[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CRIMINAL APPEAL No. 306 of 2008 GAUTAM V/S STATE Date of Order : 17.07.2009 HON'BLE SHRI AM KAPADIA,J. HON'BLE SHRI SANGEET LODHA,J. Mr. SHMBHOO SINGH, for the appellant Mr. K.R. BISHNOI, PP, for the respondent JUDGMENT ----- BY THE COURT (PER HON'BLE 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 27.02.2008 rendered in Sessions Case No.75 of 2006 (74/2006) by the learned Addl. Sessions Judge (Fast Track), Dungarpur, by which sole appellant Gautam ('accused', for short) has been convicted for commission of the offence under [2] Sec.302 of the Indian Penal Code ('IPC', for short) and sentenced to imprisonment for life and fine of Rs.5,000/-, in default of payment of fine to undergo further simple imprisonment for one year. 2.The prosecution case, as disclosed from the FIR and unfolded during trial is as under: 2.1 On 29.05.2006, PW7 complainant Nanu Ram lodged a written report at Police Station Bichhiwara inter-alia stating that on 28.05.2006 at about 8.00 PM on the occasion of Prakash’s marriage, people of Kalasuwa Fala had assembled and after worshipping Lord Ganapati they were dancing near the house of Prakash. Gautam, a neighbour of Prakash, also came there for dancing (Goomar) and at about 9.00 PM, Gautam started quarrelling with complainant and also pushed him, as a result of which he fell down and received injury on his right hand. Jeeva s/o Kana and Basu s/o Kachara persuaded Gautam and thereafter he went towards his [3] house, however, returned after some time and asked Jeeva as to who he was to expel him from dancing and told that he would not return without killing him and saying so he picked a stone and threw it at the chest of Jeeva as a result of which Jeeva on sustaining injury fell down and died at the spot. 2.2 On submitting the above written report by Constable Lalit Kumar at Police Station Bichhiwara, FIR was registered against the accused for offence under Section 302 IPC and started investigation. 2.3 On completion of investigation, accused was chargesheeted in the Court of Chief Judicial Magistrate, Dungarpur, who committed the case to the Court of Sessions, Dungarpur as the offence punishable under Sec.302 IPC being exclusively triable by the Court of Sessions. [4] 2.4 The learned Addl. District & Sessions Judge (Fast Track) Dungarpur (trial Court, for short), to whom the case was made over for trial, framed charge against the accused for commission of offence punishable under Sec.302 IPC. 2.5 The charge was read over and explained to the accused, who pleaded not guilty and claimed to be innocence, therefore, he was put to trial. 2.6 To prove the culpability of the accused, the prosecution examined as many as 19 witnesses and relied upon their oral testimony. The prosecution also produced 17 documents which were relied upon during the course of trial and therefore they were exhibited and read in evidence. 2.7 The trial Court, thereafter, recorded statement of accused under Sec.313 of the Code, wherein [5] accused pleaded innocence and denied the case of prosecution in toto and stated that a false case has been filed against him, however, he led no evidence in his defence. 2.8 On appreciation, analysis and scrutiny of the evidence on record, trial Court came to the conclusion that homicidal death of the deceased has been proved and the accused was the author of fatal injury caused to the deceased by throwing stone on him, therefore, the complicity of the accused for the commission of offence under Sec. 302 IPC is established. On the aforesaid finding, the trial Court convicted and sentenced him as stated above, which has given rise to the instant appeal by the accused. 3.Mr. Shambhoo Singh, learned Advocate for the accused, does not dispute the factum of murder of Jeeva having taken place, therefore, according to him, homicidal death of Jeeva is proved, however, [6] he submits that 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 as there was no intention on the part of accused Gautam to kill Jeeva because the dispute arose between accused Gautam and Nanu Ram at the time of dancing. To buttress the aforesaid submission, he has taken this Court to the evidence of the prosecution witnesses and submitted that the order of conviction and sentence recorded against accused Gautam under Sec.302 is not well founded and therefore it may be altered to Sec.304 Part II and as he has already undergone imprisonment for round about three years, therefore, his custodial sentence may be treated as substantive sentence for the offence committed by him, and he may be set at liberty. Thus, he prayed to allow this appeal in part by altering the conviction and sentence of the accused. He, therefore, urged to pass appropriate orders in this regard. [7] 4.Per contra, learned Public Prosecutor Mr. K.R. Bishnoi has supported the judgment and order of conviction and sentence recorded against the accused. According to him, there was intention on the part of the accused to kill the deceased, therefore, it is a case of murder punishable under Sec.302 IPC and in view of this no interference is called for in the impugned judgment and order. He, therefore, urged to dismiss the appeal. 