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2013 Supreme(Raj) 181
(Rajasthan High Court)
Shanker Vs. State of Raj. (Sharma, J.)
HON'BLE DINESH MAHESHWARI, J.
HON'BLE BANWARI LAL SHARMA, J.
Shanker
Versus
State of Raj.
D.B. Criminal Jail Appeal No. 853 of 2004, decided on 08.05.2013
Devendra Singh Thind, for Appellant;
K.R. Bishnoi, Public Prosecutor
Headnote:Cr.P.C., 1973, Sec. 329; IPC, Secs. 304, 302 — The deceased wife forced the accused to wear the string against his will — He became furious, picked up sword readily available in his house and gave two blows — Died at the spot — Being of unsound mind non-compliance of provisions of Sec. 329 Cr.P.C. — Raised the plea first time in appeal after delay of eight years — No such evidence on record — The court can not proceed on this count on mere asking — No pre-meditation nor any intention to kill — Offence was committed in sudden fight, heat of passion on being provoked, acted in unusual manner which is covered u/S. 304-I I.P.C. — Conviction u/S. 302 I.P.C. modified to one u/S. 304-I I.P.C. and sentenced to suffer 10 years R.I. (Paras 16, 17, 42 to 46)
Appeal partly allowed.
na-iz-la-] 1973] /kkjk 329( Hkk-na-la-] /kkjk 304] 302 & e`rd iRuh us vfHk;qDr dks mldh bPNk ds fo:) /kkxk iguus gsrq ncko Mkyk & og Øksf/kr gks x;k] ryokj mBkbZ] tks vklkuh ls mlds ?kj esa miyC/k Fkh] vkSj mlls nks okj fd;s & ?kVuk LFky ij gh e`R;q gqbZ & detksj fnekx dk gksus ds dkj.k na-iz-la- dh /kkjk 329 ds izko/kkuksa dh vuuqikyuk & vkB o"kZ ds foyEc ds i'pkr~ vihy esa izFke ckj ;g vfHkokd~ fd;k & vfHkys[k ij ,slk dksbZ lk{; ugha & U;k;ky; dsoy dgus ek= ls bl vk/kkj ij dk;Zokgh ugha dj ldrk & u rks iwoZ esa dqN lksph le>h gqbZ pky vkSj u gh ekjus dk dksbZ vk'k; & ;g vijk/k vpkud yM+kbZ esa] izdksfir gksus ij vkos'k esa vlkekU; <ax ls d`R; djds fd;k tks Hkk-n-al-a dh /kkjk 304-I ds rgr vkrk gS & Hkk-na-la- dh /kkjk 302 ds rgr nks"kflf) dks Hkk-na-la- dh /kkjk 304-I ds rgr mikUrfjr fd;k vkSj 10 o"kZ ds dBksj dkjkokl dh ltk ls nf.Mr fd;kA
vihy va'kr% Lohdkj dhA ¼in la[;k 16] 17] 42 ls 46½
2. The prosecution case, as unfolded at the trial, brief, may be stated as follows.
3. The present case involves the killing of Smt. Kamla (hereinafter referred to as `deceased'). On 14.5.2004, Ladki (PW.4), maternal aunt of the deceased came to the residential house of appellant to meet her niece Kamla-deceased at village Bichhawada and remained there in night. On 15.5.2004, after taking morning tea, she was returning to her village Ghanolda with Champi. While they moved a little, they heard the cry of the children from the house of the appellant. On hearing cry, they returned to the house of the appellant and saw that appellant Shanker was sitting on otli after murdering his wife. Shanker told them that he had murdered Kamla by sword. The sword was lying there and the garments of Shanker were blood-stained. The people of vicinity gathered there and she (Ladki) returned to her house.
4. The report about the occurrence was lodged by Ladki (PW.4) at P.S. Lohariya (Banswara) on the same day as Ex. P/8 and formal FIR No. 107/2004 was registered as Ex. P/9 under Section 302 IPC and the police launched investigation into the matter.
5. During investigation, the police prepared the inquest report, forwarded the deceased for postmortem examination, arrested the accused, seized the incriminating weapon sword and recorded the statements of the witnesses. At the close of the investigation, the police submitted charge-sheet against the accused for the offence under Section 302 IPC in the court of learned Judicial Magistrate, Ghatole (Banswara).
6. The offence, under Section 302 IPC, being exclusively triable by the court of Sessions, the learned Judicial Magistrate, Ghatole, committed the case to the court of Sessions, Banswara for trial and the learned Sessions Judge, Banswara transferred the case for trial to the court of learned Additional Sessions Judge, Fast Track, No. 1 Banswara (hereinafter referred to as `the learned trial court') vide order dated 16.7.2004. The learned trial court framed the charge under Section 302 IPC against the accused, to which, the later pleaded not guilty and claimed to be tried.
7. In order to prove its case, the prosecution examined as many as 12 witnesses including Medical Officer (PW.1), who conducted the autopsy of the dead body and the investigating police officer (PW.9). At the conclusion of the evidence, the accused person was examined by the learned trial court under Section 313 Cr.P.C. The accused denied the allegation brought against him and even after availing of the opportunity for defence evidence, failed to adduced any evidence in defence.
8. Considering the evidence on record and after hearing the parties, the learned trial court found the appellant guilty of the offence under Section 302 IPC and accordingly convicted and sentenced him as indicated above.
9. Being aggrieved, the accused, who has been suffering the sentence, as appellant, has preferred this appeal, from jail. Vide order dated 22.2.2013, Mr. Devendra Singh Thind, Advocate was appointed as Amicus Curiae by this Court.
10. We have heard Mr. Devendra Singh Thind, learned Advocate, appearing on behalf of the appellant as Amicus Curiae and Mr. K.R. Bishnoi, learned Public Prosecutor, appearing for the State.
11. The learned Amicus Curiae has submitted that at the time of incident, the appellant-ac
