1 D.B. Crl. Jail Appeal No. 237/2004 (Devi Lal Vs. State) IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T KHURSHEED ALI VS THE STATE OF RAJASTHAN. D. B. CRIMINAL APPEAL NO. 698/2006 Against the judgment dated 06.06.2006 passed by Shri Patanjali Sharma, RHJS, Additional Sessions Judge No.2, Bhilwara in Sessions Case No.66/2005. Date of Judgment : 13th May, 2010 PRESENT HON'BLE MR. JUSTICE GOVIND MATHUR HON'BLE MR. JUSTICE C. M. TOTLA Mr. D.S. Udawat for the appellant. Mr. K.R. Bishnoi, PP, for the State. BY THE COURT: (Per Hon'ble Mathur, J.) By the judgment dated 06.06.2006, learned Additional Sessions Judge No.2, Bhilwara Camp Shahpura convicted the accused appellant for the offence punishable under Section 302 and and sentenced to undergo imprisonment for life term. The trial court also convicted the accused appellant for commission of offences punishable under Section 323 & 336 IPC and awarded sentence as under :- (i) Section 323 IPC – Six months simple imprisonment with fine of Rs.100/- and further to undergo one month simple imprisonment in default of payment of fine. 2 D.B. Crl. Jail Appeal No. 237/2004 (Devi Lal Vs. State) (ii)Section 336 IPC – Three months simple imprisonment with fine of Rs.100/- and further to undergo one month simple imprisonment in event of default in making payment of fine. Briefly stated, facts of the case are that on 04.01.04, at about 10:15 AM, a report was lodged by Nasir Ali at Police Station Jahajpur with the assertion that at about 9 AM on the same day, when he was standing at his plot for getting certain constructino work done, accused Khursheed Ali, his wife Khatoona, son Mashooq ali and one Nazir Ali came at the spot and tried to stop the construction work. As per the averments contained in the report (Ex.P/9), these persons started throwing stones and also gave beating to one Alladin who was working as 'Mistri'. Hearing the noise, Liyakat Ali, younger brother of Nisar Ali (complainant) came at the spot and then, Khursheed Ali went to his house. Khursheed Ali from terrace of his house fired a gun shot that hit Liyakat Ali resulting into his death. On the basis of information aforesaid, a case was lodged, investigation conducted and a chargesheet was filed for the offences punishable under Section 302, 336 and 323 IPC. The case being exclusively triable by the court of Sessions, was committed to it. Learned trial court framed charges against accused appellant for the offences punishable under Section 302, 336 and 323 IPC and on denial of the same, accused was tried. The prosecution supported its case with the aid of 25 witnesses, out of whom PW/12 Nisar Ali, PW/2, Alladin, PW/14 Rayis Ali and PW/11 Shabbir were cited as eye witnesses. Prosecution also exhibited several documents to get their contents established. The accused too was examined as per provisions of Section 313 Cr.P.C to explain the 3 D.B. Crl. Jail Appeal No. 237/2004 (Devi Lal Vs. State) circumstances available against him in the evidence adduced by prosecution. The accused denied the entire adverse evidence and tried to explain that the disputed plot measuring 65 ft x 60 ft was joint property and looking to certain dispute, no one was supposed to raise any construction thereon. He further stated that deceased Liyakat was murdered by his brother Nisar. He further stated that terrace of his house is having a boundary wall that is raised upto 5-6 ft. Learned trial court after examining the evidence available on record held the accused guilty for the offence charged and sentenced accordingly. In appeal, it is contended that the trial court failed to appreciate that the prosecution witnesses changed the entire case as introduced initially to the extent of changing the spot where Liyakat Ali died. It is also urged that as per available medical evidence, the injury caused to deceased could have not been received from a gun shot fire from the terrace. It is pointed out by learned counsel for the appellant that the gun shot injury as per postmortem report Ex.P/3 is horizontal and as per statements of PW/22 Dr. R.s. Goyal, the injury if would have been given from terrace, that should have been vertical. Besides above, it is also urged that even if prosecution story is accepted and the present accused appellant be held author of the gun shot, then too, looking to the existing circumstances, the case does not travel beyond an offence punishable under