2013 Supreme(Raj) 1801
RAJASTHAN HIGH COURT
Gopal Krishna Vyas, Banwari Lal Sharma, JJ.
Bhanwar Singh - Appellant
Versus
State of Rajasthan - Respondent
D.B. Criminal Jail Appeal No. 378 of 2009.
Decided On : 17-09-2013
Advocates:
For the Appellant:K.R. Bhati, Advocate.
For the Respondent: K.R. Bishnoi, Public Prosecutor.
In the absence of direct evidence of the accused-appellant causing the fatal injury, and in the presence of evidence suggesting that the death was caused by a fall rather than a deliberate act of violence, a conviction for murder under Section 302, I.P.C. cannot be sustained. Instead, a conviction for culpable homicide not amounting to murder under Section 304 Part-II, I.P.C. may be appropriate.
Headnote:
CRIMINAL APPEAL - SECTION 302, 304 PART-II, I.P.C. - CONVICTION - MODIFICATION - SENTENCE - REDUCTION - INTERPRETATION OF EVIDENCE - INTENTION - MOTIVE - SUDDEN QUARREL - CAUSATION OF INJURY - FALLING DOWN - DEATH - CULPABLE HOMICIDE NOT AMOUNTING TO MURDER - SENTENCE ALREADY SERVED - RELEASE - SECTION 302, 304 PART-II, I.P.C.
Fact of the Case:
Accused-appellant was convicted for the murder of Nand Ram Gurjar under Section 302, I.P.C. and sentenced to life imprisonment. The prosecution alleged that the accused-appellant beat the deceased to death in a drunken state. However, several prosecution witnesses turned hostile during the trial, and there was no direct evidence of the accused-appellant causing the fatal injury.
Finding of the Court:
The court found that the prosecution failed to establish the motive and intention of the accused-appellant to commit murder. It also found that the evidence did not support a conviction for murder under Section 302, I.P.C., but rather for culpable homicide not amounting to murder under Section 304 Part-II, I.P.C.
Issues: 1. Whether the prosecution had established the motive and intention of the accused-appellant to commit murder under Section 302, I.P.C.? 2. Whether the evidence supported a conviction for murder under Section 302, I.P.C., or only for culpable homicide not amounting to murder under Section 304 Part-II, I.P.C.?
Ratio Decidendi: 1. The court held that the prosecution had failed to establish the motive and intention of the accused-appellant to commit murder. It noted that there was no direct evidence of the accused-appellant causing the fatal injury, and that the evidence suggested that the death was caused by a fall rather than a deliberate act of violence. 2. The court held that the evidence did not support a conviction for murder under Section 302, I.P.C., but rather for culpable homicide not amounting to murder under Section 304 Part-II, I.P.C. It noted that the accused-appellant and the deceased were both drunk at the time of the incident, and that there was no evidence of premeditation or planning.
Final Decision: The court modified the conviction of the accused-appellant from Section 302, I.P.C. to Section 304 Part-II, I.P.C., and reduced the sentence to the term already served. The accused-appellant was ordered to be released forthwith.
JUDGMENT
1. - During the course of arguments upon the application for suspension of sentence, both tire parties submit that the appeal itself may be heard finally. Therefore, with the consent of the parties, the above criminal jail appeal is finally heard.
2. Instant criminal jail appeal was registered on the basis of appeal sent by them accused-appellant Bhanwar Singh S/o Vijay Singh from jail, who was sentenced to life imprisonment by the Addl. sessions Judge (hast track) No. 1, Bhilwara vide judgment dated 10.4.2009, whereby, in Criminal Case No. 28/2008, the accused-appellant Bhanwar Singh was convicted for commission of offence under Section 302, I.P.C. and punishment of life imprisonment was awarded to him along with fine of 10,000/- and, in default of payment of fine, to further undergo six months rigorous imprisonment.
3. As per facts of the case, an F.I.R. was registered against the accused-appellant on 6.4.2008 at about 9.30 A.M. at Police Station Hamirgarh (District Bhilwara) on a written complaint made by complainant Shankar Lal, PW-4. In the written complaint filed by Shankar Lal it was specifically mentioned that on the last night after closing his hotel at about 10-10.15 P.M. he left the hotel for his house and, in his hotel, his workers Harish Kumar Bhadu, Babu Lal and Dharam Raj were sleeping. In the morning of 6.4.2008 when he (complainant Shankar Lal) reached his hotel he was informed by his employees that Bhanwar Singh Chowkidar (accused-appellant) came there in the night with deceased Nand Ram Gurjar and, at that time, he was beating Nand Ram Gurjar with hands and legs and while so beating the deceased Bhanwar Singh took Nand Ram Gurjar behind the hotel. In the morning, they found Nand Ram Gurjar lying dead. The complainant made a phone call to the concerned Police Station and reported the incident that accused Bhanwar Singh assaulted deceased Nand Ram Gurjar and due to beating Nand Ram died.
4. The S.H.O., Police Station Hamirgarh registered F.I.R. No. 51/2008 and commenced the investigation. After investigation, the police filed challan against the accused-appellant and during the investigation statements of prosecution witnesses were recorded under Section 161, Cr.P.C. and dead body of late Nandram Gurjar was brought to the hospital where post mortem was conducted and report Ex.14 was given by the Medical Board on 6.4.2008.
5. After filing challan, charge under Section 302, I.P.C. was framed against the accused-appellant by the trial Court and accused-appellant refuted the allegations levelled against him. Thereafter, trial was commenced by the trial Court.
6. During the course of trial, in all, statements of 19 prosecution witnesses were recorded by the trial Court, out of which, PW-1 Mohan Lal, PW-2 Ganpat Singh, PW-4 Shankar Lal, PW-13 Babu Meghvanshi, PW-14 Dharam Raj and PW-18 Desh Kumar turned hostile and did not support the prosecution story. The prosecution examined PW-11 Dr. Vijay Maheshwari and PW-12 Dr. Vineeta Gurava and, as per tire opinion given by the doctors in the post mortem report, the deceased Nand Ram Gurjar died due to grievous injury of liver.
7. After recording statements of the prosecution witnesses, statement of accused-appellant was recorded under Section 313, Cr.P.C. in which he refuted all the charges levelled against him but he did not lead any evidence in his defence.
8. The trial Court after taking into consideration entire evidence on record convicted the accused-appellant for offence under Section 302, I.P.C. and passed sentence of life imprisonment vide judgment dated 10.4.2009.
9. Learned counsel appearing on behalf of the accused-appellant submits that although there is no direct evidence against the accused-appellant for convicting him for offence under Section 302, I.P.C. but the circumstances in which the alleged occurrence took place loudly speak that it is not a case of offence under 302, I.P.C. Probably the deceased died due to injury inflicted by hand in the stomach b
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