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2018 Supreme(Raj) 361
IN THE HIGH COURT OF RAJASTHAN
SANGEET LODHA, VIRENDRA KUMAR MATHUR, JJ.
BHANWAR SINGH - Appellant
Versus
STATE OF RAJASTHAN - Respondent
Criminal Appeal No. 377 of 2007
Decided on : 09-02-2018
For the Appellant :Mr. Nishant Bora with Mr. Ankit Jethwani and Mr. Saransh Vij, Advocates.
For the Respondent: Mr. J.P.S. Choudhary, PP.
The intention to cause death or bodily injury likely to cause death is an essential element of the offence of murder under Section 302 IPC. In the absence of such intention, the conviction can be altered to culpable homicide not amounting to murder under Section 304 Part-II IPC.
Headnote:
CRIMINAL APPEAL - SECTION 302/34 IPC - CONVICTION - ALTERATION OF CONVICTION FROM SECTION 302/34 IPC TO SECTION 304 PART-II/34 IPC - INTENTION TO CAUSE DEATH - EVIDENCE - MEDICAL EVIDENCE - INJURIES - CAUSE OF DEATH - COMMON INTENTION - MOTIVE - HOSTILE WITNESSES - SOLE EYE WITNESS - CREDIBILITY - TESTIMONY - RELIABILITY - CONTRADICTIONS - POLICE STATEMENT - COURT DEPOSITION - MINOR CONTRADICTIONS - TRUSTWORTHINESS - RECOVERIES - SHARP EDGED WEAPON - ABSENCE OF INJURIES CAUSED BY SHARP WEAPON - COMMON INTENTION TO BELABOUR - MOTIVE - ORAL EVIDENCE - EXPLANATION OF INJURIES - SUPERFICIAL INJURIES - SELF-INFLICTED INJURIES - CULPABLE HOMICIDE - MURDER - CONVICTION UNDER SECTION 302/34 IPC - ALTERATION TO SECTION 304 PART-I OR 304 PART-II/34 IPC - INTENTION TO CAUSE DEATH OR BODILY INJURY LIKELY TO CAUSE DEATH - KNOWLEDGE OF LIKELIHOOD OF DEATH - SENTENCE - REDUCTION.
Fact of the Case:
The appellants were convicted and sentenced for the murder of Mag Singh. The prosecution alleged that the appellants, armed with lathis and an axe, obstructed the way of Mag Singh and beat him to death. Two eye witnesses turned hostile, but the testimony of a third eye witness, Mool Singh, was found to be credible and reliable. The appellants claimed that they were in Gujarat at the time of the incident and that the injuries on their bodies were caused during the beating. The trial court convicted the appellants under Section 302/34 IPC and sentenced them to life imprisonment.
Finding of the Court:
The court found that the testimony of the sole eye witness, Mool Singh, was credible and reliable. The court also found that the appellants had a common intention to belabour the deceased and that the motive for the incident was a previous quarrel between the deceased and the brother of the appellants. However, the court found that the appellants did not intend to cause the death of the deceased or to cause such bodily injury as was likely to cause death. The court therefore altered the conviction from Section 302/34 IPC to Section 304 Part-II/34 IPC and sentenced the appellants to four years rigorous imprisonment.
Issues: 1. Whether the testimony of the sole eye witness, Mool Singh, was credible and reliable. 2. Whether the appellants had a common intention to belabour the deceased. 3. Whether the motive for the incident was a previous quarrel between the deceased and the brother of the appellants. 4. Whether the appellants intended to cause the death of the deceased or to cause such bodily injury as was likely to cause death.
Ratio Decidendi: 1. The court held that the testimony of the sole eye witness, Mool Singh, was credible and reliable. The court noted that Mool Singh had no reason to falsely implicate the appellants and that the contradictions between his police statement and his court deposition were minor and trivial. 2. The court held that the appellants had a common intention to belabour the deceased. The court noted that the appellants were hiding behind plants in Kan Singh's field and that they assaulted the deceased when he reached the place. This proved their common intention to belabour the deceased beyond reasonable doubt. 3. The court held that the motive for the incident was a previous quarrel between the deceased and the brother of the appellants. The court noted that the deceased had beaten the brother of the appellants after the brother attempted to commit theft. This incident was sufficient to provide a motive for the appellants to belabour the deceased. 4. The court held that the appellants did not intend to cause the death of the deceased or to cause such bodily injury as was likely to cause death. The court noted that none of the injuries inflicted on the deceased were fatal and that the cause of death was the cumulative effect of the multiple injuries. The court also noted that the appellants had not used sharp edged weapons to inflict the injuries.
