1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T Hansmukh & Anr. vs. State of Rajasthan (1)D.B.Criminal Appeal No.1047/2003 Hansmukh & Anr. vs. State of Rajasthan (2)D.B.Criminal Jail Appeal No.582/2003 against the judgment dated 29.3.2003 passed by Additional Sessions Judge (Fast Track), Jodhpur, in Sessions Case No.7/2003. Date of Judgment :: 8th April, 2010 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR HON'BLE MR.JUSTICE C.M.TOTLA Mr. Arjun Purohit] Mr. Iqbal Sherani] for the appellants. Mr. KR Bishnoi, PP, for the State. .... BY THE COURT : (PER HON'BLE MATHUR,J.) Both these appeals are arising out of the judgment dated 29.3.2003 passed by learned Additional Sessions Judge (Fast Track), Jodhpur, whereby the accused appellants were convicted for the offences punishable under Sections 302 and 302/34 Indian Penal Code. Both the accused suffered with a sentence of imprisonment for life term with a fine of Rs.2000/- 2 each and further to undergo three months rigorous imprisonment in event of default in making payment of fine. Briefly stated, case of the prosecution is that on 5.11.2002, PW-5 Gautam Singh submitted a written report (Ex.P/1) at Police Station Chopasani Housing Board, Jodhpur, stating therein that at about 09:30 PM of the same day his sister Tripti with a neighbour Sarita was firing crackers, then accused Kailash came out from House No.8/334 and started uttering nonsense. Accused Kailash then proceeded to his way, however, hearing the noise, his brother Hansmukh came out and he started uttering nonsense to the girls. Looking to the fresh utterance Kailash returned and he too indulged himself with hot utterance at the spot. During this course Kailash brought two chisels from the house under instructions of Hansmukh. One Tulsidas, who was present at the spot, tried to calm down the brothers, however, Hansmukh gave a chisel blow on neck of Tulsidas and at that time Kailash was holding Tulsidas by hands. Another neighbour Murli was also present at the spot. Tulsidas then was taken to hospital, but he died. On basis of the information aforesaid a case was lodged, investigation was made, challan was filed, case was committed to the court of Sessions and accused Hansmukh was charged for commission of offence 3 under Section 302 and Kailash for offence under Section 302/34 IPC. On denial of the same they were tried. In support of the prosecution case 13 witnesses were examined, out of whom PW-1 Sarita, PW-2 Murli, PW-3 Tripti and PW-5 Gautam Singh are the eye witnesses. The prosecution also produced documents Ex.P/1 to Ex.P/29 and relied upon the contents of the same. Articles A/1 to A/6 were also exhibited before the court. ON 24.2.2003 both the accused were examined as per provisions of Section 313 Cr.P.C. with a purpose to explain the evidence available against them as adduced by the prosecution. Both the accused denied the allegations and stated that they were innocent and were falsely implicated in the case. In defence, statements of DW-1 Kiran and DW-2 Om Prakash were recorded. On appreciation, evaluation, analysis and scrutiny of the evidence available on record, the trial court reached at the conclusion that homicidal death of Tulsidas is proved as he died because of a sharp injury on neck. The trial court held the accused guilty for the offences punishable under Sections 302 and 302/34 IPC, thus, convicted and sentenced in the terms stated above. The trial court based its findings mainly on the statements of eye witnesses, recovery made from the accused persons and matching of blood 4 group, stains of which were available on clothes worn by deceased, T-Shirts worn by the accused persons and the chisel recovered at the instance of accused persons. In appeal, the only argument advanced by learned counsel for the appellants is that the offence which has been committed by the appellants is not murder punishable under Section 302 IPC, but the offence falling under exception IV of Section 300, punishable under part-II of Section 304 IPC. Learned counsel for the appellants stressed that the offence is culpable homicide not amounting to murder. While narrating the entire incident, as unfolded by the prosecution, it is urged that there was no intention of the accused persons to kill Tulsidas and whatever happened, that was due to sudden provocation. The argument advanced is also supported by various judgments including Daya Nand v. State of Haryana, reported in AIR 2008 SC 1823; Hanumana Ram v. State of Rajasthan, reported in 2010(1) CJ(Cr.)