5.We have considered the submissions advanced by learned counsel for the parties and perused the impugned judgment and order. We have also gone through record of the case and have re-appreciated the evidence. 6.There is no dispute to the fact that deceased died a homicidal death, however, we have reappreciated the evidence in this regard. In this connection, prosecution has examined and relied upon the oral [8] testimony of PW11 Dr. Vinay Jain, who has performed the postmortem on the dead body of the deceased and also issued the Postmortem Report Ex.P/7. On a conjoint reading of oral testimony of PW11 Dr. Vinay Jain and Postmortem Report Ex.P/7, it transpires that the cause of death is the injury on vital organ i.e. rapture of left lung and hemorrhage leading to cardio respiratory failure. Therefore, homicidal death of deceased Jeeva is proved. 7. Though the learned counsel for the appellant has not disputed the incident in question, however, accordingly to him, there was no enmity between accused Gautam and the deceased and accused Gautam had no intention to kill the deceased rather his intention was only to cause injury to Nanu Ram because there was dispute between him and Nanu Ram in connection with dancing and therefore after returning from his home, he pelted stone on Nanu Ram and in between Jeeva intervened, therefore [9] stone hit to Jeeva which has claimed his life. Therefore, according to him, the act of the accused is not an offence of murder but it is an offence of culpable homicide not amounting to murder. 8. In light of the aforesaid submissions, now we will re-appreciate the evidence of relevant witnesses who are claiming to be the eye witnesses. 9.First of all, we advert to the oral testimony of PW1 Basu. He has inter-alia stated that he, Nanu Ram, Mohan, Narayan, Leela, Jeeva and Prakash were playing Goomar on the occasion of Prakash’s marriage and there started quarrel between Gautam and Nanu Ram and Gautam started beating Nanu Ram due to which Nanu Ram fell down. He further stated that he and Jeeva separated Gautam and Nanu Ram and send Gautam to his house, who came back shouting after five minutes carrying with him a stone which [10] he pelted on Jeeva due to which Jeeva died and after that Gautam fled away. In cross examination, he stated that he saw that Gautam picked up a stone from the western side of the field which was of the weight less than one kg which he pelted on Jeeva from a distance of 5-6 foot-steps and at that time Nanu Ram was standing by the side of Jeeva. 10. PW4 Miss Leela, an eye witness, who is sister of deceased, has inter-alia testified that all were dancing on the marriage occasion of Prakash. Gautam and Nanu Ram made quarrel and Jeeva and Basu persuaded them to go from that place. Gautam thereafter came back and pelted stone which hit Jeeva. 11. PW6 Mohan, who is also claiming to be the eye witness, has inter-alia testified that on the occasion of Prakash’s marriage, at about 8-9 PM while they were playing and singing songs, Nanulal and Gautam started quarrelling, therefore, they were [11] ousted from ‘Ghoomar’ and Gautam was persuaded to go home, who came back after some time and pelted a stone which struck on the chest of Jeeva as a result of which Jeeva became speechless and fell down and thereafter died. 12. PW7 Nanu Ram is also an eye witness, who filed complaint Ex.P/13 and has testified that first of all Gautam quarrelled with him and fell on him, therefore, Jeeva and Basu separated them and after some time Guatam came and pelted stone towards Jeeva which struck on the chest of Jeeva and Jeeva died. In cross examination, he has stated that there was no dispute between Gautam and Jeeva and that at the place where the stone was pelted, there were 7-8 persons and the stone could strike to anyone but it struck Jeeva. He denied the suggestion that he was pelting stone towards Gautam but it struck Jeeva. 