[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- JUDGMENT CRIMINAL APPEAL No. 101 of 1986 BANWARI LAL & ORS. V/S STATE DATE OF JUDGMENT : 04.08.2009 PRESENT HON'BLE SHRI AM KAPADIA,J. HON'BLE SHRI DEO NARAYAN THANVI,J. Mr. Vineet Jain, for the appellants. Mr. K.R. Bishnoi, Public Prosecutor. BY THE COURT (PER HON'BLE MR. A.M. KAPADIA,J. 1. Challenge in this appeal filed under Sec.374 of the Code of Criminal Procedure ('the Code', for short) is to the correctness of the judgment and order dated 28.02.1986 rendered in Sessions Case No.63 of 1983 by the learned Sessions Judge, Merta, by which appellant No.1 Banwarilal S/o. Shri Rughnath, original accused No.1 ('A-1', for short) has been convicted for commission of the offence under Sec.302 of the Indian Penal Code ('IPC', for short) and has been sentenced to imprisonment for life and fine of Rs.500/-, in default of payment of fine to undergo further simple imprisonment of one year whereas appellant No.2 to 6 i.e. Kailash, Ramdeo, Rughnath Ram, Kamla and Bholki original accused No.2 to 6 (A-2 to A-6) have been convicted for the offence under Sec. 148, 323/149 and 325/149 IPC and they have been extended benefit of the Probation of Offenders Act and each one of them has been directed to pay by way of compensation Rs.400 to Panchu Ram and Rs.200 to Smt. Goran within 25 days. [2] 2. The prosecution case, as disclosed from the FIR and unfolded during trial is as under: 2.1 On 12.10.1983, Gokalram (PW1) lodged a verbal report at Police Station, Thawla, stating inter-alia that the New Bera of Ahirs is situated at the outskirts of Nimbola in Kankad, which is divided into seven parts and the water is taken from the well turn by turn. It was alleged that on 12.10.1983 the turn of taking water from the well was of his uncle Panchuram but Rugnath A-4 told that his crops of 'Mirchi' and 'Shakarkand' urgently required water and on this there was altercation between them. It was further alleged that at about 7 O'clock in the evening when he, Gordhanram and Panchuram were smoking sitting near the well, at that time Jawara came there from his field and thereafter came accused Kailash, Ramdev, Banwari, Rugnathram, Bholki, Kamla and Gyarsi armed with lathies and kassis with common intention and started quarelling. Banwari gave a blow on the head of Jawara from the reverse side of Kassi due to which Jawara fell down and the other accused also gave blows with lathis, then on hearing hue & cry; he, Gordhanram, Chhittar, Nathu, Bashir, Ramlal, Smt. Gora and Panchuram rushed and intervened to save, then the accused also gave blows on them and they also received injuries. Jawara was lying unconscious on the earth and the accused assuming him having died, fled away. Thereafter Jawara was taken to the hospital on camel cart but Jawara died on the way so they brought the dead body of Jawara to the Police Station. [3] 2.2 On the basis of aforesaid report, police registered a case vide FIR No.75/83 at Police Station Thawara against accused persons for commission of the offence under Sec.302 IPC and started investigation. 2.3 On completion of investigation, accused were chargesheeted in the Court of Additional Chief Judicial Magistrate, Merta, who committed the case to the Court of Sessions, Merta as the offence punishable under Sec.302 IPC is exclusively triable by the Court of Sessions. 2.4 The learned Sessions Judge ('trial Court', for short) framed charges against accused A-1 for commission of offence punishable under Sec.302 IPC and against rest of the accused for offence under Secs. 148, 323/149 and 325/149 IPC 2.5 The charges were read over and explained to the accused persons, who pleaded not guilty to the charges and claimed to be tried, therefore, they were put to trial. 2.6 To prove the culpability of the accused, the prosecution examined as many as 20 witnesses and relied upon their oral testimony and also produced number of documents which were relied upon during the course of trial which were exhibited and read in evidence. [4] 2.7 The trial Court, thereafter, recorded statements of accused under Sec.313 of the Code, wherein also accused pleaded not guilty and denied the case of prosecution in toto and stated that a false case has been filed against them. Accused A-1 in his statement stated that in the evening he was going to his home from the field and in the way near the houses of Jawara, Pancha and Bhera Jawara and Bhera gave three blows on his head with lathis and his clothes were stained with blood but pushing Jawara he ran away and that he did not scuffle with them. The accused persons got examined DW1 Jetha Ram DW2 Shankerlal and DW3 Bhura Ram in their defence. 