Section 304 Part II IPC. Per contra, as per learned Public Prosecutor, adequate evidence is available on record to establish that the gun shot was given by accused himself that resulted into death of Liyakat Ali. It is urged that there was no reason for PW/2 Alladin, PW/11 Shabbir, PW/12 Nisar, PW/14 Rayis Ali 4 D.B. Crl. Jail Appeal No. 237/2004 (Devi Lal Vs. State) to say anything false against the present accused. As per learned Public Prosecutor, the arguments advanced by the learned counsel for appellant regarding direction of traveling of pallet is too technical, especially in the circumstances that eye-witness in quite unambiguous terms deposed that gun shot was given by none other than the present accused appellant. Looking to all the evidence available on record, after arguing to some extent, learned counsel for the appellant pressed in service only one argument that is relating to nature of offence established, even by accepting the prosecution case. It is urged that a dispute relating to title and possession of plot concerned was existing and construction thereon was objected by the parties concerned. The complainant party despite of it, came to the spot and tried to raise construction. In such circumstances, a quarrel took place between parties and during the heat of moment, the accused presently an old man of about 76 years might have fired without intending to kill any person. As such, the offence does not travel beyond Section 304 Part I IPC. To substantiate his contention, reliance is placed on various judgments of Hon’ble Supreme Court including Lachman Singh Vs. State of Haryana (2006) 10 SCC 524 and Harendra Nath Borah Vs. State of Assam, 2007 AIR SCW 4631. Reliance is also place by learned counsel on a Division Bench judgment of this Court in Sanjay Kumar Singh Vs State of Rajasthan, D.B. Criminal Appeal No. 81/08 decided on 12.05.09. In the cases aforesaid, it was held that if occurrence took place in course of sudden quarrel, then chances of setting out the case under fourth exception of Section 300 IPC are quite obvious. In the instant case, on examination of entire evidence available, we found that the plot where Nisar Ali (PW/12) was raising construction was under dispute and only few days back, some panchayat was conducted to 5 D.B. Crl. Jail Appeal No. 237/2004 (Devi Lal Vs. State) resolve the dispute. On the eventful day, a dispute occurred between the parties relating to the construction and accused Khursheed Ali with other members of his family objected raising of construction. At first instance, stone throwing took place and at that time, Liyakat Ali (deceased) reached at the spot. From the evidence it appears that after reaching Liyakat Ali at the spot, the accused who is an old person residing just adjacent to the disputed plot, in the heat of moment, entered into his house and rushed to the terrace armed with a gun. He then gave a gunshot, pallets of which penetrated in body of deceased Liyakat Ali. There is nothing on record to reach at the conclusion that the deceased was intending to commit murder of anyone, though he was having knowledge that the gunshot may cause death and bodily injury resulting into death. It also reveals from examination of evidence that no effort was made by the accused to take undue advantage of the situation by giving subsequent fires. In the totality of facts and circumstances of the case, we are of the view that present one is a case that comes within purview of fourth exception of Section 300 IPC and as such, the offence committed by accused does not travel beyond offence punishable under Section 304 Part I IPC. As such the conviction of accused appellant deserves to be modified from Section 302 IPC to Section 304 Part I IPC. Accordingly, the appeal is partly allowed. The order impugned is accordingly modified. The conviction of appellant for the offence punishable under Section 302 IPC is set aside and same is substituted by offence punishable under Section 304 Part I IPC. The conviction and sentence under Section 336 & 323 IPC are maintained. Looking to the age of accused appellant, we consider it appropriate to award a sentence of seven years rigorous imprisonment with fine of Rs.5000/- and further to 6 D.B. Crl. Jail Appeal No. 237/2004 (Devi Lal Vs. State) undergo one months simple imprisonment, in the event of default in payment of fine. (C.M. TOTLA), J. (GOVIND MATHUR), J. bijesh