Final Decision: The court partly allowed the appeal of the appellants and set aside their conviction for offences under Section 302/34 IPC. The court instead convicted them for offence under Section 304 Part-II/34 IPC and sentenced each of them to suffer four years rigorous imprisonment. The conviction of accused appellant Gayad Singh under Section 4/25 of the Arms Act and sentence awarded by the trial court was also maintained.
SANGEET LODHA, J.
1. This appeal is directed against judgment dated 1.5.07 passed by the Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Jodhpur in Sessions Case No.97/05, whereby the accused appellants have been convicted and sentenced as under :
Bhanwar Singh, Jaswant Singh & Sawai Singh
Section 302/34 I.P.C.
Imprisonment for life and a fine of Rs. 3000/- ; in default of payment of fine to further undergo two years' simple imprisonment.
Gayad Singh
Section 302/34 I.P.C.
Imprisonment for life and a fine of Rs. 3000/-; in default of payment of fine to further undergo two years' simple imprisonment.
Section 4/25 of Arms Act
One year's simple imprisonment and a fine of Rs. 500/-; in default of payment of fine to further undergo 15 days' simple imprisonment.
All the sentences have been directed to run concurrently.
2. The prosecution story as unfolded during the trial may be summarized thus: Mag Singh s/o Guman Singh, resident of Bidadnagar(Tena) was engaged for the job of digging of nadi under Famine Relief Work. On 23.5.05, Mag Singh accompanied by Gulab Singh S/o Mool Singh was going to attend his duties. On the way, Mool Singh S/o Dhan Singh also joined him. When they hardly covered the distance of 200-300 steps from Mool Singh Ki Dhhani, Bhanwar Singh, Gayad Singh, Jaswant Singh and Sawai Singh, all sons of Padam Singh, who were sitting hided in Kan Singh's Kheda, armed with Lathis and Dharia obstructed the way of Mag Singh and with intention to kill started beating him with Lathis and Dharia. They warned Mool Singh and Gulab Singh that they should remain away from Mag Singh, else they would also be killed. After beating, all the four persons fled away from the place. On account of injuries suffered, Mag Singh fell down on the spot. Mool Singh and Gulab Singh informed Khiv Singh about the incident occurred, who rushed to the place of occurrence and found his brother Mag Singh lying unconscious. On account of injuries suffered on head, hands and back, the blood was oozing out of his body. Khiv Singh accompanied by Mool Singh, Roop Singh s/o Bagatavar Singh, Bheru Singh s/o Chutar Singh put the injured-Mag Singh in a camel cart and proceeded to hospital at Shergarh, however, Mag Singh expired on the way just before 2 kms from Shergarh. Deceased Mag Singh in the same camel cart was taken to police station, Shergarh and a written report (Ex.P 2) was submitted to the SHO, Police Station, Shergarh.
3. On the basis of the written report (Ex.P2), the police registered an FIR (Ex.P3) for offence under Section 302/34 IPC and investigation commenced.
4. After inquest proceedings, the body of the deceased Mag Singh was subjected to autopsy by Dr. Ganpat Singh Purohit, Medical Officer, Community Health Centre, Shergarh. During the investigation, necessary memos were prepared. Accused persons were arrested and at their instance, recovery of the Lathis, Axe etc. were made. The blood stained cloth of the deceased, the blood stained pant of accused Bhanwar Singh, Lathis and Axe were recovered, which were sent for examination to the Forensic Laboratory. The FSL Report was obtained.
5. After completion of investigation, the police filed charge sheet against accused appellants-Bhanwar Singh, Jaswant Singh and Sawai Singh for offence under Section 302/34 IPC and against Gayad Singh for offences under Section 302/34 IPC and 4/25 of Arms Act before the Judicial Magistrate, Balesar, District Jodhpur, which was committed to the Session Judge, Jodhpur, which was later transferred for trial to the Court of Additional Sessions Judge (Fast Track) No.1, Jodhpur.
6. The trial Judge framed the charges against the accused Bhanwar Singh, Jaswant Singh and Sawai Singh for offence under Section 302 or 302/34 and against accused Gayad Singh for offence under Section 302 or 302/34 IPC and Section 4/25 of Arms Act. The accused appellants pleaded guilty and claimed trial.
7. During the trial, the prosecution got examined as many as 26 witnesses (PW 1 to PW 26
