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2018 Supreme(Raj) 179
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
SANGEET LODHA, VIRENDRA KUMAR MATHUR, JJ.
Hamira s/o Shri Roopa Garasiya - Appellant
Versus
The State of Rajasthan - Respondent
D.B. Criminal Appeal No. 498 of 2014
Decided On : 22-03-2018
For the Appellants : Mr. K.R. Bhati
For the Respondents: Mr. C.S. Ojha
In cases of culpable homicide, the intention to cause death or to cause such bodily injury as is likely to cause death is a crucial factor in determining the degree of culpability. Where the accused acts under sudden provocation or without the requisite mens rea, the conviction may be altered from murder to culpable homicide not amounting to murder.
Headnote:
CRIMINAL APPEAL - SECTION 302 IPC - MURDER - CONVICTION - ALTERATION TO SECTION 304 PART II IPC - CULPABLE HOMICIDE NOT AMOUNTING TO MURDER - INTENTION TO CAUSE DEATH - KNOWLEDGE OF LIKELIHOOD OF DEATH - NATURE OF INJURIES - EVIDENCE OF EYE WITNESSES - CREDIBILITY - MINOR CONTRADICTIONS - MEDICAL EVIDENCE - CAUSE OF DEATH - MULTIPLE INJURIES - LACK OF ENMITY - SUDDEN PROVOCATION - SENTENCE.
Fact of the Case:
The appellant was convicted of murder under Section 302 IPC for causing the death of Prabhu by inflicting head injuries with a stone. The prosecution case was based on the testimony of eye witnesses who claimed to have seen the appellant assaulting Prabhu. The appellant denied the charges and claimed that Prabhu's death was caused by an accident.
Finding of the Court:
The court found that the appellant had caused injuries to Prabhu's head with a stone, but that the injuries were not sufficient in the ordinary course of nature to cause death. The court also found that there was no enmity between the appellant and Prabhu, and that the appellant had acted under sudden provocation.
Issues: 1. Whether the appellant had the intention to cause death or to cause such bodily injury as is likely to cause death. 2. Whether the conviction of the appellant under Section 302 IPC should be altered to Section 304 Part II IPC.
Ratio Decidendi: The court held that the appellant did not have the intention to cause death or to cause such bodily injury as is likely to cause death. The court relied on the nature of the injuries, the lack of enmity between the appellant and Prabhu, and the sudden provocation as factors indicating that the appellant did not have the requisite mens rea for murder. The court also considered the fact that the appellant had acted spontaneously during the heat of the moment.
Final Decision: The court partly allowed the appeal, setting aside the conviction of the appellant under Section 302 IPC and convicting him instead under Section 304 Part II IPC. The appellant was sentenced to seven years of rigorous imprisonment and a fine of Rs. 25,000.
Mr. Sangeet Lodha, J.
1. This appeal is directed against the judgment and order dated 02.06.2014 passed by the Additional Session Judge No. 2, Udaipur in Session Case No. 51/13, whereby the appellant has been convicted for offence under Section 302 IPC and sentenced to suffer life imprisonment with fine Rs.25,000/-; in default of payment of fine to further undergo simple imprisonment for one year.
2. The prosecution story as unfolded during the trial may be summarized thus: on 25.5.13 in the night Prabhu s/o Bhimraj was sleeping on the cot in padsal. At that time, Hamira s/o Roopa Garasiya resident of Sarkakheda came abusive and shouted at Prabhu to come out. Prabhu came out and tried to take him to the house by pacifying. When they reached near the rapat built on nala, Hamira started beating Prabhu with stone. On Prabhu raising hue and cry, Ratan s/o Sava Parmar (PW 2), Prabhu’s mother Dhanki Bai (PW 7), Oga s/o Bhura (PW 9) rushed to the spot and saw Prabhu lying on the ground, blood was oozing out from his head. On account of Hamira inflicting injury with stone on head, Prabhu died on the spot.
3. Prakash (PW 3) submitted a written report (Ex.P/5) to the Police Station, Ogna. The police registered the FIR (Ex.P/6) for offence under Section 302 IPC and the investigation commenced.
4. After inquest proceedings, the body of the deceased Prabhu was subjected to autopsy by Dr. Dharmendra Garasiya (PW 12), Senior Medical Officer, Community Health Centre, Jhadol. During the investigation, necessary memos were prepared. Accused appellant was arrested vide arrest memo (Ex.P/18). The statements of witnesses were recorded under Section 161 Cr.P.C. The blood stained stone, blood smeared soil, control soil and two napkins seized were sent for examination to the Forensic Science Laboratory and the FSL Report was obtained.
5. After completion of investigation, the police filed charge sheet against appellant accused for offence under Section 302 IPC before the Additional Chief Judicial Magistrate, Jhadol, who while taking cognizance committed the matter to the Session Judge, Udaipur, which was later transferred for trial to the Court of Additional Sessions Judge No.2, Udaipur.
6. The trial Judge framed the charges against the appellant accused for offence under Section 302 IPC. The appellant accused pleaded not guilty and claimed trial.
7. During the trial, the prosecution examined as many as 15 witnesses (PW 1 to PW 15). The documentary was exhibited as Ex.P/1 to Ex.P/23. The appellant accused was examined u/s. 313 Cr.P.C., wherein while denying the prosecution evidence, he claimed that Prabhu was sitting on tractor trolly which on account of jump fell in a pit, Prabhu fell down on the stones and died. He denied to have caused death of Prabhu. No witness was examined in defence, however, documentary evidence was exhibited as Ex.D/1 to Ex.D/4.
8. The learned trial Court after considering the evidence on record and the submissions made by the parties, convicted and sentenced the appellant accused as indicated above. Hence, this appeal.
9. Mr. K.R. Bhati, learned counsel appearing for the appellant submitted that the learned trial Judge has failed to appreciate the evidence on record in correct perspective which has resulted in erroneous findings being arrived at. Learned counsel submitted that alleged eye witnesses being relative of deceased were highly interested witnesses and thus, the conviction based on their testimony is not sustainable in the eyes of law. The testimony of eye witnesses suffers from lot of contradiction regarding the time and place of occurrence. It is submitted that as per the Post Mortem Report, the death was caused on account of head injuries which are alleged to be inflicted by the accused with stone. It is submitted that looking at the nature of the injuries in no manner it can be inferred that the appellant had an intention to cause death of Prabhu. Learned counsel would submit that the injury was caused under g