13. PW13 Kana, father of deceased Jeeva, has also [12] testified on similar lines. In cross examination, he has in unequivocal terms stated that there was dispute between Gautam and Nanu Ram and Gautam pelted stone towards Nanu Ram which hit Jeeva who came in between them and on inquiring from accused, he told that he had pelted stone towards Nanu Ram which hit Jeeva. 14. On reappraisal of the evidence of above mentioned eye witnesses, there is no manner of doubt that PW7 Nanu Ram, who has lodged the FIR, has resiled from the statement mentioned in the FIR. In the FIR, he has in unequivocal terms stated that accused pelted stone towards Jeeva whereas in oral testimony he has stated that when Gautam pelted the stone there were 7-8 persons and the stone could strike to anyone but it struck Jeeva whereas PW13 Kana, father of deceased Jeeva, in his cross examination has stated that Gautam pelted stone towards Nanu Ram which hit Jeeva who came in between them. [13] 15. On overall view of the matter, according to us, accused was having no intention either to kill Nanu Ram or deceased Jeeva. If there was intention to kill anyone the accused would have come with dangerous weapon but he came without weapon, therefore, his act falls under Clause III of Sec.299, which defines “culpable homicide not amounting to murder”, punishable under Sec.304 Part II vis-à- vis it can be termed as an act covered under Exception IV of Sec.300 IPC, which also provides punishment for culpable homicide not amounting to murder, if the act is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without offender having taken undue advantage or acted in a cruel or unusual manner. In the instant case, there was dispute between Gautam and Nanu Ram and the accused pelted stone towards Nanu Ram which hit deceased Jeeva. Therefore, in our view the contention of the learned counsel that it is a [14] case falling under Sec. 304 Part II IPC is full of merit. 16.Similar question arose before the Supreme Court in Tholan Vs. State of Tamil Nadu (AIR 1984 SC 759). In the said case, the accused started remonstrations using filthy language against certain organizers of a chit fund in front of the house of deceased, who had no connection with the deceased. The deceased came out of his house and asked the accused to go away and the accused on spur of moment gave only one blow with knife to the deceased and pushed him to some distance. In the circumstances, the Supreme Court held that though requisite intention to commit murder could not be attributed to the accused, he wielded a weapon like a knife and therefore he could be attributed with knowledge that he was likely to cause an injury which was likely to cause death and that in such a situation though he could not be convicted under Sec.302, he would be guilty of [15] committing an offence under Sec.304 Part II. 17.The principle enunciated by the Supreme Court in the aforesaid case is squarely applicable to the instant case and at the cost of repetition be it stated that the accused had no intention either to kill deceased Jeeva or Nanu Ram. If there was an intention to kill anyone, he would have come with dangerous weapon. Accused Gautam had a dispute with Nanu Ram in connection with dancing, and while he pelted the stone, it hit Jeeva, who on receiving the injury died, as such at the most knowledge can be attributed to the accused. Furthermore, it is not the case of the prosecution that the accused came armed with weapon. The accused came without any weapon and he picked up a stone at the spur of moment from the site of incident, which was of the weight less than one kg, therefore, intention cannot be attributed to the accused. Thus, according to us, the act of the accused is not murder punishable under Sec.302 [16] IPC, but it is a culpable homicide not amounting to murder punishable under Sec.304 Part II IPC. 18.Seen in the above context, appeal deserves to be allowed in part and accordingly conviction and sentence recorded for the offence under Sec.302 IPC deserves to be altered from Sec.302 to 304 Part II IPC. 19.For the foregoing reasons, appeal succeeds in part and accordingly it is partly allowed. Consequently, the conviction and sentence recorded against accused Gautam under Sec.302 is altered to Sec.304 Part II IPC and he is sentenced to rigorous imprisonment for four years and fine Rs.5,000, in default of payment of fine to further undergone simple imprisonment for one year. 20.Accused is in jail. He shall serve out the remaining period of sentence. ( SANGEET LODHA),J. ( A.M. KAPADIA ),J. [17] jpa/