-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Laxman Vs. State of Rajasthan (D.B. CRIMINAL JAIL APPEAL NO.134/2003) D.B. Criminal Jail Appeal under Section 383 Cr.P.C. against the judgment dated 17.1.2003 passed by the Additional Sessions Judge, Banswara in Sessions Case No.111/2001. *** Date of Judgment :: 7.2.2008 P R E S E N T HON'BLE MR.JUSTICE PRAKASH TATIA HON'BLE MR.JUSTICE BHANWAROO KHAN Dr. Rakesh Sinha,for the appellant Mr. Vishnu Kachhawa, Public Prosecutor BY THE COURT (PER HON'BLE MR.KHAN J.) : 1. This is Jail Appeal under Section 383 Cr.P.C. by the accused appellant Laxman against the judgment dated 17.1.2003 passed by Additional Sessions Judge, Banswara in Sessions Case No.111/2001 whereby the accused appellant was convicted under Section 302 and 450 I.P.C. and was sentenced to -2- undergo life imprisonment and to pay a fine of Rs.5000/-; in default of payment of fine to further undergo 2 years imprisonment and for offence under Section 450 I.P.C. he was sentenced to undergo 2 years rigorous imprisonment and to pay fine of Rs.500/-; in default of payment of fine to further undergo 15 days imprisonment. 2. Briefly stated the facts as narrated by the prosecution are that on 22.5.2001 a written complaint was lodged by one Lalu stating inter-alia that on 21.5.2001 at about 7.30 p.m. when he along with his father were in the house, one Phool Ji and one more person brought accused Laxman to their house. It was revealed by them that Laxman was making quarrel at there place so they have brought Laxman because none is available at Laxman's house. By leaving Laxman at their residence they both went away. Laxman was served with tea and his father was making him understand not to quarrel. Laxman immediately rose and picked up a 'geti' which was lying in the chowk of the house and inflicted injury on the head of his father. On making hue and cry by him and his wife, Lawa and Bada came on the spot and caught hold of Laxman and tied him with the rope. His father died because of said injury. 3. On this information regular investigation was conducted and challan under Sections 302 and 450 I.P.C. was filed. -3- 4. The accused denied the charges levelled against him under Sections 302 and 450 I.P.C. and claimed for trial. The prosecution in all produced 14 witnesses. The accused appellant under Section 313 Cr.P.C. denied the correctness of the prosecution evidence and the allegation levelled against him and pleaded that he has been falsely implicated in the case. No evidence was led in defence. The trial court after going through the entire case as well as oral and documentary evidence, convicted and sentenced the accused as aforesaid. 5. Both the parties were heard. The entire record was gone through. 6. The learned counsel for the accused- appellant pleaded that there was no previous enmity of the accused with the deceased and on spur of moment instigated by the conduct of the deceased who was making the accused-appellant understand not to make quarrel, the accused-appellant inflicted only single injury which resulted in death. There was no intention of the accused to kill deceased Soma. The inflicted injury is also not sufficient in ordinary course of nature to cause death. Had there been any intention of the accused to kill Soma, he could have inflicted more injuries on the person of the deceased, but this was not done. The doctor has also admitted in his cross- -4- examination that if immediate medical relief could have been given to the deceased, the injury inflicted would not have resulted in death of the deceased. Looking to the nature of the single injury caused, the case would not cover the offence of murder against the accused under Section 302 I.P.C. At the most, it can go under Section 304 Part-II I.P.C. 7. Per contra, learned Public Prosecutor pleaded that the learned trial court after going through the entire case and oral as well as documentary evidence has rightly convicted the accused under Section 302 and 450 I.P.C. It is further submitted that it is not necessary that a single blow will not fall under the category of offence under Section 302 I.P.C. The accused–appellant without any reason inflicted a 'geti' blow on the head of the deceased which proved fatal and the injured died on the spot. A clear case of culpable homicide amounting to murder is made out against the accused-appellant. 8. The eye-witnesses PW-1 Lalu and PW-2 Itly wife of Lalu both son and daughter-in-law of the deceased, who at the relevant time were in the house along with the deceased when accused Laxman was brought by one Phool Ji and another person. Laxman was served with tea when his father asked for the same. When his father Soma was making accused Laxman understand about not to quarrel and make nuisance, the -5- accused immediately rose and by picking 'geti' which was lying in the chowk of the house inflicted a head injury on the deceased. On his making hue and cry, Lawa and Bada came and Laxman was caught hold and tied with rope. He lodged an First Information Report. 9. PW-3 Bada and PW-4 Lavji also corroborated the same story. From the oral evidence as deposed by the eye-witnesses, it is clearly borne out that the accused was responsible for causing single blow by 'geti' which proved fatal and deceased Soma died immediately thereafter. There is neither any contradiction nor any discrepancy which could cast doubt about the role played by the accused in inflicting the injury. 10. Coupled with this, PW-13 Dr. Shanti Chand Dhariwal, who has stated that there was one Lacerated wound on the left side of head of the deceased and as per his admission that if immediately any medical assistance could have been given to the deceased, the life of the deceased could have been saved. This is all the prosecution story and evidence rendered against him. The FSL Report Ex.