1994 Supreme(Raj) 986
RAJASTHAN HIGH COURT
J.R.Chopra, Rajendra Saxena, JJ.
Ghewaria and Ors. - Appellant
Versus
State of Rajasthan - Respondent
D.B. Criminal Appeal No. 355 of 84.
Decided On : 29-11-1994
The intention to kill is a necessary element for the offence of murder under section 302 I.P.C. In the absence of such intention, the offence may be reduced to culpable homicide not amounting to murder under section 304 Part II I.P.C.
Headnote:
CRIMINAL APPEAL - SECTION 302, 304 PART II, 147, 149 I.P.C. - INTENTION TO KILL - COMMON OBJECT - NATURE OF INJURIES - CONVICTION UNDER SECTION 302/149 I.P.C. SET ASIDE - CONVICTION UNDER SECTION 304 PART II/149 I.P.C. MAINTAINED - SENTENCE.
Fact of the Case:
The accused appellants were convicted under section 302 read with 149 & 147 I.P.C. for causing the death of Ghevariya. The prosecution alleged that the accused appellants, armed with lathies, inflicted injuries on Ghevariya, resulting in his death. The accused appellants admitted to causing the injuries but claimed that they did not intend to kill Ghevariya.
Finding of the Court:
The court found that the accused appellants had a common object to cause death, as they came armed and conjointly attacked Ghevariya. However, the court also found that the injuries inflicted by the accused appellants were not on vital parts of the body and were not likely to cause death. Therefore, the court held that the accused appellants were guilty of culpable homicide not amounting to murder under section 304 Part II read with 149 I.P.C.
Issues: 1. Whether the accused appellants had the intention to kill Ghevariya? 2. Whether the injuries inflicted by the accused appellants were likely to cause death?
Ratio Decidendi: The court held that the accused appellants did not have the intention to kill Ghevariya, as the injuries inflicted by them were not on vital parts of the body and were not likely to cause death. The court relied on the nature of the injuries, the parts of the body assailed, and the internal effect of the injuries to conclude that the accused appellants were guilty of culpable homicide not amounting to murder under section 304 Part II read with 149 I.P.C.
Final Decision: The court set aside the conviction of the accused appellants under section 302/149 I.P.C. and instead convicted them under section 304 Part II/149 I.P.C. The accused appellants were sentenced to five years rigorous imprisonment together with a fine of Rs. 200/- each for the offence under section 304 Part II read with 149 I.P.C. and six months rigorous imprisonment for the offence under section 147 I.P.C. All the substantive sentences were to run concurrently.
JUDGMENT
1. 1. This appeal is directed against the judgment of the learned Sessions Judge, Pali dated 19.9.1984, whereby the learned Sessions Judge has held the accused appellants Ghevaria, Pema, Bhudia, Bhakaria, Meria and Mangiva guilty of the offence under section 302 read with 149 & 1471.P.C. and sentenced each one of them to life imprisonment for the offence under section 302/149 I.P.C. and for the offence under section 1471.P.C. No separate sentence has been recorded because the accused persons have already remained in jail for more than six months and two accused persons Amana and Binjiya have been acquitted by giving them the benefit of doubt.
2. The facts necessary to be noticed for the disposal of this appeal briefly stated are that on 1.4.1983 at about 5 p.m. PW 3 Shaitana lodged an oral report at Police Station, Sojat City. On this information a F.I.R. (Ex.P. 6) was registered by Mohan Lal, S.H.O., P.S. Sojat City, wherein it was reported that on that day PW 3 Shaitana and his brother PW 4 Jeeva were grazing their goat and sheep- herd in the "Jav" of Radha Krishan Brahmin from where at a distance of 100 ft. in the 'Jav7 of Mangilal Ji Brahmin, Ghevaria son of Bhopal Raika resident of Nimbli Nadi, was also grazing his sheep & goat herd. At about 3 p.m. accused Ghevaria, Meria sons of Sardara, Bhudia son of Shiyji, Pema and Bhakariya sons of Magi, Mangla son of Vena all Raikas by caste and residents of Nimbli Nadi all went to Amana and Binjiya, who were also grazing their goat and sheep herd in the nearby fields and after staying with them for 5 minutes, all the eight persons came towards Ghevaria deceased. They were all armed with lathies and they started inflicting lathi blows to Ghevaria and when Shaitana and Jeeva tried to intervene they were threatened with death by Amana and Binjiya, who also ran towards them and thereupon for saving their lives they ran away from the place of occurrence and came to Dola Nadi. These two accused persons ran after them upto 3-4 fields and thereafter they went to their house. After 5-10 minutes the police came there in a jeep and inquired from them as to whether they have seen Ghevaria, Bhakariya, Mangiya, Bhudia, Pema because they have killed Goparam Raika, whereupon he informed them that they have seen them inflicting injuries to Ghevaria. They were then asked to point out the place where Ghevaria was being beaten. They showed to the police the place where Ghevariya was lying injured. Shaitana went and reported the matter to the police. Ghevariya was shifted to the Hospital at Sojat where he succumbed to his injuries. His post-mortem examination (Ex.P. 10) was got conducted by Dr. J.S. Bhandari. After usual investigation the case against all the eight accused persons was challaned in the court of learned Munsif and Judicial Magistrate, Sojat City, wherefrom it was committed for trial to the court of learned Sessions Judge, Pali, who after holding the trial convicted and sentenced the accused appellants as aforesaid. Hence this appeal.
3. The State has filed a leave to appeal against the acquittal of Amana and Binjiya, but the same has been rejected. Be that it may, we have heard Mr. M.L. Garg appearing for the appellants and Mr. C.R. Jhakhar, Public Prosecutor appearing for the State and have critically gone through the record of the case.
4. In this case the occurrence is not disputed by Mr. M.L. Garg meaning thereby that he does not dispute that the injuries to deceased Ghevariya were inflicted by these six accused appellants, but he has submitted that these injuries have been inflicted on the non-vital parts of the deceased's dead body. No injury was inflicted by the accused appellants either on the head, chest or other vital parts of the body. Rather no grievous injuries have been received by the deceased on his head, chest or any other vital part of the body and, therefore, the case against the accused appellants does not travel beyond section 304 Part II, I.P.C.
5. It may be s
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