Back
2018 Supreme(Raj) 2281
IN THE HIGH COURT OF RAJASTHAN AT JAIPUR BENCH
Mr. Mohammad Rafiq and Mr. Goverdhan Bardhar, JJ.
Ghanshyam - Appellant
Versus
State Of Rajasthan - Respondent
Criminal Appeal No. 461 of 1990
Decided On : 01-05-2018
Shri Sanjay Gangwar, Advocate, for the Appellants; Mr. R.S. Raghav, PP, for the Respondent
In a case of murder, if the evidence shows that the accused had the intention to kill the deceased, but the death was caused in a sudden fight or in the heat of passion, the accused would be guilty of culpable homicide not amounting to murder under Section 304 Part-I IPC.
Headnote:
CRIMINAL APPEAL - MURDER - SECTION 302/34 IPC - CONVICTION - EVIDENCE - EYE WITNESSES - INJURY CAUSED - INTENTION TO KILL - SUDDEN FIGHT - CULPABLE HOMICIDE NOT AMOUNTING TO MURDER - SECTION 304 PART-I READ WITH 34 IPC - SENTENCE.
Fact of the Case:
The accused-appellants were convicted for the murder of Rajendra S/o Mool Chand and sentenced to life imprisonment. The prosecution alleged that the accused-appellants along with 7 other persons gave beating to Rajendra and Dhanna @ Rajendra S/o Mool Chand by 'lathis' and iron rod. They thereby got serious injurious and ultimately Rajendra S/o Mool Chand died.
Finding of the Court:
The court found that the evidence of the eye witnesses was not very clear as to the specific role played by each of the accused, but one of them however has attributed the head injury of the deceased Rajendra S/o Mool Chand to accused-appellant Ghanshyam. However, his eventual death was brought about as a result of injury no.3, which has not been specifically attributed to the sole surviving accused-appellant. But at the same time, the evidence also shows that the accused and the deceased participated in the drink party together and then the incident took place in a sudden quarrel. Presence of alcohol in the stomach of deceased has been found even by Dr. B.L. Bhatiya, who conducted the postmortem.
Issues: 1. Whether the accused-appellants were guilty of murder under Section 302/34 IPC? 2. Whether the evidence of the eye witnesses was sufficient to prove the guilt of the accused-appellants? 3. Whether the accused-appellants were entitled to the benefit of the doubt?
Ratio Decidendi: The court held that the accused-appellants were guilty of culpable homicide not amounting to murder with intention and knowledge and therefore their conviction for offence u/s.302/34 IPC deserves to be converted to Section 304 Part-I read with 34 IPC. The court considered the fact that the incident had taken place way back in the year 1984 and appellant Ghanshyam had been facing initial trial and thereafter waiting the result for such a long period and also that at the time of incident, he was 19 years of age and now he is about 53 years of age.
Final Decision: The appeal qua Nanak was dismissed having abated. However, the appeal qua Ghanshyam was partly allowed. The impugned judgment was modified in the terms afore-discussed. The sentence of Ghanshyam was suspended by this Court vide order dated 04.01.1991. Thus he remained in jail for almost eleven months. He was directed to surrender immediately before the trial court, which will take him into custody and send him to jail to serve out the remaining sentence of imprisonment.
JUDGMENT
Mohammad Rafiq, J. - This appeal has been filed by Ghanshyam and Nanak against the judgment dated 6.12.1990 whereby they were convicted for offence u/s.302/34 IPC and sentenced to life imprisonment with a fine of Rs. 500, in default whereof to further undergo simple imprisonment of six months. They were also convicted for offence under Section 323/34 IPC and sentenced to simple imprisonment of one month. Both the sentences were ordered to run concurrently.
2. It may be at the outset noted that during the pendency of the appeal, appellant no.2-Nanak S/o Shri Sua Lal expired on 6.10.2002. His death certificate has been placed on record. The appeal qua him thus abates and now therefore survives only in respect of appellant no.1 Ghanshyam S/o Ram Nath.
3. The facts of the case are that a written report was lodged by Gullu @ Surendra before SHO, P.S. Ramganj, District Ajmer on the allegation against the accused-appellants that they along with 7 other persons gave beating to the Rajendra and Dhanna @ Rajendra S/o Mool Chand by 'lathis' and iron rod. They thereby got serious injurious and ultimately Rajendra S/o Mool Chand died. Charge-sheet has been filed against the accused-appellants for offence under Sections 147, 148, 307/149, 302/149, 302/34 and 307/34 IPC by the prosecution before the Court of Judicial Magistrate No. 5, Ajmer, who committed the same to the Sessions Court, wherefrom, it was made over to the court of Additional Sessions Judge, Ajmer for the trial. The trial court has framed the charges and read over the same to appellants, who denied the same and claimed to be tried. During the course of trial, the prosecution has examined 14 witnesses and exhibited 40 documents. The defence produced 2 witnesses and exhibited 4 documents. After considering the statement of prosecution witnesses and arguments, the trial court has convicted and sentenced the accused-appellants vide impugned judgment as indicated above. Hence this appeal.
4. Shri Sanjay Gangwar, learned counsel for the accusedappellant- Ghanshyam has contended that the trial court was in error while convicting the accused-appellant Ghanshyam for the offence of murder where there is no evidence on record regarding author of fatal injury. In the FIR, there were general allegations that all the accused persons of Gautam Nagar have beaten the injured and deceased, however no particular act has been attributed to any accused. Further Bhola (PW-7), Surendra (PW-7), Rajendra (PW-8), Rajendra (PW-9) and Mahendra Kumar (PW-10) do say in their statement that who inflicted the fatal blow. Surendra (PW-8) has stated that Ghanshyam has given iron rod blow on the head of the deceased and all other accused persons gave beating by 'lathis' and stones. This witness does say regarding the author of fatal injury. Even Rajendra (PW-9) and Mahendra (PW-10) have stated that both the accused-appellants caused injuries on head and chest of the deceased. They too does say who was the author of fatal injury. The trial court wrongly believed the statements of Rajendra injured and Mahendra Kumar, whereas statements of both these persons are contradictory to each other. Mahendra (PW-10) has stated that 10 to 12 persons were running towards the deceased and injured Rajendra and accused appellants were having 'iron rod' and they inflicted it on the chest and head of deceased. This witness further stated that co-accused Khiladi has also inflicted 'kulhari' blow from the reverse side on the head and chest and Ashok Kumar pelted stones on the chest of the deceased whereas Dr. B.L. Bhatiya (PW-13) has found only one injury on the chest. This shows that this witnesses has seen the occurrence and he has given false version in the court only to implicate the accused persons.
5. Learned counsel submitted that the prosecution failed to prove the presence of the eye witnesses on the spot. The prosecution has made any site plan showing the place of witnesses from where they have seen the occurrence
