Pokar Ram vs State
2021 Latest Caselaw 11586 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
                D.B. Criminal Appeal No. 84/2020

Pokar Ram S/o Sh. Kana Ram, Aged About 64 Years, B/c Meena,
R/o Dhani Itandra Mertiyan, P.s. Rani, Dist. Pali. (At Present
Lodged In Central Jail, Jodhpur).
                                                                  ----Petitioner
                                   Versus
State, Through Pp
                                                                ----Respondent


For Petitioner(s)        :     Mr. Kalu Ram Bhati
For Respondent(s)        :     Mr. N.S. Bhati, P.P.



           HON'BLE MR. JUSTICE SANDEEP MEHTA
         HON'BLE MR. JUSTICE MANOJ KUMAR GARG

                                Judgment

Judgment Reserved on :                      20/07/2021
Date of pronouncement:                       27/07/2021


BY THE COURT : (PER HON'BLE GARG, J.)

The instant criminal appeal has been filed by the accused

appellant under Section 374(2) Cr.P.C. against the judgment dated

19.11.2019 passed by the learned Additional Sessions Judge, Bali,

District Pali in Session Case No. 23/2016 by which learned Judge

convicted the accused-appellant for offence under Section 302 IPC

and sentenced him to life imprisonment and also imposed a fine of

Rs.10,000/- and in default of payment of fine, to further undergo

a sentence of six month's simple imprisonment.

Brief facts of the case are that a written report was filed by

one Darga Ram before the Police Station, Rani, District Pali stating

therein that his brothers viz. Pokar Ram and Hasta Ram both

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reside in a nearby Dhani and they used to often quarrel with each

other for liquor. The day before, Hasta Ram came on a motorcycle

after consuming liquor and in the night, Pokar Ram inflicted lathi

blows on the head and body of Hasta Ram who succumbed to the

injuries. The informant came to know about the incident only on

next morning. When he reached the house of Hasta Ram, he was

lying with only an underwear on his body.

On the basis of the said report, the Police registered the FIR

for offences under Sections 302, 201 IPC and started

investigation. After usual investigation, the police filed charge

sheet against the accused-appellant for offence punishable under

Sections 302 & 201 IPC.

The case was committed for trial before the court of Addl.

District & Sessions Judge, Bali, Distt. Pali where the charges were

framed against the accused-appellant. The accused-appellant

pleaded not guilty and claimed trial.

At the trial, the prosecution examined as many as 18

witnesses in all. Thereafter the statement of the accused-appellant

was recorded under section 313 Cr.P.C. No witness was examined

on the defence side.

At conclusion of the trial, the learned Addl. Sessions Judge,

Bali, Distt. Pali vide judgment dated 19.11.2019 convicted the

appellant for offence under Section 302 IPC and passed sentence

mentioned above.

Learned counsel for the appellant submits that the learned

trial court has not appreciated the evidence led by the prosecution

in proper perspective. It is argued that there is no evidence on

record that the appellant/accused had any motive or intention to

kill the deceased. They used to quarrel for liquor every other day

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and on the day of incident also, some hot discussion took place in

between appellant and deceased and at the spur of moment, the

injuries were caused to the deceased. According to the statement

of PW/11 Dr. Ramesh Chandra, the injury on head of deceased

was found to be simple in nature. There was fracture of ribs and

cause of death was due to rupture of spleen. It is further argued

that after arrest of appellant, his Banyan, Dhoti and lathi was

recovered. On all these articles, human blood was found but the

blood group comparison failed, therefore, it can be said that

finding of learned trial court for convicting the accused appellant

for offence under Section 302 IPC is not sustainable in law. The

crux of argument of learned counsel for the appellant is that

prosecution has failed to prove its case for offence under Section

302 IPC and offence cannot travel beyond offence under Section

304 Part II IPC because there is no evidence of motive/ intention

on record so as to hold the accused appellant guilty for offence

under Section 302 IPC. Learned counsel prayed that this appeal

may kindly be allowed in part and conviction of accused appellant

may be altered from offence under Section 302 IPC to 304 Part II

IPC with suitable reduction in sentence.

Per contra, learned Public Prosecutor vehemently argued that

the learned trial court has convicted the accused appellant while

considering statement of eye witnesses who have levelled specific

allegations against the appellant. It is also argued that blood

stained clothes and lathi was recovered as per information given

by the accused who is not disputing the incident, therefore, even if

motive which is one of the ingredients for offence of murder, is not

in existence then also it can be gathered from the entire evidence

that trial court has rightly arrived at a finding that accused

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appellant is guilty for offence under Section 302 IPC, therefore,

there is no question to accept the argument of learned counsel for

the appellant that offence under Section 302 IPC is not made out

in absence of motive. Thus, there is no question to accept the

prayer of accused appellant to alter the offence from Section 302

IPC to Section 304 Part II IPC and it is prayed that the appeal may

kindly be dismissed.

We have heard the learned counsel for the appellant as well

as learned public prosecutor, perused the impugned judgment

passed by the learned trial court and also gone through the record

of the case.

In order to re-appreciate the entire material on record, it is

relevant to consider the evidence of prosecution witnesses and the

documents relied upon.