2.8 On appreciation, analysis and scrutiny of the evidence on record, trial Court disbelieved the theory of self defence put up by accused A-1 and came to the conclusion that homicidal death of the deceased Jawara has been proved and the accused A-1 is the author of the fatal injury caused to the deceased by inflicting blow from reverse side of Kassi on the head of deceased Jawara, who on receiving the injury fell down and later on expired. On the aforesaid finding, the trial Court convicted accused A-1 for the offence under Sec. 302 IPC and sentenced him to imprisonment for life and fine of Rs.500/- whereas the remaining accused i.e. A-2 to A-6 were convicted for the offence under Sec. 148, 323/149 and 325/149 IPC for causing injuries to Panchu and [5] Gordhan and they have been extended benefit of the Probation of Offenders Act and each one of them have been directed to pay Rs.400 to Panchu Ram and Rs.200 to Smt. Goran by way of compensation, which has given rise to the instant appeal by the accused persons. 3. Mr. Vineet Jain, learned counsel for the accused submitted that it was a case of free fight in connection with the turn of water between accused persons and complainant party, who are near relatives and it is also mentioned in the FIR that an altercation took place between Rughnath and Panchuram relating to the turn of water and thereafter scuffle started between both the parties. The complainant party persons were the assailants and in self defence accused A-1 gave single blow to deceased Jawara, however, the trial Court disbelieved the theory of self defence and erroneously reached to the conclusion that the accused were the assailants and committed the offence. It is stated that the trial Court was misdirected in reaching to the said conclusion which has resulted into miscarriage of justice, therefore, according to him, the judgment and order of conviction recorded against the accused deserves to be quashed and set aside by allowing this appeal and thereby acquitting the accused of the offence with which they were charged. Alternatively, it is submitted that so far as homicidal death of Jawara is concerned, there is no dispute and if this Court comes to the conclusion that accused A-1 is [6] the author of the fatal injury caused to the deceased then also prior to causing of the injury there was altercation in connection with the turn of water and in a sudden fight accused A-1 gave single blow to deceased Jawara, therefore, it is not a case of murder punishable under Sec.302 IPC but is a case of culpable homicide not amounting to murder punishable under Sec.304 Part II IPC. He also submits that the incident has taken place in the year 1983 and accused A-1 has remained in Jail for round about three years, therefore, custodial sentence suffered by accused A-1 may be treated as substantive sentence and he may be set at liberty. So far as remaining accused persons are concerned, according to him, there is no evidence against them, therefore, they may be acquitted of the offence with which they were charged. 4. Per contra, learned Public Prosecutor has supported the judgment and order of conviction and sentence recorded against the accused A-1 for the offence under Sec.302 IPC and also against remaining accused persons for the offence under Sec. 148, 323/149 and 325/149 IPC. 5. We have considered the submissions advanced by learned counsel for the parties and we have perused the impugned judgment and order and the record of the trial Court. We have also gone through vital features of the case and the evidence on record, which is read and re-read by the learned counsel for the parties. [7] 6. There is no dispute to the fact that deceased Jawara died a homicidal death. In this connection, prosecution has examined and relied upon the oral testimony of PW8 Dr. Jetha Ram, Medical Officer, who has performed the postmortem on the dead body of the deceased and issued the postmortem report, which is placed on record at Ex.P/8. 7. On a conjoint reading of oral testimony of PW8 Dr. Jetha Ram and Postmortem Report Ex.P/8, it is seen that the deceased received lacerated wound on the parietal region, an abrasion on the left elbow and a contusion on right hand. The cause of death of deceased was head injury leading to intra and extra cranial haemorrhage. 