-24 also reveals that 'geti' which was used as a weapon, was found to be smeared with blood and 'dhoti' and 'kamij' of the deceased as also 'geti' are stained with blood of Group-B, so the entire evidence of prosecution proved that the accused was responsible for causing head -6- injury, which resulted into death of deceased Soma. It is true that there is only single injury on the head of the deceased. But from the conduct and action of the accused, it cannot be inferred that the accused by causing 'geti' blow on the head of the deceased, had an intention to cause death of the deceased because he only inflicted a single blow on the head of the deceased which proved fatal and resulted in death of the deceased. 11. Intention is purposeful doing of a thing to achieve a particular end and it is also the mental attitude of a man, who resolved to bring about a certain result. Intention requires something more than the mere foresight of the consequences and it is done with purpose to achieve a particular end and knowledge implies awareness wherein certain consequences would or could follow. In intention the knowledge is always there whereas in latter the former i.e. intention is not an essential ingredient. 12. In offence of murder, intention is the root and when one commits the offence, the intention of the accused must be there to kill someone. Culpable homicide is murder when intention of causing such bodily injury as the offender knows it is likely to cause death or with intention of causing bodily injury to any person that is sufficient in the ordinary course of nature to cause death; or, that the person -7- committing the act knows that it is imminently dangerous that it must, in all probability, cause death and such injury is likely to cause death; meaning thereby, intention and knowledge should be such as to cause death or such bodily injury as is likely or, in all probability, to cause death. 13. From the evidence rendered it is found that there is only a single injury on the head of the deceased and accused incensed by the action of the deceased, who was making him understand about not to quarrel with some one inflicted the said injury and the accused restrained himself by not inflicting any other injury. So there was no intention of the accused to cause death of the deceased or to cause such bodily injury which is sufficient in ordinary course of nature to cause death. The act of the accused was not with the intention to kill Soma, which resulted in the death of Soma. The culpable homicide cannot come in the periphery of offence of murder but certainly it falls within the third part of Section 299 I.P.C. 14. In 1980 SCC (Cri) 694 (Om Prakash Vs. State of Harayana), (1981) 4 SCC 484 (Randhir Singh alias Dhire Vs. State of Punjab), A.I.R.1972 SC page 955 (Chand & Ors. Vs. The State of U.P.), A.I.R. 1968 SC page 1390 (Laxman Kalu Nikalje Vs. The State of Maharashtra) and A.I.R. 1983 SC page 274 (State of Assam Vs. Mafizuddin Ahmed), it has been held by the -8- Apex Court that intention to inflict the particular injury, which in the ordinary course of nature was sufficient to cause death, must be present in particular case to cover the case under Section 302 I.P.C. The single head injury inflicted on spur of the moment causing death cannot be inferable that intention or causing such bodily injury which is likely to cause death. From the evidence rendered by the prosecution, the nature of injury, the statement of doctor, number of injury clearly reveals that neither accused was having intention to cause death nor was having intention to cause bodily injury, which in the ordinary course of nature was sufficient to cause death. So in all probability, it can be inferred that the accused was not having intention to kill the deceased. The inflicted injury was also not sufficient in the ordinary course of nature to cause death so the act of the accused in causing death cannot come under the offence of murder, but it will come under the periphery of culpable homicide not amounting to murder and would come under Section 304 Part-II I.P.C. To this extent, the appeal deserves to be accepted. 15. The accused was brought by Phool Ji and one another person to the house of the deceased. It was not the accused who tresspassed in the house of the deceased but after having tea and incensed by the act of the deceased he inflicted head injury. The accused never entered into the house of the deceased with the -9- intention to commit any offence, but was brought by someone else with permission of the deceased and when deceased was making accused understand not to quarrel, the accused incensed by the action of the deceased inflicted the injury. From the conduct and action of the accused, it cannot be inferred that the accused committed offence of house trespass under Section 450 I.P.C. 16. From the forgoing analysis, it is found that since the accused wielded 'geti' blow on the head of victim deceased and while causing only single blow, such bodily injury to the deceased, which resulted in death and as per statement of doctor, the deceased could have been saved by providing immediate medical relief. It is conclusively proved that the accused was not having any intention to cause death of deceased Soma, so the accused can be convicted only under Section 304 Part-II I.P.C. as it is a case of culpable homicide not amounting to murder. The offence under Section 450 I.P.C. is also not made out against the accused, so to this extent the appeal deserves to be admitted. 17. Resultantly, the appeal preferred by accused Laxman is partly allowed. The conviction and sentence against accused Laxman passed by the learned Additional Sessions Judge, Banswara for offence under Sections 302 and 450 I.P.C. is set aside and instead -10- of it, accused Laxman is convicted for offence under Section 304 Part-II I.P.C. and sentenced to undergo for 7 years rigorous imprisonment with the fine of Rs.5,000/-; in default thereto further undergo for 1 year rigorous imprisonment. The accused Laxman is in Jail, he will serve out the remaining part of his sentence. 18. With this modification the appeal is disposed of. (BHANWAROO KHAN) J. (PRAKASH TATIA) J. RM/-