The eye witness PW/2 Samratha Ram has stated that he saw

accused Pokar Ram inflicting blow with lathi upon Hasta Ram from

the backside of house of Dhala Ram. However, in cross-

examination he mentioned that he did not enter the house of

deceased but he only saw the incident from outside the gate. He

further stated that deceased used to consume liquor due to which

his wife also abandoned him. He has specifically stated that

accused and deceased who are brothers, often used to quarrel.

Similarly, PW/1 Narayan lal who is also an eye witness has

mentioned that he saw the incident when accused inflicted lathi

blows on the deceased. In his cross-examination, he mentioned

that he saw the incident from about 20 ft away and he never

entered into the house. He further stated that he informed the

police at about 9:15-9:30 in the night but this fact was not

mentioned in the police statement (Ex.D/1).

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Another witness PW/12 Raju who is the son of deceased

stated that when his father was preparing meals, at that time the

accused came there and questioned him as to why he drinks daily

and then the accused gave a lathi blow on the head of the

deceased. In his cross-examination, the witness admitted that his

father used to drink daily. He also admitted that when his father

was returning home, accused Pokar Ram met him, however, he

denied that his father hurled abuses at the appellant but in his

police statement Ex.D/4 he mentioned that his father had abused

the appellant. He also admitted that when accused appellant

came to their house, he questioned the deceased as to why he

drinks daily and that his mother also left father due to this habit.

As per postmortem report and statement of PW/11 Dr.

Ramesh Chandra, the cause of death of deceased was due to

rupture of spleen. Multiple bruises were found on the body of

deceased which were on his chest, abdomen and back. After

arrest of the present appellant, Banyan, Dhoti and lathi were

recovered from the accused, however, as per FSL report, although

human blood was found but no blood group could be ascertained

on these articles.

Culpable homicide is murder, if the act by which the death is

caused is done with the intention of causing death. Upon perusal

of the statements, it is obvious that the deceased and accused

were brothers and they used to quarrel over the question of liquor.

The appellant had neither taken any undue advantage nor acted in

a cruel manner, thus, there was no intention on the part of the

appellant to kill the deceased and therefore, the instant case falls

under Exception 4 to Section 300 IPC. which reads as follows:

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     "300.    Murder.--Except          in     the      cases     hereinafter

excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-- .........

Exception 4.--Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.

Explanation.--It is immaterial in such cases which party offers the provocation or commits the first assault."

Whether culpable homicide is committed with intention or

knowledge is paramount for the purpose of determining the nature

of the offence as well as for determining the measure of sentence

to be passed on the accused.

Hon'ble Apex Court in (2006) 11 SCC 444 'Pulicherla

Nagaraju @ Nagaraja vs State Of A.P' while discussing the said

aspect has observed as under :-

"Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of

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the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre-meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention.

In the case of Jai Prakash vs. State (Delhi Administration)

reported in 1991 SCC (2) page 32, held as under :

"The 'intention' and 'knowledge' of the accused are subjective and invisible states of mind and their

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existence has to be gathered from the circumstances, such as the weapon used, the ferocity of attack, multiplicity of injuries and all other surrounding circumstances. The framers of the Code designedly used the words 'intention' and 'knowledge' and it is accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences should ensue. Firstly, when an act is done by a person, it is presumed that he, must have been aware that certain specified harmful consequences would or could follow. But the knowledge is bare awareness and not the same thing as 'intention' that such consequences should ensue. As compared to 'knowledge', 'intention' requires something more than the mere foresight of the consequences, namely the purposely doing of a thing to achieve a particular end."

Once, it is established by the extenuating circumstances that

the ingredient of intention cannot be established or that having

regard to the facts of the case, it cannot be said that the accused

had an intention to cause the said fatal injury. As per the

postmortem report (Ex.P/27), the injury on the head of the

deceased was found to be simple and the cause of death was

found to be rupture of spleen caused by fracture of ribs. By

inference, only knowledge can be attributed to the accused of the

consequences that may follow and hence, it would be culpable

homicide punishable under section 304 II of the Indian Penal

Code.

In the instant case, as per evidence, the appellant is said to

have assaulted his brother Pokar Ram with a lathi while

expostulating on his drinking habit, which indicates that there was

no premeditation to commit murder and intention to kill the

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deceased is also missing. Having regard to the nature of weapon

used and the parts of the body on which blows were dealt, it is

difficult to hold that the appellant intended to cause death,

therefore, we may safely hold from the facts and circumstances

that accused had no intention to kill the deceased and the

commission of offence attributed to the appellant would come

under Section 304 Part II IPC.

Accordingly, the conviction of appellant is altered from

Section 302 I.P.C. to that under Section 304 Part-II I.P.C and he is

sentenced to eight years rigorous imprisonment alongwith fine of

Rs. 10,000/- and in default of payment of fine, to undergo six

months simple imprisonment.

The appeal is partly allowed in these terms.

Record of the trial court be sent back forthwith.

                                   (MANOJ KUMAR GARG),J                                  (SANDEEP MEHTA),J


                                    BJSH/-









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