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2019 Supreme(Raj) 1682
IN THE HIGH COURT OF RAJASTHAN AT JAIPUR BENCH
Mr. Kanwaljit Singh Ahluwalia and Mr. Goverdhan Bardhar, JJ.
Dilip - Appellant
Versus
State Of Rajasthan - Respondent
Criminal Appeal No. 1124 of 2015 Connected with D.B, Criminal Leave To Appeal No. 26 of 2016
Decided On : 08-05-2019
Mr. Biri Singh Sinsinwar Senior Advocate with Mr. Rajesh Choudhary, Advocate, for the Appellant; Mr. Javed Choudhary PP, for the State
The intention to commit murder is an essential element of the offense of murder under Section 302 IPC, and the absence of such intention can lead to a conviction for culpable homicide not amounting to murder under Section 304 Part II IPC.
Headnote:
MURDER - SECTION 302, 304 PART II, 148, 325/149, 323/149 IPC - SUMMARY OF FACTS, FINDINGS, ISSUES, RATIO DECIDENDI AND FINAL DECISION
Fact of the Case:
A land dispute between two families led to a physical altercation, resulting in the death of one person. The accused, Dilip, struck the deceased, Babu, on the head with an iron rod, causing fatal injuries. Other family members from both sides arrived at the scene and inflicted injuries on each other.
Finding of the Court:
The court found that the accused, Dilip, had the knowledge that striking the deceased on the head with an iron rod could cause death, but he did not intend to commit murder. The court also found that the common object of the unlawful assembly that formed after the initial altercation was not to commit murder, as the injuries inflicted by other family members were not fatal.
Issues: 1. Whether the accused, Dilip, intended to commit murder when he struck the deceased on the head with an iron rod? 2. Whether the common object of the unlawful assembly that formed after the initial altercation was to commit murder?
Ratio Decidendi: 1. The court held that the accused, Dilip, did not intend to commit murder, as he only struck the deceased on the head with an iron rod once and did not intend to cause fatal injuries. 2. The court held that the common object of the unlawful assembly that formed after the initial altercation was not to commit murder, as the injuries inflicted by other family members were not fatal.
Final Decision: The court convicted the accused, Dilip, of culpable homicide not amounting to murder under Section 304 Part II IPC and sentenced him to seven years of rigorous imprisonment and a fine of Rs. 20,000. The court upheld the conviction and sentence of the accused for the offenses under Sections 148, 325/149, and 323/149 IPC.
JUDGMENT
Kanwaljit Singh Ahluwalia, J. (Oral) - Dilip son of Teju Raigar alongwith his four brothers namely Mukesh, Mahendra Kumar, Gyanchand and Shankar Lal was tried by the court of Additional Sessions Judge No.4, Ajmer. The investigating agency had also sent two ladies namely Smt. Parbati wife of Mukesh Raigar and Smt. Maya wife of Gyanchand for the trial alongwith above five said brothers. All the seven accused belong to one family.
2. The court of Additional Sessions Judge No.4, Ajmer vide impugned judgment dated 9.10.2015 acquitted Smt. Parbati and Smt. Maya of all the offences. The trial Judge individually held accused Dilip guilty of offence of murder and convicted him for the offences under Sections 148, 302, 325/149 and 323/149 IPC, whereas co-accused Mukesh, Mahendra Kumar, Gyanchand and Shankar Lal all the four brothers of Dilip were convicted for the offences under Sections 148, 325/149 and 323/149 IPC. Mukesh, Mahendra Kumar, Gyanchand and Shankar Lal were acquitted of offence under Section 302/149 IPC.
3. Having convicted the appellant Dilip for above said offences, the trial Judge vide a separate order of even date sentenced him as under:-
U/s. 302 IPC-to undergo rigorous life imprisonment and to pay a fine of Rs. 5,000/-, in default of payment of fine to further undergo additional three months RI.
U/s. 148 IPC-to undergo six months SI and to pay a fine of Rs. 500/-, in default of payment of fine to further undergo additional seven days SI.
U/s. 325/149 IPC-to undergo two years SI and to pay a fine of Rs. 2,000/-, in default of payment of fine to further undergo additional one month SI.
U/s. 323/149 IPC-to undergo six months SI and to pay a fine of Rs. 1,000/-, in default of payment of fine to further undergo additional fifteen days SI.
4. All the sentences were ordered to run concurrently.
5. Mukesh, Mahendra Kumar, Gyanchand and Shankar Lal were released on probation.
6. Aggrieved against his conviction and sentence, Dilip has filed D.B. Cr. Appeal No.1124/2015. State of Rajasthan has also assailed acquittal of Mukesh, Mahendra Kumar, Gyanchand and Shankar Lal for offence under Section 302/149 IPC and they have also questioned the acquittal of Smt. Parbati and Smt. Maya by instituting D.B. Cr. Leave to Appeal No. 26/2016.
7. In D.B. Cr. Leave to Appeal No. 26/2016, till today no notice has been issued.
8. We shall decide D.B. Cr. Appeal No. 1124/2015 and D.B. Cr. Leave to Appeal No. 26/2016 together, as in both the cases impugned judgment is common.
9. The criminal proceedings in the present case were set into motion on the basis of statement Exhibit-P/1 made by Naurat Mai (P.W.1) before ASI Kan Singh (P.W.16), Police Station Nasirabad Sadar. On the basis of statement (Exhibit-P/1), a formal FIR (Exhibit-P/41) bearing No.151/2011 was registered at Police Station Nasirabad Sadar, Ajmer for the offences under Sections 143, 149 and 307 IPC. Subsequently, due to death of Babu injured, offence under Section 302 IPC was added.
10. The statement (Exhibit-P/1) on the basis of which FIR (Exhibit-P/41) was registered, when translated into English, reads as under:-
"Statement of Naurat Mai s/o Pachu Ji, by caste Raigar, aged 45 years, resident of Banewada, At Present Casualty Ward, JLNH Ajmer. Vide investigation copy report No.03 general Rojnamcha Police Station Nasirabad Sadar.
On asking, made statement that I do labour work. My family is having a land dispute with the family of Teju. Due to this, in the morning at 7:00 AM, Dilip son of Teju started picking up Barda (debris) (we are informed that Barda consists of sand, earth stones etc... or is called Malba in common parlance) kept in front of our house. My wife Ramti restrained him and asked that why he is picking up Debris. Upon which, Dilip said that he will do so. Then my younger brother Babu went to him and told him not to pick up Barda. Dilip was having a lathi in his hand. With an intention to kill, he gave lathi blow on the head of my brother Babu due to which, he fell on the
