgment or for grant

of leave, the appellants, on receipt of notice thereof, shall appear

before Hon''ble the Supreme Court.