8. Now the question which is required to be answered by us is whether accused A-1 was the author of the injuries caused to the deceased. In this connection, we have gone through the evidence of PW1 Gokalram, the complainant, who lodged the FIR and also the evidence of PW2 Panchuram, PW3 Gordhan as well as other witnesses, who have been projected as eye witnesses. There is no reason to disbelieve the evidence of the eye witnesses that accused A- 1 is the assailant and as a result of the injury caused by accused A-1 on the head of deceased Jawara, he died. Prior to the incident, there was altercation of words in connection with the dispute with regard to the turn of water and in hot exchange of words, accused A-1 inflicted the injuries to deceased Jawara. [8] So far as theory of self defence propounded by the learned counsel for the appellant is concerned, there is ample evidence that the members of accused party were the assailants, therefore, the trial Court has rightly disbelieved the theory of self defence. 9. In view of aforesaid, the question for consideration is as to whether the offence alleged to have been committed by accused A-1 is punishable under Sec.302 or the offence is culpable homicide not amounting to murder punishable under Sec.304 Part I or Part II of the Code. According to us, the act of the accused falls within Exception 4 of Sec.300 IPC. Exception 4 of Sec.300 IPC in terms stipulates that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. 10.Similar question arose before the Hon'ble Supreme Court in the case of Nasiruddin Khan & Ors. Vs. State of Bihar (2008 AIR SCW 5398). In the said case, before the Hon'ble Supreme Court, the dispute was over agriculture land leading to incident on refusal by informant to stop fixing poles in the field. The accused brought spears and lathis and assaulted brothers of the informant. Appellant caused head injury with spear to one brother and other accused persons assaulted other brothers with lathis. The accused alleged suffering injuries in the incident raising plea of self defence and the injuries on accused were found to be [9] superficial. Therefore, the plea of self defence was held to be not tenable. In that case, Hon'ble Supreme Court justified conviction of the accused under Sec.304 Part II recorded by trial Court and affirmed by High Court. 11.The principle, laid down by the Hon'ble Supreme Court in the above referred judgment, is squarely applicable to the facts of present case also. This is also a case of single blow in which prior to the incident there was altercation and scuffle between complainant party and the accused party and there was hot exchange of words and thereafter accused A-1 inflicted single blow on the vital part of the body of deceased. Had there been an intention to kill the deceased, accused A-1 might have inflicted several injuries on the deceased but it is not so. However, at the time of inflicting injury, the accused had knowledge that his act is likely to cause death but he had no intention to cause death. Therefore, according to us, the instant case falls within exception 4 of Sec.300 IPC punishable under Sec. Part II of Sec.304 IPC. 12.So far as other accused persons are concerned, they have been convicted for the offence under Sec. 148, 323/149 and 325/149 IPC and on re-appraisal of the evidence, we are of the considered opinion that they have also taken part in the said quarrel and they have inflicted injuries to witnesses Panchu Ram and Gordhan. Therefore, according to us, they were rightly convicted for the said offences and given benefit of the Probation of Offenders Act. [10] 13.Next question is what sentence should be awarded to accused A-1 for the offence under Sec.304 Part II. Accused has remained in custody for round about three years and and incident is of 1983, therefore, according to us his custodial sentence would serve the ends of justice by enhancing the amount of fine from Rs.500 to Rs.5000. 14.Seen in the above context, the appeal filed by accused A-1 deserves to be partly allowed by altering his conviction from Sec.302 IPC to Sec.304 Pt. II IPC whereas the appeal filed by other accused persons A-2 to A-6 deserves to be dismissed. 15.For the foregoing reasons, the appeal filed by accused A-1 Banwarilal succeeds in part and accordingly it is partly allowed by altering his conviction for the offence under Sec. 302 IPC to Sec.304 Part II IPC and he is sentenced to the period already undergone, which is round about three years, and further to pay fine of Rs.5,000/-, in default of payment of fine to further undergo rigorous imprisonment for a period of one year. Accused A-1 is on bail. He is directed to deposit the amount of fine Rs.5,000/- imposed by us within a period of four weeks, failing which he shall undergo the sentence prescribed in lieu thereof for which warrant of arrest shall be issued by the concerned Court. 16.The appeal filed by remaining accused A-2 to A-6 is dismissed. Conviction recorded against them for the offence [11] under Sec. 148, 323/149 and 325/149 IPC and extending them the benefit of Probation of Offenders Act is confirmed. ( DEO NARAYAN THANVI ),J. ( AM KAPADIA ),J. jpa/