(Raj.)69; and Daud Khan v. State, reported in 2009(1) CJ(Cr.)Raj.) 449. We have considered the argument advanced and also examined the record available. PW-10 Dr. Jagdish Jugtawat conducted autopsy on the body of deceased Tulsidas, thus, he proved the 5 postmortem report Ex.P/22, according to which the cause of death was shock and haemorrhage due to injury to neck. On neck an incised wound antemortem measured 4 cm x 3 cm x muscle deep was noticed. In view of medical evidence, the undisputed position emerges out is that the death of Tulsidas was homicidal one. PW-13 Govind Ram at the relevant time was the Station House Officer of Police Station Chopasani Housing Board and he narrated all the steps taken during the course of investigation. PW-1 Sarita, a girl of 17 years, witnesses the entire incident. As per this witness, she alongwith her friend Tripti was firing crackers in the evening of 5.11.2002. Her brother Gautam was also standing there. At that time accused Kailash came out from the house and abused them. Gautam scolded him, thus, Kailash left the spot and moved towards a nearby street. However, hearing the noise Hansmukh, an other brother of Kailash, came out from house and he started uttering nonsense. At that time deceased Tulsidas who was present at the house of Tripti came and tried to console Kailash and Hansmukh. During this course Kailash brought two sharp edged chisels under instructions of Hansmukh and then Hansmukh gave a chisel blow on the neck of Tulsidas. At that time Kailash was holding hands of Tulsidas. Whatever stated by PW-1 Sarita is corroborated in totality by other 6 eye witnesses those are PW-2 Murli, PW-3 Tripti and PW-5 Gautam Singh. At the instance of accused persons certain recoveries were made including recovery of blood stained chisel and blood stained T-Shirts worn by them at the time of incident. As per Ex.P/29, i.e. the report of Forensic Science Laboratory, Jodhpur, the shirt and pant worn by deceased Tulsidas, the chisel recovered at the instance of accused and the T- Shirt worn by accused Hansmukh were found to be stained with “B” group of blood. Looking to the entire evidence referred above, we are of the view that no wrong is committed by the trial court while reaching at the conclusion that deceased Tulsidas was assaulted by accused persons with a sharp edged chisel, consequent thereto he died. The question requires consideration is that whether the offence proved is a murder or culpable homicide not amounting to murder? Hon'ble Supreme Court in Daya Nand's case (supra) dealt with the entire issue relating to ingredients of offence of murder as defined under Section 300 IPC and reached at the conclusion that even if intention of accused was limited to infliction of a bodily injury sufficient to cause death in ordinary course of nature and did not extend the 7 intention of causing death, the offence would not be murder. Clause (c) of Section 299 and clause (iv) of Section 300, both require knowledge of the probability of the act causing death. Clause (iv) of Section 300 would be applicable where the knowledge of offender is to the probability of death of a person or persons in general as distinguished from a particular person or persons being caused from his imminently dangerous act, the approximates to a practical certainty. Such knowledge on the part of the offender must be of highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury. On total examination of evidence available in the instant matter, the position emerges out is that accused Kailash on hearing noise of crackers came out from the house and had some hot talks with the girls firing the crackers. Evidence is also available on record that Kailash came out from his house as noise of crackers was disturbing his kid aged 7-8 months. Kailash after having certain hot talks with girls and complainant Gautam proceeded to his way, however, at that moment his brother Hansmukh came out from the house and he indulged in hot talks with Gautam Singh, Sarita and Tripti. During that course Kailash brought sharp edged chisel from the house and Hansmukh gave a blow from that to Tulsidas who as a matter of fact was present at the spot to pacify the 8 parties. It is also pertinent to note that availability of chisel in the house of accused persons was not something strange but quite usual as they were involved in the profession of shoe making. From the evidence available on record, we are satisfied that the accused persons were not at all intending to kill deceased Tulsidas. As a matter of fact whatever happened, that was an out come of the heat of moment and sudden provocation. As such, the act of offence committed by the accused persons is not a murder as defined under Section 300 IPC. The offence so committed does not travel beyond the purview of Section 304 part-II IPC. Accordingly, both these appeals succeed in part. The conviction of the accused appellants under Section 302 and 302/34 IPC is altered to Section 304 part-II IPC for which both the accused viz. Hansmukh and Kailash, both sons of Babulal Mochi, residents of 8/334, Chopasani Housing Board, Jodhpur, are sentenced to rigorous imprisonment for eight years with a fine of Rs.1000/- each and in default of payment of which further to undergo simple imprisonment for a period of one months. ( C.M.TOTLA ),J. ( GOVIND MATHUR ),J. Mathuria KK/ps.